Worthington Creamery and Produce Co.

In the Matter Of WORTHINGTON CREAMERY AND PRODUCE COMPANY and GENERAL DRIVERS, HELPERS, WAREHOUSE, PRODUCE AND CREAMERY EMPLOYEES UNION, LOCAL 909, AFFILIATED WITH TEAMSTERS JOINT COUNCIL No. 34, A. F. OF L. Case No. C-2673.-Decided August 04,143 DECISION AND ORDER On July 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 that it had not engaged in certain other unfair labor practices, and recommending that it cease and desist from the unfair labor prac- tices found and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto, and that the complaint, as amended, be dismissed as to the remaining allegations.- None of the parties filed exceptions to the Intermediate Report or made request for oral argument before the Board. The Board has con- sidered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and qualifications noted below : 1. The Trial Examiner found that the respondent dominated and interfered with the formation and administration of the Independent and contributed financial and other support thereto. While we adopt this finding, in so doing we find it unnecessary to rely upon the Trial Examiner's finding that the respondent is responsible for the activities of its only cashier, Russell Fowler, who participated in the formation and administration of the Independent. Although the status of Fowler is not free from doubt, we consider the evidence insufficient to support a finding that Fowler, who admittedly lacked supervisory authority, either represented management or was identified with it in the eyes of the employees. 52 N. L. R. B., No. 21. 121 122 DEOISiONS OF NIATIONAL LABOR RELATIONS BOARD 2. The Trial Examiner found that, by entering into a closed-shop contract with the Independent, the respondent discriminated with regard to the hire and tenure and terms and conditions of employ- ment of its employees, and encouraged membership in the Independ- ent and discouraged membership in other unions in violation of Sec- tion 8 (3) of the Act, and that it thereby interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act. We have held before, under similar circumstances, that such conduct violates Section 8 (1).' Accordingly, we find that, by entering into an invalid closed-shop contract with the dominated Independent on January 10, 1939, and again on September 17, 1941, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. As in the Palmer case, we find it unnecessary, in view of the state of the record and in view of our opinion-that we shall effectuate the policies of the Act by our remedial order, to determine whether by its conduct in enforcing the closed-shop provision of these contracts the respondent, violated Section 8 (3) of the Act. 'We shall, therefore, dismiss the allegation of the complaint, as amended,. that the respondent, by entering into, maintaining, and enforcing the contracts of January 10, 1939, and September 17, 1941, with the Independent, discriminated against its employees, within the meaning of Section 8 (3) of the Act. 3. The Trial Examiner found, and we agree, that in September 1939 the respondent did not lock out and discharge its employees in the turkey-picking department in violation of Section 8 (3) of the Act. In so concluding, we find that the respondent's conduct in tempo- rarily closing the turkey-picking department was motivated not by the concerted activity of its employees in petitioning for a wage in- crease but by economic considerations. 4. The Trial Examiner found, and we agree, that, following the reopening of the turkey-picking department, the respondent delayed the recall to work of employees Helms, Vestrum, Koepsell, and Rol because of their concerted activity in seeking a wage increase prior to the shut-down, and thereby discriminated in regard to their hire and tenure of employment in violation of Section 8 (1) of the Act. How- ever, we do not concur in the further finding of the Trial Examiner that the respondent's conduct was not violative of Section 8 (3) of the Act. We are of the opinion and we find that, irrespective of whether such concerted activity resulted from any interest or activity in a labor organization, such discrimination has the effect of discouraging the formation of and membership in a labor organization, which is the customary instrument utilized by employees in exercising the right to engage in concerted activities for the purpose of collective bargain- See Matter of Palmer Fruit Company, 51 N. L. R. B. 924. WORTHINGTON CREAMERY AND PRODUCE -COMPANY 123 ing or other mutual aid or protection, as guaranteed by Section 7 of the Act, and constitutes an unfair labor practice within the meaning of Section 8 (3) of the Act.2 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, Worthington Creamery and Produce Company, Worthington, Minnesota, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : - (a) Dominating or interfering with the administration of Inde- pendent Dairy & Produce Workers Union, or with the formation' or administration of any other labor organization of its employees, and from contributing financial or other support to the said organ- ization or any other labor organization of its employees; (b) Recognizing Independent Dairy & Produce Workers Union 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) Giving effect to its contracts of January 10, 1939, and Septem- ber 17, 1941, with Independent Dairy & Produce Workers Union, or to any modification, extension, supplement, or renewal of either, or to any superseding contract with it, which may now be in force; (d) Discouraging membership in any labor organization of its employees by discriminating in regard to the hire or tenure of employment of its employees, or any term or condition of their employment ; (e) 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 purpose 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 all recognition from Independent Dairy & Produce Workers Union 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 condi- tions of employment, and completely -disestablish Independent Dairy & Produce Workers Union as such representative; 2 See Matter of Stehli c6 Co., Inc., et al., 11 N. L. R. B. 1397, 1451; Matter of Dow Ohem- tCal Company, 13 N. L. R. B. 993, 1037. 