Swift & Co.

In the Matter Of SWIFT & COMPANY and UNITED AUTOMOBILE WORKERS of AMERICA, LOCAL No. 265 In the Matter Of SWIFT & COMPANY and UNITED PACKING HOUSE WORKERS L, I. UNION No. 328 AFFILIATE C.I.O. Cases Nos . C-484 and R-605, respeetively.Decided May 20, 1938 Heat Packing Industry-Interference, Restraint, and Coercion-Company- Dominated Union: domination of and interference with formation and adminis- tration ; support ; suggestion that employee-representation plan be continued ; disestablished, as agency for collective bargaining-Discrimination: discharges: charges of, not sustained-Collective Bargaining: charges of failure, dismissed, upon motion of union--Investigation of Representatives: controversy concerning representation of employees-Unit Appropriate for Collective Bargaining: plant- wide, excluding employees in certain supervisory and technical positions ; stipulation as to-Election Ordered: company-dominated union excluded from ballot. Mr. Herbert N. Sh.en.kin, for the Board. Mr. Louis L. Roberts and Mr. Leo Warren, of Evansville, Ind., and Mr. William N. Strack and Mr. J. Wesley Blades, of Chicago, Ill., for the respondent. Mr. Morris J. Levin, of St. Louis, Mo., for the United. Mr. Paul H. Schmidt, of Evansville, Ind., for the Evansville Packers. Mr. Richard A. Perkins, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 14, 1937, United Automobile Workers of America, Local No. 265, herein called the U. A. W., filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana ) charges alleging that Swift and Company ,, Evansville , Indiana, herein called the i The original charge, the petition and the order directing investigation designated the respondent as "Swift & Company." The amended charge and the complaint referred to "Swift and Company, Incorporated." The respondent's correct name is "Swift and Company." 287 288 NATIONAL LABOR RELATIONS BOARD respondent, had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1), (2), and (5), of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 28, 1937, United Packing House Workers Local Industrial Union No. 328, herein called the United, which continued organiza- tional activity commenced by the U. A. W. among the respondent's employees at its Evansville plant, filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent at its Evansville, Indiana, plant, and requesting an investigation and cer- tification of 'representatives pursuant to Section 9 (c) of the Act. On September 30, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article II, Section 37 (b), and Article III, Section 10 (c) (2), of Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation, authorized the Regional Director to conduct it and to provide an appropriate hearing upon due notice, and directed that the representation proceeding and the proceeding in respect to the alleged unfair labor practices be consolidated for the purpose of a hearing. On October 8, 1937, the United filed an amended charge. On Oc- tober 9, 1937, the Board, by the Regional Director, issued its com- plaint alleging that the respondent 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 Act. The complaint was duly served upon the respondent, the United, and upon Evansville Meat Packers Local No. 400, herein called the Evansville Packers. The complaint, alleged in substance that on or about July 14, 1937, the respondent refused to bargain collectively with the United as the duly authorized representative of the respondent's production em- ployees, said employees constituting an appropriate bargaining unit; that the respondent, since April 12, 1937, had dominated and inter- fered with the formation and administration of the Evansville Pack- ers and contributed financial and other support thereto; that the re- spondent discharged Texel Laughery and James Ashby on or about June 1, Herman Ditterline on or about August 19, and John Monk and Joe Fulkerson on or about September 14, 1937, and had since refused to reemploy them, for the reason that they had joined and assisted the United; and that the respondent had by threats discour- aged membership in the United. On October 9, 1937, the Regional Director issued notices of hear- ing in the consolidated proceeding, copies of which were duly served DECISIONS AND ORDERS 289 upon the respondent, the United, and upon the Evansville Packers, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notices, a hearing. was held from November 8 to November 20, 1937, at Evansville, Indiana, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the respondent, the United, and the Evansville Packers were represented by counsel and participated in the hearing. The respondent moved for an order requiring the allegations of the charge and the com- plaint to be made more definite and certain, and to dismiss the pro- ceeding, alleging various procedural defects and claiming that the nature of the respondent's business did not render it subject to the provisions of the Act. The Trial Examiner overruled these motions, whereupon the respondent filed its answer denying the material averments of the complaint. Full opportunity to be heard, to ex- amine and to cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing counsel for the Board moved to dismiss the allegations of the com- plaint relating to the alleged discriminatory discharges of James Ashby and Joe Fulkerson, and to amend the complaint to make it allege the discriminatory discharge of Basil Laughery. The Trial Examiner allowed these motions, and granted leave to the respondent to amend its answer so as to deny the allegations of the amendment relating to the discharge of Basil Laughery. On motion of the United the Trial Examiner dismissed the allegations of the complaint relating to the alleged refusal of the respondent to bargain collec- tively with the United within the meaning of Section 8 (5), of the Act. