Armour & Co.

National Labor Relations Board - Board Decisions

Nov 29, 1938

9 N.L.R.B. 1295 (N.L.R.B. 1938)

In the Matter of ARMOUR & COM PANY and AMALGAMATED MEAT CUT-
TERS AND BUTCHER WORKMEN of NORTit AMERICA, LOCAL No. 641
In the Matter of ARMOUR & COMPANY and INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL No. 1
In the Matter Of ARMOUR & COMPANY and UNITED PACKING HOUSE
WORKERS LOCAL INDUSTRIAL UNION No. 300
III the Matter of ARMOUR & COMPANY and UNITED PACKING HOUSE
WORKERS LOCAL INDUSTRIAL UNION No. 300
Vases Nos. C-6-;7, C--648, .C-6./9, and R-'710, respectively. -Decided
November 09, 79-38
Meat Packing Industry-Interference, Re$travnt, and Coercion-Conzpany-
Donminated Union: domination of and interference with formation and adminis-
tration, support , intimidation and coercion to join ; disestablished, as agency for
Rcollective bargaining-Invesrli!lation of Representatives. controversy concerning
representation of employees. controversy concerning appropriate unit; rival or-
ganrza,hons-Units Appropriate foi Collective Bai`gaintnt. craft or plant; election
to der ermine ; where other considerations determinative of appropriate unit are
such that either of two contentions is valid, decisive factor is the desire of the
'employees involved-E'Iect,m,s Ordered. company-dominated union excluded from
ballot.
Mr. Newell Fowler, for the Board.
Yearn en, Gove c6 Huffman, by Mr. A-enaz Huffman, of Denver,
Colo., and Mr. Walter C. Kirk, of Chicago, Ill., for the respondent.
Mr. Winston S. Howard, of Denver Colo., for the Association.
Mr. harry E. Selekman, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On July 23, 1937, the Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 641, herein called the Amalga-
mated, filed with the Regional Director for the Seventeenth Region
(Kansas City, Missouri ) charges that Armour & Company, Denver,
Colorado, herein called the respondent , had engaged in and was en-
9 N L. It. a. No 121.
1295
1296 NATIONAL LABOR RELATIONS EOAI.I)
gaging in unfair labor practices within the meaning of Section 8 (1)1,
(2), and (3) of the National Labor Relations Act, 49 Stat. 449, herein,
called the Act. On August 6, 1937, the International Union of Oper-
ating Engineers, Local No. 1, herein called the International, filed with,
the same Regional Director charges that the respondent had engaged
in 'and was engaging in unfair labor practices within the meaning of
Section 8 (1) and (2) of the Act. , On November 16, 1937, the National
Labor Relations Board, herein called the Board, issued an order trans-
ferring the proceedings to the Twenty-second Region (Denver, Colo-
rado). `
On November 30, 1937, the United Packing House Workers Local
Industrial Union No. 300, herein called the United, filed with the
Regional Director for the Twenty-second Region a petition alleging
that a question affecting commerce had arisen concerning representa-
tion of employees of the respondent and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of
the Act:
On January 22, 1938, the United filed with the same Regional
Director charges that the respondent had engaged in and was engag-
ing in unfair labor practices within the meaning of Section 8 (1)
and (2) of the Act. On January 25, 1938, the Board, acting pursuant
to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice,,
and acting pursuant to Article III, Section 10 (c) (2), and Article IT,
Section 37 (b), of said Rules and Regulations, ordered that the repre-
.entation case be consolidated for the purpose of hearing with the
three cases involving charges which had been filed by the Anialga-
,nated, the International, and the United, respectively. On January
27, 1938, the Amalgamated filed with the same Regional Director
amended charges that the respondent had engaged in and was engag-
ing in unfair labor practices within the meaning of Section 8 (1)
and (2) of the Act.
Upon the charges filed by the International and the United and
the amended charges filed by the Amalgamated, the Board, by Aaron
W. Warner, the Regional Director for the Twenty-second Region,
issued its complaint, dated January 27, 1938, against 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 (2) and Section 2 (6)' and ;(7) of the Act.1 A copy
of the ,complaint, 'accompanied by notice of hearing, was duly served
upon the respondent, the International, the United, the Amalgamated,
and the Employees Mutual Bargaining Association, herein.called the
Association.
