Swift and Co.

In the Matter of SWIFT AND, COMPANY, A CORPORATION and LOCAL No. 530, UNITED PACKING HOUSE WORKERS INDUSTRIAL UNION, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-613.-Decided March 1, 1939 Meat Packing Industry-Interference, Restradnt, and Coercion-Company- Dominated Union: domination of and interference with formation and ad- ministration; support; canvass of employees for, during working hours, with assistance of supervisors ; use of employer facilities at nominal charge ; meetings on company property ; desk space in employment office; production of bulletins and notices for ; denial of similar facilities to union ; discrimination in favor of, in recognition as representative of employees ; employer ordered to refrain from recognizing as agency for collective bargaining , in view of voluntary dis- solution subsequent to issuance of Intermediate Report-Discrimination: dis- charges, lay-offs, reductions in basic rate of pay ; charges of, not sustained ; charges of, dismissed without prejudice as to three persons. Mr. Joseph A. Hoskins, for the Board. Mr. William N. Strack and Mr. J. Wesley T. Blades, of Chicago, Ill., for the respondent. Mr. Arthur R. Felsen, of East St. Louis, Ill., for the E. P. A. Mr. Ivar Peterson, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been duly filed by Local No. 530, United Packing House Workers Industrial Union, herein called the Union, affiliated with the Committee for Industrial Organiza- tion, herein called the C. I. O., the National Labor Relations Board, herein called the Board, by Dorothea de Schweinitz, Regional Direc- tor for the Fourteenth Region (St. Louis, Missouri), issued and duly served its complaint dated February 3, 1938, against Swift and Com- pany, National City, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 1 The original charge was filed by United Packing House Workers , Local No. 380; the amended and second amended charges were filed by Local No. 530, United Packing House Workers Industrial Union , the successor organization to Local No. 380. 11 N. L. R. B., No. 62. 809 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 12, 1938, the respondent filed a motion to dismiss the complaint on the ground that neither the complaint nor the second amended charge contained "a clear and concise statement of facts constituting the alleged unfair labor practice affecting commerce" on the part of the respondent. On the same date the respondent filed separate motions that the second amended charge and the com- plaint be made more specific, definite, and certain. Without waiver of or prejudice to the above-mentioned motions, the respondent filed an answer in which it denied that it had engaged in or was engaging in the unfair labor practices affecting commerce alleged in the complaint. Pursuant to notices of hearing duly served upon the respondent, the Union, and Employes Protective Association of Swift and Com- pany, herein called the E. P. A., a labor organization claiming to represent employees of the respondent, a hearing was held at East St. Louis, Illinois, from February 17 to March 11, 1938, inclusive, before Albert L. Lohm, the Trial Examiner duly designated by the Board. On February 18, 1938, the E. P. A. was permitted to inter- vene. All parties, except the Union which did not appear, were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the Trial Examiner denied the motion to dismiss the complaint and the motions to make the com-. plaint and the second amended charge more specific, definite, and certain. At the conclusion of the Board's case the respondent re- newed the aforesaid motions, which were again denied. The re- spondent thereupon moved to dismiss the complaint for lack of juris- diction and failure to establish a prima facie case. This motion was denied. The Trial Examiner granted a motion, made by counsel for the Board, to limit the E. P. A. to the rebuttal of allegations in the complaint. Amendments to the answer, both written and oral, were tendered and allowed during the hearing. At the conclusion of the hearing the complaint was amended to conform to the proof. A motion by the E. P. A. for leave to withdraw the original minutes of its meetings and substitute a copy thereof, made at the close of the hearing, was allowed by the Trial Examiner in his Intermediate Re- port, effective as of the time when the case is concluded before the Board. During the course of the hearing the Trial Examiner made various other rulings on motions and on objections to the admission of. evidence. The Board has reviewed the rulings of the Trial Ex- ainer, and, except as specifically mentioned below, finds that no prejudicial errors were committed. All rulings of the Trial Examiner not hereinafter specifically overruled, are hereby affirmed. SWIFT AND COMPANY ET AL. 811 On April 28, 1938, the Trial Examiner issued his Intermediate Report in which he found that the respondent had dominated and interfered with the formation and administration of the E. P. A. and contributed support thereto, coerced its employees in the exercise of their right to self-organization, and discouraged membership in a labor organization by discrimination in regard to the hire and tenure of employment of Richard Shields, Alex A. Warchol, Euell Mann, Ray L. Cox, William J. Green, John J. Wojtczuk, Joseph John Olszewski, Louis V. Alvey, Antonia Czaicka, Clement Goebel, Wil- liam Bates, Al Levinski, Frank Stancellis, Julius Pochek, and William Pochek. The Trial Examiner found that the respondent had not engaged in unfair labor practices with respect to Robert Phillip, Earl Bailey, and William E. George. On May 21, 1938, the respondent, pursuant to an extension of time granted by the Board, filed exceptions to the Intermediate Report, in which it excepted to each ruling made by the Trial Examiner at the hearing in sustain- ing objections of counsel for the Board and to his conduct of the proceedings, as well as to all findings of fact and recommendations in the Intermediate Report. On July 1, 1938, the respondent filed a petition to reopen the case for the purpose of taking further testimony relating to facts pertain- ing to the voluntary dissolution of the E. P. A. subsequent to the issuance of the Intermediate Report. On October 31, 1938, the Board duly issued and served on the parties its order denying the petition to reopen. On November 3, 1938, the Board ordered the present proceeding severed from Case No. XIV-R-29,2 and further ordered that the present proceeding be continued before the Board. Pursuant to notice, a hearing was held before the Board on De- cember 8, 1938, for the purpose of oral argument. Only the respond- ent appeared and participated therein. The Board has considered the exceptions to the Intermediate Re- port and, except as otherwise pointed out below, finds them to be without merit. 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 principally in the business of acquir- 3 On June 29 , 1937, a petition for investigation and certification was filed by Local No. 380, United Packing House Workers . On December 15, 1937, the Board ordered an investi- gation and consolidated the representation case (XIV-R-29) with the present proceeding for purposes of hearing. On January 31, 1938, the Board entered its order permitting the withdrawal of the petition in the representation proceeding. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and slaughtering livestock, and marketing the products and by- products thereof. In addition, it purchases, processes, and sells dairy, poultry, and other food products. It owns and operates, in the United States, approximately 25 packing plants, 110 produce plants, and a substantial number of distributing houses located in the prin- cipal cities. The respondent employs about 61,000 employees, of which number approximately 27,000 are production workers in its packing plants. During the fiscal year 1936, total sales amounted to $831,671,748, and as of October 30, 1937, its inventory was valued at $109,295,895. This proceeding is concerned only with the plant of the respondent located at National City, Illinois, herein called the National City plant, which is an integral part of the respondent's entire operations. The live weight of cattle, sheep, and hogs acquired from all sources by the respondent's National City plant in 1936 amounted to 320,- 492,563 pounds; in 1937, livestock acquisitions totaled 305,793,037 pounds. All cattle, and over 95 per cent of calves and sheep, were purchased at the public stockyards in National City, Illinois; ap- proximately 30 per cent of the hogs were secured directly from sources outside the State of Illinois. A substantial part of the live- stock purchased at the public stockyards in National City, Illinois, originate in other States. Products processed or manufactured at the National City plant are shipped into and distributed in 22 States. About 83 per cent of the meat and miscellaneous products, as shown by figures for 1936 and 1937, are shipped into and distributed in States other than Illinois. The respondent employs approximately 1,500 production workers at its National City plant. H. THE ORGANIZATIONS INVOLVED Local No. 530, United Packing House Workers Industrial Union, affiliated with the Committee for Industrial Organization , is a labor organization admitting to its membership production employees of the respondent in National City, Illinois. Employes Protective Association of Swift and Company is a labor organization, unaffiliated with any other labor organization•,. admit- ting to its membership all employees of the respondent on the Na- tional City plant pay roll, except employees having authority to employ or discharge .3 S The first constitution of the E . P. A. also excluded from membership those having the right to discipline employees . At the January 11, 1938, meeting of the E. P. A. it was moved that the constitution be amended to permit employees of the Commercial Fertilizer Company to be members of the E . P. A. At that meeting, 28 applications from employees of said Company were accepted . At the next meeting, held February 1, 1938, the consti- tution was formally amended as suggested at the preceding meeting. It appears that the Commercial Fertilizer Company is affiliated with the respondent. SWIFT AND COMPANY ET AL. 813 III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices For about 16 years prior to 1937, the respondent had maintained at its National City plant an organization of its employees known as the Employes Representation Plan, a labor organization herein called the Plan. The governing body of the Plan was the Plant Assembly, which consisted