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial errors were committed. All such rulings are hereby affirmed. On March 3, 1938, the Trial Examiner filed his Intermediate Report in which he found that the respondent had dominated and interfered with the organization and administration of the Evans- ville Packers, coerced its employees in the exercise of their right to self-organization, and discouraged membership in a labor organiza- tion by discrimination in regard to the hire and tenure of employ- ment of Herman Ditterline only. As to the remaining three em- ployees whose discharge the complaint, as amended, alleged to be discriminatory, the Trial Examiner found that the respondent had not committed any unfair labor practices. On March 28 the respond- ent and the Evansville Packers filed exceptions to the Intermediate Report, in which they excepted to several of the Trial Examiner's 290 NATIONAL LABOR RELATIONS BOARD rulings at the hearing and to several of the findings in the Inter- mediate Report. Pursuant to notice, a hearing was held before the Board on March 31, 1938, for the purpose of oral argument. The respondent and the United participated. The respondent and the Evansville Packers were granted leave to file briefs on or before April 5, 1938, but have not availed themselves of that privilege. We have examined the exceptions to the Intermediate Report and, except as to the discharge of Herman Ditterline as indicated below, we find them without merit, and they are hereby overruled. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Swift and Company, an Illinois corporation with its general offices at Chicago, Illinois, is engaged in a wide variety of activities in acquiring, processing, and marketing foodstuffs and byproducts. The respondent, directly and through more than 75 domestic and foreign corporate subsidiaries, produces and distributes meat, poultry and dairy products, leather, vegetable oils, wool, fertilizer, salt, sulphuric acid, glue, gelatin, glycerine, soap, and ice. The respondent operates 37 livestock slaughtering and processing plants, 17 fertilizer works, and 24 cottonseed oil mills and refineries, and maintains over 350 distributing agencies in the United States, Canada, Mexico, and Cuba. During its fiscal year ending October 31, 1936, the respondent's gross sales amounted to $827,332 ,655.98. Freight charges on outgo- ing shipments from the respondent's plants for the same period amounted to $27,492,884.29. Goods to the value of $11,512,851.15 were exported to foreign countries during the same year . The total assets of the respondent as of October 31 , 1936, were valued at $419,679,289.46. At its Evansville, Indiana, plant, which is the only plant involved in the present proceedings, the respondent is engaged in slaughtering and-processing cattle, hogs, and sheep, raising poultry, and processing and marketing dairy and poultry products. Livestock slaughtered at the Evansville plant is purchased at the Evansville stockyards, to which cattle from Indiana, Kentucky, Illinois, and other States are shipped for sale, and where they are commingled so that it is im- possible to discover their origin. The Evansville stockyards received livestock from outside Indiana during the first 11 months of 1937 in the following approximate proportions : Hogs, ' 49 per cent ; sheep, 57 per cent; calves, 61 per cent; cattle, 71 per cent. For the first 11 DECISIONS AND ORDERS 291 months of 1937 the respondent shipped products of its Evansville plant to the value of $6,342,479, or 75.48 per cent of its total product, out of Indiana. The number of employees at the Evansville plant varies greatly from time to time. On October 30, 1937, 461 persons were employed. II. THE ORGANIZATIONS INVOLVED United Automobile Workers of America, Local No. 265, is a labor organization affiliated with the Committee for Industrial Organi- zation. United Packing House Workers Local Industrial Union No. 328, is a labor organization affiliated with the Committee for Industrial Organization. It admits to membership employees of the respondent and of several other employers engaged in similar work in the vicinity of Evansville, Indiana. Evansville Meat Packers Local 400 is an unaffiliated labor organi- zation, admitting to its membership only employees of the respondent at its Evansville, Indiana, plant. The term "Local 400" in its title is without significance so far as affiliation with any labor organiza- tion is concerned. III. IHE UNFAIR LABOR PRACTICES A. The Employees Representation Plan In 1933 the respondent established among the employees at its Evansville plant an Employees Representation Plan, a labor organi- zation herein called the Plan. The governing body of the Plan, known as the Plant Assembly, consisted of seven employee repre- sentatives elected by secret ballot, one from each of the departments of the plant, together with an equal number of representatives chosen by the management. Under the Plan, an employee might pre- sent a grievance to his employee representative, who would confer with the corresponding management representative. If the paired representatives could not dispose of the matter it was then referred to the Plant Assembly or to a committee thereof. Meetings of the Plant Assembly were held on