Shen-Valley Meat Packers, Inc.

SHEN-VALLEY MEAT PACKERS, INCORPORATED 491 having a right to hire or discharge, and those whose duties include recommendations as to hiring or discharging (but not leaders); and those employees whose work is of a confidential nature, time-study men, plant-protection employees (but not to include maintenance patrolmen or fire patrolmen); all clerical employees, chief engineers and shift operating engineers in powerplants, drawing board designers, production estimating and planning engineers, draftsmen and detailers, physicists, chemists, metallurgists, artists, design artists, timekeepers, technical school students, indentured appren- tices, and those technical or professional employees who are receiving training, kitchen and cafeteria help. to If a majority of the employees in groups 1 and 2 vote, respec - tively, for the labor organization seeking to represent that group separately, the Board finds that the employees in each group constitute a separate appropriate unit; if a majority of the employees in group 3 select a different bargaining agent than that selected by employees in groups 1 and 2, the Board finds that the employees in group 3 also constitute a separate appropriate unit. If the employees either in groups 1 and 2 or both select the same bargaining agent as group 3 employees, the Board finds that the employees in these groups together constitute an appropriate unit. The Regional Director conducting the elections is instructed to issue a certification of represent- atives to the union or unions for the unit or units which may result from the elections. [Text of Direction of Elections omitted from publication.] 10 Voting group 3 is substantially the unit agreed to by the Employer and the UAW. SHEN -VALLEY MEAT PACKERS, INCORPORATED and PEAR LIE H. BAKER AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 393, AFL and PEARLIE H. BAKER SHEN -VALLEY MEAT PACKERS , INCORPORATED and DORIS RODEFFER AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 393, AFL and DORIS RODEFFER. Cases Nos. 5-CA-513, 5-CB-86, 5-CA-514, and 5-CB-87. June 11, 1953 DECISON AND ORDER STATEMENT OF THE CASE Upon separate charges duly filed by Pearlie H. Baker and Doris Rodeffer on September 27, 1951, and amended charges 105 NLRB No 56. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by these individuals on November 29, 1951, and June 16, 1952, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, by the Regional Director for the Fifth Region (Baltimore, Maryland), issued an order on June 20, 1952, consolidating the above-captioned cases, and simultaneously therewith issued his complaint alleging that Shen-Valley Meat Packers, Incorporated, Timberville, Virginia, herein called the Company, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and that Amalgamated Meat Cutters and Butcher Workmen of North America, Local 393, AFL, herein called the Union, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Copies of the complaint, the order of consolidation, the charges, and notice of hearing were duly served upon the Respondents and the charging parties. With respect to the unfair labor practices, the complaint alleged, in substance, that the Company, on August 31, 1951, discharged employees Baker and Rodeffer, because of their sympathies for and activities on behalf of the United Con- struction Workers, herein called the UCW, affiliated with United Mine Workers of America, in violation of Section 8 (a) (3) of the Act; that the Union had caused and attempted to cause the Company to discharge Baker andRodefferin violation of Section 8 (a) (3) of the Act, because of their UCW sympathies and activities, thereby violating Section 8 (b) (2) of the Act; that the Company's conduct, as related, constituted assistance and support to the Union in violation of Section 8 (a) (2) of the Act; and that the conduct of the Company and the Union restrained and coerced employees in the exercise of their rights guaranteed by Section 7 of the Actin violation of Section 8 (a) (1) and 8 (b) (1) (A) of the Act, respectively. In its answer, duly filed, the Company admitted the allegations of the complaint concerning its corporate existence and the nature and extent of the business transacted by it. The answer denied that the Company had discharged Baker and Rodeffer for reasons violative of the Act, but admitted that it has not reinstated them as employees. The Union likewise denied in its answer that it had committed conduct violative of the Act as alleged in the complaint. Pursuant to notice , a hearing was held in Harrisonburg, Virginia, from August 19 to 21, 1952, before Bertram G. Eadie, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, Union, and General Counsel were represented by counsel. All the parties were afforded full opportunity to be heard , to examine and cross-examine SHEN-VALLEY MEAT PACKERS, INCORPORATED 493 witnesses ,' and to introduce evidence pertinent to the issues. At the close of the hearing the Trial Examiner granted without objection the General Counsel ' s motion to conform the pleadings to the proof with respect to minor variations between the pleadings and proof such as the spelling of names and dates. Various rulings were made by the Trial Examiner during the course of the hearing on other motions and objections to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed . These rulings are hereby affirmed.' All parties were afforded an opportunity to file briefs and pro- posed findings of fact and conclusions of law . The Company and the Union filed briefs with the Trial Examiner. On October 29, 1952, the Trial Examiner issued his Inter- mediate Report , copies of which were duly served on the parties, in which he found that the Company had engaged in unfair labor practices in violation of Section 8 (a) (3) of the Act by discharging Baker and Rodeffer , and that such conduct also was violative of Section 8 (a) (1) of the Act. Although the Trial Examiner had, in the Intermediate Report, denied the Company's motion to dismiss the allegation of the complaint that its conduct had violated Section 8 ( a) (2) of the Act,3 he i The Union has excepted to the Trial Examiner 's ruling at the hearing that its examina- tion of Fritz Lindner, a witness produced and first examined by the Company, be conducted as direct and not cross - examination The Union contends that the Trial Examiner 's ruling improperly limited the scope of its examination of this witness. We are satisfied that the Trial Examiner ruled correctly Cross-examination presupposes the hostility of the witness, or that the matter testified to upon which he is crossed is opposed and contrary to the con- tention of the party conducting the cross- examination. 