Armour and Co.

National Labor Relations Board - Board Decisions

Feb 2, 1944

54 N.L.R.B. 1005 (N.L.R.B. 1944)

In the Matter of ARMOUR AND COMPANY and PACKINGHOUSE WORKERS
ORGANIZING COMMITTEE, AFFILIATED WITH THE CONGRESS OF INDUS-
TRIAL ORGANIZATIONS
Case No. 17-C-1086.-Decided February 0, 1944
DECISION
AND
ORDER
On October 29, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and that it take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a brief in support of its exceptions.
The Board has considered the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
Pursuant to notice and at the request of the respondent, a hearing
was held before the Board at Washington, D. C.,,on December 21,
1943, for the purpose of oral argument. The respondent appeared by
counsel at the oral argument and participated in the hearing. The
Union did not appear.
On January 12, 1944, the Board caused all parties to be served with
notice that the Board would make certain affidavits and challenge sheets
a part of the record herein unless cause to the contrary should appear
on or before January 24, 1944. No party has shown cause why such
action should not be taken or otherwise opposed such action.' Ac-
cordingly, said documents are hereby made a part of the record in this
proceeding as Board's Exhibits 1 to 33, inclusive, of this date.
The Board has considered the Intermediate Report, the briefs,2
and exceptions, and the entire record in the case, and hereby adopts
the findings of fact, conclusions of law and recommendations of the
Trial Examiner except as hereinafter modified.
I By letter dated January 17, 1944, the Board was advised by the respondent that it had no
objection to the incorporation of the affidavits and challenge sheets m the iecoid
I Including the respondent 's brief filed with the Tiial Examiner.
54 N L. R B, No 149.
1005
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent seeks to justify its refusal to bargain on the ground,
inter alia, that the unit, described as appropriate in the Board's
Decision and Direction of Election and in the Certification of Repre-
sentatives in this proceeding, includes within it plant clerks who
exercise supervisory functions.-' At the oral argument before the
Board, counsel for the respondent described this asserted defense as
"technical" and stated that, rather than "stress the point," the respond-
ent desired that the Board and the Courts determine the basic issue
involved herein as to whether the right to collective bargaining under
the Act extends to plant clerks as a class . We understand that the
respondent thereby withdrew its objection that the unit found appro-
priate by the Board included supervisors. In any event, we find no
merit in the respondent's contention. While supervisors were not by
express language excluded from the unit, it has been the Board's
established policy under the circumstances not to include such em-
ployees within units designated as appropriate for the purposes of
collective bargaining.' Read in the light of such policy, the unit find-
ing here must be construed as having excluded supervisors from its
compass, and we so construe it.' Moreover, in the representation
case, it did not sufficiently appear that any employee named in the
company-furnished list of its plant clerks had supervisory functions,
and the respondent, in that proceeding, made no request that super-
visors be expressly excluded from any unit which the Board might
find to be appropriate. Finally, the respondent did not assert, in
rejecting the Union's request to bargain, that the unit included
supervisors. The respondent refused to bargain with the Union
on behalf of the plant clerks as a unit.
2In the representation case referred to, the Board found that "all plant clerks employed
at the Kansas City plant of the Company constitute a unit appropriate for the purposes
of collective bargaining , within the meaning of Section 9 ( b) of the Act."
4 See, for example , Matter of The Maryland Drydock Company, 49 N L R B 733, at
page 741, where the Board stated : " . . . Even in our earlier cases , the Board recognized
the danger inherent in the organization of supervisors, and sought to protect the ordinary
employees by refusing to sanction the establishment of bargaining units containing both
supervisors and their subordinates . . .
8 More specifically , the respondent challenges the validity of the unit heretofore found
appropriate by the Board because it includes two supervisors , Bernal Peerson and Fred
w. Hellman. They are not the two senior clerks referred to in the Board 's decision and
Direction of Election . As indicated below the Board had no occasion to consider the status
of Peerson or Hellman in the representation case. The record now shows that Peerson
does full -time clerical work but has charge of a group of plant clerks in the master me-
chanic 's office, and makes recommendations as to hiring and pay raises . Clearly, he is a
supervisory employee and , as such, does not come within the appropriate unit Although
Peerson voted in the election in which the Union was designated as majority representative
of the plant clerks, his vote , which went unchallenged , could not have affected the outcome
of the election in view of the number of votes cast for the Union , as hereinafter more fully
set forth . Hellman, a plant clerk at the time of the hearing in the representation case,
was transferred to a purely supervisory job sometime after the election and before the
respondent ' s refusal to bargain Although eligible , Hellman did not vote in the election.
Obviously his subsequent transfer to a supervisory position does'not affect the validity of an
otherwise appropriate unit The Board certified the Union , not as the representative of
specific individuals , but as the representative of persons answering the job description set
forth in its unit finding , namely, plant clerks.
