Swift and Co.

National Labor Relations Board - Board Decisions

Jul 20, 1945

62 N.L.R.B. 1360 (N.L.R.B. 1945)

In the flatter of SWIFT AND COMPANY' and FEDERAL LABOR UNION, No.
22685, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, AND
ANGUS TILLIS
Case No. 10-C-1470.-Decided July 20, 1945
DECISION
AND
ORDER
On December 7, 1944, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had not en-
gaged in the unfair labor practices alleged in the complaint, and recom-
mending that the complaint be dismissed, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, counsel for the Board filed
exceptions to the Intermediate Report and a supporting brief, and the
respondent filed a brief in reply thereto. No request was made for oral argu-
ment before the Board at Washington, D. C., and none was held. The Board
has reviewed the rulings of the Trial Examiner and finds that no prejudi-
cial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions and
briefs of the parties, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner insofar
as they are consistent with our Decision and Order.'
We agree with the Trial Examiner that Tillis' separation, was not viola-
tive of the Act and that the complaint should be dismissed in its entirety.
I The amended charge, complaint and notice of hearing thereon, incorrectly designated the respond-
ent as Swift and Company, Feitilizer Works. At the beginning of the hearing, Board's counsel moved
to amend the complaint to read Swift and Company. The motion was granted by the Trial Examiner,
without objection
The correct citation foi Case No R-3657, referred to in footnote 5 of the Intermediate Repoit,
is 40 N L R B 931 and not 49 N L R B , No 163 Also, on page 1364, line 17 of the report, the
Trial Examiner inadvertently indicated that Tillis was selected by the Union as a member of its
negotiating committee in December 1943 instead of December 1942
62 N L R. B.1 No. 185.
1360
SWIFT AND COMPANY " 1361
However, since the evidence in the record, especially Tillis' own testimony,'
supports the respondent's claim that, at the time it refused to modify the
proposed work schedule to meet Tillis' objection, he quit his job, it appears
that no situation giving rise to an issue of discrimination ever arose. Ac-
cordingly, we find it unnecessary to pass upon the other questions discussed
by the Trial Examiner.
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 complaint against the respondent, Swift and Company,
Agricola, Florida, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. T. Lowry Whittaker, for the Board.
Messrs. John P. Staley and William F. Joy, of Chicago, Ill., for the respondent.
Mr Harry Shields, of Ft. Meade, Fla., for Local 22685
Mr. R 0 Stewart, of Mulberry, Fla, for Chemical Workers District Council #1
Mr. Angus L. Tillis, of Ft. Meade, Fla, for Angus L. Tillis
STATEMENT OF THE CASE
Upon an amended charge duly filed on August 19, 1944, by Federal Labor Union No.
22685, affiliated with the American Federation of Labor, herein called the Union,
and Angus Tillis, the National Labor Relations Board, herein called the Board, by
the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint
dated August 22, 1944, against Swift and Company, Fertilizer Works, Agricola,
Florida, 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 (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice
of hearing thereon, were duly served upon the respondent, the Union, and Angus Tillis.
With respect to the unfair labor practices, the amended complaint alleged in sub-
stance that the respondent : (1) from about December 1942, by its officers, agents,
representatives,, and employees more particularly by D. M. Wright, Warren M.
Doke,' W. A. Hodges, W. L Willis, and W D. Calverley, committed, authorized,
instigated, and acquiesced in statements and conversations discouraging its employees
in their membership and activities in the Union, and their concerted activities for
the purposes of collective bargaining; (2) discharged employee Angus Tillis on or
about October 16, 1943, and thereafter refused to reinstate him because he engaged in
concerted activities with other flotation plant operators, or employees, or maintained
his membership and was active in the Union; and (3) by such acts, interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
3 Tillis' testimony concerning his position at the time in question , included a statement that, if
the "boys didn ' t work" the new schedule , it was his intenton to quit and go to work somewhere
else. "... It might be taken as though I was going to quit because I said , I wouldn't work that-
schedule. I couldn't work it " This testimony is also consistent with the otherwise corroborated testi-
mony of Manager Wright, whom the Trial Examiner generally credits , that Tillis stated that "he
would work one more shift , that then he was through."
1 The complaint incorrectly referred to these individuals as R. C Wright and Warren E. Doke.
I
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held at Ft Meade, Florida, on September 28, 29,
and 30, and October 2 and 3, 1944, before the undersigned, W. P Webb, the Trial
Examiner duly designated by the Chief Trial Examiner The Board and the respond-
ent were represented by counsel, the Union by its representatives, Angus Tillis by
himself, 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 the parties. ,On September 9, 1944, the respondent filed its answer with the
Regional Director, admitting certain allegations of the complaint in respect to the
character and operation of its business, but denying the commission of any unfair labor
practice. The answer averred that Angus Tillis voluntarily resigned his position with
the respondent and has not subsequently requested reinstatement but did submit a
written application to the respondent for a position as a new employee.
