Armour and Co.

National Labor Relations Board - Board Decisions

May 14, 1959

123 N.L.R.B. 1157 (N.L.R.B. 1959)

ARMOUR AND COMPANY 1157
Armour and Company and Allen P. Schoolfield, Jr.
Chauffeurs , Teamsters and Helpers, Local 47, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, and Southern Conference of Teamsters,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Allen P . Schoolfield,
Jr. Cases Nos. 16-CA-1088 and 16-CB-115. May 144, 1959
DECISION AND ORDER 1
On October 30, 1958, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had not engaged in the unfair labor practices alleged in
the complaints and recommending that the complaints be dismissed
in their entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondent
Employer filed a brief in support of the Intermediate Report and a
reply brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.2 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaints against the Re-
spondents Armour and Company, Fort Worth, Texas, and Chauf-
feurs, Teamsters and Helpers Local 47, International Brotherhood
I Chairman Leedom and Member Jenkins took no part in the consideration of this
Decision and Order.
9 The Respondent Employer requested oral argument . The request is hereby denied
inasmuch as the record, the exceptions , and the briefs adequately present the issues and
the positions of the parties.
3 Contrary to the dissent ' s implication , this is not a case where an employer has dele-
gated "complete control over seniority " to the Union within the meaning of Pacific
Intermountain Express, 107 NLRB 837. The present case arose from an honest dis-
agreement as to the weaning of an ambiguous contract clause that was susceptible of
two possible and equally valid constructions . The Company indicated that either was
acceptable and that it would leave to the Union the choice to be made. If during contract
negotiations the Company had submitted two lawful seniority proposals to the Union
leaving to the latter the choice of accepting either , it could hardly be contended that
offering a choice to the Union would have been unlawful. Moreover , once the Union made
its choice of the two possible constructions of the contract clause , admittedly on a non-
discriminatory basis, its power with respect to seniority ended . It no longer had the
authority to determine or settle controversies regarding seniority or to use such power to
encourage membership in the Union . This is the salient point of 'difference with the
Pacific Intermountain Express case.
123 NLRB No. 127.
1158 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
and Southern Conference of Teamsters, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
be, and they hereby are, dismissed.
MEMBER RODGERS, dissenting :
By their affirmance of the Trial Examiner's dismissal of the com-
plaint upon the facts in this case, the majority has given their ap-
proval to an interpretation of the Board's decision in Pacific Inter-
,mountain Express 4 with which I cannot agree. In that decision the
Board held that there can be "no basis for presuming that when an
employer delegates to a union the authority to determine the seniority
of its employees, such control will be exercised by the union in a non-
discriminatory manner." 5 However, my colleagues would limit the
application of the principles of that case to instances where there is
in existence an agreement by which "an employer abdicates to a union
complete and blanket control over the determination of seniority
questions generally." I am not disposed to view our Pacific Inter-
mountain Express decision in such a limited context, for to do so
simply condemns the form by which the discrimination is practiced,
namely the formal agreement, and not the discrimination itself. The
underlying intent of the Board in deciding Pacific Intermountain
Express as it did, is directed at "the vice of giving to the Union
complete control of the settlement of a `controversy' with respect
to seniority." 6 The Trial Examiner's findings, based upon credible
testimony, make it abundantly clear that in seniority matters
such as the one before us, the Company's expressed . position was
one of neutrality, and that it had agreed with the Union's request
that the employees concerned would be placed at the bottom of the
seniority list. Indeed, a review of the facts as presented by the Trial
Examiner indicates that the Employer would willingly accept any
seniority proposal suitable to the Union. Thus, at intermittent stages
of the prolonged grievance dispute the names of the employees con-
cerned first appeared at the bottom of the seniority list, contrary to
the initial placement by the Employer at a higher point on the list.
Yet thereafter these same employees obtained union support for their
claim to a higher seniority position; and still later, in a complete
about-face by the Union, ended up with their names at the bottom
of the list as the result of the final determination of the Union's
business agent, with the Employer's acquiescence. As the Employer
herein, by his relinquishment to the Union of a function considered
by the Board to be so clearly within his competence,' has given to the
4 107 NLRB 837.
5 Pacific Intermountain Express Company , supra, at p. 845.
0 Idem.
7 Pacific Intermountain Express Company , supra, at p. 845.
ARMOUR AND COMPANY 1159
Union such complete control over the seniority controversy, I would
hold his conduct unlawful regardless of the form taken to accom-
plish it. Accordingly, I would reverse the Trial Examiner and find
that the Respondent Employer had violated 8(a) (1) (2) and (3) and
that Respondent Union had violated 8(b) (1) (A) and (2).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This consolidated proceeding is brought under Section 10(b) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. The complaint against the Com-
pany above named was issued pursuant to a charge filed on March 28, 1958, and
the complaint against the Unions above named pursuant to a charge filed on March
28, 1958, as amended on July 2, 1958-all of the aforesaid charges having been filed
by Allen P . Schoolfield , Jr., the attorney for the named individuals alleged in the
complaints to have been unlawfully discriminated against . The complaint against
the Company , as amended , alleges in substance that the Company engaged in unfair
labor practices within the meaning of Section 8(a)(1), (2 ), and (3) of the Act, by
(a) Delegating to the Union and the Southern Conference the unilateral
right to determine the seniority positions of the Company's employees for the
purpose of sponsoring , assisting and maintaining the Union and the Southern
Conference, and
(b) Discriminating in regard to the terms and conditions of employment of
Frank Artmeir and Spurgeon Ervis Ingle on or about November 8, 1957, and
of Howard B. Easter and Bill Duke on or about February 28, 1957, by reducing
their seniority status upon demand of the Respondent labor organizations and
"for the reason that the [Company] is assisting , sponsoring and maintaining
the Union and the Southern Conference."
As against the Respondent labor organizations , the complaint alleges in substance
that they engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2) of the Act, by forcing the Company to transfer to them the unilateral right
to determine the seniority status of certain employees , including specifically the in-
dividual employees named above, and by employing such unilateral right to reduce
the seniority status of such employees . The Respondents in both cases have filed
answers denying the commission of the alleged unfair labor practices.