the respondent's premises during work- ing hours. The respondent paid the employee representatives for the time they were engaged in the work of the Plan, and furnished stationery and stenographic services. By the respondent's admis- sion, these practices continued until April 20, 1937, when the Plan was officially dissolved. It is clear that for nearly '2 years after July 5, 1935, the effective date of the Act, the respondent persisted in dominating and interfering with the formation and administration of a labor organization, and contributing financial and other support 292 NATIONAL LABOR RELATIONS BOARD thereto, in violation of Section 8 (2) of the Act. The participation of management in the administration of such an organization nec- essarily has the effect of interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, as we have heretofore held.2 The complaint alleges that the respondent on and after April 12, 1937, engaged in unfair labor practices within the meaning of the Act. The above-described conduct of the respondent prior to the first date alleged in the complaint is relevant, however, in indicating a course of conduct and furnishing a background for the better understanding of the events which occurred after April 12, 1937. 13. Dissolution of the Plan and formation of the Evansville Packers After the constitutionality of the Act was affirmed by the Supreme Court of the United States on April 12, 1937, the respondent's Chicago office instructed Franklin S. Grimsley, general manager of its Evansville plant, to disband the Plan, and furnished him with a digest of the Act with such comment as the respondent deemed appropriate. At a meeting of the Plant Assembly on April 20, 1937, Evan F. Becker, plant superintendent, read to the assembled representatives the following statement, which was posted in the plant soon after- wards : Statement to Employes and Their Representatives On Monday, April 12, the United States Supreme Court made public its decisions on several cases under the National Labor Relations Act (Wagner Bill) and held the Act valid. It is Swift & Company's intention to comply with the law as the Court has now construed it and it is not possible to continue the present Representation Plan. Whether you wish to establish an employes' representation plan for collective bargaining, that will comply with the terms of the law, is a matter for you to decide. If you wish to, adopt a plan for negotiating with the company on wages, hours, and working conditions, it should not include management participa- tion in elections of employe representatives, the furnishing of printed material by the company, nor company compensation to employe representatives for time spent away from their work, except when conferring with management, as this latter is not prohibited by law. 2 Matter of International Har?,ester Company and Local Union No 57, International Union, United Anionobile Workers of America, 2 N. L. R B 310. DECISIONS AND ORDERS 293 It shall be the policy of the company to continue to consult with its employes' on all matters of mutual interest in an honest effort to find the proper solution to problems. Finally, the company earnestly desires that the understanding growing out of our relationships during these past many years will be the basis upon which the continued good relations between employes and the company will be maintained. F. S. GRIMSLEY. E. F. BECKER. Becker then handed a copy of the above statement, together with a digest of the Act, to the assembled representatives. Questioned as to what comment he made, he testified he had no recollection of tell- ing those present at the meeting that he preferred to see any particu- lar sort of organization formed. He testified that he and the management representatives withdrew from the meeting and that the employee representatives remained behind. Becker's account is corroborated by C. L. Flick, a foreman, and by Emerson Forte, a former employee representative who testified for the Evansville Packers. Walter Kissel and Harold Schmahlenberger, former em- ployee representatives testifying for the United, stated that Becker first said he would like to see the men form an "`inside" organization or representation plan, and then withdrew and let the employee rep- resentatives continue the meeting. George Falls, another employee representative who attended the meeting, testified that Becker re- mained throughout the meeting and suggested the formation of an unaffiliated organization. John Hassan and Ed Barth, likewise former employee representatives who attended the meeting, testified for the Evansville Packers on another issue but were not questioned on what took place at the meeting April 20. At any rate, the employee representatives agreed before adjourning to try to form an unaffiliated organization. Carrying out this scheme, they prepared and circulated among the employees petitions bearing the following legend : We; the undersigned, are in ' favor of an Employe Representa- tion Plan that will comply with the Wagner Act and at the same time give us representatives to handle grievances and adjustments of wages, hours, and working conditions with the management of Swift & Company. Further, we are in favor of retaining our present representatives until an election can be held to either re- elect or replace them. On`some'of the petitions the words "Employe Representation Plan" were 'stricken and replaced by the words "a Packers Union." 