Des Moines Foods, Inc.

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not seeking to represent professional employees, we shall exclude them from the unit. Of the other disputed employees, Giles works in department 36, while Brants, Campbell, Christensen, Dahlstrom, Glantz, Mogensen, Olsztyn, and Ricket work in department 42, the research and develop- ment laboratory. Giles has had 2 years of college biology and experience in clinical and hospital laboratories. Under the direction of Jankowski, her work consists mainly in testing product samples. The disputed employees in department 42 manufacture products which are difficult to handle, and modify and develop new formulas and procedures leading to the development of new products. The work of this department is mainly research, and the employees must keep abreast of scientific literature on products of interest to the company. It is necessary that they have knowledge of chemistry and biology, but none has a college degree, their education ranging from high school to 2 or 3 years of college. All of them have had several years' experience with the Employer. We find, under all the circum- stances, that these nine disputed employees are not professional. Ac- cordingly, we shall include them in the technical unit for which an election is directed below.4 We find that the following employees constitute an appropriate unit 5 for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All technical employees in departments 36, 42, and 43 of the Em- ployer's Detroit, Michigan, laboratories, excluding production and maintenance employees, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 4 Aurora Gasoline Company, 128 NLRB 37. 5 In view of our finding herein, the Employer's motion to dismiss the petition on the ground that the unit sought is inappropriate is hereby denied. Des Moines Foods, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 18-CA-1077. December 8, 1960 DECISION AND ORDER On June 30, 1960, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- 129 NLRB No. 106. DES MOINES FOODS, INC. 891 mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Fanning and Kimball]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner.2 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Des Moines Foods, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor organization of its employees, by discharging, laying off, trans- ferring to less desirable work, refusing to recall, or in any other man- ner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees about union activities in a manner constituting coercion within the meaning of the Act, threatening them with economic reprisals because of their union activities, or giving them the impression of employer surveillance of such activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights enumerated in and guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Ellen Hay immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make Ellen Hay and Edith Brower whole for any loss of pay they may have 1 We find that Floorladv Flinn had actual authority as a supervisor within the mean. ing of Section 2(11) of the Act, as she had authority responsibly to direct employees under her as well as authority effectively to recommend layoff or discharge of such em- ployees. Moreover , Flinn was also held out as a supervisor by the Respondent and was so regarded by the Respondent's employees and thus Flinn had apparent authority to represent the Respondent. 2In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's finding that the Respondent did not fall to recall or reinstate Brower on and after July 1, 1959, for "discriminatory reasons." 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered by reason of the discrimination against them , in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its plant at Des Moines, Iowa, copies of the notice at- tached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the Respondent's representative , be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. The Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that paragraph numbered 6 (c) of the com- plaint be, and it hereby is, dismissed , insofar as it alleges that the Respondent unlawfully refused to recall, reinstate, or reemploy Edith Brower on and after July 1, 1959. 8 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 " 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, as amended, we hereby notify you that: WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization of our employees , by discharging, laying off, transferring to less desirable work, refusing to recall, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees about union activities in a manner constituting coercion within the meaning of the Act, threaten them with economic reprisals because of their union DES MOINES FOODS, INC. 893 activities, or give them the impression of our surveillance of such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above- named Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Ellen Hay immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and will make Ellen Hay and Edith Brower whole for any loss of pay suffered by them as the result of the discrimination against them. All of our employees are free to become or remain, and to refrain from becoming or remaining, members of the above-named or any other labor organization. DES MOINES FooDs, INC., 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This case, with all parties represented, was heard before the duly designated Trial Examiner in Des Moines, Iowa, on January 25 and 26, 1960, on a complaint issued by the General Counsel of the Board on November 13, 1959, and an answer filed by the Respondent, Des Moines Foods, Inc., admitting jurisdiction but denying the commission of any unfair labor practices. The issues litigated were whether (1) Respondent coerced employees by various threats, warnings, and interrogation be- cause of their union activities before a Board election, in violation of Section 8(a) (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and (2) after the Union won the election, Respondent discriminated against certain union adherents by discharging, transferring, and laying them off, in violation of Section 8(a) (3) of the Act. General Counsel and Respondent waived oral argu- ment but have filed briefs with the Trial Examiner which have been carefully considered. Upon the entire record in the case,' and from my observation of the witnesses on the stand, I make the following: On March 4, 1960, the parties filed a stipulation for correction of the transcript in certain respects. Those corrections are hereby made, and the stipulation has been entered in the record as General Counsel's Exhibit No 4. The following additional corrections are hereby made in the transcript* Page 129, line 6-substitute "women and" for "M and M." Page 206, lines 6, 7- substitute "vital" for "usual" in each line ; line 14-substitute "almost" for "almot" line 12-substitute "than" for "that." 