ARMOUR AND COMPANY 1007
The respondent also contests the validity of the election leading to
the certification on the ground that the number of employees on the
Regional Director's eligibility list exceeded the number of employees
in the unit at the time of the election.° The Trial Examiner ruled
in his Intermediate Report that the respondent's present objection to
the election was untimely since it did not challenge any voter at the
election or file any objections to the Regional Director's Election
Report served upon the parties. Without regard to the timeliness
of the objection, we find no merit in the respondent's contention.
There was no fatal irregularity in the election. The employees
were voted upon affidavit; an examination of the Board's records,
consisting of such affidavits and of the challenge sheets, disclose that,
with the exception of Peerson's ballot, none of the votes counted in
the election was cast by an ineligible voter, and at least five of the
challenged votes were those of ineligible voters.' Thus the Union
received a majority of the valid votes cast in the election and, as the
Trial Examiner found, the Union was, and still is, the duly desig-
nated representative of a majority of the employees in the appropriate
unit.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Armour and Company,
Kansas City, Kansas, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Packinghouse Workers
Organizing Committee, affiliated with the Congress of Industrial
Organizations, as exclusive representative of its plant clerks at its
Kansas City, Kansas, plant, in respect to rates of pay, hours of em-
ployment, and other terms and conditions of employment;
(b) Discouraging membership in Packinghouse Workers Organ-
ization Committee, affiliated with the Congress-of Industrial Organiza-
tions, by discharging or refusing to reinstate any of its employees, or
in any other manner discriminating in regard to their hire and tenure
of employment, or any term or condition of employment;
s The respondent had refused to furnish a pay -roll list and did not otherwise participate
in the election . There were 29 employees in the unit , and 37 on the Regional Director's
eligibility list . Twenty-six ballots were cast in the election . Of these, 19 ballots were
counted, and 7 were challenged. The Union received 16 votes, and 3 votes were cast against
it The challenged ballots were not counted since they could not affect the result of the
election
7 The following persons who cast challenged ballots do not appear on the respondent's
list of plant clerks : James L. Cunningham, Chas Thompsen, Georgia Wooliver, Oscar
Gourley , and Axel Swanberg . As stated above, the challenged ballots were not counted.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will'
effectuate the policies of the Act.
(a) Upon request bargain collectively with Packinghouse Workers
Organizing Committee, affiliated with the Congress of Industrial Or-
ganizations, as the exclusive representative of all its plant clerks
employed at its Kansas City, Kansas, plant, in respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment;
(b) Offer to Patricia M. Cornforth, Glenn Cowger, and Roy W.
Donahue immediate and full reinstatement to their former, or sub-
stantially equivalent positions, Without prejudice to their seniority
and other rights and-privileges;
(c)Make whole Patricia M. Cornforth, Glenn Cowger, and Roy
W. Donahue for any loss of pay they may have'suffered by reason of
the respondent's discrimination against them, by payment to each of
them of a sum of money equal to that which, he or she normally would
have earned as wages from August 17, 1943, the date of the discrim-
inatory discharge, to the date of the offer of reinstatement, less his or
her net earnings during said period ;
(d) Post immediately in conspicuous places at its plant in Kansas
City, Kansas, and maintain for a, period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which it is
ordered to cease and desist'in paragraph 1 (a), (b), and (c), of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraph 2 (a), (b), and (c) of this Order, and (3) that the
'respondent's employees are free to become or'remain members of Pack-
inghouse Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, and that the respondent will not discrim-
inate against any-employee because of membership in or activities on
behalf of that organization. '
(e), Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr Robert S. Fousek, for the Board.
Hr Paul E Blanchard, of Chicago. Ill, for the respondent.
Mr. Ralph Baker, of Kansas City. Mo, for the Union.
ARMOUR AND COMPANY
STATEMENT OF THE CASE
1009
Upon an amended charge duly filed on August 19, 1943, by Packinghouse Work-
ers Organizing Committee , affiliated with the Congress of Industrial Organiza-
tions, herein called the Union, the National Labor Relations Board, herein called
the Board , by the Regional Director of the Seventeenth Region, (Kansas City,
Missouri ), issued its complaint dated September 3, 1943, against Armour and
Company, Kansas City, Kansas , herein called the respondent , alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce , within the meaning of Section 8 ( 1), (3) and ( 5) and Section 2 (6)
and (7 ) of the National Labor Relations Act, 49 Stat . 449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon the re-
spondent and the Union.