On September 11, 1944, the respondent filed with the Regional Director written
motions : (a) to dismiss the complaint on the ground that it fails to state any material
facts constituting any unfair labor practice within the meaning of the Act, and (b)
to make the complaint more specific, definite and certain. These motions were referred
to the Trial Examiner for ruling. Ruling on the first motion was reserved and is dis-
posed of as indicated hereinafter. The second motion was denied.
A motion by the Board's counsel to conform the pleadings to the proof in respect
to formal matters was granted by the Trial Examiner over the objection of the
respondent's counsel. The opportunity to argue orally before the Trial Examiner at
the conclusion of the hearing was waived by the parties. A brief was filed with the
Trial Examiner by counsel for the respondent on October 23, 1944. During the course
of the hearing, counsel for the respondent requested permission to file an application
to take the deposition of one W. L. Willis at Houston, Texas. The request was granted
and the deposition of Willis was taken at Houston, Texas, on October 25, 1944, and
has been made part of the record in this case.
Upon the record thus made and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT2
The respondent, Swift and Company , is an Illinois corporation, having its principal
office and place of business in Chicago, Illinois, where it is engaged in the general
packinghouse and fertilizer business. The respondent owns and operates a phosphate
mine and fertilizer works at Agricola, Florida, where it is engaged in the mining
and processing of phosphate rock and the manufacture of fertilizer. From 1938 until
about July 1944, the respondent was duly authorized to do business in the State of
Florida under the trade name and style of Swift and Company, Fertilizer Works,
which is a division of Swift and Company. Since July 1944, the mine has been known
as Swift and Company Rock Mine, and the fertilizer works as Swift and Company,
Plant Food Division. The principal raw materials purchased and used by the respond-
ent at its Agricola plant are super-phosphate, sulphate of ammonia, nitrate of soda,
tankage, sulphate of potash, muriate of potash, etc. Purchases of such material for the
preceding 12-month period exceeding $130,000 in value, of which approximately 80
percent was obtained from sources outside Florida. Phosphate rock produced at the
plant during that period exceeded $500,000 in value, of which approximately 85 per-
cent was shipped and distributed to points outside Florida. During the same period,
fertilizer was manufactured in excess of $300,000 in value, of which none was shipped
2 Tbe following facts were stipulated by the parties.
SWIFT AND COMPANY 1363
to points outside Florida. The respondent's Agricola plant is not engaged in the pro-
duction of war material. The respondent employs approximately 300 persons at its
Agricola plant. The respondent admits for the purpose of the instant proceedings
that it is engaged in commerce within the meaning of _ the Act The instant proceed-
ings are concerned only with the Agricola plant 3
II. THE ORGANIZATION INVOLVED
Federal Labor Union No. 22685, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the respondent.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the Board's Decision and Direction of Election, issued on April 28, 1942, Case
No. R-3657,6 the Board ordered an election in the respondent's Agricola plant In
determining the appropriate unit, the Board stated, in respect to the Flotation Plant
Shift Foremen, as follows:
In the flotation plant , phosphate sand is separated from ordinary sand by flotation
agglomeration. The plant is in the charge of one W. D Wilson, whom the Com-
pany and the United have stipulated to exclude. Under Wilson are four shift
foremen, each with a crew of four or five men. The shift foremen have the same
authority to discharge or make recommendations as do the other supervisors.
They are responsible for the operation of the plant on their shifts In view of their
supervisory character, they will be excluded from the bargaining unit
On May 22, 1942, an election was held in the Agricola plant, which was won by
the Union. On July 10, 1942, the Union was certified by the Board as the exclusive
representative of the respondent's employees, within the appropriate unite for the
purposes of collective bargaining in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
3 The Agricola plant consists of a fertilizer plant, dryers, quartets, rock storage, machine shops,
storeroom, electric shop , carpenters sliop, laboratory , commissary , filling station and office and
clerical forces The respondent's phosphate mine is about 10 miles from the Agricola plant and they
are connected by the respondent 's own railroad line.
4 About 1939 the American Federation of Labor issued a Federal Labor Chartei known as Phos-
phate Workers Local Unions. Later there was established by the A F. of L. what was known as
Tnternational Council of Chemical and Allied Industries unions to cover employees in the Chemical
industry In September 1944, this Council became International Chemical Workers Union, which was
chartered by the A F of L Seven locals , in the phosphate area, have been set up by this Interna-
tional These locals have formed what is known as Chemical Workers District Council # 1, which
is composed of representatives from each local Local 22685 was set up for the respondent's
employees only
6In the Matter of Swift & Company, Fertilwci Wooks, and United Phosphate Wotkcis' Local
Union No 22685, A F of L, 40 N L. R B 931.
