The United States Cartridge Co.

National Labor Relations Board - Board Decisions

Oct 30, 1945

64 N.L.R.B. 586 (N.L.R.B. 1945)

In the Matter of Tien UNITED STATE S CARTRIDGE COMPANY and
BROTHERHOOD OF RAILROAD TRAINMEN
Case No. 14-0-712.-Decided October 30 , 19Jp5
DECISION
AND
ORDER
On April 30 , 1945 , the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding , finding that the respondent had
not engaged in the unfair labor practices alleged in the complaint,
and recommending 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 sup-
porting brief . No request was made for oral argument 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 committeed . The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and brief of counsel for the Board , and the entire record in the case,
and hereby adopts the findings , conclusions , and recommendations of
the Trial Examiner, with the addition noted below.
Having found that Clark was a supervisory employee and that the
respondent would have been responsible for his union activity, the
Trial Examiner concluded that Eifert 's statement to Clark was not
violative of the Act , on the ground that the statement was made by
one supervisor to another . Counsel for the Board excepted to the
Trial Examiner 's finding of fact that Clark was a supervisory em-
ployee. We find no merit in this contention . However, notwith-
standing Clark 's supervisory status, it is conceivable that under the
holding of the Mississippi Valley Structural Steel Company case,, the
respondent would not necessarily have been responsible for his union
activity . But this point is not raised by the exceptions , and we find it
unnecessary to pass on it.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
164 N L. R B 78
64 N. L. R. B., No. 97.
586
THE UNITED STATES CARTRIDGE COMPANY 587
Board hereby orders that the complaint against the respondent, The
United States Cartridge Company, St . Louis , Missouri , be, and it
hereby is, dismissed.
MR. GEP.ARD D. REILL Y took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr Harry G. Carisoin, for the Board.
Hessrs. C. P Berry, H. P Miller, and J C Handol, of St Louis, Mo, for the
respondent.
STATEMENT OF THE CASE
Upon a charge filed on September 10, 1942, by Brotherhood of Railroad Train-
men, herein called the Union, the National Labor Relations Board, herein called
the Board, by its Regional Director for the Fourteenth Region (St. Louis, Mis-
souri ), issued its complaint dated March 19, 1945, against The United States
Cartridge Company, 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.
With respect to unfair labor practices the complaint alleged that the respondent
had interfered with the rights of its employees as guaranteed in Section 7 of
the Act by (1) discharging George B Clark on or about September 5, 1942, and
thereafter refusing to reinstate him because he joined and assisted the Union and
engaged in concerted activities with other employees for the purpose of collective
bargaining and other material aid and protection, and (2) on or about September
5, 1942, and thereafter questioning, urging, persuading and warning its em-
ployees against engaging in concerted activities and against their joining and
assisting the Union or any labor organization.
Copies of the complaint and notice of hearing thereon were duly served
upon the respondent and the Union.'
Pursuant to the notice a hearing was held March 29 and 30, 1943, at St Louis,
Missouri, before J. J Fitzpatrick, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel2 All parties participated in the hearing and were
granted full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the conclusion of the hear-
ing the parties waived oral argument but were granted an opportunity to file
briefs with the undersigned after the close of the hearing. No briefs have been
received. After the close of the hearing the undersigned on his own motion
ordered certain corrections made in the transcript of record.
Upon the record thus made, and from his observation of the witnesses, the
undersigned makes the following :
1 No answer to the complaint was filed by the respondent However, at the opening of
the hearing H B. Miller, director of personnel, stated on the record that Clark had been
laid off by the respondent about September 5, 1942, but denied that the respondent had
refused to reinstate him or that it had committed any of the unfair labor practices
alleged in the complaint.
2 The respondent was also represented by its Director of Personnel Miller and Assistant
Director of Personnel Randol.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Maryland corporation and a wholly owned subsidiary
of Western Cartridge Company. It is engaged in the manufacture of small
arms ammunition for the United States Government at two adjoining plants in
St Louis, Missouri' The plants, all the machinery, equipment, and material
used, as well as the manufactured products, are owned by the government. In
the year 1942, from 90 to 95 percent of the materials used in the manufacturing
process amounting in value to several millions of dollars and consisting prin-
cipally of brass, lead, copper, and chemicals was shipped to the plants from
points outside the State of Missouri. The finished products for that year also
valued at several millions of dollars were taken over by the government at the
plants for use by the armed forces. In the summer of 1942, the employees of
the respondent numbered approximately 20,000, but were reduced to about
22,500 in September of that year. In subsequent years the number of employees
fluctuated. At the time of the hearing there were approximately 17,000 em-
ployees. Since 1942 there has been no material change in the respondent's
business.