1 124 DEMNONS OF NIATIONAL LABOR RELATIONS BOARD (b) Post immediately in conspicuous places in all the respondent's establishments, and maintain for a period of at least sixty (60) con- secutive 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), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (3) that the respondent's employees are free to become and remain members of any labor organization and that the respondent will not discriminate against any employee because of his membership or activity in any labor organization; and (4) that the contracts of January 10, 1939, and September 17, 1941, with Independent Dairy & Produce Workers Union, or any modification, extension, supplement, or renewal of either, or any superseding contracts are invalid under the National Labor Relations Act, without prejudice, however, to the assertion by the employees of any legal rights thereunder; - (c) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, as amended, insofar as it alleges (1) that the respondent interfered with, restrained, and coerced its employees by warning them, against affiliation with "out- side" unions, by disparaging the A. F. of L. and other unions, and by granting wage increases in order to discourage membership in General Drivers, Helpers, Warehouse, Produce and Creamery Em- ployees Union, Local 909, affiliated with Teamsters Joint Council No. 34, A. F. of L., and (2) that the respondent discriminated against its employees within the meaning of Section 8 (3) of the Act by locking out and discharging them in September 1939, and by entering into, maintaining, and enforcing the contracts of January 10, 1939, and September 17, 1941, with Independent Dairy & Produce Workers Union, be, and it hereby is, dismissed. CHAIRMAN MIIL.,Is took no part - in the consideration of the above Decision and Order. WORTHING CREAMERY AND PRODUCE COMPANY INTERMEDIATE REPORT Mr. Francis X. Helgesen and Mr. Clarence A. Meter, for the Board. Mr. Arnold W. Brecht, of Worthington, Minn., for the respondent. Mr. Bernard L. Simmer, of St. Paul, Minn., for the Union. Mr. F. B. Kalash, of Lakefield, Minn., for the Independent. STATEMENT OF THE CASE 125 Upon a charge duly filed on April 5, 1943, by General Drivers, Helpers, Ware- house, Produce and Creamery Employees Union, Local 909 , affiliated with Team- sters Joint Council No. 34, A. F. of L., herein called the Union , the National Labor Relations Board, herein called the Board, by its Regional Director for the Eight- eenth Region ( Minneapolis, Minnesota ), issued its complaint dated May 1, 1943, against Worthington Creamery and Produce Company, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and (2) and Section 2 ( 6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent , the Union and Independent Dairy & Produce Workers Union, herein called the Independent. With respect to the unfair labor practices, the complaint alleged in substance that the respondent : ( 1) on or about October 16, 193S, encouraged , assisted and participated in the formation of the Independent and from said date until May 1, 1943, contributed to its support and dominated and interfered with its admin- istration ; and (2 ) from on or about October 16, 1938, to May 1 , 1943, warned and discouraged its employees against affiliation with and activities on-behalf of unions with outside affiliations , disparaged the American Federation of Labor and other unions, and in or about September 1942, gave wage raises to its employees in order to discourage membership and activity in the Union. On June 4, 1943, the respondent filed an answer , admitting certain allegations of the complaint as to the nature of its business but denying that it had com- mitted any unfair labor practices . , On June 9, 1943 , the Independent filed a "com- plaint in intervention" in which it denied in substance that the respondent had committed any unfair labor practices. Pursuant to notice , a hearing was held at Worthington , Minnesota, on June 17 and 18, 1943 , before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. During the hearing the Trial Examiner granted the Independ- ent's motion to intervene . The Board , the respondent, and the Independent were represented by counsel , and the Union by its representative . All parties partici- pated in the hearing Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the Board's case, counsel for the Board moved to amend , the complaint so as to allege a violation of Section 8 (3) of the Act in that the respondent on or about September 20, 1939, locked out and discharged certain employees because of their concerted activities in attempting to secure wage increases . The respond- ent objected to the motion on the ground that the charges were barred by ]aches but