Armour and Co. of Delaware

National Labor Relations Board - Board Decisions

Apr 21, 1943

48 N.L.R.B. 1412 (N.L.R.B. 1943)

In the Matter of ARMOUR AND COMPANY OF DELAWARE and UNITED
PACKINGHOUSE WORKERS OF AMERICA , LOCAL 49A, C. I. O.
Case No. C-2462.-Decided April 21, 1943
Jurisdiction : meat distributing ( industry.
Unfair Labor Practices
Collective Bargaining : majority not contested by employer-refusal to bargain
collectively by : refusal to negotiate on minimum wages ; refusal to agree to
a contract for a fixed term ; insistence that union agree not to conduct union
business on company property, outside of working hours-employer's refusal
to establish a definite workday for the purpose of paying daily overtime, held
not to constitute a 'refusal to bargain.
Remedial Orders : employer ordered to bargain collectively with the union on
request. -
Unit Appropriate for Collective Bargaining : all clerical employees at two of
employer's branch houses, including bookkeepers, cagemen, switchboard, oper-
,ators, and general office help, but excluding the managers, assistant managers,
office managers, inside salesmen, outside salesmen, and peddler salesmen.
DECISION
AND
ORDER
• On December 16, 1942, 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 take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. Thereafter the respondent filed exceptions to the
Intermediate Report. 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.
The Board has considered the Intermediate Report, the respondent's
exceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and 'recommendations of the Trial Examiner,
except as noted below.
1. The Trial Examiner has found that the respondent refused to
bargain collectively in good faith with the Union as the exclusive rep-
resentative of the employees of the respondent within an appropriate
unit, on the ground in part that the respondent refused to agree "to
any limitation on daily hours." The respondent admittedly refused
48 N L. R. B., No. 176
1412
ARMOUR' AND COMPANY OF ,DELAWARE, 1413
to agree to a definite workday; but the record'shows , and we find, that"
the length of the workday was only an incidental issue arising out of
the disagreement between the parties on the question of daily overtime.
During the negotiations the Union insisted upon the payment of daily.
overtime by the respondent , and proposed to establish a definite work-
day as a basis for computing such overtime . On the other hand, the
respondent refused , to agree to any arrangement for paying daily over-
time and consequently rejected the Union's proposal for a definite
workday. In support of its refusal to fix daily hours of work, the
respondent contended that it could not anticipate the number of hours
office employees .would have to work in any given day, because of the
irregular arrival of supplies, the lack of uniformity in buying habits
of the public , and other marketing conditions over which the respond-
ent had no control . However, the Union finally proposed that daily.
overtime be computed on the basis of a 10-hour day ; and, although it
appears from a number of employees ' time cards, in evidence, that
there are very few instances in which employees work more than 10
hour°s in any 1 day, the respondent would not agree to this proposal.
This unwillingness on the part of the respondent to include in the
contract a provision so closely approximating existing conditions of
employment would normally be taken, and has been found by the Trial
Examiner, to indicate lack of good faith by the respondent in its nego-
tiations with the Union . As has been stated above , however, the
record shows that the real quarrel between the parties was on the
economic issue of whether .the respondent should pay overtime wages
on a daily basis . Under the circumstances, we do not believe that the
respondent 's refusal to agree on a definite workday was a refusal to
bargain collectively , within the meaning of the Act . The Trial Ex-
aminer's finding to the contrary is hereby reversed.
2. The Trial Examiner has found that the respondent's refusal to
enter into a contract for a fixed term constitutes a refusal .to bargain
collectively , and we agree . At the hearing the respondent admitted its
refusal to agree to a fixed term, but sought to justify its refusal on the
ground that a fixed term did not "mean anything " in view of Section 9
of the Union's proposed agreement .) While Section 9 is ambiguous,
it was written by the Union which , by its insistence on a provision for
a fixed term , made it clear. that Section 9 was not interpreted by the
Union as making a fixed term meaningless . Furthermore , accepting
the respondent 's interpretation of Section 9 means only that the re-
Section 9 read as follows :
No basic changes in existing wages, hours of work or other conditions of employ-
ment affecting the employees of the company will be made without submitting the
desired 'change in writing to the union bargaining representatives for ne°.otiation.
A period of not.longer than thirty (30) days will be considered reasonable time
for such negotiations , and during that time no changes will be made unless mutually
agreed on. '
1414 DECISION'S OF NATIONAL LABOR, RELATIONS BOARD
spondent was in effect insisting on a contract fixing conditions of
employment, at the respondent's option, for not more than 30 days.
No showing is made by the respondent of any special circumstances
making such a short term reasonable.
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 of Delaware,
New York City, 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 49A, C. I. 0., as, the exclusive representa-
tive of all clerical employees of the respondent at its branch houses at
147-07 94th Avenue, Jamaica, New York, and at 96 North Sixth Street,
Brooklyn, New York, including bookkeepers, cagemen, switchboard-
operators, and general office help, but excluding the managers, assistant
managers, office managers, inside salesmen, outside salesmen, and
peddler salesmen, in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment;
(h) 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
activities for the purposes of collective bargining 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 49A, C. 1. 0., as the exclusive representative
of all clerical employees of the respondent at its branch houses at
147-07 94th Avenue, Jamaica, New York, and 96 North Sixth Street,
Brooklyn, New, York, including bookkeepers, cagemen, switchboard
operators, and general office help, but excluding the managers, assistant
managers, office managers, inside salesmen, outside salesmen, and
peddler salesmen, in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment;
(b) Post immediately in conspicuous placesthroughout the branch
houses operated by it at 147-07 94th Avenue, Jamaica, New York, and
at 96 North Sixth Street, Brooklyn, New York, 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 ordered to cease and desist in
paragraphs 1 (a) and (b), of this Order; and (2) that the respondent
ARIVIdUR 'AND- COIA1'AISTY OF DELAWARE, - 1415
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
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Sidney Reitman, for the Board.