A hearing was held at Fort Worth, Texas, on September 9 to 11, 1958, before
the duly designated Trial Examiner . All parties were represented by counsel at the
hearing and were afforded full opportunity to be heard. At the opening of the
hearing the Respondents moved to strike from the complaints as amended all allega-
tions thereof relating specifically to employee Ingle upon the ground that Ingle was
not referred to in any of the charges and upon the further ground that his name was
first added to the complaints more than 6 months after the alleged discrimination
against him. The motion was denied .' At the close of the General Counsel's case, a
motion was granted over the objection of the General Counsel to dismiss the com-
plaint against the Teamsters ' International for want of proof tying it to the alleged
unfair labor practices .2 At the close of the hearing ruling was reserved on a number
1 See Cathey Lumber Co., 86 NLRB 157, enfd. 185 F. 2d 1021 (C.A. 5), set aside on
rehearing on another ground , 189 F. 2d 428 (C.A. 5).
1 The General Counsel conceded the absence of any evidence directly connecting any
International representative with the alleged unlawful conduct. He argued, however,
that responsibility must be imputed to the International for conduct of the Respondent
Local on the theory that the International and its constituent locals are so integrated
organizationally as to constitute a single "national organization" and as to make con-
stituent locals in effect administrative arms of the International . The arguments urged
by the General Counsel were substantially the same, although involving another labor
organization, as those recently considered and rejected by the Board in the Franklin
Electric Construction Company case, 121 NLRB 143. The motion in this case was
granted on the basis of the established Board and court precedents as reflected by the
cited case and others therein referred to.
This, too; may be noted : Although the International filed an answer to the complaint,
it is by no means clear that it is involved in this proceeding as a party respondent. The
only references to the International in the complaint appear to be descriptive of the affilia-
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of additional motions made by the Respondents to dismiss for want of proof. All
such motions are either disposed of or are otherwise rendered moot by the findings
of fact and conclusions of law made below . At the conclusion of the case , all par-
ties presented oral argument . Briefs were filed by the General Counsel and by
the Respondent Company on October 13 , 1958, and by the Respondent labor organi-
zations on October 14, 1958.3
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDING OF FACT
1. THE BUSINESS OF THE COMPANY
Armour and Company, an Illinois corporation with its principal place of business
at Chicago , Illinois , is engaged there and elsewhere , including at Fort Worth , Texas,
in the sale and distribution of meat and meat food products . During the past year,
the Company purchased foodstuffs for use at its Fort Worth , Texas, plant of a value
in excess of $1,000 ,000. Of such foodstuffs more than $ 100,000 worth was shipped
in interstate commerce to the Fort Worth plant from points outside the State of
Texas. It is conceded by all parties that the Company is engaged in commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
It was stipulated , and it is found , that Chauffeurs , Teamsters , and Helpers Local
47, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America , hereinafter referred to as the Union and at times as the Local, and
Southern Conference of Teamsters , International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , hereinafter referred to as Southern
Conference , is each a labor organization within the meaning of the Act.4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case grows out of a conflict involving the seniority status of over-the-road
drivers employed at the Company's Fort Worth plant. In 1953, four drivers who
had previously worked out of the Fort Worth plant were transferred at their own
request to other locations in the trade area of that plant where separate seniority
lists were maintained . The Company closed the locations to which they were trans-
ferred some 5 years later . Upon their return . to Fort Worth , they requested but were
denied restoration to their original places on the Fort Worth seniority list, resulting
in a loss of work opportunities . The General Counsel contends , and the Respond-
ents dispute , that the Company abdicated to the Union the right unilaterally to deter-
mine the employees ' Fort Worth seniority status and that for that reason alone the
seniority determination made was unlawful.
The over-the -road drivers-also known as country trucking drivers-attached to
the Company 's Fort Worth plant are represented by the Respondent Local ( herein
called the Union ). Their terms and conditions of employment are governed by a
so-called "Armour Country Trucking Agreement ." The agreement covers not only
the Armour drivers represented by the Respondent Local, but also similarly classi-
fied employees represented by other locals of the same International at other com-
pany plants located in the States of Oklahoma , Texas, and Tennessee . Like prede-
cessor contracts which have been in existence since at least 1950, the current contract
was negotiated with the Company by a negotiating committee representing all inter-
ested locals . The contract recites that the parties on the union side are Central
States Drivers Council , ,the Southern Conference of Teamsters , and Local Union No.
47,5 all affiliated with the Teamsters ' International , and jointly referred to in the
contract as the Union.
tions of the Respondent Local and the Respondent Southern Conference . Moreover, the
name of the International was omitted from the amended charge, and the complaint and
notice of hearing were served only on the Respondents Local and Southern Conference.
3 The Respondent labor organizations also filed a motion at the same time to correct
the transcript of record in certain respects. The motion is granted.
'As to the Southern Conference the stipulation was made for the purposes of this
proceeding only.
5 The Local Union number is inserted in a blank space appearing in the printed con-
tract . Other locals representing employees at other plants covered by the contract have
their designation numbers similarly inserted in the contract forms- applicable - to- such
other plants.
ARMOUR AND COMPANY 1161
Although the contract is negotiated on the basis of a single appropriate bargaining
unit embracing all Armour over-the-road drivers in the three States, each interested
local separately administers the contract on behalf of the employees -in the particular
plant within its own territorial jurisdiction. The contract allows some latitude for
local bargaining as to matters not otherwise specified in the contract. This is spe-
cifically true with regard to seniority-the contract providing that seniority "as
now established shall be continued, unless changed by collective bargaining between
management and the respective local union[s]."
Seniority is matter of considerable importance to the employees both in reduction
of force situations and in securing work assignments. Each plant and unit thereof
maintains its own separate seniority list, and runs are awarded to employees on the
basis of their priority standing on that list.