the respondent did not claim surprise . The motion was granted . At the close r 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Board's case, counsel for the Board moved to amend the amended com- plaint so as to conform the complaint to the proof so as to allege a further viola- tion of Section 8 (3) of the Act that the respondent on or about January 10, 1939, entered into a written closed shop agreement with the Independent. The motion was granted over the objections of both the respondent and the Independ- ent. The Board also moved to, conform the complaint to the proof as to dates and names. This motion was granted without objection. At the close of the hearing, counsel for the Board, the respondent and the Independent argued orally before the undersigned. Although afforded an oppor- tunity to do so, none of the parties filed briefs Upon the, entire record in the ease and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I 1. THE BUSINESS OF THE RESPONDENT The respondent is a Minnesota corporation, having its principal office and place of business at Worthington, Minnesota, where it is engaged in the purchase, proc- essing, sale and distribution of poultry, butter, eggs and 'other products. The respondent operates branch plants at Slayton, Windom and Luverne, Minnesota, and at Rock Rapids, Iowa, and maintains approximately 25 buying stations in southwestern Minnesota and northwestern Iowa, as well as truck routes for the collection of poultry, eggs and other products. During the 12 months ending March 1, 1943, the respondent purchased raw materials valued at more than $3,000,000, which were shipped to the Worthing- ton plant, herein called the plant, from points outside of the State of Minnesota. During the same period of time, sales, of the respondent amounted to approxi- mately $4,750,00, 95 percent of which represented shipments from the plant to points outside the State of Minnesota. Excepting the fact, hereinafter discussed, that the Independent is recognized by the respondent as, the bargaining agent for all of its employees, this case is concerned only with the plant at Worthington. The respondent employed about 140 employees at the plant in October 1938. II THE ORGANIZATIONS INVOLVED General Drivers, Helpers, Warehouse, Produce and Creamery Employees Union, Local 909, affillat`ed with Teamsters Joint Council No. 34, A. F. of L., is a labor organization which admits to membership employees of the respondent. Independent Dairy and Produce Workers Union is an unaffiliated labor organi- zation whose membership is restricted to employees of the respondent. III THE UNFAIR LABOR PRACTICES A. The background Prior to the formation of the Independent in 1938, it does not appear from the evidence that any labor organization organized or attempted to organize the respondent's employees. There is some evidence in the case that the Union has since 1938 made some attempt.to organize the employees but the record is silent as to the nature and extent of the activities of the Union in this connection. The Board offered no proof to substantiate the allegations in the, complaint that the respondent warned its employees against affiliation with and activities on behalf of unions with outside affiliations, made disparaging statements about the A. F. of 1,., and other unions, and gave wage raises to employees about r WORTHINGTON CREAMERY AND PRODUCE COMPANY 127 September 1942 in order to discourage membership and activity in the Union. Accordingly, the undersigned will hereinafter recommend that these portions of the complaint be dismissed. B. Domination of and interference with the formation and administration of the Independent On October 13, 1938, the organizers of the Independent held a meeting in the "hatchery office" of the respondent. These organizers were Russell Fowler, cashier for the 'respondent, Erick Dirks, foreman of the "feeding floor," Fred Hyke, foreman of the ice cream department, Luke Van Drunen, foreman of the chicken-picking department, O. H. Griffith, foreman or head engineer in the powesr department, George Meyeraan, foreman of the chicken-packing department, R. W. Hoxie, a foreman, and Earl Silver, an employee in the creamery department' At the meeting the advisability-of forming a union was discussed'and a com- mittee, composed of all of the above named employees, was appointed to circa= late among the employees a paper on which they were to indicate their interest in forming a union and willingness to attend a meeting to be held for that pur- pose on October 14 by signing their names. This paper was circulated on respondent's premises, to the employees by the committee, and a meeting was held in the respondent's garage on the night of October 14, 1938.2 At this meeting the officers and directors of the Independent were elected as follows : Fowler, president ; Griffith, vice president ; Helen Meek- lenburg, a general office worker, secretary ; Geryl Gardner, treasurer ; and John Zweep, Silver, Ray Kellam, A. J. Lundquist and John Engelkes, directors. Of the above directors, Zweep was foreman in the hatchery department and Kellam was foreman over the carloading department. Shortly after this meeting the Board of Directors with the aid of an attorney drafted the charter and bylaws for the independent which were later voted on and accepted. 