Swift and Co.

National Labor Relations Board - Board Decisions

Sep 25, 1944

58 N.L.R.B. 540 (N.L.R.B. 1944)

In the Matter Of SWIFT AND COMPAN Y and UNITED PACKINGHOUSE
WORKERS OF AMERIOA, C. I. O.
Case No. 16-R-1006.-Decided September 05, 1944
Messrs. John P. Staley and Glenn B. Cook , of Chicago , Ill., for the
Company. -
Messrs. John B. -Love, A. J. Pittman, and I . L. Pugh , of Fort
Worth , Tex., for the Union.
Messrs. Drew S. Clifton and Chester Clark, of Fort Worth , Tex., for
the Council.
Miss Ruth E. Bliefiield , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the United Packinghouse Workers
of America, C. I. 0., herein called the Union, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Swift and Company, Chicago, Illinois, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before John H. Garver, Trial
Examiner. Said hearing was held at Fort Worth, Texas, on Septem-
ber 1, 1944. At the hearing Swift Employees Council Plan, affiliated
with the International Brotherhood of Swift Employees, herein called
the Council, was permitted to intervene. The Company, the Union,
and the Council appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the hearing the
Council filed an Answer and Reply and a Motion to Dismiss. The An-
swer and Reply alleges that the Union has attempted to gain control
through false and fraudulent misrepresentations ; many of the em-
ployees who signed the union cards are no longer employees of the
Company; many employees of the Company are now in the armed
services and a change in the bargaining agent will vitally affect their
rights under the existing contract; and the Union is causing unrest
58 N. L. R. B., No 107.
540
SWIFT AND COMPANY 541
and dissatisfaction among the employees by carrying on an unfair
propaganda campaign. The Motion to Dismiss is based on the con-
tentions that there is now pending before the National Labor Rela-
tions Board a petition by the Union seeking to review and set aside a
prior consent election; 1 there is an insufficient showing that any enI-
ployees of the Company are bona fide members of the Union; many
employees of the Company are in the armed services and their rights
would be materially affected by another election. The Motion to Dis-
miss also requests that in the event an election is ordered provision
be made that the employees of the Company in the armed services be
permitted to cast their ballots in the election. The Trial Examiner
reserved ruling on the above-mentioned motion of the Council. For
the reasons indicated below, the Motion to Dismiss is hereby denied.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is an Illinois corporation with its principal office and
place of business at Chicago, Illinois, and is engaged at Fort Worth,
Texas, and elsewhere in the slaughtering of livestock, packing, sale,
and distribution of meat products. Only the Fort Worth plant of
the Company is involved in the instant proceeding. During the fiscal
year 1943 the Fort Worth plant purchased livestock and other raw
materials in Texas valued in the amount of approximately $44,000,000.
During the same period it- obtained for its Fort Worth plant from
points outside the State of Texas livestock and other raw materials
in ' the amount of approximately $4,600,000. During the fiscal year
1943 the Company sold and shipped from its Fort Worth plant to
points in the State of Texas finished products valued at approximately
$38,000,000, and during the same period it sold and shipped from its
Fort Worth plant to points outside the State of Texas finished prod-
ucts valued at approximately $20,500,000. There has been no sub-
stantial change in the nature of the Company's operations during the
year 1944 and the percentages of product received and shipped are
the same.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
1 It appears from the Council's brief that this is the same proceeding as the complaint
case (No 16-C-934) referred to in Section V, infra.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
United Packinghouse Workers of America, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting to
membership employees of the Company.
Swift Employees Council Plan, affiliated with the International
Brotherhood of Swift's Employees, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 7, 1944, the Union sent a letter to the Company advising
the latter that it represented a substantial majority of the production
and maintenance employees of the Fort Worth plant and requesting
a meeting to discuss wages, hours, and other conditions of employ-
ment. On July 8, 1944, the Union sent another letter to the Company
in which it requested recognition for the purpose of becoming the sole
collective bargaining agent for the employees indicated. The Com-
pany replied to both letters on July 14, 1944, stating, in effect, that
it could not recognize the Union as the collective bargaining repre-
sentative and could not meet with it, inasmuch as it had an agreement
with the Council covering the same employees.
The contract mentioned by the Company in its letter of July 14,
1944, became effective on August 20, 1942, to remain in effect until
August 11, 1943, and from year to year thereafter subject to reopen-