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Iowa corporation and operates a plant at Des Moines, Iowa, where it processes eggs and sells them both in component form and the whole state, at wholesale. In the 12 months preceding November 1, 1959, Respondent shipped products valued in excess of $2,000,000 from said plant directly to points outside the State of Iowa. I find that Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The union campaign Late in 1958 the Union began an organizing campaign at Respondent's plant, dur- ing which many employees, including Ellen Hay and Edith Brower, signed union authorization cards. Hay and Brower were active in the campaign, attending union meetings prior to the election, distributing union literature, and soliciting other em- ployees to join the Union. On February 6, 1959, the Union filed a petition with the Board in Case No. 18-RC-3870 for certification as bargaining agent of the em- ployees. The Union won a consent election held on March 5, 1959, and was certi- fied on March 12, 1959. B. Alleged coercion of employees The first union meeting for the workers was held shortly after January 1, 1959. Just before, employees in the plant discussed it openly. The day of the meeting, Ellen Hay asked Floorlady Jacqueline (Jacky) Flinn whether she thought many employees would attend it that night. Flinn replied that she did not know, but that it might be "pretty risky to go, you know he will have spotters out there, and he will know who goes." 2 Hay said it made no difference to her, that she would attend anyway. Flinn told her, "You better look out, or you will be without a job." In a later discussion Flinn asked Hay what she knew about the Union. Hay replied that she did not know much. Flinn then discussed her chances of remaining as floorlady if the Union came into the plant, and commented that she did not think it "will ever work here because Mr. Randolph will not work with it." In a general discussion with Hay and other employees the day before the election, Flinn said that if the Union got into the plant, it would close down, there would be no more work. On the day of the election, at recess time, Hay and another em- ployee asked Flinn if there was anything to the talk that the work would end if the Union got in. Flinn asked them why they wanted to know, and they replied that if there was not going to be any work that day they would call Elaine's husband to come with his car and drive them home. Flinn replied, "All I can tell you girls, there is not going to be any work if the union does get in, and if the union does not get in, there is a lot of eggs ready to come in." This was the day of a bad storm, and employees were worried about getting home. A day or so before the election, Flinn asked employee Eva G. Draper, while work- ing, what Draper thought of the "business of the Union." Draper said she did not know, and did not even know whether she would vote. Flinn said she must vote, that it would be a bad thing for the Union to "come in," and that it would "put an awful lot of girls out of work." When Draper asked "in what way," Flinn replied that Randolph would shut the plant down if the Union "went in." Draper said she would "hate that," as her husband was out of work and she would "think twice" about how she voted. On election day, about noon, Flinn asked employee Wally Hale whether she was voting. Hale asked if she had to, and Flinn replied, "Yes, we want you to; you want the job, don't you" Hale said she did. Flinn then said, "If you want a job then you know what you have to vote." Hale replied, "Damn right I know what to vote." 3 2 Hay got the impression from Flinn's remarks that "he" meant Howard Randolph, president of Respondent. 3 The findings above are based on uncontradieted testiniony of Hay, Draper, and Hale, Flinn did not testify. DES MOINES FOODS, INC. 895 Respondent claims Flinn's remarks are not binding on it, because she was not a supervisor within the meaning of the Act. Her duties, powers, and status in the plant must therefore be evaluated. In this period Donald D. Brown was plant manager,4 directly answerable to Howard Randolph, president of Respondent, or one Snowgren, vice president of Respondent, and was clearly a supervisor, for he normally had authority to hire, discharge, transfer, 'layoff, and demote employees, supervise their work in all respects, and adjust their grievances in the course of his general super- vision of production in the plant. Each day he periodically checked the work of the employees in the various operations in the plant, and was generally familiar with their progress. When the plant was working at capacity, Brown had supervision over 90 to 100 women working on 3 egg-breaking lines, plus an undetermined number of men and women working in the transfer room, kitchen, 1 employee in the laboratory, and several truckdrivers. As floorlady, Flinn was paid $1.15 an hour, 5 cents more than other employees. She took orders from Brown about the number of employees to work on each egg-breaking line, when to start up or shut down a line, and how many to transfer between lines or to other work. She executed the orders by requisite movement or transfer of employees. She spent little time in actual work on the lines, devoting most of her day to observing the employees' progress, and answer- ing their questions about grading or rejection of doubtful eggs and other production problems. She reported to Brown on employees who failed to maintain their quotas in breaking eggs. When new girls were breaking in on the lines, Flinn gave them an orientation talk and taught them by actually breaking eggs alongside them until they mastered the technique. She gave individual employees permission to leave the lines or take time off for various purposes, and directed whole lines when to take recesses and when to return. While she had no authority to hire, discharge, demote, or transfer employees, Brown usually discussed an employee's performance and pros- pects of improvement with Flinn before he decided whether to lay off or discharge her. On recall of workers, he usually relied on his own knowledge of their records, but occasionally procured Flinn's views about a former employee before recalling her to work .5 While these facts indicate that in many aspects Fhnn's position was that of a lead lady, "straw boss," or employee who by reason of long experience was used to train employees and pass on to them orders from top management, I am also satisfied that she had apparent authority responsibly to direct women employees in their work, particularly in regard to momentary or longer absences from work, and that exercise of such authority required the use of independent judgment. Brown's testimony indicates that management sought her advice before making a layoff or discharge, and as he does not deny that he relied or acted thereon, it is inferrable that he acted on her recommendations in such cases, particularly since she observed their work constantly. This inference is also supported by credible testimony of Draper that, after new employees had worked from 3 to 6 weeks, Brown talked to them in a group to find out how they were progressing and answer questions about the work, and in the course of the discussion he usually told them to pay attention to Flinn, their instructor, because "she could have you fired." In addition, the necessary of a female supervisor to handle the problems of the women who predominated in the plant is inferrable from Randolph's testimony that, while the plant had no floorlady as such during the first 2 or 3 years of its operation, when the plant manager handled all personnel problems, the manager's wife at times acted