'The Board found the appropriate unit to be as follows
All employees of the Company, including sample men, the construction - department working fore-
man (McCauley), the mechanical - department working foreman ( Collier ), dragline operators, and
prospectors , but excluding managerial , clerical , and supervisory employees , firemen and engine-
men and the flagman Pierce , the Works Manager , the sales force, commissary and filling station
employees , chemists , the chief electrician , the mining engineer , horticulturists , foremen in the
rock-dryer plant, the construction foreman , master mechanic , the assistant master mechanic, the
mine superintendent , the assistant mine superintendent , the chief supervisor of the flotation plant,
the prospector foreman , the truck -repair crew foreman , the supervisors in the fertilizer plant
(Denham, Wright and Manley ), the assistant foreman of the construction department (Yar-
boraugh ), the mine-pit foremen (Lund and Drawdy), and the flotation -plant shift foremen, con
stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act (Emphasis supplied.)
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 1, 1943, the respondent and the Union entered into a written agree-
ment covering the employees certified by the Board on July 10, 1942, as constituting
the appropriate unit. It will be noted that flotation-plant shift foremen were excluded
from the appropriate unit. This agreement provided, inter alia, for a procedure for
handling grievances.' This agreement was to remain in effect for 1 year, with auto-
imatic renewal from year to year, subject to reopening by either party on 30 days'
notice prior to the expiration of any year On April 4, 1944, the respondent and the
Union entered into a similar contract, except that the latter contract contained a
maintenance of membership clause This contract was in force and effect at the time
of the instant hearing.
B. Events leading asp to the discharge of Angus Tillis
Tillis was first employed by the respondent in December 1941, as a mixer man in
the flotation plant at the mine. He joined the Union soon after going to work, and
voted in the plant election which was held on May 22, 1942. In the fall of 1942, he
was promoted to flotation plant shift foreman After this promotion he was no longer
within the bargaining unit as certified by the Board on July 10, 1942. In December
1943, subsequent to his promotion, he was selected by the Union as a member of a
committee to negotiate a contract with the respondent The committee, consisting
of Moffitt, a representative of the Union, Tillis and two other employees, went to
the plant office and met with D M. Wright, the respondent's general manager, and
W. D. Calverley, general superintendent of the mine. Wright asked Tillis what he
was doing there. Tillis replied that he came to help negotiate a contract. Wright
told Tillis that he was a supervisory employee and that he could not represent both
the respondent and the Union, and that he did not know he belonged to the Union.
Tillis replied that he did not know he was not supposed to belong to the Union
Wright then told Tillis that if he insisted on remaining a member of the Union, he
would have to demote him to a job within the bargaining unit, and that he could not
hold his present job and remain a member of the Unions At Moffitt's request Tillis
then left the meeting and took no further part in the negotiations. Tillis did not with-
draw from the Union but he did cease all union activities, except, as he expressed it,
to "sit in on the meetings " Tillis never informed Wright or Calverley that he had
decided to remain in the Union.
The grievance procedure outlined in the Union's contract of February 1, 1943, was
not strictly followed in the plant Such grievances as arose were of minor importance
and in order to expedite the settlement of them, Calverley and employee Harry
Shields, a drag line and locomotive crane operator, also president of the Union,
arranged for periodical meetings to be held at Shields home9 at night, for the purpose
of discussing and settling whatever grievances the employees might have The Union
authorized this procedure. The meetings were open to any member of the Union,
whether he had a grievance or not Calverley attended on behalf of the respondent
7The grievance procedure provided for in the contract was, in substance, as follows- There shall
be no strike or stoppage of work by members of Local 22685 or lockout by the respondent until the
grievance procedure has been exhausted, an employee having a grievance should first take it up with
his foreman, then, if no settlement has been reached, a committee of 2, with or without the em-
ployee, may take it up with the Division Superintendent , then a committee of 3, with or without
the employee may go to the plant superintendent , then , if it is still unsettled it should be referred to
a grievance committee of not more than 4 union representatives which can take it up with manage-
ment Any individual employee may handle his own grievance
8 Employee W E Doke. track foieman, had also joined the Union, but lie resigned in the summer
of 1943, after having been told by Wiiglit that lie could not continue in the Union and be a foreman
at the same time
6 Shields lived veiy near to the mine and flotation plant
SWIFT AND COMPANY 1365
and Shields represented the Union. Occasionally Warren Doke, the mine superin-
tendent, would be present Tillis also attended these meetings Theo Matthews and
L. B. Fussell, flotation plant shift foremen, were present on occasions as spectators
On one occasion after one of the meetings, Tillis said to Calverley "Mr. Calverley, I
don't want you to think that I am taking up all these grievances on myself, just
picking it up for the boys and trying to make a star out of myself. The boys came to
me with their grievances and asked me to see what can be done about it" Calverley
said that he did not care who the grievances came from so long as they were legitimate
grievances 10 Tillis was not a member of the Union's grievance committee, and had
no authority from the Union to handle grievances of the employees.
