Swift & Company

National Labor Relations Board - Board Decisions

Jul 19, 1939

13 N.L.R.B. 739 (N.L.R.B. 1939)

In the Matter of SWIFT & COMPANY and LOCAL INDUSTRIAL UNION No.
629, AFFILIATED$ WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZA-
TION
Case No. C-848.-Decided July 19, 1939
Meat Packing Industry-Interference, Restraint, or Coercion: charges of
-violation of Section 8 (1), dismissed-Dtscrineinatton: charges of, in regard to
hire and tenure of employment, not sustained ; lack of knowledge of union mem-
bership; assignment of disagreeable task to ailing employee, no discrimination-
Complaint : dismissed.
Mr. Ti urlow Smoot, for the Board.
Mr. William N. Strack, of Chicago, Ill., for the respondent.
Mr. Harry Brownstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local Industrial
Union No. 629, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Eighteenth Region (Minneapolis, Minnesota), issued and duly served
its complaint, dated May 23, 1938, against Swift & Company, Monte-
video, Minnesota, herein called the respondent, alleging that the re-
spondent 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. A copy of the complaint and the notice
of hearing thereon were duly served upon the respondent and the
Union.
The complaint alleged, in substance, that the respondent discharged
and refused to reinstate Joseph Bonrud, for the purpose of discour-
aging membership in the Union, and thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed them by Section 7 of the Act. On June 3, 1938, the
respondent filed separate motions to make the charges and the com-
plaint more specific; a motion to dismiss the complaint for failing
to set forth therein facts sufficient to constitute unfair labor prac-
13N L.R.B,No 83.
739
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices; and an answer to the complaint, admitting certain allegations
as to the nature of its business but denying that it had engaged in
or was engaging in the unfair labor practices as alleged. On June
6, the respondent filed a motion to dismiss the complaint for lack
of jurisdiction by the Board. 4
Pursuant to the notice, a hearing was held in Montevideo, Minne-
sota, on June 6, 7, and 8, 1938, before J. J. Fitzpatrick, the Trial
Examiner duly designated by the Board. The Board and the
respondent were represented by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses, and introduce evi-
dence bearing upon the issues was afforded all parties. At the com-
mencement of the hearing, the Trial Examiner overruled the afore-
said motions filed by the respondent. At the close of the hearing,
counsel for the Board moved that the complaint be conformed to
the proof adduced at the hearing. The motion was granted. Counsel
for the respondent renewed the aforesaid motions to dismiss, and
further moved to dismiss the complaint on the ground that the evi-
dence introduced did not support the allegations in the complaint.
The former was overruled, and the latter was taken under advise-
ment by the Trial Examiner to be set forth in his Intermediate
Report. During the course of the hearing, the Trial Examiner made
several other rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
Thereafter, the Trial Examiner filed his Intermediate Report,
copies of which were duly served on all parties. He found that the
respondent, in discharging and refusing to reinstate Joseph Bonrud,
had not engaged in unfair labor practices affecting commerce within
the meaning of Section 8 (1) or (3) and Section 2 (6) and (7) of
the Act, and recommended that the complaint be dismissed.
On August 29, 1938, the Union filed exceptions to the Intermediate
Report. Neither party requested a hearing before the Board for
the purpose of oral argument, although opportunity to do so was
afforded.
The Board has considered the exceptions of the Union to the Inter-
mediate Report, and in so far as they are inconsistent with the find-
ings, conclusions, and order set forth below, finds no merit in them.
Upon the entire record in the case, the` Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Swift & Company, an Illinois corporation having its main execu-
tive offices in Chicago, Illinois, is engaged chiefly in the business of
SWIFT & COMPANY 741
purchasing and slaughtering livestock, and marketing products and
byproducts thereof. It has an office and place of business in Monte-
video, Minnesota, where it operates a dairy and poultry plant.
This proceeding is concerned with operations of the respondent in
Montevideo.
Substantially all of the products purchased by the respondent con-
sist of poultry, turkeys, eggs, butter fat, manufactured butter, com-
mercial feeds, cheese, hides, wool, and baby chicks. In 1937, the
respondent purchased and received about 12 per cent of its total
purchases of $1,741,909.00 from sources originating outside the State
of Minnesota. The respondent's sales consist of turkeys, eggs, butter,
dried buttermilk, commercial feeds, wool, and baby chicks. In 1937,
total sales of these products amounted to $1,842,217.00, of which 79.2
per cent was sold and shipped to destinations outside the State of
Minnesota. In volume, 7,738,458 pounds of products were handled
by the respondent during this year.'