'Peter F. Curran, of New York, N. Y., for the respondent.
Meyer Stern, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a charge,duly filed by United Packinghouse Workers of America, Local
49A, affiliated with the Congress of Industrial Organizations, herein called the
Union, the National Labor Relations Board, herein called the Board, by the
Regional Director for the Second Region (New York, N. Y.), issued its complaint
dated August 7, 1942, against'Armour and Company of Delaware, 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)
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 notices
of hearing 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 November 3, 1939, and at all times thereafter,
refused to bargain collectively with the Union through its duly authorized agent
as the exclusive representative of all the employees of the unit described in
the complaint, which unit covered the office workers at the respondent's Jamaica
and Brooklyn, New York, branch houses.
In its answer, the respondent admitted the allegations of the complaint as to
the nature of its business but denied that it had engaged in any unfair labor
practices. '
Pursuant to notice, a hearing was, held from November 9• through November
20, 1942, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. At the commencement of the hearing the Board moved
to amend its complaint by adding thereto a paragraph alleging that the respondent
had disparaged and expressed disapproval of the Union and had urged, persuaded,
threatened, and warned its employees to refrain from assisting, or becoming, or
remaining, members of the Union. Objection having been made by the respondent
to the proposed amendment, the Board withdrew its motion to amend the com-
plaint. On November 10, 1942, it renewed ' this motion and the undersigned
reserved his ruling. On November 16, 1942, he granted the motion without objec-
tion. At the close of the respondent's oral argument, it moved for a dismissal
of the complaint for failure of proof. The undersigned at that time reserved his
ruling, and now denies the motion. The Board and the respondent ' were repre-
sented by counsel and the Union by a field representative of the national office
of the Packinghouse Workers Organizing Committee, C. I. 0. All parties par-
ticipated in the hearing and were afforded full opportunity to be beard, to
examine and cross-examine witnesses, and to•introduce evidence bearing on the
issues. At the close of the respondent's case the Board moved to conform the
pleadings to,the proof as far as variances in dates, spelling's, and similar formal
matters were concerned. This motion was granted without objection. The
X
1416 'DECISIONS OF ,NATIONAL LABOR RELATIONS -BOARD
parties upon request of the undersigned , argued orally before - him. They were
given an opportunity to file briefs with him, but filed none.
Upon the record thus made and upon his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation and a subsidiary of Armour and
Company, an Illinois corporation. ' It maintains its principal office and place
of business at the Union Stockyards in Chicago, Illinois, but it has various
branch houses, including those at 147-07-94th Avenue, Jamaica, New York, and
at 96 North Street, Brooklyn, New York. These branch houses are engaged in
the sale and distribution of wholesale meats and meat food products. During
the period from January 1, to June 30, 1942, the branch house located at Jamaica
purchased 14,682,442 pounds of products, and the Brooklyn branch house pur-
chased 15,485,103 pounds thereof, for the purpose of distribution. Approximately
90 to 95 percent of these purchases came from out of the State of New York.
During this same period the sales of meat and meat food products at the Jamaica
branch house totalled 14,592,301 pounds, and the sales at the Brooklyn branch
house totalled 15,383,756 pounds. Of these totals, approximately 2 or 3 per-
cent was shipped to points outside of the State of New York. The respondent,
concedes that it is engaged in commerce within the meaning of the National
Labor Relations Act at its Jamaica and Brooklyn, New York branch houses.'
II. THE ORGANIZATION INVOLVED
United Packinghouse Workeis of America, Local 49A, is a labor organization
affiliated with the Congress of Industrial Organizations and admits to member-
ship office workers of the respondent.2
II. THE UNFAIR LABOR PRACTICES ,
A. Sequence of events
Union activity among the office employees of the respondent in its branch
houses in the New York City area, which includes the two branches involved
in this case, commenced in November, 1938, when a committee of these employees
Appeared at the Union's office and inquired whether the Union would be inter-
ested in organizing the office employees, in the respondent's distributing houses
located in this area. They were assured that the Union would be willing to
admit these employees to Union membership. The committee members there-
upon signed membership cards and took further cards for other office employees
to sign.
On November 19, 1938, the Union wrote a letter to Dever D. Frederick; Dis-
trict Manager of the respondent's branch houses in the New York City area.
It claimed therein that a majority of the office employees of the respondent in
all of the approximately twenty-five branches in Frederick's district , were
members of the Union and offered to give the respondent proof of this member-
• 1 These findings are based upon a stipulation of the parties which was made a part of
the record.
2 These findings are based, in part, upon a stipulation of the parties which was made
a part of the record. _
ARMOUR AND COMPANY OF DELAWARE - 1417
ship. The Union requested the respondent to give written, recognition of the
'Union as the exclusive bargaining agency of these office employees., There was
no answer to this letter.