as floorlady to "look after the women's problems," such as absences. Finally, the great disproportion between supervisor and employees (over 100 to 1) which would exist if Brown were the only supervisor of employees, in addition to his many other duties as production manager, militates against a finding that Flinn was with- out any supervisory status.6 I conclude and find from all the credible evidence on this subject that Flinn had authority responsibly to direct employees in their work and effectively to recommend layoff or discharge, and was therefore a supervisor within the meaning of Section 2(11) of the Act. Even if Flinn's exact duties did not involve one or more of the technical attributes of a supervisor, the record also indicates that the employees regarded her-as their immediate superior, for Brown admits she gave the orders to the women, and they obeyed her, hence on all the facts I think that they were reasonably justified in concluding that she was acting and speaking for management. In this respect, I conclude that she was so ident,iied Pram July 1957 until September 19, 1959, when he left Respondent's employ These findings are based on credible testimony of Draper, Brower, and Hay, as corrobo- rated in large part by that df Randolph and Brown a lWonderhnit Corporation, 123 NLRB 53, Mlhd-South Nana fact uring Conn'pang, htic, 120 NLRB 230, 231, 243. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with management in their minds as that Respondent became responsible for her conduct. See Armstrong Tire and Rubber Company, Tire Test Fleet Branch, Ill NLRB 708, 717, enfd. 228 F. 2d 159 (C.A. 5). I therefore conclude that Respondent violated Section 8 (a)(1) of the Act by (1) Flinn's comment to Hay that management would have "spotters" at a union meet- ing and would know who attended , which clearly carried the coercive implication that Respondent would engage in surveillance of union activities , (2) Flinn's inter- rogation of Hay and Draper as to their sentiments about and knowledge of the Union, (3) Flinn's implied threat to Hay that she would be without a job if she at- tended a union meeting, and (4) her threats to Hay and Draper that the plant would shut down and employees would be out of work if the Union came into it.7 C. The discharge of Ellen Hay Ellen Hay began to work for Howard Randolph in 1954 at Randolph Food Com- pany, another concern owned by him, in Guthrie Center, Iowa. She was transferred by him in April 1955 to Respondent's plant where she worked until her discharge on March 19, 1959. Hay and Randolph were lifelong residents of Guthrie Center, had known each other both socially and in business relations for over 20 years, and Randolph had from time to time employed other members of her family. Hay was one of the first employees to sign a union authorization card and was openly active in the union organization campaign, as noted above. 1 have found above that (1) on the day of the first union meeting, Hay made it clear to Flinn that she would attend it, notwithstanding Flinn's advice not to do so because Respond- ent would have the meeting under surveillance , and (2 ) Flinn illegally interro- gated Hay and Draper about their union sentiments and tried to dissuade them from prounion activities and voting for the Union by threats of economic re- prisal. Brown admitted that after the first union meeting, he discussed the cam- paign with Randolph and kept him advised of its progress. As will be noted here- after, Brown had an argument with employee Edith Brower about the Union before the election , during which he interrogated her about her union views and argued against union organization of the plant , and Flinn told Brower right after the election that she had known all the time that Brower was prounion . It is clear from these circumstances that management kept close track of the progress of the union campaign and made efforts to discover employee sentiments about it; and since Brown admitted having constant discussions with Flinn about the attitudes and performance of women employees , I must infer that he was advised of Flinn's first talk with Hay, and that he and Randolph were well aware of the latter's union activities from January onward. On March 12, 1959, Hay was working on an egg-breaking line with about 30 other employees 8 In the forenoon , the breakers began to fill a large vat with whites. In the process they encountered many bloody eggs, which had to be rejected. This slowed down the late at which the vat was being filled and in addition , the breakers had to interrupt their work more than usual to take trays to the kitchen to be cleaned, which further slowed production As a consequence Brown discovered before noon that the tank was not as full as it should be, and told Flinn about it About 1 p.m., he discovered that it was a little over half full, and told Flinn the tank had to be filled for transportation that evening , and that the girls would have to stay at work until they filled it, and said Flinn should tell them so. About 3 p.m., Flinn told the breakers Brown said they were not working but "laying down on the job," and would have to "speed up ." She also said that the tank had to be filled before they went home that night, and at the rate they were going it was only half full and it would take until 6 p in. or later to fill it , and no one could go home until it was filled. The breakers continued their work and filled the tank by 4 p.m. at which time Brown inspected the tank, shut down the lines, and sent 7 In reaching these conclusions , I have carefully considered testimony of Randolph that when the union talk started , he ordered Brown not to talk to any employees about the Union, and that in speeches to employees before the election , he made noncoercive remarks which in effect told the employees they could vote as they pleased. However this testi- mony does not overcome the substantial testimony noted above indicating that Respondent displayed an inordinate interest in the employees' activities and sentiments anent the Union , and tried by illegal means to turn them against it. 8 An egg breaker cracks open eggs with a knife , and separates the white from the yoke, putting each In separate pails. The pails of whites are usually dumped into a large vat or tank. DES MOINES FOODS, INC. 897 the girls home. As their normal quitting time was 4:30 p.m., the breakers thus lost a half hour's pay. As a consequence, many of them were excited and angry about the speedup order and, while getting their coats in the lunchroom, criticized vigorously, saying "unrepeatable things." Hay was also angry and in the discussion she said out loud, "Boy, it sure takes guts to get up and tell a bare-faced lie like that, and if I could not handle women better than that, I would throw in the towel." Several other employees nearby expressed the same sentiments. One of them, Gertrude York, who had been the company observer at the election, said, "What if it is a lie, it is not any worse than the lies the union is telling." Hay replied that no one had mentioned the Union, but "since you brought up the Union yourself, I have got my first lie to catch the union in." Neither Flinn nor Brown were present during this discussion. The next day Brown sent for Hay, told her he had heard she had said something, but never thought she would say it, and