Swift & Co.

National Labor Relations Board - Board Decisions

May 29, 1951

94 N.L.R.B. 917 (N.L.R.B. 1951)

SWIFT & COMPANY 917
of whom reports directly to the Employer's president. Accounts and
payrolls for the machine shop and all the Employer's stores are han-
dled in a central office located in the Jackson store. When parts are
needed by the Jackson machine shop, whether for motor rebuilding,'
repair, or performance of a machine "contract job," these are obtained
by requisition from the store. Machine shop customers are furnished
a single statement covering parts and labor.
Upon the basis of the above facts, the Board finds that the Employer
is engaged in commerce within the meaning of the Act. We further
find that the Employer's Jackson, Mississippi, machine shop is an
integral part of its over-all operations, and that it will effectuate the
purposes of the Act to assert jurisdiction in this proceeding.8
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All employees in the Employer's Jackson, Mississippi, machine shop,
excluding office, clerical, technical, professional, and parts employees,
watchmen, guards, the foreman, assistant foreman, and all other su-
pervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume]
7 As set forth above, the Employer is engaged in part in the sale of rebuilt engines
through its stores division The sources of these rebuilt engines, however , is not revealed.
8The Basic Lumber Products Division of the New York Coal Company, 92 NLRB 874.
Swill r & COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA,
CIO, PETITIONER. Case No. 4-RC-953. May 29,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold X. Summers, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
1 At the hearing, the Intervenor , Local 1, National Brotherhood of Packinghouse Workers,
CUA, submitted separate motions to dismiss the petition on grounds relating generally to •
(1) The Petitioner' s showing of interest , (2) the Petitioner's compliance status ; (3) the
timeliness of the instant petition ; and (4 ) contract bar. With respect to (1) and (2),
showing of interest and the fact of compliance by a labor organization which is required
to comply are matters for administrative determination and are not litigable by the
parties . Moreover, we are administratively satisfied that the Petitioner has an adequate
94 NLRB No. 137.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
1-ber panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The question concerning representation :
On December 30, 1949, following a consent election conducted on
December 21, 1949, Local 1, National Brotherhood of Packinghouse
Workers, CUA, was certified as the exclusive bargaining represent-
ative of the employees at the Employer's Harrisburg, Pennsylvania,
plant here involved.2 These workers were covered at that time by a
master contract between the Employer and the National Brother-
hood of Packinghouse Workers, CUA, herein called the Brotherhood,
which was to extend to August 11, 1950, and contained a 60-day auto-
matic renewal clause.3 The renewal of this agreeemnt on August 11,
1950, was forestalled by action of the contracting parties.
Shortly before July 15, 1950, a notice was distributed by the Local's
president calling a special meeting of the Local to be held on July 15
for the specific purpose, inter alia, of voting on the affiliation of the
Local with the Petitioner. Approximately 40 employees attended this
meeting,' a substantial majority of whom voted to disaffiliate from the
Brotherhood and to affiliate with the Petitioner. Thereafter, by letter
dated July 20, 1950, the Petitioner notified the Employer of the change
of affiliation of Local 1, demanded recognition on behalf of the Local,
and stated that it was the sole organization authorized to represent
the employees. On July 25, the Employer replied, asserting that it
had no knowledge as to the legality and propriety of the disaffiliation
or the Petitioner's representative status, and refused to recognize the
Petitioner until certified by the Board. On August 15, Local 1 of the
Petitioner filed charges of unlawful refusal to bargain by the Employer
and, on October 11, 1950, the Petitioner filed its petition in the instant
ease.5
Meanwhile, on August 1, 1950, the president of the Brotherhood,
in answer to an inquiry from the Employer, advised the Employer
that there had been no change of affiliation by Local 1 and, later, tem-
showing of interest and is in compliance See B,rnninglaanv Electric Con,panai , 89 NLRB
1342, and Sunbeam Corporation , 94 NLRB No 134 And as to (3) and ( 4), we find
no merit in these contentions for the reasons set forth in Section 3, infra. Accordingly,
the Intervenor ' s motions are hereby denied.
'Case No 4-RC-549
3 Th1s agreement covered , in addition to the Harrisburg plant , approximately 10 other
plants of the Employer
4 The usual attendance at meetings of the Local was about 17. The Employer's working
force in the unit numbered about 180
5 The charges ( Case No 4-CA-446 ) were withdrawn on November 3, 1950.
SWIFT & COMPANY 919
horary officers-for Local 1, which had been placed under trusteeship,
were appointed. The master contract covering the Harrisburg plant
terminated on August 11,1950,° and on August 18, 1950, the Employer
executed a new contract with the Brotherhood on behalf of its various