DECISIONS AND ORDERS 1297
The complaint alleged, in substance, that the respondent had
dominated and interfered with the formation and administration of-
the Association; that the respondent had allowed and permitted its.
supervisory employees and other employees to organize, promote, and
encourage membership in the Association ; that the respondent had
threatened and coerced its employees into joining the Association;
and that by these acts the respondent had interfered-with, restrained,
and coerced its employees in the exercise of their rights guaranteed
to them in Section 7 of the Act.
On February 3, 1938, the Association filed an answer denying that
the respondent had formed, dominated, or interfered with It. On
February 4, 1938, the respondent filed an answer admitting its inter'
state activities, but denying that 'it hid engaged in any unfair labor
practices. On February 5, 1938, the Regional Director issued and
served upon all the parties a notice of postponement of hearing on the.
consolidated cases. Pursuant to the notice, a heiiring was held on
,,8, 9, and 10, 1938, at Denver, Colorado, before' Joseph E.February 7,
Keirnan, the Trial Examiner duly designated by the Board. At the
commencement of the hearing, the Association moved to intervene.
This motion was allowed by the Trial Examiner. The Board, the
respondent, and the Association were represented by counsel and'
participated in the hearing. Full opportunity to be heard, to examine-
and cross-examine witnesses, and to introduce evidence bearing on the-
issues was afforded all parties at',the hearing.' The respondent moved
that the allegations of the complaint be made more specific, that the
petition be 'dismissed, and that separate hearings be held on the
charges filed by each of the organizations. The Trial Examiner-
denied these motions. During the course Of the hearing, the Trial
Examiner made several other rulings on motions and objections to
the- admission of evidence. The Board'-has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby afl'irin'ed.
The Trial. Examiner' filed his Intermediate Report, dated May 9,.
1938, in which he found that the respondent' had engaged, in, unfair
labor practices affecting commerce within the meaning of Section
8 '(1) and '(2) and Section 2 (6) and (7)• of the Act. On May 23,.
1938, the respondent filed exceptions' to the Intermediate Report and,
a brief in support of the exceptions. On August 31, 1938, respondent
filed a supplemental brief. It also requested an opportunity to argue.
orally ;before the Board. All parties were duly notified that a hearing
would be held before the Board on June 23, 1938, in Washington,
D. C., for the purpose of oral argument. Nome of the parties appeared'
for the oral- argument.
1298 NATIONAL LABOR RELATIONS BOARD
The Board has considered the exceptions to the Intermediate Report
.and the briefs filed by the respondent and finds the exceptions to
be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Armour & Company, it Dela%v-are corporation, operates at Denver,
Colorado. a meat packing plant at vv-h â–º clt it purchases and slaughters
livestock and processes and distributes various.proclucts and byprod-
ucts. Although the livestock slaughtered at the Denver plant is pur-
chased principally through commission men doing business at Denver,
approximately 50 per cent of the livestock originates outside of Colo-
rado. The respondent processes annually at the Denver plant in
excess of 50,000,000 pounds of meat, approximately 60 per cent of
such products being shipped outside of Colorado.
Approximately 375 production and maintenance workers are em-
ployed by the respondent at the Denver plant.
H. I I-IE 'ORGANIZA'ITONS INVOL\'EI)
United Packing House Workers Local Industrial Union No. 300 is
a labor organization affiliated with the Committee for Industrial
Organization, admitting to its membership all employees of the
respondent, excluding supervisory and clerical employees.
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local No. 641, is a labor organization affiliated with the
American Federation of Labor. It admits to its membership all ,pro-
clnction and maintenance employees of the respondent, excluding
supervisory and clerical workers, engineers, firemen, and helpers.
International Union of Operating Engineers, Local No. 1, is a
labor organization affiliated with the American Federation of Labor.
Tt admits to its membership all employees in the engine and boiler
rooms of the respondent.
Employees Mutual Bargaining Association is an unaffiliated labor
organization, admitting to its membership all production and main-
tenance employees of the respondent, excluding supervisory
employees.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and adminis-
tration of Employees Mutual Bargaining Association.