With respect to the unfair labor practices , the complaint alleged in substance:
(1) that plant clerks employed by the respondent at its Kansas City plant consti-
tute a unit appropriate for collective bargaining ; ( 2) that prior to August 11,
1943, and thereafter , the Union was and is now the duly designated representative
of employees in the aforesaid appropriate unit for purposes of collective bargain-
ing; (3 ) that on and after August 31, 1943, although requested to bargain col-
lectively by the Union , the respondent has refused to do so; ( 4) that the respond-
ent discharged four named employees because of their membership in and activity
in behalf of the Union ; and (5 ) that by the foregoing facts and conduct, and
by disparaging remarks concerning employees active in the Union and threats
to transfer and/or discharge employees because of their union affiliation and
activity , the respondent has interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Pursuant to notice , a hearing was held on September 30 and October 1, 1943,
at Kansas City, Missouri , before the undersigned , the Trial Examiner duly
designated by the Chief Trial Examiner . ' The Board and the respondent were
represented by counsel and the Union by a lay iepresentative . All parties
participated in the hearing . Full opportunity to be hea: d, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded
all parties . At the close of the Board's case the respondent moved to dismiss
the complaint insofar as it alleged the discriminatory discharge of Victor Julian
Cane. Ruling on the motion was reserved by the undersigned for disposition
in this Report. At the close of the hearing the parties were advised that they
might argue orally before and file briefs with the undersigned . All parties
waived oral argument . The respondent thereafter filed a brief.
Upon the record thus made and from his observation of the witnesses, and
upon the entire record of proceedings , including Case No. R-5131,' the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Armour and Company, is an Illinois corporation having its
principal office in Chicago, Illinois, and is engaged, among other activities, in
the operation of a packing plant at Kansas City, Kansas, the sole operation
involved in this proceeding. During the past calendar year it received at its
Kansas City plant approximately 100,000,000 pounds of raw materials and
supplies, of which approximately 90 percent originated at points outside the
' Matter of Armour and Company and Packinghouse Workers Organizing Committee,
Local No. 15 (C. I. 0 ) 49 N. L. R. B 688.
567900-44-vol. 54-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State of Kansas. During the same year it shipped from the said plant approxi-
mately 500,000,000 pounds of meats and other animal products, 75 percent of
which was shipped to points outside the State of Kansas. The respondent
admits that it is engaged in commerce within the meaning of the Act a
II. THE ORGANIZATION INVOLVED
Packinghouse Workers Organizing Committee is a labor organization,
affiliated with the Congress of Industrial Organizations, admitting to member-
ship employees of the respondent.
III. THE UNFAIR LABOR PRACTIOES
A. The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
On April 7, 1943, there was a Board hearing on the Union's petition for certifica-
tion as exclusive bargaining representative of respondent's plant clerks. The
respondent opposed the Union's petition in that hearing on the ground that the
duties of plant clerks placed them in a confidential position with regard to,
management ; it contended that therefore, they should not be included within
a unit consisting of production and maintenance employees! The respondent in
that proceeding took no position as to whether or not plant clerks constituted a
separate and distinct appropriate unit.
The Board, in its Decision and Direction of Election dated May 10, 1943 (49
N. L. R. 'B. 688), found that plant clerks constituted an appropriate unit, and
directed an election among the employees of that unit. The election, held on
June 9, 1943, resulted in the Union's receiving a majority of the valid votes cast.
The Regional Director's Election Report, dated June 16, 1943, was served on each
of the parties and no objections thereto were filed by any of the parties The
Board on June 24, 1943, certified the Union as exclusive bargaining representa-
tive of employees in the appropriate unit.
The respondent contests the Board's finding as to the appropriate unit! Its
position is that the duties of plant clerks constitute them a part of management
and they therefore are not employees within the meaning of the Act. Testimony
in addition to and in amplification of that given in the representation case, was
received in the instant proceeding. The undersigned upon consideration of this
testimony and the entire record of the instant proceeding, finds that it adduces
no new or additional matter concerning the duties and functions of plant clerks of
sufficient materiality to require a reversal or modification of the Board's prior
determination of appropriate unit."
The undersigned finds, in accordance with the Board's previous determination,
that all plant clerks employed by the respondent at its Kansas City plant, con-
stitute and at all times material herein have constituted a unit appropriate for
the purposes of collective bargaining. The undersigned further finds, on the
basis of the Board's certification, that on and ,at all times after August 31, 1943,
2 These findings are based on a stipulation of the parties.
8 The Union was, at the time of the hearing and prior thereto, bargaining representative
of respondent's production employees at its Kansas City plant.
* The undersigned, on the basis of testimony given in the present proceeding, finds that
Bernal Peerson is a supervisory employee and is therefore excluded from the appropriate
unit. The undersigned further finds that Fred W. Hellman, who at the time of the hearing
was acting in the capacity of "temporary supervisor," and had acted in that capacity con-
tinuously for some 3 months, with full supervisory authority, is excluded from the appro-
priate unit because of his supervisory status; should he be returned to his former status
of plant clerk he would, of course, again be included in the appropriate unit.