The current Armour Country Trucking Agreement went into effect on February 1,
1956. Earlier agreements contained a provision specifying that all controversies
over the seniority standing of employees on a list "shall be referred to the Union
for settlement." That provision was deleted in the 1956 agreement, as a result of
the Board's decision in the Pacific Intermountain Express Company case, 107 NLRB
837, declaring an identical provision to be unlawful under the Act. The present
contract contains the following general provision with regard to seniority and the
settlement of seniority conflicts:
Seniority rights shall prevail. Employees will be laid off and recalled in order
of seniority, even though it may necessitate changing job classifications-pro-
vided employee is qualified to perform such work. Seniority as now established
shall be continued, unless changed by collective bargaining between manage-
ment and the respective local union(s). A list of employees arranged in order
of their seniority shall be posted in a conspicuous place at their place of em-
ployment. Any controversy over the seniority standing of any employee on
this list shall be subject to settlement through the grievance procedure provided
for herein.
The contract sets out a comprehensive grievance procedure with arbitration as its
terminal point.
It is claimed by the General Counsel that notwithstanding the provisions of the
new contract, the parties thereto continue to govern themselves by those of the old.
Both the Company and the Union vigorously deny that they have had at any time
since the effective date of the 1956 contract any agreement, understanding, or ar-
rangement, tacit or otherwise, requiring the Company to defer to the Union's
unilateral resolution of seniority conflicts.
Only three seniority conflicts have arisen since the 1956 agreement was made.
The first-not involved in this proceeding-occurred in February 1957. It con-
cerned a dispute as to the relative position on the seniority list of two employees
who had started work the same day. That conflict was adjusted through the griev-
ance procedure at a meeting attended by company and union representatives and
by the interested employees. The second-relating to Frank Artmeir and
Spurgeon Ingle-is considered at considerable length below. The General Counsel
points to the handling of that single seniority conflict as proof of the alleged un-
lawful delegation to the Union of the unilateral right to determine seniority ques-
tions. The Respondents say not so, that all that was involved there was normal
collective bargaining in a situation, not uncommon in industrial relations, where an
employer with no fixed position on a specific seniority conflict involving an ambigu-
ous contract provision open to two alternative interpretations, neither of which is
inherently discriminatory within the meaning of the Act, indicates after due con-
sideration his willingness to accept either of the alternatives the Union may select,
and thereafter adopts the choice made by the Union in good faith and without
purpose unlawfully to discriminate. The third seniority conflict, several months
later, involved Howard Easter and Bill Duke, the remaining two employees alleged
in the complaint to have been unlawfully discriminated against. As will more fully
appear below, that conflict was decided by the Company alone, without any referral
to the Union, and solely upon the basis of the seniority standard agreed upon
between the Company and the Union in the disposition of the Artmeir-Ingle
grievance.
B. Events leading to the seniority controversies here involved
To understand how the seniority question here involved arose, it is necessary to go
back to 1953. During that year the Company set up a number of break bulk
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
points at various locations in Texas within the trade area of its Fort Worth plant.6
The Company called upon drivers on the Fort Worth seniority list to bid for such
jobs, the awards to be made on the basis of the seniority standing of those bidding.
Jobs at the break bulk points offered considerable advantages , principally in terms
of stability of employment . Work at Fort Worth fluctuated in volume and only
the most senior employees had any continued assurance of steady runs. On the
other hand , those assigned to the break bulk points were guaranteed a 48-hour
week.
Among those who successfully bid in jobs at break bulk points were the four
employees alleged in the complaint to have been later discriminated against. Frank
Artmeir and Spurgeon Ingle were assigned to a break bulk point at Crockett.
Howard Easter and Bill Duke were assigned to San Angelo. At that time Artmeir
was number 15 on the Fort Worth seniority list which then included some 65 names.
Easter was about number 20 . The record does not disclose the precise positions of
Ingle and Duke. It does indicate , however, that Duke was higher than Easter, and
it is fairly to be assumed that Ingle also held a position well above the bottom of
the list.
When the break bulk points were set up , the question was raised as to what
would happen to the Fort Worth seniority status of those choosing to go to the
new stations . The Union's then business agent discussed that question with com-
pany representatives . They agreed that employees leaving for the break bulk
points were to be allowed a 30-day period to determine whether they desired to
remain there. Those who chose to return within that period were to retain their
former positions on the Fort Worth seniority list, but if they elected to remain
beyond that period they were to be considered as having forfeited their place on
the Fort Worth seniority roster. It is undisputed that all employees who accepted
break bulk point positions were so advised by the Company . Artmeir and Easter,
the only two alleged discriminatees who testified , conceded the receipt of such ad-
vice. According to them, however, the Company's then dispatcher , Carl Glenn,
told at least some of the men, in response to a question put to him, that if the
Company after 30 days decided to close a bulk point station , the employees at that
station would regain their Fort Worth seniority standing . Glenn denied making
the statement attributed to him. He testified the question as to the effect upon
Fort Worth seniority of the Company itself closing its break bulk points was a
contingency left uncovered . For reasons indicated -in the marginal note, I am
inclined to credit Glenn.7 In any event , even if I were to accept the testimony of
Artmeir and Easter, I would not regard its impact on this case as of great im-
portance . Artmeir's own testimony discloses that no union official was present
when Glenn's added assurance is claimed to have been given, and , so far as appears,
that assurance , if made, was without union approval and therefore binding neither
on the Union nor upon other employees whose interests might be affected.
Artmeir and Ingle remained at the Crockett break bulk point until it was closed
in November 1957. In the meantime, another employee, Millican , who started
there with them , left Crockett to return to Fort Worth where he was placed at the
foot of the country drivers seniority list.8 Easter and Duke remained at San Angelo
until the Company closed that break bulk station in February 1958.
Prior to Crockett 's and San Angelo 's closing , the Company closed another break
bulk point-at Wichita Falls in 1954. The Wichita Falls employees returning to
Fort Worth were placed at the bottom of the Fort Worth seniority list-by mutual
agreement between the Company and the Union , according to the Respondents .9
While stationed at Crockett and San Angelo, the employees continued to be
represented by the Union . They remained at all times material to this proceeding
members of the Union in good standing.
9 A break bulk point is a station at which the contents of large trailers are subdivided
for loading on smaller trucks operating out of that station.
7 At the time of the hearing, Glenn was no longer employed by the Company and was
a disinterested witness. Moreover, I regard it as significant that when Artineir , following
the closing of Crockett, pressed his Fort Worth seniority claim , he relied upon an asserted
contract right and-so far as this record discloses-made no reference to any 1953
company commitment.
