National Labor Relations Board v. Armour & Co.

• Decision Date: 09 May 1946
• Docket Number: No. 3098.,3098.
• Citation: 154 F.2d 570
• Parties: NATIONAL LABOR RELATIONS BOARD v. ARMOUR & CO.
• Court: U.S. Court of Appeals — Tenth Circuit

154 F.2d 570 (1945)

NATIONAL LABOR RELATIONS BOARD v. ARMOUR & CO.

No. 3098.

Circuit Court of Appeals, Tenth Circuit.

November 5, 1945.

On Rehearing January 8, 1946.

Rehearing Denied May 9, 1946.

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Malcolm F. Halliday, Associate Gen. Counsel, National Labor Relations Board, of Washington, D.C. (Alvin J. Rockwell, Gen. Counsel, and Ida Klaus and William F. Scharnikow, Attys., National Labor Relations Board, all of Washington, D.C., on the brief), for petitioner.

Paul E. Blanchard, of Chicago, Ill., and Kenaz Huffman, of Denver, Colo. (Sherman A. Sutliff, of Denver, Colo., on the brief), for respondent.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

This is a proceeding to enforce against Armour and Company¹ an order of the National Labor Relations Board.²

The Board found that Armour in the operation of its meat packing plant in Kansas City, Kansas, violated § 8(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3, 5)³ by questioning its employees concerning their concerted activities; by discharging its employees Cornforth, Cowger, and Donahue because of their membership in, and activities on behalf of, the Packinghouse Workers Organizing Committee;⁴ and by refusing to bargain collectively with the Union as the exclusive bargaining agent in an appropriate unit of its employees, consisting of its plant clerks at such packing plant. The order requires Armour to cease and desist from the unfair labor practices found; to offer reinstatement with back pay to the three employees it discharged; to bargain collectively with the Union upon request; and to post appropriate notices.

On December 17, 1942, the Union, which then represented the production and maintenance employees at such packing plant, filed a petition with the Board for investigation and certification of representatives of the plant clerks pursuant to § 9(c) of the Act, 29 U.S.C.A. § 159(c). At the hearing on the petition, Armour refused to take any position as to whether the plant clerks constituted a separate and distinct appropriate bargaining unit, but contended that since the plant clerks had access to confidential information, they were "essentially a part of the management" and should not be represented by the same Union as, or included in the same bargaining unit with, the production and maintenance employees. Upon consideration of the evidence adduced at the hearing, the Board found the plant clerks constituted a unit appropriate for the purposes of collective bargaining, and directed that an election be held. At the election held on June 9, 1943, the Union received 16 votes out of a total of 26 cast. Three votes were cast against representation by the Union and seven votes were challenged. Armour refused to furnish the Board with a payroll list of the plant clerks who were eligible to vote. Each of the 19 unchallenged votes which the Board counted was cast by a person whose identity as an employee within the unit was established both by his affidavit and by the presence of his name on a list of plant clerks previously submitted by Armour in the representation case. All the plant clerks on such list were still employed at the time of the election, except one who did not vote at the election. No new plant clerks had been hired.

On June 16, 1943, the Regional Director filed his report of the election, which was duly served upon Armour. On June 24, 1943, no objection to the conduct of the election having been filed by Armour, the Board certified the Union as the exclusive bargaining representative of such plant clerks.

On August 31, 1943, Armour rejected the Union's request for a bargaining conference on behalf of the plant clerks. The Union thereupon filed charges under § 10 (b) of the Act, 29 U.S.C.A. § 160(b); and the Board filed a complaint charging Armour with the unfair labor practices referred to above. At the hearing on the complaint, Armour admitted its refusal to bargain, but contended that its plant clerks are not employees within the meaning of the Act and not eligible to belong to any bargaining unit.

