Armour & Co.

National Labor Relations Board - Board Decisions

Mar 15, 1938

5 N.L.R.B. 975 (N.L.R.B. 1938)

In the Matter of ARMouR & COMPANY and AMALGAMATED MEAT CUT-
TERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL UNION
No. 413
Case No. R-494.-Decided March 15, 1938
Meat Packing Industry-Investigation of Representatives : controversy con-
cerning representation of employees : rival organizations ; refusal by employer to-
recognize petitioning union as exclusive representative-Unit Appropriate for
Collective Bargaining: hourly paid production workers and yardmen; commu-
nity of interest-Election Ordered
Mr. Thurlow Smoot, for the Board.
Mr. Walter C. Kirk, of Chicago, Ill., for the Company.
Mr. Harry Laslikowitz, of Fargo, N. D., for the Amalgamated.- °
Mr. James A. Garrity, of Moorhead, Minn., for the Alliance.
Mr. Harry E. Selekman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 1, 1937, Amalgamated Meat Cutters and Butcher
Workmen of North America, Local Union No. 413, herein called the
Amalgamated, filed with the Acting Regional Director for the Eight-
eenth Region (Minneapolis, Minnesota) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Armour & Company, herein called the Company, at
its West Fargo, North Dakota, plant, and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On November 27, 1937, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Acting Regional Director to conduct it and to provide
for an appropriate hearing upon due notice.
On December 3, 1937, the Acting Regional Director issued a notice
of hearing, copies of which were duly served upon the Company,
upon the Amalgamated, and upon the Independent Workers Alliance,
975
,976 NATIONAL LABOR RELATIONS BOARD
herein called the Alliance, a labor organization claiming to represent
employees directly affected by the investigation. Pursuant to the no-
tice, a hearing was held on December 16 and 17, 1937, at Fargo, North
Dakota, before J. J. Fitzpatrick, the Trial Examiner duly designated
by the Board. The Board, the Company, the Amalgamated, and the
-Alliance were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and to cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
-all parties.
At the hearing the Trial Examiner first admitted in evidence a list
of the members of the Alliance, but he later ruled that such list should
be excluded on the grounds that the names were copies from slips of
paper and cards which he thought would also be introduced in evi-
-dence but were not and that no person who wrote down the names
-testified at the hearing. We believe the Trial Examiner erred in his
'ruling and shall admit these exhibits. The weight to be given them
-will be discussed in Section VI, infra. During, the course of the hear-
ing the Trial Examiner made several rulings on motions and on other
objections to the admission of evidence. The Board has reviewed
such rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Armour & Company, an Illinois corporation, is engaged in the
meat packing and distributing industry. It also manufactures allied
products, such as fertilizer, toilet goods, and leather; operates cream-
eries; and owns establishments which slaughter and dress poultry
:and package and sell eggs. The Company, which is one of the four
largest meat packing houses in the United States, operates 28 meat
packing houses in 22 States and about 300 branch houses throughout
-the United States. The Company advertises in magazines of national
,circulation and in local newspapers at the branch house points. The
total amount of business done by the Company in the fiscal year of
1936 was $748,935,218.
The West Fargo, North Dakota, plant covers an area of approxi-
mately 25 acres, on which are situated six buildings and the feeding
yards. During 1936 over 200,000 cattle, hogs, sheep, and calves were
-slaughtered and processed at this plant. All the livestock is pur-
chased in stock yards located in North Dakota, but approximately
24 per cent of this livestock originates outside the State. • Of the
1 These were marked for identification as Intervenor 's Exhibit Nos. 1-4 and included
,with the other exhibits.
DECISIONS AND ORDERS 977
total amount of fresh products sold by the plant, 94 per cent is sent
outside of North Dakota. The number of workers in the plant
-varied from 359 to 506, and the annual pay roll was over $400,000
-for the year 1936.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, Local Union No. 413, is a labor organization affiliated with the
American Federation of Labor, admitting to its membership hourly
Paid production employees of the Company and of the Union Stock
Yards, excluding supervisory and clerical employees, temporary
workers, and salaried employees.
Independent Workers Alliance is an unaffiliated labor organiza-
tion. It admits to its membership all of the employees of the Com-
pany, excluding supervisory employees.