8 Millican returned to Fort Worth about a year and a half after the opening of Crockett.
0It may be noted , however , that the collective-bargaining agreement then in force did
not contain the specific provision on which Artmeir later relied in claiming a contractual
right to Fort Worth seniority reinstatement . Moreover , unlike the current contract, the
contract then in force contained a provision delegating .to the Union control over the
settlement of disputes affecting employees ' positions on the seniority list.
ARMOUR AND COMPANY 1163
C. The Artmeir and Ingle seniority claim and the manner in which it was disposed of
When Artmeir received notice of the Company's intention to close its Crockett
break bulk point, he wrote the following letter to Claude I. Pemberton, the Com-
pany's transportation manager at Fort Worth, sending a copy to the Union:
11-1-57.
Mr. C. L. PEMBERTON,
Transportation Dept.
Due to Crockett Break Bulk point being closed on the 9th of November, I
hereby request to be transferred to the Fort Worth plant as described in
Section 2, Article XV of the Armour Country Trucking Agreement, Period
covered Feb. 1, 1956 to Jan. 31, 1959.
(S) FRANK ARTMEIR.
Article XV, section 2 of the 1956 agreement to which Artmeir referred reads
as follows:
In the event that one of the presently established truck drivers units covered by
this agreement is closed and moved or established elsewhere within the same
plant sales territory, employees of the closed unit shall have the right to transfer
to the newly established unit within the same plant sales territory with their full
seniority rights-provided request for transfer is made in writing within seven
(7) days of closing of the presently established unit. [Emphasis supplied.]
Pemberton was willing to have Artmeir restored to his former seniority position
at Fort Worth, and personally felt that that should be done. But he was aware,
as were, others in plant management , that there was an ambiguity in the contract
provision upon which Artmeir relied. In spirit if not in text the provision could
be construed as covering the precise situation involved. On the other hand, since
Fort Worth was not a "newly established unit," it was also arguable, placing emphasis
on literalness, that the language of the section did not cover that situation at all.10
Pemberton and others in plant management were also aware from talk about the
plant that many drivers on the Fort Worth seniority list were strongly opposed to
having seniority rights restored to employees returning from closed break bulk
points. Pemberton discussed the matter with W. C. Acree, the plant's industrial
relations manager. Acree agreed that the contract could be interrupted either way,
pointed out that if the Crockett men were given their former seniority without getting
agreement from the Union there might be repercussions from other drivers, and
suggested that Pemberton discuss the matter with the Union to ascertain its position.
On November 6, 1957, Pemberton conferred with Boyd Howell, the Union's busi-
ness agent . Howell had become business agent only about a year before and was not
familiar with the conditions on which employees had accepted break bulk positions.
Pemberton advised Howell that the Company was not taking a definite stand one
way or the other on the particular seniority question that had arisen and indicated
that the Company would be agreeable to go along with the Union's views on the
subject. He invited an expression from Howell of the Union's position. Howell,
however, declined to declare himself immediately. He said he wanted time to study
the contract and otherwise look into the matter, and promised to advise the Company
after he had done so. Howell delayed communicating the Union's position to
Pemberton until late in the morning of November 9, 1957.
In the meantime, Artmeir, although not due actually to begin work at Fort Worth
until the following Monday, reported to Johnnie Stroup, the Company's Fort Worth
dispatcher, early Saturday morning, November 9, 1957. Stroup showed Artmeir
the lineup he had prepared for the next day's run. It contained Artmeir's name in a
position consistent with his original Fort Worth seniority standing. Ingle's name
was absent from the list, but Ingle could not have been reached for work assignment
that day even on the basis of his old seniority standing. At that time Stroup ex-
10 Article XV, section 2 appeared for the first time in the 1956 agreement , and no prior
occasion had arisen for plant management to consider its applicability in a situation of
this kind . A witness called by the General Counsel testified that when the Company
closed a break bulk station attached to its Oklahoma City plant , which is covered by the
same , contract , the break bulk employees were restored to their original seniority posi-
tions at that plant . But it further appears from the testimony of the same witness that
the Oklahoma City employees were represented by another local and , more important,
that the reinstatement action was taken there, not pursuant to article XV, section 2,
but, rather , in effectuation of a specific agreement made in 1953 between the Oklahoma
City plant management and the Oklahoma City local to cover that particular contingency.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plained to Artmeir that his name had been placed on the list only tentatively since the
question of his seniority status had not yet been resolved.
Shortly after Artmeir's visit with Stroup , a group of employees , including L. C.
Shetter, came to the shelter , looked at the lineup list , appeared disturbed by what
they saw , conferred among themselves , and went to Pemberton 's office. Objecting
to the appearance of Artmeir 's name on the list, Shetter directed Pemberton's atten-
tion to the oral understanding reached in 1953 under which employees accepting
break bulk positions were to lose their Fort Worth seniority after 30 days . Pember-
ton telephoned Howell, who said he was endeavoring to contact James Hoffa, the
head of the union negotiating committee on the 1956 contract , to obtain from Hoffa
an interpretation of article V, section 2. Howell asked that in the meantime, con-
sidering "existing conditions ," Artmeir and Ingle be placed at the bottom of the list.
Pemberton agreed, and notified Stroup accordingly . When Artmeir again visited
Stroup 's office about an hour after his initial call that morning, Stroup told him that,
pending settlement of the seniority question , his name had been dropped at the
request of the Union to the bottom of the list.
That same morning a union meeting of Armour drivers was held. The meeting
had been requested by some of the drivers disturbed about the effect on their own
seniority status if returning break bulk employees were restored to their original
positions . In a conversation with Artmeir before the meeting, Howell stated that
his personal view was that Artmeir should retain his original seniority . At the open-
ing of the meeting, Herman Bullard , the then shop steward , announced that both he
and Howell were in agreement with the seniority claims of Artmeir and Ingle. This
at once aroused the resentment of many others present . A demand was made for
the selection of a new shop steward, and Shetter was elected to replace Bullard.