of 14 employee representatives elected by secret ballot, one from each of 14 voting divisions in the plant, each division consisting of a department or a number of related departments, to- gether with an equal number of representatives appointed by the management from plant and office employees who were not eligible to vote for employee representatives. Under the Plan, grievances were first taken up with the foreman or other plant authority; only if the employee failed to obtain satisfaction by this procedure could he present the matter to his employee representative who, together with the corresponding management representative, had authority to effect a settlement. If the paired representatives were unable to dispose of the matter, it was referred to the appropriate standing committee, and eventually to the Plant Assembly. The standing committees of the Plant Assembly consisted of equal numbers of em- ployee and management representatives. Final action by a commit- tee required the unanimous vote of those present; however, a vote could not be taken unless a majority of each of both classes of repre- sentatives were present. At meetings of the Plant Assembly, the voting power of the two groups of representatives was always equal, and any question before the meeting calling for action by the man- agement required a two-thirds vote. The respondent supplied the facilities for conducting meetings and other business of the Plan. Employees serving as members of the Plant Assembly were paid their regular pay for such time as they spent in the work of the Plan. By the respondent's admission, the Plan continued to function until it was officially dissolved on April 20, 1937. It is clear that for nearly 2 years after July 5, 1935, the effective date of the Act, the respondent, notwithstanding the declaration in its booklet de- scribing the Plan that "There shall be on the part of the Company and on the part of the Employes strict observance of the Federal and State Laws respecting Labor," had continued to dominate and interfere with the administration of a labor organization and con- tribute financial and other support thereto. The complaint alleges that the respondent on and after April 15, 1937, engaged in unfair labor practices within the meaning of the Act. The participation of the respondent in the formation and administration of the Plan prior to the first date alleged in the com- 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint is relevant, however, in indicating a course of conduct and furnishing a background against which the events occurring after April 15, 1937, can be better understood. - B. Interference with, and domination and support of Employes Pro- tective Association On April 20, 1937, a special meeting of the Plant Assembly was called at the request of M. Z. Irish, manager of the National City plant. The purpose of the meeting was to inform the representatives of the dissolution of the Plan. Irish read the following statement and a prepared digest of the Act, both of which had been sent him by the respondent's Chicago office : On Monday, April 12, the United States Supreme Court made public its decisions on several cases under the National Labor Relations Act (The 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 con- tinue 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 election 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. 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 com- pany 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. /s/ M. Z. IRISH. Isl A. F. ZWICKY. After reading the notice, which was immediately posted on bulletin boards throughout the plant, Irish testified that he withdrew from the meeting, but that the management representatives remained. O. E. Kent, division superintendent and a management representative under the Plan, testified that after Irish left, the meeting was ad- journed and the management representatives also withdrew, leaving SWIFT AND COMPANY ET AL. 815 the employee representatives who were then gathering in a group and beginning a discussion. Coincident with the meeting of the Plant Assembly, Zwicky, the plant superintendent, met with those members of the respondent's supervisory force who were not in attendance at the meeting of the Plant Assembly as management representatives, informed them of the dissolution of the Plan, and gave instructions that supervisory employees were not to participate in any future organizational activities. The employee representatives, following the withdrawal of Irish and the management representatives, determined to canvass the employees on the question of an "inside" organization. This canvass was con- ducted by the former employee representatives between April 20 and 22, during working hours, without objection by the respondent's fore- men and supervisors. The employee representatives had lists with the employees' names and check numbers and each employee was asked whether he favored the formation of an "inside" organization. The answers were recorded opposite the employees' names. In only one department, at the insistence of Joe Behnen, later president of the Union, was the poll conducted secretly. Witnesses for the Board testified that in a number of departments foremen assisted the em- ployee representatives in polling the employees, by calling employees together or explaining the object of the vote. In practically each in- stance, the foremen denied rendering such assistance and disclaimed any knowledge of the fact that a canvass was being made. However, in view of the fact that the canvass was conducted publicly and during working hours without objection, we attach little credence to the denials and disclaimers of the foremen. Under the circumstances, we con- clude that the respondent was aware of the canvass and gave at least tacit approval thereto. The results of the canvass, according to Connelly, an employee in the employees' market and later president of the E. P. A., indicated that approximately 1,200 employees were in favor of the formation of an "inside" organization. On April 22, when the canvass had been completed, Mallett, a former employee representative, approached Connelly and asked him if he would serve as the temporary president of the "inside" organization which the employee representatives, pur- suant to the results of the canvass, had determined to form. Con- nelly accepted. That night, he testified, without the assistance of anyone and without reference to any documents, he drew up a draft of a proposed constitution and bylaws. The following day, Connelly, Mallett, and Reed, another employee representative who was active in the formation of the E. P. A., met and approved, with some minor changes, the constitution and bylaws Connelly had drafted, and de- cided upon the name of the organization. That afternoon Connelly, 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the consent of Zwicky, had 2,000 copies of the constitution and bylaws mimeographed in the respondent's plant. On Saturday, April 24, Connelly, Mallett, Reed, and the former employee representatives met during the noon hour in the respond- ent's assembly hall. At this meeting Reed was selected as temporary vice president and Mallett as temporary secretary-treasurer. The group determined to have membership and application cards printed, which were delivered on Monday, April 26. Connelly distributed the application cards to the employee representatives with instructions to solicit members. On Tuesday evening, April 27, a mass meeting was held in the plant cafeteria, the use of which had been granted by Zwicky. According to Connelly, about 600 or 700 employees were present. The results of the canvass were given, the proposed constitution and bylaws read, and announcement was made of a further meeting on May 4. The first official meeting of the E. P. A. was held on May 4 in the plant cafeteria. Connelly testified that he had asked Zwicky for permission to use the cafeteria, and Zwicky had agreed provided rent, in an amount to be determined by the accounting department, was paid for this and the prior meeting.4 The constitution and by- laws, as drafted by Connelly and approved by the employee repre- sentatives, were adopted unanimously, 163 employees voting. Con- nelly was elected president by a plurality, receiving 92 votes out of 190 cast for three candidates. Reed was appointed vice president and Mallett secretary-treasurer. Prior to this meeting, however, cards evidencing membership in the E. P. A. had been given em- ployees, signed by Connelly as president. Two such cards, dated April 26 and 27, are in evidence. Thus it appears that even before the organization was formally launched, the sponsors had enrolled members. The constitution and bylaws as adopted by the E. P. A., bear marked similarities to the constitution of the Employes Representa- tion Plan. These similarities are the more striking in view of the fact that Connelly testified that his draft, which was adopted without any material alterations, was composed by him without assistance or reference to any documents. The E. P. A. constitution provided that "all employees on the plant payroll . . . shall be entitled to member- ship in the plan b and vote for officers and divisional representatives," 4 On cross-examination Connelly stated that prior to the May 4 meeting , he told Zwicky that the use of the cafeteria was needed because "we were attempting to form an inde- pendent union and he [Zwicky ] advised us that if that was the purpose we were using the cafeteria for we would be charged rental and we agreed and this was made retroactive to cover the mass meeting." 