Field Packing Co.

In the Matter of FIELD PACKING COI\'IPANY' and INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN' & HELPERS' OF AMERICA, LOCAL #215 In the Matter of FIELD PACKING COMPANY and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 227, AFFILIATED WITH THE A. F. OF L. Cases Nos. C-2506 and C-2507 respectively.Decided March 31, 1943 Jurisdiction : meat packing industry. Unfair Labor Practices - Interference, Restraint, and Coercion: questioning employees concerning, union membership and activities ; proposing' execution of individual contracts with employees and utilizing apparent shift in employer status to escape collective bargaining by adopting so-called independent contractor system in the operation of Company delivery routes. Company-Dominated Union: employee representation plan suggested by Company president and formed under Company aegis. I _ Discrimination: unfair labor practice strikers refused reinstatement because their jobs had been filled. , Collective Bargaining: majority established by union membership-refusal to bargain by insisting upon dealing with employees individually and refusing to deal with union on their behalf. Remedial Orders : disestablishment of company-dominated union; employer ordered to reinstate strikers with back pay and establish preferential list, if necessary ; employer ordered to bargain with union, upon request. Unit Appropriate for Collective Bargaining : truck drivers. DECISION AND ORDER On January 14, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. Exceptions to the Intermediate Report. and a brief in support thereof were thereafter filed by the respondent. Oral argument was not requested and none was held. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the 48 N. L. R B, No. 100. 850 ' r , : `' FIELD- PACKING' COMPANY, 851; exceptions' and brief, and- the, entire record; and, hereby, ,adopts the., findings; conclusions, and recommendations of the- Trial ; Examine r,, except as noted below. - ; - We agree with the Trial Examiner that the respondent, by stating that it would bargain with its truck,drivers individually but not with,- the-Teamsters on their behalf, as set forth in the Intermediate Report, refused to'bargain collectively with the Teamsters, within the meaning, of, Section 8 (5) of the Act,' and by -such refusal interfered with,, restrained,' and coerced its employees in the exercise of the rights., guaranteed in Section 7 of the Act. The Trial Examiner also found, inter alia, "that the respondent by endeavoring to execute individual , contracts with its .truck drivers, thereby placing them in- the category , of independent contractors and thus relieving itself- of the duty to . bargain with the Teamsters as the sole representative of these em= ployees, interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act." We adopt this finding subject to the following statement. While the respondent intended by the proposed individual contracts with its truck drivers to sever the employment relationship theretofore existing and to create' an 'independent contractor status, the proposed arrangement, con- - sidered objectively, did not in fact involve an, essential modification of the employer-employee relationship. Pursuant to the plan an- nounced to its truck drivers on November 26, 1'941, the respondent adopted for use in connection with the operation of its delivery routes a uniform sample contract, varying only as to amount of compensation. A typical contract entered into between the respondent and Joseph S. Stallings, one of its truck drivers, as a so-called carrier was introduced in evidence. The contract, dated December 3, 1941, and running for a term ending March 3, 1942, subject to cancelation by either party on 30 days' written notice, provided in substance (1) that the carrier furnish a truck; operate it at his own expense (including payment of all motor vehicle taxes and license fees) ; and transport the company's goods along a specified route in accordance with an outlined schedule of delivery; (2) that payment of compensation to the carrier shall be a specified'fixed sum "per week"; 1 (3) that the carrier "will personally drive and operate the truck," except in the case of illness or other event necessitating the employment by the carrier of -a driver and, in 'such case, the carrier shall assume "full and exclusive liability for the pay ment of any and all taxes for Unemployment Insurance or Old Age Benefit or annuities now or hereinafter imposed by the Federal and/or State Government which are measured 'by the wage or salaries or com- ' Stallings' contract, provided for the payment -of $61 per week. Prior thereto, the respondent paid its truck drivers 30 cents an hour ; with overtime at the rate of time and a half, their average weekly earnings were not in excess of $20. The respondent assured Stallings that he would net $25 a week under the contract. 521247-43-vol 48-55 852; DECISIONS OF NATIONAL • LABOR RELATIONS BOARD missions paid to the person or persons in-his employ and the carrier, will furnish Workmen's Compensation and Occupational Disease In- surance as required by law to cover carrier or employee or employees"; (4)' that the contract shall not be assignable by the carrier except on written consent of the company; and (5) that "the carrier shall be con- sidered an independent contractor and not an employee of the company for any purpose whatsoever." 8 In the operation of the so-called inde- pendent contractor system, the owner-drivers appeared at the •respond- ent's plant for loading operations in accordance with instructions given by the respondent's shipping foreman and, so far as appears, the work of the owner-drivers proceeded, in this as well as in all other respects, substantially in the fashion followed by the truck drivers on the re- spondent's pay roll prior to November 26, 1941. It does not appear that the owner-drivers hauled for anyone other than the respondent. On the basis of the foregoing it is our opinion that the employment status of a trucker who owned only one truck and drove it regularly for the respondent under an individual contract did not essentially differ from that of a trucker on the respondent's pay roll who had operated a company-owned truck. The ownership of the truck is merely an incident of the employment of the trucker; ,it does not establish him as an independent entrepreneur engaged in the trans- portation business. Such ownership is similar to• ownership by any employee of the tools requisite to the performance of his duties, and does not of necessity carry with it the responsibility of managing and maintaining a business. Moreover, the essential control over the fundamental incidents of the usual employer-employee relationship, such as tenure of employment and terms and conditions of employ- ment, remained, in large degree, solely in the respondent. We do not regard the lack of detailed supervision by the respondent over the trucking work as significant, inasmuch as the work is not readily susceptible of, or normally subjected to, detailed supervision, even when performed by a person conceded to be an employee. Under the circumstances we conclude that the relationship between the respondent and the truckers under the so-called independent contractor system has not been shown to have been essentially different from the em- ployer-employee relationship which had theretofore existed. We find that the respondent did not divest itself of status as an employer under 2 Such employment by the so-called carrier does not affect his own relationship with the respondent Cf , for example, Matter of Seattle Post-Intelliryeneer Department of Hearst Publications, Inc and Seattle Newspaper Guild, Local No . 82, 9 N L. R B. 1262. 