ARMOUR AND COMPANY 1011
the Union was the duly designated bargaining representative of a majority of the
employees in the aforesaid appropriate unit, and that pursuant to the provisions
of Section 9 (a) of the Act , the Union was on August 31, 1943, and at all times
thereafter has been and is now the exclusive representative of all employees
in the aforesaid unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment , and other conditions of employment
2. The refusal to bargain
In response to the Union ' s request for a bargaining conference , dated August 17,
1943, the respondent , through its attorney, on August 31, 1943, addressed a letter
to the Union in which it unequivocally stated its refusal to recognize the Board's
certification of the Union as binding, or to meet with the Union 's representative
for the purpose of bargaining collectively with reference to employees in the unit
which the Board had found to be appropriate . The respondent has maintained
its position as stated in its letter of August 31, 1943, at all times since, that date.
The undersigned accordingly finds that on August 31, 1943, and at all times
thereafter , the respondent has refused to bargain collectively with the Union as
the exclusive representative of its , employees in the appropriate unit and has
thereby interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
B. The discharges
1. Patricia M. Cornforth , Glenn Cowger and Roy W. Donahue
On or about August 9, 1943, all employees of the respondent 's industrial engi-
neering department , some 15 in number , were summoned to the office of Charles
L. Campbell , respondent 's general plant manager , where Campbell spoke to
them from a prepared statement . " Some of you may have decided or been
giving consideration to becoming members of a labor organization ," Campbell
told the employees thus assembled , and then advised them that: ( 1) all jobs
in the industrial engineering department were "management" jobs; (2) no
employee could affiliate with a union and retain his or her job in that department;
(3) the employees had the alternative of refraining from union affiliation and
continuing in their present employment , or of affiliating with the Union, where-
upon ,they would be transferred to production jobs ; and (4) they must notify the
company of their "election" to affiliate with the Union , with the consequent
transfer to production , or to forego union affiliation while remaining in. their
present employment in the industrial engineering department.
Upon completion of Campbell 's statement , a group of time study employees
advised Campbell that they did not desire union affiliation . The remainder
asked for time to consider the matter and Campbell agreed to wait until the
following day for their decisions . Later that same day, however , he advised
them that he must have their decisions at the end of the day . According to
the testimony of Patricia Cornforth , which is credited , the group which had
asked for time to consider the matter was composed of comptometer operators
and checkers . After discussion , these employees reached the conclusion that
5 Peerson , whom the undersigned has found to be a supervisor , voted in the election of
June 9 , but his vote was not determinative of election results and his participation in the
balloting therefore does not affect the Union 's majority or presumption of its continuance.
The respondent in its brief filed with the undersigned raises several issues with respect
to the conduct of the election. Such action is untimely since respondent did not avail
itself of the remedy provided in the Board 's Rules and Regulations with respect to the filing
of objections to the Election Report. Article III, Section 10 of the Board 's Rules and
Regulations, Series 2-as amended effective October 28, 1942.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were "not strong enough" among themselves to insist on union affiliation
while continuing their employment in the industrial engineering department,
and advised Campbell that they would remain in their present employment in
preference to union affiliation.
Union meetings with reference to organization of employees of the industrial
engineering department were held on August 2, 9, and 16. Cornforth , Cowger
and Donahue , despite their statements to Campbell on August 9, continued
their union activities and at the meeting of August 16, Cowger was elected
president and Donahue treasurer of the Union in the unit that was being or-
ganized. Cornforth also attended the meeting of August 16.
On the following day, August 17, Cornforth , Cowger and Donahue were each
advised by Campbell that, inasmuch as they had elected to continue their union
affiliation , they would be transferred to jobs in production on the following day.
None of the three had advised Campbell of his or her continued union affiliation.
They refused to accept a transfer to production and their employment was
thereupon terminated . Campbell admitted that the production jobs to which
they would have been transferred had they accepted the transfer would have
represented a substantial reduction in wage. It is clear and the undersigned
finds that production jobs are not equivalent to jobs in the industrial engineering
department . The respondent 's requirement that they transfer to production,
admittedly based on their continued union affiliation , was therefore discrim-
inatory unless, as employees of the industrial engineering department , they were
a part of management in the sense that they were excluded from the Act's defini-
tion of employees , and were therefore deprived of employee rights set forth
in the Act.
The head of the respondent 's industrial engineering department is A. J.
Anderson , whose rank is that of an assistant superintendent under C. L. Camp-
bell, the respondent 's plant manager or superintendent. Within the industrial
engineering department there are at least three distinct classifications of em-
ployee functions : time study , checking and computation . At the time of the
termination of their employment , and for a substantial period of time prior
thereto, Cornforth and Donahue were employed as checkers , and Cowger was
employed as a cost clerk . Prior to his assignment as a cost clerk , Cowger had
been employed as a checker.