Prior to about September 18, 1943, the flotation plant ordinarily operated with
three shifts, 6 days a week and each shift foreman had his own crew. The shifts
were 8:00 a. m. to 4.00 p. m., 4:00 p. m. to midnight ; midnight to 8.00 a m. None
of the men worked more than 6 days a week. The plant did not run one day a week.
About September 18, 1943, the respondent found it necessary to change the schedule
in order to effect necessary repairs and because of a lack of feed in the deposit they
were then mining. More work was done at night in order to leave the day shift period
free for repairs None of the men were laid off, and none worked more than 6 days
a week, although the plant was working 7 days a week Neither the Union nor any
of the flotation plant employees made any complaint about this change in the schedule.'1
In the first part of October 1943, the respondent's head office in Chicago called for
increased production, and about that time the mining operation had gotten into a much
heavier feed area , therefore the respondent decided to operate, the flotation plant 4
hours a day and 7 days a week, and still not work the men over 6 days a week In
order to do this, it became necessary to change the schedule of work in the flotation
plant. About Wednesday October 13, 1943, Wright prepared a new schedule, herein
called the new schedule, and instructed W. R. Hodges, the respondent's research
chemist, to show it to the flotation plant shift foremen, who, at that time, were Tillts,
Matthews and Fussell Under the new schedule, Hyde, a feed tender, would become
a shift foreman for 3 days a week, making an extra half shift. Hodges told the fore-
men to show the new schedule to the men and if there were any objections to report
them to Doke, the mine superintendent That night, when Tillis came to work at
midnight, Foreman Fussell, whom Tillis was relieving, gave him a copy of the new
schedule, and told him what Hodges had said They discussed the new schedule and
both decided that they did not like it." The next morning, Thursday, October 14,
Tillis and Hyde informed Mine Superintendent Doke that if there was not some
change made in the new schedule, they could not work it. Doke said that he had not
seen the new schedule and he would see Calverley about it Tillis then went home.
Doke called up Calverley and told him what Tillis and Hyde had said Calverley then
reported to Wright that there were objections to the new schedule. Wright instructed
Calverley to call a meeting of the shift foremen for 4.00 p m, that day The shift
10 Calverley testified that he did not have Wright's approval for Tillis to attend these meetings,
but that he saw no harm in it as Tillis was a friend of Shield's and he could not very well object to
Tillis coming to Shields home Calverley told Tilis not to he present if Wright should happen to
come to one of the meetings.
11 Under the terms of the contract between the respondent and the Union, the right to determine
the work schedules was vested exclusively in the respondent
12 Under the new schedule, Tillis' shifts for the week would be from midnight Saturday, October
16, to 8:00 a .m. Sunday, then from 4 00 p .m to midnight on Sunday , Monday, Tuesday , Wednes-
day, Thursday, and Saturday, with Friday off This would give him 6 days of 8-hours a day. The
other shift foremen would work the same number of days and hours. The crews would work for
different foremen during the week.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen were notified'- and the meeting was held at the flotation plant. Those present
at the meeting were Wright, Calverley, Doke and the shift foremen, Tillis, Matthews
and Fussell Wright and Tillis did most of.the talking. Wright's testimony in respect
to this meeting reads as follows-
Mr. Tillis said that they didn't like the schedule, and that-I believe the expres-
sion was they couldn't work under it. We probably talked to a considerable
extent about the merits of the schedule. He [Tillis] expressed the opinibn that the
schedule was for the purpose of avoiding the presidential order, requiring payment
of double time on the 7th day, giving the impression that he considered that a
violation of the law, or something unethical. We argued back and forth consid-
erably on that thing. It took a very firm stand that we did not-that I did not
personally believe that men should work 7 days a week, and it was my opinion
that the presidential order was for the purpose of giving men one days rest a
week. He started calling in Mr. Hyde there, and I told him not to get Mr. Hyde
in, that we didn't want any others there; that this was-that I was talking strictly
to the flotation plant shift foremen . . . I think all your men belong to the Union"
... I then stated that it was up to the union to represent the men in any negotia-
tions ; that I was trying to work out a schedule satisfactory to the flotation plant
shift foremen; that the question of whether it is unsatisfactory to the flotation
plant shift foremen, that the question of whether it is satisfactory to the men would
be taken up later. I was unable to convince Mr. Tillis that that schedule that I
had made out would be satisfactory to them-the operators. I then suggested to
Mr. Tillis that he and the other flotation plant shift foremen try to work out a
schedule which would be satisfactory. Mr. Tillis stated that the schedule they all
wanted was a straight 7-day week. I believe Mr. Matthews and Mr. Fussell agreed
with Mr. Tillis that that is what they wanted. I told Mr. Tillis that I would not
agree to a 7-day work week; and I told him it was necessary to opertae that plant
7 days a week, 24 hours a day, to get our production, but that I could not work
the men 7 days a week And I told him that I would agree to any schedule satis-
factory to the operators and the men which covered those two features, namely
24 hours' operation of the plant 7 days a week, and one day rest per week for the
men in the plant. Mr. Tillis said that unless we gave them-that they operate the
plant 24 hours a day 7 days a week, we would either have to give him 7 days'
work a week or he would quit. I asked him to reconsider the matter and he
refused to consider the matter; insisted that he would-that if we operated the
plant 7 days a week, 24 hours a day, that he would quit. He then shook hands
with me, told me how he had enjoyed working with me, and hoped that we were
parting friends1s... he stated that he would work one more shift, that then he was
through.