6 In the latest copy of the E. P. A. constitution the word "organization" appears in place of the word "plan." The official E. P. A. minutes , however, which are in evidence, do not reveal when this change in designation was authorized. SWIFT AND COMPANY ET AL. 817 and the corresponding provision in the bylaws provided that "all members on the plant payroll ... shall be entitled to participate in the plane and vote for their divisional representative." The com- parable provision in the constitution of the Plan provided that "all employees on the payroll of the plant shall be entitled to participate in the Plan and vote for Employe Representatives." Both constitu- tions made provision for one representative to be selected by the employees in each of a number of divisions consisting of related departments. In this connection, it is interesting to note that the original provision in the E. P. A. constitution that these employee representatives "shall constitute a committee whose duty shall be to meet with management and bargain collectively," was eliminated at -the August meeting, by a unanimous vote, as shown by the official E. P. A. minutes. Thus, as Connelly testified at the hearing, this deletion left the E. P. A. without a bargaining committee. On May 18 or 19, Irish and Zwicky were waited upon by an E. P. A. committee composed of Connelly, Reed, and Mallett. The committee, as testified by Irish, stated they. represented the E. P. A. and requested sole bargaining rights in the plant and presented an agreement. Irish testified he asked the committee how many employees they repre- sented, and he was told "that they represented 1196 of the some 1400 employees that we had at that time." The committee had various doc- uments and records in support of the claim to majority representation, which were offered to Irish and Zwicky in proof thereof, but Irish testified that he and Zwicky accepted the claim "without scrutinizing the record which would have taken a considerable length of time, and at that time there was no other organization or union involved. They were our employees and had been with us for a long time, and we said `All right, we will just take your word for it."' Irish and Zwicky took the proposed agreement under advisement and arrangements were made for a meeting the following day. On the following day, the same group met and the E. P. A. com- mittee was handed a statement, dated May 19, 1937, signed by Irish and Zwicky stating that "The Management will accept" the E. P. A. as "the bargaining agents for the employees . . . who are members of the association, and will not make a collective agreement with any other group without taking it up with the association." The "in- tention of the Company to continue the present policies" relating to wages, pensions, vacations, and "other working conditions of a major character" was affirmed, and the respondent pledged itself to confer with the E. P. A. before any changes in these policies were made. This "agreement," which was similar to the one presented by the 6 See footnote 5, supra. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. P. A.,7 made no reference to grievance procedure, but Irish testified that it was understood that such matters would be handled through Zwicky. The alacrity with which the respondent recognized the E. P. A., particularly when viewed in the light of its subsequent dealings with the Union as to recognition, strongly suggests that the respondent, by that action, sought to forestall and discourage the organizational activities of the Union in the National City plant. The Union first became active in the respondent's plant in April 1937, at about the same time as the E. P. A. was being organized. While Irish testified that when the E. P. A. was recognized "there was no other organiza- tion or union involved," he later admitted that sometime in the first part of May he had heard "rumors" that some of the respondent's' employees were members of the Union, but that it was not until the "C. I. O. demonstration day" that he actually knew some of the em- ployees belonged to the Union. This demonstration day, or "book day" as it is referred to in the record, occurred on June 21. On that day the Union declared a holiday, and employees of the respondent who were members of the Union picketed the respondent's plant and succeeded in enrolling a large number of respondent's employees as union members. Only about 25 per cent of the regular force, according to Zwicky, worked that day. The following day, the employees returned to work. On June 24, Verdu, the C. I. O. organizer of Local 380, had an interview with Irish and Zwicky. Verdu asked that the respondent recognize and bargain with the Union, claiming that it represented about 75 or 80 per cent of the respondent's employees. Irish re- quested proof of the claim and refused to take Verdu's word for it. Irish told Verdu that the matter was one of a dispute between two labor organizations which should be settled by an election. Verdu asked for a meeting the following week, and on June 29 renewed his request for recognition and a bargaining conference. Irish re- fused, as he testified, on the ground that "we couldn't bargain with him, or we couldn't give him such rights, because we already had an agreement with our own employees, E. P. A." However, the re- spondent agreed to meet with Behnen, president of the Union, in 7 On this point Connelly testified as follows : Q. [By Hoskins.] Can you tell me what rights were promised in yours that were not in the one he [ Irish] had? A. No. Q. Is there anything in here substantially different from the paper you had when you came into the meeting? A. No great difference-possibly a word or two. Q. Your entire discussion was as to a word or two? A Yes, sir, the sound of it when it was read, the meaning it would convey. Q. There were no new rights added? A. No, sir. SWIFT AND COMPANY ET AL. 819 regard to individual cases involving grievances, and the record shows that Behnen and Zwicky on many occasions discussed such matters. During the 2 weeks between April 20 and May 4, while the E. P. A. was being organized, Zwicky authorized Connelly to obtain stationery and supplies from the respondent's offices and permitted the proposed constitution and notices of the mass meeting on April 27 to be mim- eographed by its office staff, with the understanding that either Con- nelly or the proposed organization would reimburse the respondent for the cost of such facilities. After May 4 the E. P. A. secured all its supplies from the respondent and bulletins and notices in large quantities were run off on the respondent's mimeograph. The E. P. A. paid for these items at nominal rates.8 Zwicky readily gave the E. P. A. permission to use the cafeteria and the assembly hall for meeting purposes whenever a request was made. Connelly testified that he obtained Zwicky's permission to use the cafeteria for the mass meeting held on April 27, but that he did not state its purpose other than to say that the employees desired to hold a meeting. When Connelly later requested use of the cafeteria for the May 4 meeting, he told Zwicky that the employees were in the process of forming an independent union, that there had been "a good attendance at the mass meeting and applications were com- ing in and we wanted to continue our attempt with other meetings." According to Connelly, Zwicky then informed him that rent would be charged. Zwicky, however, testified that although the purpose of the meeting may not have been stated when use of the cafeteria for the April 27 meeting was requested, "I, of course, surmised that it was for the purpose of deciding what they would do. That was the first I knew that there was any consideration given to organizing an independent organization." Zwicky testified he did not give his permission until the next day, after consulting with Irish, and then on condition that a rental would be paid in an amount which was later fixed by the accounting department at $1.50 per hour. The E. P. A. used the cafeteria until September or October, and then when Behnen, president of the Union, requested similar privi- leges, Zwicky told him that the arrangement with the E. P. A. was only temporary and refused Behnen's request. Thereafter, the E. P. A. made arrangements to use the respondent's assembly hall for meeting purposes at a rental of 75 cents an hour. About the latter part of May, the respondent, as testified by Zwicky, agreed to rent "temporary desk space" to the E. P. A. in the same office as was then occupied by Thompson, division superintendent in charge of the employment and time office. The rental fixed by the s From a number of invoices in evidence , it appears that the usual charge for mimeo- graphing 1,000 bulletins was 50 cents for labor and 50 cents for materials. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accounting department was $5 per month. Sometime in September, Thompson was moved to other quarters and the E. P. A. thereafter occupied the office alone without any increase in rent. Although Zwicky testified that this arrangement was only temporary, it was still in effect at the time of the hearing, and in August the re- spondent permitted the E. P. A. to have a sign, "Employes' Protec- tive Association," lettered on the glass of the office door. Zwicky denied the Union's request for desk space, on the ground that no room was available. At the hearing, Zwicky testified he told Behnen it October that the only available space was that formerly occupied by Thompson, with the E. P. A., and that he "did not think it would be very desirable to have two rival organizations to occupy the same space." By a procedure which became effective in the early part of May, the respondent kept an account of the time spent by E. P. A. officers and representatives in organizational activities in order that they might be compensated for such time by the E. P. A. According to the uncontradicted testimony of Connelly, the system operated as follows : Each officer or representative furnished the accounting de- partment a daily report of time spent in performing various duties, including E. P. A. work. Time spent in conferring with the man- agement on grievances was listed separately. The accounting depart- ment sent the E. P. A. a daily and weekly report showing for each E. P. A. officer and representative the number of hours chargeable to E. P. A. work. The respondent paid the employees for their total time, including that spent in conferring on grievances, less the amount shown to have been devoted to E. P. A. affairs. The E. P. A. then paid the employees, at their regular hourly rate, for the balance representing E. P. A. work, as shown by the records of the account- ing department. Connelly testified that the respondent made no charge for the additional work involved in keeping these records. The monthly salary payments made by the E. P. A. under this ar- rangement averaged about $160. In May and June, Florence Wierceszewski, who at that time was employed in the beef-casing department, worked at intervals in the E. P. A. office. Thompson, who was in charge of the employment office, testified that she was placed in the E. P. A. office by the em- ployment department. According to her service record, she was dis- charged July 7. Stella Kocot was first hired by the respondent on June 28, 1937, and placed on the miscellaneous pay roll as a clerk, in which capacity she remained until August 25, when she was trans- ferred to the beef-casing department. During the period from June 28 td August 25, Kocot worked full time in the E. P. A. office. SWIFT AND COMPANY ET AL. 821 When