294 NATIONAL LABOR RELATIONS BOARD About May 7 the employee representatives met and canvassed the result" of the petitions, from which it appeared that 195 employees signed to signify their approval and 35 or 40 signed their names but wrote the word "no" thereafter. The committee of representatives re- tained the services of Henry T. Hardin, an attorney, to draft the nec- essary papers for the organization of an independent union. The name given the organization in the application forms prepared by Hardin was "Employees' Association of Swift & Company, Evans- ville, Indiana." The application form provided that the application be accepted by "Employees' Representation Committee of -Employees' Association of Swift & Company, Evansville, Indiana." The committee of representatives called a meeting of the employees on May 14' in the respondent's garage. The respondent claims it rented the garage to the new organization, and it produced at the hearing a receipt for $1.50, dated July 28, 10 weeks after the meet- ing, in support of its claim. At the meeting Hardin presented the proposed constitution and bylaws of the new organization and dis- tributed application blanks. The employees present manifested little desire to join, and only a few-from 3 to 7 out of the 150 at the meeting-signed applications for membership. Although the results of the mass meeting were disappointing to. the proponents of the new organization, efforts to overcome the an- tipathy or inertia of the employees continued. The committee of representatives held at least four meetings between May 17 and May 26 either in the respondent's garage or in the foremen's dressing room. Becker was present at each meeting. He testified that hav- ing' been advised by Forte that the new organization represented 90 per cent of the respondent's employees, he was meeting them for the purpose of collective bargaining. There are several difficulties with this version. In the first place, only 195 out of the respondent's more than 400 employees had signed the petition for a continuation of an employees' representation plan. Further, Becker admitted that he had been furnished no proof of the truth of Forte's repre- sentation; indeed, Becker did not see the petitions uutil.the hearing. And even had a majority of the employees originally signed the petition, the results of the meeting of May 14 indicated that the new organization was thereafter authorized to represent not over seven employees. Becker admitted that at the third such meeting someone present said that some of the employee representatives were "C. I. O.-ers," and that he replied he "didn't feel like meeting this outfit any more if it was so constituted." There is no evidence that any collective bargaining was carried on at any of the four meetings',- between Becker and the committee. Rather, it appears that -at the meetings an organizing campaign was devised to overcome the iesis`t- ance manifested at the mass meeting May 14. DECISIONS AND ORDERS 295 Committee members who later became active in the United testi- fied that at these meetings Becker exhorted the representatives to continue a vigorous organizing campaign, and that he made several suggestions for their guidance , such as, that the proposed dues be reduced so as to make the organization more attractive , that organizers be given a share in the initial fees collected, and that the representa- tives see Hardin and insist that he reduce the counsel fees which he originally demanded. Becker and two of the representatives deny that he made any such specific suggestions, though they admit he was present when some such discussions took place, and they admit, sig- nificantly, that he stated that judging from the result of the petitions as reported to him by Forte, the representatives had a mandate from the employees to proceed with the formation of a new organization. This, it will be remembered, was after the mass meeting of May 14 had made it quite certain that very few of the employees desired to proceed with the plan presented to them. At one of the committee meetings a new name, "Evansville Meat Packers Local 400," was adopted for the organization after com-, plaints were received that the former title, "Employees' Association of Swift & Company, Evansville,. Indiana," sounded too much like a "company union" and had a danmaging effect on the organizing cam- paign. The words "Local 400" were chosen for the reason that there were about 400 employees at the Evansville plant. The committee terminated Hardin's employment as counsel, but used the form of application lie had prepared as a model for new forms for application to membership in Evansville Packers, altering the title and reducing the amount of dues set forth therein from $1 a, month to $1 a year. There followed an intensive organizing effort on the part of the Evansville Packers. However, the evidence leaves no doubt that solicitation was carried on during working hours on the respondent's premises by both the Evansville Packers and the United, so that the respondent does not seem to have favored the Evansville Packers in simply allowing organization work to proceed at the plant. Once the Evansville Packers was well under way, it commenced holding meetings away from the respondent's premises. It has ad- justed some grievances , and it served a demand on the respondent for a wage increase . This demand was pending at the time of the hearing. C. Conclusions with respect to the Evansville Packers The continuity of events which followed the official dissolution of the Plan on April 20, 1937, clearly shows that the formation of the Evansville Packers was the natural sequel to the acts of the respond- ent