The foregoing testimony of Wright was corroborated by Calverley, Hodges and
Doke According to Calverley, Wright stated at that meeting that" he would be glad
to accept any schedule that provided for the operation of the plant 7 days a week, but
not over 6 days a week for each man. Tillis stated that "If we don't get the 7 days
13 Calverley contacted Tillis at the home of Tillis' mother Tillis first declined to attend the meet-
ing because he was busy making some repairs to the house . Calverley offered to pay him for 2 hours
extra if he would attend Tillis agreed and went to the meeting . Tillis was due to go to work
at midnight that night
14 Wright was referring to the men who worked under the flotation plant shift foremen.
15 Tillis admitted that he shook hands with Wright when the meeting terminated , but stated that
it was Wright who said "I have enjoyed working with you."
SWIFT AND COMPANY 1367
and run the plant 7 days, I am quitting; I will finish the week, one more shift," and
I am through." Doke testified that after Wright told Tillis that he would not let any
of them work 7 days a week, Tillis replied, "Well, if you are going to do that I am
going to work one more shift and if you don't work me 7 days, I am going to quit "
Tillis then shook hands with Wright and told him "how glad he was he had worked
for him and appreciated what he had done for him." Hodges testified that Wright
assured the men that the plant was going to run 7 days a week but the men would
work only 6 days a week; that Tillis said if they were going to do that he would work
one more shift and quit 17
The following is Tillis' version of what transpired at the meeting. Wright asked
him what were the objections to the new schedule. Tillis replied that he did not like it
because he had to work different men on his shifts and the men did not like it because
they had to work with different shift foremen. Wright told him that it was his duty
to sell the idea to the men. Tillis said that he could not do it because they could not
work with different foremen. Tillis said that they would bargain with Wright but
the latter refused. Wright told Tillis that they were being pushed for production and
had to operate the plant 7 days a week. Tillis replied, "Well let us work the 7 days,
keep our own shift, work 7 days, and get paid for it, time and a half time for the 6th
day and double time for the 7th day." Wright refused and said that no double time
would be paid. Tillis then wanted to go back on the old schedule. Wright emphasized
that the plant had to run 7 days. Tillis replied, "Well, Mr. Wright, I don't know what
you are going to do ... the men just are not going to work that shift ... I am not, be-
cause I can't get the production that you are pushing me for-the results And if some-
thing goes wrong out there, why you come out here and, jump on me, you won't go to
my feed tender, you will want to know about my shift, what was the matter I didn't
get the results." Wright then asked Foreman Matthews and Fussell what they thought
about the new schedule. Matthews replied, "Just mark me down No " Fussell said
"Well I think about like they do." Wright said that a man just could not work 7 days
a week, it had been tried in Russia and proved to be a failure. Tillis then said that
he had been told by some employees of another plant near there that they were
working 7 days a week. Tillis said that his idea of the new schedule was that the
respondent was just trying to evade Executive Order No. 9240. Wright then said
"Well what do you propose to do-what do you all propose?-You boys belong to the
Union, all of you, don't you?" All three of the foremen replied in the affirmative. Tillis
said "I tell you Mr. Wright, just make out a new schedule, that the boys will be
satisfied with, or let us work the same schedule that we are now working" Tillis
then called Hyde, and when he started to come over, Wright said "No, no .. . go
back, Frank, we just want the operators-The Union will take care of you boys..""
Calverley then said "Mr. Wright, maybe we better sleep on this." Wright replied
"Yes, I think so . . we will want you boys to think this idea over." Tillis said, "Mr.