3 Such a stipulation, of course, is not controlling. As we stated in Matter of Seattle Post- Intelligencer Department of Hearst Publications, Inc and Seattle Newspaper Guild, Local No 82, 9 N. L R B 1262, 1275 : The matter is not conclusively determined by a contract which adverts to and pur- ports to establish the status of such person other than as an employee Public interest in the adnumsti ation of the Act permits an inquiry into the material facts and substance of the relationship. FIELD PACKING 'COMPANY 853 the Act -by its proposal -to execute -individual contracts with Its truck- drivers or +y the adoption of the so-called independent ' contractor` system in the operation of its delivery =routes,. and that the respondent," by utilizing the resultant ostensible shift of employer status to escape' collective bargaining, interfered -with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of'- the Act .4 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 respondent, Field Packing Company, Owensboro, Kentucky, and its officers, agents, successors, and assigns shall: 1. Cease and ,desist from : (a) In any manner dominating or interfering with the formation or administration of, or contributing financial or other support to, the Plan, or -any other labor organization of its employees; (b) Recognizing the Plan as the representative of any of its em, ployees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #215, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 227, both affiliated with'the American Fed- eration of Labor, or any other labor organization of -its employees, by discharging or -refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection 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 and withhold all recognition from the'Plan 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 the Plan as such representative; 4 Cf. Matter of Butler Bros., a corp., et al and Elevator Operators and Starters Union Local No . 66, AFL, 41 N L. R. B. 843. 854; DECISIONS OF NATIONAL, LABOR, RELATIONS BOARD (b) Upon request,. bargain. collectively,, with the - International Brotherhood of Teamsters, Chauffeurs; Warehousemen & Helpers of. America, Local #215, affiliated. with,, the - American Federation of, Labor, as the exclusive representative of all truck drivers employed, by the respondent at its Owensboro, Kentucky, plant; in respect to rates, of pay, wages, hours of employment,, .,and..; other conditions of, employment; (c) Offer to Lawrence Moore, Denver Wade, Ed Basinger, and H. D. Basham, immediate and full reinstatement to their former or sub- stantially equivalent positions, without ;prejudice-to their seniority and other rights and privileges in the manner set forth in the Section 'of the Intermediate Report entitled "The remedy," placing those . employees for whom employment is not immediately available upon a preferential list in the manner set forth in said Section, and thereafter, in said manner, offer them employment as it becomes available for any or all of them; , (d) Make whole Lawrence Moore, Denver Wade, Ed Basinger, and H. D. Basham :for any loss of pay they may, have suffered by. reason of the respondent's discrimination against them in respect to their hire and tenure of employment on December 10, 1941, by payment to each of them respectively of a sum of money equal to the amount which he normally would have earned as wages during the period from Decem- ber 10, 1941, to the date of offer of reinstatement or placement upon a preferential list, less his net earnings during such period; (e) Post immediately in conspicuous places throughout its plant at Owensboro, Kentucky, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating' (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this.Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #215, and Amalgamated" ' Meat Cutters and Butcher Workmen of North America, Local No. 227, both affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership in or activity in behalf of those organizations; . (f) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. 'IELrID iadElN& C&IPANY' - 855 ' INTERMEDIATE ' REPORT Cases Nos. XI-C-988 and X-C-104x7 3 3 Mr. Benjamin E. Cook, for the Board Mr. Thomas E. Sandidge, of Owensboro , Ky., for the respondent. Mr. C B. Birdsong, of 'Evansville, Ind., Mr. McKinley Ralston and Mr. Irvin Ralph, of Owensboro , Ky., for the Unions. STATEMENT OF THE CASE Upon amended charges 2 duly filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #215, affiliated with the American Federation of Labor, herein called the Teamsters, and Ainalga- mated Meat Cutters and Butcher Workmen of North America, Local No. 227, affiliated with the American Federation of Labor, herein called the Meat Cutters, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eleventh Region (Indianapolis, Indiana);/ issued its amended complaint' dated December 10, 1942, ag iinst Field Packing Company, Owensboro, Kentucky, 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), (2),x(3), and (5) and Section 2 (6) and (7) of the 'National Labor Relations Act,'49 Stat. 449, herein called the Act. Copies of the amended complaint accompanied by notice of hearing thereon were duly served upon the respondent, the Teamsters, and the Meat Cutters. With respect to the unfair labor practices, the amended complaint alleged in substance: (1) that from November, 1, 1941, to the.(late of the amended com- plaint, the respondent urged, warned, and persuaded its employees to refrain from joining-or retainiifg membership in the Teamsters; that the respondent engaged in a preconceived 'plan and course of action to interfere with the self-organization of its employees, and that in furtherance of this plan, the respondent, by C. E Field, its president, discouraged membership in the Team- sters by various acts and conduct, such 'as advising its employees that it would close the plant before it would sign a contract with the Teamsters, and that it would never deal with a union; attempting to persuade -its employees to abandon the Teamsters and to -enter into independent contracts with the respondent; and inquiring as to their 'union ''affiliation ; (2) that on or about November 25, 1941, and, thereafter, the respondent refused to bargain collectively with the -Teamsters, the exclusive representative of its employees in an appropriate unit, (3) that on or about December 7, 1941, because of the respondent's unfair labor -practices set forth above which occurred prior to December 7, 1941, the respond- ent's employees went on strike, and that the strike was prolonged by the respondent's other unfair labor practices alleged in the amended complaint; (4) that on or about Decernber'8'or'10,1941, the respondent refused to reinstate four named employees' because they joined and assisted the Teamsters, and participated in the strike; (5) and that on or about December 8, 1941,, the -respondent initiated, formed and sponsored a'labor organization of its employees ' Case No. XI-C-988 and Case ' No' XI-C-1047 were consolidated by order of the Board, dated September 29, 1942. 