III. THE QUESTION CONCERNING REPRESENTATION
The Amalgamated first began to organize the employees of the
Company in July 1937, and the local received its charter on August
16, 1937. On August 31, 1937, at a meeting of the members of the
Amalgamated a committee was authorized to negotiate with officials
of the Company. On September 1, 1937, the committee met with
J. E. Pyle, the general manager of the plant, requested that the Com-
pany recognize it as the exclusive bargaining agent for the hourly
paid production employees, and submitted a contract 2 to be signed
by the Company. However, the Company refused to comply with
the request of the Amalgamated, but agreed to bargain with the
Amalgamated for its own members and posted a notice 3 to this effect
-on its bulletin board. On September 3, 1937, a committee of the
Alliance, at a conference with Pyle, sought recognition of their
organization as the sole bargaining agent, but the Company refused
to deal with it except for its own members.
We find that a question has arisen concerning representation of
employees of the Company.
V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
,described in Section I above, has a ,:close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
2 Petitioner 's Exhibit No. 1.
a Petitioner 's Exhibit No. 2.
978 NATIONAL LABOR RELATIONS BOARD
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company for bookkeeping purposes has placed its employees
on two different pay rolls, a salary and a plant pay roll. Testimony
introduced by the Company indicates that the salary pay roll is,
composed of local executives, head buyers, and office force and that
the plant pay roll contains certain salaried employees, as well as the
hourly paid workers. The Alliance alleges that the appropriate
unit should consist of the employees on both pay rolls, excluding
the supervisory employees on the salary pay roll. The Amalga-
mated contends that the bargaining unit should be composed of the
hourly paid production employees on the plant pay roll and seeks
to exclude from the unit supervisory and clerical employees, tempo-
rary workers, and the following salaried employees on the plant
pay roll: Hog and stock yardmen, plant cleaners, police and watch-
men, chemists, plant and storeroom clerks, messengers, and truck
drivers. The parties, therefore, are in accord only with respect to-
the exclusion of the supervisory employees.
Hog and Stock Yardmen. Testimony given by the Company
shows that it employed four hog and fourteen stock yardmen during
the week of October 30, 1937. These workers are paid weekly wages,
whereas the production employees are paid on an hourly basis. The,
yardmen load the animals on trucks from the cars, drive them to the
stock yards where they are unloaded, take care of the livestock,
and keep the yards clean.
The constitution of the Amalgamated Meat Cutters and Butcher
Workmen of North America indicates that such employees are eligible
to membership in the Amalgamated, stating that "the [Amalgamated]
shall comprise all wage earners in any way connected with wholesale
and retail markets, slaughtering and packing establishments. Book-
keepers, office clerks, timekeepers and managers of packers' branch
houses are exempt." 4 The Amalgamated has included laborers
among the workers it seeks to represent in its petition. In the case of
Matter of St. Joseph Stock Yards and Butcher Workmen of North,
America, Local Union No. 159,5 the Amalgamated 'sought and the,
Board included yardmen among the workers in the bargaining unit.
In the light of these facts, we feel that the hog and stock yardmen
should be included in the bargaining unit.
Temporary Employees. The Company produced monthly averages,
of the number of men employed from November 1936 to October 1937..
An examination of these figures shows that there are substantial dif-
4 Article I, Section 1 of the Constitution , introduced as Petitioner's Exhibit No 4.
5 2 N. L. R. B. 39 , Case No. C-43, decided July 7, 1936.
DECISIONS AND ORDERS 979
ferences from month to month. The record indicates these fluctua-
tions are caused by the intermittent receipt of livestock by the Com-
pany. Upon the arrival of the livestock a rush period ensues which
necessitates the hiring of additional workers until the animals are all
slaughtered, processed, and distributed. There is no evidence in the
record relating to the duration of these rush periods, how often they
occur, or the frequency with which these temporary workers are hired
from one period to the next. The evidence does show, however, that
the Company pays a smaller wage rate to those persons who have
worked less than a total of 60 days for the Company. In the absence
,of an adequate showing that the interests of the temporary workers
are closely related to those of the other workers in the bargaining
unit, we conclude that the temporary workers should be excluded
from the bargaining unit. Temporary employees shall be defined as
those persons who have been employed by the Company for less than
a total of 60 days.
The Plant Cleaners. It appears from the evidence that six men,
-who are engaged in general cleaning work about the plant, have
,been hired under the terms of a contract between the Company and
Nick Paris, an employee of the Company. These men, who receive
weekly salaries, are paid by the Company, but Paris has the right
to hire and discharge them without the approval of the Company
and the duty of supervising the activities of these men. We shall
exclude the six cleaners because under all the circumstances they
appear to be employees of Paris, rather than those of the Company.