70 CJS Sec. 781. The record shows that the witness, Lindner , was friendly to the Union's position , and that his testimony on direct examination by the Company was not contrary to the Union' s position We are further satisfied that the Union was not prevented by the Trial Examiner 's ruling from examining the witness regarding any natter properly within the scope of the issues in this case, and was not prejudiced by the Trial Examiner 's ruling. 2 The Union has excepted to the Trial Examiner 's ruling permitting the General Counsel to elicit testimony from a witness (Bynaker) contradicting other testimony by a witness (Lucas) previously called by the General Counsel. As we do not rely on the testimony in question in reaching our ultimate findings and conclusions , we find it unnecessary to pass on the merits of this exception. 3The Company has excepted to the denial of this motion on the ground that the 8(a) (2) allegation in the complaint was not based on a valid charge filed within 6 months of the commission of the conduct alleged to be unlawful, as provided by Section 10 (b) of the Act As noted above, the original charges in this proceeding were filed on September 27, 1951, less than 1 month after the allegedly unlawful discharges of Baker and Rodeffer. First amended charges were filed on November 29, 1951, and second amended charges, alleging for the first time that the discharges were also violative of Section 8 (a) (2) of the Act, were filed on June 16, 1952. The Board has held with judicial approval that it may base a finding of unfair labor practices upon any conduct which occurred within a 6-month period before the filing of a charge asserting that the Act has been violated although the charge does not specifically set forth such conduct, provided the complaint which issues pursuant to the charge alleges the conduct as an unfair labor practice . See Cathey Lumber Company, 86 NLRB 157, enfd 185 F 2d 1021 ( Board's order set aside for other reasons), and Stokely Foods, Inc , 91 NLRB 1267, enfd. 193 F 2d 736. As the complaint here merely enlarged upon the original charge which was clearly filed within time, by alleging the Company's conduct described therein to be violative of Section 8 (a) (2) as well as of Section 8 (a) (3) and 8 (a) (1) of the Act, we affirm the Trial Examiner 's denial of the Company's motion 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to make a concluding finding with respect thereto. He further found that the Company's unlawful conduct affects inter state commerce , and recommended that the Respondent cease and desist from these activities and take certain affirmative action to effectuate the policies of the Act. The Trial Examiner recommended dismissal of the complaint with respect to the alleged violations of Section 8 (b) (1) (A) and 8 (b) (2) by the Union. The Company, Union, and the General Counsel have filed exceptions to the Intermediate Report and supporting briefs.4 The Company and Union have also requested oral argument . These requests are hereby denied as , in our opinion , the record and the exceptions and briefs adequately present the issues and the positions of the parties. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three -member panel [Members Houston, Murdock, and Styles]. The Board has considered the Intermediate Report, the exceptions and briefs , and the entire record in the above case, and makes the following findings , conclusions , and order. FINDINGS OF FACT L THE BUSINESS OF THE COMPANY The Company is a corporation of the Commonwealth of Virginia engaged at Timberville, Virginia, in the production of fresh, cured, and smoked meat, and meat products. Annual purchases of goods and equipment by the Company are valued at approximately $3,000,000 of which about 40 percent repre- sents shipments from other States. The Company annually produces finished products valued at approximately $3,500,000 of which about 40 percent represents shipments to points in other States. We find that the Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 4 The Union excepted to the Intermediate Report on the ground that the Trial Examiner was biased and prejudiced against both Respondents In support of this exception, the Union asserts that the Trial Examiner's findings uniformly favor the General Counsel, and that various rulings and actions by the Trial Examiner at the hearing allegedly reflect unfair treatment of Respondents' witnesses, hostility towards cooperative corporations of the Company's type, animus towards counsel for the Union as evidenced by the Trial Examiner's asserted misinterpretations of the testimony of witnesses and the arguments of counsel, and alignment with the General Counsel in the prosecution of his case as shown by the Trial Examiner's remark to the General Counsel, near the close of the hearing, regarding the calling of a witness in rebuttal We have thoroughly reviewed the entire record and find no warrant for the Union's claim of bias and prejudice. We are satisfied that the Trial Ex- aminer's Intermediate Report and his rulings and other actions at the hearing do not in any manner manifest bias or prejudice for or against any party in this proceeding, but, on the other hand, reveal his sincere effort fairly and impartially to obtain a complete record as expeditiously as possible The Union's exception is without merit SHEN-VALLEY MEAT PACKERS, INCORPORATED 495 II THE LABOR ORGANIZATIONS INVOLVED The Amalgamated Meat Cutters and Butcher Workmen of North America , Local 393 , AFL, and United Construction Workers, affiliated with United Mine Workers of America, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Baker' s and Rodeffer's rival union activities Shortly after the Company started its operations at Timber- ville in November 1949, it began negotiations with the Union which culminated in a collective -bargaining contract in March 1950 with that labor organization . The Company and the Union subsequently entered into two other contracts , the last of which was in force at the time of the alleged unfair labor practices on August 31, 1951. The UCW had competed with the Union in 1949 to become the bargaining representative of the Company's employees , but ceased these activities after the Union obtained its contract . In about June or July 1951 it resumed its organ- izing drive and procured as members various employees of the Company who already belonged to the Union . Among these were Baker who signed a UCW card in June or July, and Rodeffer who joined in August . Baker became actively engaged in the UCW movement and solicited the membership of the female employees in the sausage room where she worked in the Company ' s plant. She distributed about 12 cards and signed up 2 to 5 employees. Two UCW meetings were conducted in August 1951, the second being held on Friday night , August 23 , at the Timber- ville fire hall under the auspices of Marhl William Clatterbuck, the UCW field representative . A decision was reached by the approximately 20 persons attending this meeting to strike the Company' s plant on the following Monday morning to force recognition of the UCW . A "strike committee " consisting of Baker and Rodeffer was chosen at the meeting to join Clatterbuck in negotiating with the Company if the strike were to result in recognition of the UCW . On Monday morning, August 26, Clatterbuck appeared at the Company ' s plant to direct the strike . Contrary to expectations , UCW strength did not materialize and after sidewalk discussion with M. J. Sheffield , the Company' s general manager , Albert G. Gray, the Union' s business manager and secretary -treasurer, and his local representative , Jess Spitzer , Clatterbuck decided to abandon the strike. The plant doors were opened and the employees who had meanwhile congregated outside the plant entered and reported to their duties without interruption of their work. Baker did not participate in the discussions between Clatterbuck , Sheffield , and the others , but remained with the employees who had gathered in the vicinity and entered the plant with them when the strike was called off. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rodeffer arrived at the plant after the doors were opened, and immediately reported for work. To prove the 8 (a) (3) and 8 (b) (2) allegations of the complaint it was necessary in this case for the General Counsel to establish , inter alia , that the Company and the Union, re- spectively , had knowledge or belief before the discharges of Baker and Rodeffer on August 31, 1951, with respect to their UCW activities . We are satisfied that the record supports the conclusion that the Respondents had such knowledge or belief. Knowledge of Baker's solicitation of her fellow employees in the sausage room, where approximately 12 employees were employed, may reasonably be imputed to Florence Dellinger, the union stewardess , who also worked in the sausage room. Dellinger ' s knowledge is chargeable to the Union . We also reasonably infer that Gray and his local representative, Spitzer, knew that Baker and Rodeffer had been chosen to constitute the "strike committee" at the UCW fire hall meeting on August 23 . Gray, whose office was in Washington, D. C., testified that he arrived at the Company ' s plant at 5 a. m. Monday , August 26 , and was the first person on the scene ; that he had been informed before then by Spitzer of the UCW meeting on the preceding Friday night and was at the plant to head off the strike . We believe that as Spitzer and Gray were so promptly and reliably informed regarding the strike vote taken at the UCW meeting, they necessarily had access to and learned of other business transacted at the meeting of major concern to the Union , including the identity of company employees designated as a "strike committee" to negotiate for UCW bargaining status. From the foregoing, we find that the Union was apprised of Baker's and Rodeffer's UCW activities before they were discharged. We are convinced , for reasons explicated below , that the Union brought to the Company ' s attention the facts concerning Baker's and Rodeffer ' s rival union activities in urging their discharges for -these reasons. Moreover , there is sufficient proof in the record to warrant the conclusion that the Company had independently learned of their UCW activities. Thus, Fritz Lindner , the assistant foreman directly over the sausage room, testified that he had been aware of UCW activity in the plant although he did not know which employees were thus engaged. He further testified , however, that he discovered "what it was all about " on the day of the strike, and that during the week before Baker and Rodeffer were discharged he was told by some of the girls in the sausage room that Baker and Rodeffer "were with the others that were there in the picket ." Plant Manager Sheffield denied in his testimony knowing that Baker and Rodeffer were active for the UCW, although he knew there was UCW activity in the plant. He testified further that he had learned via the "grapevine" about the UCW fire-hall meeting on the day of the strike or the next day . Plant Superintendent Garside testified that he SHEN-VALLEY MEAT PACKERS, INCORPORATED 497 had known by "hearsay" that Baker and Rodeffer were either members or adherents of the UCW, and further testified that their names might have been mentioned to him in this con- nection . Garside also testified that Sheffield had conferred with him about Baker and Rodeffer in arriving at the decision to discharge them. We are satisfied that Lindner's and Garside's testimony clearly reveals their knowledge of Baker's and Rodeffer's UCW activities before their discharges. We are also satisfied that if, as Sheffield testified, he had received "grapevine" information of the UCW