2 The Teamsters .filed its , original charge on ,December 12, 1941, and amended charges on December 1, 1942: The Meat Cutters filed its original charge on April- 27_1942, and amended charge on July 27, 1942. ' ' - 2 The original complaint was dated December 1, 1942, and related only to Case No. XI-C-988 1 Lawrence Moore, Denver C. Wade. Ed Basinger and H. D. Basbam. -856 DECISIONS OF.,NATIONAL LABOR RELATIONS BOARD known'as Employees Representation, Plan, herein called the Plan, for the purpose of dealing with its employees concerning grievances, labor disputes or other conditions of employment, and thereafter. dominated'hnd interfered with the administration of the Plan and contributed support thereto ; that from December 8, 1941, to the date of the amended complaint, the respondent urged and per- suaded. its employees to become and,.remain members of the Plan, and' not to become members of the Meat. Cutters and that the respondent, Accorded"privi- leges to members of the Plan that were denied- to members' of the. Meat Cutters. On December 21, 1942, the respondent filed its answer admitting certain allega- tions of the amended complaint in respect to its business, but denying all material averments relating to the unfair labor practices. Pursuant to notice, a hearing was held at Owensboro, Kentucky, on December '21, 22' and'23; 1942, before-the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner The Board and the respondent were represented- by' counsel, the Teamsters by its President and the local organizer; and the Meat Cutters by its international representative. The motion of'the Board's counsel, at the conclusion of the hearing, to conform the pleadings to the proof in respect to minor inaccuracies such as dates and the spelling of names was granted by the undersigned without objection. The parties whived,.the%opportunity afforded;thenl,to file, briefsrwith,_and to argue orally before, the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 0 The respondent, a Kentucky corporation having its principal office and place of business in Owensboro , Kentucky, is engaged in the business of meat packing, which includes the purchasing , slaughtering, processing and selling of live stock, such , as cattle„ hogs , and sheep During the year 1941 , the respondent purchased livestock of the approximate value of $724 ,281.36, and other raw and processed materials to the approximate value of $356 ,155.78. About 15 percent of the total ,purchases were made outside Kentucky and',delivered'to the plant The respondent 's total sales during that period amounted to- approximately $1,452 ,135 53 in value, about 8 percent . of which was made to points outside ,Kentucky. During the first 10 months of 1942, the respondent 's gross sales amounted to approximately ,$1;876;649 79+, i value' of which, , approximately $326,869 .52 in value, were sold, and distributed outside Kentucky During that period, the respondent's purchases. from outside Kentucky amounted to approxi- mately $224,912.41 in, value. 11 THE ORGANIZATIONS INVOLVFD International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #215, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 227, both affiliated with the American Federation of Labor„ are labor organizations, admitting, to membership employees of the respondent. The, Plan, is an unaffiliated, labor, organization representing all,-non-supervisory - employees'of the respondent. FIELD ' PACKING COMPANY III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion ; formation of the Plan 857 Prior to the Fall of 1941, the employees of the respondent were not organized, and there was no union activity in the plant On November 5, 1941, Irvin Ralph, \,assistant business representative of the Teamsters, was contacted, by Lawrence Moore, ,one. of the .respondent's truck drivers, and was told by him that the respondent's truck drivers were being paid only 30 cents an hour, while the local wage scale for truck drivers was 50 cents an hour, and that they wished to join • the Teamsters. On that day Parvin Greer G and all of the respondent's regular truck drivers, namely Lawrence Moore, Denver Wade, Ed. Basinger, H D. ' Basham, C. Troutman and Joe Boone joined the Teamsters. A short time there- after they were furnished with union buetons, which they wore during working hours. Soon after the truck drivers joined the Teamsters, Ralph made several unsuccessful attempts to see C E. Field, the respondent's president. On or about November 21. M M Rhoades, the respondent's sales manager said to Moore, the respondent's oldest truck driver, in point of service, "Moore, I want you to tell me the truth. I want to know if you boys joined the -union. Have you paid your dues?" Moore replied in the affirmative to both questions. .Rhoades then said, ."That is all I want to know." It L,Mitchell was present and heard what was said. Immediately after the conversation Rhoades and Mitchell joined Field and Neubauer, the respondent's vice president, who were standing nearby, and all of them went into the plant office-° The undersigned finds that by the foregoing activity of Rhoades in questioning employee Moore in respect to his union affiliation, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On November 23, the respondent caused the following advertisement to be published in the local newspaper, the Owensboro Messenger : Wanted-10 Truck Owners that drive and operate their own trucks to haul and deliver meat products on regular routes. Liberal and profitable contract basis of a fixed sum per trip: Regular and steady employment open to sober and high class men only. Must furnish three references and make application by letter, giving age, experience and address. If you don't now own a truck we can arrange to finance one if you are the right man. Address-Field Packing Company, Incorporated, Owensboro, Ky This advertisement was published prior to any notice by- the respondent to its truck drivers that a change was going to be made at that time; in the operation of the trucks delivering meat The respondent received ai number of replies to this advertisement Formation of the plan On Monday, November 24, Field called a meeting of all the employees. The meeting was held in the plant, on the respondent's time,. and Field presided. There were about 75 employees present.' Field testified that.: , ° Greer was employed as a truck driver by IV L Mitchell, a teller in a local bank, who operated his own truck over one of the respondent's' meat delivery routes under contract, with•the respondent ° This finding is based upon the credible and undenied testimony' of Moore and Mitchell. Rhoades (lid not testify at the hearing 7 Field testified that he did not know wlietlier aiiy truck drivers were present or not; and that it was quite probable chat they were out on their trucks, and did not attend the meeting. 858 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD The purpose of the meeting was to arrive or present to the employees a plan we had of recommending to them of formiifg a meeting or committee to set classification on Jobs and relating to wages, conditions 'or -efficiency in the plant or just generally act for the company and the employees In respect to this meeting; Neubauer, the respondent's vice president, testified that the^Plan as outlined by Field at the meeting definitely included "presentation of requests by the workers to the management for wages, ,hours and working 1 conditions." Field recommended at this meeting that a committee consisting of 10 employees ,,and 2 executives be formed. At Field's suggestion, a secret ballot was taken and . all of those present, except one, voted ,iii favor of the establishment of the Plan, as recommended by him. Field then named Neubauer, the respondent's vice president, and Kunau, secretary and treasurer of,the respondent, as the two mem- ;bers of-the Plan to represent the respondent. The next day elections were held in each department 8 of the plant and 10 committeemen were elected. The ballots ;were counted by the respective foremen. The truck drivers did not participate in the elections. Employee Pate testified, in regard to this meeting as follows : Well, he [Field]' started off by talking about the war, that is the first thing he started talking about and everything being so high Then he got around arguing about the truck drivers being misled It seemed as though they had made a mistake of some kind, being misled and then he came around to talking about the union. He said before he would join the union that he would close the ' doors ; that he didn't have to depend on that -plant for a