Supersweet Feed Co., Inc.

In the Matter of SUPERSWEET FEED COMPANY, INCORPORATED and GEN- ERAL DRIVERS UNION, LOCAL 851, A. F. OF L. In the Matter of MINNESOTA BI-PRODUCTS, INC. and GENERAL•DRIVERS UNION, LOCAL 851, A. F. OF L. Cases Nos. 18-C-1069 and 18-C-1070, respectively -Decided June 4, 1945 DECISION AND ORDER On November 18, 1944, the Trial Examiner issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the re- spondents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, on December 26, 1944, the respondents, jointly, filed exceptions to the Intermediate Report and a supporting brief. Oral argument before the Board at Washington, D. C., was not requested, and none was held. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the respondents' exceptions and brief, and the entire record in the consolidated case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner save as they are inconsistent with our findings, conclusions, and order hereinafter set forth. 1. From the record it appears that a number of persons who had worked in Supersweet's plant and a number of persons who had worked in Bi- Products' North Redwood plant were in the Armed Forces of the United States at the time that the Union made demands on Supersweet and Bi- Products for recognition as the exclusive bargaining representative of their respective employees.) Like the Trial Examiner, we are of the opinion, I With a single exception, none of the persons in the Aimed Forces had designated the Union as bargaining representative , and the number of such military personnel was sufficient to affect the Union's majority status at each plant if such persons must be counted for such purpose 62 N. L R B, No 9. 53 54 I)ELLSIONS OF NATIONAL LAI1OR RELATIONS BOARJJ contrary to the respondents' contention, that the number of these persons in military service need not be added to the number of employees in the respective appropriate units, who were working at the time the Union made its demands for recognition, for the purpose of determining the Union's status as'majority representative 1-lowever, the respondents' contention merits a more comprehensive treatment than that given it by the Trial Examiner. Apparently, as in the case of industrial workers generally who have entered the armed forces, a considerable number of the respondents' em- ployees now in military service are stationed overseas in widely scattered and inaccessible parts of the world and are, therefore, for practical purposes, not directly concerned with immediate collective bargaining. Although these persons retain their status as employees while in military service, they are not therefore at present directly concerned in the choice of a bargaining agent. On the other hand, in the instant case, a majority of the respondents' employees in the respective appropriate units, who are working, have selected a bargaining agent to represent them. To add to these groups of employees, those employees of the respondents who are in military service N^ould destroy the Union's status as majority representative in each of the appropriate units and them;eby deny the i espondents' employees, who are working, the right to bargaining collectively through representations of their own choosing Such a definition of "majority," as used in Section 9 (a) of the Act, would not, in our opinion, effectuate the policies of the Act The Congress has vested the Board wi ith discretionary authority to inter- pret the language of the Act to insure its effective administration _ In the recent Hearst Publications case.' the United States Supreme Court said . . the broad language of the Act's definitions, which in terms reject conventional limitations leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic 2 Thus, in representation proceedings under Section 9 (c) of the Act, .i ni.i)ot ity of the employees eligible to vote in an election are not requited to cast ballots in oidet fm a labor oganization to secure certification . but it may be ceitified as the result of having received a majority of the valid votes cast See, for example , Matter of Elite Laundry Company of Washingto n, D C, 55 N L R B 226, New York Handkerchief Manufacturing Company v N L R B , 114 F (2d) 144 (C C A 7), N L R. B v. Standard Lime and Stone Company, 116 L R R 401, decided May 11 , 1945 (C C A 4); N L. R. B. v. Central Dispensary and Emergency Hospital, 145 F (2d) 852 (App D C ), Bert denied 65 S Ct. 684. Also, the Board has held in iepresentation cases that certain classes of employees although included in the appropriate bargaining unit , nevertheless , do not have sufficient interest in the selection of a bargaining representative to participate in the determination of representatives See, for example, Matter of Northern Indiana Public Service Company, 51 N L R B 500 , Matter of Wadha)n'c Division of Socony - Vacuum Oil Company, 54 N L R B 1164 ; Matte; of Muncie Malleable Foundry Company, 56 N L R B . 473; Matter of Spencer Shoe Corporation , 61 N L R B 1058; Matte) of Post Printing and Publishing Company, 59 N. L. R B 1115. 3 N L R B v . Hearst Publications, Incm Po) ated, if al , 322 U S 111 SUPERSWEET FEED CO11 PA N Y, INCORPORATED 5 5 facts rather than technically and exclusively by previously- established legal classifications.' The question of eligibility of employee,, on military leave to participate in the selection of a bargaining representative in representation proceedings has been answered by the Board. Exercising its administrative discretion, .the Board has evolved the policy of permitting employees in the armed forces to participate with employees in the appropriate unit, who are work- ing, in the selection of a bargaining representative only if such military personnel present themselves in person at the polls. The Board placed this limitation upon the privilege of such employees to participate in a deter- mination of representatives because of the impracticability of affording them an opportunity to vote by mail.' In the interesf of best effectuating the policies of the Act by making col- lective bargaining an immediate possibility to the respondents' respective employees in the appropriate units now working, we conclude that only t hose employees who are presently at work and in a pay status should be included in the computation for determining whether the Union has been designated by a majority of the respective employees of the respondents in the appropriate units as their bargaining representative. To hold otherwise would mean that in no plant where a majority of the employees are in the armed forces could the employees working in the plant compel their em- ployer to bargain with a representative designated by them. Accordingly, we find, as did the Trial Examiner, that, pursuant to Section 9 (a) of the Act, the Union is the exclusive representative of all employees in the respec- tive units found appropriate by the Trial Examiner for the purposes of collective bargaining. Our holding in this respect, however, is not to be construed as a reversal of the principle that employees on military leave retain their status as employees and, as such, have a real interest in the choice of a bargaining representative We decide only that a union's status as majority represen- tative may be determined without reference to the number of employees in an appropriate unit who are members of the armed forces because the interest of the employees in the appropriate unit now at work in immediate collective bargaining outweighs the more remote interest of military person- nel in present terms and conditions of employment. When it is demonstrated that the respondents' employees in military service have returned to their employment in sufficient numbers so that they comprise a substantial per- 4 In upholding the Board 's finding as to the appropriate units in the Hearst case, and specifically referring to excluded categories of bootjackers , temporary , casual, and part-time newsboys, the Supreme Court further said The discretion which Congress vested in the Board to determine an appropriate unit is haidly overstepped by the choice of a unit based on a distinction so clearly consistent with the need fm responsible baigaunng That the Board's selection emphasizes difference in tenure iathei than function is, on this record , ceit.unly no abuse of discretion s See, for example, Matter of Hine Safety Appliance Co , Caller y Plant, Calls, v, Pa , 55 N L. R B. 1190 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD centage of the employees in either of the bargaining units herein found to be appropriate, the Board will, upon proper motion, reexamine its determi- nation as to employee representation. 2. We do not agree with the Trial Examiner's conclusion that, by reduc- ing R. H. Lord's wages and penalizing him with loss of seniority and other rights, as alleged in the complaint, Bi-Products discriminated in regard to hire and tenure of employment within the meaning of Section 8 (3) of the Act. Bi-Products contends that Lord's wages were reduced not because he was a member of the Union but because he quit,his job on May 25, 1944, thereafter requesting reinstatement, and was rehired as a new employee on May 29, 1944, in accordance with the terms of its contract with the Asso- ciation .' Bi-Products also contends that a further reason which motivated it to reduce Lord's wages was its desire to placate its other truck drivers who had complained that ito discriminated against them by paying Lord higher wages than they were receiving. Lord, employed as a truck driver, commenced working for Bi-Products in September 1942. As found by the Trial Examiner, on May 25, 1944, Clair Sweesy, Bi-Products' supervisor of its truck drivers, posted on the bulletin board at the North Redwood plant a notice to the effect that its truck drivers no longer would be permitted to use Bi-Products' trucks to transport themselves to and from work, as had been the custom. Upon observing the posted notice concerning the use of trucks when he returned to the plant from his truck route on the night of May 25, Lord removed his radio, blankets, and certain other personal, belongings from the truck that he had been driving, and left the plant without informing anyone of his intention not to return to work the next day. Lord did not report for work on May 26 or May 27, nor did he on either of those days inform Bi-Products of any reason for his absence He spent those 2 days, according to his testi- mony, endeavoring to purchase an automobile so that he would have a means of transportation to and from work.' When Lord returned to the plant on Monday morning, May 29, accord- ing to his testimony, he sought out Claude Beager, foreman of the plant, and asked Beager why he (Lord) was no longer permitted to drive a'Bi- Products' truck to and from work. According to Lord's testimony, Beager told him, "The boys was going to join the union and we figure we would get tough now." According to Lord, lie asked Beager if lie wanted Lord to continue working and Beager referred Lord to Truck Supervisor Sweesy, who told Lord that he, Sweesy, would "like to have Lord continue" work- ing; and that, after this conversation, Lord returned to his truck driving job The Association's contract with Bi-Products provided that "persons who quit or are discharged for just cause , if rehired , shall be considered as new employees " The contract also stipulated that new employees be paid at the rate of 40 cents an hour s Lord lived about 2 % miles fiom the North Redwood plant The record does not disclose whether any means of public transportation to the plant was available to Lord SUPERSWEET FEED COMPANY, INCORPORATED 57 Foreman Beager and Truck Supervisor Sweesy testified that, because' Lord had removed his personal belongings from the truck on May 25 and failed to report for work on May 26, they then concluded that he had quit Beager further testified that Lord approached Beager on the morning of May 29 and told Beager that he, Lord, had changed his mind and that he wanted to "go back to work"; that Beager gave his perinission but advised Lord, "You will have to talk to Mr. Sweesy, he has charge of the truck driving"; that Beager and Lord walked over to where Sweesy was working and Beager opened the conversation by informing Sweesy, "Bob [Lord] came and asked me if he could go back to work and 1 said I gave my per- mission but, of course, I told him he would have to talk to you" ; and that Sweesy replied, "Well, Bob, you will have to start in as a beginner, the way you quit." Sweesy corroborated Beager's testimony as to his conversa- tion with Lord. Sweesy also testified that he reinstated Lord as a beginner in accordance with a company rule which provided, in effect, that any employee who was discharged or quit and was thereafter reinstated was to be reinstated as a beginner or new employee; and that Lord raised no objection when Sweesy informed Lord that he would have to 'return to work at a beginner's pay. Lord denied that he asked for reinstatement and also denied that he was told on May 29 that he was being rehired as a new employee at beginner's wages. He testified that he did not know that his wages had been cut from 50 cents per hour to 40 cents per hour until the following pay day, June 3, 1944, at which time he complained to Beager and Sweesy about the amount of his pay check and that Sweesy then told Lord that he had been rehired on May 29 as a new employee at beginner's wages. The Trial Examiner failed to resolve the conflict between the testimony of Lord and that of Beager and Sweesy as to whether Lord asked for reui- statement on May 29 and was informed by Sweesy that he would have to return to work as a new employee at beginner's wages. While we do not discredit Lord's testimony as to his conversatioi with Beager and Sweesy on the morning of May 29 in its entirety, we are of the opinion, and find that Sweesy informed Lord on that occasion that he.was being reemployed as a new employee at beginner's wages.' To support Bi-Products' contention that it reduced Lord's rate of pay in order to satisfy the grievance of its other truck drivers, E. R. Monson, vice president of both respondents, credibly testified without contradiction, that about January 1, 1944, an inexperienced girl employed by the respondents as a bookkeeper, through a clerical error, raised Lord's pay from 45 cents to 50 cents per hour, that this mistake was not discovered and rectified by Bi-Products until about 6 weeks later; that Lord protested the consequent 8 We credit, among other things , as did the Trial Examiner , Lord's testimony as to his conversation with management representatives as to Bi -Products' reasons foi discontinuing the custom of allowing the truck drivers to use company trucks lot transportation to and from work 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '-eduction in his wages and threatened to quit ; that , in order