Thompson was first cross-examined concerning the employ- ment of these two women, he testified that both were paid by the respondent for the time they spent in the E. P. A. office, and that the E. P. A. was billed for their time. On further cross-examination by the Board's attorney he stated it was his "understanding" that the two women were paid in this manner. On cross-examination by counsel for the E. P. A., however, he admitted that he did not know personally that such was the arrangement. At this point the re- spondent rested, with the reservation, granted by the Trial Examiner, to call other witnesses to show that the women in question were paid directly by the E. P. A. or the E. P. A. reimbursed the respondent for the time they spent in doing E. P. A. work, in the event that such evidence was not adduced by the E. P. A. Connelly, who was the only witness for the E. P. A., testified that both Kocot and Wierceszewski were paid directly by the E. P. A. He admitted, however, that Kocot was hired by the respondent, that she had a "regular clock card like a Swift & Company employee," and that she worked in the E. P. A. office from about the first of July to the first of September. After the E. P. A. had completed its proof, the respondent recalled Thompson, who then testified that when he had previously testified concerning the employment of Kocot and Wierceszewski he had not examined the pay-roll records. Subsequently, he had examined the pay-roll records relating to these two employees and was prepared to testify with the records before him as to whether the respondent had paid the women during the periods they had worked in the E. P. A. office. The Trial Examiner sustained the objection of the Board's attorney to this evidence, on the ground it constituted an attempt by the respondent to impeach its own witness. However, the Trial Ex- aminer permitted Thompson and J. R. Irvin, general foreman of the beef-casing department, to testify, with the understanding that their testimony should have the effect of an offer of proof. We are of the opinion that the Trial Examiner erred in sustaining the objection, since he had previously granted the respondent the right to produce additional witnesses to show the manner in which these employees were paid, in the event the testimony adduced by the E. P. A. did not clarify the matter. Thompson's prior testimony, we believe, indicates an uncertainty on his part as to the method of payment, and the offered evidence constitutes explanatory, rather than impeaching, testi- mony. We shall, therefore, reverse this ruling, and consider the respondent's offer of proof as proper and competent testimony. This testimony shows that Wierceszewski was paid by the respond- ent for the period between May 22 and June 25 only for working in the beef-casing department. Kocot was paid nothing by the respond- 164275-39-vol. xi-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent for the period between June 28 and August 25, which constituted the period she was listed on the miscellaneous pay roll and worked in the E. P. A. office. In light of all the evidence relating to the employment of Wierces- zewski and Kocot, we conclude that although the respondent did not pay them for work performed for the E. P. A., the respondent ar- ranged for them to work for the E. P. A. while carrying them on its records as regular employees. We accept as fact Thompson's testi- mony, which is corroborated by Connelly, that Kocot was hired by the respondent for the specific purpose of acting as clerk in the E. P. A. office. While the respondent fostered and assisted the E. P. A. and per- mitted E. P. A. representatives to engage in organizational activities during working hours, its supervisory officials were quick to curb similar activity in behalf of the Union by reprimanding employees who engaged or were suspected of engaging in such activity. Loyd Hodge, vice president of the Union, testified that he was told by his foreman, Smith, that he was "talking too much union," and that Kent, the division superintendent, warned him to refrain from talk- ing about the Union during working hours. Smith admitted having warned Hodge to quit talking about unions during working hours. Kent claimed that he had admonished Hodge only in regard to some threats Hodge allegedly had made, but admitted telling Hodge that he was not to engage in organizational activities during working hours. C. R. Irvin, who at the time was an acting general foreman, stated that in November 1937 he reprimanded Joseph Olszewski for allegedly attempting to solicit members for the Union during working hours. William Bates testified that in August, when he was seeking a job following a lay-off, Kent told him that "if you get on the right side of the fence you might be working." Although Kent denied having made this statement, in view of all the circumstances we do not believe that his denial is entitled to credit.° Upon the foregoing facts, and the entire record, we are satisfied that the respondent, having decided to dissolve the Employes Repre- sentation Plan, embarked upon a course of conduct designed to en- courage and dominate the formation and administration of the E. P. A., and lend support to it. The evidence in its entirety shows that the respondent had resolved that the form of employee representa- tion should be as amendable as the Plan, itself, had been. The first step in this direction was the revelation of the respondent's favorable disposition to an employees representation plan shorn of the more obvious badges of employer control, given the employee 9 Kent's statement is discussed in more detail in Section C (2) (a) in connection with the lay-off of William Bates. . SWIFT AND COMPANY ET AL. 823 representatives at the April 20 meeting . The notice read to the old employee representatives , under the circumstances, was both an invi- tation to them to form an "independent" organization and a caution as to what should be done to free it from apparent company domina- tion. The record shows that the employee representatives, after Irish and the management representatives withdrew from the meeting, forthwith acted upon the respondent 's suggestion and proceeded with the formation of an "inside " organization.1° They immediately polled the employees on the "inside" union proposition ; a constitu- tion and bylaws, patterned after the constitution of the Plan, were drafted; and permission to use the respondent's cafeteria and mimeo- graph facilities was obtained. By May 4, 2 weeks after the dissolution of the Plan, the E. P. A. was fully organized . Early in May the respondent arranged to keep account of the time spent by E. P. A. officers and representatives in organizational activities during working hours, so that they might be paid therefor by the E. P. A. On May 18 the respondent accepted the word of the E. P. A. committee that it represented 1,196 em- ployees and , without further proof, forthwith recognized the E. P. A. as a collective bargaining agency. The inference is plain that the respondent did not ask for proof of the representative status of the E. P. A. because the respondent , having encouraged the formation and influenced the administration of the E. P. A., had every assurance that the E. P. A. would be as susceptible to domination and control as the Plan. From the day the Plan was dissolved the respondent evinced a cooperative and paternalistic interest in the E. P. A. The respondent permitted the E. P. A. almost unrestricted use of its facilities in pro- moting organizational activities , a circumstance well calculated to re- sult in an organization which was but the counterpart, to all intents and purposes, of the Employee Representation Plan. The evidence is uncontradicted, and we find, that from the inception of the E. P. A. until the hearing, the respondent fostered and supported the E. P. A. by furnishing supplies and facilities at very nominal rates for the pro- duction of bulletins, notices, and handbills urging employees to join and support the E. P. A.; by permitting the E. P. A., and not the 10 In two prior cases, involving the respondent's Evansville, Indiana, and Deliver, Colo- rado, plants , a similar sequence of events occurred. In both, a meeting of the old repre- sentatives was called on April 20, a notice identical in language with that here involved was read, the management representatives withdrew upon the conclusion of the reading, and the employee representatives thereupon determined to form an "inside" organization See Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 6111 , and United Packing House Workers Local Industrial Union No. 300, 7 N. L R B. 269; Matter of Swift & Company and United Automobile Workers of America, Local No. 265, Case No. 0-484 ; Matter of Swift & Com- pany and United Packing House Workers L. I. Union No . 328 Affiliate C. I. 0., Case No. R-605, 7 N. L. R. B. 287. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, to use its cafeteria and assembly hall, in return for a nominal rental, for meeting purposes; by renting desk space in the employment office to the E. P. A. and refusing similar accommodations to the Union ; and by allowing E. P. A. representatives to solicit members and engage in other organizational activities during working hours. We are convinced that the respondent's officials and supervisors were well aware of the extensive activities carried on by the E. P. A. during working hours, and that by their failure to take effective steps to curb such activities, while withholding from the Union the facilities to en- gage in similar activities, they sought to encourage the growth of the E. P. A. Moreover, the respondent sought to discourage membership in the Union by preventing employees from engaging in activities in its behalf and by warning them to refrain from soliciting members for the Union or even talking about the Union during working hours. In view of the fact that E. P. A. representatives were allowed to en- gage in organizational activities during working hours without reprimand or interference, it is clear that, by denying similar priv- ileges to adherents of the Union, the respondent sought to discourage membership in the Union. By the above-mentioned aid and support, the respondent made clear to the employees that the E. P. A-. was the organization it preferred, while by its refusal to accord similar aid and support to the Union, the respondent indicated that it was opposed to the Union. We find that the respondent has dominated and interfered with the formation and administration of the E. P. A., and has contributed support to it; that by its aforesaid acts, the