living. He said he had a reliable wife and two reliable children; that he didn't have to depend on that plant for a living at all .. . Well, he 'talked about that for a while and then he told us about this plan that he had and asked us all to vote on it whether we wanted it or didn't want it. So we took a secret vote on it and I think everyone but one voted for it .. . Well; he told us that we would elect two committee men out of each department and let those committee men represent us and then he would appoint Mr. Kunau and Mr. Neubauer as the representatives for the company and they would rate all labor semi-skilled, common labor and -skilled labor and get .together and see what they could do. r•'Field denied having said to Pate that he did not have to depend on the plant for a living. Pate testified that Field's statement was made to all those present at the meeting and not to him individually. In view of the testimony of other witnesses and the entire record, the undersigned credits the testimony of Pate. The, first meeting of the Plan was held in the plant on December 1. Bryan Clark, an employee in the shipping and delivery department, was chosen as chairman and Kunau, the respondent's secretary and treasurer, was chosen as secretary. The Plan had no constitution, by-laws, initiation fees, or dues. Meet- 'ings were held monthly in the plant, and the Plan members were paid for the time spent at the meetings. All matters brought up at these meetings, relating to conditions of employment, were dealt with by secret ballot, with the majority ruling. At the first meeting of the Plan a general wage increase affecting all (employees was agreed upon. The minutes of , the. December 1 meeting disclose the following : Ei L. Neubauer was asked to explain , the object and duties of this com- mittee. He explained that each member was a representative of their respec- o i, • 8 The 'plant consisted of the following departments : Killing, Sausage, Cellar, Shipping and Delivery, Firemen, Garage and Repair, and Bacon Slicing and Wrapping. FIELD PACKING -*.COMPANY 859, tive' departments and-it was their duty, to bring before this committee any grievances or suggestions that their department might have to make in order, ,to have 'a better understanding . between the departments and -the , company. :These` grievances or suggestions that were presented would 'be discussed in this' committee meeting and a policy would then be agreed upon just ,how they were to be handled . Each committee member would then report back to',th'eii represehtative departments the decision of the committee and the suggestion or grievance would be handled accordingly . It was thought that in this manner a lot of things could be ' straightened out and more harmony would be had between departments and company ...' After the committee understood their duties , one member said that he was 'instructed by his department to bring up the subject of an increase in pay. This was discussed at some length and on account of the increased cost in' living conditions it was decided that not only this one department should have an increase in pay but that all departments were entitled to an increase ..." The truck drivers were not supposed to be included in the plant classifica= tion. As was explained , they had been offered a contract to do the hauling for the company on a contract basis, owning and operating their own trucks. Since there was'a lot of details to be worked out and - the drivers undecided at, the ,present time, it :was, put-up to the , Committee to decide if they should be'represented by the Shipping Department and included in the classification and rate' of the. other departments until they had decided to accept the contracts offered them. A secret vote was taken and all members voted that they should be represented by shipping department and included in classification and rate until they could make up their mind in regard to contract hauling .. . From ' the testimnoy of Field, Neubauer, other witnesses, the minutes of the first meeting of the Plan , 'and the entire record, it is clear 'and the undersigned finds that the respondent initiated , formed, and sponsored the Plan as a labor organization for the purpose of dealing with the respondent in respect to wages; rates "of' pay, hours of employment or other conditions of employment ; and that the respondent dominated and interfered with the administration of the Plan and rendered financial and other support to it, and that the respondent thereby interfered with, restrained ; and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal-to bargain - collectively . 1. The appropriate unit The amended )complaint alleges and the Teamsters claim that all of the respondent's truck drivers at its Owensboro , Kentucky, plant, constitute a unit appropriate for the purposes of -collective bargaining with respect to rates of pay, wages, hours of employment , or other conditions of employment. In its answer the respondent makes a general denial of this allegation , of the amended complaint. However, it offered, no proof at the instant hearing in support of this, denial, 'and madd no claim in respect to any other appropriate unit. The Teamsters made no effort to organize any of the respondent 's employees; except the truck drivers.° The Meat Cutters had no members -in the respondent's plant in - November or December 1941, although certain employees of the respondent, 'other than the truck 'dT,ers, were ehgi'ble for membership in the' Meat Cutters. 860 DECISIONS OF'NATIDNAL 'LABOR RELATIONS BOARD Theundersigned finds that the aforesaid truck drivers ^have, at all times material herein constituted, and that such employees now constitute,'a -unit appropriate for the purposes of,collective bargaining, -and that,said iunit insures to.employees of the respondent the -full ,benefit of their right to self-organization and to -collective bargaining, and otherwise effectuates the polices of the Act. 2. Representation by-the Teamsters of a majority in ,the appropriate unit The evidence discloses, as related above, that on November 5, 1941, all of the respondent's truck drivers joined the ,Teamsters This fact was not disputed by the respondent. ' Therefore, the undersigned finds that on November 5, 1941, and at all times thereafter, the Teamsters was and now is the duly designated repre- sentative of a majority of the employees in the aforesaid appropriate unit, and that by virtue,of Section.9 (a) of the Act the Teamsters was at all such times and now is the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining in respect to rates of ,pay,, wages, hours,of employment, or other conditions of employment. 3 The 'refusal to bargain ; sequence of events On November 25, Ralph, together with C B Birdsong, president and business manager of Teamsters Local #215," and, Bill Work, his assistant, met Field and Neubauer at the plant. -Birdsong anformed Field that all the truck, drivers had joined the Teamsters, and Ralph stated their names. Birdsong then told Field that he wanted an increase in wages -for the truck 'drivers. Field said that.helwanted a few,days to- think it over. The meeting 'then adjourned to reconvene on' November 27, :but this meeting was not -held because the respond- ent's,office notified Ralph that Field ,was too busy ;to meet them on that date." Field testified that prior to the meeting with Birdsong and Ralph on'November 25, lie did not know that the truck,drivers had joined the Teamsters. However, he further testified, that prior to that meeting, V. W. Brown, manager of the Creamery Department of the plant, had informed him that he had seen Ralph near the creamery on two or three days ; that Rhoades, the respondent's sales manager, had informed him (Field) that some of the employees had joined a union, but he could not recall whether he, received this information from Rhoades before or, after the meeting on November 25,; and that he might have had some ca conversation with his employees concerning unions over a period of time, but that he could not recall any specific conversation. However, as related above, Moore had already informed Sales Manager Rhoades on November 21, that the truck drivers had joined the Teamsters. The under- signed believes and finds that the respondent knew, at the time it advertised for contract truck drivers on November 23, that its truck drivers had joined the Teamsters. The truck 'dr'ivers' meeting ; individual contracts On November '26, the day following the 'meeting with Birdsong and Ralph; the respondent called a meeting 1^_ of the 'truck drivers and certain other em- ployees. The meeting was held in the 'plant and is herein referred to as the truck drivers' meeting. Field, Neubauer, .the respondent's vice president, Kunau, 10 Local x'$ 215 was located at Evansville , Indiana, about 30 mules from the respondents plant. 