At this time attempts were also being made by local unions of the United
Packinghouse Workers of America to obtain bargaining conferences for the pro-
duction a employees of the respondent in the New York City area. Appeals to the
National office of the respondent asking it to try to persuade its local representa-
tives to enter into such conferences went unheeded. As a result of the inattention
of the respondent to these requests, circulars were distributed among production
and office employees of the respondent. They stated that there would be-a Union
meeting on- December 10, 1938, to discuss the steps that should be taken because
of the respondent's refusal to agree to-bargaining conferences.' On December 9
Frederick telephoned Meyer Stern, field representative of the Packinghouse
Workers Organizing Committee, and requested a conference. It was held that
evening. ' At this meeting Frederick, though requested to make proposals con-
cerning Union demands relating to the working conditions of the respondent's
employees, made none, but devoted his whole attention to the-possibility of a
strike. He said that the employees would be foolish to strike and asked' the
Union representatives to do all they could to avoid a strike. On December 10 a
union meeting was held for production and office employees of the respondent.
They decided to strike on December 12.
On December 12 there was a strike of the production and office employees of the
respondent in the New York City area. On December 13, Frank J. Carey, auditor
of the respondent in its New York District, wrote letters to the strikers, including
at, least some of the office employees in the, two branches with, which this case
deals. The letters stated that, because of the failure of the addressees to report
for work, the respondent assumed that they did not intend to continue their
employment with the respondent. They were given until December 15 to return
.to work. They were informed that if they,did not resume their work by that
date, steps would be taken to.obtain others to fill their positions. The respondent
claimed that it wrote these letters because work was piling up to such an extent
that it had to get some one to get it done. In reply to these letters the Union
wrote the respondent that the latter's employees were willing to; return to work
.whenever the respondent would meet with their representatives and,discuss con-
ditions\of•employment with them To this letter there was no reply. However,
a conference was arranged and the strike was terminated December 17, 1938,
on the basis that all of the strikers would be taken back to work by the respondent
without discrimination and that it would bargain in relation to both its production
and office employees.
During the evening of December 17, a conference was held between the Union
and the respondent. Among those present was Mr. Ellerd, vice-president of the
-respondent. During the meeting he requested that the office workers be dropped
from the Union. This, Stern said, could not be done, since the Wagner Act gave
the office employees the right to belong to a union. . Thereupon Ellerd said, in the
words of Stern, "Never mind the-law. I will take care of that. We will never
recognize the Union for the office people." 4
I Different locals of the United Packinghouse Workers of America, C . I. O. had already
been certified as representatives of its production employees in New York , Brooklyn, and
Jamaica, N. Y. -
* Though Frederick , who attended the December 17 meeting, testified that he did not hear
Ellerd make this statement , the undersigned credits Stern . He appeared to be an honest
witness Furthermore , he testified consistently , admitted facts unfavorable to his posi-
tion, and, hen not certain of facts, so stated. Moreover , Frederick merely testified that
he did not hear Ellerd make the statement attributed him. Ellerd did not testify.
1418 DECISION 'S OF NATIONAL LABOR RELATIONS -BOARD
However, a bargaining conference for the respondent 's office workers in the
New York City area was held on January 6, 1939 Frederick represented the
respondent . Carey was not present . The, Union presented its demands in the
form of grievances and the principal matters discussed were wages and hours.
The respondent took the position that it could not agree to any schedule of hours,
since such a schedule was impractical in the respondent 's business and refused to
pay time and a half on a daily basis . The respondent made no counterproposals.
The Union , on February 7, 1939, wrote the respondent requesting , among other
things, a 9 hour day, rather than a set daily schedule .` It also asked the respond-
ent to grant certain specified individual wage increases . This letter was not
answered . During the first part of March 1939 a second conference was held at
which the question of daily hours was again discussed , but no agreement in rela-
tion thereto was reached . The respondent agreed, however , to grant the indi-
vidual wage increases requested . On March 14 , 1939, ' the Union again wrote the
respondent . It suggested a new schedule of hours which set forth practically the
hours in effect at that time for the various classes of office workers . No reply to
this letter was received by the Union.
On April 12, 1939, the Union filed a petition for investigation and certification
of a representative for the office employees in the Brooklyn and Jamaica, N. Y.,
branch houses of the respondent.
Either 1 or 2 days before the election , which occurred on September 28, 1939,
Carey visited the Brooklyn and Jamaica branch houses and had several of the
office employees at each branch called from their work to see him . To John F.
Burkard of the Jamaica branch, Carey said that he understood Burkard had
joined the Union. He stated further that he did not think that Burkard, being
an assistant office manager , should be in the Union . He also said that he did
not believe office employees generally had a right to join the Union, since they
were persons picked for promotions . Continuing , Carey told Burkard that he.