respondent has inter- fered with, restrained, and coerced its employees in the exercise of their right to self-organization, and to form, join, and assist labor organizations. C. The alleged discriminatory discharges, lay-offs, and reductions in basic rate of pay 1. The discharges a. The facts as to the discharges Richard Shields had worked intermittently for the respondent from 1933 to 1936. His last steady employment was from June 23, 1936, to September 9, 1937, when he was discharged. Shields testi- fied that he and a fellow employee, a colored man named Crittenden, had engaged in heated arguments during working hours over a period beginning in the fall or winter of 1936. Shields claimed that Crittenden always started the arguments, but admitted he would generally lose his temper and both would use profanity freely. SWIFT AND COMPANY ET AL. 825 The day before Shields' discharge, the foreman, Mike Deering, found Shields and Crittenden arguing and threatening each other with bodily harm. The following morning Deering reported the incident to Kent, his immediate superior, and demanded that both men be discharged because he was afraid that one might injure the other. Both men were called into Kent's office, questioned about the incident, and discharged. Deering testified that he had warned both men on a number of occasions. Shields was a member of the Union but had also joined the E. P. A. in April. He testified that shortly after the constitutionality of the Act was affirmed by the Supreme Court of the United States in April 1937, Deering, his foreman, informed him that he was welcome to join any labor organization he wished, but to think twice and not be a fool in picking one. Deering denied having made this statement to Shields. In January or February, after his discharge, Shields claimed that he talked to Kent, who told him that refraining from arguments was not the only lesson he had to learn. Kent denied making this state- ment and testified he had told Shields that when sheep killing picked up he would be given a job. Shields also testified that although Crittenden was equally to blame for the quarrel, Crittenden was reemployed after both were dis- charged. Kent and Thompson denied that Crittenden had been em- ployed by the respondent at any time after September 9, 1937. Alex A. Warchol was employed by the respondent in the beef- killing department from April 1935 to August 6, 1937. He joined the Union on April 28, 1937, the day after he had joined the E. P. A., and served as steward and on a union committee. On August 6, 1937, Warchol was discharged allegedly for alter- natively speeding up and slowing down his work in the beef-killing gang on the preceding day, which disrupted the operations of the gang and resulted in scored hides and damaged carcasses. Tony Deering, Warchol's foreman, testified that Warchol's speeding up and slowing down tactics had begun in July 1937 and that he had spoken to Warchol about the matter on several occasions. In the afternoon of August 5, 1937, Deering asserted he told the killing gang to in- crease the speed of the operations so that they might be finished by 4: 30 o'clock, whereupon Warchol started working at such a fast rate that his work was inefficient and he was scoring hides and cutting the flesh of the beef carcasses. Deering stated he then told Warchol to slow down to a point where the work could be done in a proper manner. A short while thereafter Deering saw Warchol at the other end of the killing floor, away from his gang, arguing with several other employees. Deering ordered Warchol to go back to work, 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whereupon Warchol resumed his work and said "Tomorrow we will not kill a damned cow over." Warchol's version of the incident is that Deering had told the gang to rush, but later; seeing that they might get through too early, ordered them to slow down. The day of his discharge Warchol was called to Kent's office, after Deering had reported the incident to Kent. Deering's report, ac- cording to Kent, was substantiated by statements made in Warchol's presence by Podwojski and Dawson, employees in the same gang as Warchol. According to Kent, Warchol refused to tell his story, al- though urged, saying "I will tell my story to the Labor Board." Warchol, however, said he refused to make a statement unless some of his fellow C. I. 0. members were called in as witnesses. Warchol testified that after he had voted "no" on the inside union proposition, Tony Deering told him that about 75 per cent of the employees had voted "yes" and advised him to "vote the same way and keep the peace in the family." Sometime in May or June 1937, Kent, Warchol claims, said "I am going to fire you . . . you are kind of radical here lately . . . I am just giving you a tip as a friend . . . if I were you I would just stay away from C. I. 0. meetings." Shortly after the labor demonstration on June 21, 1937, Deering allegedly told Warchol that if he did not sign up with the E. P. A. by the following Monday or Tuesday he would be laid off because "that is Company policy." In July Kent allegedly said, "Well, Alex, before I tell you anything I want to tell you I am going to fire you the first chance I get." Kent and Deering denied making any of the above statements to Warchol. Kent, however, stated he had observed Warchol on a number of occasions after the labor demonstration day "strutting up and down the floor, interfering with the gang, getting three or four men in groups around him, talking to them, whispering to them." Kent warned him about his conduct on the floor, but disclaimed any interest in his organizational activities so long as Warchol did not let them interfere with his work. Warchol, Kent testified, readily promised to cause no further trouble. However, a few days later Warchol resumed his disruptive tactics. There is uncontradicted evidence that the work of the beef-killing gang is a continuous process which requires that a uniform rate of speed be maintained by all employees in the gang. It seems clear that any speeding up or slowing down on the part of one employee would interrupt the continuity of operations. Moreover, the testi- v Respondent's operations in the beef-killing department are set to enable the slaughter of cattle at a given rate per hour. Deering explained that w archol 's remark meant that the hourly killing rate should not be exceeded. SWIFT AND COMPANY ET AL. 827 mony of witnesses for the respondent is not controverted with respect to the disruptive tactics of Warchol over a period of at least 2 months. Euell Mann was first employed by the respondent in July or August 1936 and worked irregularly thereafter. On June 24, 1937, he was hired in the beef-loading dock and worked until his dis- charge on July 8, 1937. Mann joined the Union about July 2, 1937, shortly after he returned to work. He was allegedly discharged for making threats of bodily harm to two employees, Allen Aiken and Cletus LeTempt. Kent, who discharged Mann, testified that Aiken and LeTempt reported to him that Mann had told them during working hours, that if they did not join the C. I. O. he would beat their heads in. Kent and Thompson took a statement from these two employees and then Kent called Mann and his foreman into his office. Kent read the statement to Mann and told him that he and several others had been warned on the preceding day about bunching up and making threats. Mann denied making the threat and told Kent there must be some mistake, but Kent accepted the version given him by the two other employees on the ground that they had been with the respondent much longer than Mann. Aiken and LeTempt were not called as witnesses. Joseph John Olszewski entered the respondent's employ in October 1931 and worked at a number of jobs until November 17, 1937, when, as he alleges, he was discharged. The respondent, however, claims that he quit. For the past 5 years, he had worked in the pickle room as helper to Lester, the pickle maker, and at other jobs. He joined the Union April 28, 1937. On July 10, 1937, Olszewski was transferred from the pickle room to the sweet-pickle shipping gang. This transfer was made pur- suant to instructions of Battaglia, general foreman. Olszewski re- ported for work in the shipping room, but stayed only a few hours, and then "just walked off the job. I went home because they put me down there and I didn't think that was my job." He returned to the plant on July 12 and asked for his job. Battaglia is asserted to have told him, "You are too sarcastic and if you ever change your attitude, we will give you your job back." On July 16 Olszew- ski returned to the pickle-shipping gang, at the same rate of pay as he received in the pickle room. Both Battaglia and Lester, the head pickle maker, testified that for about 2 months prior to his transfer, Olszewski had exhibited a very indifferent attitude toward his work, had made mistakes in his work, and had "raged" against Lester when the latter had re- ported an error to Battaglia. Battaglia testified that Olszewski was employed on July 16, through the intervention of Behnen, president 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union, upon the understanding that he would perform what- ever tasks were assigned to him in the sweet-pickle department. Behnen also testified to the same effect. Early in November 1937, C. R. Irvin, who was acting general fore- man during Battaglia's absence, accused Olszewski of attempting during working hours to sign up two employees as members of the Union. Olszewski denied the accusation and requested that Irvin produce the two employees. Irvin declined to go into that further and said that if he heard anything of a similar nature it would be referred to Zwicky's office. On November 17, 1937, the day his employment terminated, Ols- zewski was working with Ralph Wayne in the green meat depart- ment. Ray Guyette, foreman in the premium belly and barrel pork department, sent for him and told him to bring some bacon bellies from the third floor to the basement. While Olszewski was unloading the bacon bellies, some slipped and fell onto the floor. Olszewski testified that Guyette then said, "Why in hell don't you watch what you're doing? You can't throw those bellies around like that," and ordered him to get a truck and start hauling freezer boxes out of the hog cooler. Guyette testified that he reprimanded Olszewski for permitting the bacon bellies to fall on the floor, but denied that the instance had anything to do with his assigning Olszewski to haul freezer boxes. Olszewski testified that he refused to haul the boxes, which weighed