11 This finding is based upon the credible and undenied testimony of both Field and Ralph. Birdsong did not testify, at the instant hearing 12 It was customary in the plant to hold monthly 'safety" meetings. - FIELD -PACKING 'COMPANY secretary .and treasurer ,of the respondent, all the truck drivers, and approxi- mately 50 other employees were present After a general discussion,of matters pertaining.to the operation,of\the.plant, in general,,and the_,trucks, in-particular, at •.the request of Field, ,all of the 'nonsiiperyisory employees except the truck drivers left the meeting. Field then told the truck drivers that]-the respondent had,been .consideri.ng,-for, some, time, - operatingi all of its ^ meat --trucking, routes ' ,under contract.; that it had now definitely decided to d o -so ; and that an oppor- tunity would now be given to the regular truck drivers to purchase ,the re- spondent's trucks and to operate them as independent contractors. Field out- lined,to them in detail the costs and conditions respecting the various routes ,and probable profits., At that time, the respondent's meat delivery routes were served by its own trucks is operated -by .its own truck drivers. According to Field, all the ,truck drivers tentatively agreed. at that meeting, to accept his proposition ; on the next day, preparations were begun to put the trucks into condition, and the names of two or three truck drivers were painted on the trucks ; but later Basham noti- fied,him,not to prepare a truck for him or to put his name on one because he did not think that the arrangement would be satisfacory to him or to the Teamsters; and Moore, after talking to Ralph, also declined to enter into such it contract. Moore testified that lie attended ,the truck -drivers' meeting; that ,some of the truck drivers were in favor of accepting the contracts and some were not'; that ;the truck drivers„were willing to operate the trucks under contract, as outlined by' Field, povided that tbee Teamsters made the contract-with the re- spondent, otherwise they would not accept the 'proposition.', Wade testified that he-a-Iso attended the truck drivers' meeting and that the truck drivers did not agree to accept the contracts. Employee Joseph Stallings 14 testified that he attended the truck drivers' meeting; that the question of the truck drivers having joined the Teamsters was raised in respect to accepting the individual contracts; that Field said lie had no objection to the truck drivers belonging to the Teamsters; that he (,Stallings) ,was the only truck driver who definitely, decided at that meeting to accept the individual contract and that he did it because'lie thought he could earn more money. Stallings was not a member of the 'Teamsters. Stallings signed one of,.the-individual-contcacts on December. 3.and•,operated.one. of the respondent's trucks for 6 months under this contract and then gave it up. Basham 'testified that he attended the truck drivers' meeting and that he re- fused to accept the individual contract until the -Teamsters had agreed to it. Basinger testified that he attended the truck drivers' meeting; that he did not say definitely at that meeting that he would accept the individual contract ; and that prior -to that 'meeting lie had heard nothing about 'the respondent's contracting the meat routes. The undersigned credits the testimony of Moore; Wade, Stallings, Basham and Basinger, and finds that the truck drivers who were members of the Teamsters, did not accept Field's-proposition atithis meeting. As related above, on November 21, Moore had informed 'Rhoades, ,the .re- spondent's sales manager, that all the truck drivers had joined the Teamsters. Also, this information had been conveyed to Field by Birdsong and Ralph prior to the truck drivers' meeting Therefore at the time of the meeting, the re- spondent knew that the%Teamstersccrepresented=stheiti-uck driverss,and-was their sole representative for, the purposes of collective bargaining. Notwithstanding this fact, the -respondent endeavored to negotiate with the truck drivers in- At that time one route was covered by Mitchell with his own truck under contract with the respondent. i' Stallings was made a tiuck driver about 2 weeks before that meeting. , Be had previously been employed in other departments of the plant. 862--- : DECISIONS OF NATIONAI•,JoABOR;RELATIONS 'BOARD dividually. by having them enter into individual' contracts -for 'the -operation of .the, respondent's., meat routes which- would have-'had- the effect of making the truck .drivers. independent 'contractors and' not employees of the,,.respondent. Field stated at that meeting that it was perfectly all'right for the truck drivers to belong to the Teamsters, so far as the-respondent was concerned. He knew, that. after signing these individual contracts, the truck drivers would be in- dividual contractors and, not employees- of the `respondent; thereby 'eliminating, I -the Teamsters. - . ' While' it is true that, at that time, the respondent operated one of its meat routes under contract, and had contemplated operating other routes under con- tract, still it is significant that the respondent did not definitely inaugurate this system until just after the truck drivers had joined the Teamsters. This action of the respondent can hardly- be considered a coincidence. :: The undersigned finds that the respondent by endeavoring to execute indi- vidual contracts with its truck drivers,, thereby placing them in the category of independent contractors and thus relieving itself of the duty to bargain with the Teamsters as the -sole representative of' these' employees, interfered with, restrained. and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act. ' ' • ' ' -. On December 4, Birdsong and Ralph met Field at the plant. According to Fields, Birdsong told him` that the- truck drivers had reported to him that the respondent had decided to operate the trucks-under individual contracts; that he did not think it was a good-plan, but if the respondent, had definitely decided to do so, and -the, truck drivers agreed to 'accept the contracts; it would be agreeable to him; and that they "get-together with the truck drivers to work out a uniform plan on the contract hauling." Ralph testified that lie was present at the meeting and heard Birdsong say to Field : "Let's get down to business ; we want to get an increase," and Field replied that he had no business to get down to; ',that he did not have any business with the Union ; and that if the truck drivers wanted to belong to the Teamsters; 'it' was perfectly all right with him, but he'was not going to deal with them. Field denied that he ever stated to Ralph that he would not deal with the Union, but he did not deny the remainder of Ralph's testimony in regard to, the meeting., Field testified that Ralph had practically nothing to say at the meetings when Birdsong was present.