to retain Lord, Monson promised "to give [Lord] enough hours" so that he would suffer no loss in his take-home pay; that sometime in April, 1944, Berton Parson, the manager of Supersweet's plant and secretary of the Association, and Association President Pat Corcoran informed Monson that the other truck drivers were complaining because Lord 's wages were higher than their own; and that he (Monson ) told them he would "take care of the matter as quick as possible ." Employee Donald Sundem and employee August Beck- endorf, both of whom signed union authorization cards, and Parson cor- roborated Monson's testimony to the effect that the truck drivers had complained about, Lord 's higher wages. From the record it appears that, Lord took no active interest in the Union until he signed an authorization card on May 29, 1944 , the day he returned to work after being absent for 2 days. Lord testified that he did not attend the meeting of May 24, 1944, which the Union held at Bechyn, Minnesota. Furthermore, according to Lord's testimony, employee L. W. Gilow, who witnessed Lord's signature on the authorization card signed by him, did not give Lord a union button to wear until June 2 or 3, 1944. Under the circumstances, particularly the fact that Lord removed _ his personal belongings from the truck that he was driving and left the plant on the night of May 25 without notifying anyone of his intention not to work the next clay, coupled with the fact that he did not report for work on May 26 and 27 and failed to notify Bi-Products of the reason for his absence, thereby creating an.inpression that he had quit; the fact that the other truck drivers of Bi-Products had complained to Bi-Products about, Lord's higher wages, the further fact that Sweesy advised Lord when he returned to the plant on May 29 that he would have to return to work as a new-employee at beginner's wages, in accordance with Bi-Products contract with the Association, and the fact that Lord had demonstrated no interest in the Union until he joined it on May 29, the clay of his return to work, and did not receive a union button until June 2 or 3, we find, contrary to the Trial Examiner, that Lord's membership in the Union was not the motivat- ing reason that prompted Bi-Products to reduce his wages and classify him as a new employee on May 29, 1944 We shall, therefore dismiss the com- plaint insofar as it alleges that the respondent , Bi-Products, discriminated against R. H. Lord within the meaning of Section 8 (3) of the Act ORDER Upon the basis of the above findings of facts and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the Na- tional Labor Relations Board hereby orders that the respondents, Super- sweet Feed Company,Tncoiporated. and Minnesota Bi-Products, Inc., their officers, agents , successors, and assigns shall r SUPERSWEET FEED CO\tPANY, i CORPORATED 59 1. Cease and desist from : (a) Discouraging membership in General Drivers Union, Local 851. A. F. of L., or any other labor organization of their employees, by discharg- ing or refusing to reinstate any of their employees, or by discriminating in any other manner in regard to hire or tenure of employment, or any term or condition of employment ; (b) Dominating or interfering with the administration of Association of Rural Industrial Employees, or with the formation and administration of any other labor organization of their employees, or contributing financial or other support to the Association of Rural Industrial Employees, or any other labor organization of their employees, (c) Recognizing the Association of Rural Industrial Employees as a representative of their employees for the purpose of collective bargaining (d) Giving effect to their contracts of September 1, 1942, with the Asso- ciation of Rural Industrial Employees, or to any extension, renewal, modifi- cation, or supplement thereof, or any superseding contract with said labor organization which may now be in force, (e) Refusing to bargain collectively with General Drivers Union, Local -851, A.-F. of L , as the exclusive representative of their respective employees in the units hereinbefore found appropriate, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other terns ur conditions of employment ; - (f) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist General Drivers Union, Local 851, A F. of L., or any other labor organization, to bargain collectively through repre- sentatives 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 etfe::- duate the policies of the Act : (a) Supersweet shall offer to Ed Corcoran immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, (b) Supersweet shall make whole Ed Corcoran for any loss of pay lie may have suffered by reason of Supersweet's discrinuuation against him, by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from the date of the discrimination against him to the date of Supersweet's offer of reinstate- ment, less his net earnings during such period; (c) Bi-Products shall offer Albert Wagner immediate and full reinstate- anent to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (d) Bi-Products shall make whole Talford Moe and Albeit \Vagncr for 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any loss of pay that they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The remedy" ; (e) Supersweet shall withdraw and withhold all recognition from the Association of Rural Industrial Employees as the representative of any of its employees for the purposes of dealing with Supersweet concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and completely disestablish the Asso- ciation of Rural Industrial Employees as such representative, (f) Supersweet shall reimburse each of its employees for dues paid by him to the Association of Rural Industrial Employees since September 1, 1941; (g) Supersweet shall, upon request, bargain collectively with General Drivers Union, Local 851, A. F. of L., as the exclusive representative of all its production and maintenance employees, including truck drivers, but excluding office and clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, in respect to grievances, labor disputes, rates of pay, wages, hours of employment, and. other terms and conditions of employment; (h) Bi-Products shall withdraw and withhold all recognition from the Association of Rural Industrial Employees as the representative of any of its employees for the purposes of dealing with Bi-Products concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and completely disestablish the Association of Rural Industrial Employees as such representative ; (i) Bi-Products shall, upon request, bargain collectively with General Drivers Union, Local 851, A. F. of L., as the exclusive representative of all its production and maintenance employees, including all truck drivers and the carpenter employed at its North Redwood plant, but excluding office and clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, in respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other terms and conditions of employment ; (j) Bi-Products shall reimburse each of its employees for dues paid by him to the'Association of Rural Industrial Employees since September 1, 1941; (k) Supersweet shall post at its plant in Redwood Falls, Minnesota, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by Supersweet's representative, he posted by said respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all SUPERSWEET FEED COMPANY, INCORPORATED 61 places where notices to employees are customarily posted. Reasonable steps shall be taken by the said respondent to insure that said notices are not altered, defaced, or covered by any other material ; (1) Bi-Products shall post in its plants in North Redwood and Long Prairie, Minnesota, copies of the notice attached hereto, marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by Bi-Products' represen- tatives, be posted by said respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the said respondent to insure that said notices are not altered, defaced, or covered by any other material ; (m) Each of the respondents shall notify the Regional Director for the Eighteenth Region, in writing within ten (10) days from the date of this Order, what steps it has taken to comply herewith. AND IT IS FURTHER. ORDERED that the complaint filed i n Case No. 18-C- 1070 against Minnesota Bi-Products, Inc., Redwood Falls, Minnesota, be, and it hereby is, dismissed insofar as it alleges that said respondent dis- criminated against R. H. Lord within the meaning of Section 8 (3) of the Act. MR. JOHN M. HOUSTON took•no part in the consideration of the above Decision and Order. APPENDIX B NOTICE TO ALL E \MPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We hereby disestablish Association of Rural Industrial Employees as the representative of any of our employees for the purpose of deal- ing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or administra- tion of any labor organization or contribute financial or other support to it. We will offer to Albert Wagner immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights or privileges previously enjoyed. We will make whole Albert Wagner and Talford Moe for any loss of pay that they may have suffered by reason of the discrimination against them. We will reimburse each of our employees for dues paid by him to 62 I)1:CIS1ONS OF \A'I'IUNAAL LABOR RELATIONS BOARD Association of Rural Industrial Employees since September 1, 1941. We will bargain collectively, upon request, with the General Drivers Union, Local 851, A. F. of L., as the exclusive representative of all employees in the bargaining unit described herein with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is : All production and maintenance employees, including all truck drivers and the carpenter employed by Minnesota Bi-Prod- ucts, Inc , Redwood Falls, Minnesota, at its North Redwood plant, but excluding office and clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or, effectively recommend such action. We will not in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist General Drivers Union, Local 851, A. F. of L., or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organi- zation MINNESOTA BI-PRODUCTS , INC. (Entplolier) By (Representative) (Title) Dated gory-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon applicat on in accordance «ith the Selective Service Act after discharge from the armed forces This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We hereby disestablish Association of Rural Industrial Employees as the representative of any of our employees for the purpose of deal- ing with us concerning grievances, labor disputes, wages, rates of pay, SUPERSW\'EET FEED COMPANY, INCORPORATED 63 hours of employment, or other conditions of employment, and uu•e will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or administra- tion of any labor organization or contribute financial or other Support to it. We will offer to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Ed Corcoran We will reimburse each of our employees for clues paid by him to Association of Rural Industrial Emplofees since September 1, 1941. We will bargain collectively, upon request with the General Drivers Union, Local 851, A F. of L., as the exclusive representative of all employees in the bargaining unit described herein with respect to griev- ances , labor disputes, rates of pay, wages, hour, of employment, or other terms or conditions of employment and if an understanding is reached, embody such understanding in a signed agreement. The bargaiiing unit is: All production and maintenance employees, includ- ing truck drivers employed by Supersweet Feed Company, Incorpo- rated.-Redwood Falls, Minnesota, but excluding office and clerical employees and Supervisory employees with authority to hire, promote, discharge, discipline. or otherwise effect changes in the status or em- ployees or effectively recommend such action We will not in any manner interfere with, restrain, or coerce our employ- ees in the exercise of their right to self-organization, to form labor organi- -rations, to join or assist General Drivers Union, Local 851, A F of L. or any other labor organization. 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 All our employees are free to become or remain members of this union, or any other labor organization \Ve will not discriminate in regard to hire or tenure of em- ployment or any terns or condition of employment against any employee because of membership in or activity on behalf of any such labor organizaion SUPERSWEET Fern CosIPANY, INCORPORATED (Emplayer) By (Reps esentative' (Title) Dated NOTE-Any of the above-named cinplovee-, picscntly sorting in the. armed forces of the United States will be offered full reinstatement upon applicator in accordance sNith the Selective Sena-c Act after discharge from the armed forces 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr Clarence A Meter and Mr William J. Scott, for the Board Mr. Henry Holladay, of Minneapolis , Minn, and Mr N R Ryerson, of Redwood Falls, Minn., for the Respondents. Mr. Lee F. Schreiner, of Minneapolis , Minn, for the Union. Mr. Julian E illorten , of Redwood Falls, Minn ., for the Association. STATEMENT OF THE CASE Upon an amended charge duly filed on July 14, 1944 , by the General Drivers Union, Local 851, affiliated with the American Federation of Labor, herein called the Union,' the National Labor Relations Board, herein called the Board , by the Regional Director for the Eighteenth Region ( Minneapolis, Minnesota ), issued its complaint, dated August 11 , 1944, against Supersweet Feed Company , Incorporated, herein called Super- sweet, alleging that Supersweet had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (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 complaint and amended charge, accompanied by notice of hearing thereon , were duly served upon Supersweet , the Union and the Association of Rural Industrial Employees ,2 a labor organization alleged in the complaint to be existing in violation of the Act , and herein called the Association . Upon a second amended charge duly filed by the Union on August 7, 1944, the Board , by its said Regional Director, issued its complaint, dated August 11, 1944, against Minnesota Bi-Products Company , Inc, herein called Bi-Products, alleging that Bi-Products had engaged in and was engaging in unfair.labor practices affecting commerce within the meaning of Section 8 ( 1), (2), (3), and ( 5) of the Act Copies of the complaint and second amended charge, accompanied by notice of hearing thereon, were duly served upon Bi-Products , the Union , and the Association On August 5, 1944, the Board, acting pursuant to Article II. Section 36 (b) of the National Labor Relations Board Rules and Regulations-Series 3, as amended , ordered the case against Supersweet, being Case No 18-C-1069, and the case against Bi-Products,' being Case No. 