Armour and Co.

National Labor Relations Board - Board Decisions

Apr 10, 1944

55 N.L.R.B. 1150 (N.L.R.B. 1944)

In the Matter of ARMOUR AND COMPANY and UNITED PACKINGHOUSE
WOREERS OF AMERICA, LOCAL 49-A, C. I. O.
Case No. 2-C-5338.-Decided April 10, 1914
Mr. Cyril W. O'Gorman, for the Board.
Mr. Peter F. Curran, of New York City, and Mr. Paul E. Blanchard,
of Chicago, Ill., for the respondent.
Mr. William Whitsett, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on November 12, 1943, by United Pack-
inghouse Workers of America, Local 49-A, C. I. 0., herein called the
Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Second Region (New York City) issued
its complaint, dated December 14,1943, against Armour and Company,'
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) 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 accompanied by Notice of Hear-
ing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent on or about October 28, 1943, and
thereafter, refused to bargain collectively with the Union as the ex-
clusive representative of the respondent's employees within an ap-
propriate unit although the Union represented the majority of the
employees in said unit, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. The respondent did not file an answer.
' The complaint , which designated the respondent as Armour and Company of Delaware,
was amended at the hearing, upon agreement of the parties , to designate the respondent as
Armour and Company. The respondent conceded that it had duly received Notice of Hear-
ing and that it was the proper party respondent in these proceedings , as successor of
Armour and Company of Delaware
55 N. L. R. B., No. 207.
1150
ARMOUR AND COMPANY 1151
Pursuant to notice, a hearing was held on December 27, 1943, at
Jersey City, New Jersey,, before David Karasick, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties.' At the close of the hearing counsel for the Board moved
to conform the complaint to the proof with respect to formal matters.
The motion was granted without objection. The Trial Examiner re-
served ruling on the respondent's motion to dismiss the complaint and
thereafter denied the motion in his Intermediate Report. During the
course of the hearing, rulings were made by the Trial Examiner on
various other motions and on objections to the admission of evidence.
The Board has reviewed all the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.
On January 5, 1944, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the parties, in which he
found that the respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and (5), and Sec-
tion 2 (6) and (7) of the Act, and recommended that the respondent
cease and desist therefrom, and take certain affirmative action to ef-
fectuate the policies of the Act.
On January 20, 1944, the respondent filed exceptions to the Inter-
mediate Report and a supporting brief. Oral argument, in which the
respondent and the Union participated, was had before the Board at
Washington, D. C., on March 14,1944.
The Board has considered the exceptions and brief submitted by
the respondent, and, insofar as the exceptions are inconsistent with
the findings of fact, conclusions of law, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Armour and Company,3 an Illinois corporation , with its principal
office and place of business at Chicago , Illinois, operates a slaughtering
plant and a processing plant in Jersey City , New Jersey , both of
which are involved in this proceeding . During the 12-month period
ending December 27, 1943, the respondent received at both plants ap-
2 The respondent's exception to the Trial Examiner's rejection of its offer of proof as to
the duties of watchmen is discussed in Section III, infra.
3 Armour and Company of Delaware, a corporation of the State of Delaware, was merged
with Armour and Company, an Illinois cotpoiation, on or about September 24, 1943
11 5j2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proximately 66,000,000 pounds of live animals, products, and operating
supplies, approximately 75 percent of which was shipped from points
outside the State of New Jersey. During the same period of time, the
respondent shipped from said plant approximately 60,000,000 pounds
of finished products, the greater percentage of which was shipped to
points outside the State of New Jersey. The respondent admits that
it is engaged in commerce within the meaning of the Act.'