An employee engaged in time study observes the performance of a given oper-
ation and determines whether it conforms to the job description which has been
furnished him covering that operation . He then breaks the job down into its
component elements and, with a stop watch , determines a normal allowance of
time for each element. He normally will observe the work of a number of
operators on each job on which he is preparing a time study , in order to arrive
at an average or normal speed required for the execution of'each element of
that job . Having completed these timings , he returns to his office where he
computes the standard for the job in question . These computations, known as
the job standard , are then transferred to what is called the checker's sheet. A
checker is assigned to certain production groups or departments for the purpose
of checking actual production and performance of operators against the stand-
ard. The production figures compiled by the checker are passed to comptom-
eter operators , who compute the proficiency of a group or department . The cost
clerk computes the labor cost of the different production departments for the
accounting office.
The checker , in the course of his duties , receives production reports from
the plant clerk or foreman and copies this data on his own checker sheet. He
also goes into the various production departments assigned to him, observes
operations to determine if they are being executed according to job description,
ARMOUR AND COMPANY 1013
and may, on occasion, make suggestions to the foreman for improving the
efficiency of a given operation. Should he note a variance in an operation
from the job description, he would normally report this to the foreman. If a
department shows a low proficiency, he may inquire into its cause and make
recommendations for restoring efficiency. On "day work" jobs where no stand-
ard has been set, he may consult with the foreman concerning the proper amount
of time to be allowed for such work. On occasion, if it appears that the standard
should be modified, he may time a certain operation with a stop watch. A
checker, in the normal course of his duties, issues no instructions directly to
an employee or group of employees and, except in instances where only a single
employee is engaged on a stated job classification, makes no reports reflecting
the efficiency of individual employees. He has no authority to hire or fire, and
makes no recommendations pertaining thereto or pertaining to promotion or
change in the job status of an individual employee, though some changes may
result from the reports compiled by him. It is clear from the entire testimony,
and the undersigned finds, that the checker has no authority to require the
foreman to execute changes within the latter's department, and that such sug-
gestions or recommendations as the checker may make to the foreman are based
on his knowledge of the job description and standard, and are merely advisory.
If the foreman should disagree with the checker as to the latter' s recommenda-
tions, he is not required to comply therewith until and unless the matter has
been referred to his superiors.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned finds that the duties of cost clerks and comptometer operators
are essentially clerical in character and do not involve the exercise of mana-
gerial discretion. The undersigned further finds that checkers, also, are essen-
tially clerical employees, engaged primarily in compiling production data and
checking it against the standards furnished them by the time study division of
the department. Their duties clearly do not involve the exercise of managerial
discretion to a degree sufficient to constitute them supervisors within the mean-
ing of the Maryland Drydock case.'
While information concerning job descriptions and standards is important and
confidential in the sense that it is not made available to business competitors, it
admittedly is made available to the Union in disputes which arise over pro-
duction employees in the unit now represented by the Union, and the individual
production employee is advised of the job description and standards set for the
job on which he is engaged. The Board has consistently held that employees
must have access to "confidential information which relates directly to the prob-
lem of labor relations,"' if they are to be denied the rights guaranteed employees
by the Act on the ground that their jobs are confidential and that they therefore
constitute a part of management. It is clear and the undersigned finds that
non-supervisory employees of the respondent's industrial engineering department,
including cost clerks, comptometer operators, and checkers, are not consulted
in labor relations matters and, in the normal course of their duties, do not acquire
confidential information concerning respondent's labor relations
Since none of the discharged employees was engaged in time study, the under-
signed makes no specific finding regarding the status of regular time study em-
ployees. There was some testimony which indicated that time study employees,
on occasion, engaged in checking and that checkers were at times assigned to time
study. The undersigned is convinced and finds, however, that the classifications
are distinct, and that the time normally spent by a checker in making time studies
' Matter of Maryland Drydock Company, 49 N. L. R. B. 733.
Matter of Warner Bros. Pictures, Inc. et al. and Warner Bros. Associated Office Em-
ployees of Greater New York, 35 N. L. R. B. 739, and cases cited therein.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is ancillary to his primary and essential functions as a checker , and does not
effect his status as an employee under the Act.
In view of the foregoing findings of fact, the undersigned finds that the respond-
ent's conduct on or about August 9, 1943, in advising employees of its industrial
engineering department , including cost clerks , comptometer operators, and
checkers , that if they chose to affiliate with a union they would be required to
transfer to production jobs, and in demanding of its employees that they decide
whether to affiliate with a union or remain in their present employment in the
industrial engineering department without union affiliation , and that they make
such election known to management , constituted interference, restraint, and co-
ercion within the meaning of the Act. The employees were under no duty to
make such an election as that proposed by management , and did so under threat
and coercion . In continuing in their union affiliation after August 9, Cornforth,
Cowger , and Donahue exercised the rights of self-organization granted em-
ployees under the Act. Campbell 's demand on August 17 that they transfer to
production , a requirement admittedly based on their continued union affiliation,
was one that they were under no duty to comply with , since it was discriminatory.