18-C- 1070, be consolidated . Copies of the said order were duly served upon the parties in both cases. With respect to the unfair labor practices, the complaints alleged in substance that the respondents ( 1) on or about July 1, 1941 , instigated , sponsored , and interfered with the formation of the Association and continuously since that date have ( a) par- ticipated in solicitation or campaigning on behalf of the Association on the respond- cuts' time and properties , ( b) dominated and interfered with the administration of the Association , ( c) actively fostered and promoted the gro\N th of the Association , ( cl) on or about September 1, 1942, entered into written closed-shop agreements with the i The Union is affiliated with the Intonational liiotherhood of Ti.unsteis, Chauffeurs, watchousc- men & Helpers of America which, in tutu, is affiliated with the American Federation of Labor Incorrectly referred to in the complaint and the amended charge as "Rural Industrial Employees of Redwood Falls " 2 Collectively Supeisweet and Ui-Pi oducts are referred to hetcui as the iespondcnts SUPERSWEET FEED COMPANY, INCORPORATED 65 Association coveruna their respective employees,' (c) since the formation of the Association dominated and interfered with its administration and contributed support to it; (2) pursued courses of action and plans of combating and interfering with the self-organization of their respective employees; (3) entered into the aforesaid closed- shop agreements as part of their plans to defeat the self-organization of their respective employees and therefore, the said contracts are illegal, unenforceable, and void; (4) since May 15, 1944, questioned their respective employees about their union activities and affiliations; (5) made disparaging statements about, and otherwise expressed dis- approval of, the Union; (6) coerced, urged, and warned their respective employees to refrain from assisting, becoming or remaining members of the Union, (6) threatened to close their respective plants if the employees joined the Union; (7) promised certain employees raises in wages if they would forsake the Union; (8) on or about June 20, June 29, and July 11, 1944, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of their respective employees in certain appropriate units, although a majority of said employees in each of said appropriate units had designated the Union as their representative for such purpose, and (9) by the foregoing acts interfered with, restrained, and coerced their respective employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint against Supersweet further alleged that it discharged Ed Corcoran on or about June 10, 1944, and thereafter refused to reinstate him to his former or substantially equivalent position, for the reason that he joined and assisted the Union and engaged in concerted activities with his fellow workers for the purposes of collective bargaining or other mutual aid or protection. The complaint against Bi-Products further alleged that it discharged Talford Moe6 and Albert Wagner on or about June 17, 1944, and thereafter refused to reinstate them to their former or equivalent positions, and had, on or about June 5, 1944, reduced the wages of R H Lord,' for the reasons that they, and each of them, had joined and had assisted the Union and had engaged in concerted activities with their fellow workers for the purposes of collective bargaining or other mutual aid or protection. On August 24, 1944, Supersweet filed an answer denying the commission of the alleged unfair labor practices The answer admitted, however, the allegations of the complaint as to the corporate existence of Supersweet and the nature, character, and extent of the business transacted by it including the allegations that the Union and the Association are labor organizations within the meaning of the Act. The answer also admitted the execution of a collective bargaining contract on September 1, 1942, but denied that the said contract was violative of the Act The answer affirmatively averred that Corcoran was discharged because "of inefficiency and inability to perform his work, and for no other reason ." The answer further averred that the Board was without jurisdiction to hear and determine the issues regarding the legality of the Association on the ground that the proceedings herein were not brought within the 4 The evidence shows that Supeisweet and the Association cnteted into a collective bit gaining contract on September 1, 1942 On the saine day the Association and Lti -Products entered into an identical contract covering the entplolees at Bi-Piriducts' North Redwood and Long Pi.iuie plants At the heating, the respondents and the Association maintained that these contracts were in full force and effect because of the automatic renewal clauses contained in the contracts The evidence reveals that timely notice was given by the Association to the respondents of the forniei's desire to enter into negotiations for new contracts to commence on of about Septembei 1, 1944 6 Also refericd to in the iccoid as Telford Hoc. Also refer i ed to in the i ecord as Robert H Loi d 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time prescribed by the provisions of the National Labor Relations Board Appropria- tions Act of 1944' and 1945. On August 24, 1944, Bi-Products filed an answer deny mg the commission of the alleged unfair labor practices. The answer admitted, however, the allegations of the complaint as to its corporate existence and the nature, character, and extent of the business transacted by it, including the allegations that the Union and the Association are labor organizations within the meaning of the Act. The answer also admitted the execution of a collective bargaining contract on September 1, 1942, but denied that the said contract was violative of the Act. The answer affirmatively averred that Moe and Wagner were discharged for the "reason of inefficiency, insubordination, the drinking of intoxicating liquor on the job, and because of absence from the job when they were expressly requested to be present" and that Lord voluntarily quit work on or about the date alleged in the complaint without cause or provocation, and subsequently was rehired at a lower wage scale pursuant to the terms and provisions of the aforesaid collective bargaining contract between Bi-Products and the Association. The ansi+er also averred that the Board was without jurisdiction to hear and determine the issues regarding the legality of the Association on the ground that the proceedings herein were not brought within the time prescribed by the provisions of the National Labor Relations Board Appropriations Acts of 1944 and 1945 Pursuant to notice, a hearing was held from August 29 to September 2, 1944, inclu- sive, at Redwood Falls, Minnesota, before Howard Myers, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner At the opening of the hear- ing, the Association moved to intervene. The motion was granted without objection The Association did not file an answer. The Board, the respondents, the Union, and the Association were represented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses,, and to introduce evidence bearing upon the issues was afforded all parties Before the introduction of any evidence, counsel for the respondents moved to dismiss the allegations of the complaints regarding the legality of the Association on the ground that the present proceedings were not brought within the time prescribed by the National Labor Rela- tions Board Appropriation Act of 1944. This motion was renewed at the end of the Board's case and again at the conclusion of the taking of all testimony. Decision thereon was reserved. The motion is hereby denied. The 1944 Appropriation Act expired on June 30, 1944, and was followed by the National Labor Relations Board Appropriation Act of 1945. Under the latter Act, limitations somewhat similar to those contained ni the 1944 Act are imposed upon the use of the Board's funds during the current- fiscal year, but the 1945 Act expressly provides that such limitations shall not apply to agreements with labor organizations formed in violation of Section 8 (2) of the Act 8 4 The limitations of the 1944 Act (Public Law No. 135, 78th Congress, 1st Session ) read as follows- "No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement between management and labor which has been in exist- ence for three months or longer without complaint being filed; Provided, That, hereafter, notice of such agreement shall have been posted in the plant affected for said period of three months, said notice containing information as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested person " The limitations in the 1945 Act (Public Law No 373, 78th Congress, 2nd Session, Title IV) read as follows: "no part of the funds appropriated in this title shall be used in any way in connec- tion with a complaint case arising over an agreement, or a renewal thereof, between management and labor which has been in existence for three months or longer without complaint being filed by an employee or employees of such plant: Provided, That, hereafter, notice of such agreement, or renewal thereof, shall have been posted in the plant affected for said period of three months, said notice containing information as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested person- Provided further, That these limi- tations shall not apply to agreements with labor organizations formed in violation of Section 158 paragraph 2, title 29, United States Code [Sec 8 (2) of the National Labor Relations Act] " SUPER S\YE1-`T FEE'D COMPANY, INCORPORATED 67 Since the contract involved herein was entered into with a labor organization formed in violation of Section 8 (2) of the Act, as found below, the Board is not precluded from proceeding herein under the legislation now in force. At the conclusion of the Board's case, counsel for the respondents moved to dismiss the complaints for lack of proof. The nnption was denied. At the conclusion of the hearing, counsel for the respondents and for the Association moved to dismiss the complaint for lack of proof. Decision thereon ere reserved. The motions are hereby denied Board's counsel then moved to conform the pleadings to the proof. The motion was granted-without objec- tion.° Oral argument, in which counsel for the Board, the respondents, and the Asso- ciation participated, was i eard at the conclusion of the taking of the evidence and is part of the record. The parties were granted leave to file briefs on or before September 9, 1944.1° A brief has been received from the respondents. Upon the entire record in the cases and from his observation of the witnesses, the undersigned makes, in addition to the above, the following FINDINGS OF FACT I THE BUSINESSES OF THE RESPONDENTS Supersweet Feed Company, Incorporated, is a Minnesota Corporation having its principal office and place of business and plant at Redwood Falls, Minnesota, where it is engaged in the manufacture, sale, and distribution of poultry and livestock feeds During the 6 months period ending June 30, 1944; Supersweet purchased raw materials valued in excess of $50,000, approximately 30 percent of which was shipped to its plant from points outside the State of Minnesota. During the same period, the finished prod- ucts manufactured by Supersweet amounted in value to approximately $100,000, of which more than 50 percent was shipped from its plant to points outside the'State of Minnesota. Minnesota Bi-Products, Inc, is a Minnesota corporation having its principal office and place of business at Redwood Falls,. Minnesota It owns and operates a rendering plant at North Redwood, Minnesota,' and one at Long Prairie. Minnesota,' at which places it is engaging in the manufacture, sale, and distribution of certain products derived from' the carcasses of diseased animals. During the 6 months period ending June 30, 1944, finished products manufactured by Bi-Products at is North Redwood plants amounted in value in excess of $100,000, of which approximately 60 percent was shipped to points outside the State of Minnesota During the same period, approxi- mately the same amount of merchandise in dollar value, was manufactured at the Long Pairie plant and approximately the same percentage of the finished products was shipped to points outside the State of Minnesota. The respondents' counsel and Board's counsel stipulated at the hearing that during all the times material herein, the respondents made approximately the same purchases and sales, in dollar value, as set forth above. Since 1941, the officers and directors of both respondents have been the same. The respondents do not contest the fact that they are engaged in commerce within the meaning of the Act II. THE ORGANIZATIONS INVOLVED General Drivers Union, Local 851, is a labor organization affiliated with the Inter- ° Specifically the motion amended paragraph 8 of the Complaint against Bo-Products to read that Loid's salary was reduced on May 29, 1944, instead of on June 5, 1944, as alleged in the complaint 1° At the request of counsel for the respondents the time to file briefs was extended to and including September 27, 1944 11 This plant is approximately 2 miles fi oni North Redwood and about 4 miles from Redwood Falls 12 Approximately 15 miles from North Redwood. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica which, in turn, is affiliated xi ith the American Federation of Labor Association of Rural Industrial Eniployces is an unaffiliated labor oig.tnization Both organization, admit to membership employees of the respondents - iii '1'ilE UNFAIR LABOR PRAC11CES, A Interference, restraint, and coercion, the domination of and interference with the formation and administration of the Association I Chronological statement of the facts A The Association There is no evidence of the existence of any labor organization in the respondent's plants prior to 1941. Sometime in June or July of that year, the employees of Bi- Products talked among themselves regarding the advisability of joining a labor union At about this time Jake Piersol, Supersweet's then sales manager, suggested to Berton Parson" that he form an unaffiliated union. This, Parson proceeded to do, after dis- cussing the matter with the employees at the North Redwood plant and with the supervisor of -the truck di ivers at the Long Prairie plant Parson then consulted an attorney who drafted a proposed charter and by-laws for-a labor organization to be known as "Association of Rural Industrial Employees " This attorney also prepared proposed contracts, which were subsequently presented to the respondents for execution. On July 14, 1941, the Association held its first meeting, which was attended by prac- tically all the North Redwood plant employees and a number of employees from the Long Prairie plant." The managers and the foremen of the North Redwood and Long Prairie plants also attended this meeting" Almost all the employees of both plants, including the managers and foremen, joined the Association at this meeting or shortly thereafter 10 At this meeting employee Roy Wendt was elected president,'"' and Parson secretary-treasurer" A resolution was adopted prohibiting foremen from 'holding "any office other than serving on a committee." This resolution, however, was not incorporated in the Charter and By-laws which were adopted at the secotld meeting of the Association held on July 21, 1941 In any event, the resolution has been completely ignored because Parson has been continuously the Association's secretary. During the .first year or so of the Association's existence, Parson was its secretary-treasurer Shortly after the above meeting, Parson, in order to get, as Parson testified, the "reaction" of the officials of the respondents to the newly formed organization asked Edward Monson, the vice president of both respondents, what he thought of the Asso- ciation According to Parson, Monson indicated that he was neither in favor of nor 13 At the time of his talk with Piersol, Parson was a salesman for Bi-Products In September 1941, when Supersweet reached normal production , he was made manager of the Supersweet plant 14 Supersweet , although organized in the spring of 1941 , did not get into full production until September of that yeas At the time of the July 14 meeting, Supersweet did not have many employees On September 1, or shoitly thereafter, the employees of Supersweet joined the Association 11 The managers of the plants have authority to hire and discharge employees Some foremen have this authority , while othei foremen have authority only to recommend the hiring and discharging of employees' 18 Piersol was a member of the Association When Supersweet reached its normal production, Piersol left Supersweet 's employ and Parson became plant manager Parson ' s predecessor was Emil Kenner, who was also a member of the Association Supersweet's sales manager, Homer Hanson, is also a member 1' One of Wendt's opponents for the office of president was Clarence Gunderson, manager of the Long Prairie plant 18 Although the Association ' s By-laws provide for a vice president , no one has ever been elected to that office SUPERSWEET FEED COMPANY, INCORPORATED 69 against such an organization, but added that he thought the Association "might he all right." On July-21, 1941, as stated above, the Association held its second meeting which was attended mainly by the North Redwood plant employees, only a few Long Prairie plant employees attended At that time the Charter and By-laws were approved and adopted. The proposed agreements which the Association's attorney had-prepared were also approved. One agreement, with some minor changes, was executed by Supersweet and the other, with the same minor changes, was executed by Bi-Products on or about Sep- tember 1, 1941 The former agreement covered Supersweet's employees and the latter agreement covered Bi-Products North Redwood and Long Prairie plants employees These agreements were not introduced in evidence because, according to counsel for the respondents and for the Association, they could not be located although a thorough search had been made for them. The evidence, however, indicates that the aforesaid contracts were similar to, if not identical with, the contracts executed by Supersweet and Bi-Products on or about September 1, 1942 The 1942 contracts are identical 19 Each provides, among other things, for a closed-shop, grievance procedure, and "senior- ity rights as set forth in the Charter of the Association." Each contract, according to its terms, was to remain in effect until September 1, 1943, and from year to year there- after unless 30 days' written notice is given by either party to the other of its desire to negotiate a new contract No notice to change either of the 1942 contracts was given until sometime during the summer of 1944, when the Association notified each respond- ent of its desire to negotiate a new contract The Association's Charter and By-laws provide, among other things, for an executive board consisting of seven members to be elected annually for a term of three years, except that at the first general meeting seven members shall be elected to the executive board, three for a term of one year, two for a term of two years, and two for a term of three years This board is the governing body of the Association and is the "sole bargaining agency between the employer and the employees" , acts in all disputes between "the employer and the employees"; annually elects from among the Associa- tion's members a president, a vice president, a secretary, and a treasurer ; appoints all committees, whose duties the executive board defines, necessary for the proper func- tioning of the Association. The Charter and By-laws also provide for seniority rights, initiation fees of one dollar, monthly dues of 25 cents, and general membership meetings to be held in March and September of each year The record discloses that most of the provisions of the Charter and By-laws have been completely ignored. Thus, it was the membership who elected the president and secretary-treasurer The former was elected to office on July 14, 1941, and remained the Association's president until the As,ocia- tion's fourth meeting20 which was held at the North Redwood plant on December 14, 1943. This meeting was attended by employees from the North Redwood and Super- sweet plants, and one or two truck drivers from the Long Prairie plant. As stated above, Parson was elected secretary-trea surer by the members at the meeting held on July 14, 1941 Sometime in the latter part of 1942, or early in 1943, Parson delegated the duties of treasurer to employee Donald Sundem and Parson continued as secretary. At the December 14, 1943, meeting, which was held at the North Redwood plant, Parson was elected secretary and Sundem treasurer At this meeting, Clair Sweesy, 11 These contracts are in evidence. 20 The Association's third meeting was held at the North Redwood plant on Fehi nary 17, 1942, at which time a resolution was adopted "to ask the company to allow vacations on full time to employees after one year's service " The riders attached to the 1942 contracts provide for 1 week's vacation with pay for employees in the seivice of their respective employei for 3 years of more Each rider also contains a wage scale The wage scale for the Superswect employees is di(feient fioni that of the Bi-Products employees 70 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD supervisor of the North Redwood plant truck ch ivers, was one of the W o men elected to the grievance committee At no time \\ ere members elected to the executive board Parson testified, and the undersigned finds, that an executite board did function; that he, the Association's president, and members of the gi ievance committees of the various plants composed the executive hoard, and that the executive hoard was the Associa- tion's governing body tuth respect to grievances and other matters pertaining to employer-employee relationship Early in September 1941, Supei sit eet leached normal production and Parson was made plant manager, which position lie has held continuously Despite the fact that Parson has the authority to hire and discharge employees and had complete charge of the plant, the respondents permitted him to remain a member and to be active in behalf of the Association' His activity on behalf of the. Association was well known to the officials of the respondents because all grievances were submitted to Parson who, if lie thought the grievances had merit, presented them, either alone or in company with the Association's president, or a member of the executive board, to the officials of the respondents Parson's activities, while plant manager, were not confined to passing upon and presenting grievances to the respondents He admittedly solicited members for the Association, collected dues and informed delinquent members that they might be discharged if they did not nnuiediately pay their clues , periodically prepared and caused to be posted in the plants lists containing the names of Association members, indicating after the names of the delinquent member, the amount of dues in arrears, and called and presided at meetings of the Association Parson also admitted calling Association meetings on company time and piohertie, Parson, moreover, admitted that he told the employees that the leaders of the Union were "racketeers " As found below, Parsons also threatened-employees with[ reprisals if they did not forsake the Union and remain members of the Association. Parsons, furthermore, was not the only supervisor who was active on behalf of the Association. The managers and foremen of the various plants attended Association meetings, participated in the election of officers, and one foreman was a member of the grievance committee In fact, Gunderman, the manager of the Long Prairie plant, collects dues at that plant and transmits his receipts to Parson for deposit in the Association's bank account Furthermore, since the inception of the Association, Supersweet has, without charge, provided the Association tt nh necessary office facilities, file cabinets, and other storage space for its records b The activities of the Union On May 17, 1944, three employees of Bi-Products called at the Union's headquarter- and requested information relative to organizing the employees. Pursuant to that conference, and the one held on the following day between one of the said three men and a union representative, the Union advertised throughout the Supersweet and the North Redwood plants that the Union would hold a mass meeting at a specified tune and place on May 20 A short time prior to the scheduled hour, two representatives of the Union appeared at the designated place and were told by the manager of the place that the respondents' employees had notified him that the meeting had been cancelled The representatives then left The meeting had not been cancelled A great many of the respondents' employees appeared at the place designated and waited several hours for the Union's representatives; no one had told them that the representatives had been there and had left. Parson, Claude Beager, and Clair S'weesy, the manager and foreman, a Monson testified that on several occasions he "requested" Parson to resign his office in the Association and that each time Parson refused to do so He furthe, testified that he did not force the issue for feat that Parson "might" leave Sure, sweet', employ It is. significant to note that Alon:nn never requested Parson to resign as a membei of the Association, no, did hi, eve, -k any nihei plant manager or foremen to resign from the Association SUPERSW41 EET FEED COMPANY, INCORPORATED 71 respectively, of the North Redwood plant, and Irvin Larson, foreman of the Supersweet plant, were present with the intention of attending the meeting. These supervisors based their right to attend the meeting, according to Beager's testimony, on the fact that the notices invited all employees of the respondents to attend and they considered them- selves within that classification. On May 24, 1944, the Union held a meeting at Bechyn, Minnesota, a town about 4 miles from Redwood Falls, which was attended by about 33 of the then approximately 50 employees of the respondents. There, 28 employees signed cards authorizing the Union to represent them for the purposes of collective bargaining. Almost all the em- ployees who signed authorization cards joined the Union and paid their initiation fees of five dollars each, either at this meeting or shortly thereafter. Between May 24 and June 19, eight additional employees joined the Union. The fact that so many employees had joined the Union at the May 24 meeting must have caused the officials of the respondents considerable concern because they immediately embarked on a campaign to forestall the Union's organizational drive. Thus, on May 25, Bi-Products posted a notice forbidding its truck drivers to use its trucks to drive to and from work. Prior to that date, the truck drivers were given permission, due to the long distances some of the truck drivers lived from the plant and there being no public conveyances near the plant, to use the trucks for that purpose. Bi-Products denied that the employees' activi- ties or membership in the Union was the reason for the prohibition against such use of the trucks. The undersigned does not credit this denial and finds that Bi-Products denied the truck drivers permission to use the trucks to transport themselves to and from work in order to demonstrate to its employees the futility of joining the Union. This finding is buttressed by the conversation between Manager Beager and employee Lord several days after the aforesaid notice had been posted, wherein Beager told Lord that the notice was posted because "The boys was going to join the union and we figured we would get tough now,"' and by the following conversation, which Lord testified that he had with Foreman Swees_v about a week after the notice was posted: Well, as we was riding along Mr Sweesy put it up to me. He said, "Now if you boys would get back in your little union like you were and your dues were paid up, you fellows could take your trucks home each night." And I said, 'I think you are too late.' And we got to talking a little further and he got to talking about the A. F. of L union. And he said the boys joining up with that thing was liable to close the plant down' and if the big union got in they would close it up, this plant at North Redwood Then they would haul their stuff to other plants around that didn't belong to it. And he said that they could go around and pick out the fellows that belonged to this union because they were wearing buttons. And he figured inside a week's time he could get enough on them so he could get rid of them.22 Employee Beckendorf testified, without contradiction, and the undersigned finds, that a week or two after the notice had been posted he had a conversation with Sweesy wherein Sweesy said to Beckendorf that "if you boys would quit this funny business you guys could take your trucks home again." In the latter part of May, or early in June, Monson called the Supersweet and the North Redwood plants employees together and told them that because of their drinking intoxi- 22 Beager denied that he made the above quoted statement Lord was an honest and forthright witness Beager did not so impress the undersigned , who finds that Beager made the statement. m Sweesy denied that he made the statements which Lord attributed to him . Lord was a forthright and honest witness Sweesy, on the other hand , was not In fact, Sweesy 's testimony is not worthy of any credence In some instances his testimony was contradicted by witnesses called by the respondents It was evident to the undersigned that Sweesy, while on the witness stand was deliberately with- holding the true facts about the matters upon which he was being questioned. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eating liquors and fooling on the job the quality of production had decreased consid- erably, that the men could not expect a wage mu,rease until the quality of the production had returned to normal, and that if it did not i eturn to normal he would close the plants Monson admitted that during ht,, talk at this meeting lie advised the employees that lie would rather deal with the Association than with an "outside" labor organization However, no proof was introduced to substantiate Monson's statement that production had decreased. Furthermore, Monson admitted that he told the employees that only some of them had been drinking of the job and not attending to their work The under- signed is convinced that the meeting was called only for the purpose of warning the employees to forsake the Union. This finding is supported by the fact that the Union had not demanded recognition as yet nor had it asked that the employees' wages be increased. A general wage increase, moreover, with the permission of the National War Labor Board, had been given the employees of Supersweet in March 1944, only 2 or 3 months prior to Monson's talk.14 The undersigned finds that Monson's remarks at this meeting were calculated to, and did, discourage the employees in their right to self-organization and were violative of the Act. The record, moreover, shows that very few employees joined the Union subsequent to Monson's talk. If, as Monson testified, he (lid not threaten to close the plants because of the activities of the employees in behalf of the Union, his remark that he would rather deal with the Association than with an "outside" labor organization was a clear indication to the employees of the respondents' antipathy for the Union. Shortly after the Union's meeting of May 24, according to the undenied credible testimony of employee Ray Carruth, Parson called him into his office and asked him about the meeting. Carruth replied that nearly all the Supersweet employees had joined the Union 25 Parson then asked Carruth what wage increase the Union stated it would obtain for the employees. When Carruth replied that that question was not discussed at the meeting, Parson stated that the employees were "very foolish to join [the Union] because he figured [the employees were] just getting taken for a ride, all [the Union] was after was [the employees'] money." Carruth also testified, and the undersigned finds, that sometime in the latter part of June 1944, Parson again called him into his office and showed Carruth a wage scale which Supersweet planned to put into effect shortly; that Parson told Carruth he could obtain a ten cent an hour increase provided he signed an agreement to withdraw from the Union, that Parson also stated that he was sure that if Carruth signed the agreement the other employees would also sign it; and that when he told Parsons he would not sign the agreement, Parson threat- ened to deduct his delinquent dues from his salary. During the afternoon of May 24, Parson asked employee Ervin Peterson whether he was going to attend the Union's meeting that evening and if he intended to join the Union. Peterson replied that he intended to go to the meeting but did not know whether or not he was going to join Whereupon, Parson said "Pete, I think you are awful foolish" to forsake the Association and join the Union During the first week it July 1944, according to Peterson's testimony, he had a conversation with Parson, wherein the latter told Peterson that the respondents had petitioned, or were about to petition, the National War Labor Board for permission to grant a general wage increase and if he would resign from the Union and return to the Association he would receive a 15 24 Sometime during February or March 1944, according to the undenied ciedible testimony of Wendt, the then president of the Association, either Monson or Ralph Ballard, president of both respondents , told Wendt that if the employees wanted a wage increase they would have "to keep up [their] end of the bargain" by paying their Association dues. 22 Nine of the then eleven Supersweet employees designated the Union as their collective bargaining representative at the May 24 meeting, one on May 27, and the other on June 5. All these employees joined the Union and were members in good standing at the time of the hearing SUPERSWEET FEED COMPANY, INCORPORATED 73 cents raise in wages.° Peterson also testified that sometime in June 1944, Beager, the manager of the North Redwood plant, "razzed" him for joining the Union and then said to him, "Pete, I will bet you (you) will have less money at the end of the year than you would have if you did not belong to the Union "" Employee John Juergens testified without contradiction, and the undersigned credits his testimony, regarding a conversation he had sometime in the latter part of June or early in July, 1944, with Parson: Q. Will you tell us what took place at that time? A At that time [Parson] had the wage scale And he said the work I was doing, I would come under skilled labor and my wages would be 65 cents an hour. That was 20 cents more than I was getting. Q. You were getting 45 cents at that time? A.. Yes. Q. And what else did he say? A. He said,. `If you stick to our company, our own organization, you will get that rating: And I said I would stick to my 851. And he said, `I think you are very foolish because,' he said, 'we won't stand any contract with no other union.' He says, `They can't come in here.' He said, `As far as signing with another union,' he says, `that is out.' Q. Do you recall anything else or any other conversation that took place at that time? A Yes, he said there was three men at the rendering plant at North Redwood that had already throwed up their button and he said they were going to get a raise in wages; they were sticking to their'own company organization . And he said that the union tried to get into Long Prairie but they didn't have any luck there, they couldn't get in And they were going to stay by the company union. Q Did he tell you he had been up to Long Prairie? A. Yes, he said he had been tip and see those boys and he said they were going to stay with the company organization And he said when he came back he went up to see Mr. Monson and told him that they would have to do something, that the boys wanted more money, that the company would have to raise their wages. Sometime in August 1944, the respondents granted the employees a general wage increase of 2% cents per hour. This increase received the approval of the National War Labor Board. The respondents had asked for an average wage increase of about 10 cents an hour. 2 Concluding findings It is clear from the above recital of facts, that Parson, at the suggestion of Piersol, brought the Association into being. It is also clear that the respondents' supervisory employees were the guiding spirits, especially Parson, in maintaining the Association and administering its affairs. The contention of the respondents and the Association that the Association v4as the spontaneous result of the organizational desires of the employees is not supported by the record On the contrary, it is definitely established that the respondents \i ere the prime movers behind the formation of the Association In short, the respondents simply foisted the Association upon the employees. After the Y° Parson did not deny making the statements attributed to him by Petei son Parson testified, how- ever, that he was speaking to Peterson about a general wage increase which the Association had negotiated with the respondents , subject to the approval of the National War Labor Board The undersigned accepts as substantially correct, Peterson 's versions of the conversations "-7 Beager admitted he had a conveisation at the place and about the time fixed by Peterson in his testimony, but Beagei denied making the statements attributed to him by Peterson Beager was not a inedible witness and therefore the undersigned rejects his denial and finds that Beager made the statements attributed to him by Peterson, who, in the opinion of the undersigned, was a credible witness. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association was formed and throughout its entire existence, the respondents controlled the policies and acts of the Association The contentions of the respondents and the Association that the Association was a militant organization, free from company domi- nation or interference, and for that reason should not be disestablished, are without merit. The Association always has been controlled and dominated by the respondents The fact that the organization achieved a measure of success cannot, and does not. cleanse the Association from its illegal taint." The effects of the respondents' support have not been dissipated and the Association has continued to operate as a bar to the freedom of self-organization guaranteed by the Act. The undersigned' finds that the respondents have dominated and interfered with the formation and administration of the Association and contributed support thereto in violation of Section 8 (2) of the Act, and that, by such acts, it interefered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act The undersigned further finds that the respondents, by making anti-union statements set forth above, b) questioning their employees as to membership in the Union, by warning and urging their employees not to join or remain members of the Union, by attacking the Union and disparaging its leaders, by attempting to obtain withdrawals from the Union, by granting the wage increases in August 1944, when the Union represented the majorit} of Supersweet employees and the majority of the North Redwood plant employees and was demanding that the respondents recognize it as the exclusive representative of these employees, by each of the foregoing, and by the other acts set forth above have inter- fered with, restrained, and coerced their employees in the exercise of the rights guar- anteed in Section 7 of the Act. B The refusal to bargain collectively 1. Appropriate units The complaint against Supersweet alleged that all Supersweet production and main- tenance employees and truck drivers, but excluding office and clerical employees and supervisors with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of the employees, or effectively recommend such action, constitute a unit appropriate forthe purposes of collective bargaining. The complaint against Bi-Product alleged that all Bi-Products production and maintenance employees and truck drivers employed at the North Redwood plant, but excluding office and clerical employees and supervisors with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of the employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining. The answers of the respondents denied, in effect,'the appropriateness of the alleged units . At the hearing, the Association contended that all the employees, including office, clerical, and supervisory employees of Supersweet together with all the employees, including office, clerical, and supervisory employees, employed by Bi- Products at its North Redwood and Long Prairie plants, as well as the same classifi- cations of employees at the plants owned and operated by Farmers Rending Company," at Aankato, Minnesota, and at Waseca, Minnesota, constitute an appropriate unit. At the hearing, counsel for the respondents stated that the respondents took no position ii ith relation to the appropriate units ; he did object, however, to the exclusion of certain named employees. =s See Corning Glass Works v. N L R. B., 118 F. (2d) 625 (C C. A. 2) ro This is a partnership formed on April 1, 1943 , consisting of Ralph M Ballard , Edward Monson and Gladys Monson. It will he recalled that Ballard is the president of both respondents and Monson their vice president On April 1, 1943, the Association and Faimeis Rending Company signed, a contract, identical with the 1942 contracts it has with Supersweet and B,.Products. covering the Mankato and Waseca plants The Mankato plant is about 80 miles and the R'aseco plant is about 100 from Noith Redwood SUIT RS\VEE'l' FEED COMPAN)r, 75 The record indicates that Supersweet and Br-Products are independent to the extent that they are separate legal entities , have separate managerial supervision, have sepa- rate pay rolls, and there is no interchange of employees between them 30 There is also a separate pay-roll record for the North Redwood plant and one for the Long Prairie plant. For pay-roll purposes, Bi-Products has a bank account with Peoples ?National Bank of Long Prairie Each of the three plants hires and discharges its own employees There is no exchange of raw materials between the plants but Supersseet purchases certain finished products from Bi-Products The products manufactured by Superstt eet are different from those manufactured by Bi-Products The stage scales of the two companies are different Since its inception the Association has bargained separateh for Supersweet employees and for the employees of Bi-Products. There is no commu- nity of interest between the Supersweet employees and those employed at the North Redwood plant. Likewise, there is no community of interest between Supersweet employees and the North Redwood plant employees and those employed at the Long Prairie plant, which is located about 100 miles from North Redwood. Under the griev- ance procedure of the Association, each plant has its own grievance machinery and the managers of the respective plants submit the grievanceg to Parson. It is significant to note that only a very small percentage of the members of the Association who ai e employed at Long Prairie attend Association meetings. In fact, only one or two Long Prairie truck drivers attended the meeting held on December 14, 1943 "1 The office employees and salesmen of the respondents are in an office building located in the business district of Redwood Falls and there is no evidence that office employees ever go to the plants on company business. Supersweet salesmen occasionally visit the plant of Supersweet. The undersigned finds that the respondents' employees will receive the full benefit of the right to self-organization by the establishment of separate and distinct plant units for the purposes of collective bargaining. Therefore, the undersigned finds that all production and maintenance employees, including truck drivers employed by Super- sweet, but excluding office and clerical employees, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The undersigned further finds that all production and maintenance employees, including all truck drivers, and the carpenter employed by Bi-Products, at its North Redwood plant, but excluding office and clerical employees, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act With respect to the employees of the Long Prairie plant, the record shows that the Union has made no attempt to organize them and it is not demanding recognition as their bargaining representative at this time In fact, with respect to the 8 (5) allega- tions of the complaints herein, the employees of the Long Prairie plant are not involved The undersigned finds, therefore, that it is unnecessary to define the appropriate unit for such employees. The respondents would include in the appropriate unit foi the Bi-Products employ- ees, and Board's counsel would exclude, the carpenter02 and six of its truck drivers employed at its North Redwood plant. The carpenter is regularly employed as a 80 Sometime in 1943, one employee was transferred from the North Redwood plant to the Long Prairie plant. n On December 1, 1943, there were 19 persons employed at the Long Prairie plant 29 Walter King. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance man at the North Redwood plant and is carried on the plant's pay-roll records as such Occasionally, however, the carpenter performs maintenance work at the Supersweet plant and at the Long Prairie plant The undersigned finds that the carpenter should be included in the unit hereinabove found appi opriate for the North Redwood employees The North Redwood plant employs 11 truck drivers, 5 of whom report daily at the plant for work while 6 of theni33 do not report regularly at the plant. This latter group of truck drivers receive their work instructions at certain "call stations" operated by Bi-Products The instructions are left at these stations by Beager and are instructions to these truck drivers to pick up, at certain named places, dead animals which had been purchased by Bi-Products and to bring them to the North Redwood plant. The stations are located in various sections of Minnesota and far distant from the North Redwood plant The "call station" system was introduced in order to expedite the hauling of Bi-Products' business and to conserve gasoline and rubber. These truck drivers are paid at the same rate per hour as the other North Redwood drivers, except that they are guaranteed a certain weekly salary while the other drivers receive no weekly guarantee. All the truck drivers do practically the same kind of work The undersigned finds that the 6 truck drivers in question should be included in the unit found appro- priate for the North Redwood plant employees 2. Representation by the Union of a majority in the appropriate unit of Supersweet employees A letter from Supersweet to the Board under date of June 24, 1944, and introduced in evidence by Board's counsel, contains a list of all employees in the unit of Super- sweet employees hereinabove found appropriate The list shows that on June 8, 1944, 11 persons were employed by Supersweet in the said unit.3S On behalf of the Board there were offered and received in evidence signed cards expressly authorizing the Union to represent the signatories thereto for collective bargaining.' The genuineness of the signatures on the authorization cards was in some instances proved directly by the testimony of the signers and in some instances by witnesses to the signatures. Counsel for Supersweet was afforded an opportunity to check the names appearing on the authorizations against Supersweet's records. The authenticity of the signatures on the cards was not challenged At the hearing, Supersweet introduced in evidence a list of persons in its employ on June 8. 1944 This list contains the names of 12 employ- ees, 11 of whom appear on the list supplied by Supersweet on June 24, 1944 The twelfth name is that of Irvin Larson, a foreman. Since it has been found that Larson has the right to recommend the hiring and discharging of employees, he is not within the unit found to be appropriate for the purposes of collective bargaining. On the list introduced in evidence by Supersweet the names of 13 men appear in addition to the names appearing on the list introduced by the Board These men are now in the Armed Forces Supersweet contended that these persons were in its employ at the time they entered the Armed Forces and, therefore, should be included in the appropriate unit. This contention is without merit The number of employees in the military service need not be added to the number of employees working in the plant at the time a labor organization makes its demand for recognition as the exclusive collective bargaining 33 Among these drivers is LeRoy Olsen, who drives a truck for Hewitt, a subcontractor for Bi-Products Olsen , however , receives his orders from Bi -Products, is paid by it , and is carried on its payroll as a truck driver 34 It was stipulated at the hearing by Board 's counsel and respondent 's counsel , that these persons were in Supersweet's employ on and before June 7, 1944 35 With the consent of counsel, the undersigned permitted Board ' s counsel to withdraw the authori- zation cards and substitute in lieu thereof a list containing the names of the persons who signed the cards. SUPERSWEET FEED COMPANY, INCORPORATED 77 representative of the employees for the purpose of evaluating that organization' s claim of majority representation."' The undersigned has compared the names appearing on the list of persons who signed authorization cards with the lists submitted by Supersweet to the Board on June 24, 1944, and finds that, as of June 7, 1944, all 11 employees of Supersweet in the appro- priate unit had signed authorization cards.3r The undersigned accordingly finds that on June 7, 1944, and at all times thereafter, the Union was the duly designated bar- gaining representative of a majority of Supersweet's employees in the unit found to be appropriate. Pursuant to Section 9 (a) of the Act, the Union was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, hours of employment, and other conditions of employment. 3. Representation by the Union of a majority in the appropriate unit of Bi-Products employees A letter from Bi-Products to the Board. under date of June 24, 1944, and introduced in evidence by Board's counsel , contains a list of all employees in the unit of the North Redwood plant employees hereinabove found appropriate. This list shows that on June 8, 1944, 38 employees were employed by Bi-Products in the said unit 33 On behalf of the Board there were offered and received in evidence signed cards expressly authorizing the Union to represent the signers of the cards for collective bargaining." The genuineness of the signatures on the authorization cards was in some instances proved directly by the testimony of the signers and in some instances by witnesses to the signatures . Counsel for Bi-Products was afforded an opportunity to check the names appearing on the authorizations against Bi-Products' records The authenticity of the signatures on the cards was not challenged' At the hearing, Bi-Products intro- duced in evidence a list of names of 46 persons purporting to be employees of Bi- Products on June 7. 1944 This list, however, contains the names of Harvey Hewitt and LeRoy Nelson The former is a sub-contractor of Bi-Products and is, and has been for quite some time, incapacitated and unable to drive a truck and therefore Olson drives it Under the circumstances, Hewitt cannot he included in the unit, since the undersigned has found that Olson should he included Hence, according to the list introduced in evidence by Bi-Products, there are 45 employees in the appropriate unit On the list introduced by Bi-Products are the names of 10 men who are now in the Armed Forces °" Bi-Products contended these persons were in its employ at the time they entered the Armed Forces and, therefore, should be included in the appropriate unit As found above, this contention is without merit The undersigned has compared the names appearing on the list of persons who signed authorization cards with the list introduced in evidence by Bi-Products and finds that, as of June 7, 1944, 23 employees of Bi-Products in the appropriate unit had signed 30 See Matter of Tiico Products Corporation , 57 N. L R B 1446 37 Nine signed authorization cards on May 24, one on May 27, and the other on June 5, 1944 38 It was stipulated at the hearing by Board ' s counsel and respondents' counsel that these 38 persons were employed at the North Redwood plant on and before June 7, 1944 30 With the consent of counsel , the undersigned permitted Board 's counsel to withdraw the authori- zation cards and substitute in lieu thereof a list containing the names of the peisons who signed the cards. 40 Included among these 10 is the name of William Sweesy Bi-Pioducts pay-ioll records of August 29, 1941, show that William Sweesy was then in the Aimed Foices Likewise, its pay-ioll records of 'September 2, 1942, September 1, 1943, and June 7, 1944, also show that he was in the Armed Forces on those dates At the teasing, the iespondents ' counsel stated "T ani told [William Sweesy] is in the armed service " Beager testified that William Sweesy was working as a temporary truck driver for Bi-Products during June and July 1944 Tt is evident that Beager was mistaken 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards.' The undersigned accordingly finds that on June 7, 1944, and at all times thereafter, the Union was the duly designated bargaining representative of a majority of the Bi-Products' employees at its North Redwood plant in the unit found to be appropriate. Pursuant to Section 9 (a) of the Act, the Union was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, hours of employment, and other conditions of employment. 4. The refusal to bargain On June 7, 1944, the Union wrote Bi-Products asking it to sign the contract sub- mitted with the letter On June 20, Bi-Products replied that'it had "a contract with another union which does not expire for a few months " On June 27, the Union wrote Bi-Products that it represented a majority of its employees and requested Bi-Products to fix a date to negotiate a collective bargaining contract. An identical letter was written to Supersweet on the same day. On July 11, 1944, Supersweet and Bi-Products wrote identical letters to the Union informing it that each company had contract, sN nth the Association and therefore "any discussion with you would be of no avail " Each respondent admits that it refused the Union's request to bargain collectively. Each respondent sets up the defense that the contract with the -\ssociatson did not permit it to bargain with the Union This defense is of no avail The contracts were made with a 'creature of then- own snaking and, therefore, the contracts are invalid In addition, on or about July 1, 1944, Gilbert Ewer, the business representative of the Union and the signer of the aforesaid letters of June 7 and June 27, called upon Monson and requested Monson .to bargain collectively with the Union It is undenied that Monson refused to recognize the Union as the collective bargaining representative of the respondent's respective employees Moreover, sometime in June or July 1944. Parson told Juergen that the respondents will not sign "any contract with no other union ... they can't come in here . . as far as signing with another union ... that is out." The undersigned finds that on July 11, 1944,42 and at all times thereafter, the respond- ents refused to bargain collectively with the Union as the representative of then- respec- tive employees in the appropriate units and thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act C. The discriminatory discharges 1. Ed Corcoran The complaint against Supersweet alleged that Corcoran was discharged, and there- after refused reinstatement, because he was a member of and assisted the Union Supersweet's answer averred that he was discharged "because of inefficiency and inability to perform his work, and for no other reason . " Corcoran was first employed by Supersweet in June 1943, as a helper in the plant His starting wage was 40 cents per hour He worked in various departments including the retail feed shop In this shop he mixed the concentrate sold there w •th the feed n Inch the customer either brought to the plant or purchased there Besides nuxnig the feed. Corcoran made out sales slips which were sent to the bookkeeping department Because as Corcoran testified, he was not "schooled" in making out the sales slips, when first assigned to the retail shop, he did not make out the slips in accordance with the system used by Supersweet which, therefore, led to some confusion Parson, after the matter 41 Seventeen employees signed authorizations on May 24 , one on May 29, 3 on June 1, one un June 2, one on June 16, one on June 19, and another sometime in May 1944 12 While there were some changes in the number of persons employed at Supei sweet and at the North Redwood plant between June 7 and July 11, the change, ni no wan affected the major ity ,taut, of the Union at these plants SUPERSWEET FEEL) COMPANY, INCORPORATED 79 was called to his attention, showed Corcoran how the slips should be made out and thereafter there were no complaints regarding Corcoran's work43 In the spring of 1944, Corcoran injured his back while at work and was away from the plant until the end of March or the beginning of April. On his return, he was assigned to the same work he had been doing at the time of his injury. Sometime in May, Corcoran was assigned to the retail shop when a vacancy in that shop occurred He remained there until his discharge. He attended the meeting of the Supersweet and the North Redwood plant employees which Monson and Ballard, the president of the respondents, addressed After Ballard had stated that he was not in favor of "this outside union" because when its officials decide to strike they " tie up all trucks and everything," Corcoran arose and said that a "union that don't work both ways isn't any good."" Corcoran joined the Union at its first meeting held on May 24, and was appointed chairman'. He immediately became very active in its behalf and, whenever he had a chance, he would discuss unions and unionism in general with the men at the plant. On the day following the aforesaid meeting, Parson asked Corcoran if any of the employees had joined the Union and when Corcoran replied that most of them had, Parson said "he thought that they were foolish to join that union, that it was going to cost too much money" and the conversation ended when Corcoran stated "I don't know anything about it." Corcoran further testified, also without contradiction, and the undersigned finds, that several days later Parson approached him and another employee while they were eating lunch at the plant and the following ensued : And he come out and he told us he thought we were foolish to join this union. And I spoke up of course and I said, `Well, I didn't think the union we had was worth a damn because the policy of the mill was supposed to pay 5 cents an hour more than any other job and there had been three men on it and they didn't get a nickel out of it; they didn't get anything out of it.' `Hazel Bell did get more than Tom [Aunioen] was getting and he had been in there quite a while and they didn't give him any more on it.' And he turned around and left On June 10, Corcoran was discharged. Supersweet contended that either on that day or several days before, Corcoran sold certain feed to a customer and gave the customer about four dollars too much change" and also, because the bookkeeper could not read Corcoran's handwriting on the sales slips." At the hearing, counsel for Super- sweet had Corcoran, while the latter was on the witness stand, display his writing ability. This writing was introduced in evidence by Supersweet after Corcoran had testified that the writing was a fair specimen of his handwriting To the undersigned, Corcoran's handwriting was clear and legible. Counsel for Supersweet sought to show through Corcoran, and other witnesses, that Corcoran was too old and too feeble to perform the various tasks at the plants These attempts failed because the credible testimony shows that Corcoran, who is 48 years of age, is strong and hearty. Moreover, many employees who are much younger than Corcoran testified, and the undersigned finds, that Corcoran did as much heavy work as they did and just as efficiently and as quickly. Under the circumstances of this case, the undersigned finds that Corcoran was 43 These instructions were given Corcoran about 10 months prior to his discharge Corcoran worked in the retail shop intermittently. 