II. THE 011GANIZATION INVOLVED
United Packinghouse Workers of America , Local 49-A, affiliated
with the Congress of Industrial Organizations , is a labor organiza-
tion admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
The refusal to bargain
1. The appropriate unit and representation by the Union of a majority
therein
On August 31, 1943, the Board issued its Decision and Direction of
Election, in which it found, among other things, that all watchmen
employed at the respondent's Jersey City plants, exclusive of super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action constitute a unit appropriate for the
purposes of collective bargaining.,' On September 24, 1943, an election
was held pursuant to said Direction of Election. On September 25,
1943, the Regional Director issued and served upon the respondent and
the Union an Election Report with respect to the balloting. No ob-
jections to the said Election Report or to the conduct of the ballot
were filed by either the respondent or the Union. On October 8, 1943,
the Board certified the Union as the exclusive representative for the
purposes of collective bargaining of the employees in the unit hereto-
fore mentioned.
In the present proceedings the respondent offered to adduce evi-
dence to show that its watchmen were supervisory employees who fell
within the exclusion set forth in the afore-mentioned unit. It pro-
posed to show the initiative, personal judgment, and discretionary
powers exercised by watchmen by the following facts: (1) watchmen
were required to challenge all visitors and employees entering the
plant; (2) they were required to examine all packages carried by visi-
tors and employees, and had full responsibility for determining
The findings made in this section are based upon a stipulation entered into between the
Board and the respondent during the course of the hearing.
5 Matter of Armour and Company of Delaware , 52 N. I. R B, No 45
ARMOUR AND COMPANY 1153
whether the packages might be carried into the plant; (3) in the case
of unidentified employees, it was. within the watchmen's discretion to
admit them or call the office; (4) they had absolute authority to grant
or refuse admittance to the plant; (5) they were responsible for em-
ployees punching the timeclock; (6) they patrolled the plant to see that
regulations were enforced, and were empowered to eject employees or
visitors who violated regulations; (7) without consulting anyone, they
were empowered to make arrests. The respondent proposed to show
further that watchmen were selected from among the older, experi-
enced employees who were capable of exercising personal judgment.
The respondent also offered evidence to rebut testimony given at
the representation hearing, which tended to show that production
workers were eligible for pension benefits given to watchmen.6'
The respondent excepted to the Trial Examiner's rejection of its
foregoing offer of proof.' It contends that the testimony was offered
to attack the jurisdiction of the Board, and that jurisdiction may be
attacked at any time This position of the respondent is based upon
the premise that supervisors are not employees within the meaning of
the Act. Assuming, without deciding, the correctness of the respond-
ent's premise, we would not alter our finding regarding the watchmen
in question even if the respondent were able to prove all the facts
which it specified in its detailed offer of proof, for such facts do not
prove that the employees in question are supervisors. There is no
showing that the watchmen have a voice in determining, shaping,
or executing the labor policies of the respondent; that they are
clothed with supervisory authority over other employees; or that they
are concerned with the manner in which any employee performs his
duties or conducts himself, except in the sphere of plant protection.
While the duty to protect the property of the respondent necessarily
entails the power to apprehend or expel employees, this power is of
a monitory character. The proffered testimony thus does not show
that watchmen are supervisors in the sense in which the designation is
traditionally used in industry; it merely emphasizes their monitorial
status. Employees exercising such powers are not supervisors such
as we normally exclude from bargaining units, as we have frequently
e In the representation proceeding the respondent, in support of its contention that
watchmen were supervisors, adduced testimony to show that watchmen participated in its
pension fund , which was restricted to supervisors and executives . To refute this testimony,
the Union then introduced evidence to the effect that several ordrnaiy production employees
had participated in the pension fund. The purpose of the offer of proof in the instant
proceeding was to show that once a supervisor participated in this fund, he was not allowed
to withdraw, and that the production employees , whom the Union referred to, were former
supervisors who had been demoted.
P The Trial Ixaminer 's ruling was based upon the fact that the proffered testimony was
admittedly available at the time of the representation hearing, that the respondent con-
ceded that it had an adequate opportunity to present it at that time, and that the respond-
ent further admitted that there was no change in circumstances with respect to any matter
concerning the appropriate unit or the Union's representation of a majority therein.
578129-44-vol. 55-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held in the analogous situations of plant guards and plant protection
employees." Since the proffered testimony was therefore immaterial,
the Trial Examiner's refusal to receive it was not prejudicial to the
respondent.