fire -hall meeting, he was apprised of the events transpiring at the meeting, including the selection of Baker and Rodeffer as the "strike committee." In view of the foregoing, we find that the Company had knowledge or belief as to the rival union activities of Baker and Rodeffer before they were discharged. B. The discharges of Baker and Rodeffer Baker's employment with the Company began in July 1950. Rodeffer was hired in February 1951. At the time of their discharges their duties consisted of hanging links of frank- furters on a rack for smoking as they were ejected from a stuffing machine. Two other employees, Florence Dellinger, the aforementioned union stewardess, and Evelyn Litten were the stuffers who regularly operated the machine producing the frankfurters. Edna May Clutters, another sausage-room employee, occasionally replaced one of the stuffers. All these employees, together with the rest of the women in the sausage room comprising a force of 12 or 13 women, were directly supervised by Fritz Lindner who served as assistant foreman under his father, Henry Lindner, the foreman. At about 3:30 p. m. on August 31, 1951, Foreman Henry Lindner brought Baker and Rodeffer their paychecks and instructed them to check out. Inquiry from Fritz Lindner as to what his father had meant brought confirmation of their understanding that they were discharged. Thereupon they, and Mary Moyer, another employee who had also been given her paycheck, spoke to Henry Lindner and asked why they were discharged. He informed Moyer she had been "too slow," but said to Baker and Rodeffer, "I don't know, you will have to see the management. I honestly don't know." Later that afternoon Baker and Rodeffer spoke to Sheffield and asked for an explanation as to their discharges. He indicated only that they had caused trouble and that he had received complaints about them from three sources. When they pressed him for the names of the complainants he refused to divulge their identity, but said "I can't run the plant with you two girls. If I keep you two girls, the rest will all quit." On the following Tuesday, September 3, Baker, accompanied by Ernest Martz who was the union steward on the kill floor, but who was also a UCW adherent, again requested reasons from Sheffield for their discharges, but obtained no further 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information than the general explanation that they had caused trouble, and couldn't get along with the girls in the sausage room. Sheffield denied the query by Martz whether the dis- charges were the result "of the other union in the plant," and refused to comply with the suggestion to bring in some of the employees from the sausage room to testify concerning the complaints against Baker and Rodeffer. That same day, or the next, Martz procured the signatures of 18 to 20 employees on the kill floor toapetition requesting Sheffield to give reasons for Baker ' s and Rodeffer's dis- charges . This petition was presented to Sheffield. When Gray learned of the petition he contacted Sheffield and then came to the plant to form a grievance committee composed of men from the kill floor. The following week a meeting was held at the plant which was attended by Sheffield, Gray, and the employee members of the committee. Baker and Rodeffer did not attend the meeting although it had been their understanding they would be notified of the time it would be convened so that they could be present . They testified that they did not learn of the meeting until Gray telephoned Rodeffer one evening to say that it had already been held and informed her it was the consensus of the committee that the Company had justifiably discharged her and Baker . Gray, on the other hand , testified that he had called Rodeffer the day before the meeting to give her and Baker an opportunity to attend . Baker and Rodeffer , however , testified in rebuttal that the day after his call to Rodeffer, which according to Gray's testimony was the day when the meeting was held, they came to the plant to clear out their lockers. While there they went to the Company's office where Baker picked up her vacation check from a Mr. Lindstrom in the office. As they went from there to the parking lot, Gray and Spitzer passed them in an automobile at a distance of not more than 3 feet and " sneered " at them. The Trial Examiner credited Baker's and Rodeffer' s testi- mony that they had not been apprised of the meeting before it was held. We agree with this resolution .5 Sheffield testified that it was his impression that they were to have been notified in advance of the meeting , and Gray's testimony indicates he had the same impression . Yet, neither Sheffield nor Gray delayed the meeting pending their arrival. Although the meeting lasted from lZ to 2 hours, no attempt was made to contact them to find out whether they were going to appear. We do not regard such lack of interest in the absence from a grievance meeting of the parties principally affected by the action to be taken at the meeting as indicative that their presence was either expected or desired by those conducting the meeting. Persons in whose behalf grievance meetings of the sort here in question are called are generally eager to attend to defend 5 Because the clear preponderance of all the relevant evidence does not convince us that the Trial Examiner's resolution was incorrect, we adopt this credibility finding Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362. SHEN-VALLEY MEAT PACKERS, INCORPORATED 499 against adverse charges and to confront complaining witnesses. It is unlikely that Baker and Rodeffer , who we find were at the plant on the day of the meeting and were seen there by Gray , would not have appeared at the meeting if they had known it was to be held that day. We are convinced, as was the Trial Examiner, that Gray had not notified them in advance of the meeting when it was to be held , and conclude from all the circumstances relative to the meeting that Gray had misled them as to the time of the meeting to prevent their appearance. No employees from the sausage room were called to the meeting to present their complaints against Baker