1I THE ORGANIZATION INVOLVED
Brotherhood of Railroad Trainmen is a labor organization admitting to mem-
bership certain employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A Background
Shortly after the respondent began operations in the fall of 1941, a number
of unions, other than the charging union, became interested and active in or-
ganizing eligible employees. On February 23, 1943,, as the result of charges
brought by these other unions, the Board found that in the summer of 1942
the respondent, by the enforcement of too broad a no solicitation rule, and by
other specified acts, had interfered with the employees rights under the Act 4
In the 300 acres which contained the two plants there are about 17 miles of
railroad tracks used for switching cars of material to and from the numerous
buildings housing the various departments. -In early 1942 there were two switch-
ing crews which every month alternated from the day to the night shift. Each
shift consisted of an engineer , two switchmen and a switch foreman.5 A mechanic
employed days only also worked with these crews (referred to sometimes in the
record' as the railroad crew), which were in charge of Chief Plant Engineer,
J. C. Stewart. The respondent also employed Fletcher J. Eifert as yardmaster.
Eifert worked on the day shift and, aided by a clerk under him, checked the car
loadings and directed switching operations on this shift . It was also his job to
anticipate car movements and switching operations on the second shift and to
prepare instructions for the switch foreman of that shift. Although he directed
the work of the switching crew, the yardmaster was not a part of the railroad
department, but was a supervisor in the traffic department. He directly super-
7The respondent also opeiates a powder storage area at Tyson, 25 miles from St
Louis
4 U. S Cartridge Company, 47 N L. R B 896
At this time the respondent was operating 7 days a week but the employees worked
a 6-day week This necessitated the employment of some extra switchmen . Switch
Foreman Robert C Stark , heieafter referied to, worked as a foienian 3 days a week and
also operat , d an engine 3 days a week
THE UNITED STATES CARTRIDGE COMPANY 589
vised the work of a clerk under him, and directed the opei ations of the railroad
crew. Although he had no authority to hire and fire, he could effectively recom-
mend changes in the status of these employees including the railroad crew He
was also responsible for the work of all these employees He was thus vested
with substantial supervisory authority.
On June 22, 1942, the amount of business having increased, the respondent
hired George B. Clark, an experienced switchman, as assistant yardmaster under
Rifert. On September 5, 1942, due to a shortage of materials, about 3500 em-
ployees were laid off. At that time the respondent discontinued the recently
created position of assistant yardmaster and released Clark. Clark's union
activities while in the respondent's employ, his lay-off, and the surrounding
circumstances form the basis for the allegations of unfair labor practices
B. The alleged interference and discrimination
In his newly created position, Clark had the same duties as his superior, Eifert,
except that it was confined mostly to the second shift. He reported for work
at 2 p. in. before the shift started, checked the location of the railroad cars in
the plant, lined up the movement of such cars as were necessary for the second
shift, and directed the work of the switching crew on that shift. It was his
responsibility to see that the switching operations were properly carried out.
Previous to coming to the respondent Clark had for many years been active
in behalf of the Union, and, at the time of his employment, was secretary to one
of the Union locals. He was hired by the respondent on condition that he not
engage in union activities Beginning about August 5, 1942, however, Clark,
together with Thatcher, vice president of the Local Union, visited all the em-
ployees of the switching crews at their homes and, by the end of the month,
obtained their application cards for the Union. A committee was then selected
by the switching crews, consisting of Clark, Switch foreman Robert C. Stark,
and Switchman Arthur A Taylor, to meet with management and secure a
contract.