The seniority controversy was then argued at length. Artmeir contended that the
contract entitled him to his old seniority , while others argued to the contrary. Those
opposed also contended that Artmeir was barred from reasserting his seniority rights
by virtue of an agreement or understanding reached with the Company in 1953. To
support their contention , they submitted to Howell statements signed by the 1953
dispatcher , Glenn, and by about 20 emp loyees. Glenn 's statement was to the effect
that such an agreement was made; the employees ' statement was to the effect that
they had been advised in 1953 that those transferring to bulk break points would
forfeit their Fort Worth seniority after 30 days . At the conclusion of the meeting
Howell indicated that he had changed his original view in the light of the evidence
and arguments presented . Although declaring that he would still try to obtain a
contract interpretation from Hoffa , he stated that he was now in agreement with
those who insisted that returning break bulk employees be placed rat the foot of the
seniority list.ll
In a telephone conversation with Pemberton after the meeting , Howell requested
that Artmeir and Ingle be retained at the bottom of the seniority list. Pember-
ton agreed.
On November 21, 1957, Artmeir filed a grievance through the Union, objecting
to his seniority placement . Ingle filed no like grievance , but the Union in its trans-
mittal letter to the Company added Ingle 's name as ,a similarly aggrieved employee.
The receipt of Artmeir's grievance on the Union 's report form came as a surprise to
Acree, according to his testimony . He had thought that the Company and the Union
had settled the question on November 9, and the only inference he could now draw
from the Union 's submission of the grievance and its addition of Ingle was that the
Union had altered its position.
A grievance meeting was held on November 30, 1957. Acree . Pemberton and
Stroup appeared for the Company; Howell and Shetter for the Union; and Artmeir
for himself . Ingle apparently was not present . Acree, although conceding that the
contract provision was equivocal, at first indicated that there might be merit to
Artmeir's grievance . He asked for an expression of views as to the intent of article
XV, section 2, and it was to this question that the ensuing discussion was mainly
directed . Artmeir argued for a construction favorable to his position . Shetter was
the spokesman for the opposing view, arguing that the contract provision was designed
to protect break bulk employees in the limited situation where a unit was moved from
one point to a "newly established " point "down the road ." 12 He also urged that those
u Howell testified that he wrote lIoffa for an interpretation of article RV, section 2,
but never received a response.
'3 Some support for this claim is to be found in the testimony of Walter E. Clark, the
Company's Chicago manager of industrial relations, who negotiated and executed the con-
tract on the Company ' s behalf . Clark testified that shortly prior to the contract's
ARMOUR AND COMPANY 1165
choosing to go to break bulk units in 1953 had agreed as a condition to transfer that
their Fort Worth seniority would be forfeited after 30 days. Finally, as evidence of
established practice, he cited the 1954 Wichita Falls precedent. Howell had little
if anything to say at this meeting, expressing no position. It was recognized by all
that whatever resolution was made, there were some employees who must suffer.
Toward the close of the meeting, Acree indicated that unless the contract specifically
covered the situation , it was the Company's desire to dispose of the matter with the
least trouble and expense to the Company. Acree raised the question as to whether
allowance of the Artmeir-Ingle grievance would dispose of the controversy completely
or only lead to additional grievances from other drivers. Shetter in reply expressed
his opinion that if the pending grievance were granted others adversely affected
thereby would then probably press grievances of their own. Acree commented that
from the Company's point of view nothing could be gained by disposing of one
grievance, only to invite others.
No final disposition of the grievance was made at the meeting. Acree stated that
he would check with his home office in Chicago as to the intention behind article
XV, section 2. The Union in its part was to seek an interpretation from James
Hoffa, the chairman of the committee that negotiated the contract on the Union's
side. In the meantime, it was agreed by the Company and the Union that Ingle and
Artmeir were to stay where they were on the seniority list. The Union and the
employees were later to be notified of the final outcome.
Following the grievance meeting, Acree communicated with his Chicago office.
W. E. Clark, the company negotiator of the contract, was out of town. Clark's assist-
ant, Peterson, with whom Acree conferred, was able to shed little if any light on the
intention behind article XV, section 2. Acree and Peterson decided that since the
contract did not compel one result rather than the other, and since from the Com-
pany's point of view it made little difference where the men involved were placed,
the Company's position on that particular grievance ought to be one of neutrality,
with the choice left to the Union. The important thing, they decided, was to pin the
Union down to a definite position, and thereby avoid the possibility of further
.grievances and a risk of back-pay liability.13
On December 5, 1957, the Company sent a letter to the Union, with copies to
Artmeir and Ingle. The Company noted that although it had earlier agreed to the
Union's suggested handling of the Artmeir and Ingle seniority claim, the Union
had nevertheless later filed a grievance for Artmeir and Ingle. It asked the Union
to state in its capacity as bargaining agent whether it was now seeking to withdraw
from its originally expressed position. If so, the letter went on, the Company was
agreeable to have the men resume their former seniority. "Otherwise, we can only
assume that the Union has not changed its previous suggestion that these employees
should be at the bottom of the Fort Worth seniority list." The letter stated in
conclusion that as no disagreement had existed at any time between the Company
and the Union, there was no cognizable grievance within the contract definition
of that term as the Company understood it, and there could be no liability on the
part of the Company for back pay in any event.14
negotiation, the Company had closed a break bulk unit and moved it to another point
where it hired new employees, and that the Union requested the insertion of the clause
to cover specifically such it situation.
"As appears from the testimony of Acree and Clark, the procedure decided upon was
not unusual in the Company's dealings on seniority matters with the numerous labor
organizations that act as bargaining agents for units of its employees. The Company's
general policy, the witnesses testified, is to handle each seniority grievance as an individual
case with the uppermost thought of quickly ending controversy at the lowest level when-
ever reasonable and possible. Situations frequently arise where contract rights and
precedents are unclear and where the disposition of a particular grievance, one way or
the other, is a matter of practical indifference to the Company. In such a situation, the
Company, although not required to do so, often invites the interested union to come
forward with a proposal.
