Swift & Co.

National Labor Relations Board - Board Decisions

Jul 2, 1943

51 N.L.R.B. 24 (N.L.R.B. 1943)

In the Matter of Swwr & Co . (FONTANA PLANT) and MEAT CUTTERS
LocAL No. 439, AFL
Case No. R-5518.-Decided July $,1943
Gibson, Dunn cC Crutclier, by Mr. J. Stuart Neary, all of Los
Angeles , Calif., for the Company.
Mr. James A. Garrow , of Pasadena , Calif., and Mr. John C. Pack-
ard, of Los Angeles, Calif., for the AFL.
Messrs. Charles J. Katz and A. J. Shippey, both of Los Angeles,
Calif., for the CIO.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE' CASE
Upon a petition duly filed by Meat Cutters Local No. ' 439, AFL,
herein called the AFL, alleging that a question affecting commerce
had arisen concerning the representation of employees of Swift &
Company (Fontana Plant), Fontana, California, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing,upon due notice before William B. Esterman, Trial
Examiner . Said hearing was held at San Bernardino, California,
on June 9, 1943. The Company, the AFL, and United Packinghouse
Workers of America, Local Union No. 144, CIO, herein called the
CIO, appeared, participated, and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
On June 23, 1943, the parties filed a stipulation correcting certain
errors in the record. These corrections are hereby noted and ap-
proved. All parties were afforded opportunity to file briefs with
the Board.
Upon the entire record in the case, the Board makes the following :
51 N. L. R. B., No. 6.
24
SWIFT & CO.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
25
Swift & Company, an Illinois corporation, owns and operates,
either directly or through subsidiaries, numerous production plants
and distributing branches in many States of the United States.
Among the Company's operations is a poultry and dairy branch at
Fontana, California, where the Company purchases and raises poul-
try and eggs for resale.
During the 12 months ending October 29, 1942, the Fontana plant
purchased approximately 5,000,000 pounds of poultry and eggs,
approximately 15 percent of which was shipped to said plant from
points outside the State of California. During the same period, the
Fontana plant sold and distributed products valued at more than
$1,000,000, approximately 5 percent of which was sold to and shipped
to customers outside the State of California.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local No. 439, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees
of the Company.
United Packinghouse Workers of America, Local Union No. 144,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the AFL as
the exclusive bargaining representative of the employees at its
Fontana plant until the AFL has been certified by the Board in an
appropriate unit.
The CIO contends that its contract with the Company constitutes
a bar to this proceeding. The contract was executed on May 7,
1942, and was to be in effect for a period of 1 year, being terminable
thereafter on 30 days' notice by either party. No notice has been
given. Since it is now terminable at will, we find that the contract
is not a bar to a present determination of representatives.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that AFL represents a substantial
number of employees in the unit hereinafter found appropriate."
1 The Field Examiner reported that the AFL submitted 71 authorization cards, 46 of which
bore apparently genuine signatures of persons listed on the Company's pay roll of May 20,
1943, which contained the names of 84 employees in the appropriate unit.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
IV. SHE APPROPRIATE UNIT
The AFL seeks a unit consisting of all employees of the Company
at its Fontana plant, excluding office and clerical workers and the
superintendent or manager of the plant. The Company and the
CIO contends that there should also be excluded from the bargaining
unit all department supervisors or salaried supervisory employees.
The AFL wishes to include this group in the appropriate unit on the
ground that they are working foremen.
The Fontana plant, at present, has five operating departments and
is contemplating the addition of several more. At the head of each
department are supervisors who have complete charge of their depart-
ments and are responsible for quantity and quality of the work of
their subordinates. They keep time records and other data relating
to the efficiency of their subordinates and make recommendations
to the general foreman or plant superintendent regarding the
hire, discharge, promotion, discipline, or reclassification of their
subordinates.
It is our established policy to exclude supervisors such as those here
involved from units of production employees. They will be excluded
from the appropriate unit.
We find that all employees of the Company's Fontana plant, ex-
cluding office and clerical workers, the plant manager or superintend-
ent, the general foreman, department supervisors, and any other
supervisory employees who have authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
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 Elec-
tion 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 Re-
SWIFT & Co. 27
lations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Swift & Com-
pany, (Fontana Plant), Fontana, California, 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 Twenty-first Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Section 10, of said Rules and Regulations,
among the employees 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, to determine whether they desire to be repre-
sented by Amalgamated Meat Cutters and Butcher Workmen of
North America, Local No. 439, affiliated with the American Federa-
tion of Labor, or by United Packinghouse Workers of America,
Local Union PTo. 144, affiliated with the Congress of Industrial Organ-
izations , for the purposes of collective bargaining, or by neither.