During this period of organiznir, the switching crew v^ore union buttons at
woik Eifert was aware of the union activity but was not cognizant of Clark's
leading part thei em until September 4 The early alter noon of that dad lie
called Clark into his office and asked him if he (Clark) had "engineered" tile
union activity among the switching crew: that management had inquired about
it from him Clark in effect admitted that he had been the leader in the move-
inent Eifert asked if Clark did not ieahze that if the Union secured a con-
tract that both Etfert and Chick would lose their "authority and control" over
the crew Clark responded that a contract could be drawn that would not
interfere with the authority of either of them Rifert then stated to Clark that
the respondent would "not stand" for any organization in the plant e
Following the organization of the employees in the railroad department as
above found, Thatcher, the local union official, requested bargaining rights for
the Union from the respondent, and also arranged for a conteience with maa-
agement and the union committee. This confeience was held the morning oT
September 5, and was attended by the committee and Thatcher for the Union
The respondent's representatives were R B. Ricktord. then personnel director,
"Thus finding is based upon the testimonv of Clark Eifert ilonled any such conversation.
The denial is not credited The finding is buttressed by the testimony of John P Engein.
Terminal Railroad card clerk, which testimony Etfert testified he did not "iecall" but
which is herein credited, that a (lay or two before September 5, 1942, Eifert discussed the
union organizing with Engeln and expressed disapproval of such organizing during v,ar
time
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. B. Miller, then personnel supervisor, and R. H. Roberts. an attorney. Thatcher
acted as spokesman and introduced the members of the union committee to the
management representatives explaining that Clark was chairman, Stark vice
chairman, and Taylor secretary thereof Thatcher then' stated that the com-
mittee represented the employees in the switching crews' and desired to negotiate
a contract. The management representatives replied that other unions claimed
to represent various groups 'of employees and the appropriateness of the various
units would have to be determined by the Board.'
The meeting terminated about noon, and Clark reported to work at 2 p. in.
Shortly thereafter, Eifert came to Clark, said that he had "bad news", and
handed him his termination slip, effective that night; the slip stated that the
layoff was due to material shortage.' Eifert told Clark to keep in touch with
hint and he would see what he could do about getting him back. Thereafter, for
about a week, Clark daily phoned Eifert about reinstatement but stopped after
being told that there was no place for him. About two weeks later he phoned
Personnel Director Rickcord and was told the same thing Thereafter lie made
no further effort to be reinstated and has not been called back At the hearing
he testified that he had other employment of a permanent nature on the Pacific
coast and did not desire reinstatement.
Switchman Taylor was also laid off because of the material shortage, but was
recalled in a day or two.''
As herein found, Clark was included in the mass lay-off of about 3,500 employees
caused by the shortage of materials. After this handicap to operations had been
eliminated, later in the fall of 1942, the number of employees again increased.
There were several later lay-offs and apparently a wide fluctuation in employ-
ment. In December 1943, the employees reached a peak of 34,000, but at the time
of the hearing there were about 17,000. Notwithstanding these occasional in-
creases, and the incident increase in the railroad tonnage, no one was hired to
replace Clark as assistant yardmaster although there were later increases in the
number of employees on the switching crews. After his release, the assistant
yard master's duties were performed, as they had been before, by Eifert and the
switch foremen.
Notice of a proposed 10 percent lay-off of employees due to material shortage had
been posted on bulletin boards in the plants about September 1, 1942. Eifert
about that time discussed this notice with Clark and the railroad crew. He told
them they were then working shorthanded and he did not believe the lay-off would
affect anyone under him." The actual lay-off amounted to considerably more than
' The unit intended was apparently the switching crew exclusive of the engineers
8 The following December the Board in it consolidated hearing found , inter aba, that the
switching crew , excluding supervisors , constituted an appropriate unit . U. S Cartridge
Co, 45 N L R B 1043 Prior to the present hearing , the respondent signed a Conti act
with the Union covering this unit.
0 The termination form included the question "Would you rehire" , after which was type-
written, "Yes".
10 John P Engeln, a yard clerk for the Terminal Railroad whose duties in 1942 included
part time work in the respondent's yard, testified that it few davs after Clark's termina-
tion Eifert offered him Clark's job at less pay than Clark had been getting and that
he refused the offer Eifert testified that he offered Engeln a job as clerk under him, but
fixed the time as in the spring of 1943. In this respect , Eifert testified that as time went
on more detailed records had to be kept in his office and he therefore offered a clerk's job
to Engeln but did not offer him a job as assistant yard master . As Engeln 's previous
experience would hardly have qualified him to be an assistant yard master , the undersigned
credits Eifert's version of the conversation and the time as more plausible
li This finding is based upon a ieconciliation of the testimony of Clark and Eifert relative
thereto
THE UNITED STATES CARTRIDGE COMPANY 591
the estimated 10 percent of the employees All the termination slips were dated
September 4, effective Saturday, September 5, 1942, on which date the plant ceased
operating on a 7 day weekly schedule and went on a 6 day schedule of work."