- In view of all the evidence in, the case the undersigned credits the testimony of Ralph and finds that Field made the. statements as 'testified to - by Ralph. In, connection, with that meeting, Neubauer,testified'that Birdsong said, "Well, I wonder if.we could get together with the boys and work,, out, anythin g on these contracts" ; and that Field said it would be difficult to. work out, anything'with. them as, a group because it had to be on an: individual contract basis. , Field knew, that Birdsong represented the Teamsters and that he was there to bargain for the truck drivers, all of whom' were -members of the Teamsters.16 According to the credible and undenied testimony. of truck driver Wade, Field called him and Basham into the office on or about December 4, and they had a conversation in respect to the individual contracts ; that Field told them that Saturday, December 6, was the "dead line," and if they did not tell him what they were going to do by,that time, he had plenty -of other men to, take their places The record shows that the respondent had received a number of replies from its advertisement for truck contractors placed in the local paper on November 23. Field' admitted that he told Wade and Basham that he wanted "15 Birdsong was present during the'firstday of the hearing, but had to Ie ive for Evansville, Indiana, and did not return He did not testify at the liearing. FIELD PACKING ' COMPANTY 863 to know what the truck drivers were going to do by December 6. In connection with this conversation, Basham testified that Field told him that he had' built. up the plant little by little and that he was not going to see it run or interfered with by someone else; and that he could deal with the truck drivers but he could not deal with Birdsong. Field denied that he told Basham that he could not deal with Birdsong and that he would deal with "the boys" individually. However, in view of all the testimony, the undersigned credits the testimony of Basham Truck driver Basinger testified that on or about December 4, Field called him and Troutman,16 another one of the respondent's truck drivers, into the 'office ; that Field asked them if they had decided on what they were going to do; that they told Field they had not decided ; that he asked Field why could not he (Field), Birdsong,' and the truck drivers get together and settle the question ; that Field replied : "If there is any question I will talk to the boys and I can make an agreement with you but I can't come to any agreement with Birdsong.' Pleat packing is my business and union is his business. I don't understand his business and. he doesn't understand mine." Field denied that he told Basinger that he would not deal with Birdsong or the. Teamsters. However, the under-' signed credits the testimony of Basinger. On or about'December'4, Basham told Field that he did not think the truck drivers would accept the `individual contracts and that lie, himself, would not accept unless the other truck drivers .accepted ; and that Field said he had a stock of applications on his desk from people who wanted the routes. Moore testified that on or about Saturday, December 6, Field called him into his office during working hours and they had a conversation in regard to oper- ating the trucks under individual contracts; that Field asked him what he was going to do about it and 'whether he was going on strike and whether he would cause the respondent any trouble; that he told Field that, if all the truck drivers went on strike, he would go with them but that he was not looking for any trouble ; that he 'then said : "Dir. Field, why is it that you can't meet Mr Birdsong with us boys and make 'a contract?" ; -that Field replied : "I don't' make no contract with Birdsong, no union contract I will meet you boys. I don't want to meet Birdsong' with you boys I am capable of running my own business'here and, I don't need Birdsong and no unions. I don't want any union at all" ; that Field then asked 'him if 'he would' accept the proposed 'contract' and if he wanted to strike; that he replied that he could not 'accept the contract and that, if the other truck drivers struck, lie would do likewise but that other-' wise he would not; that Field told''him'that he was going to operate the trucks under contract and 'if"Moore' did' not want to contract for one, he would get some one else to operate it; that Field ,then told him about the Plan and that under the re-classification of the employees agreed upon at the meeting of the Plan held on December I,' the truck drivers would be classified as semi-skilled- workers and their weekly wages' would be about $28 Field denied having seen' or talked to Moore on Saturday, 1Deceniber 6; but admitted that on Saturday, November 29, Moore told' him that he would guarantee not to cause him any trouble. The undersigned credits the testimony of Moore." On Saturday, December 6, the' truck drivers informed Ralph that they had been notified by 'Field"tliat if they did not accept the individual contracts by' Saturday, December 6, he, (Field) would get someone else to operate the trucks. Ralph immediately telephoned to Field and requested Field to' meet ,with the truck drivers and himself Field' refused and said: "Ralph, I can't'meet a11,- the boys This is individual routes'arid affects each one of them different.,, I "Troutman did not testify'at the instant hearing. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will meet any of the drivers themselves but I won't meet them all as a group. On, this matter I just don't have any business with the, union at all."" , Concluding findings with respect to the refusal to bargain As related above, the record shows that on November 25, representatives of the Teamsters informed the respondent that all of the respondent's truck drivers had joined the Teamsters: that on December 4 the Teamsters requested the respondent to bargain collectively with it in respect to the truck drivers; that the respondent refused to do so, stating that it would bargain with the truck drivers individually, but that it would not bargain with the Teamsters in their behalf The record is clear and the undersigned finds that the respondent on December 4, 1941, and at all times thereafter, refused to bargain collectively with the Teamsters as the exclusive representative of its employees in, an appropriate unit, in respect to rates of pay, wages, hours of employment, or other conditions of employment, and by such refusal the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory discharges and refusal to reinstate The strike The record shows that Field informed the truck drivers that if they did not decide to accept the individual contracts for operating the meat truck routes, ,by Saturday, December 6, he would let the contracts to outside persons, and that he had a number of applications which had been received pursuant,to the respondent's advertisement in the local paper on November 23. The record further shows that the truck drivers informed Field that they would be willing to enter into a contract, provided that it was negotiated by the Teamsters and covered all of the meat routes, but they would not enter into individual contracts. According to Ralph, he and the truck drivers went over to Evansville, Indiana, on Sunday, December 7, and reported this situation to Birdsong; that-Birdsong said "Boys, that fellow Field is a slicker; I don't know anything that you can do to him. If you can get the jump on him and strike him, go ahead and do it. That is the only way you can win. If (you take the contract, he will get rid of you in two or three weeks. If you don't take them you are out of a job, so it don't make much difference. My advice is to go out on- strike and put all the pressure you can on him and try to stop him in other places,";" that he and the truck drivers then returned to Owensboro; that he telephoned to Field and said to him "Mr. Field, the boys, just can't accept that proposition and as far as I am concerned it isn't no agreement' anyway,'they won't accept it; they won't report for work, so you can just get some more drivers ; they are on strike."; and that Field said that he could not meet with Ralph and the truck drivers but that he would meet with the truck drivers individually 19 Moore testified that the truck drivers went on strike because the respondent would not bargain with the drivers and because they wanted an increase in 17 This finding is based on the credible testimony of Ralph and Parvin Greer. Greer was it member of the Teamsters but not an employee of-the respondent. He was in the union -hall and heard Ralph's telephone conversation with Field. 