substantially inviting the formation of an "inside" organization, 106791--38-vol vii--20 296 NATIONAL LABOR RELATIONS BOARD and, while it was yet in an inchoate state, to the presence and partici- pation of Becker, the plant superintendent. An analysis of the terms of the statement of policy read to the former representatives under the Plan and publicly posted reveals it to be a very astutely worded document. It informs the employees that it is up to them to decide whether they wish to form a new em- ployees' representation plan. Reference to such a plan necessarily connotes an organization limited to the respondent's employees. There was no mention of other possible alternatives. The statement in effect advised the employees how to organize a "plan" which would be free from the more obvious badges of employer domination. The conduct of Becker and the respondent's representatives at the April 20 meeting, even accepting his version, must have given the employee representatives at least a hint of what was expected of them. The statement was read and left, together with a digest of the Act, with the employee representatives. The management representatives then withdrew and left the employee representatives still in session. Clearly, the next move was up to the employees. And they did what was expected of them. We need not decide whether the mere form of the statement con- stituted such an invitation to form an "inside" union as to render any organization formed in response thereto unlawful under the provi- sions of Section 8 (2), of the Act. Becker's close association with the organizers of Evansville Packers in its embryo state evinced the respondent's preference in the matter. It is highly probable that the new organization would have disappeared after the May 14 meet- ing, had Becker not interfered. Employees' freedom to choose representatives involves the liberty to change or abandon representa- tives, free from the employer's domination. At the oral argument before the Board, counsel for the respondent claimed that the Trial Examiner's Intermediate Report in the in- stant case closely followed the form and language of an earlier Inter- mediate Report issued by Trial Examiner ' Alvin J. Rockwell in another case involving the respondent at its Denver, Colorado, plant.' Such claim calls attention to the striking similarity of the unfair labor practices which the respondent engaged in at the Evansville, Indiana, plant and at its plant in Denver, Colorado, located approxi- mately a thousand miles away. The record in the Denver case shows that a statement of policy identical with that discussed in Section III (B) hereof was read to employees at the Denver plant on April 20, 1937, the same day the statement was read to employees at the Evans- 3 Matter of Swift it Company, a Corporation and Amalgamated Meat Cutters it Butcher Workmen of North America, Local 641, and United Packing House Workers Local Indus- tral Union No 700, 7 N. L R. B. 269. DECISIONS AND ORDERS 297 ville plant. It is significant in this connection to note that Grimsley, general plant manager at the Evansville plant, testified that he pre- pared, the statement for use at Evansville. Both at the Evansville and the Denver plants, the employees immediately formed "inside" organizations. This is a significant indication of the natural effect of the statement. We find that the respondent has dominated and interfered with the formation, and administration of Evansville Packers, and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. D. The alleged discriminatory discharges The complaint, as amended, alleged that the respondent had dis- criminated against Texel Laughery, Basil Laughery, John Monk, and Herman Ditterline by discharging them for forming, joining, and assisting the United. As to all except Ditterline, the Trial Examiner found in his Intermediate Report that the evidence did not sustain the charge of discrimination. We agree with the Trial Examiner in his findings as to all except Ditterline for the reasons stated in the Intermediate Report. The allegations of the complaint with re- spect to the discharges of Texel Laughery, Basil Laughery and John Monk will be dismissed. Herman Ditterline had been employed by the respondent for about a year prior to his discharge on August 17, 1937. He worked in the fancy-meat department where his duties were to pack ice around pituitary glands obtained from the slaughter of hogs and to place the respondent's brand on cuts of meat. He testified that on two occasions C. L. Flick, his foreman, warned him against the United, and that a week after the latter warning Flick discharged him. Flick denied he had warned anyone not to join any labor organization. The reason Flick gave for the discharge at the time was that Ditter- line had omitted to ice a pail of pituitary glands, which became spoiled. Ditterline admitted that he had neglected to attend to his duties in this respect, but claimed that he had been given too much work to do on that day, and that after his discharge two men had been assigned to do the work he was formerly expected to do. Ditter- line admitted that he had been discharged in 1936 for performing his work improperly, and then rehired. Flick testified that he had instructed Ditterline 'that his first duty was to ice the glands promptly, for the reason that these were des- tined for use in the preparation of medicines for human consumption, and must be kept strictly fresh. The meats could be branded at any time, as this work was done in a chilled room. Further, Flick stated that the