44 Ballard did not testify. Corcoran was an honest witness The undersigned finds that Ballard made the statements attributed to him by Corcoran. 45 The record is not clear whether Corcoran was elected chairman of the Union or only of this meeting se The exact day when this error occurred is not clear in the record It could not have been on the (lay of Corcoran 's discharge because the customer returned the money on the day following the purchase. 47 The bookkeeper did not testify. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' not discharged for the reasons advanced by Supersweet, but that Parson seized upon the mistake in making change, as outlined above, as a pretext to rid Supersweet of one of the Union's ardent members From the time that Corcoran told Parson that lie did not think the Association "was worth a damn" lie was a nlatked man Corcoran had been making change and,wiiting orders, on and off, for about a year and no mistake in change making had occurred previous to the above-described incident. The under- signed is convinced and finds that Corcoran's membership and activities in behalf of the Union was reason for his discharge. 2 The discriminatory discharges of Talford Moe and Albert Wagner The complaint against Bi-Products alleged that Moe and Wagner were discharged on June 17, 1944, and thereafter refused reinstatement, because they, and each of them, had joined and assisted the Union. Bi-Products' answer averred that they were dis- charged "by reason of inefficiency, insubordination, the drinking of intoxicating liquor on the job,, and because of absence from the job at a time when they were expressly requested to be present " Moe was first employed by Bi-Products in November 1943, as a presser His starting wage was 35 cents per hour. Later he became a skinner on the night shift. The hours of the night shift employees are from 7 p m. to 7 a.m. and they work seven days a week. At the June 2 meeting of the Union, Moe signed an authorization card. Several days prior to June 17, Beager called the night shift employees together and, according to Moe and Wagner, and the undersigned finds, Beager stated he would be away for a few days, that the night shift would be in charge of Sweesy, that he wanted all the men to report for work each night during his absence, and that if any of the men were going to take a night off they should give Sweesy as much notice as pos- sible.18 Moe testified that at about 2 p m. on June 16, he telephoned from town to Sweesy, who was at the plant, that he would not report for work that night because Wagner and employee Ernie Peters were taking the following night off and that Sweesy's reply was to the effect that it was agreeable to Sweesy if Moe did not report that night provided he reported the following night 4° When Moe reported on the fol- lowing night, June 17, he was told by Sweesy that he could not work until Beager returned Moe then left the plant. Early Saturday morning, June 17, Wagner and Peters decided that they would not report for work that night until midnight GO Sweesy was not at the plant when they quit work that morning so they asked the watchman to inform Sweesy that they would not report until midnight The watchman testified, and the undersigned finds, that he did not see Sweesy until about 7 o'clock that night, at which time he delivered the message.' When Peters and Wagner reported at midnight, two employees told them that they had been discharged. They thereupon telephoned Sweesy who told them they could not work until Beager returned. Beager returned to the plant on June 18 He went to Peters' house and asked Peters to return to work 52 48 Beager testified that he asked the men to give Sweesy 24 hours' notice The undersigned accepts Moe's and Wagner 's version of what Beager said at the meeting. S° Sweesy denied that Moe telephoned him that day The undersigned finds that Moe did telephone Sweesy and that Moe 's version of the telephone conversation is substantially in accord with the facts 60 Peter's wife had been in the hospital for about a week prior to June 17 and Beager had given Peters and Wagner, in whose car they drove to and from work each night , permission to report a little late each evening so that Peters could stop at the hospital to visit his wife Sweesy admitted that he knew of this arrangement Both Peters and Wagner were members of the Union, the former joined on May 24 and the latter on June 2 51 Sweesy denied that the watchman delivered the message to him . The undersigned rejects the denial. 6= Peters testified that he did not pay his initiation fees or dues because he had no interest in the Union. Whether these facts were known to Beager when he asked Peters to return to work, the record does not indicate. SUPERSWEET FEED COMPANY, INCORPORATED 81 On June 19, Moe and Wagner went to the plant,and saw Beager, who refused to put them to work" Bi-Products' contention that Moe and Wagner were discharged because they were inefficient is not supported by the record. The undenied credible testimony establishes they were efficient employees and that Beager never adversely criticized their work. No- evidence was introduced in support of the defense that Wagner and Moe were dis- charged for insubordination. With regard to the defense that they were discharged for drinking intoxicating liquor on the job, the credible evidence clearly shows that neither Moe nor Wagner drank intoxicating liquor on the job. There is no evidence, moreover, that either one ever drank any intoxicating liquor at any time. The defense that they were discharged because they remained away from the plant, on the nights stated above, is but a pretext. The undenied credible evidence shows that it was customary for the men on the night shift to take at least one night a week off. Sometimes the men would remain away without notifying Beager in advance, and at other times Beager was notified. The defense that they remained away without giving Sweesy sufficient notice is not supported by the record Moe advised Sweesy 5 hours before he was-to report for work. Moreover, at that time Moe advised Sweesy that Peters and Wagner were not going to report for work on the night of June 17. The undersigned is con- vinced and finds that Moe and Wagner were discharged because they joined the Union It will be recalled that, as found above, shortly prior to the discharge of floe and Wagner, Sweesy advised Lord that he could "pick out the fellows that belonged to the Union because they were wearing [Union] buttons 64 And ... inside [of] a week's time [I] could get enough on them" to get rid of them." Sweesy carried out his threat and used the above-mentioned incidents to discharge members of the Union. D. The discriminatory reduction in the wages of Robert H Lord - Lord has been working as a truck driver for Bi-Products since September 1942 Within one month or two after the commencement of his employment, he and the other drivers were given permission to use the trucks to transport themselves to and from work. As found above, Bi-Products oti May 25 posted a notice withdrawing this per- mission. When Lord returned to the plant that night from one of his routes he saw the notice At the conclusion of his work he put the truck he had been using for more than a year on the "grease rack" so that the truck would be greased and oiled before he drove it the next day He then removed its radio, blankets, and a few other acces- sories which belonged to him and left the plant " Lord did not report for work on May 26 or 27 Those days, according to his testimony, he spent endeavoring to purchase a car so that he could drive to and from work.' On Monday, May 29, Lord reported for work. He testified that when he arrived at the plant the following- ensued. Well, when I saw him he was over at the garage. And before I was going to work I called Mr. Beager and told him I would like to speak to him a little bit. And he said, 'I am busy for a minute helping this other fellow get started and as soon as I get through I will have a little time for you' And I said, 'OK.' And I waited a little while and he came back and said he was ready then. And we went inside the garage And I asked him, 'Why do you mistrust me all at once?' He said, 'What do you mean? I didn't mistrust you' And I said, 'I had permission to take that truck home every night and I have been doing it over a year and you cs Several days prior to August 21, 1944, Beager sent for Moe and when Moe carne to the plant, Beager offered him reinstatement Moe was reinstated on August 21, 1944 54 Moe and Wagner wore their buttons while at work w Neither Beager nor Sweesy was at the plant when Lord arrived at the plant that night 16 Lord lives about 2 34 miles from the plant. 82 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD stopped it with a bang.' And he said 'The boys was going to join the union and we figured we would get tough now.' Q Did he mention what union? A No, he didn't. He said, 'The boys were going to join the union and we were going to get tough with them now.' Q. Did you have any further conversation with Mr. Beager? - A. Well, I asked him, 'Would you guys want to get rid of me, are you through with me or do you want me to keep on working.' And he said, 'Well I have noth- ing to do with the truck part, you will have to see Clair Sweesy.' Q Well, did you see Sweesy? A Yes. So I and Claude Beager went over to the garage where Mr. Sweesy stood,-where he sat in his car,-and they talked a little bit. Q What did they say? A I couldn't say But they talked about inc driving the same as I had done I says, 'You fellows, if you want me, it is OK, and if you don't it is still OK' And he said, 'We would like to have you continue.' And I said, 'There wouldn't he no hard feelings?' And he said, 'No.' B eager and Sweesy testified that because Lord did not report for work May 26 and had removed his personal belongings from the truck they concluded that he had quit. They also testified that when Lord came to the plant on May 29, he asked whether he could have his job again and that Beager referred him to Sweesy. Sweesy testified that he told Lord that he would have to start as a beginner because Bi-Products had a contract ii ith the Association which provides that if any employee is discharged or quits and then is rehired he starts as a new employee with beginner's wages. Lord denied that be asked for reinstatement and also denied that he was told at that time that he was being rehired as a new employee with beginner's wages He testified that he did not know that his salary had been cut from 50 cents per hour to 40 cents per hour until the folloxxing pay clay when he complained to Beager and Sweesy about the amount of his check and that it was then that Sweesy told him that he was rehired on May 29 as a new employee. The undersigned further finds that Lord's membership in the Union" was the reason for the reduction in his wages and the loss of seniority and other rights with which he was penalized when Bi-Products classified him as a new employee on May 29.E IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connec- tion 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in unfair labor practices, the undersigned will recommend that the respondents , and each of them, cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act The undersigned has found that the respondents have dominated and interfered with the formation and administration of the Association and have contributed support thereto. The effects and consequences of the respondents ' domination , interference, and 67 When Lord returned to the plant on May 29 he joined the Union He testified that he joined on May 27 He was evidently mistaken as to the correct date. 58 Sometime in August 1944, Lord's wages were raised to that of the other truck drivers SUPERS\VEET FEED COMPANY, INCORPORATED 83 support, as well as tPR: continuous recognition of the Association as the bargaining representative of their employees, constitute a continuing obstacle to the free exercise by their employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Because of the respondents' illegal conduct, the Association is incapable of serving the respondents' employees as a genuine collective bargaining agency. Moreover, the continuing recognition of the Association Would be obstructive of the free exercise by the employees of their rights guaranteed to them by the Act. Accordingly, the undersigned recommends that the respondents dis- establish the Association and withdraw all recognition from the Association as the representative of any of their employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment The contracts of September 1, 1942, were made with a labor organization which did not represent an uncoerced majority of the respondents' employees but to the contrar3 was sponsored and assisted by the respondents in violation of Section 8 (2) of the Act They are hence invalid It will be recommended below that the respondents cease and desist from giving effect to the said contracts, as well as to any extension, renewal. revision, modification, or supplement thereof, and any superseding contract which may now he in force Nothing herein, however, shall he taken to require the respondents to vary those wages, hours, seniority, and other substantive features of their relations with the employees themselves which the respondents may have established in per- formance of the said contracts, or of any revision, extension, renewal, modification, or supplement thereof Since the contract between Bi-Products and the Association covers the employees of its Long Prairie plant as well as the employees of its North Redwood plant, it will be recommended that the respondents post the usual notices, not only in the North Redwood plant, which is the only Bi-Products plant named in the complaint, but also in its Long Prairie plant. Having found that the respondents have refused to bargain collectively with the Union, the undersigned will recommend that the respondents, upon request, harga'n collectively with the Union as the exclusive representative of the respondents' respec- tive employees in the appropriate units in respect to rates of pay, wages, hour, of employment, and other conditions of employment. Having found that Supersweet discharged Ed Corcoran on June 10, 1944. and thereafter refused to reinstate him for the reason that he joined and assisted a labor organization and engaged in concerted activities for the purposes of collective bargani- ing and other mutual aid and protection, it will be recommended that Supersweet offer him immediate and full reinstatement to his former or substantially equivalent position It will be further recommended that Supersweet make Corcoran whole for any loss of pay he may have suffered by reason of the discrimination by payment to him of a suns equal to the amount he would normally have earned as wages from the date of 11 s discharge to the date of the offer of reinstatement, less his net earnings" during such period Having find that Bi-Products discharged Talford Moe and Albert NVagner ()n 69 By "net earnings" is meant earnings less expenses , such as for tianspostation, ioum , and ho.ud incurred by an employee in connection with obtaining work and working elsewhere than for th._ 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 America, 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 he considered as earnings See Republic Steel Corporation v N L. R B , 311 U S 7. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 17, 1944, and thereafter refused to reinstate Wagner and r4luscd to reinstate Moe until August 21, 1944, for the reason that they joined and assisted a labor organization and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection, it will be recommended that Bi-Products offer Wagner immediate and full reinstatement to his former position It will he further recommended that the respondent make Wagner whole for any loss of pay he may have suffered by reason of the discrimination by payment to him of a sum equal to the amount he would normally have earned as wages during the period from the date of the discrimination against him to the date of the "offer of reinstatement, less his net earnings during such period. Since the respondents have reinstated Moe, it will be recommended that they make him whole for any loss of pay he has suffered-by reason of the discrimination by pay- ment to him of a sum equal to the amount he would normally have earned as wages from the date of his discharge to the date of his reinstatement, less his net earnings during such period. Having found that the respondents on May 29, 1944, discriminatorily reduced the wages of Robert H Lord, it will be recommended that Bi-Products make him whole for the difference between what he normally would have earned as wages from May 29, 1944, to date. The undersigned is of the opinion that the respondents should he ordered to reimburse each of their respective employees for dues paid by him to the Association since Sep- tember 1, 1941 On that date, as found above, each respondent executed all illegal closed-shop contract with the Association, a dominated labor organization, thus requir- ing the employees as a condition of employment to become and remain members of the Association Similar closed-shop contracts were entered into by the respondents on September 1, 1942. After the execution of these contracts the respondents insisted that their respective employees remain in good sanding with the Association by pay- ment of dues, and a number of employees were threatened with discharge, pursuant to the closed-shop provisions of the said contracts, for their failure to do so. Th•s arrangement by which the' respondents assured the financial stability of the illegal organization gave the employees no choice, other than payment of dues to the Asso- ciation, if they desired to continue in the employ of their respective employer. The undersigned finds that the payment of dues to the Association was in effect just as compulsory as membership therein, constituted the price of retaining employment, and ciation, if they desired to continue in the employ of their respective employer The money, which the respondents thus caused the employees to pay the Association to fulfill the respondents' illegal condition of employment, Was a definite financial loss to them. The undersigned, will accordingly recommend that the employees be made whole by reimbursement of the amounts thus extracted from them for illegal pur- poses 00 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 Union, Local 851, affiliated with the international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which, in turn, is affiliated with the American Federation of Labor and Association of Rural Industrial Employees, are labor organizations within the meaning of Section 2 (5) of the Act. 00 See N L R A v Baltimoic fianrit Co, 140 F (2d) 51 (C C A 4), and Matter of Virginia Electric and Power Company and Toansportation Waiters Union of Amcrica, 41 N L R B , 404, 436, enf'd 132 F. (2d) 390 (C C A 4), aff'd 319 U. S 533. SUPERSWEET FEED COMPANY, INCORPORATED 85 2. By dominating and interfering with the formation and adnun stration of the Asso- ciation and by contributing support thereto, the respondents have engaged in, and are 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 Ed Corcoran, thereby discouraging membership in General Drivers Union, Local 851, Supersweet 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 Talford Moe, Albert Wagner, and Robert H. Lord, thereby discouraging membership in General Drivers Union, Local 851, Bi-Products has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 5 All production and maintenance employees of Supers^Neet, including truck drivers but excluding office and clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes of status of em- ployees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 6. General Drivers Union, Local 851, was on July 11, 1944, and at all times thereafter has been, and now is, the exclusive representative of Supersweet employees in such unit for'the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. s 7. All production and maintenance employees, including all truck drivers and the carpenter employed by Bi-Products at its North Redwood plant, but excluding office and clerical employees and supervisory employees with authority to^hire, promote, discharge, discipline, or otherwise effect changes of status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 8. General Drivers Union, Local 851, was on July 11, 1944, and at all tunes thereafter has been, and now is, the exclusive representative of the North Redwood plant employ- ees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 9. By refusing on July 11; 1944, and at all times thereafter, to bargain collectively with General Drivers Union, Local 851, as the exclusive representative of their em- ployees in the appropriate units, the respondents, and each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 10 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents, and each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section S (1) of the Act. 11. 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 undersigned recommends that Supersweet Feed Company, Incorporated and Minnesota Bi-Prod- ucts, Inc, their officers, agents, successors, and assigns shall: I Cease and desist from : (a) Discouraging membership in General Drivers Union, Local 851, or any other labor organization of their employees by laying off, discharging, or refusing to reinstate any of their employees and from refusing to employ any member of the Union herein or 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of employment; - (b) Dominating or interfering with the administration of Association of Rural Industrial Employees, or with the formation and administration of any other labor organization of their employees, or from contributing financial or other support to the paid Association of Rural Industrial Employees, or any other labor organization of their employees: (c) Recognizing the Association of Rural Industrial Employees as the exclusive representative of its employees for the purposes of collective bargaining, (d) Giving effect to their contracts of September 1, 1942, with the Association of Rural Industrial Employees, or any revisions thereof or to any other extension, renewal, revision, modification or supplement thereof, or to any superseding contracts which may now be in force : (e) Refusing to bargain collectively with General Drivers Union, Local 851, as the exclusive representative of their respective employees in the units hereintofore found appropriate, with respect to rates of pay, wages, hours of employment, and other condi- tions of employment; (f) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization to form labor organizations, to join or assist General Drivers Union, Local 851, or any other labor organization, 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 effectuate the policies of the Act: (a) Supersweet Feed Company, Incorporated, shall offer to Ed Corcoran immediate and full reinstatement to his former or substantially equivalent position without preju- dice to his seniority and other rights and privileges, (h) Supersweet Feed Company, Incorporated, shall make whole Ed Corcoran for any loss of pay he may have suffered by reason of Supersweet's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of the discrimination against him to the date of Supersweet's offer of reinstatement, less his net earnings during such period; (c) Bi-Products shall offer Alfred Wagner immediate and full reinstatement to his former or substantially equivalent position without prejudcie to his seniority and other rights and privileges; (d) Bi-Products shall make whole Talford Moe, Alfred Wagner, and Robert H. Lord for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The remedy" ; (e) Supersweet shall withdraw and withhold all recognition from the Association of Rural Industrial Employees as the representative of any of its employees for the purposes of dealing with Supersweet concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish it as such representative; _ (f) Supersweet shall reimburse each of its employees for clues paid by him to the Association of Rural Industrial Employees since September 1, 1941 ; (g) Supersweet shall, unpon request, bargain collectively with General Drivers Union, Local 851, as the exclusive representative of all production and maintenance employees, including truck drivers, but excluding office and clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect SUPERSWEET FEED COMPANY, INCORPORATED 87 changes of status of employees, or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (h) Bi-Products shall withdraw and withhold all recognition from the Association of Rural Industrial Employees as the representative of any of its employees for the purposes of dealing with Bi-Products concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish it as such representative; (i) Bi-Products shall, upon request, bargain collectively with General, Drivers Union, Local 851, as the exclusive representative of all production and maintenance employees, including all truck drivers and the carpenter employed at its North Redwood plant, but excluding office and clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes of status of employees, or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (j) Bi-Products shall reimburse each of its employees for dues paid by him to the Association of Rural Industrial Employees since September 1, 1941 ; (k) Supersweet shall post immediately in conspicuous places at is plant in Redwood Falls, Minnesota, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating that Supersweet will not engage in the conduct from which it is recommended that it cease and desist in para- graph 1 of these recommendations and the various subdivisions thereof which refer to Supersweet; (2) that Supersweet will take the affirmative action set forth in paragraph 2 of these recommendations, including the various subdivisions thereof which refer to Supersweet; and (3) that Supersweet's employees are free to remain or become mem- bers of General Drivers Union, Local 851, and that Supersweet will not discriminate against any employee because of his membership in or activity on behalf of that organization, (1) Bi-Products shall post immediately in conspicious places at its plants in North Redwood and Long Prairie, Minnesota, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that Bi-Products will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 of these recommendations and the various subdivisions thereof which refer to Bi-Products, (2) that Bi-Products will take the affirmative action set forth in paragraph 2 of these recommendations, including the various subdivisions thereof which refer to Bi-Products, and (3) that Bi-Products' employees are free to remain or become members of General Drivers Union, Local 851 and that Bi-Product" will not discriminate against any employee because of his membership in or activity on behalf of that organization ; (m) Notify the Regional Director for the Eighteenth Region, in writing within tell (10) days from the date of the receipt of the Intermediate Report, what steps the respondents have taken to comply therewith It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies-said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Rela- tions Board will issue an order requiring the respondent to take the action aforesaid As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations ' Board, Series 3, as amended, effective November 26, 1943. any party or counsel for the Board 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 C. an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report of to any other part of the record or proceeding (including 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. 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 within ten (10) days from the date of the order transferring the case to the Board. HOWARD MYERS Trial Examiner Dated November 18, 1944.