18 This testimony is corroborated by Moore and Basinger 19 The record shows that the truck drivers worked on Sundays if there was any work to do; and that the Louisville and Lexington . delivery, routes, were out on Sundays. FIELD PACKING. COMPANY " 865 wages: Wadei.testified that he went on strike because Birdsong said that Field would not deal with the Teamsters ; that they would not accept the, respondent's individual contracts ; and that Birdsong said there was nothing else to do except strike. The undersigned finds that the strike, which occuried on December 7, was caused by the' respondent's unfair labor practices in interfering with, restrain- ing, and coercing its, employees- and in refusing to bargain- collectively- with the Teamsters, and that the, strike was prolonged on account of the,, respondent's continuation of said unfair labor practices. The record- shows•that on Monday, the next day after the strike, the respondent made some local deliveries of meat by express; and Field also executed some individual, contracts with outsiders for the meat routes; that- Stallings, who had, signed an individual contract on' December 3, began- operating a route ; and that Theodore Whittaker began operating a- route under contract on, December 8; M. 0: Fisher on December 9; Bryan Clark on December 13 and Edward Jackson on December 29, 1941. ' , Subsequent to the strike some, of the routes were merged and their number ,was reduced to four. • The present status is that one route, is being operated under contract with Fisher and all of the other routes by the, respondent with salaried employees. The refusal to reinstate - The record 'shows and, the undersigned, finds that on December 10, 1941,, Bird- song requested Field to. reinstate all the striking truck drivers unconditionally. Field; however, refused to reinstate them or any one of them. Field claimed that the respondent, had already entered into contracts with others to operate the meat routes, and if such contracts were cancelled the respondent would be liable to` suit for damages, therefore' he would not consider reinstating the truck drivers 20 0 The striking truck drivers were thus discharged` on December,10, 1941. No contention is made that the discharges or the refusal to reinstate were for any reason other than that the employees' had refused, to execute individual contracts. Under the provisions of the Act employees are guaranteed the right to engage in concerted activities for their mutual aid and protection. The respondent may not discriminate against them when they assert that right. The action of the respondent in discharging the truck drivers on December 10, 1941, and thereafter refusing to reinstate them, constituted an unlawful discrimination because of their concerted activities" The undersigned finds that the respondent by discharging Lawrence Moore, Denver Wade, Ed Basinger, and H D Basham, and by refusing to reinstate them, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Teamsters and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent( described in Section I above, have a close, intimate and slibstantial relation to trade, traffic and commerce 20 This finding is based on the credible and undenied testimony of both Field and Neubauer. n See, for example, N. L. R B. v. Mackay Radio & Telegraph Co, 304 U. S. 333; Phelps Lodge Corp. y. N. L R. B, 313 U. S 177; Rapid Roller Co v N. L. R B. 126 F. (2d) 452 (C. C. A. 7), enforcing and remanding on another point, 33 N . L. R. B. 557. 866 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD Among the several States and'tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, within the meaning of the Act, it will be, recommended- that,it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent dominated and interfered with the formation and administration of the Plan and contributed financial and other support thereto. The undersigned finds that the effects and consequences of such domination, interference and support renders the Plan incapable of serving the respondent's employees as a genuine collective bargaining agency, and that the recognition of the Plan as the bargaining representative for any of -the respondent's employees constitutes a continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain collectively through representatives of their own choosing. It will therefore be recommended that the respondent withdraw all -recognition from said Plan as 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 work and completely disestablish it as such representative. It has been found that the respondent's unfair labor practices caused and pro- longed the strike which began on December 7, 1941, therefore in order to restore the status quo, as it existed prior to the time the respondent engaged in the unfair labor practices, it will-be recommended' that the respondent: (1) offer reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, to those employees who went on strike on December 7, 1941, and who have applied for and have not been offered 'reinstatement, namely Lawrence Moore, Denver Wade, Ed ;Basigner and H. D. Basham. - The reinstatement shall be effected- in the following manner: all employees hired as truck drivers after December 7, 1941, the date of the commencement of the strike, shall, if -necessary to pi ovide employment for those to -be offered and who shall accept reinstatement, be dismissed. If, however, by reason of a reduc- tion in force there are not immediately available sufficient positions for the remain- ing employees, including those who are to be reinstated, all available positions shall be distributed among such remaining employees in accordance with the respond- ent's usual method of reducing its force, without discrimination against any employee because of his' union affiliation or activities, following such system of seniority as has heretofore been applied by the respondent in the conduct of its business.