thought Burkard would be hurting himself if he joined the Union , for, if he
did that, Carey would no longer ' be his boss and he could no longer assist
Burkard as he thought he might otherwise be able to do from time to time. He
likewise told Burkard that , if the Union won the ' election , there would be no
more promotions and that Burkard might stick to the same,work until he got
old on the job . Carey then suggested that Burkard should think over the
,matter of,union membership and that he should not do anything to hurt himself
or his family. Burkard testified that though he did not feel that Carey was
threatening him, he did fear that, if he was a union member, he would have
no chance for further promotion .' Carey told Henry D. Niebuhr of the Brook-
lyn branch that he wanted to talk to him about what was coming up. He
informed Niebuhr that , if the office employees voted unfavorably to the,respond-
6 Later Stern told Carey the Union would even agree to a 10 hours day ., At the hearing,
the respondent , to prove its inability to grant a day of a set number of hours, introduced
in evidence seven groups of time cards of former and present employees at its Brooklyn
branch. They disclosed ceitain • instances of irregularity in daily hours of work, espe-
cially in relation to its quitting hours ." There were very few instances in which an
employee was shown to have worked over 10 hours a day There had been weeks
between the dates of the first and last cards of all but one of these employees when
there had been no irregularity in their daily hours of work . - In one case the employees'
hours of work had been regular 72 weeks out of the 93 weeks covered by the period
represented by his cards
At the close of the conversation between Carey and Burkard , Carey said that it ,was a
matter of opinion whether or not one should loin a' union At the time of the hearing
iiurkard was still in the employ of the respondent at a greater salary than he received at
.the time of the election. , . -
ARMOUR AND COMPANY OF DELAWARE 1419
ent at-the coming election,' neither Carey nor the respondent would have the
same respect for them as formerly, that they could not expect any further con-
sideration, and that they would be treated more, or less as orphans
, At the, Board election the office employees at the respondent's Brooklyn and
Jamaica, branch houses chose the Union as their collective bargaining agent.
After learning the result of the election, the Union, without waiting for certi-
fication, which occurred on October 27, 1939, wrote the respondent and requested
a bargaining conference. This letter was not answered, but Stern telephoned
Frederick and a conference was arranged. It was held on November 3, 1939.
The respondent was requested by both Frederick and Carey. , The Union
presented demands relating to hours, wages (including minimum rates of pay),
vacations, seniority, and the recognition of office stewards and a Union com-
mittee.
At the beginning of the conference, Frederick said that the only reason the
respondent's representatives were at this meeting was that the law required
their attendance. He added that he did not believe anything would be accom-
plished, but, rather, that a lot of time would be wasted by holding the confer-
ence.' The respondent refused to grant any of the Union's requests except the
proposal relating to vacations, -which conformed to the respondent's current prac-
tice. Carey -claimed that the respondent could not set a minimum wage for
office employees because of the different qualifications of office employees be-
cause of the varied purposes for which they were employed, and because some
employees might be students in training' He would, therefore, not even con-
sider agreeing to any minimum wage rates. Yet, upon direct examination,
Carey testified that the respondent had minimum rates of pay for the office
employees at its Brooklyn and Jamaica branches in November 1939, and in
February 1941 and stated what they were. The reason given by Carey for
refusing to agree to a schedule of hours for office employees was the alleged
uncertainty of their quitting hours. This condition was caused, he said, by ,
late shipments, buying late in the week, and other conditions beyond the respond-
ent's control. Frederick added that the hours in effect for office employees
were those used by the respondent for 70 years and that it did not intend to
change them for a union. ' He also said that the respondent had a better
seniority system than that proposed by the Union. When Stern asked Frederick
what it was and said the Union might be' willing to adopt it, Frederick replied
that the respondent did not have to tell what it was 10 Stern told Frederick
that a report of the happenings at this conference was going to be made to a
Union meeting on November 14 and that it would cause dissension and trouble
Frederick said that all he could do was to forward to Chicago his report of
the conference, including the Union's demands. He promised to try to give
4 Although Niebuhr testified that Carey did not specifically mention the election, Nieburh
indicated in his testimony that he understood and the undersigned finds that Carey referred
to voting for the Union when he spoke of the employees' going against the company.
8 Though Frederick denied making these statements and Carey testified that he did not
hear Frederick make them, the undersigned credits Stein and James J. Stanton , AN ho was,
on November 3, 1939 , an office employee at the respondent 's Brooklyn branch and a shop
steward for the office employees at that branch Both Stern and Stanton testified that
Frederick did,make these statements . They appeared to be honest witnesses and testified
consistently and straightforwardly. The testimony of Carey and Frederick was at times
evasive and contradictory Carey, it should be noticed , merely testified that he did not hear
Frederick make the statements accredited to him
8 Stern testified that during negotiations the Union agreed to forego minimum wage rates
for probationers Carey testified to the contrary . For reasons previously stated, the under-
signed credits Stern.
10 Frederick denied that he made these statements For reasons previously given the
undersigned credits Stern and Stanton both of whom testified that he did.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union an answer before November 14. No answer was received- from
Carey by that date, nor could he be reached by telephone either , on November
14 or 15. Stern then wrote Frederick twice, each time requesting a confer-
ence , 'for the further discussion of the office employees ''demands. Since no
reply, was received by Stern to either of these letters , he again telephoned,
Frederick and arranged a bargaining conference which was held on January
8, 1940. Frederick , as well as Carey, was present. No progress was made at
this meeting . The Union reqested counterproposals from the respondent, but
none were made.
Since considerable headway had already been made toward obtaining a satis-
factory collective bargaining agreement for the respondent ' s production em-
ployees in the New York City area , Stern believed that greater progress would
be made toward securing such 'a contract for the office employees , if joint con-
ferences were held for the production and office employees . With this in mind,
he wrote to Frederick and requested a joint conference . Receiving no reply
to this aletter, he wrote Frederick another letter of the same import. Again
getting no reply, Stern , telephoned Frederick and ultimately arranged a joint
conference for March 5, 1940 . Both Frederick and Carey attended this meeting.