14 At the hearing the General Counsel attempted to establish that the Company's home
office issued instruction at about that time to its Fort Worth plant to refer all seniority
disputes to the Union for settlement, and that Fort Worth acted on such instructions in
its disposition of the Artmeir-Ingle grievance. Artmeir testified that Pemberton showed
him a letter from W. E. Clark to that effect. Artmeir's testimony, however, was vague
and contradictory as to 'time when and the circumstances under which the letter was
shown him. 3n a detailed prehearing statement furnished the General Counsel he made
no reference to any such letter. Moreover, his testimony on cross-examination was
vacillating as to whether the letter spoke of all seniority disputes or only the specific
1166 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
. By letter to the Company, dated December 13, 1957, Howell confirmed 'that the
Union and the Company were agreed that Artmeir and Ingle be placed at the bottom
of the seniority list. Howell added that the same seniority interpretation was to
apply to all other employees who might later be brought back from closed break
bulk units.
Because of his low position on the seniority list, Artmeir received only occasional
work assignments after his return to Fort Worth. On January 15, 1958, Artmeir quit
the Company's employ-his decision to do so having been motivated in substantial
part by his inability to obtain steady work.15 As for Ingle, the record is silent as
to his work history after returning to Fort Worth. It is fairly to be inferred, however,
that he, too, must have lost work opportunities as a result of his placement at the
bottom of the seniority list.
D. As to Duke and Easter
On February 21, 1958, the Company decided to close its break bulk point at
San Angelo, Texas, and notified Duke and Easter accordingly. Concerning their
seniority status at Fort Worth, the Company wrote them as follows:
As you are aware, your seniority will end with the closing of your unit and
if you want to return to Fort Worth, it will mean you will be at the bottom
of the seniority list and very little work will be available.
The evidence is undisputed that in so advising Duke and Easter the Company acted
entirely on its own, without consultation or other contact with the Union. Acree
testified, and it is found, that the Company based its decision on the agreed upon
seniority interpretation established as a result of the grievance arising from the
Crockett closing.
On March 3, 1958, the attorney for the Charging Party wrote the Company and
the Union requesting that Duke and Easter along with Artmeir be returned to their
original seniority places on the Fort Worth seniority roster "in compliance with
Article XV, Section 2 of the present contract." Presumably this request was not
granted.
After the San Angelo closing, Easter returned to Fort Worth where he was placed
at the bottom of the seniority list. He has received little work since. Duke did not
appear as a witness and the record contains no evidence concerning his subsequent
work history.
E. Analysis and conclusions
All parties are in agreement that Crockett's closing gave rise to a genuine question,
subject to conflicting interpretations, as to the rightful place on the Fort Worth
seniority list of employees returning from closed break bulk stations. On that point
the seniority provisions of the governing collective-bargaining contract were unclear,
if indeed they covered it at all. Under the contract and the statute the question
of what standard ought to be applied properly became a matter for collective
bargaining. The Company was entirely within its rights, indeed it was only fulfilling
its statutory duty, in consulting with the Union as to the resolution to be made of
the question. The General Counsel concedes that the disposition urged by the
Union and adopted by the Company was uninfluenced by any antipathy toward the
alleged discriminatees based upon their union adherence, their compliance with
union membership obligations, their prior exercise of protected employee rights, or
by any other consideration the Act condemns. Moreover, there is not the slightest
suggestion in this record that the Union urged its requested disposition other than
in good faith.16 Whether or not one agrees with the correctness of the result reached,
seniority claim in which he was involved . Howard Easter also testified that Pemberton
showed him such a letter . But on cross-examination , Easter substantially admitted that
the letter he saw made reference only to the Artmeir-Ingle grievance and in content was
substantially the same as the Company 's letter to the Union of December 5. The Com-
pany ' s witnesses denied that Clark had ever written any letter on the subject, that the
Company had ever otherwise authorized or instructed its Fort Worth office to allow the
Union to decide all seniority disputes , or that Pemberton had made reference to any
such letter in conversations with Artmeir or Easter . I credit their denials. Significantly,
the General Counsel in his painstaking brief has indicated no reliance on the aforesaid
testimony of Artmeir and Easter.
15 The complaint does not allege that Artmeir was constructively discharged.
10 Cf . Aeronautical Lodge v . Campbell, 337 U.S. 521; Ford Motor Co. v, Huffmaia,
345 U . S. 330.
ARMOUR AND COMPANY 1167
it is, at least clear that the Union had a rational basis for the seniority. resolution
it urged, considering (1) the contract language preserving seniority only in "newly
established units"; (2) the understanding reached in 1953 relating to the forfeiture
of Fort Worth seniority after 30 days; and (3) past practice as evidenced by the
Wichita, Falls closing, coupled with the contract provision that seniority "as now
established shall be continued."
It may well be that but for the Union's intercession, the Company would have
resolved the seniority question differently. But that is of no controlling significance
in itself. The very duty to bargain presupposes that on occasions at least there will
be a yielding by the employer to the wishes of the union. And in the resolution of
seniority controversies there is always some employee who must be adversely affected.
Moreover, as the Supreme Court pointed out in the Radio Officers' Union case,17
the Act does not "outlaw discrimination in employment as such; only such discrimi-
nation as encourages or discourages membership in a labor organization is pro-
scribed." And, as the Board has held, it does not follow from the fact that a union
has instigated employer action impairing an employee's employment status that such
action tends to encourage or discourage union membership, if, as in this case, it is
otherwise clear ,that the action was urged and taken "for reasons unrelated to union
membership or the performance of union obligations." 18
The General Counsel apparently concedes that absent unlawful motive it normally
would not be an unfair labor practice for an employer to accept a union's proposal
made in collective bargaining as to how a seniority conflict should be resolved.
What makes the present situation abnormal and calls for a different result, accord-
ing to the General Counsel, is that the Company delegated to the Union authority
alone to determine the seniority controversy and agreed in advance to be bound by
the Union's unilateral determination whatever it might be.
To support his position, the General Counsel seeks to bring this case under the
umbrella of the Pacific Intermountain Express doctrine.19 The P.I.E. case and the
cases following it 20 stand for the proposition that where an employer by contract
grants a union unfettered power unilaterally to determine all seniority questions, the
contractual provision delegating such power is unlawful as violative of Section
8(a)(1), (2), and (3) on the part of the employer, and of Section 8(b)(1)(A)
and (2) on the part of the Union. The Board's rationale underlying the P.I.E.
doctrine, as stated in the lead case, at p. 845, is that it is to be expected that a
union granted such broad power will exercise its control over seniority to discrim-
inate against employees on the basis of union adherence, and, consequently,
. it is to be presumed . . . that such delegation is intended to, and in fact
will, be used by the Union to encourage membership in the Union. Accord-
ingly, the inclusion of a bare provision . . . that delegates complete control
over seniority to a union is violative of the Act because it tends to encourage
membership in the Union. (Emphasis supplied.)