and Rodeffer. According to Gray, Sheffield related to the committee numerous complaints he had received about Baker and Rodeffer from the sausage-room foreman and his assistant that "the girls were almost impossible to work with, that they were hard to get along with , argumentative , that they used vile language on occasion , cussed out some of the employees in no uncertain terms , that they had complained about the way that two of the girls (Dellinger and Litten ) were stuffing the franks out, claiming that the girls didn't stuff them properly even though the girls were following the instructions of their foreman." Gray testified that he had talked to Fritz Lindner before the meeting as to the complaints against Baker and Rodeffer, and was satisfied that Sheffield ' s statement of the Company's position was supported by what Lindner had told him. He therefore considered Sheffield ' s explanation as to the reason for the discharges as adequate . Apparently the other committee members formed a similar impression as no dissent was voiced at the meeting to the Company ' s position. Sheffield testified that the charges against Baker and Rodeffer, as related by him at the grievance meeting, were based on 2 investigations made by him , the first about 2 or 3 months be- fore the discharges , and the second about 3 days after the UCW's attempted strike. These investigations resulted from com- plaints by Fritz Lindner and Dellinger ,6 and consisted merely of consultation with these 2 persons and Foreman Henry Lindner. Sheffield stated that Baker and Rodeffer were reported to have been abusive , and that they found fault with their coworkers. Dellinger assertedly told him that they were always causing trouble on the stuffing bench and calling names. Sheffield did not in his investigation obtain names of aggrieved employees other than Dellinger ' s or any particulars as to dates or other facts pertaining to incidents in which Baker and Rodeffer might have been involved. Superintendent Garside testified that he had received com- plaints about Baker and Rodeffer about 4 months before their discharges from both Henry and Fritz Lindner. These com- plaints were to the effect that they were "troublemakers and were retarding production ." He estimated that he had received about a dozen complaints . He stated that he was informed by 6Sheffield testified that Dellinger had spoken to him "about 2 or 3 days after the so- called strike " 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foreman (Henry Lindner) that Baker and Rodeffer had argued with all the girls. Like Sheffield, he was satisfied with his foreman ' s report concerning the complaints and spoke to no sausage - room employees concerning them except Dellinger. Fritz Lindner, the assistant foreman, testified that he had asked his father, Foreman Henry Lindner, to discharge Baker several times long before she was finally discharged. He did not find fault with her productiveness as a sausagehanger because, in his own words , " she had to work , because she had to keep up with the machine." The main difficulty, he testified, was her inability to get along with the other girls. It appears that the Company had had a supply of casings which were too small for the size frankfurters being produced but which Lindner nevertheless instructed the stuffers, Dellinger and Litten, to use. As a result, frankfurters were frequently produced with broken casings. This necessitated additional work by Baker and Rodeffer who were required to shell the meat out of the broken casings and to tie the loose ends. Del- linger, Litten, and Clutters, the substitute stuffer, complained to Lindner that Baker and Rodeffer blamed their operation of the sausage machine for the broken casings, and that these criticisms made their working conditions unbearable. They threatened to walk out if Baker and Rodeffer remained. On the several occasions that he had mentioned this matter to his father and requested the discharges of Baker and Rodeffer, Fritz Lindner was told by his father than nothing more was involved than the usual disagreements of female employees and "to let the girls go on." Lindner was uncertain as to the time when Dellinger threatened to walk out, but it appeared from his testimony that she made one threat about a month before the attempted strike of August 26 and then not again until about a week before Baker and Rodeffer were discharged on August 31. Lindner admitted that he had never heard argu- ments in the sausage room , and that he had never admonished Baker and Rodeffer for excessive talking during work except as part of a group of sausage-room employees. Dellinger testified that her difficulties with Baker and Rod- effer concerning her stuffing operations started about 3 months before they were discharged . She mentioned only 2 occasions when she complained to her superiors about their faultfinding and threatened to walk out with other employees if they were allowed to remain. On the first occasion she spoke to Sheffield in Fritz Lindner's presence, and on the second occasion she was accompanied by Spitzer when she again spoke to Sheffield. She fixed the time of this last occasion at about 3 weeks before the discharges . Her recollection as to this date, however, is at variance with Sheffield's testimony that he was away from the plant between August 2 and August 22 or 23. Like the Trial Examiner , we find that Dellinger ' s last complaint and ulti- matum were made to Sheffield 2 or 3 days after the UCW strike attempt, as Sheffield testified. SHEN-VALLEY MEAT PACKERS, INCORPORATED 501 Apart from the matter of the broken casings, Dellinger had no arguments with Baker and Rodeffer , nor did she know of any arguments between them and other employees in the sausage room . She acknowledged that they did not swear at her,7 and that they did not while at work speak in tones louder than others in the sausage room. Litten and Clutters testified to the same effect. The fact that Baker and Rodeffer did not use profanity or obscene language , or create commotions or disturbances at work was also confirmed by the testimony of sausage-room employees Bynaker, Lucas, and Nesselrodt. Baker