The plant clerks are a cohesive group, allied as to their bargaining interests by the similarity of their functions and working conditions. They perform clerical work, but no manual labor, in the various production and maintenance departments of the plant. They are immediately supervised by the respective foremen to whose departments they are assigned, but they are subject to the general supervision of the plant's office manager. The plant clerks collect and tabulate departmental data which is transmitted to Armour's local office and to its main office in Chicago for cost and general accounting purposes. They prepare initial departmental records and reports concerning production, stock, supply inventories, gain and shrinkage, interdepartmental transfers of products and shipments, and, in some instances, the number of hours worked by production employees. The nature of their work makes available to them considerable information concerning the operation of Armour's business. For the most part this consists of meat-curing formulae, statistical results of operations, data on the efficiency of the departments, labor rates, inventories, unit cost figures, volume of shipment, and price of goods sold. These facts are of such a nature that Armour does not wish them to be disclosed to its business competitors. Plant clerks also have access to the wage rates, work standards, and seniority records of the production and maintenance employees. In a small department the duties of the plant clerk are performed by the foreman of such department. In the larger departments such duties are performed by a plant clerk or clerks under the supervision of the foremen. There are times when the management directs a test run of a small group where no regular foreman is present. In those cases the plant clerk is directed to supervise the gang during the test run. The plant clerk keeps an accurate account of personnel who enter his department for the purposes of seniority. When there is a reduction in the department, the plant clerk notifies the foreman the employees who are to come out, and when there is an increase in the department, the employees that are to be called, in accordance with seniority. But plant clerks have no power to hire, to discharge, to promote or demote, or even to make recommendations with respect thereto. Their reports concern efficiency in the respective departments as shown by the quantity produced by each department as a whole. They do not reflect either the quantity or quality of the work of individual employees.

When a grievance is presented, as, for example, that a job is overloaded, the plant clerk gathers the information pertaining to that grievance, presents it to the foreman, who reviews it and then sends it on to the operating superintendent or to the man designated by the management for the handling of that grievance. The information thus gathered by the plant clerk is in no sense confidential. Armour is required to disclose such information to the Union under the bargaining contract with production and maintenance employees. Likewise, the seniority records, which the plant clerks keep and to which they have access, are not confidential. Seniority lists are posted in each department.

It follows that the plant clerks' confidential information is confined to those matters which Armour does not wish to disclose to its business competitors.

Section 2 of the Act, 29 U.S.C.A. § 152, in part reads:

"(2) The term `employer' includes any person acting in the interest of an employer, directly or indirectly, * * *.

"(3) The term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the chapter explicitly states otherwise, * * *."

The foregoing definitions are not mutually exclusive. For example, a foreman, in his relation to his employer, is an employee within the meaning of the Act, and in his relation to the laborers under him he is the representative of the employer and is, therefore, an employer under the Act.⁵

The term "employee" was not used by the Congress as a word of art. It is to be given a broad and comprehensive meaning. It takes color from its surroundings and should be read in the light of the mischief to be corrected and the end to be attained.⁶

It is a well-known fact that at the time of the passage of the Act mental or white-collar workers, because of lack of organization, wielded little bargaining power in dealing with their employers as to wages, hours, or other working conditions. In that respect the manual workers enjoyed a more advantageous position. We entertain no doubt that Congress, when it passed the Act, intended to recognize and protect the organizational and bargaining rights of the vast number of employees falling in the classification of mental or white-collar workers.

In Eagle-Picher Mining & Smelting Co. v. National Labor Relations Board, 8 Cir., 119 F.2d 903, 911, the court held that a graduate chemist, acting as director of research for the mining company, was an employee protected by the Act.

The Board has repeatedly issued enforcement orders relating to clerical and other non-manual workers, which have been enforced by the courts.⁷

The question remains whether the duties performed by the plant clerks are of such a nature as to exclude them from the term "employee" or to make it improper for them to be represented by the Union. The mere fact that the objective of the duties they perform is to increase plant efficiency and benefit the employer does not exclude them from the term "employee." Any employee who serves faithfully benefits his employer. Certainly, exclusion from the benefits of the Act is not the price of honest and faithful service. It is true that the knowledge which the plant clerks obtain is of a highly confidential nature and...