From 1921 until 1937 employment problems at the Denver plant
were dealt with by a Conference Board, which was composed of four
employees elected by employees and four persons appointed by the
DECISIONS AND ORDERS 1299
management. The Conference Board held its meetings on the prem-
ises of the respondent and during working hours. However, shortly
after the constitutionality of the National Labor Relations Act was
upheld by the Supreme Court of the United States in a series of cases
decided April 12, 1937, Thomas Tynan, the Denver plant general
manager, informed the Conference Board members that the respond-
ent was terminating the operation of the Board and that the em-
ployees could form any organization they desired. Tynan took this
action pursuant to instructions which he had received from the
Chicago office of the respondent.
About July 1937, the Association came into existence. John Nor-
den, the president of the Association, stated at the hearing that the
formation of the Association was the result of conversations among
the employees during lunch-hour periods, at which time they ex-
pressed a desire to have an organization similar to the "Security
League" at the plant of Swift & Company in Denver. He stated that
these conversations culminated in a meeting which was held in the
Y. M. C. A. Building in Denver during the second week in July 1937
at which the Association was organized and officers were elected.
However, irrespective of who initially conceived the idea of the Asso-
ciation, the testimony at the hearing establishes that the respondent,
through its supervisory employees, actively encouraged employees to
attend the organizational meeting at the Y. M. C. A. and dominated
and interfered with the administration of the Association after it was
formed.
Manuel Rubio and George Becker, employees in the hide-cellar de-
partment, testified that their foreman, Forest Carper, informed them
of the meeting at the Y. M. C. A., stated that the respondent was
holding the meeting, and told them to attend. Sam Maestes, of the
same department, testified that Carper asked the employees of the
department whether they were going to the meeting. The three
employees each stated that after the Association was formed Eugene
Smith and Harris Andrews, representatives of the Association,
solicited membership in the Association among the employees in the
hide-cellar department during working hours while Carper was
present and with his consent. Indeed, Maestes testified that he was
called from his work by Carper to meet Smith and Andrews.
Lucille Guida and Clara Guida testified that Earl Cox, the foreman
of the hog gang, advised them to go to the meeting. T. C. McCaslin,
an employee in the freezing department, stated that Cox and Dewey
Galloway, the foreman of the casing department, stood near the time
clock and mentioned the meeting to the employees. Jesse Di Pace
testified that she was also asked to go to the meeting by Galloway.
Ben Soper and Frank Pettit, employees under the supervision of
George Porter, said that Porter asked them to join the Association.
134068-39-vol. ix-83
1300 'lATIONALIL-kBOR'RELATIONS' BOARD
-Soper; a member of the International, stated that Porter warned him
not to solicit members during working hours and advised him thait
paying dues to his union was a waste of money. Arthur Hilliard,
another employee under Porter, testified that he joined the Association
because of his "apprehension" caused by the fact that he "noticed
familiar faces disappearing because they didn't join and thought
that [he] had better climb on the band wagon while the climbing was
good."
Edward Williams and Thomas Porter, employees in the beef, sheep,
and calf-dressing room, testified that their foreman, Elmer Bressman,
advised them to go to the meeting at the Y. M. C. A. and also urged
them to join the Association. Porter stated that George Stokes, a
representative of the Association, solicited membership in the Associa-
tion and collected dues while Bressman was only a short distance
away. Gene Galloway, another employee, testified that Bressman
told him that a meeting was to be held at the Y. M. C. A. to organize
a union and that he could join it if he desired to do so.
All the supervisory employees above mentioned denied that they
-aided or participated in the formation or administration of the Asso-
-ciation and further denied that they had made the remarks or taken
the action testified to by the various employees. However, as set
forth above, numerous witnesses testified, with regard to each of the
supervisory employees, to statements and acts constituting domination
of and interference with the formation and administration of the
Association. The Trial Examiner, who was in•a position to judge the
credibility of the various witnesses, found that the respondent, through
its supervisory employees, had so dominated and interfered with the
Association. In the light of all the facts, we are unable to accept the
denials made by the various supervisory employees.