The termination of their employment by the respondent upon their refusal to
accept transfers to production constituted constructive discharge."
The undersigned accordingly finds ' that the respondent on or about August 17,
1943, discharged Patricia M Cornforth , Glenn Cowger , and Roy W. Donahue be-
cause of their membership in and activities in behalf of the Union , and thereby
interfered with, restrained and coerced its employees in the exercise of the , rights
guaranteed in Section 7 of the Act.
2. Victor J. Cane
Cane was employed by the respondent in April 1 923, as an office boy, and
worked in that capacity until July 1925 when he was transferred to a produc-
tion job. He thereafter served for a period as a plant clerk and on or about
January 13, 1937, became a student salesman . As a student salesman he worked
in various departments to familiarize himself with production methods, and
studied a course in salesmanship from books supplied by the respondent. In
September 1937 he was assigned to the Richmond , Missouri , sales territory as a
general line salesman , and continued ' in that capacity until November 1942,
when he and eight other general line salesmen were transferred to the re-
spondent 's Kansas City office. This action was caused by a consolidation of trade
territories due to government curtailment of the respondent 's production available
for civilian consumption . Subsequent to November 1942, Mahood , also a general
line salesman , was recalled to the Kansas City office, making a total of 10
salesmen thus recalled from the field due to consolidation of trade territories.
These salesmen were advised that vacancies were expected in the field from time
to time due to induction or enlistment of men in the Armed Services , retire-
ments and like causes , and that as field positions became available , they would be
reassigned to trade territories . They were given the alternative of moving their
respective families to Kansas City from the field at respondent's expense , or of re-
ceiving a weekly allowance of $10 in addition to their regular salaries while
their families remained in the field.
Cane moved his family to Kansas City and , for personal reasons, requested a
sales territory close to Kansas City for his future field assignment . Richmond,
his sales territory before be was recalled to the Kansas City office, was some
8 See Matter of Walter Walker, d/b/a Accurate Tool Company and International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America, (CIO), 51
N. L. R. B 753; also , Matter of Waples-Platter Company and Warehouse and Distribution
Workers Union, Local No. 200 ( CIO) et ai., 49 N . L. R. B. 1156.
ARMOUR AND COMPANY 1015
40 miles from Kansas City. In the Kansas City office he was engaged in various
clerical capacities until August 10, 1943, when his employment was terminated
upon his refusal to accept an assignment to a sales territory.
On or about June 1943, certain employees in the office in which Cane was then
working, including Cane, signed a petition indicating their desire to be affiliated
with a union of office workers. Cane had the petition at his desk and it appears
that it was passed from desk to desk among office workers, and signatures
thereto were thus secured in the plant. Some 15 to 20 employees signed the
petition. A few days after the petition was first circulated in the plant, Cane
was called to the sales office where he was questioned concerning the petition
by William M. Elder, general plant sales manager of the respondent, attached
to the respondent's Chicago'or main office. It appears from Cane's testimony,
which' is undisputed, that while Elder may have avoided specific mention of
the petition, his remarks to Cane were so phrased that there was no mistaking
that he referred to the petition. According to Cane, Elder said, "I can fire you
for this, but I won't, I want to find out what your difficulties are." Cane replied
that he wanted higher wages, and mentioned that he was then driving a taxicab
outside of his working hours with the respondent in order -to supplement his
income. As Cane was leaving the office, Elder said, " . . . well, four or five
bucks a week would satisfy you wouldn't it ... ' Cane admitted that dur-
ing the course of his remarks Elder stated that he had no objection to a union,
and that if Cane wanted to join one it was all right.
Subsequent to his conversation with Elder, Cane and two other employees
were called to the office of William W. Thompson, office manager of the Kansas
City plant. Thompson questioned the employees why they had started the pe-
tition, and asked to see it. He then read the petition and commented on some
of the employees whose names appeared thereon , mentioning that some of them
had not been with the company very long. Later Cane had a conversation with
Leo H. Cerf, sales manager of the respondent's Kansas City plant, in which Cerf
referred to the petition.
There is no evidence that the respondent had a rule prohibiting union activities
on company premises during or outside working hours, or that the statements of
respondent's supervisors to employees concerning the petition were in the nature
of a reprimand for engaging in union activities in violation of company rules,
though it ajppears that Thompson advised the employees that any further cir-
culation of the petition would have to be made off company premises. The ques-
tioning of employees concerning the petition by 'respondent's supervisors and
officers, and Thompson's conduct in scrutinizing the petition and the names of
the employees theron, signalized an unwarranted prying by management into
the organizational activities of its employees, and constituted interference, re-
straint, and coercion within the meaning of the Act.