and Rodeffer testified without contradiction that they were never criticized by their supervisors because of their work or behavior on the job. Henry Lindner was not called as a witness , but Baker testi- fied that about a week after her discharge , she and her husband called at his home. On this occasion Lindner told her he didn't know why she had been discharged , but "that he thought it was because of the other union." He repeated to her what he had told his wife the day of their discharges that "before he would go through that door again he would have to do the hardest thing he ever did in his life--fire two of the best workers he had in his department ." Baker ' s husband confirmed his wife's testi- mony in this respect. From the testimony of the foregoing witnesses , many of whom were called by the Respondents , these facts are clear: (a) Contrary to Sheffield ' s charges related at the grievance meeting , Baker and Rodeffer had not used vile language or cursed their coworkers. (b) Superintendent Garside's indictment of Baker and Rod- effer , to the extent that it is based on alleged numerous com- plaints about them from Foreman Henry Lindner, is not sustained , particularly in view of Lindner ' s high regard for these employees as shown by his remarks to Baker. (c) Apart from criticisms by Baker and Rodeffer as to the manner in which Dellinger , Litten, and Clutters performed their stuffing operations , they engaged in no arguments with these employees nor with any of their coworkers in the sausage room. (d) At no time relevant to their discharges had Baker's and Rodeffer ' s deportment while at work furnished cause for disciplinary action, and they had never during their entire employment with the Company been singled out for repri- mands, warnings , or disciplinary action. (e) There is no evidence that the Company was dissatisfied with their productiveness during any period relevant to their discharges ; on the other hand the record indicates that they were regarded as efficient employees. 7 The strongest language apparently used by Baker , according to Dellinger, was her reference to the sausage-stuffing machine as a "damn machine " 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discrimination It is evident that the only bona fide reason which the Company could possibly have asserted for its discharges of Baker and Rodeffer was their alleged faultfinding about the broken frank- furter casings . The record clearly shows , however, that Dellinger and Fritz Lindner had voiced their complaints con- cerning this faultfinding months before the discharges occurred, and that the Company ' s supervisors and officials did not regard them to be sufficiently serious to warrant even a reprimand or a warning of disciplinary action . On the other hand , the Com- pany's official attitude was one of complete indifference or forbearance as evidenced by General Manager Sheffield's silence after his first investigation , and Foreman Lindner's instructions to his son , Fritz , to overlook the complaints against Baker and Rodeffer . The question necessarily arises as to what prompted the change in the Company ' s attitude which resulted in their discharges. The answer to the question thus posed may best be derived by considering the discharges in the light of the attending facts and circumstances . Notable among them is the fact that the discharges were ordered within the week following the attempted strike by the UCW , and the equally important fact that Baker's and Rodeffer ' s UCW activities and sympathies were known to the Company and the Union at this time . Also highly significant is the fact that Dellinger renewed her complaint against Baker and Rodeffer and threatened to walk out 2 or 3 days after the UCW's strike attempt, and that now, as contrasted with its former inaction, the Company complied with her demandto get rid of them. Not to be overlooked is Dellinger ' s remark after the UCW strike action , "that those who attended the UCW strike meeting would be fired ," and Gray's hostility towards Baker and Rodeffer as evidenced particularly by his success- ful scheme to keep them away from their grievance meeting. Together with these facts and circumstances must be considered the precipitate character of the discharges , the vague reasons given by Sheffield at that time for the discharges and the sub- sequent assignment of reasons at the grievance meeting and hearing by Sheffield and Garside some of which had no basis in fact , and the admission by Foreman Henry Lindner shortly after the discharges that he did not know of reasons for the discharges and his regret over the loss of his two best workers. We conclude from all the facts in this case that Dellinger's demand to Sheffield to discharge Baker and Rodeffer after the UCW strike attempt was prompted by her desire as the Union's stewardess in the department where these rival unionists worked to get rid of them because of their part in the UCW's move to supplant the Union as bargaining representative . Gray's hostility towards Baker and Rodeffer is indicative of his desire also to eliminate them from the plant because of their rival SHEN-VALLEY MEAT PACKERS, INCORPORATED 503 unionism , and we find that he acquiesced in and ratified Del- linger ' s demands and threats. We are further satisfied that Sheffield ordered the discharges to appease Dellinger ' s threat to walk out , and that he did so with knowledge that her threat was motivated by her desire as the Union's stewardess to get rid of Baker and Rodeffer because of their rival union activities and sympathies . We find , as did the Trial Examiner , that the Company violated Section 8 (a) (3) and 8 (a) (1) of the Act by discharging Baker and Rodeffer for these reasons. Contrary to the Trial Examiner, we also find that the Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act, by causing or attempting to cause the discharge by the Company of Baker and Rodeffer for the reasons set forth above. The Trial Exam- iner had dismissed the complaint as to the Union on the ground that the record lacked proof of authority by Dellinger from the Union to demand the discharges . However , under