Like the Trial Examiner, we find, in accordance with our previous
determination in the representation proceeding, that all watchmen
employed at the respondent's Jersey City plants, exclusive of super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute, and at all times material
herein, constituted a unit appropriate for the purposes of collective
bargaining. Like the Trial Examiner, we further find that, on and
at all times after October 8, 1943, the Union was the duly designated
bargaining representative of a majority of the employees in the afore-
said appropriate unit, and that, pursuant to the provisions of Section
9 (a) of the Act, the Union was on October 8, 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 bargain-
ing, with respect to rates of pay, wages, hours of employment, and
other conditions of employment.
2. The refusal to bargain
On October 22, 1943, the Union requested the respondent to bargain
collectively with it as the exclusive representative of the employees
in the unit. In a letter directed to the Union, dated October 28, 1943,
the respondent stated that it contested the appropriateness of the unit
found by the Board in the representation proceeding; that it wished to
obtain judicial review with respect to that question; and that it there-
fore refused to meet or negotiate with the Union.
Like the Trial Examiner, we find that the respondent on October
28, 1943, and at all times thereafter, has refused to bargain collectively
with the Union as the exclusive representative of its employees in an
appropriate unit and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent, set forth in Section
III, above, occurring in connection with the operations of the respond-
ent described in Section I, above, have a close, intimate, and substan-
8 Matter of Bethlehem Steel Co ., 50 N. L. R B. 172 , Matter of Aluminum Company of
America, 50 N. L R B. 233 ; and 50 N L . R. B. 963; Matter of Dravo Corporation, 52
N. L. R. B. 322.
ARMOUR AND COMPANY 1155
teal 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. TJIE REMEDY
Having found that the respondent has engaged in and is engaging
in unfair labor practices , we will order it to cease and desist therefrom,
and to take certain affirmative action designed to effectuate the policies
of the Act. We have found that the respondent has refused to bar-
gain collectively with the Union as the exclusive representative of the
employees in an appropriate unit . We shall, therefore , order that the
respondent, upon request, bargain collectively with the Union.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Packinghouse Workers of America, Local 49-A, C. I. 0.,
is a labor organization , within the meaning of Section 2 ( 5) of the
Act.
2. All watchmen employed by the respondent at its Jersey City,
New Jersey , plants, exclusive of supervisory employees with author-
ity to hire , promote, discharge , discipline, or otherwise effect changes
in the status of employees , or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. United Packinghouse Workers of America, Local 49-A, C. I. 0.,
was on October 8 , 1943, and at all times thereafter has been the ex-
clusive representative of all 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 October 28, 1943, and at all times thereafter, to
bargain collectively with United Packinghouse Workers of America,
Local 49-A, C. I. 0 ., as the exclusive representative of all 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 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.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
1156 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
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,
Jersey City, New Jersey , and its officers, agents , successors , and assigns,
shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Packinghouse
Workers of America, Local 49-A, C. I. 0 ., as the exclusive representa-
tive of all its employees engaged as watchmen at its Jersey City, New
Jersey, plants, exclusive of supervisory employees with authority to
hire, promote , discharge, discipline , or otherwise effect changes in the
status of employees , or effectively recommend such action;
(b) Engaging in any like or related acts or conduct 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 activities , for the purpose 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 United Packinghouse
Workers of America, Local 49-A, C. I. 0., as the exclusive representa-
tive of all its employees engaged as watchmen at its Jersey City, New
Jersey, plants exclusive of supervisory employees with authority to
hire, promote , discharge , discipline , or otherwise effect changes in the
status of employees , or effectively recommend such action , in respect
to rates of pay, wages , hours of employment, and other conditions of
employment;
(b) Post immediately in conspicuous places at its Jersey City, New
Jersey, plants , 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 paragraphs 1 (a) and (b) of this
Order; and ( 2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Second Region in writing,
within ten ( 10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
CHAIRMAN Mrriis took no part in the consideration of the above
Decision and Order.