-Prior to June 1943, or the date of the circulation of the union petition, of the
10 salesmen who had been brought to the office from the field, 6 had either been
assigned to new sales territories or had terminated their employment with the
respondent. In July a vacancy occurred at Carrollton, Missouri, a distance of
some 55 to 60 miles from Kansas, City. Cerf offered this territory to Cane with
a $5 weekly wage increase, but Cane refused to accept it, and the territory was
assigned to one of the four salesmen remaining in the office. On or about August
1, there was a vacancy at Ottawa, Kansas, a distance of some 60 miles from
Kansas City. Cerf offered Cane the Ottawa territory, but he refused this also.
Cerf held the Ottawa territory open for some 10 days and again offered it to
Cane. Cane admitted that on this occasion Cerf told him that he was "bending
over backward" trying to accommodate him, and offered him a $10 a week wage
increase if he would accept the Ottawa territory. Cane again refused the
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment, it being his position that for personal reasons he did not wish td
leave Kansas City during the war emergency.'
While refusing to accept an assignment to a sales territory outside of Kansas
City, Cane asked to be retained on the job to which he was then assigned. This
was a clerical job having to do with the checking of salesmen's routes. Cane
had been assigned to this job upon the resignation of Braseal, who had been em-
ployed in the said capacity for several years. The respondent refused to con-
tinue Cane on its pay roll in a clerical capacity, and his employment was there-
upon terminated. Downing, one of the original 10 salesmen brought into the
office from the field, was given the, Qttawa assignment which he accepted, leaving
only Smith of the original 10 still employed in a clerical capacity. It appears
that Smith also signed the union petition. Cerf testified that no field vacancy
had arisen since the Ottawa territory was filled, and that Smith was being held
in the office subject to being assigned to the next vacancy that occurred.
On the termination of Cane's employment, Dick Garrett, a salesman who had
left respondent's employ to enter the Armed Services and who, shortly prior to
August 10, had been discharged and returned to respondent's employ, was assigned
to the clerical job vacated by Cane. When questioned why he transferred
Garrett to this job instead of retaining Cane, who admittedly was a satisfactory
employee, Cerf testified that war conditions had brought about changes in the
company's operations and that Garrett was assigned to the job in order to ac-
quaint him with changed conditions, preparatory to his reassignment to the
field when a vacancy arose. Questioned why Cane was not retained in some
other clerical capacity, Cerf testified that there was a surplus of clerical help,
whereas men were needed in the field. Thompson, however, testified that a con-
siderable number of employees from both the office and the plant had been inducted
in the Armed Forces, and that vacancies were increasingly hard to fill.
It appears from Cane's testimony that he was advised and understood at the
time he was called into the office from the field that he would work in the office,
subject to being reassigned to a sales territory. In view of these circumstances,
there does not appear to be anything unusual or discriminatory in the respond-
ent's offer to Cane of the Carrollton and Ottawa assignments in July and August,
respectively. Both represented sales territories within moderate distances of
Kansas City, as had been requested by Cane. A. vacancy had occurred earlier
at Ottawa prior to the circulation of the union petition and Cane was not then
offered that territory, but Cerf testified that at the time of this earlier vacancy
there were prospects of vacancies in territories closer to Kansas City, and for
that reason Cane was not considered on the occasion of the first opening at
Ottawa. It further appears, as stated above, that several of the 10 salesmen
transferred from the field to the office had been reassigned to sales territories
prior to the circulation of the petition. It is clear, therefore, that the reassign-
ment of the men to sales territories as vacancies occurred was according to plan.
The respondent was under no duty to change or modify its plan for the reassign-
ment of its salesmen to field positions because of the incident of the union
petition. It is pertinent to inquire, however, whether normally and except for
Cane's known union affiliation, the respondent, upon his refusal to accept a
field assignment, would have allowed him to continue on the clerical job at
which he was then engaged, or on another job in the respondent's Kansas City
office.
° Among the personal reasons given by Cane for his refusal to accept a field assignment
was that he had aged parents resident in Kansas City, to whose support he contributed,
and that his wife , did not wish to reside outside of Kansas City . He stated that due to
gasoline and other restrictions , he would be handicapped in making trips between Kansas
City and his assignment in the field during the war emergency.