Wright, I have thought it over, my men have thought it over, and they just can't see
how they can work it and get along with these men ... I can't work the different men
and get those results . . . just make us out a new schedule or else continue working
on this old one." Wright said, "They are pushing us for production, I wish you all
would think it over." Doke said, "Well Angus, I can tell you one damned thing now
... a man can't work 7 days a week because I know, I have tried it." Tillis told Doke
that if they would let them try a 7-day week and they failed to get results, they would
16 Tillis lacked one shift to complete his week.
17 The other two foremen , Matthews and Fussell, objected to the new schedule but they did not
say they would quit if it were put into effect.
18 Frank Hyde was a feed tender at that time
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
try the new schedule Doke replied that Wright would not agree to it As the meeting
was breaking up, Wright said that he had an idea in mind that would get them a raise
in pay, and for them to be patient. Tillis further testified that if the "boys" did not
work the new schedule, it was his intention to quit and go to work somewhere else.
11 * .. It might be taken as though I was going to quit because I said, I wouldn't work
that schedule I couldn't work it."
After the meeting was over, both Calverley and Doke advised Wright to release
Tillis, as he had quit. Calverley's testimony in this connection, reads as follows :
Thursday night I believe, I actually suggested to Mr. Wright that we-and if I
may take Mr. Tillis up-I told Mr. Wright that he had quit or threatened to
quit on four preceding occasions that I could definitely remember ; and it got
kind of monotonous I knew he had expressed this complete dissatisfaction with
the company, and his working conditions ; and a man that wants to quit that
often, inside of a period of two or three months, I think he should be recognized
I had tried to smoothe over his attempted resignations on all previous occasions;
but that I believed was the first Mr. Wright had heard of those previous attempts.
That night Wright instructed Calverley to release Tillis. Wright testified that the
reasons for dispensing with the services of Tillis was "because we had decided to
accept his resignation, and we were glad to get rid of him; we didn't want him to
change his mind-Because he had demonstrated quite conclusively that lie didn't meet
up with the requirements of a supervisor." The next morning, Friday, October 15,
Hodges made up another schedule which also provided for the operation of the flota-
tion plant 24 hours a day and 7 days a week, but the men would work only 6 days a
week. The only practical difference between this schedule and the previous new one,
was that the crews worked under the same formen each shift Hodges showed the
schedule to Matthews and Fussell and their crews. Tillis and his crew were not
working that day, therefore Hodges did not submit the schedule to them. There was
no serious objection made to the schedule by the men who saw it, except that they
did not altogether like one shift which worked 12 hours. This schedule was never put
into effect due to subsequent events.
During that day, Friday, Calverley instructed Jones, the respondent's paymaster
to make up Tillis' time and to leave it at his, Calverley's home that night, so that he
could give it to Tillis the next morning. When Tillis returned to the plant Friday
night, October 15, at midnight to relieve Fussell, the latter told Tillis about Hodges'
schedule. Tillis worked his shift that night During the night, Hyde, one of Tillis'
crew, said to Tillis "I heard something today; are you quitting"? Tillis replied "Not
that I know of." Hyde then told Tillis that he heard that Calverley had instructed
Jones to make up his time. About 7 15 Saturday morning, October 16, Calverley
came to the plant and gave Tillis his pay and release. Calverley told Tillis that he
could fill out the release any way he wanted to Tillis took his pay and release and,
before signing the receipt, asked Calverley if it included the 2 extra hours that lie
had been promised for attending the meeting on Thursday. Calverley assured him that
it did. Tillis then signed the receipt which was for his full pay up to that time.
The receipt was made out in ink by Adella Clark, the pay-roll clerk. The reason
shown on the receipt for the payment was "Quit" Tillis testified that the word
"quit" was not on the receipt when he signed it. Clark testified that under in-
structions from Jones she wrote in the word "quit," at the time she made out the
receipt, and that she had not seen the receipt since, until it was shown to her at the
hearing. Calverley also testified that the receipt contained the word "quit" at the
time that Tillis signed it Tillis did not ask Calverley why he had been given his time.
SWIFT AND COMPANY 1369
According to Doke, just after Tillis had been released, Foreman Matthews said to
him "If you don't put Tillis back to work, we are all going to quit." Matthews testified
that he told Doke he would not work if they were going to treat Tillis like that, but
did not say he was going to quit his job for good. Just before Tillis and Matthews left
the plant, Doke asked Tillis if he had got his time, Tillis replied in the affirmative.