asked her what she had to say for herself. Hay repeated to him what she had said in the lunchroom. Brown said that when the "party" told him about it, he decided to "call you for it," and that he was going to give her two choices, to take the floorlady's job if she thought it was such a "soft" one, or apologize to Flinn. Hay said she did not want that job, and would apologize to Flinn. Later in the day, Hay approached Flinn, told her what she had said in the lunchroom the day before, and apologized for it. Flinn replied that she did not know what Hay had said, and that she hoped Hay did not feel "hard to- ward" her, as she had nothing to do with it. Brown reported the incident to Randolph at Guthrie Center on or about March 16, when Randolph returned from a trip. In the report, he told Randolph that Hay had called Flinn a "Damn dirty black liar." Randolph said he would handle it when he got to the plant. When he visited the plant on March 19, he called Hay to the office, asked her if she had made the remark "damn dirty liar" or "dirty black liar" about Flinn, and "the other remark." She admitted the remarks, found above, and said other employees complained at the same time about losing a half hour of work that week. He abruptly told her that she was "done for all time," and told the timekeeper to get her timecard. She asked why, and he told her, "We, are not going to tolerate that kind of language" or "abuse of our employees," that no one could talk about the floorlady like that and stay on the job. Hay told him that she said no more than other employees had said. Randolph replied that "if I knew who they were, they would get the same treatment you are getting." Hay then gave him the names of two other employees who had been in the discus- sion and had been called in by Brown the same day as he talked to I-Iay. Randolph took up pencil and paper as though to write down the names, but did not do so when she mentioned them. Hay told him she would not check out until she had something to show what she was being fired for Randolph then had the book- keeper make out a termination slip showing a discharge for misconduct. Randolph gave this to her with her final paycheck, the bookkeeper checked out her timecard, and she left the plant. On leaving the office, Hay passed Flinn and told her she thought she had gotten a "dirty deal." Flinn replied that she "hated" it and hoped Hay would not blame her, that "that is the way Randolph operates " 9 Considered by itself, Respondent's discharge of Hay after receipt of a report that she had openly disparaged the managerial ability of her floorlady and accused her of telling the employees a "barefaced lie" about the progress of their work, appears to be a normal exercise of management prerogative in disciplining employees. It is well settled that an employer may discharge an employee for good reason, bad reason, or none at all, provided the discharge was not motivated by a reason proscribed by the Act, and under that principle Randolph had a clear nght to believe and rely upon his supervisors' reports of the lunchroom incident, and to act promptly in disciplining Hay, especially where she admitted making the remarks. However, in the light of Respondent's antiunion animus and illegal conduct found above, all the circumstances of Hay's remarks and Respondent's reaction to them must be examined closely to determine whether her conduct was the real motive, or merely the pretext, for her discharge. There are several factors which support the latter proposition First, Hay was only one of many employees who spoke up in an outburst of angry remarks when they realized they had been deprived of a half hour of pay because of a speedup order from management. Their anger at this loss (whether justified or not) is under- standable, and it is also understandable that they vented their anger on Flinn, the 9 These findings are based on credited testimony of Hay, Randolph, Brown, and Richard Rasch. Conflicting testimony of Randolph and Rasch is not credited for reasons which will be discussed hereafter. 586439-61-vol. 129-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management official who had voiced the criticism of their work (which they con- sidered unjustified), ordered the speedup, and caused the loss. Thus, Hay's remarks about her, while rather intemperate and not to be, condoned, were part of a spontane- ous and concerted outburst of indignation by employees who felt they had been unjustly deprived of worktime by management action, because the fault lay in the product, not their work. As the record shows that they had encountered a lot of bad eggs that day, which slowed up their production, their angry disagreement with management's accusation of a slowdown had substantial justification. Hence, they were voicing a grievance about their loss of worktime, which is a legitimate exercise of free speech, and a protected concerted activity. Second, the employees' outburst, including Hay's remarks, was not a serious matter, nor considered such by manage- ment at the time. It had no effect whatever on production or on Flinn, for the whole occurrence took place on the employees' own time, in the lunchroom, with no mem- ber of management present. Hence, Brown could only have learned about it from reports of employees,10 and Randolph got it third-hand by reports from Flinn and Brown. Randolph admits that, when he got the report on March 16, he did not con- sider the tank incident a "particularly outstanding one," largely because the super- visors reported there was "too much playing on the line," hence a speedup order was necessary in order to make sure the tank was filled before quitting time in order to meet the shipping schedule. Hence he apparently did not consider it serious enough to warrant immediate action against Hay, for he did not come to the plant to interview her until 4 days after he heard about it. Thirdly, he admits he made no investigation of the incident or the reasons for her actions, beyond the reports from Flinn and Brown, which were apparently rather limited, for he learned nothing from Brown or otherwise of the other "unrepeatable" remarks made by other employees, and did not hear about Hay's apology to Flinn at the insistence of Brown, until it was brought out later in the State unemployment compensation hearing. Although he had known Hay many years, both as an employee and otherwise, he made no attempt to investi- gate the reasons for her remarks to see if there might be extenuating circumstances, even after she told him other employees had complained about loss of worktime. Fourth, although Randolph professed a desire to discharge any others who made simi- lar remarks about Flinn, and asked for their names, he apparently made no investiga- tion of their conduct, nor took any action against them, after Hay had named them, which gives rise to an inference that he was not really interested in dispensing even- handed justice against all employees who had maligned Flinn, but only in taking action against Hay. Fifth, Respondent has made palpable attempts to magnify Hay's remarks out of all proportion to the actual fact. While Randolph testified at first that he got the report that Hay had called Flinn a "damn dirty black liar," and that she admitted to him, on cross-examination he is not sure whether she admitted the words were "damn