1 Fowler, who was still employed by the respondent at the time of the hearing , testified) to the above facts. Ralph W. Bergstrom, who was vice president of the respondent in 1938 and president at the time of the hearing, testified that Hoxie, Meyeraan, Valk Drunen, Griffith and Dirks were "minor department" foremen and were not considered to, be foremen under the Wage and Hour Law (Fair Labor Standards Act). With respect to the duties of minor depaitinent foiemen, Bergstrom testified that they had "from 1 to, 30 or 40 [employees under their supervision] at different times of the year" ; that more than 20 percent of their time is used in manual work ; that, prior to the organization of the Independent, they made recommendations for wage increases ; that they had the power to hire and dischaige employees, but were first required to confer with management; and that they have authority to lay off employees at the end of seasonal work. The fact that these "minor department foremen" were considered subject to the wage and hour provisions of the Fair Labor Standards Act is not conclusive as to their status as foremen. The undersigned takes judicial notice of the rulings and interpretations of the Wage and flour Division of the Department of Labor These rulings merely hold that foremen are subject to the provisions of that Act when a certain percentage of their time is spent in manual work, as distinguished from purely supervisory duties, and are not determinative of their status as foremen or supervisors . In the circumstances of this case , it is clear and the under- signed finds that the above -designated foremen were representatives of management and their actions are attributable to the respondent. 2The record discloses that after the above mentioned meetings the Independent con- tinued to hold meetings on the premises of the respondent. At the time of the hearing the regular meetings of the Board of Directors of the Independent were still held on respond- ent's premises. For these meetings the Independent paid the respondent at the rate of 50 cents for use of the "hatchery office" and $2 for use of the garage . Bergstrom testified) that, when the meetings were first held, E O. Olson was the officer of the respondent through whom arrangements for use of the premises would have been made. Olson was not called as a witness. 128 DECSSIsNS OF NATIONAL LABOR RELATIONS BOARD At sometime on or before January 10, 1939, Fowler as a committee of one for the Independent, conferred with E. 0 'Olson, president of the respondent at that time. Fowler requested that the respondent recognize the Independent as the bargaining agent for all the employees and presented a copy of the charter and bylaws to Olson for his approval With respect to this conference, Fowler testi- fied, and the undersigned finds, that the following conversation took place: A. I gave him the copy and told hiin I would like to have him look it over ,and see whether he would accept the charter as the board of the Inde- -pendent union had drawn it up and as it had been accepted by the union members-employees of the company. Q. Do you recall what Mr. Olson said? A. He said he would .3 Within a few days Olson returned ,the copy of the charter and bylaws to Fowler, signed as follows Signed and accepted this 10th day of January, 1939, at Worthington, Minnesota. Worthington Creamery And Produce Company By E. O. Olson Fowler then had the charter and by laws printed in booklet form, including Olson's acceptance as, noted above. Fowler testified, and the undersigned finds that it was the Independent's intention, as bargaining agent for the employees, to enter into contractual relations with the respondent by having Olson accept the charter and bylaws. That the respondent, by Olson's signing of the charter and bylaws, intended to enter into a contract with the Independent as the exclusive bargaining agent for all employees is clear by reason of the wording of this document, which in effect is a combination of charter and bylaws and a contract, embracing provisions relating to the terms and conditions of employ- ment, and the undersigned so finds.' The record indicates-that neither Olson nor any other officer of the respondent, with the possible exception of Bergstrom, attempted to ascertain that the Independent represented a majority of the respondent's employees before entering into this contract with the Independent.' Although no foremen were officers or members of the Board of Directors of the Independent at the time of the hearing, the evidence does disclose that foremen and other representatives of management's did occupy such positions in the Independent for at least 3 years after its formation. ' Olson was chairman of the Board of Directors of the respondent at the time of the hearing, but as noted above, was not called as a witness, although not shown to be unavailable. 4 Provisions in the charter and bylaws provide that the respondent will deduct from wages delinquent dues of members of the Independent, that "new employees shall first make application for membership to the Union" before being permitted to start work for the respondent, and for seniority rights. 6 In this connection, Bergstrom testified as follows : I talked to those who attended the meeting-I think, perhaps, the original meeting, and asked them if they had a majority of the employees there and if the majority of them were in favor of the union. 