Doke then told him to get off the property. Tillis and Matthews, also Matthews'
crew, except Claude Wilson, then left the plant, although Matthews' shift was due to
start at 8.00 a.m. that day. The flotation plant did not work that day After the men
had left the plant, Calverley contacted Shields, president of the Union, and asked
him to assist him in getting the men back to work. Shields then, at the request of
Calverley, contacted all of the flotation plant employees, including Tillis," and requested
them to attend a meeting at the plant at 4:00 p.m. that day, Saturday. Shields told
Calverley that the work stoppage had not been authorized by the Union, but he would
help him to get it straightened out. At the appointed time all of the flotation men,
including Tillis, arrived at the plant for the meeting: ° Calverley objected to Tillis'
being present, and he informed the men that there would be no meeting if Tillis
insisted on remaining. The men refused to go into the meeting unless Tillis was per-
mitted to be present. Finally shields secured Calverley's permission for Tillis to sit
in at the meeting, provided he would have nothing to say, and he so informed Tillis
and the men. Tillis refused the offer and stated that if he remained at the meeting
he would talk. The men stated that if Tillis were not allowed in the meeting, they
would not remain. The meeting was not held. Shields then asked the men if they
wanted a conciliator and they replied in the affirmative That night Shields informed
R. L. Cahall, financial secretary of Chemical Workers District Council #1, about the
trouble in the plant. They immediately sent a telegram to Dr. John R. Steelman,
Director of Conciliation, Washington, D. C., asking for a conciliator.' The plant
was operated on Sunday and Monday with a "make shift" crew. On Monday Calverley
and Shields contacted all of the flotation plant employees, except Tillis, and requested
them to come back to work that afternoon. The men were told that if any one employee
refused to return to work, the others would be notified and they need not return. All
of the men agreed to return to work except one, therefore, according to agreement, the
others were notified not to come back.
On Monday morning, Cahall was advised that O. W. Schaeffer, a conciliator, from
St. Petersburg, Florida, would arrive the next morning. That night a meeting of the
Union was held and Cahall told all of the flotation plant employees that they must
report for work at the plant the next morning, as the conciliator would be there and
it would be necessary for the men to meet him there. The next day,'Tuesday, the men,
including Tillis, went to the plant, and a preliminary meeting with the conciliator
and Cahall was held in the warehouse. The employees informed Schaeffer about the
new schedule, release of Tillis, and the work stoppage. The conciliator told them that
he would take the matters up with the management but, before doing so, it would be
necessary for the men to go back to work. The men then went back to work: Schaeffer
selected Matthews, Hyde and tyle' as a committee to accompany him to the office. A
meeting was held in the plant office at 1 :00 p.m Those present were Schaeffer, Cahall,
Shields, the committee, Wright, Calverley and Doke2a They first discussed the new
1° Calverley testified that, through an oversight, he had neglected to tell Shields not to invite Tillis
to the meeting.
3D There were approximately 12 employees at this meeting
21 Shields had already sent one telegram to Steelman before he saw Cahall.
22 Matthews and Hyde were flotation plant foremen Lyle was not a supervisory employee., Hyde
had just been made foreman to replace Tillis.
23 Tillis did not go into the meeting , but remained nearby in a motor car . Schaeffer had instructed
him to be available if they wanted him.
13 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
schedule and then drew up another schedule, which was satisfactory to all concerned
Cahall then asked Wright if he would discuss the case of Tillis. Wright refused on
the ground that Tillis was not within the union bargaining unit. Schaeffer made no
attempt to discuss Tillis' case. After Schaeffer and Wright had left the meeting,
there was a discussion between Cahall and Calverley concerning Tillis. Cahall said to
Calverley, "Regardless of representation, we are here to get this thing stttled. If there
is some way we can talk over this Tillis matter ... I have got to know some reason
.. Well as far as the bargaining is concerned I don't see that there is any relation-
ship." Calverley replied "We accepted his resignation because we wanted to." Cal-
verley further told Cahall that Tillis was a good workman, but that he "had too-much
mouth," talked too much and was a trouble maker ; that whenever it was necessary
to make any changes around the plant, •Tillis always had something to say about it.
Also that Tillis had complained about Wilson, the previous mine superintendent,
which had resulted in- Wilson's transfer2` The meeting then adjourned.
On January 14, 1944, Tillis wrote the following letter to the respondent, but he
never received a reply:
I would like to place my application with your firm for a job as a Flotation
Supervisor are (sic) some job similar. I think my record as a supervisor with
Swift and Company in the past will prove that I am familiar with the job and
can hold it down. Any consideration you will give me will be greatly appreciated.
Cahall testified that while attending a meeting of the Safety Council at the Southern
Phosphate Company at Ridgewood, Florida, on July 24, 1944, lie was talking to
W. L. Willis, superintendent of the respondent's fertilizer plant; that he said to Willis
"It is too bad about Angus Tillis being discharged down at your place"; that Willis
replied "Yes, it was. Angus was a good boy and I liked Angus, but Angus' trouble
didn't start at the time he was discharged. It was a well known fact that the Company
was out to get rid of him." Willis admitted that he said Tillis was a good boy and
that he liked him, but denied having said that the Company was out to get rid of him.