black liar" or "dirty black liar." His bookkeeper, Rasch, who was within earshot of the discharge interview, does not support his story: he could only vaguely recall that the words "dirty black liar" were mentioned, but is not sure whether Randolph or Hay used them; he is not sure whether "damn" or "barefaced" was used in the discussion. In addition, Respondent produces no employees, such as Gertrude York, who heard Hay's remarks, to testify as to her exact words. More- over, Randolph contradicted himself about the nature and scope of Hay's admissions on the point before the State agency, admitting that the words "damn dirty liar," or any combination of those words, were used only in his questioning of her at that hearing; he refrains from saying she admitted using such terms, but admits she may have testified to the remarks she gave in her testimony herein and as I have found above. Again, while Randolph characterized Hay's reported remarks as "abuse" of a floorlady whom he held in high regard, Flinn herself did not feel so affronted, for when Hay apologized to her, she made light of the whole incident and disclaimed any part in the demand for an apology; nor did she demand any further retribution in making her report to Randolph, so far as his testimony discloses. I am satisfied that Hay's part in the whole incident fell far short of the rank insubordination or disrup- tive abuse of management which Respondent now claims. Finally, it is significant that, when discharged, Hay had already atoned for her unkind remarks by apologizing to Flinn at the demand of Brown. This was a form of discipline which satisfied Flinn and apparently Brown at the time. I cannot credit Randolph's testimony that he knew nothing of this apology until the State commission hearing, for it is incredible that Brown and Flinn, particularly the latter, would not have mentioned it in their report to Randolph, and in the asbence of any testimony from either of them on that subject, I must infer that Randolph learned of it when he talked to both of them. 10 Brown told Hay he heard it from a "party," whom he did not identify, but he did not say it was Flinn, hence it must have been another employee present DES MOINES FOODS, INC. 899 Even if Brown did not report the apology, it is a reasonable assumption that Randolph would have discovered it if he had made any impartial investigation of the tank incident and its aftermath. Yet he was apparently not interested in investigating the reasons for her unusual behavior, and the apology apparently carried no weight in his decision to terminate her. The abrupt discharge of a known union adherent, who had already undergone lesser discipline for her misconduct as required by manage- ment, affords cogent support for the inference that she was terminated, not for that misconduct, but for an ulterior motive which, in light of Respondent's expressed anti- union animus and prior coercive actions toward her and other employees, could only have been Hay's union adherence and activities. Considering all of the above facts and circumstances in the light of the record considered as a whole, I am constrained to conclude and find that Respondent dis- charged Ellen Hay on March 19, 1959, not for misconduct which she admitted and for which she had already atoned, but for her union activities. Such discharge tended to discourage membership in the Union, and amounted to illegal discrimination in violation of Section 8(a) (3) of the Act. D. The transfer and layoff of Edith Brower Edith Brower was hired by Respondent when its plant opened in 1955, and broke eggs and did other jobs until she was transferred to the plant laboratory about Sep- tember 1958. In the laboratory, which was in a room near the office and separate from the production lines, she conducted daily bacterial and other tests, salt analyses, and other laboratory work, to determine the ingredients, condition, and quality of egg yokes, made mathematical calculations, and wrote up reports of her findings which she sent to the office. When not working in the laboratory, she usually spent the remainder of her day in breaking eggs on the lines or in other work as needed. She was regarded by management as a competent employee in all the tasks she had performed. Brower signed a union authorization card early in April 1959, and attended all the union meetings. About a week before the election, Brower had a talk with Brown about the Union, in which he asked her how she felt about it, and she gave him reasons why she favored a union in the plant. He expressed contrary opinions. On election day, Brower acted as observer for the Union at the election. That evening, while she and Flinn were cleaning egg buckets, Flinn asked Brower what she meant by "going behind our backs." Brower said she did not know that she had, and Flinn said she knew all the time that Brower was "for the. Union." Brower replied she thought she had a right to vote the way she wanted, that no one was going to tell her how to vote. I find that Brown's interrogation of Brower regarding her union senti- ments was a violation of Section 8(a)(1) of the Act, and that Respondent already knew she was a union adherent. In or about the week of March 23, 1959, Brower was shifted from the laboratory to the transfer room.ii General Counsel claims this was a discriminatory demotion to a more difficult and less desirable occupation in retaliation for Brower's known adherence and activity. Employees in the transfer room must lift flats of 3 dozen eggs from large 36-dozen crates and place them onto a conveyor belt which carries the flats through a partition to the breaking lines. In support of General Counsel's contention, Brower testified that- Being a short woman of slender built, Brower had to stand on blocks 8 inches high to transfer the eggs. She also had to lift nearly every full egg crate, weighing about 54 pounds, from a pile of three to six cases behind her, shift it to a bench before her, and lift out the flats of eggs. In contrast to the laboratory which was small and usually warm, she worked in a constant draft of cool air coming from the doors of the coolerroom, whence the crated eggs are brought to workers on -the conveyor lines. Brown admitted the transfer room was drafty at times, and that transfer work was hard on the fingers, so that some workers had to tape their fingers to cover or prevent scratches from the rough sides of the crates. Brower performed this work for several weeks, until the Union complained to management that she should be doing an easier job, whereupon she was trans- ferred by Brown to breaking eggs, at which she worked until late in April. While Brower's testimony indicates that her work in the transfer room was dis- agreeable and difficult for her, as compared to laboratory work, I am convinced that she magnified the undesirability of some aspects of transfer work in order to "I fix the date from Brower's admission on cross-examination that she worked both in the laboratory and breaking eggs in the week ending March 13, after the election, that she was ill about 3'/2 days in the week ending March 21, and was put in the transfer room "shortly" after that illness 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convey the idea of a demotion. Although she says that she had to lift heavy egg crates most of the time, she admits that