In a P.I.E. situation, the Board strikes down the offending contractual provision.
And where a union causes the impairment of an employee's job status through
the exercise of the unlawful power delegated to it-on the basis of that power
alone and without regard to any other lawful contract arrangements or nondis-
criminatory interpretations thereof-the Board finds the action implementing that
power to be derivatively unlawful and orders remedial measures.21 It is to be noted,
however, that in all but one of the cases thus far decided in which the Board found
unlawful discrimination against individual employees based upon the exercise of a
contractually delegated seniority power, there was also clear independent evidence
established that the union's seniority determination was motivated by reasons related
to the employees' union membership status or performance of union membership
17 Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17.
1S ILTU, Local No. 10, etc. (Milton Moore), 121 NLRB 938; Daugherty Company,
Inc., 112 NLRB 986. 989.
10 See Pacific Intermountain Express Co., 107 NLRB 837, enfd. as modified sub nom.
N.L.R.B. v. International Brotherhood of Teamsters etc., 225 F. 2d 343 (C.A. 8).
Minneapolis Star and Tribune Company, 109 NLRB 727; North East Texas Motor
Lines, 109 NLRB 1147, enfd. sub nom. N.L.R.B. v. Dallas General Drivers, 228 F. 2d 702
(C.A. 5) ; Chief Freight Lines Co.. 111 NLRB 22, 34; Kenosha Auto Transport Corpora-
tion, 113 NLRB 643; Interstate Motor Freight System, 116 NLRB 755; Gibbs Corpora-
tion, 120 NLRB 1079; Meenan Oil Co., Inc., 121 NLRB 580.
21 See Pacific Intermountain Express Co., supra; Minneapolis Star and Tribune Company,
supra; Kenosha Auto Transport Corporation, supra; Interstate Motor Freight System,
supra; Mennan Oil Co., Inc., supra.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligations. In the Kenosha case alone there was no such independent evidence,
and it is on this case that the General Counsel principally relies. But it is sig-
nificant that the Board in Kenosha took pains to emphasize that the action there
taken had no possible nexus with nondiscriminatory contract interpretation, and
could only be accounted for as an "effectuation of the unlawful [contract] clause
delegating exclusive authority to the Union." 22 [Emphasis supplied.]
Thus, assuming, contrary to the conclusion I reach below, that there was an un-
lawful delegation in the instant case, this case would nevertheless be distinguishable
from Kenosha on the basis indicated. For, as found above, the seniority deter-
mination in this case, unlike the one in Kenosha, did have a relationship to otherwise
existing contractual arrangements. And, even if incorrect, the disposition made
was at worst a good-faith nondiscriminatory misinterpretation of such arrangements.
In any event, oppositely to the General Counsel, I do not view this case as one
involving an unlawful delegation of power of the kind contemplated by the Pacific
Intermountain Express doctrine. As noted above, that doctrine is bottomed on the
existence of an agreement wherein an employer abdicates to a union complete and
blanket control over the determination of seniority questions generally. There is
no such agreement here. On the contrary, the collective-bargaining contract in this
case expressly and specifically requires that all seniority questions shall be settled
by collective bargaining and through the contract grievance procedure with arbitra-
tion as the final step. Nor is there basis in this record for inferring, as the General
Counsel urges, the existence of a sub rosa overriding arrangement or understanding
to continue in effect the pre-1956 contractual provision requiring the Company
to refer all seniority disputes to the Union for settlement by the Union alone. To
support such an inference, the General Counsel relies upon the handling of one
particular seniority claim-the one involving Artmeir and Ingle-where the Com-
pany in effect adopted a position of neutrality, and, without instigation from the
Union, allowed the Union to make its choice of the competing nondiscriminatory
alternatives. As to that particular controversy the Company has adequately and
credibly explained the course it took on a basis unrelated to the existence of any
underlying sub rosy agreement. The fact that the Company allowed the Union to
make a choice on that single occasion cannot be viewed as substantial evidence-
particularly in the face of the Respondents' denial-that the Company was under
an obligation to do so, let alone that it was acting pursuant to a general under-
standing or arrangement with the Union to that effect. Moreover, the record con-
tains clear and undisputed affirmative evidence at variance with the inference the
General Counsel would have the Board draw. Thus, as found above, the only
other two seniority questions that arose after the execution of the 4956 contract
were both determined without referral to the Union for its unilateral determina-
tion, one through the contract grievance procedure, the other by the Company alone
through application of an earlier agreed-upon contract interpretation resolving the
seniority question at issue.
The General Counsel goes further in this case, however. He makes the novel
"contention that, though not required by any agreement to do so, the action of the
Company in allowing the Union unilaterally to resolve the particular seniority con-
troversy here involved, coupled with the Company's subsequent acquescence in the
Union's requested resolution, constituted without more an unfair labor practice
under the Act.23 He insists that it is the actual delegation and not the agreement
sI Thus, the Board found (113 NLRB 643, at p. 644) :
. . . it is clear on the record as a whole that the Respondents dropped Hazel to a
lower position on the seniority list, not pursuant to any agreed upon nondiscrimina-
tory interpretation of other clauses in the contract, but solely in-effectuation of the
unlawful clause delegating exclusive authority to the Union.
And as a basis for its uItiniate conclusion the Board stated, at p. 645
. . . the Union . . . acted without regard to any contract arrangement other than
the invalid delegation of authority to make a unilateral determination of Hazel's
seniority status.