The undersigned is of the opinion and finds that it is unnecessary to resolve this
conflict in testimony.
Concluding findings
In general, the testimony of Wright and Calverley concerning the events leading
up to the termination of Tillis' employment with the respondent is accepted by the
undersigned as an accurate statement of the facts. In the last analysis Tillis was
discharged for conduct unbecoming a supervisory employee.26 Tillis had retained his
membership in the Union without the knowledge or consent of the respondent; how-
ever, he was responsible to management and was definitely excluded from representa-
tion by the Union, insofar as the designated appropriate unit was concerned. In stating
that he would not cooperate with management and endeavor to work the new sched-
ule, Tillis invited his discharge. Tillis owed his job loyalty to management and when
he defied his superiors and refused to carry out their proper and legitimate orders
and work the new schedule, they had no option but to discharge him. There was no
question of the respondent attempting to discourage union activities.
The evidence fails to support the Board's contention that Tillis was discharged and
refused reinstatement because he engaged in concerted activities with other flotation
plant foremen or employees for the purposes of collective bargaining. After Tillis
24 The record shows that the complaints made against Wilson, by Tillis, were more or less justified.
^ The undersigned finds that Tillis was discharged by the respondent, notwithstanding the
'respondent 's contention that he quit his job.
SWIFT AND COMPANY 1371
had become a foreman, he endeavored to inject himself into the discussions concerning
grievances held between Superintendent Calverley and Shields, president of the Union,
at the latters home. Tillis had no authority from the respondent or the Union to
represent the employees. The latter was fully protected in the grievance procedure
provided for in the contract. The record is also clear that Tillis did not represent
the other two flotation foremen in the discussions concerning the new schedule or any
other working conditions. The new schedule was presented to the other two foremen
on the morning of Wednesday, October 13, and Tillis did not see it until that night.
The next day, the three flotation foremen were notified by Calverley that a meeting
of the foremen would be held that afternoon to discuss the new schedule Tillis, at
first, refused to attend this meeting because he was busy making repairs to his mother's
home, but he finally consented provided he received 2 hours' overtime, which was
given to him. Tillis made no such demand for the other two foremen Tillis attended
the meeting and argued against tthe adoption of the new schedule, principally because
it did not permit him to work 7 days a week, thereby substantially increasing his
weekly wage. He also argued that the shift employees did not like the idea of working
with different foremen. Tillis' main concern was for himself only. The other two
foremen voiced their disapproval of the new schedule, but they did not select Tillis
to represent them
The undersigned finds from the entire record in the case, that Angus Tillis was
discharged by the respondent on October 16, 1943, and thereafter refused reinstate-
ment for reasons other than those alleged in the complaint and that in discharging
him the respondent has not engaged in any unfair labor practice within the meaning
of Section 8 (3) of the Act.
C. Alleged interference, restraint, and coercion
The allegations of the amended complaint that from December 1942, the respondent,
by its officers, agents, representatives and employees, more particularly by D. M.
Wright, Warren M. Doke, W. A. Hodges, W. L. Willis and W. D. Calverley,
committed, authorized, instigated, and acquiesced in statements and conversations
discouraging its employees in their membership and activities in the Union and their
concerted activities for the purposes of collective bargaining, are not supported by
the evidence and therefore the undersigned finds that the respondent has not engaged
in unfair labor practices within the meaning of Section 8 (1) of the Act
CONCLUSIONS OF LAW
1. The operations of the respondent, Swift and Company, Ft. Meade, Florida, occur
in commerce, within the meaning of Section 2 (6) of the Act
2. Federal Labor Union, No. 22685, affiliated with the American Federation of
Labor, is a labor organization, within the meaning of Section 2 (5) of the Act
3. The respondent, Swift and Company, Ft. Meade, Florida, has not engaged in
unfair labor practices within the meaning of Section 8 (1) or (3) of the Act, as
alleged in the amended complaint.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the undersigned
hereby recommends that the amended complaint, issued herein against the respondent,
Swift and Company, Ft Meade, Florida, be dismissed in its entirety.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26, 1943,
any party or counsel for the Board may within fifteen (15) clays from the date of the
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Rochambeau 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 Immediately
upon the filing of such statement of exceptions and/or brief, the party or counsel
for the Board filing the same shall serve a-copy thereof upon each of the other parties
and shall file a copy with the Regional Director. As further provided in said Section
33, should any party desire permission to argue orally before the Board, request there-
for must be made in writing within ten (10) days from the date of the order trans-
ferring the case to the Board.
W. P. WEBB
Trial Examiner
Dated December 7, 1944.