a man or boy was supposed to be available to do the lifting for the women, but claims he was not there most of the time. I do not credit this testimony because a preponderance of credible testimony shows that there were always one or more men available to move cases onto the benches for the women, when requested, that the women occasionally handled the crates only to the extent of sliding the top one from the pile behind them to the work bench, and that they usually called upon the men to lift only the bottom case of the pile.iz The women handled only empty crates by pushing them off the end of the bench. In addition, it appears that Brower was used to doing this work, for credible testimony of Melroy, Brown, and Brower indicates that before the election Brower had often worked in the transfer room, when not engaged in the laboratory or at other work, and that at times she voluntarily asked Brown for work in the transfer room rather than on the breaker lines, which was a far more confining type of work. In this respect, the record also shows that there was always a surplus of women employees who preferred and asked for transfer room work rather than egg breaking, because it allowed them more freedom of movement, with more frequent rest periods.13 As regards freedom, it appears that laboratory work was also more confining, as well as more demanding upon the worker, than transfer room work, for the laboratory technician had to work alone in a small room, performing tests which required close observations and careful measurements and mathematical calculations and writing accurate reports. The record further shows that, before the election, Brower was not averse to work in the transfer room, and at the time of the questioned transfer, she did not personally protest to management , but spoke to the Union in the next 2 weeks which prompted that organization to procure her transfer to egg-breaking. Apparently, neither she nor the Union demanded that she be returned to the lab- oratory. All of these facts militate against a finding that the variance between laboratory and transfer room work was so great as to compel an inference that Brower's transfer was per se a demotion made for discriminatory purposes. How- ever, Respondent admits that there is a difference 'between handling egg crates in the transfer room and laboratory work, and I am satisfied from all the pertinent evidence that in some respects transfer room work was perhaps less desirable for Brower than laboratory work, and that it was -a more important and responsible job, both because of the meticulous work involved and requirement of mathematical ability. Hence, all the above facts show that laboratory work was sufficiently different from and more desirable than transfer work to warrant an inference that Brower's transfer was discriminatory, and to require Respondent to rebut that inference. In justification of the transfer, Brown testified that when he moved Brower, he told her he needed more help in the transfer room, and he wanted her to work there because of her experience He also testified that at the time there was a shortage of laboratory work, which often fluctuated depending upon the products being processed. At first glance, this indicates a normal exercise of Respondent's transfer policy, under which Brower had often been shifted to other jobs in the past in accordance with business requirements However, this explanation is suspect for several reasons. Brown admits that when Brower was transferred, he tried out Jean Marsha, an employee of only 4 to 6 months' service, as a trainee in the laboratory for 3 weeks and then removed her at her own request. Next, he tried Gertrude York, but she stayed in the laboratory only a week because she did not like it. Then only did he transfer Brower back to the laboratory. He says Marsha and York were tried out because Respondent intended to train an employee to take the place of the regular laboratory technician in case of illness or other absence, and that a trained substitute was needed besides himself and Henry Randolph who, though trained in laboratory work, were busy at other work. These facts indicate that there was still work for a laboratory technician during the 4 weeks following Brower's transfer. Respondent offers no convincing explanation why it did not bring Brower back to the laboratory when Marsha did not prove competent, and did so only after York was tried out. Second, if Respondent intended to bring in a better- trained laboratory technician shortly, as appears from Randolph's testimony, it offers no explanation why Brower, already trained and apparently satisfactory, was not kept in the laboratory to help train the new girls, or why she herself could not 12 On this point I credit the mutually corroborative testimony of Randolph , Brown, Katherine âIeiroy, Edith Chance, and Dorothy Short 13 Egg-breaking required a woman to stand in one position most of the day, to use her hands in breaking , and to lift 'full pails of yokes head high to hang them on hooks on a conveyor. DES MOINES FOODS, INC. 901 stay there until the new man came, and then act as his assistant or substitute, and thus avoid the necessity of training new personnel. The lack of convincing expla- nations on these points strengthens the inference that Brower was moved, not for economic or business reasons, but for ulterior motives This inference is likewise supported by two other circumstances: (1) after trying out two new girls in the laboratory, Brown finally moved Brower back to that work and used her to help train the new technician, Knapp, when he arrived on May 4, which appears to have been a natural use of her training and clear acknowledgement of her ability in that work, and (2) there is no credible proof that Respondent has since trained or used anyone as a substitute for Knapp. The latter circumstance alone indicates that the necessity of training a substitute technician (other than Brower) was pan afterthought defense adduced at the hearing in a palpable attempt to justify Brower's transfer. General Counsel also argues in effect that the hiring of Knapp was a secret ma- neuver of Respondent decided upon later to implement its earlier decision dis- cruninatorily to remove Brower from the laboratory. Randolph testified credibly that he interviewed Knapp in Chicago in the winter of 1958 or early 1959, which was clearly after the union campaign had started. Randolph hired him in or about February 1959, on the understanding that he would come to work after he finished school. This decision was made before the election, but I infer from Respondent's other antiunion activities and interrogation of Hay and other employees that Ran- dolph was aware at the time of Brower's union activities. Randolph hired Knapp to perform the laboratory work at the plant, and also at a laboratory of another business of Randolph's at Guthrie Center, Iowa; his work at Respondent's plant included a complicated test of eggs for fat content required by one of Respondent's customers, which Brower had never performed. Knapp was paid $1.44 an hour from the start, in contrast with Brower's rate of $1.10 an hour, which was the top rate paid to production workers. The hiring of Knapp during the union campaign and when Respondent knew of Brower's union activities, and Brown's admission that he learned of his hiring