II. THE ORGANIZATION I\ VOL\•ED
Local Industrial Union No. 629, affiliated with the Committee for
Industrial Organization, is a labor organization admitting to mem-
bership persons employed in and around Montevideo, Minnesota, with
the exception of persons having the power to hire and discharge.
III. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharge
The respondent normally employs about 50 employees at its plant,
but during slack months of January, February, March, and part of
April, about 30 employees are regularly employed. It is the usual
practice for the respondent to interchange work among all its em-
ployees, but such interchangeability is even more pronounced during
the slack season. During his 9-year period of service with the re-
spondent, Joseph Bonrud had worked in practically all departments
in the respondent's plant. Among other of his various duties, Bonrud
lifted and stacked heavy sacks of feed, swept and cleaned floors, and
fed the boiler, which necessitated his working around coal. The re-
spondent admitted Bonrud was a satisfactory workman, and con-
ceded his willingness to work at any assigned task prior to the in-
cident of January 31, 1938, hereinafter mentioned, which resulted
in the termination of his employment.
Bonrud joined the Union on January 20, 1938, and became the only
employee of the respondent who was a member of the Union. He walln
elected sergeant-at-arms on January 28. He was also a member of
'The above facts were stipulated.
187930-39-vol. 13-48
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Executive Council of the Chippewa Labor Association, a branch
of the Minnesota Labor Association.
On January 28 and 29 Bonrucl openly displayed his union member-
ship badge while working at the plant. Bonrud testified, however,
that during these 2 days he neither came in contact, nor discussed his
union membership, with any of respondent's supervisory employees.
L. E. Fletcher, the respondent's foreman, testified in this connection
that he observed Bonrud at work during this time, but denied having
noticed Bonrud wearing the union badge, and further denied having
any knowledge of Bonrud's union affiliation until several days after
Bonrud's employment with the respondent ceased. L. P. Sickles, the
respondent's manager, likewise denied such knowledge.
On January 31, 1938, after starting other work, Bonrud was re-
quested by Fletcher to help another employee unload a carload of
coal which had arrived. Bonrud stated that the work would cause
him to become ill, refused to comply, and added that he would "sooner
take the day off." Fletcher replied that efficient plant operation re-
quired obedience to orders, and insisted that he undertake the job.
Bonrud then left Fletcher, and appealed to Sickles. Sickles stated
that Fletcher was in charge of plant operations, declined to counter-
mand his order, and suggested that he consult with Fletcher again.
Sickles testified without contradiction that when lie mentioned to
Bonrud that he had not become sick when lie previously shoveled
coal, Bonrud failed to answer. Bonrud, having received no satis-
faction from Sickles, immediately went to the dressing room to
change to his street clothes. Fletcher, who was present during the
latter part of the conversation between Bonrud and Sickles, followed
Bonrud to the dressing room, told him he was making a mistake in
leaving, and urged him to at least make an attempt to unload the
coal. Bonrud again refused because of his health, and departed.
Fletcher thereupon secured another employee to replace Bonrud in
unloading the coal.
The following morning, Bonrud returned to the plant to work.
When Fletcher stated that he understood that he (Bonrud) had quit
the respondent's employ the previous day, Bonrud replied : "No, I
took the day off." Bonrud was not taken back by the respondent.
Thereafter, on February 3 and 9, 1938, a committee for the Union
conferred with Sickles in an effort to persuade him to reemploy Bon-
rud. Although the Union suggested means whereby Bonrud, if rein-
stated, could be exempted from shoveling coal, Sickles maintained
that plant discipline required that orders be carried out as directed.
The committee's efforts in Bonrud's behalf proved abortive.