approximately 1,400 to 1,500 pounds each, unless he was given help, but that Guyette stated that one man had been doing the work and asked if he was quitting. Olszewski testified that he replied that he was not quitting, but stated that he continued to refuse to do the work alone. According to Olszewski, Guyette, after conferring with Irvin, gave Olszewski a time slip which stated that he refused to do the work assigned and had quit. Guyette stated at the hearing that no mention was made about another man helping on the freezer boxes, but that Olszewski had flatly refused to do the work. He stated that, as a matter of fact, he had assigned another employee to the same task shortly before he directed Olszewski to haul the freezer boxes. On cross-examina- tion Olszewski admitted that Mueller was supposed to go with him and would have been available to help load the truck. Irvin testified concerning the above incident as follows : That he overheard a conversation between Guyette and Olszewski about the freezer boxes which was to the effect that Olszewski refused to do his work; that he (Irvin) then asked Olszewski what the trouble was and that Olszewski replied that he would quit before he would go to the freezer; and that, after advising Thompson of the incident, he called Guyette and told him to mark Olszewski's ticket "quit." SWIFT AND COMPANY ET AL. 829 b. Conclusions as to the discharges Although we think that the testimony of the various witnesses raises some doubt as to whether the respondent discriminated against the above-named employees, we do not think that the evidence is sufficient to justify a finding of discrimination. We shall, therefore, dismiss the allegations of the complaint in so far as it relates to these employees. We find that the respondent did not discriminate against Richard Shields, Alex A. Warchol, Euell Mann, and Joseph John Olszewski in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization. The complaint alleged that Robert Phillip had been discharged in September 1937 because he had joined and assisted the Union. The respondent's answer denied that Phillip had been discharged and alleged he had voluntarily quit. No evidence was introduced with regard to Phillip. We will, therefore, dismiss the complaint without prejudice in so far as it relates to Robert Phillip. 2. The lay-offs a. The facts as to the lay-offs Ray L. Cox had worked for the respondent irregularly since 1929; his last steady employment was from April 15, 1937, to December 15, 1937, as a laborer in the calf cooler. Cox joined the Union in the latter part of April 1937, and was active in its behalf, serving on the executive committee and as shop steward. On May 22, 1937, Cox was given an increase in wages of 5 cents an hour because he was then learning to skin calves, a more skilled job. Cox claims that after the labor demonstration on June 21, 1937, in which he took part, he was not given lessons in calf skinning. Kent, however, testified that Cox's activities in behalf of and mem- bership in the Union had nothing to do with the termination of the instruction but that a slacking off in the work was the reason. Kent further testified that when he started Cox on calf skinning Cox said he was a member of the Union. Cox was laid off on December 15, 1937, at the same time as William Childress,12 a member of the same gang. Cox admitted he and Child- ress were the youngest men in point of seniority at that time, but claims he should have been transferred to some other department as had been done during previous slack seasons. Cox intimated to Kent that he believed he was being laid off for union activities, and ad- mitted that Kent told him that that was not the reason and that when things picked up he would be put back in the calf gang. Cox stated "Also referred to as William Childers. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Childress was reemployed shortly after both were laid off. How- ever, Kent, the division superintendent, testified that no one had been hired in the calf gang since Cox was laid off, but another man had since been laid off. William J. Green had worked irregularly in a number of depart- ments since 1933. His last steady employment with the respondent dates from March 18, 1935, when he was hired as a laborer in the engine room. On May 3, 1935, he was laid off in the engine room but hired the same day as a laborer in the car-washing department and continued until his lay-off on October 19, 1937. Green joined the Union on April 23, 1937. He was laid off allegedly because of slack work and according to seniority. Green testified that Crews, his foreman, had called his attention to an E., P. A. notice which Crews allegedly had posted, and had advised Green on another occasion that he, Crews, was against any kind of labor organization but felt that an "inside" union was pref- erable. Crews denied having posted any E. P. A. notices or calling Green's attention to them, and also denied that he had told Green that he preferred an "inside" union. Crews, however, authorized the employees in his department to attend a meeting in the respond- ent's assembly hall for the purpose of electing E. P. A. representa- tives. Green testified that during previous slack seasons he had worked steadily. Crews explained that during such periods Green had been kept busy making and repairing liver racks, but in the fall of 1937 there was no such work to be done because the respondent had discon- tinued using the former type of rack and the new type used was not made by the respondent and required no repair. Green also claimed that one Zelinsky was retained in the car-wash- ing gang although he had less seniority than Green. Witnesses for the respondent established that Zelinsky's service in the car-washing department began on April 3, 1935, whereas Green's service in that department dated from May 3, 1935. Under the respondent's senior- ity policy, an employee does not carry his seniority from one depart- ment to another unless he is transferred by the management or has 5 years or more of continuous service. Green claimed that since his lay-off several men had been put to work in the car-washing department. Crews, however, stated that no men had been hired in that department or transferred to it since Green's lay-off. He admitted that on occasion he had "borrowed" help for short periods from other departments since October 1937. Evidence establishes that such "borrowing" is a regular practice, since it frequently happens that a particular department may be rushed for a short period. This practice was in effect prior to Green's lay-off, and according to the respondent's records relating to the SWIFT AND COMPANY ET AL. 831 car-washing department, the average weekly man-hours "borrowed" by that department decreased, with the exception of the weeks around Thanksgiving and-Christmas, after the middle of October 1937. John J. Wojtczuk was first employed by the respondent on October 9, 1935, and worked until December 28, 1935. His employment rec- ord shows two short periods of employment during the summer of 1936. His last steady employment, as a laborer in the beef cooler, was from August 21, 1936, to December 31, 1937, on which date he was laid off allegedly because of lack of work. Wojtczuk joined the Union on May 6, 1937, served as steward and committeeman, and was active in union affairs. Wojtczuk was laid off at the same time as three other employees, Thomas, Benoit, and Al Childress. Wojtczuk admitted that he was laid off in order of seniority, but claims that Thomas, who had less seniority, was hired in the beef-casing department shortly after January 1, 1938, and, after working in that department 2 days, was transferred to the beef cooler, where he is still employed. Wojtczuk admitted he was not at the plant the day Thomas was hired for the beef-casing department. Wojtczuk also testified that about 3 days after he was laid off two employees, Hartman and Smith, were transferred from beef cutting to the beef cooler. Wojtczuk stated that a day or two after this transfer he protested to Thompson, who allegedly replied, "Well, we lay them off according to seniority but ... we don't make any agreement to hire them by their seniority." Dare, the foreman, testified that he told Wojtczuk that he would put him back on when the opportunity occurred, and that had Wojtczuk been in the lobby when he, Dare, went out to look for men, he might have hired Wojtczuk instead of borrowing Thomas from, the beef-casing department. J. R. Irvin, general foreman of the beef-casing department, testified that he had to borrow two men and hire another on January 3 as he had a large order which had to go out. Thomas was in the lobby and Irvin picked him, although he did not know Thomas by name. Thomas worked a few days and then was borrowed by Dare, and later transferred to the beef cooler. There is no evidence that new men were hired for the beef cooler shortly after December 31, 1937, when Wojtczuk was laid off. Thomas was hired only for temporary work in the beef-casing department and later transferred to the beef cooler. Hartman and Smith were not transferred to the beef cooler but worked there only a few days be- cause of a particular rush order. Concerning the respondent's policy regarding hiring, Thompson testified that the respondent attempts to rehire former employees, but does not observe seniority in so doing. When men are needed, it is the practice to pick them from the ap- 832 DECISIONS Or NATIONAL LABOR RELATIONS BOARD plicants in the lobby, rather than to send for former employees. Only in cases where considerable skill is required does the respondent send for former employees. Louis V. Alvey entered the respondent's employ December 3, 1918. His last steady employment, with the exception of a short lay-off and absences 'due to illness, dates from November 23, 1922. Since 1930 he worked in the pork offal department as a liver trimmer. He was laid off July 9, 1937, when through a general reduction in force in his department two gangs were combined into one. Alvey joined the Union in April 1937„ but it does not appear that he was partic- ularly active in union affairs. On the day the gang was reduced, the foreman, Howard, told Alvey to see Thompson. Thompson, so Alvey testified, told him that he was being laid off but that the respondent would carry him on the pay roll for 14 weeks on half time and he would be put back to work when the gang was increased. The half-time pay, Alvey testi- fied, was to be deducted from his pension allowance. On the follow- ing day, Alvey saw Thompson again, and was informed that he would be given an immediate advance