6 Fowler, respondent's cashier, and hereinafter found to be a representative of manage- ment, was an officer and director of the Independent until October 1941. WORTHINGTON CREAMERY AND PRODUCE COMPANY 129 September 1942 in order to discourage membership and activity in the Union the Independent.. It was still in effect at the time of the hearing, pursuant to an automatic renewal clause. The contract contains the following provision : N. The Company agrees not to hire any employee until such employee makes an application for membership in the Union as herein provided, and said Company agrees not to retain any employee in its employ unless such employee becomes a member of the Union within fifteen days from the date of such employment. By the wording of this clause the undersigned believes and finds that the respondent and the Independent intended thereby to enter into a form of closed shop agreement During the term of the contract it has been construed as such by the parties. The evidence supports this finding in that at the time of the hearing all but a few new employees were members of the Independent, and in, that the respondent upon the request of the Independent at various times notified employees that their dues were in arrears. By implication, these notices threatened discharge unless the dues were paid promptly. The respondent on an undisclosed number of occasions gave money, ice cream and other donations to the Independent. The donations were in connection with picnics and parties sponsored by the Independent. Standing alone, the under- signed would not consider these donations as material financial support to the Independent. However, in addition to these donations, the respondent rented its premises to the Independent for meetings at rates which the undersigned considers nominal. Accordingly, the undersigned believes and finds that the respondent contributed financial and other support to the Independent. Fowler, as cashier for the respondent, clearly was a representative of manage- ment, although without any supervisory authority? The fact that he and six foremen were on the organizing committee leads the undersigned to the con- clusion that the Independent was the creature of the respondent. These fore- men were responsible for their respective departments and did not have any general foreman or supervision over them other than from the main office. The constituency of this organizing committee, the solicitation on respondent's premises for membership in the Independent by the foremen, and the holding of the first general meeting on the premises of the respondent, unquestionably led the employees to believe that the Independent was sponsored and favored by the respondent. On all the evidence, the undersigned finds that the respondent dominated and interfered with the formation and administration of the Independent and con- tributed financial and other support thereto, 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. ' Since the Independent is not and never has been the lawful representative of the respondent's employees for the purpose of collective bargaining in regard to rates of pay, wages, hours of employment and other conditions of employ- ment, the contract, any extension, renewal, modification or supplement thereof, and any superseding contract between the respondent and the Independent are T Fowler was head cashier, for the respondent and worked in the main office of the plant. His work brought hint constantly into association with officers of the respondent and in the eyes of the employees he was clearly identified with management. 130 DECM&IONS OF NATIONAL LABOR RELATIONS BOARD void and of no effect. Independent of this finding of the invalidity of the above mentioned contracts, the closed shop provision is invalid, having been made with a labor organization established, maintained and assisted by unfair labor practices. Therefore, the closed shop provision does not fall within the proviso of Section 8 (3) of the Act. The undersigned further finds that the respondent , by entering into a contract containing a closed shop provision with the Independent , discriminated in regard to the hire and tenure and terms and conditions of employment of its employees, thereby encouraging membership in the Independent and discouraging member- ship in other unions, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. C. The alleged lock-out At the Plant, the respondent has a "turkey -picking" department. With a few exceptions, the employees in this department are women and at all times hereinafter mentioned, Sarah Ogg, a "checker", had general supervision over it e Work in the department is seasonal and it is in operation only during the fall of each year, or from about September to December . For the most part the employees do not work for the respondent during the remainder of the year. In September 1939 about 60 or 70 persons were employed in this department. On or about September 15, 1939, the employees in the turkey-picking depart- ment drew up a petition asking for an increase in the piece -rate. The evidence discloses that Walter Helms, Florence Holm Rol, Celia Koepsell and Eddie Vestrum were the instigators of the petition and that it was mainly through their efforts that the petition was circulated among and signed by all but a few of ,the employees in the turkey -picking department . Helms and Vestrum then presented the petition to Fowler , president of the Independent and cashier, for the respondent . Fowler first showed the petition to Ogg and then pre- sented it to Olson , who told Fowler at the time that the respondent was paying all that it could afford. Shortly thereafter, and about one day after the petition had been presented to