During the period from March 5, 1940 , through February 6, 1941, several joint
conferences were held" By January 16, 1941 , the conferees had been successful
in reaching satisfactory terms of a collective bargaining agreement for those
of 'the respondent 's production and office employees who had been represented
atithe joint conferences . All that remained to be done was to decide upon some
language to^be used in the proposed agreement and to sign it. At the February
6 meeting the respondent was asked to sign. Its representatives said they did
not know the respondent was expected to sign the agreement and stated they
would have to inquire concerning the respondent 's position in relation to such
11 The dates of these conferences were March 5, May 1 , May 16, June 19, July 18, October
8, December 3, 1940, and January 16 and February 6, 1941. The respondent claimed that
there were no joint conferences and that those held on the dates just enumerated were
solely for production employees . To sustain this view , it said that it was Frederick,
supervisor of the production employees , rather than Carey, supervisor of the office em-
ployees, who represented the respondent at these conferences . It also relied on the fact
that references to the office employees in certain portions of some of the Union proposals
presented at these conferences had been stricken by its representative ( It should be
noticed , however, that the office employees were still specifically mentioned in at least one
place in these proposals .) The fact that Stern asked the respondent to have Carey present
at a particular meeting at v.hich , Stern stated , matters concerning the office employees were
to be considered was said by the respondent to prove that Stern recognized that the confer-
ences had related only to production workers . Stern testified that he had requested Carey's
presence at this conference because he believed greater headway could be made if Carey was
there and because Carey ' s absence , from a few conferences had been noticed . Stern main-
tained that the conferences were joint . There were many facts which support the claim of
Stern. Tbus , Frederick , who attended these meetings and who was admitted to have au-
thority to deal with matters concerning production workers, appears also to have had
authority to consider problems concerning office employees Thus , he was District Manager
for the respondent in its New York City District , he attended some early conferences relat-
ing solely to the office employees , at which Carey was not present , and he participated
during the period in question in the reinstatement of a discharged office employee. Carey
attended several of the conferences in question Office employees were on the union com-
mittee attending these conferences . At the conference of March 5, 1940 , the respondent
asked that the date on which the Union was certified as the representative of the office,
employees be inserted in the section on "Recognition" in the proposal being considered at
that conference . This section on "Recognition " already stated that the proposal related
to the office employees in the respondent 's Brooklyn and Jamaica branches . The very fact
that Carey , at the last of the conferences referred to at the beginning of this note, asked
for-separate proposals for production and office workers indicated that both types of em-
ployees had been involved in these conferences . Additional reasons for crediting Stern have
been stated earlier in this report. - The undersigned finds that the conferences were joint.
ARIVIOlfA AND COMPANY OF DELAWARE 1421
signature. At this conference" Carey asked the Union to draft a separate
proposal for the office employees since the vacation section relating to them
would have to be somewhat different from that relating to the production
employees "
In 'compliance with Carey' s, request , the' Union prepared the requested,pro-
posal for the office employees and forwarded it to the respondent on February
10; 1941. A conference was held on February 28 at which this proposal was
discussed . Carey objected to a portion of the statement in the new, proposal
under "Purpose of Agreement," which'said that one purpose of the proposed
agreement as to set forth rates of pay, hours'of work, and working conditions
of employment to be,observed between' the parties thereto. The inclusion of this
clause in the contract for production and office employees had ultimately been
agreed to at the joint conferences.
Carey also objected to the clause in the. new proposal which permitted the
carrying on of union business on the respondent's premises as long as it was
done on , an employee's time. This practice had finally- been agreed to by the
respondent at the joint conferences and the undenied testimony showed that
the respondent did not penalize office employees for union activities on their
own time, -though they took place on the respondent's premises. In addition,
Carey refused to consider the granting `of minimum wager rates, the limiting of
daily hours of work, or the paying of overtime on a daily basis. Moreover,
he disapproved of the seniority section in the Union's proposal, and of that
portion of its section on vacations which gave female office employees a yearly
3-weeks vacation with pay after 15 years or more of continuous service with
the respondent. He insisted on 20 years of service before this privilege was
granted- female office employees, though the respondent had, at the joint
conferences, consented to give the 3-weeks vacation to female production em-
ployees who had been 'in the continuous service of 'the respondent for 15
years. He also refused to agree to a 1-year contract, though during the joint
conferences the respondent had consented to a -contract extending over that
period. He did agree to the sections on holidays, adjustment of grievances,
management, other conditions of employment, and a portion of the section
on vacations.
In April 1941 another conference was held. Carey and Neal, the respond-
ent's assistant district manager, in its New York, City District, both of whom
attended this conference, were asked for counterproposals, but neither of them
suggested any. Carey, when asked if he would sign a contract if one was
agreed-to, replied that he had no authority to do so.- The terms of the Union's
proposal were not discussed.
On May 6, 1941, the Union filed with the National Labor Relations Board
a charge 'that the respondent was refusing to bargain in good faith with
the Union. -
On May 14, 1941, a further 'conference was held. The respondent then for
the_ first time presented the Union with written counterproposals, which had
been forwarded from Chicago. They provided that union business should not
12 Though Carey testified that his request was made at the January 16, 1941, conference,
Stern testified that it was made at the February 6, 1941, conference. For reasons already
stated , the undersigned credits Stern . Moreover , joint proposals , were still under con-
sideration at the February 6, conference
13 Stern testified that this was the only reason given by Carey for requesting separate
proposals for the office and production employees . Carey 's testimony is not clear on this
point. It may be interpreted to state that he told the Union representatives that there
were several reasons for separating the proposals. On the other hand, it may be construed
as merely stating that there were various reasons for requesting the separation. The
undersigned credits Stern.