locals, including the Intervenor, effective from August 11, 1950, to
August 11, 1952, which, like the previous inaster contract, also em-
braced the employees here involved.
Local 1 (Petitioner) and Local 1 (Brotherhood) have each held
meetings since July 15, 1950, and have selected officers.' The Employer
has recognized Local 1 (Brotherhood) as the bargaining representative
under the existing contract. However, dues collected by the Employer
pursuant to a checkoff provision in the contracts effective since July
1950 have been held in escrow pending determination as to the bar-
'raining representative of the employees.
The Intervenor contends that: (1) The petition was untimely,
ander Section 9 (c) (3) of the Act, because it was filed within less than
1 year of the valid election conducted on December 21, 1949; (2) the
petition was also untimely because of the Board's prior certification of
the Intervenor less than 1 year before; and (3) the contract executed
by the Brotherhood and the Employer on August 18, 1950, covering
the employees concerned, operates as a bar." We do not agree.
As to the first ground, for the reasons fully indicated in F ltitvvale
Canning Company, 85 N. L. R. B. 684, a petition filed near the close of
the election year is not untimely.
As to the second ground, the facts detailed above reveal a schism
and demonstrate that the normal bargaining relationship between the
Employer and the original certified union has become a matter of
extreme confusion and uncertainty and, as a result, the relationship
between them no longer can be said to promote stability in industrial
relations. Under these circumstances, as the Board has previously
held in analogous contract bar cases," 'the certification cannot operate
as a bar and the petition was therefore not untimely b0
While the Intervenor contends that the disaffiliation meeting of July
15, 1950, was improperly conducted, such matters are not controlling
on the issue of representation. Cf. Radionic Products Division, Ra-
dionic Controls, Inc., supra; Billing Company, 90 NLRB No. 147.
Also, at the hearing, the Intervenor sought to introduce in evidence
petitions, dated October 23, 1950, containing 133 signatures and stat-
'A temporary extension agreement was executed on August 9, 1950 , to extend until a
new contract was signed or until the extension agreement was terminated This temporary
contract apparently terminated on August 18, 1950
a The president of Local 1 at the time of the July 15 meeting became president of
Local I (Petitioner)
s The Employer takes no position on these issues.
Radionic Products Division, Radionic Controls , Inc, 91 , NLRB 595, and cases cited
therein
11 See Carson Piri; Scott cC Company, 69 NLRB 935.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the signatories are members of the Intervenor, and desire the
Brotherhood to represent them in all matters pertaining to contracts
and working agreements. These petitions were rejected by the hearing
officer. Even assuming that the petitions were properly admissible,
they would not alter our determination herein.
Finally, with respect to the Intervenor's contention that its existing
contract with the Employer constitutes a bar, the Petitioner made its
demand for recognition on July 20, 1950, before the execution of the
agreement on August 18, 1950. While its petition herein was not filed
until October 14, shortly before the end of the election year, the Peti-
i ioner's demand was clearly more than a bare representation claim
such as would invoke the General Electric X-Ray rule." Rather, at
the time of its claim, the Petitioner fully apprised the Employer of
the schism in Local 1 and followed its demand by the filing of charges
with the Board, also prior to the execution of the contract, alleging
the Employer's unlawful refusal to bargain.12 In view of the fore-
going, and the entire record in this case, we are of the opinion that
the Petitioner's demand for recognition was substantial and had a
demonstrated foundation, which renders inapplicable the doctrine of
the General Electric X-Ray case.13 The contract between the Inter-
venor and the Employer, therefore, is not a bar to this proceeding.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In substantial accord with the agreement of the parties, we find
that the following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All production and maintenance employees of the Employer at its
Harrisburg, Pennsylvania, plant, excluding general office employees,
livestock buyers and yardmen, plant clerks, checkers, timekeeper,
standards department employees, employment office employees, re-
ceiving clerk, plant-protection employees, part-time workers, chief
engineer, master mechanic, superintendent, general foremen, foremen,
assistant foremen, and all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
11 In General Electric X-Ray Corporation, 67 NLRB 997, and subsequent decisions, the
Board held that, where a petition for certification is filed more than 10 days after a naked
claim of representation, an otherwise valid agreement executed in the interval would be
held a bar to an election.
12 The Intervenor's contention that the filing of charges was merely a "subterfuge" is
not supported by the record.
13 Cf. McLeod Veneer Company, 73 NLRB 859. See also Chicago Bridge & Iron Company,
88 NLRB 402, and Acme Brewing Co., 72 NLRB 1005
94 NLRB No. 133.