Other Employees. In accordance with our previous decisions we
shall exclude clerical and office employees, plant police and watch-
men, chemists, plant and storeroom clerks, messengers, and truck
drivers because their interests and working conditions are substan-
-1ially different from those of the hourly paid production workers.
We find that the hourly paid production workers and yardmen of
the Company, excluding supervisory and clerical employees, tem-
porary employees, plant cleaners, police and watchmen, chemists,
-plant and storeroom clerks, messengers, and truck drivers constitute
a unit appropriate for the purposes of collective bargaining and
that said unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargaining
.and otherwise effectuate the policies of the Act.
VI. DETERMINATION OF REPRESENTATIVES
At the hearing the Company introduced in evidence two plant pay
rolls, one for the week ending September 4, 1937, and one 7 for the
9 Petitioner's Exhibit No. 14.
1 Petitioner's Exhibit No. 15.
980 NATIONAL LABOR RELATIONS BOARD
week ending October 30, 1937. The Company objected to the use of
the pay roll of September 4, 1937, on the ground that the personnel
of the Company had changed considerably since that time. Neither
the Amalgamated nor the Alliance raised any objections to comparing
their membership list and cards with the pay roll of October 30, 1937.
We shall, therefore, use this pay roll for our purposes. An examina-
tion of the pay roll shows that there are 399 employees in the appro-
priate unit.
The Amalgamated submitted in evidence 221 membership cards
signed during the months of July to October 1937. A comparison of
these cards with the pay roll of October 30, 1937, reveals that 213 mem-
bers whose names appear on the pay roll, are in the appropriate unit.
The chairman of the executive committee of the Alliance, the only wit-
ness to testify concerning the membership of that organization, stated
that employees of the Company who wished to become members of the
Alliance, gave their names to the membership committee, that the
names were written down by the members of the committee on slips of
paper and cards which were turned over to the secretary of the Alli-
ance, and that the witness had compiled this list from the cards and
slips of paper given to him by the secretary and membership com-
mittee. An examination of this list shows that 16 employees appear-
ing on it are also included among the members of, the Amalgamated:
Although we feel that the list submitted by the Alliance has little
probative value and cannot under all the circumstances be given much
weight in determining the status of the membership of the Alliance,
we do believe, however, that the appearance of the name of an em-
ployee on that list may raise some doubt as to whether such employee
desires representation by the Amalgamated. Since of the 399 em-
ployees of the Company within the appropriate unit as of October 30,
1937, only 213 signed membership cards of the Amalgamated, there is
clearly no adequate showing that a majority of the employees within
the appropriate unit desire representation by the Amalgamated if
question is held to exist as to what bargaining representative the 16
employees desire. We feel that under all the circumstances and par-
ticularly in view of the fact that even if these 16 employees are held
to desire representation by the Amalgamated there is still evidence of
only a very slight majority favoring representation by the Amalga-
mated, an election by secret ballot is necessary to resolve the question
concerning representation. Those employees in the appropriate unit
who were on the pay roll of the Company during the week ending
October 30, 1937, excluding those who have since quit or been dis-
charged for cause between such date and the date of election shall be
eligible to vote.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
DECISIONS AND ORDERS 981_
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Armour & Company, at its West Fargo,.
North Dakota, plant, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. The hourly paid production workers and yardmen of the Com-
pany, excluding supervisory and clerical employees, temporary work-
ers, plant cleaners, police and watchmen, chemists, plant and storerooms
clerks, messengers, and truck drivers constitute a unit appropriate-
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the Nationale
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of, National Labor
Relations Board Rules and Regulations-Series 1, as amended, it
is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for collective bargaining with Armour-
& Company, at its West Fargo, North Dakota, plant, an election by-
secret ballot shall be conducted within twenty (20) days from the,
date of this Direction, 'under the direction and supervision of the
Acting Regional Director for the Eighteenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject.
to Article III, Section 9, of said Rules and Regulations, among tlr,,
hourly paid production workers and yardmen of the Company whop
were on the pay roll of the Company during the week ending October-
30, 1937, excluding supervisory and clerical employees, temporary
workers, plant cleaners, police and watchmen, chemists, plant and'
storeroom clerks, messengers, truck drivers, and those who have since
quit or been discharged for cause, to determine whether they desire-
to be represented by the Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 413, or the Independent
Workers Alliance, for the purposes of collective bargaining, or by
neither.