only a few weeks before he arrived, are suspicious circum- stances, but I think they lose any significance in the light of the facts that Knapp's work is broader in scope and more complicated than that which Brower performed, he is paid at a substantially higher rate, and he has definite higher educational training for the work, which Brower apparently lacked.i4 While I do not find that Brower's transfer to the transfer room was a demotion in itself indicative of discrimination, I am convinced and find from the circum- stances of the transfer noted above, and the unconvincing nature of Respondent's reasons for the move, considered in the light of Respondent's discriminatory treat- ment of another prominent union adherent and other coercive conduct toward its employees, that Respondent transferred Brower in the week of March 23, •1959, to less desirable work in the plant in retaliation for her union activities, and not be- cause of its earlier and independent decision to hire Knapp, and that its reliance upon that event is a convenient pretext to cloak the discriminatory motive for Brower's transfer. I conclude that her transfer under these circumstances was cal- culated to discourage membership in the Union, and thereby violated Section 8(a)(3) of the Act. Brower was absent for illness May 25 through May 27. While absent she sent word of her illness to the plant office through Hazel Melford, an employee with whom she rode to work. Melford apparently told Floorlady Flinn, who forgot to transmit the report to Brown. When Brower reported for work on May 28 her timecard was missing from the rack, and when she went to the office for it, Brown told her that since she had failed to report that she was ill she would have to be laid off for 8 days under a new company rule. This was the first time Brower ever heard of the rule. Such a penalty had never been applied to her before. Brower told Brown that she had sent word in through Melford, and Brown told her that the message did not get to him, so he pulled her timecard The 8-day layoff ex- pired on Monday, June 8, 1959. Brower worked 3 days in that week, and then had a virus attack which incapicitated her until June 22, about which date she asked another employee, Patricia Wilde, to ask Brown if she could return. Wilde reported back to her that Brown had said he had no room for Brower at the time, as he had hired someone in her place, and his lines were full and he could not use more em- ployees. Brown testified that he told Wilde that Respondent was cutting down its lines and therefore had no place for her at that time. Brower never thereafter 14 Brower was trained in laboratory work on the job by Brown and Randolph There is no proof that she had any special outside schooling for this work On the other hand, Knapp was a graduate of some school in Michigan, and had taken some courses in chemistry. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applied for work at the plant, either by telephone, in person, or in any other manner, and she has never been recalled to work by Respondent. General Counsel claims that the layoff on May 28 was discriminatory, emphasiz- ing the fact that a new penalty rule was applied to her for an apparent failure to give notice of her sickness, which was not her fault. I think there is merit in this claim. Neither Brown nor Randolph denied her testimony about the penalty layoff rule. Brown admits that he accepted Brower's explanation that she had sent a message by Melford during her illness, and that he was later told by Melford that she had given the report to Flinn. Nevertheless, Brown sent Brower home. His explanation is, that on the 28th she told him she was going to move to Adel, and that he re- plied that if she were going to move "let's postpone it until a week from the follow- ing Monday," meaning her return to work, and that he laid her off, not as a disci- plinary measure, but because she would not be in for work anyway, and he did it "so she could move if she wanted to." This is a weak explanation which I do not credit. Brower did not request time off to move, and there is nothing in the record to show that she needed 10 days (May 29 through June 7, which included 6 work- days and 2 weekends) to make the move. In addition, I find from admissions of Brown and Randolph and Brower's payroll record that: For some years the Com- pany enforced a policy of automatic reduction of an employee's pay by 5 cents an hour for I week if she was absent without notifying Respondent. The penalty was automatically assessed against the employee by the bookkeeper in such cases. How- ever, it was not applied if the employee gave Brown a good excuse for not having notified Respondent of her illness. This penalty was apparently applied to Brower during the week ending January 10, 1959, when she worked only 131/4 hours, again in the case of her 4-day illness in the week ending March 21, 1959, when she worked 151/4 hours, and finally in the week ending June 13 when she worked 231/4 hours. As the latter week was her first pay period since her illness of May 25 to 27, it is clear that Respondent imposed a double penalty upon Brower for that illness, al- though Respondent accepted her explanation that she tried to give notice as required, and Brown apparently concluded that his failure to receive it in the office was Flinn's fault. The assessment of the pay-reduction penalty against her clearly was contrary to its policy of waiver for good cause shown, which obviously existed here. In the light of Respondent's antiunion animus and prior unfair labor practices found above, its failure to waive the pay-reduction penalty for good cause and its contemporaneous imposition of a new and more drastic layoff penalty, in the case of a known union adherent, is cogent proof supporting a finding that these penalties were a form of retaliation for her union adherence and activities. Considering the harshness of the double penalty and the weakness of Respondent's explanation for the 8-day layoff, in the light of its other unfair labor practices, I am constrained to conclude and find on all the pertinent evidence that Respondent laid off Brower from May 28 up to June 8 for discriminatory reasons and thereby further violated Section 8(a) (3) of the Act. General Counsel claims that the failure to take back Brower when she applied through Wilde in the week ending June 22 was likewise discriminatory, relying upon the fact that Respondent apparently had work for women during July when it hired one new girl on July 18 and rehired two former employees on July 4 and 11 re- spectively. In light of its past discrimination against Brower and Hay, these facts raise a strong suspicion that the failure to recall her in July or later was likewise discriminatory. The record shows that Respondent's egg business is seasonal, that it starts tapering off in June and the plant usually closes down entirely during August. Plant records show that: No women employees were hired in the week ending June 27, during which Brower applied to return, and only one female employee was hired or re- hired in each of the following weeks through July 18. There was no hiring during the remainder of that month. Only one woman employee was hired in August. Credible testimony of Draper indicates that the plant reopened with two lines work- ing in October, and that at