Several witnesses testified that the job of unloading a car of coal
into the bin provided therefor by the respondent, which Bonrud
SWIFT &; COMPANY 743
was assigned to do, was very disagreeable, and the least desirable of
any of the jobs required of the employees. Bonrud testified that the
dust created by shoveling coal so aggravated an asthmatic and bron-
chitic condition with which he was afflicted that he frequently
gagged and spewed.2 He admitted, however, that the inhalation of
cold air, and the doing of other work about the plant, often caused
the same result, though with less aggravation. Bonrud testified fur-
ther that in 1935, he became ill for 4 days as a result of shoveling
coal, and that in April 1936, when he was requested to do similar
work, he complained to IV. E. Hedegard, then plant foreman, that
such work made him ill. On the latter occasion, Bonrud did the
work as requested when he was furnished with additional assistance,
but thereafter "made up his mind" never to unload coal for the re-
spondent again. Hedegard, who was no longer employed by the
respondent in Montevideo, denied that Bonrud had told hint that
working around coal made him ill. He testified that Bonrud ex-
pressed the opinion to him that he was given the job too often, and
that he felt he was simply "being taken advantage of."
The facts above set forth create some doubt as to the reasons for
the respondent's actions on January 31, which resulted in the termi-
nation of Bonrud's employment. Bonrud was the only employee of
the respondent who was a member of the Union. He had established
a satisfactory work record, and had never prior to January 31 failed
to perform any duty to which he had been assigned. Shortly after
he displayed his union button, the respondent insisted on his under-
taking a most disagreeable task, particularly unwelcome to Bonrud.
We do not think, however, that the evidence establishes that the re-
spondent's conduct was discriminatory, or was done for the purpose
of discouraging membership in the Union.
Although Bonrud wore a union badge on January 28 and 29, the
evidence does not establish that the respondent either was aware of
this, or had any previous knowledge of Bonrud's union membership.
Both Fletcher and Sickles so testified, and Bonrud's own testimony
was to the effect that during the 2-day period when he wore his union
button he neither came in contact, nor discussed his union affiliation,
with any supervisory employee. Thus, since there is no showing
that the respondent knew of Bonrud's union membership on Janu-
ary 31, an element in the proof of unfair labor practices is lacking.
Moreover, there is insufficient proof that Fletcher, who ordered
Bonrud to assist in unloading the carload of coal, or Sickles, who
refused to countermand the order, knew that such work would cause
the consequences which Bonrud feared. Bonrud had previously un-
2 testified that the coal which had arrived was in a frozen condition , and was
not dusty. This was not known to Bonrud at the time, however.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dertaken arduous duties, including working around coal and other
jobs where dust was created, without having registered complaint
to them. This might reasonably have led them to believe that Bonrud
was likewise capable of shoveling coal. Furthermore, the assign-
ment of such a task, especially during the slack season, was not
unusual. Thus, there is an additional hiatus in the proof of unfair
labor practices, for the respondent cannot be said to have taken ad-
vantage of Bonrud's infirmity as a maneuver to rid the plant of an
active union member when it never knew that such infirmity in fact
existed.
At the hearing, both the Board and the respondent introduced
medical testimony bearing upon Bonrud's physical condition, based
upon physical and oral examinations made subsequent to the time
of Bonrud's discharge or resignation. Such testimony is, under the
circumstances here present, immaterial.
The hearing produced a controversy between the parties as to
whether Bonrud had voluntarily resigned or was discharged. In
the view which we have taken of this case, this controversy need not
be resolved.
The respondent also raised a question with regard to the timeliness
of filing the Union's exceptions to the Intermediate Report. In view
of our conclusions and order, it also becomes unnecessary to consider
this question.
We find that the respondent has not discriminated in regard to
hire or tenure of employment of Joseph Bonrud and has not thereby
interfered with, restrained, or coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLusIONS OF LAW
1. The operations and business of the respondent constitute a
continuous flow of trade, traffic, and commerce among the several
States, within the meaning of Section 2 (6) of the Act.
2. Local Industrial Union No. 629, affiliated with the Committee
for Industrial Organization, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. The respondent has not discriminated in regard to hire or tenure
of employment, thereby discouraging membership in a labor organi-
zation and engaging in an unfair labor practice within the meaning
of Section 8 (3) of the Act.
4. The respondent has not, by discrimination in regard to hire or
tenure of employment, interfered with, restrained, or coerced its
SWIFT &; COIIPAICY 745
employees in the exercise gf the rights guaranteed in Section 7 of the
Act, thereby engaging in an unfair labor practice within the meaning
of Section 8 (1) of the 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 orders that the complaint
against Swift & Company, Montevideo, Minnesota, alleging that the
respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (1) and (3) of the Act, be, and it hereby is, dismissed.
Ms. WILLIAM M. LnisERSOx took no part in the consideration of
the above Decision and Order.