- Those employees remaining after such distribution for whom no em- ployment is now available shall be placed on a preferential list, -with priority determined among them in accordance with such system of seniority or other non- discriminatory procedure as has Heretofore been applied by the respondent in the 22 The record discloses that C. Troutman and Joe Boone were also employed as truck drivers by the respondent; that they joined the Teamsters; that they went on strike'on December 7, 1941 ; and that, on December 10, 1941, the Teamsters, through its representa- tive, requested the respondent to reinstate all of the striking truck drivers However, since the names of these two employees do not appear in the Teamsters amended charge of in the amended complaint : they did not appear at the •lieaiing ; and no testimony or edidddnce was introduced in respect to them, other than the above, the undersigned makes no finding in ieipect to them - ,FIELD -PACKING COMPANY 867 conduct of.its business, and, therefore, in accordance with such list, shall be offered reinstatement-by the respondent to their former or substantially equivalent posi- tions as such employment becomes available and before other persons are hired for such work. It will further be recommended that the respondent make whole Lawrence Moore, Denver Wade, Ed Basinger and H. D Basham for any loss of pay they may, have suffered by-reason of the respondent's discrimination against them by the payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from December 10,.1941, to the date of offer of reinstatement or placement on a preferential list hereinabove described, less his net earnings,` if uny, during such period. Having found that the respondent refused to bargain collectively with the Teamsters as the exclusive representative of its employees in an appropriate unit, the undersigned will recommend that the respondent, upon request, bargain 'col- lectlvely with the Teamsters as the exclusive representative of those employees in the appropriate unit in respect to rates of pay, wages, hours of employment or other conditions of employment. 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. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #215; Amalgamated Meat Cutters and Butcher Work- men of North America, Local No 227; both affiliated with the American Federation of Labor, and The Plan, are labor organizations within the meaning of Section 2 (5) of the Act. 2 By dominating and interfering with the formation and administration of the Plan and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. - 3 All truck drivers employed by the respondent at its plant in Owensboro, Kentucky, for the purpose of delivering its products have at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Local #215, affiliated with the American Federation of Labor, was on November 5, 1941, and ,at all times thereafter had been, the exclusive repre- sentative of all the employees in the aforesaid unit for the purposes-of collective bargaining within the meaning of Section 9 (a) of the Act. - , 1 5. By refusing to bargain collectively with International Brotherhood of Team- sters; Chauffeurs, Warehousemen & Helpers of,America, Local #215, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the aforesaid unit, the respondent has engaged in and -is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act 6 By discriminating in regard to the hire and tenure of employment of Lawrence Moore, Denver Wade, 'Ed Basinger and H. D. Basham thereby discour- aging membership in the International Brotherhood of Teamsters, Chauffeurs, "By "net earnings" Is meant earnings less expenses such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of'Amertica Lumber, and Sawmill Workers Union, Local .2590, 8 N. L R. B. 440.,,- Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v N L R B., 311 U. S 7. 521247-43-vol. 48-56 868 DECISIONS OF -NATIONAL. LABOR RELATIONS BOARD Warehousemen & Helpers- of America, Local #215 affiliated with- the American Federation of Labor, the respondent has engaged in and, is, engaging in unfair labor practices ' within the meaning of Section 8, (3) of the Act. 7. By interfering with, restraining; and coercing its employees in the exercise ,of the rights guaranteed. in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of- Section 8 (1) .of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within-the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above-findings of fact and conclusions of law, the under- signed recommends that the' respondent, Field Packing Company; Owensboro, Kentucky, and-its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a)• In any manner dominating or interfering with the administration of,, and contributing financial or other support to, the Plan or any other labor organization of its employees; (b) Recognizing the Plan 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 ; (c)' Discouraging membership in International Brotherhood of Teamsters, Chauffeurs,, Warehousemen & Helpers of America, Local #215; and Amalga- mated Meat Cutters and Butcher Workmen of North America, Locals No. 227, both affiliated with the American Federation of Labor, or any other labor organization of its, employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (d) In. any other manner interfering with, restraining, or coercing its em- ployees; in the' exercise of the, right to self-organization, to form; join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to, engage' in concerted activities for the purposes of' collective bargaining or other mutual aid or protection asi guaranteed in Section 7 of the Act. 2. Take the following, affirmative action which the undersigned, finds will effectuate the policies of'the Act : (a) Withdraw and withhold all recognition from the Plan 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 the Plan as such representative'; (b) Upon request, bargain collectively withti the International Brotherhood of Teamsters,, Chauffeurs, Warehousemen &, Helpers of America, Local, $ 215, affiliated with the American Federation of Labor, as, the, exclusive' representative of all truck drivers employed by the respondent at its Owensboro, Kentucky, plant, in respect to rates of pay, wages, hours of employment and other conditions of'employment ; (c) Offer to Lawrence Moore, Denver Wade, Ed Basinger and. H. D. Basham, employees who went, on strike on December 7, 1941, and who have not since been reinstated, immediate and' full reinstatement to their' former or substantially equivalent positions; without prejudice to- their seniority and other rights and privileges, in the manner, set -forth' in the. Section entitled. "The remedy". above, -placing those employees for whom employment is not immediately available upon FIELD PACKING COMPANY 869 a preferential list in the manner set forth in said Section, and thereafter, in said manner, offer them employment as it becomes available for any or all of them; (d) Make whole Lawrence Moore, Denver Wade, Ed Basinger and H. D. Basham for any loss of pay they may have suffered by reason of the respondent's` -discrimination against them'in.'respect to their hire and tenure of employment on December 10, 1941, and thereafter, by payment to each of them respectively of a sum of money equal to the amount which he normally would have earned- as wages during the period from December 10, 1941, to the date of offer of reinstate- ment or placement upon a preferential list, less his net earnings during such period; ZS (e) Post immediately-in conspicuous places throughout its plant at Owensboro, Kentucky, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in para- graph 1 (a), (b), (c), and (d) of the aforesaid recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c), and (d) of these recommendations; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #215, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 227, both affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership in or activity in behalf of those organizations ; (f) Notify the Regional Director for the Eleventh Region in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. As provided in Section 33 of" Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942=any= party 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, Shorehan 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 fourcopies of'a brief in support thereof. As further provided in said Section 33, should, any party desire permission' to argue orally before the Board, request therefor must be'made in writing to the Board within ten (10) days from the-date.of the order transferring, the case to the Board. WILLIAM P. WEBB Trial Examiner. Dated January 14, 1943 24 See footnote 23, supra.