of 4 weeks' full pay in addition to the half-time pay for 14 weeks. When the force was increased in August, Alvey went to see Thompson about a job and was told there was nothing for him as he was on the retired list. The respondent asserted that Alvey was laid off because his physical condition was such that he could not perform any duties that re- mained after the general reduction in his department. The evidence is undisputed that when Alvey first entered the respondent's employ he had a hernia, which prevented him from being approved for insurance by the respondent's doctor. However, on the recommenda- tion of Zwicky's predecessor, Alvey was retained in the service al- though he was ineligible for insurance. Alvey admitted that he had asthma, which caused him to leave his job frequently for a few moments to secure temporary relief, and that because of his hernia condition he would not risk doing certain types of work. According to the respondent's records, in 1932 he was examined for an operation, but the doctor concluded the hernia condition was too old for operation. The record shows that the respondent paid Alvey a dismissal allowance in installments totaling $363.73, equal to 142/3 weeks' wages based on 40 hours per week at 62 cents an hour, or 1 week's wages for each year of continuous service. As noted above, Alvey had con- tinuous service dating from November 23, 1922. Since Alvey's last employment began in 1922, when he was 41 years of age, he had no right to a pension.'8 ' It appears that the respondent's employees are entitled to a pension at 65, provided they have 25 years of continuous service begun before they reached the age of 40. SWIFT AND COMPANY ET AL. 833 Antonia Czaicka had worked for the respondent since 1922, and about 51/2 years in the pork-trimming department prior to her lay-off on July 2, 1937. She had the most seniority of any of the women in the group laid off at the same time because of a general reduction in the force. She joined the Union in April 1937, but was not par- ticularly active in union affairs. Mrs. Czaicka testified that when she was laid off eight women, whom she named, were not laid off although each of them had less seniority. Mrs. Czaicka was reemployed on January 15, 1938, and worked 2 weeks when she and three others, who were also hired on January 15, were laid off. Mrs. Czaicka stated that before the July 2 lay-off there were about 25 women in the pork-trimming department, whereas on January 15, when she returned, there were over 30. Charles Brady, general foreman of the fresh-pork department, testified that when the pork-trimming department was to be reduced from a force of 32 or 33 to about 15, he personally determined who was to be laid off by consulting the seniority records. He prepared a list of 15 employees who were to be laid off. Originally, Mrs. Czaicka's name was not on the list. However, shortly before the lay-off was announced, two women from the pork-trimming depart- ment came to him and pleaded that they be retained because of illness in the family and for other similar reasons. He and Thomp- son, after investigating both cases, determined to retain both of these women, although they had less seniority than Mrs. Czaicka. Brady and Thompson testified they determined that Mis. Czaicka's husband was working, and therefore concluded she could get along without her job whereas the other two women could not. Upon the retention of these two, Mrs. Czaicka's name was placed upon the list of those to be laid off. As to the other six women whom Mrs. Czaicka claimed were retained although they had less seniority than she had, Brady testi- fied that two were transferred to the sliced-bacon department because they were qualified for that work and Mrs. Czaicka was not; another, Florence Perkins, had been a dressing-room matron since June 5, 1937, and was no longer considered a member of the pork-trimming department; Mary Coval was working in the sweet-pickle cellars, having been transferred to that department sometime prior to July 2; Stella Dee was laid off on July 2; and Rose Thomen had greater seniority than Mrs. Czaicka, and was consequently retained. Brady also stated three other women were laid off the week following July 2, when the force was further reduced, although these three were reemployed in the latter part of July. Thompson testified that he had approved the retention of the two women of less seniority than Mrs. Czaicka on the ground that they were in greater need than she. He further stated that the re- 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's seniority policy was not strictly applied to married women, in that the respondent would lay off a married woman with other means of support rather than a single woman of less seniority who had no other means of support. While this limitation on the sen- iority policy does not appear in the written statement thereof which was introduced in evidence, Thompson stated on cross-examination that he had advised many employees of that fact and that the limitation had been in force for a long period of time. Clement Goebel had worked irregularly for the respondent since August 1936. His last hiring prior to his lay-off on September 24, 1937, was on May 10, 1937, as a laborer in the car-washing depart- ment. Since his lay-off on September 24, Goebel has been hired and laid off five times as a laborer in the hog cooler, his total em- ployment since the September 24 lay-off amounting to about 75 or 80 days. The complaint alleged that Goebel was discriminatorily laid off on September 24. Goebel joined the Union about a week before the labor demonstration on June 21, in which he took part, but aside from that it does not appear that he was particularly active in union affairs. Goebel testified that his foreman, Crews, during the latter part of July or the first part of August asked him if he had as yet joined the E. P. A., and when Crews came back from his vacation he told Goebel that had he stayed on the right side of the fence he might have been placed in a more desirable job. Crews denied having these conver- sations with Goebel. The day after the labor demonstration two colored men, who had been hired the day before for the car-washing department, were assigned to work with the men in that department, some of whom had participated in the labor holiday. These men, including Goebel, had been reported to Crews as protesting against working with "scabs." Thereupon Crews and Thompson told them that if they did not wish to work with the new men, the respondent would hire someone who would. With that the incident closed and the employees returned to work. Goebel claimed that he frequently helped out in the car-icing department during rush periods, although he admitted that about 75 per cent of his time was spent in the car-washing department. However, when he was laid off on September 24 five men were re- tained in the car-icing gang who had been employed after he began work in the car-washing department in May. Goebel also claimed that one of these five was transferred to the car-washing department the day after he was laid off. Crews, who was foreman of both the car-washing and car-icing departments at that time, testified that after September 24 no one was hired or transferred to the car-washing department, although SWIFT AND COMPANY ET AL. 835 some men were later borrowed from the car-icing department for temporary work. As to the five men whom Goebel claimed were retained in the car- icing department, Thompson testified that two were not in that de- partment at that time but were assigned to the hog cooler. The other three had been hired in May and June, after Goebel, and were laid off in October. However, Thompson testified that car icing and car washing were and always had been two separate departments. Con- sequently, Goebel's seniority was limited to the car-washing depart- ment and the fact that he was laid off when men more recently hired in the car-icing department were retained was not discriminatory. From the evidence, it appears that some employees were under the impression that car icing and car washing were one department and that employees could claim seniority in car icing although they worked in car washing, and vice versa. However, in view of the fact that employees were hired for one or the other and usually spent the bulk of their time in one type of work, and also because the respondent kept account of the man-hours borrowed by each, it seems clear that the departments were not combined. William Bates began working for the respondent in July 1933. Up to the time of the hearing he had been hired and laid off about 25 times and had worked in 6 or 7 departments. His longest period of steady employment was from June 27, 1936, until May 21, 1937, his last job during this period being that of laborer and callie sawer in the pork-cutting department from December 22, 1936, to May 21, 1937. On May 29, 1937, he returned to work as a laborer in the sweet- pickle department and was laid off June 25, 1937. On July 1 he worked 1 day as a laborer in the trim-loading department. From August 26 to September 10, and October 20 to February 8, 1938, he worked as a laborer and callie Bawer in the pork-cutting department. He returned to that job on February 23, the day before he testified at the hearing. The complaint, as amended, alleged that Bates was laid off on May 21, 1937, because of union activity, and although lie had been employed since then, the respondent had refused to rein- state him to steady employment in his former position. Bates joined the Union the latter part of April or first part of May 1937, and took part in the labor demonstration on June 21. During July and August Bates unsuccessfully sought employment on frequent occasions. Once he saw Miller, foreman of the beef cooler, who said he had tried to get Bates back to work without suc- cess, but that Bates should not tell anyone because he, Miller, would "catch the devil about it." About 2 weeks before he returned to work on August 26, Bates saw Kent and asked him "what have they against me in the office." Kent, according to Bates, replied "I don't know, 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wait a minute," and after stepping into the office returned and said, "It seems to me you are in some kind of trouble, I am not going to hire you; seems you have got mixed up in some bad company, but, if you get on the right side of the fence you might be working." Bates testified that his father, who had been employed by the respond- ent for about 25 years, was present during this conversation and, when asked by Kent, agreed that Kent's statement