1422 DECISIONS OF NATIONAL ,LABOR, , RELATIONIS BQARD
be conducted on the respondent's-premises even on an employee's time. They
stated that the respondent should have complete control over salaries, and
that any increase or reduction of salary should be made on an individual basis
on the initiative of the management, though any office employee might present,
a•request for a salary increase personally or through grievance procedure out-
lined in the counterproposals. They also stated that an effort would be made
to give the office employees an 8-hour day, a 40-hour week, and uniform daily
starting,and stopping hours, and that time and one-half would be paid for time
over 40 hours in any week. The counterproposals likewise provided that there
should be no stoppage or. slow-down of work by the office employees because of
disputes between the respondent or the office employees on the one hand and
anyone else on the other hand, or between those not included in any bargaining,
contract entered into between the respondent-and the Union as representative,
of the respondent's office employees.. Also, there should be no stoppage or slow-
down of work because of the use by the respondent of property from any source,
even though it was produced, handled, or transported by nonunion workers or
by employees of the respondent in another of its plants, branches, or subsidiaries
which was involved in a labor strike. Again, there was to be no stoppage or slow-
down of work because of the failure of any employee of the respondent to join
the Union or to any union dues or because of his dropping out of the Union.
Seniority was to be based not only on length of service but also on an employee's
ability. If an employee should voluntarily change from one of the respondent's
branches to another he was to lose his seniority in the branch from which he
moved. Three-weeks vacations were to be granted only to employees, male or
female, who had been continuously in the respondent's service for 20 years.
No provision was made for a contract of a given length."
After reading these counterproposals, Stern asked Carey if he had authority
to change them. Carey replied in the negative, so the • Union representatives
left the conference.
The next day Stern made a personal appeal' by letter to Frederick, asking him,
for assistance in obtaining a settlement of the 'labor dispute between the
respondent and its office employees.
On May 20, 1941, Paul E. Blanchard, one of the attorneys for Armour and
Company in its Chicago office, wrote Mrs. Elinore M. Herrick, then Regional
Director for the Second Region. This letter was prompted by the receipt ' of
a communication from the respondent's New York office which, along with
other things, referred to the conferences concerning the respondent's office
employees Blanchard admitted, in his letter to Mrs. Herrick, that his in-
vestigation indicated that there was a technical ground for the claim of the
office employees at the respondent's Brooklyn and Jamaica branch houses that
the respondent had not bargained in good faith with their certified representa-
tive. He explained this by saying that, though the respondent had, from the
first, intended to give Carey complete authority to deal with the representative
of its employees, Carey had not so understood his authority. He added that
this had now been cleared up and that Carey had been requested to recontact
such representative and to notify it that he had authority to bind the re-
spondent to any agreement reached concerning these employees.
"The respondent, in its counterproposal relating to changes In conditions of employ-
ment, provided that, if a contract was entered into between it and the Union, the respond-
ent would make'no basic changes in the conditions of employment without submitting the
desired changes in writing to the bargaining representatives, of the office employees In
each branch house,, that a period of not longer than 30 days would be considered a reason-
able time to negotiate concerning such proposed, changes, and 'that during that time no
changes would be made in conditions of employment unless they were mutually agreed to.
ARMOUR AND COMPANY OF DELAWARE 1423
Carey failed to contact the Union , so Stern, at the suggestion of Mr. Schatzow,
of the Board 's New York office, telephoned Carey and arranged for a conference
which was held on June 17, 1941. At this meeting the respondent 's counter,-
proposals ,were discussed . - Carey would not agree to any change in- them, except
to agree to , abide by the market custom in respect to three holidays not men-
tioned in the counterproposals.
On September 11, 1941, the Union wrote Carey urging him to again consider
the question of collective bargaining for the office employees , since the Union
and the respondent had signed a master agreement covering 14 Armour - plants.
A conference was held on September 28, 1941 . Carey again refused to make
any changes in the counterproposals and said that they had to be accepted as
they were or there would be no contract.
A collective bargaining contract dated March 1, 1942, was entered into be-
tween the respondent and the certified representatives of the respondent's pro-
duction employees in the New York area . It permitted union business on the
respondent's premises if it was conducted on an employee's time. Wage rates,
including minimum wages , at least for probationers , were agreed upon by the
Union and , the respondent . Daily overtime was also provided for. Female
employees with 15 or more years of continuous service were given a 3-weeks
vacation with pay. Seniority,, was based entirely on the length of service.
The contract was entered into for the definite period of 16 months.
On May 19, 1942, Stern wrote Carey suggesting that a further conference
be held to attempt to reach an agreement regarding the office employees, since
the respondent had recently entered into a contract relating to production
employees in its local branches : To this letter Stern received no reply,"
and he had lib further conferences with the respondent concerning the office
workers invo ' ved in this case prior to the hearing.18
Carey admitted that throughout the negotiations he had refused to agree to
a daily schedule of hours or to a definite number of hours of work per day
for office employees . He also admitted that he had always refused to agree
to grant them any minimum wage rates. He testified further that he had
always requested the Union to eliminate from its proposals on behalf of the
office employees any provision for a contract of a' fixed period.