volume of hogs killed during the period when Ditterline was 298 NATIONAL LABOR RELATIONS BOARD discharged was short of the plant capacity, and that Ditterlitie's duties had always been performed by one man . After Ditterline's discharge a new man was broken in on the job. For 2 or 3 days he was helped by an experienced worker who instructed him, and there- after the new man handled the work without further assistance. The evidence does not show that Ditterline was active in the United; it shows merely that he was a member of that union. Yet a number of employees wore their union buttons, signifying United membership, openly in the plant. If the respondent wished to curb United activity by discharging employees, it is hardly plausible that Ditterline should have been selected for discharge. We therefore find that the evidence fails to sustain the allegation that the respondent discharged Herman Ditterline for forming, joining, or assisting a labor organization. The allegations of the complaint with respect to him will therefore be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in their right of self-organization. We shall order the respondent to cease and desist from so doing. We have also found that the respondent has dominated and inter- fered with the formation and administration of Evansville Packers. We shall. order the respondent to cease and desist from so doing and to disestablish Evansville Packers as representative of any of its employees for the purpose of dealing with the respondent concern- ing grievances, labor disputes, wage, rates of pay, hours of employ- ment, or other conditions of employment. \T. THE QUESTION CONCERNING REPRESENTATION At the hearing all parties stipulated that the United and the Evansville Packers had each informed the respondent that it repre- sented a majority of the respondent's employees at the Evansville plant and had requested recognition as exclusive bargaining agent for such employees, and that the respondent had at all times declined to recognize either organization as such exclusive bargaining agent. DECISIONS AND OI'.DERS 299 We find that a question has arisen concerning representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial re- lation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V1II. THE APPROPRIATE UNIT At the hearing all parties stipulated, and we find, that all employees of the respondent in the following, departments of its Evansville, Indiana, plant constitute a unit appropriate for the purposes of collec- tive bargaining: Fresh pork, hides, "S. P. & D. S. cellars," cooperage, beef and sheep dressing, beef cutting, casings, lard and grease, tank- age, sliced bacon, sausage and smoked meats, city market and pork packing, loading and beef coolers, car icing, box factory, laundry, yards, steam and power, mechanical, garage, chauffeurs, dairy, poul- try and eggs, turkey farm, and ice cream delivery, excluding persons in the superintendent's office, excluding those engaged in standards work, and excluding those holding the following positions : General manager, office manager, plant sales manager, beef, veal, and mutton manager, provision manager, dairy and poultry manager, city sales manager, credit manager, purchasing agent, plant superintendent, fresh-pork foreman, chief engineer and master mechanic, packing, loading, and auto foreman, sausage and smoked meat foreman, dairy and poultry foreman, beef and lamb killing foreman, casing and trimming foreman, fresh, cured, and smoked meat inspection fore- man, curing foreman, beef cutting foreman, lard and grease, tankage and hide foreman, mechanical foreman, sausage and smoked meats assistant foreman, head of industrial relations department, head of standards department, assistant packing and loading foreman, night foreman, butter maker, stockpens foreman, assistant loading foreman, and watchmen. We find that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. Ix. TIIE DETERMINATION OF REPRESENTATIVES The respondent employed in the appropriate unit 431 employees during the week ending July 17, 1937, and 449 during the week 300 NATIONAL LABOR RELATIONS BOARD ending October 30, 1937. In its petition for investigation and cer- tification, the United claimed to represent 325 employees of the re- spondent. At the hearing that organization produced records tending to show that it represented 186 employees. We find that the question concerning representation which has arisen can best be resolved by holding an election by secret ballot. Because the respondent has dominated and interfered with the forma- tion of Evansville Packers, we shall make no provision for the desig- nation of Evansville Packers on the ballot. Those employees in the appropriate unit who were employed by the respondent during the pay-roll period next preceding the date of the issuance of the Direc- tion, excluding those who have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire records in both cases, the Board makes the following: CONCLUSIONS of LAW 1. United Automobile. Workers of America, Local No., 265, United Packing House Workers Local Industrial Union No. 328, and Evansville Meat Packers Local 400 are labor organizations within the meaning of Section 2 (5), of the Act. 2. The respondent, by interfering With, restraining, and, coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged and is engaging in unfair labor practices within the meaning of Section 8 (1), of the Act. 3. The respondent, by dominating and interfering with the fornia- tion and administration of Evansville Meat Packers Local 400, has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (2), 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. 