Armour & Co.

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 ►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.