ARMOUR AND COMPANY 10117
According to Cerf, the cost to the company of training a general line salesman
averages from $1,000 to $2,000, and a salesman's productivity is not normally
profitable to the company for the first year or two that he serves in a sales
territory. It would appear therefrom that the respondent might reasonably
expect that a trained and experienced salesman would undertake sales work
when needed. Cane's sole reason for refusing a field assignment was a matter
of his personal convenience. The undersigned is unable to conclude that the
respondent, in view of his refusal, would normally have retained him in a
clerical capacity, or that its,refusal to do so was predicated upon its knowledge of
Cane's union affiliation and activities. The undersigned will accordingly recom-
mend that the complaint be dismissed, insofar as it alleges that Cane's employ-
ment was discriminatorily terminated.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent has refused to bargain collec-
tively with the Union as the exclusive representative of its employees in an
appropriate unit. It accordingly will be recommended that the respondent,
upon request, bargain collectively with the Union. The undersigned has found
that the respondent discriminated in regard to the hire and tenure of employ-
ment of Patricia M. Cornforth, Glenn Cowger, and Ray W. Donahue. The
undersigned will therefore recommend that the respondent offer immediate and
full reinstatement to Patricia M. Cornforth, Glenn Cowger, and Roy W. Dona-
hue to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and that the respondent make them
whole for loss of pay they may have suffered by reason of the discrimination
against them, by payment to each of a sum of money equal to that which he
or she normally would have earned as wages from August 17, 1943, the date
of the discriminatory discharge, to the date of the offer of reinstatement, less
the net earnings 1p of each during the said period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Packinghouse Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a labor organization, within the meaning of
Section 2 (5) of the Act.'
10 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2ry90, 8 N. L. R B. 440. Monies received for work
performed upon Federal, State, county, municipal, or other work-relief projects shall be
considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All plant clerks of the respondent at- its Kansas City, Kansas, plant at all
times material herein constituted,, and now constitute, a unit appropriate for
the purpose of collective bargaining, within the meaning of Section 9 (b) of the
Act.
3. Packinghouse Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations was on August 31, 1943, and at all times thereafter
has been the exclusive representative of all the employees in the aforesaid unit,
for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
4. By refusing on August 31, 1943, and at all times thereafter, to bargain
collectively with Packinghouse Workers Organizing Committee, affiliated with
the Congress of Industrial Organizations, as the exclusive representative of its
employees in, the aforesaid appropriate unit, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (5) of
the Act.
5. By discriminating in regard to the hire and tenure of employment of
Patricia M. Cornforth, Glenn Cowger, and Roy W. Donahue, and thereby dis-
couraging membership in a labor organization, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section
8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
8. The respondent has not engaged in unfair labor practices by discriminating
in regard to the hire and tenure of employment of Victor J. Cane.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, Armour and Company,
Its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Packinghouse Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations, as ex-
clusive representative of its plant clerks at its Kansas City, Kansas, plant.
(b) Discouraging membership in Packinghouse Workers Organizing Commit-
tee, affiliated with the Congress of Indusatrial Organizations, by discharging or
refusing to reinstate any of its employees, or in any other manner discriminat-
ing in regard to their hire and tenure of employment, or any term or condition
of employment ;
(c) Engaging in any like or related acts or conduct interfering with, restrain-
ing or coercing its employees in the exercise of the right to self-organization,
to form, join or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request,, bargain collectively with Packinghouse Workers Organ-
izing Committee, affiliated with the Congress of Industrial Organizations, as
ARMOUR AND COMPANY 1016
the exclusive representative of all its plant clerks employed at its Kansas City,
Kansas, plant ;
(b) Offer to Patricia M. Cornforth, Glenn Cowger, and Roy W. Donahue im-
mediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privileges;
(c) Make whole Patricia M. Cornforth, Glenn Cowger, and Roy W. Donahue
for any loss of pay they may have suffered by reason of the respondent's discrim-
ination against them, by payment to each of them of a sum of-money equal to
that which he or she normally would have earned as wages from August 17,
1943, the date of the discriminatory discharge, to the date of the offer of rein-
statement, less his or her net earnings n during said period ;
(d) Post immediately in conspicuous places at its plant in Kansas City, Kan-
sas, and maintain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a), (b), (c), of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a), (b),
and (c) of these recommendations; and (3) that the respondent's employees are
free to become or remain members of Packinghouse Workers Organizing Com-
mittee, affiliated with the Congress of Industrial Organizations, and that the
respondent will not discriminate against any employee because of membership
in or activities on behalf of that organization ;
(e) File with the Regional Director for the Seventeenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, respondent notifies said Re-
gional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
The undersigned further recommends that the complaint be dismissed, insofar
as it alleges that the respondent discriminated in regard to the hire and tenure
of employment of Victor J. Cane.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order transferring the case of the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, file with the Board, Rochambeau Building,
Washington, D. C., an original and four copies of a statement in writing set-
ting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections) as
he relies upon, together with the original and four copies of a brief in support
thereof. As further provided in said Section 33, should . ny party desire
permission to argue orally before the Board, request therefore must be made ins
writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
WILLIAM E SPENCER,
Trial Examiner.
Dated October 29, 1943.
11 See footnote -10, supra.