least four former employees applied for work and were rehired at that time. The plant records also show that Respondent hired 11 female employees (including a few rehires) during the week ending June 13, when Brower was working in the laboratory, and 11 female employees during the week ending June 20 when she was out ill. These facts support Respondent's claim that it had no work for her when she inquired about work in the week endine June 27, during which week no other employees were hired. While Brower was ill, of course, Re- spondent had a perfect right to hire someone in her place and was not required to keep a place open for her. These facts effectively rebut any suspicion, or even in- ference, that Brower was denied reinstatement in or about that week for discrim- inatory reasons. DES MOINES FOODS, INC. 903 However, Brower's application for work at that time notified Respondent that she was available for and desired work, and since she was admittedly capable in all lines of work at the plant, Respondent's failure to recall her for any of the three places it filled during July, or the one opening in August, or when the plant reopened with two production lines yin October, in light of its past discrimination against her and other illegal conduct, supports an inference of discrimination which Respondent is re- quired to rebut. Respondent's answer is that she was never told she could not return, that Respondent would take her back now if she applied for work, and ,that she is presently, in the words of Randolph, "in the same status as the other girls who leave and have not returned for work." In one respect, the claim hasa false premise; since Respondent in effect laid her off legitimately in June for lack of work, it cannot be said that she "left" voluntarily. Hence, the question is, did she as a laid-off em- ployee have a right to automatic recall which puts the onus on Respondent to recall her or explain why it did not? At her layoff, Respondent did not promise to recall her later when jobs were available, nor did it refuse to recall her; nothing was said on that subject; there was merely an economic layoff with no talk about the future. There is no clear proof that Respondent had a practice or policy of recalling laid-off employees on its own initiative when business improved, which would justify them in expecting recall without reapplication. To the contrary, the fact that Brower did not personally report for work on or about June 22 after an illness, but made application for work through Wilde, and that Draper and several other former employees applied for work in October before they were recalled, is substantial indication that em- ployees separated in an economic layoff were considered as terminated employees who were expected to apply for work before they were rehired, which supports Re- spondent's thesis that Brower was not entitled to automatic recall, but would be taken back only upon reapplication for work. Thus, the fact that Brower never reapplied for work after her legitimate layoff in June is the factor which effectively rebuts the claim that Respondent's failure to recall her later was discriminatory. 15 This leaves only a strong suspicion, based on Respondent's prior treatment of her and other illegal conduct, that the failure to recall her was discriminatory; but Re- spondent is not required to explain away suspicions. I must therefore conclude from all the pertinent evidence on this point that General Counsel has failed to sustain the requisite ultimate burden of proving -by a preponderance of credible evidence that Respondent failed to recall or reinstate Brower on and after July 1, 1959, for discriminatory reasons. I therefore grant Respondent's motion to dismiss so much of paragraph numbered 6(c) of the complaint as contains that allegation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent set forth 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 thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As Respondent has discriminatorily discharged and refused to recall or reinstate Ellen Hay, I shall recommend that Respondent offer 'her immediate and full rein- statement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges. I shall also recommend that Respond- ent make Ellen Hay and Edith Brower whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of a sum of money equal to .that which she would have earned gas wages from the date of such discrimination to the date of a proper offer of reinstatement, less her net earnings during such period,16 the backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that Respondent pre- serve, and, on request, make available to the Board or its agents all pertinent records 15 N.L R B. v. Popeil Brothers, Inc, 216 F 2d 66, 70 (C A. 7), enfg as modified on this point 101 NLRB 1083. Cf. The Berkline Corpoi ation, 123 NLRB 685, where a failure to recall union adherents was found not illegally motivated, even though there was evidence of a custom of automatic recall when business improved 1e For Brower, the period covers May 28 to June 8, 1959, the extent of her discrimina- tory penalty layoff found above. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to compute the manner of reinstatement and amount of backpay due under these recommendations. In view of the serious nature and variety of unfair labor practices committed, I shall also recommend that a broad cease-and-desist order issue, requiring Respond- ent to cease and desist from infringing in any manner upon employees' rights guaran- teed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, 1 ,make the following. CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging, laying off, transferring to less desirable work, and refusing to recall employees, because of their union activities, to the extent found above, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By the above conduct and by interrogation of employees, threats of discharge and other economic reprisal, and giving the impression of surveillance of union meetings, thereby interfering with, restraining, and coercing employees in the exer- cise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not violated the Act by its refusal to recall, reinstate, or re- employ Edith Brower on and after July 1, 1959. [Recommendations omitted from publication.] Quality Markets, Inc., Petitioner and Retail Clerks International Association, AFL-CIO, Petitioners. Cases Nos. 3-RM1I-209 and 3-RC-2372. December 8, 1960 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Hymen Dishner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Fanning and Kimball]. Upon the entire record in this case, the Board finds:' 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Employer stated in its petition that the following unions had asserted claims for recognition : New-Penn Employees Union, Independent (New-Penn) ; Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (Meat Cutters) ; and Retail Clerks International Association, AFL-CIO (Clerks), which is also the Petitioner in Case No. 3-RC-2372. Truck Drivers and Helpers Union, Local No. 649, Jamestown, Olean & Vicinity, affiliated with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. 1 The Clerks' request for oral argument is hereby denied as the record and brief ade- quately present the issues and contentions of the parties. 129 NLRB No. 111.