The respondent admits that Clark was a capable employee It contends that
as part of the mass lay-off and the switch from a 7 day to a 6 day work week the
position of assistant yard master was eliminated Two or three days after the
lay-offs, however, Elfert told Stark, switchforeman, that he was of the opinion
that Clark "would be there yet if he hadn't been so active in the Brotherhood."
C Coirclllsions as to the unfair labor practices
The questioning of Clark by Eifert on September 4 relative to the organizing,
the former's activity therein, and Eifert's statement that the respondent opposed
any organization in the plant, must be considered in the light of Clark's posi-
tion. He was not an ordinary employee but exercised supervisory duties similar
to Eifert though limited to the shift lie worked. He received a stated salary and
was not entitled to overtime like the employees under him 14 He could recom-
mend increases in pay and was responsible for the work of the employees whom
lie directed It is found that Clark was a supervisor within the meaning of the
Act for whose activities in labor matters the respondent would have been held re-
sponsible 15 When Clark took this supervisor's job he agreed not to engage in union
activities among the ordinary employees. At that time the charging union to
which Clark belonged NN as not active in the plants, but other unions were, of
which fact the respondent was aware In early September, when rumors came to
management that Clark had "engineered" the unionization of the switching
crews it properly questioned him as to such activity. Absent any evidence of an
effort to organize the supervisors as such, the respondent was justified in requir-
ing its supervisors to remain neutral in union activity and in criticizing its
Assistant Yard Master for his failure to do so" The statement that the
respondent opposed organization of any kind would under certain conditions be
coercive, if used by a supervisor to an ordinary employee. Where, under the
11 Clark testified that the termination notices covering the announced lay-off were all
sent out before September 3, some of them being effective prior to September 5. This
testimony is not credited , as the respondent 's origina l records produced in the hearing for
inspection showed that all the lay-offs, including Clark 's and Taylor ' s, were effective
September 5. Clark also testified that in his observation , which was limited to a time
clock cont aining approximately 250 time cards, it was customary for the respondent to
attach the termination slips to the time cards of the employees affected As previously
found, Clark and Taylor were given their termination slips by Eifert However, Eifert's
testimony is uncoutradicted and credited that it was the practice of Berry, who was over
the railroad department which included the switching crews, either to deliver termina-
tion slips in person or leave them with Eifert for delivery to the employees Clark and
a clerk were the only ones directly under Eifeit in the traffic department, and the
record does not disclose what the practice in this respect was in that department , but any
such terminations necessarily would have come through Elfert ' s hands . No inference of
irregularity is warranted, therefore , from the method of handling Clark's or Taylor's
terminations
13 This finding is based upon the testimony of Stark Eifert denied making the state-
ment In view of all the circumstances above detailed, particularly Eifert's statement
fo Clark before the dismissal, the denial (which was somewhat uncertain) is not
credited
14 Clark complained about his pay not equaling those trader him who received overtime
As a result of the complaint, about the first of September Eifert agreed to recommend an
increase for Clark in these days of overtime work it is not unusual to find instances
where the take-home pay of ordinary workers exceeds the guaranteed salary of the super-
visor
11 The Winter-Weiss Co , 61 N L. R. B 361.
16 Cf. Soss Manufacturing Co , et at., 56 N . L R. B. 348
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances here existing, it was used by one supervisor to another there is
no element of coercion in it.
Clark held the newly created position of assistant yard master for a ittle
over two months when it was abolished during the mass lay-off. His work was
satisfactory and no question is raised as to his capacity to handle the job.
The previous finding of unfair labor practices," Eifert's questioning of (lark
on September 4 about his union activities, and his statement to Stark after the
lay-off that in his judgment Clark would still be' in the respondent's employ if
he had not been so active for the Brotherhood raise a suspicion that the reslond-
ent eliminated the ,job in older to get rid of Clark In the opinion of the under-
signed, however, this suspicion is more than counterbalanced by other factors.