We find that the respondent, through its supervisory employees, has
dominated and interfered with the formation and administration of
the Association by encouraging attendance at its meetings, by urging
employees to join the Association, and by permitting representatives
of the Association to solicit membership and collect dues on company
property during working hours.
J
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find ,.that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent 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.
DECISIONS AND ORDERS
V: THE REMEDY'
,1361
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from engaging
in such practices. Moreover, we shall order the respondent to take
certain affirmative action which we deem necessary to effectuate the
policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Association. We shall
order the respondent to withdraw all recognition from and dises-
tablish the Association as the representative of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
VI. THE QUESTION CONCERNING REPRESENTATION
During the early part of 1937 the Amalgamated began an active
organizational campaign among the respondent's employees and, in
May 1937 began negotiations with the respondent for a collective
bargaining agreement. The negotiations, however, proved unsuc-
cessful. • On August 26, 1937, the respondent agreed to recognize the
Association as the bargaining representative for its members and
posted a notice to this effect throughout the plant. On November
30, 1937, the United, which began organizing employees of the
respondent in July 1937, filed a petition with the Board alleging
that it represented a majority of the employees of the respondent,
excluding supervisory and clerical employees,' and seeking recogni-
tion as the exclusive bargaining representative of such employees.
On January 6, 1938, the International unsuccessfully sought to have
the respondent recognize it as bargaining, representative for the
engineers, firemen, and helpers in the engine- and boiler rooms. .
We find that a question has arisen concerning the representation
of employees of the respondent. . `
VII. THE EFFECT . OF THE QUESTION CONOERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with ,the operations of the respond-
ent described in Section I above, has 'a close , intimate , and substan-
tial relation to trade, traffic , and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce. .
1302 NATIONAL LABOR RELATIONS BOARD
VIII. THE APPROPRIATE UNIT
The United claims that all the packing-house employees of the
respondent, excluding supervisors and clerical employees, consti-
tute an appropriate unit. The respondent concurs in, the appropri-
ateness of such a unit. The Amalgamated would exclude from the
unit the engineers, firemen, and helpers in the engine and boiler
rooms. The International asks,for a separate bargaining unit com-
posed of the engineers, firemen, and helpers in the engine and boiler
rooms.
Henry Herbolsheimer, business representative of the International,
who testified in support of the International's contention for a sepa-
rate unit, stated that the International had claimed jurisdiction over
the engineers, firemen and helpers since 1902; that it has had mem-
bers in the respondent's plant for more than 20 years ; and that it has
as members at the present time 6 of the 11 such employees in the
respondent's plant. The International on January 6, 1938, unsuccess-
fully sought recognition as bargaining representative of the employ-
ees-in question. The United contends that most effective bargaining
requires the inclusion of such employees in one unit with the other
employees of the respondent.
A consideration of all the facts leads us to the conclusion that
the engineers, firemen, and helpers in the boiler and engine rooms
could appropriately operate either as a separate unit or as a part
of the larger unit. In similar cases,' we have held the desires of
the employees to be the determining factor. Although the Inter-
national claimed to represent a majority of the engineers, firemen,
and helpers in the boiler and engine rooms, it did not submit in evi-
dence any membership or authorization cards. We find, therefore,
that the desires of such employees can best be determined by an
election by secret ballot.
We find that an election is also necessary to determine the desires
of the other employees of the respondent concerning representation.
The United claimed to have 230 members among the employees of
the respondent, but introduced no membership cards or other simi-
lar evidence. The Amalgamated introduced no evidence as to the
number of employees it represented.
In the one election, the engineers, firemen, and helpers in the
boiler and engine rooms will vote to determine whether they desire
to be represented by the United or by the International, or by
neither. In the other election, all the packing-house workers, ex-
cluding supervisors, clerical employees, and engineers, firemen, and
' See Matter of Ailts-Chalmers Manufacturing Company and International Union , United
Automobile Workers of America , Local No. 248, 4 N. L. R. B. 159; and Matter of Armour h
Company and International Association of Machinists , Local 92, 5 N. L. R. B. 535.