ing on 30 days' written notice prior to August 11 of any year. The
contract was renewed automatically in 1944. -
The Council in its Answer and Reply contends that the contract
between the Company and the Council is a bar to the conduct of an
election at this time. However, since the petitioner requested recogni-
tion more than 30 days prior to the contract renewal date, we find
that this contract does not constitute a bar to a present determination
of represenatives 2
A statement of the Field Examiner, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
2 SeeMatter of Mill B, Inc , 48 N L. R. B. 925.
8 The Field Examiner reported that the Union submitted 1023 membership cards bearing
apparently genuine, original signatures, and that the names of 714 persons appearing on
the cards were contained in a pay-roll list of employees for the period ending August 4,
1944, submitted by the Company in the unit claimed by the Union . The 714 membership
cards were dated as follows : 1 in September 1942 ; 53 from January through December
1943; 652 from January through August 1944 , and 8 were undated. The unit hereinafter
found appropriate contains approximately 2114 employees . Thus the Union has shown
that it represents approximately 33 percent of the Company 's employees and the Board
has, accordingly , overruled the Council 's motion to dismiss the petition on the ground
of insufficient showing.
SWIFT AND COMPANY
IV. THE APPROPRIATE UNIT
543
All the parties agreed on the appropriate unit for collective bar-
gaining, and we perceive no reason for departing from their agree-
merit. We therefore find that all production and maintenance em-
ployees of the Company at its Fort Worth, Texas, plant including
truck drivers, but excluding the superintendent, superintendent's
office employees, assistant superintendent, division superintendents,
general foremen, foremen, assistant foremen, general office employees,
clerical employees, draftsmen, brick mains, chemical laboratory em-
ployees, matron, time and employment office employees, standards de-
partment employees, plant-protection employees (including police-
men, watchmen, and firemen), and medical employees, and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
National Labor Relations Act.4
V. THE DETERMINATION OF REPRESENTATIVES
The Council and the Company contend that an election should not be
held at this time, since there is now pending before the Board a com-
plaint case (Case No. 16-0-934) in which the Company is the respond-
ent, based on charges filed by the Union. However, this case was
closed on August 29, 1944, pursuant to Article II, Section 35, of Na-
tional Labor Relations Board Rules and Regulations-Series 3, as
amended, upon failure of the parties to file exceptions within 15 days
after a finding by the Trial Examiner in his Intermediate Report that
the respondent has not engaged in and is not engaging in any of the
alleged unfair labor practices affecting commerce . There is, therefore,
no reason why an election may not be held forthwith.
The Council also contends in its brief and Motion to Dismiss that
an election should not be held at this time because there are more than
600 employees of the Company in the armed services whose rights
would be seriously jeopardized by the holding of an election at this
time, and states further that if an election is held such employees should
be allowed to cast ballots by mail. We find that there is no merit in
this contention since the Board is governed in such cases by the policy
set forth in the Matter of Mine Safety Appliances Company.5
* The unit set forth herein is substantiall; the Same as that established in a consent
election conducted March 17, 1943, in case No. 16-R-597, in which the same parties were
involved . The language in the description of the consent agreement is somewhat different
but comparison shows that the same types and classifications of employees are referred to,
and the Company , the Council , and the Union indicated that they understood that the
unit in question was the same.
See Matter of Mine Safety Appliances company , 55 N. L R B 1190 -
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein; subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Swift and Com-
pany, Chicago, Illinois, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Sixteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among the em-
ployees in the unit found appropriate in Section IV, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at.the polls, but excluding
those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the election,
to determine whether they desire to be represented by United Packing-
house Workers of America, C. I. 0., Local 175, or by Swift Employees
Council Plan, Local Number 6, affiliated with the International Broth-
erhood of Swift Employees,6 for the purposes of collective bargaining,
or by neither.
O The Union requested that it be designated on the ballot as United Packinghouse
Workers of America, C . I. O , Local 175 , and the Council requested that it be designated as
Swift Employees Council Plan , Local Number 6, affiliated with the International Brother-
hood of Swift Employees . These requests are granted.