No effort was made to replace Clark or to create another position in lieu o' the
assistant yard master's job, but the duties thereof were performed by Eifert
and the switch foreman as they had been before Claik was hired In the eliruna-
tions incident to a mass lay-off a new position is likely to be abolished in sec king
ways to cut down the number of total employees, especially where seniority is
given some consideration, as is true with the respondent It is noted, more)ver,
that Eifert 's comment to Stark after the lay-off was not a statement of faci but
merely the expression of a personal opinion that Clark's union activities ha d to
do with his release.
Eitert felt that he was understaffed before the lay-off Although he kne v on
September 4 of Clark's activities, mananement had no suspicion of them until the
Committee met on the 5th, unless Eifert previously reported the fact But Eii'ert
obviously slid not anticipate any releases of the employees under him of his
diroction and was as surprised as Clark was when the latter's termination slip
arrived Furthermore, the 3500 termination slips were prepared not later than
September 4. It takes time to prepare such a list, and while Claik's i ame
could conceivably have been added to the list at the last moment, there is uc evi-
dence that such was the fact, and the record does not warrant an Inference to
that effect In the light of the justified mass lay-off, 'which amounted to nore
than the estimated 10 percent, the adjustments that necessarily followed the
changing of the work week, the fact that the job of assistant yard master was of
recent creation and somewhat of an experiment, the undersigned is of the
opinion and finds that the position was eliminated for legitimate reasons."
Clark's testimony suggests that even though the assistant yard master position
was properly eliminated Clark was not given any consideration (a) becau,ie of
his seniority, and (b ). for a job in the switching crew for which he was qua.ified
and for which he applied. Such seniority procedure as the respondent practiced
applied only to classifications of work and not to departments. and Clark held
'i See footnote 4, supra. This was a consolidated beam fig as the result of the eforts
of several unions to organize the plant guards as well as other employees The Itoard
found (1) discriminatory treatment of several eniplovecs, (2) iii cifeience h'-. (a) the
enfoiceinent of a too broad "no solicitation' rule winch was latei rescinded and (b)
questioning and threatening plant guards foi union activity and disparaging the le ulers
of the movement.
11 The release of Clark almost immediately following the verification of the responi ent's
suspicion that he was engaged in union activity poses the question whether the respondent
discharged its Assistant Yard Master because of his failure to remain neutral in inion
activities, or became of anti-union considerations The respondent through its Persinnel
Director Miller did argue that such activity of Clark was illegal, but nevertheless insisted
that the sole reason for the discharge was the mass lay-off, as disclosed by Clark'ii ter-
mination slip . Although the severe penalty of discharge of a supervisor for failing to
ieniain neutral in union matters under circumstances such as herein detailed might in any
event lie instifled, the undersigned accepts the respondent's reason for the discliari e. as
fortified by the record
THE UNITED STATES CARTRIDGE COMPANY 593
the only job classified as assistant yard master . Clark testified that after his
dismissal he asked Eifert for a job in the switching crew and Eifert replied that
it could "not be done." Eifert was unable to recall any such conversation but
testified that if it was mentioned he would have referred Clark to Stewart or
Berry. Clark said nothing about a switching job to either of the latter , although
they headed the railroad department , nor did he mention it when he talked to the
personnel director who would have had to pass on the application . It is found
that Clark did not apply for a transfer to the switching crew, but at best merely
mentioned the matter to Eifert who had no authority in that respect over the
switching crew, of which fact Clark was aware.
It is therefore found that the respondent has not discriminated as to the hire
and tenure of employment of George B. Clark, and has not interfered with,
restrained or coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CONCLUSIONS OF LAW
1 The operations
St. Louis, Missouri,
of the Act.
of the respondent, the United States Cartridge Company,
occur in commerce within the meaning of Section 2 (6)
2. Brotherhood of Railroad Trainmen
meaning of Section 2 ( 5) of the Act.
is a labor organization within the
3. The respondent has not engaged in
meaning of Section 8 ( 1) and (3) of the Act.
unfair labor practices within the
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the complaint
against the respondent, The United States Cartridge Company, St. Louis,
Missouri , be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective July 12, 1344,
any party or counsel for the Board 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, 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 permis-
sion to argue orally before the Board, request therefor must be made in writing
within ten ( 10) days from the date of the order transferring the case to the Board.
J. J. FITzrATRIC%,
Trial Examiner.
Dated April 30, 1945.
670417-46-vol. 64-39