DECISIONS AND ORDERS 1303
helpers in the boiler and engine rooms, will vote to determine
whether they desire to be represented by the United or by the Amal-
gamated, or by neither. If both groups of employees 'choose the
United they will together constitute a single bargaining unit. If
they do not, each group choosing to be represented by a union will
constitute a separate bargaining unit.
IX. THE DETERMINATION OF REPRESENTATIVES
We shall not at this time fix the date for the holding of the elec-
tions referred to in Section VIII above since we are of the opinion
that the elections should not be held until sufficient time has elapsed
to permit a free choice of representatives unaffected by the respond-
ent's unfair labor practices. We shall, at the time we specify the
date on which the elections are to be held, also specify the date on
the basis of which eligibility to vote in the elections, shall be
determined.
Since we have found that the respondent dominated and inter-
fered with the formation and administration of the Association, no
provision shall be made for the designation of the Association upon
the ballots.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the .following :
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North
America, Local No. 641; United Packing House Workers Local In-
dustrial Union No. 300; International Union of Operating Engi-
neers, Local No. 1; and Employees Mutual Bargaining Association,
are labor organizations within the meaning of Section 2 (5) of
the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of the Employees Mutual Bargaining Asso-
ciation, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the National Labor Rela-
tions Act.
3. The respondent, by interfering with,-restraining, and: coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (1) of
the National Labor Relations Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the National Labor Relations Act.
5. A question affecting commerce has arisen concerning the repre-
sentation of the employees of Armour & Company, Denver, Colorado,
1304 NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 9 (c) and. Section 2" (6) and (7) of
the National Labor Relations Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10- (c) of the National Labor Relations'
Act, the National Labor Relations Board hereby orders that the
respondent, Armour & Company, Denver, Colorado, and its officers,
agents, successors and assigns shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the
administration of Employees Mutual Bargaining Association, or the
formation or administration of any other labor organization of its"
employees, and from -contributing support' to, Employees Mutual
Bargaining Association, or to any other labor organization of its
employees ;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist any labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing 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) Withdraw all recognition from Employees Mutual Bargain-
ing Association as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and completely disestablish Employees
Mutual Bargaining Association as such representative;
(b) Immediately post notices in conspicuous places throughout
the plant and maintain such notices for a period of thirty (30) con-
secutive days, stating (1) that the respondent will cease and desist
as aforesaid, and (2) that the respondent will withdraw all recognition
from Employees Mutual Bargaining Association as the representa-
tive of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, and,
that Employees Mutual Bargaining Association is completely dis-
established as such representative;,
(c) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply therewith.
DECISIONS AND ORDERS 1305
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purpose of collective
bargaining with Armour & Company, Denver, Colorado, elections
by secret ballot shall be conducted at such time as the Board will in
in the future direct, under the direction and supervision of the
Regional Director for the Twenty-second Region, acting in this mat-
ter as agent of the National Labor Relations Board, and subject
to Article III, Section 9, of said Rules and Regulations :
(1) Among all the packing-house workers of the respondent, who
were employed by the respondent during a pay-roll period which we
shall in the future specify, excluding supervisory and clerical em-
ployees, engineers, firemen, and helpers in the engine and boiler rooms,
and those who have since quit or have been discharged for cause, to
determine whether they desire to be represented by United Packing
House Workers Local Industrial Union No. 300 or by Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No. 641,
for the purpose of collective bargaining, or by neither;
(2) Among the engineers, firemen, and helpers in the engine and
boiler rooms, who were employed by the respondent during a pay-roll
period which we shall in the future specify, excluding those who have
since quit or have been discharged for cause, to determine whether they
desire to be represented- by International Union of Operating Engi-
neers, Local No. 1, or by United Packing House Workers Local In-
dustrial Union No. 300, for the purpose of collective bargaining,
or by neither.
Mr. EDWIN S. SMITH , dissenting in part :
For reasons similar to those given by me in other dissenting state-
ments 2 I believe the Board should here find that the unit claimed
by the United is the appropriate bargaining unit.
There is no history of collective bargaining by the International
despite its claim of membership among employees of the plant
extending over a long period.
2 See Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local No. 248, 4 N. L. R. B 159; and Matter of Armour
cG Company and International Association of Machinists , Local 92, 5 N L. R . B. 535.