B. Conclusions as to interference, restraint, and coercion
The undersigned finds that by telling one of its,office employees immediately
before the Board election that it did' not think that such employees had the
right to join a union, that it believed he would be hurting himself if he joined the
16 The respondent admitted that it never sent the Union a letter concerning conferences
dealing with the office employees . Stern testified that he knew of no telephone calls from
the respondent to the Union acknowledging 'the receipt of Union letters relating to such
conferences , and that he always had to telephone the respondent in order to arrange
bargaining conferences for the office employees On the other hand , Carey testified that
he telephoned Stern five or six times concerning bargaining conferences . Frederick ' testi-
,fled that .to.the best of his knowledge the respondent always acknowledged Stern's letters.
It did this by telephone Catherine E. Berry, secretary to Frederick , at first testified that
the respondent always acknowledged Union letters . Later on in her direct examination
she could remember no other reason why, she telephoned the Union than to inform it that
officials of the respondent would be delayed in replying to Union letters . The undersigned
credits Stern for reasons previously given and-for the further. reasons that neither Carey
nor Frederick directly denied Stern ' s testimony and that Berry 's testimony was contra-
dictory and her memory as to this matter was faulty.
16 Carey testified that early in June there was a further conference relating to the office
employees , which was arranged by Stern, but that Stern did not attend it. Carey did
not recall the details of the meeting.
1424 DECISIONS OF NATIONAL LABOR :RELATIONS BOARD
Union, that if he joined the respondent could no longer assist him as it might
otherwise be able to do, that if the Union won the election there would be no
more promotions and that he should think over the matter of union membership
and not do anything to hurt himself or his family, and, by informing another of
its office employees that, if the office employees voted unfavorably to the re-
spondent at the coming election, it would not have the same respect for them as
formerly, that they could not then expect any further consideration, and that
they would be treated more or less as orphans, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act 17
C. The refusal to bargain, collectively
1. The appropriate unit
The undersigned finds that all of the clerical employees of the respondent at
its Brooklyn and Jamaica branches, including bookkeepers, cagemen, switch-
board operators, and general office help, but excluding the manager, assistant
manager, 'office manager, inside salesmen, outside salesmen, and peddler sales-
men, at all times material herein constituted and that they now constitute a unit
appropriate for the purpose of collective bargaining with respect to rates of pay,
wages, `hours of employment, or other conditions of employment and that the
said unit insures to employees of the respondent the full benefit of their right to
self-organization and to collective bargaining 'and otherwise effectuates the
policies of the Act "
2. Designation of the Union by a majority of the employees in the
appropriate unit
The undersigned finds that on, and at all times after, October 27, 1939, the
Union was the duly designated representative'of -a majority of the employees
in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the
Act, the Union was at all times •material herein, and is, the exclusive representa-
tive of all the employees in such unit for the 'purpose of collective bargaining
in respect to rates of pay, wages, hours of employment, or other conditions of
employment.17
3. Conclusions as to the refusal to bargain.
Though the respondent and the Union largely due to concessions made by the
Union finally agreed during their conferences upon some conditions of employ-
ment for the respondent's office employees at its Brooklyn and Jamaica branches,
there was no accord as to the important matters of minimum rates of pay,' of
17 The whole "congeries of facts" herein presented , including the background of the
respondent's opposition to union activity by, and on behalf of, its office employees, estab-
lish a course of conduct which is clearly coercive. Montgomery Ward d Co. V. N. L. B; B.,
115 F. (2d) 700 (C. C. A. 8). •
18 This finding is based upon a stipulation of the parties which was made a part of
the record. Although the Board, in 15 N. L. R. B. 268, on September 14, 1939, found
that the clerical employees at the several branches of the respondent constituted separate
units, the union and the respondent have always treated the clerical employees at the
respondent 's Brooklyn and Jamaica branches as a single unit.
18 This finding is based upon a stipulation of the parties which was made a part of
the record. At the election on September 28, 1939, a majority of the clerical employees
who were eligible to vote chose the-Union as its representative for collective bargaining
at each of the respondent 's branch houses involved in.the case . See 16 N. L. . R. B. 574.
ARMOUR AND COMPANY OF DELAWARE 1425
daily hours of work, of the right to do union business on the respondent's prop-
erty,-and of a contract for a fixed period. It will be recalled that Carey admitted
'that the, respondent would never consider granting minimum rates of pay or
agreeing to any daily hours of work. He conceded further that he always re-
,quested the,Umon to expunge from its proposals any provision for, a contract for
,a fixed ',period. Nor would the respondent ever consent to the transaction of
union business on company, property even though it, was done on an employee's
,time. The reasons given by the respondent for its position as to these matters
were not given in good faith. It declared that it could not grant minimum wage
rates because of the different types of persons hired, the variety of their work,
and the fact that some of them were students learning the business. ' Stern had
agreed to accept a rate below the standard required bys federal law and had
consented not to apply minimum wages to probationers. Moreover, the re-
spondent admitted that it already had minimum wage rates for its office
employes 20 which were much more than "were requested by Stern. It maintained
that it could not grant any limitation on daily hours, because of the uncertainty of
the time when work had to be done. "Yet time cards of the office employees
showed that very seldom did any of them work over 10 hours a day, and Stern
had agreed to a day of that length. 'The respondent's refusal to agree to a
-contract for a fixed period was without valid reason, since it had agreed to a
,1 year contract during. the joint conferences and later signed a 16 months con-
tract covering its production employees, and the purpose of the act cannot be
made effective without a contract for a fixed period. This refusal in itself was a
refusal to bargain within the meaning of the Act. Neither could it justify
its refusal to permit the transaction on its property of union business on behalf
of its office employees, if it was done on an employee's time, since it granted
that privilege in its,production employees' contract and its practice had been
to allow the office employees to exercise this privilege.