general rules of agency applicable here, the Union is chargeable with Dellinger ' s conduct as its stewardess whether she acted with- out express authority or even if her action was specifically forbidden, provided that she had been empowered by the Union to represent it in the general area within which she, as stew- ardess, had acted .8 Gray testified that Dellinger ' s duties as stewardess consisted in part " of doing everything in her power outside of coercion to persuade [employees] to join the union, to become members." Clearly, the elimination of rival union adherents competing for the membership of employees whom she might seek to enroll in the Union would enable her to achieve this objective more effectively. Moreover, she would clearly be aided in carrying out her function in signing up new employees , because of the coercive effect upon them of the discharge of rival unionists for such activities. Apart from these considerations , the evidence of Gray's animus towards Baker and Rodeffer occasioned by their rival union activities, and his acquiescence in Dellinger ' s move to have them dis- charged sufficiently shows ratification of her conduct by the Union to render it responsible therefor . Accordingly, we reverse the Trial Examiner ' s dismissal of the complaint as to the Union. We also find that the Company' s conduct in discharging Baker and Rodeffer because of their activities in behalf of a labor organization opposed to the Union constitutes unlawful assistance and support to the Union in violation of Section 8(a)(2)oftheAct. 9 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above , have a close, inti- SPerry Norvell Co., 80 NLRB 225; Sunset Line and Twine Co., 79 NLRB 1487. 9 Harrison Sheet Steel Co , 94 NLRB 81. 291555 0 - 54 - 33 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate, 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 com- merce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices , we shall order them to cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. We shall , therefore , order the Company to offer Pearlie H. Baker and Doris Rodeffer im- mediate and full reinstatement to their former or substantially equivalent positions , P without prejudice to their seniority or other rights and privileges . We shall also order the Company and the Union , jointly and severally , to make whole Pearlie H. Baker and Doris Rodeffer for any loss of pay they may have suffered because of the discrimination against them, by payment to them of a sum of money equal to the amounts they would have earned as wages from August 31, 1951 , to the dates of offer of reinstatement , less their net earnings during such periods. Back pay shall be computed in accordance with the Board ' s Woolworth formula" on the basis of each separate calendar quarter or portion thereof during the period from the discharges to the dates of proper offers of reinstatement. The quarterly periods, hereinafter called "quarters ," shall begin with the first day of January , April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or portion thereof, their net earnings' if any, in other employment during that period . Earnings in one par- ticular quarter shall have no effect upon the back pay liability for any other quarter. In accordance with our practice , the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amount of back pay to which these individuals are entitled from the Union, because of the Trial Examiner ' s recommendation that the complaint be dismissed as to the Union. We shall also order the Company to make available to the Board, upon request , payroll and other records to facilitate the checking of the amount of back pay due. Upon the foregoing findings of fact , and upon the entire record in the case , the Board makes the following: loin accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position " is intended to mean "former position when- ever possible, but if such position is no longer in existence then to a substantially equiva- lent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. ii F. W. Woolworth Co, 90 NLRB 289. 12 Crossett Lumber Company, 8 NLRB 440. SHEN-VALLEY MEAT PACKERS, INCORPORATED 505 CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and .Butcher Workmen of North America, Local 393, AFL, and,, United Construction Workers, affiliated with United Mine, Workers of America, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Pearlie H. Baker and Doris Rodeffer, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act, has furnished unlawful support and assistance to the Union in violation of Section 8 (a) (2) of the Act, and has interfered with, restrained, and coerced its employees in the exercise of the right guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By attempting to cause and causing the Company to dis- criminate against Pearlie H. Baker and Doris Rodeffer in violation of Section 8 (a) (3) of the Act, the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act, and has restrained and coerced employees of the Company in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: A. Respondent Company, Shen-Valley Meat Packers, In- corporated, Timberville , Virginia , its officers , agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees or encouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, Local 393, AFL, by discharging any of its employees , or in any other manner discriminating in regard to the tenure of employment or terms or conditions of employment of its employees. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist any labor organization , to bargain collectively through repre- sentatives of their own choosing , to engage in concerted activ- ities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agree - ment requiring membership in a labor organization as a condi- 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of employment in the manner and to the extent authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action whichthe Board finds will effectuate the policies of the Act: (a) Offer to Pearlie H. Baker and Doris Rodeffer immediate and full reinstatement to their former or substantially equi- valent positions without prejudice to their seniority or other rights and privileges. (b) Upon request, make available to the Board or its agents for examination or copying all payroll records , social-security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Decision and Order. (c) Post in conspicuous places at its Timberville, Virginia, plant , copies of the notice attached hereto marked "Appendix A."13 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent Company's representative , be posted by the Respondent Company immediately upon receipt thereof and maintained by it for a period of sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to the employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices shall not be altered , defaced , or covered by other material. (d) Notify the Regional Director for the Fifth Region in writing, within ten ( 10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. Respondent Union, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 393, AFL, its officers, representatives , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Causing or attempting to cause Respondent Company, Shen -Valley Meat Packers , Incorporated , its officers , agents, successors, or assigns to discriminate in regard to the tenure of its employees or any terms or conditions of employment in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees of Respondent Company, Shen -Valley Meat Packers , Incor- porated , its successors, or assigns , in the exercise of their rights guaranteed by Section 7 of the Act, except in the manner and to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: 13 In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " SHEN-VALLEY MEAT PACKERS, INCORPORATED 507 (a) Notify in writing the Respondent Company, Shen-Valley Meat Packers , Incorporated , that it withdraw all objections to the employment of Pearlie H. Baker and Doris Rodeffer, and that it requests said Respondent Company to offer them im- mediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges. (b) Post at its business offices and meeting halls in Timber- ville, Virginia, or wherever its offices or meeting halls may be located, copies of the notice attached hereto and marked "Appendix B."44 Copies of said notice , to be furnished by the Regional Director for the Fifth Region , shall, after being duly signed by the Respondent Union' s representative , be posted by the Respondent Union immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices shall not be altered , defaced, or covered by other ma- terial. (c) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order,what steps the Respondent Union has taken to comply herewith. C. Respondents Shen-Valley Meat Packers, Incorporated, Timberville, Virginia, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 393, AFL, their respective officers, representatives , agents, successors, and assigns, shall: Jointly and severally, make whole Pearlie H. Baker and Doris Rodeffer for any loss of pay they may have suffered by reason of the discrimination against them, in the manner prescribed in the section of this Decision and Order entitled "The Remedy." 14 In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order ." the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 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 WILL NOT discourage membership in any labor organization of our employees or encourage membership in Amalgamated Meat Cutters and Butcher Workmen of 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North America, Local 393, AFL, by discharging employ- ees or in any other manner discriminating in regard to the tenure of employment or terms or conditions of em- ployment of our employees. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any 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, or to refrain from any or all such activities except to the extent that such right may be affected by a valid agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL offer Pearlie H. Baker and Doris Rodeffer immediate and full reinstatement to their former or sub- stantially'equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and, jointly and severally with Amalgamated Meat Cutters and Butcher Workmen of North America- Local 393, AFL, make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named labor organization, or any other labor organization, or to refrain from such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employees because of membership in or activity on behalf of any such labor organization. SHEN -VALLEY MEAT PACKERS, INCORPORATED, Employer. Dated ............ By ........................................................ (Representative ) (Title) This notice must remain posted for '60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SHEN- VALLEY MEAT PACKERS, INCORPORATED APPENDIX B NOTICE 509 TO ALL MEMBERS OF AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 393, AFL AND TO ALL EMPLOYEES OF SHEN-VALLEY MEAT PACKERS, INCORPORATED Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT cause or attempt to cause Shen-Valley Meat Packers , Incorporated , its successors or assigns, to discriminate in regard to the hire or tenure of em- ployment or the terms or conditions of employment of its employees in violation of Section 8 (a) (3) of the Act, except in the manner and to the extent authorized in Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of Shen- Valley Meat Packers, Incorporated, its successors or assigns, in the exercise of their rights guaranteed in Section 7 of the Act, except in the manner and to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization, as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL, jointly and severally with Shen-Valley Meat Packers, Incorporated, its successors and assigns, make whole Pearlie H. Baker and Doris Rodeffer for any loss of pay suffered as a result of the discrimina- tion against them. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMER- ICA, LOCAL 393, AFL, Labor Organization. Dated .................... By ... . ................. ..... ............. . .......... (Representative) (Title This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. -