5. The respondent has not engaged in unfair labor practices within the meaning of Section (3), of the Act. 6. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and (7), of the Act. 7. All employees of the respondent in the following departments of its Evansville, Indiana, plant : Fresh pork, hides, "S. P. & D. S. cellars," cooperage, beef and sheep dressing, beef cutting, casings, lard and grease, tankage, sliced bacon, sausage and smoked meats, city market and pork packing, loading and beef coolers, car icing, box factory, laundry, yards, steam and power, mechanical; garage, chauffeurs, dairy, poultry and eggs, turkey farm, and ice cream de- DECISIONS AND ORDERS 301 livery, excluding persons in the superintendent's office, excluding those engaged in standards work, and excluding those holding the following positions: General manager, office manager, plant sales manager, beef, veal, and mutton manager, provision manager, dairy and poultry manager, city sales manager, credit manager, purchasing agent, plant superintendent, fresh-pork foreman, chief engineer and master mechanic, packing, loading, and auto foreman, sausage and smoked meat foreman, dairy and poultry foreman, beef and lamb killing foreman, casing and trimming foreman, fresh, cured, and smoked meat inspection foreman, curing foreman, beef cutting fore- man, lard and grease, tankage and hide foreman, mechanical foreman, sausage and smoked meats assistant foreman, head of industrial relations department, head of standards department, assistant pack- ing and loading foreman, night foreman, butter maker, stockpens foreman, assistant loading foreman, and watchmen constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) df the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Swift and Company, Evansville, Indiana, and its officers, agents, successors, and assigns shall: 1. Cease and desist : (a) From in any manner dominating or interfering with the ad- ministration of Evansville Meat Packers Local 400 or with the for- mation or administration of any other labor organization of its employees, and from contributing support thereto ; (b) From in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organiza- tion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, as guaranteed in Sectioif 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Evansville Meat Packers Local 400 as the representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, and completely disestablish Evansville Meat Packers Local 400 as such representative; 302 NATIONAL LABOR RELATIONS BOARD (b) Immediately post notices in conspicuous places throughout its Evansville, Indiana, plant and maintain such notices for a period of at least thirty (30) consecutive days, stating (1) that the respond- ent will cease and desist as aforesaid, and (2) that the respondent will withdraw all recognition from Evansville Meat Packers Local 400 as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of eniploymnent, and that such organization is completely disestablished as such representative; (c) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this order, what steps the respondent has taken to comply herewith. And it is further ordered that the allegations of the complaint that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3), of the Act, by discharging and refus- ing to reinstate Herman Ditterline, Joseph Monk, Basil Laughery, and Texel Laughery be, and they hereby are, dismissed. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Swift and Company, Evansville, Indiana, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eleventh Region, acting in this platter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations-Series 1, as amended, among all employees of Swift and Company in the following departments of its Evans- ville, Indiana, plant who were employed by the respondent during the pay-roll period next preceding the date of the issuance of this Direction: Fresh pork, hides, "S. P. & D. S. cellars," cooperage, beef and sheep dressing, beef cutting, casings, lard and grease, tankage, sliced bacon, sausage and smoked meats, city market and pork pack- ing, loading and beef coolers, car icing, box factory, laundry, yards, steam and power, mechanical, garage, chauffeurs, dairy, poultry and eggs, turkey farm, and ice cream delivery, excluding persons in the, superintendent's office, excluding those engaged in standards work, DECISIONS AND ORDERS 303 excluding those holding the following positions: General manager, office manager, plant sales manager, beef, veal, and mutton manager, provision manager, dairy and poultry manager, city sales manager, credit manager, purchasing agent, plant superintendent, fresh-pork foreman, chief engineer and master mechanic, packing, loading, and auto foreman, sausage and smoked meat foreman, dairy and poultry foreman, beef and lamb killing foreman, casing and trimming foreman, fresh, cured, and smoked meat inspection foreman, cur- ing foreman, beef cutting foreman, lard and grease, tankage and hide foreman, mechanical foreman, sausage and smoked meats assist- ant foreman, head of industrial relations department, head of stand- ards department, assistant packing and loading foreman, night fore- man, butter maker, stockpens foreman, assistant loading foreman, and watchmen, and excluding also those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Packing House Workers Lo- cal Industrial Union No. 328 for the purposes of collective bargaining. 0