Other facts that tend to show a lack of bargaining on the part of the respond-
ent can readily be recalled. Thus, the respondent insisted that either its own
counterproposal, which dealt, among other matters, with the conditions of
,employment just considered, would have to be accepted without a change or
there would be no contract. Likewise, the respondent always failed to answer
the Union's requests for conferences 2i Moreover, it was not until after the May
14, 1941 conference that Carey ceased disclaiming authority to bind the respond-
ent in its negotiations with the Union zz And, again, after agreeing to the
'terms:of a proposed joint contract for production and office employees, it refused
to agree to some of those same terms in a separate proposal for the office
'employees.
These facts, when considered in the light of the respondent's opposition to
union activity by, of on behalf of, its office employees, make it clear that the
respondent refused to bargain with the Union. Various occurrences show this
'opposition. For example, at the first conference after the strike, Ellerd, the
respondent's vice-president, told Stern that the respondent would never recognize
the Union for the office employees A day or two before the election, Carey, the
supervisor of the office employees, talked with several of them, and threatened
them with the loss of promotions- and other assistance, if the Union won the
election. He said further that, if the Union was successful, the respondent
would not have the same respect for the office employees as formerly and they
would'be treated more or less as orphans. Moreover, at the first conference after
w Compare N. L. R B. v. Knoxville Publishing Co, 124 F. ( 2d) 875.
21 See In the Matter of Northwestern Cabinet Company et al., 38 N. L. R. B. 357.
21 See Great Southern Trucking Co v. N. L. R. B., 127 F. (2d) 180.
1426 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
certification, Frederick stated that the only reason the respondent's representa-
tives were at the meeting was that the law required,their attendance, that he
did not believe anything would be accomplished, and that he thought a lot of time
would be wasted by holding the conference.
The undersigned finds, on all the facts, that the respondent on November 3, 1939,
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
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
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has engaged in a course of conduct-
calculated to hinder and, obstruct its employees in their right to self-organization
and to intimidate its employees in the exercise of the rights guaranteed them in
Section 7 of the Act It will therefore'be recommended that the respondent cease
and desist from such actions.
It has been found that the respondent has refused to bargain collectively with
the Union as the representative of a majority of the employees in an appropriate
unit. It will therefore be recommended that the respondent, upon request, bargain
collectively with the Union.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS of LAw
1. United Packinghouse Workers of America, Local 49A, C. I. 0., is a labor
organization , within the meaning of Section 2 ( 5) of the Act.
2. By interfering with, restraining , and coercing 'its employees in the exercise
of 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).
3. By refusing to bargain collectively with United Packinghouse Workers of
America, Local 49A, C. I. 0., as the exclusive representative of their employees
in the appropriate unit, the respondent has engaged in, and is engaging in, unfair
labor practices , within the meaning of Section 8 ( 5) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
, commerce , within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the•respondent, Armour and Company of Delaware, and
its officers,'agents, successors, and assigns, shall:
1. Cease and desist from : '
ARMOUR AND COMPANY OF DELAWARE 1427
(a) Refusing to bargain collectively 'ith United Packinghouse Workers of
America, Local 49A, C. I. 0., as the exclusive representative of all the clerical
employees of the respondent at its branch house at 147-07-94th Avenue, Jamaica,
New York, and at 96 North Sixth Street, Brooklyn, New York, including book-
keepers, cagemen, switchboard operators, and general office help, but excluding
the manager, assistant managers, office managers, inside salesmen,, outside,sales-
men, and peddler salesmen ;
(b)' In any other manner interfering with, restraining,' or coercing its employees
in the exercise of- the right of self-organization, to form, join, 'or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities 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 undersigned finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively with United Packinghouse Workers of
America 49A, C I. 0., as the exclusive representative of all the clerical employees
of the respondent at its branch houses at 147-07-94th Avenue, Jamaica, New
York and at 96 North Sixth Street, Brooklyn, New York, including bookkeepers,
cagemen, switchboard operators, and general office help, but excluding the mana-
gers, assistant managers, office managers, inside salesmen, outside salesmen, and
peddler salesmen ;
(b) Post immediately in conspicuous places in its branch houses at 147-07-
94th Avenue, Jamaica, New York, and at 96 North Sixth Street, Brooklyn, New
York, 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 conduct from which it ,is recommended that it cease and desist in
paragraphs 1 (a) and (b) of these recommendations; (2) that the respondent
will take the, affirmative action set forth in paragraph 2 (a) of these recom-
mendations.
(c) Notify the Regional Director of the Second Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is also recommended that, unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that, it will comply with the foregoing recommendations; the
National Labor Relations Board issue an order requiring it,to take the action
aforesaid
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 to the Board, pursuant to Section 32 of Article II, of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., an original and four copies of a statement in writing setting 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 any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
-within ten (10) days after the date of the order transferring the case to the Board.
CARL C. WHEATON,
Trial Evaminer.
Dated December 16, 1942.
521247-43-vol 48-91