21 The General Counsel presumably would have the Board find that the Company's
conduct in that regard was violative of Section 8(a) (1), (2), and (3). He does not,
however, snake clear how a company's voluntary invitation to a union to choose one of
two competing seniority constructions can possibly involve the union in an unfair labor
practice. Certainly, the Company's voluntary action would not prove the allegation of
the complaint in Case No. 16-CB-115 that the Union "forced the Employer to transfer to
it the unilateral right to determine the seniority status of certain employees." A finding
ARMOUR AND COMPANY 1169
requiring delegation that ought to be viewed as controlling; that in either situation
the Pacific Intermountain Express principle applies. At least as applied to the facts
of this case, I am unable to agree. As stated above, the Pacific Intermountain Ex-
press doctrine rests fundmentally and entirely on a presumption that a union which
is the recipient of unrestricted general power without limiting standards to control
seniority may be expected to exercise its power in an unlawfully discriminatory
manner, and as a consequence the grant of such blanket control must be viewed as
"intended to . be used by the union to encourage membership in the union."
As one bound by Board precedent, I must of course accept the valdity of the stated
presumption as applied in the Pacific Intermountain Express cases, all of which in-
volved general delegation agreements. But I do not believe that any rational basis
exists for a like presumption in a situation such as is present in the instant case.
Far from a general power to control seniority, all the Company granted the Union
here was a restricted opportunity to take its choice of one of two possible interpre-
tations of an admittedly ambiguous seniority provision, never before construed under
the contract. The power granted was limited to the single live question that had
arisen with the closing of the Crockett break bulk point; it was to end when that
question was decided. The Union's allowable range of choice was circumscribed;
it could fix the applicable seniority standard as one based on uninterrupted Fort
Worth service or it could fix it as based on combined Fort Worth and break bulk
service. No question of union adherence was involved; all who might be affected
were union members in good standing. Of the choices available to the Union in
that limited situation, neither could possibly be discriminatory within the meaning
of the Act. To presume in such circumstances that the Company by allowing the
Union the freedom of choice "intended" to encourage membership in the Union is
to strain reason to its breaking point. And without such a presumption of unlawful
purpose, no foundation remains for the application of the Pacific Intermountain
Express principle.
In sum, the General Counsel would make it unlawful for an employer seeking
to resolve a seniority question which is properly a subject for collective bargaining,
voluntarily to declare as to the particular question at issue a position of neutrality as
between two competing nondiscriminatory interpretations of a concededly ambiguous
contract, leaving to the employee bargaining representative the choice of the com-
peting alternatives, either of -which is acceptable to the employer. The principle
advocated by the General Counsel, I am persuaded, runs counter to the aim of the
Act to reduce rather than to enlarge the area of controversy in collective bargaining.
The obligation to bargain does not include an obligation to resist, and there is
nothing in the law that requires either party to collective bargaining to assert and
defend a definitive position in a matter that is subject to negotiation. The record
in this case shows persuasively that the Company was not led to adopt a neutral
position because it was obligated by an invalid agreement or forced by illegal pres-
sure to allow the Union alone to determine the seniority controversy. It was led
to do so because from its own paint of view there was no compelling reason why
one placement was more required under the contract or more desirable than the
other, and because it considered the approach it took to be to its own best interests
as the least disruptive and the most practical manner of expeditiously putting the
seniority conflict at rest. If the Company had been motivated by like considera-
tions to accede to a union-initiated demand for the same seniority resolution,
without, however, expressing its neutrality in advance, it is doubtful that a claim
would have been made that the accord reached was not a result of the bargaining
process. Yet for all practical purposes the line between that situation and what
the Company did here is so thin as to be virtually indistinguishable. To encourage
in a context such as this the withholding by an employer of his honest and considered
of liability against the Union could only proceed from the premise that a union, invited
by an employer to choose between one of two competing nondiscriminatory seniority
resolutions, must as a matter of law back away entirely, and foregoing its representative
responsibilities, decline to take any position at all. In other words, even assuming that
what the Company did was a violation of Section 8(a) (3), the Union could be held
liable under Section 8(b) (1) (A) and 8(b) (2) only by engrafting on the statute the
singular concept that it is a union unfair labor practice for an employer to cause a union
to cause the employer to violate Section 8(a) (3). Moreover, even as to the Company,
the General Counsel's contention could have no possible application to the cases of
Easter, and. Duke, for the seniority determination in their cases., was made without any
referral to' the Union at all.
508889-60-vol. 123-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attitude of neutrality in order to avoid the appearance of cooperativeness , cannot
advance the purposes the Act was designed to achieve . It can only serve to
promote conflict and strife in bargaining-or invite dissimulation . I am convinced
that the position pressed by the General Counsel is not only unsound in law; it is one
which, if adopted , would present a serious impediment to free and rational collective
bargaining in seniority controversies.
For the reasons stated above , I find that the Respondents have not engaged in
unfair labor practices as alleged in the complaints in this consolidated proceeding.
[Recommendations omitted from publication.]
Magic Mountain , Inc. and Brotherhood of Painters , Decorators
and Paper Hangers of America, Local 79, AFL-CIO
Magic Mountain , Inc. and Carpenters District Council of Denver
and Vicinity, AFL-CIO
Magic Mountain , Inc. and Operating Plasterers and Cement
Masons International Union Local 32, AFL-CIO
Magic Mountain , Inc. and International Association of Machin-
ists, District Local No. 86, AFL-CIO. Cases Nos. 30-RC-1559,
30-RC-1565, 30-RC-1567, and 30-RC-1606. May 14, 1959
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before Allison E.
Nutt, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
The Employer is a Colorado corporation which is currently en-
gaged in the construction of an amusement park near Denver, Colo-
rado. The park at the time of the hearing was approximately 30 per-
cent completed. It was stipulated that during the 12-month period
ending July 1, 1959, the Employer expects to receive capital goods
valued at not more than $100,000, which will be shipped directly to it
from sources outside of Colorado and which will be used for the con-
struction of the park. It is contemplated that construction will be
completed on or about July 1, 1959, whereupon such expenditures
will cease. The Employer will then be engaged only in the operation
of the park. There is no information in the record as to what volume
of business the Employer may be expected to do after that time nor
the extent to which that business will affect interstate commerce.
The Board has long held that it will not assert jurisdiction over
an employer's business on the basis of its nonrecurring capital ex-
penditures alone,' and we reiterate that policy here. The present
operations of the Employer, aside from its capital expenditures, do
l Richter Transfer Company, 80 NLRB 1246; E. T. Gresham Company , Inc., 85
NLRB 891.
123 NLRB No. 146.