Fowler , Ogg told the employees that there was no more work and that they would be called back to work by the respondent when needed. Acting on instructions from Bergstrom , Ogg recalled the employees to work at the same wages after a lay-off of about 5 days, starting on September 21. Certain other employees whose work was incidental to turkey-picking and who had not signed the petition were also laid` off. Helms, Rol, Vestrum, and Koepsell were not called back to work until a day or two after the other employees had been recalled , even though Helms, Rol and Koepsell had seniority over many of the employees. When announcing the lay-off, Ogg, ' upon being asked by Helms the reason for the lay-off, told him that he should know.' When employee Minnie Breeze was called back to work, Ogg told Breeze that she did not think that Breeze would sign such a paper ( as the petition )." Ogg testified that she "might" have asked some of the employees concerning the instigators of the petition and that she thought that Helms, Vestrum, Koepsell and Rol were connected with it. She further testified and the undersigned finds that these four employees were not called back to work at the same time as other employees because Bergstrom 8 There is no dispute in testimony with respect to Ogg 's supervisory status as head of the "turkey-picking" department. 0 This conversation was testified to by Helms Ogg had been employed by the respondent during the 1942 season and expected to be employed again in 1943. She was called as a witness by the Board and did not deny the above statement. 10 This conversation was testified to by Breeze and admitted by Ogg. WORTHINGTON CREAMERY AND PRODUCE COMPANY 131 had told her to first call back the employees that she felt "... didn't have anything to do with getting up that petition."" With respect to this lay-off, Bergstrom testified, and the undersigned finds, that on or about September 20, 1939, the market for dressed turkeys was weak and dropping, that it was difficult to dispose of dressed turkeys, that the turkeys at that time were "green and picked very tough," thus causing low wages to the piece-rate employees, and that for these reasons and also for the reason that the turkey pickers were demanding an increase in the piece-rate the respondent decided on the lay-off until conditions improved.' It is clear from the evidence that the respondent discriminated against Helms, Vestrum, Koepsell and Rol by reason of their concerted activities within the meaning of Section 8 (1) of the Act, and the undersigned so finds 13 However, the undersigned finds that the respondent did not discriminate against the other employees in the turkey-picking department. Although the respondent admit- tedly was influenced to some extent by the petition in its determination to lay-off the employees, nevertheless the undersigned believes that the lay-off was mainly caused by financial considerations and was not a deliberate effort to throttle the concerted activities of the employees involved. 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 substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondents have engaged in unfair labor practices, the undersigned will recommend 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 and contributed financial and other support to the Independent. It will therefore be recommended that the respondent with- draw all recognition from the Independent as representative of its employees for the purpose of dealing with the respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employ- ment, and completely disestablish it as such representative. The undersigned, having also found that the respondent entered into an illegal contract with the Independent providing for a form of closed shop, will recommend that the respondent cease and desist from giving effect to the contract of September 17, 1941, or to any extension, renewal, modification, or supplement thereof, or any superseding contract or agreement which may now be in force. n Bergstrom admitted instructing Ogg to ask the employees to return to work at the same wages and did not deny the above statement attributed to him by Ogg. 12 Bergstrom's testimony concerning the weak market and unsatisfactory picking condi- tions is uncontradicted. The reasons for the lay-off appear reasonable and accordingly, the undersigned credits Bergstrom's testimony in this respect. '3 Ogg, when asked whether the delayed recall of these 4 employees was in the nature of a punishment, replied "I suppose so " The concerted activity of these employees did not result from any interest or membership in a labor organization Accordingly the under- signed does not find that the respondent's discrimination against them constituted a violation of Section 8 (3) of the Act, but that such discrimination constituted interference, restraint, and coercion within the meaning of Section 8 (1) of the Act. See General Shale Corporation et al. 26 N. L. R. B. 921, 549875-44-vol. 52-10 132 DECISIONS OF NATIONAL LABOR REfLATIONtS BOARD Nothing in this recommendation, however, should be taken to require the re- spondent to vary those wages, hours, and other substantive features with the employees themselves, if any, which the respondent established in the perform- ance of such contract, as extended, renewed, modified, supplemented, and superseded. The undersigned has found that the respondent has discriminated in regard to the hire and tenure of employment of Walter Helms, Florence Holm Rol, Eddie Vestrum and Celia Koepsell because of their concerted activities in endeavoring to obtain wage increases.for the employees in the respondent's turkey-picking department. By reason of this discrimination the above four employees lost wages for at least one day's work in September 1939. However, a claim covering the above discriminations was not made by the employees involved until the Union filed with the Board a second amended charge dated June 16, 1943.. Upon the basis ; f this amended charge, the Board moved to amend the complaint at the hearing. Under these conditions the undersigned will not recommend that the respondent make whole these four employees for any loss of wages resulting from the above found discriminations.14 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. General Drivers, Helpers, Warehouse, Produce & Creamery Employees Union, Local 909, affiliated with Teamsters Joint Council No. 34, A. F of L., and In- dependent Dairy & Produce Workers Union, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of Independent Dairy & Produce Workers Union, and by contributing financial and other 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. By discriminating in regard to the hire and tenure of employment of its employees, thus discouraging membership in labor organizations and encourag- ing membership in Independent Dairy & Produce Workers Union the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. - 4. By discriminating in regard to the hire and tenure of employment of Walter Helms, Florence Holm Rol, Eddie Vestrum, and Celia Koepsell, because of their concerted activity the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent did not interfere with, restrain, and coerce its employees by warning them against affiliation with "outside" unions, by disparaging the A. F. of L. and by granting wage increases. 8. The respondent did not discriminate against its employees in regard to their hire and tenure of employment by the alleged lock-out and discharge in September 1939. 14 N. L. R. B. V. Metal Mouldings Corp., (C. C. A. 6) decided April 6, 1943, enforcing as modified 39 N. L. R. B. 107. WORTHINGTON CREAMERY AND PRODUCE COMPANY 133 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the un- dersigned recommends that the respondent, Worthington Creamery & Produce Company, and its officers , agents, successors, and assigns, shall : 1. Cease and desist from (a) Discouraging membership in any labor organization of its employees and encouraging membership in Independent Dairy & Produce Workers Union or any other labor organization of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; (b) Dominating or interfering with the formation and administration of Inde- pendent Dairy & Produce Workers Union, or the formation or administration of any other labor organization of its employees, and from contributing support to Independent Dairy & Produce Workers Union or any other labor organization of fts employees ; (c) Giving effect to its contract of September 17, 1941, or to any extension, renewal, modification or supplement thereof, or to any superseding contract or agreement which may now be in force with the Independent Dairy & Produce Workers Union ; (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, and 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 undersigned finds will effect the policies of the Act : (a) Withdraw all recognition from Independent Dairy & Produce Workers Union as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances,i labor disputes, wages, rates of pay, hours of employment, or other conditions 'of employment, and completely dis- establish Independent Dairy & Produce Woikers Union as such representative, (b) Post immediately in conspicuous places in all of the respondent's estab- lishments, and maintain for a period of at least sixty (60) consecutive days notices to its employees stating: (1) that the respondent will not engage in.the conduct from which it is, recommended that it cease and desist in paragraph 1 (a), (b), (c) and (d) hereof; and (2) that it will take the affirmative action set forth in paragraph 2 (a) hereof; (c) Notify the Regional Director for the Eighteenth 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. It is recommended that the complaint be dismissed insofar as it alleges that respondent interfered with, restrained, and coerced its employees by warning them against affiliation with "outside" unions, by disparaging the A. F of L. and by granting wage increases. It is further recommended that the amended complaint be dismissed insofar as it alleges that the respondent discriminatorily "locked-out" and discharged its employees in `September 1939. It is further recommended that unless on or before ten ( 10) days from the receipt of this Intermediate Report the respondent notify said Regional Director in writing that it will comply with the forgoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. 134 DECQ',SIONS OF NATIONAL LABOR REII.Af1ZONIS BOAR As provided in Section-38 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, Rochambeau Building, Washington, D O., 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 relied upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33 , should any party desire per- mission to argue orally before the Board , request therefor must be made in writ- ing to the Board within ten (10 ) days from the date of the order transferring the case to the Board. JOHN H. EAnnJ, Trial Examiner Dated July 14, 1943.