was correct. Two or three days later Bates again saw Kent, who told him "don't lose hope." A day or so after this last encounter with Kent, Bates informed Thompson that Kent had said he, Bates, might be working if he were on the right side of the fence. Thompson called in Kent and Bates reiterated the statement he had attributed to Kent when speaking to Thompson. Kent told Bates he was a "damn liar" and denied having made the statement. That evening Bates' father brought a message that Kent wished to see him. Kent wanted to know what Bates meant by attributing the remarks to him; that he, Kent, was only trying to help Bates. Following this, Bates, in company with Belmen, the president of the Union, went to see Zwicky. Behnen presented Bates' case and mentioned the "right side of the fence" remark made by Kent. Zwicky called Kent and Thompson into his office and had Bates reiterate the statement. Kent denied having made it, whereupon Bates said he had a witness although he was reluctant to produce him. Upon being assured by Zwicky that the witness would not be prejudiced, Bates said his father had witnessed the conversation. Bates, Sr., was called in, and after first stating he would rather not have anything to do with the matter, said he had seen Kent talking to his son, but if Kent made the statement, he Bates, Sr., had not heard it. The day following this meeting in Zwicky's office Bates again saw Kent. Kent allegedly told Bates "you come darn near getting me fired yesterday." After some further conversation, so Bates testi- fied, Kent asked him to go into the office and change his statement, and both went to Thompson's office and Bates told Thompson that he had lied about Kent. Within a few minutes after this retraction, Bates was put to work in the pork-cutting department. On the witness stand Bates testified that Kent had made the statement, but because he felt sorry for Kent and because "he talked to me darn nice," Bates changed his statement. Kent denied telling Bates he might have a job if he were on the right side of the fence, and asserted Bates, Sr., was not more than 3 feet away during the entire conversation. Kent admitted that he had been called in by Thompson and also by Zwicky and asked A out the statement Bates claimed he had made. His version of what hap- SWIFT AND COMPANY ET AL. 837 pened in Zwicky's office when Bates, S;r., was called in corroborates the testimony of Bates. Kent testified that after the meeting in Zwicky's office Bates came to him and said he was sorry he had lied about Kent, whereupon Kent said "forget about it." Kent de- nied he went with Bates to Thompson's office on that occasion. Thompson corroborated Bates and Kent concerning the incident in Zwicky's office. He also testified that a day or two after this meet- ing, Bates came into his office and said Kent had not made the state- ment. Thompson called Kent in, who happened to be passing through the lobby, and told him Bates had changed his statement. Behnen, the president of the Union, testified to substantially the same facts as Bates, Thompson, and Kent, in regard to the meeting in Zwicky's office. He added, however, that Zwicky said he wished to investigate Bates' case further and told Bates to come back the next day. Bates admitted that several employees were laid off in the pork- cutting department on May 21, the same date he was laid off, but he asserted that two employees, Buchek and Nelson, were retained although they had less seniority than he. Thompson testified that Buchek was laid off May 21 and not rehired until September 1, 1937. According to Thompson, who referxed to the individual service records during his testimony, Nelson's seniority in the pork-cutting department dated from March 1934. He was laid off July 2, 1937, but rehired in August. One Meeks, another employee in that depart- ment, with seniority dating from October 1935, was also laid off July 2, rehired in August, and subsequently laid off and rehired on approximately the same dates as Bates. Another employee, Janovsky, whose seniority dated from May 1933, was laid off July 16, 1937, and was subsequently laid off and rehired on about the same dates as Bates. Two employees, Kellogg and Windsor, who were laid off on May 21, were later rehired after Bates was put to work in August, and their subsequent employment corresponds closely to that of Bates. Korba, foreman of the pork-cutting department, testified that during the periods after May 21 when Bates was not employed in the pork-cutting department, no one was hired to operate the callie saw, which was the only skilled job Bates could handle. Bates admitted that his skill was confined to operating the callie saw and that when he was laid off Sokolsky, a ham trimmer, who had worked for the respondent about 25 years, operated the callie saw. Al Levinski had worked for the respondent for 51/2 years in the cooper shop at the time he was laid off July 6, 1937, allegedly because of lack of work. When he was laid off, he was working as a tight- barrel cooper. Levinski was rehired July 12 as a laborer in the house gang and worked in that capacity until September 17, 1937. On January 3, 1938, he was rehired to his former job in the cooper shop. 164275-39-vol. xi-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleged he was laid off on July 6 and refused steady employment in his former position thereafter because he had joined and assisted the Union. Levinski joined the Union April 23, 1937, and was elected sergeant at arms in May. He participated in the labor demonstration in June and was active in union affairs. Shortly after April 20, 1937, Emil Hoelscher, an employee in the machine shop who had been a representative under the Plan, in- formed the cooper-shop employees, who had been called together for that purpose by Schenk, the foreman, that the Plan was dissolved and that he was no longer their representative and also told about the new inside union that was being organized. Later Hoelscher asked Levinski and some other men in the cooper shop to join the E. P. A. However, it appears that most of the men in the cooper shop refused to join the E. P. A. and joined the C. I. O. Both Levinski and Novak, another employee in the cooper shop, testified that Schenk asked them what organization they were going to join. On July 6 Schenk told Levinski that he would have to lay him off because business was bad. Levinski objected that two employees, Adamite and Brandt, had less seniority than he. Schenk admitted that Adamite and Brandt had less seniority than Levinski, but as- serted that he decided to lay off Levinski because he was the poorest worker. On this point, Schenk testified he consulted the service records of the cooper-shop employees, to ascertain the seniority of each, but that strict seniority was not followed since in reducing the force he always laid off "the man that does the sloppiest work and poorest work." Schenk admitted he had never been given permis- sion to disregard the respondent's seniority policy, that he always determined who should be laid off on the basis of efficiency, and "If there is any little difference in the seniority, it don't make any differ- ence. You have to keep a man qualified for the job." Thompson testified he approved the lay-off of Levinski because, according to the information supplied him by Schenk, Levinski was not as efficient as the two men with less seniority who were retained. When Levinski was laid off, Schenk retained two tight-barrel coopers, Shearer and Rokito, assigned two coopers, Novak and Brandt, to labor work, kept Adamite as slack-barrel cooper, and Out- law, who had worked in the cooper shop about 20 years, as barrel washer. The men who were kept, according to Schenk, were "all around men"-"men that could do any kind of a job called upon to do." He later qualified this definition to mean that the tight-barrel coopers retained could do slack-barrel work, and the slack-barrel cooper was qualified to work on both new and second-hand slack bar- rels ; Novak and Brandt could do only a little slack-barrel work. Levinski was not as experienced on tight barrels as either Novak or SWIFT AND COMPANY ET AL. 839 Brandt. However, Levinski had worked on slack barrels as much or more than Novak and Brandt, although he was not as experienced in that work as Adamite, and until 1934, he had worked as a laborer in the shop. Both Novak and Brandt were active members of the Union, and Brandt was recording secretary. Both testified that they did very little tight-barrel coopering after the reduction in July, until business picked up in the fall; most of the time they were doing labor work or working on slack barrels. From October to December the respondent hired several men for labor work in the' cooper shop, as business picked up. On October 9, 1937, the respondent hired one Lewis as a laborer in the cooper shop. About 20 minutes after Lewis was hired Levinski, who was at the plant that day seeking employment, came to Schenk and pro- tested, saying "I thought you were a square shooter." Schenk re- plied "I am just about as square as you are." Levinski thereupon called Schenk a "God damed liar," whereupon Schenk ordered him to leave the shop or he would call the police. Schenk admitted that between July 6 and January 3, particularly after October, there was labor work in the shop that Levinski could do. However, the evi- dence shows that no one hired during this period was assigned to tight-barrel coopering, the job Levinski had before his lay-off. b. Conclusions as to the lay-offs We are of the opinion that the evidence does not sufficiently estab- lish that the respondent discriminated against Ray L. Cox, William J. Green, John J. Wojtczuk, Louis V. Alvey, Antonia Czaicka, and Clement Goebel. As to William Bates, the evidence shows that his employment over a period of years had been irregular. While we believe that Kent told Bates in August that he might be working if he were "on the right side of the fence," the evidence establishes that Bates was laid off each time in order of seniority, other employees in his department were also laid off and rehired at about the same dates as Bates, and during the periods Bates was not employed following his lay-off in May, no one was hired to do the skilled work he customarily did in the pork-cutting department. On the basis of all the evidence, we conclude that Bates was not discriminatorily laid off on May 21, 1937, and thereafter refused steady employment in his former position. With respect to Al Levinski, the evidence is not entirely free from doubt. However, it is clear that employees admittedly as active in the Union as Levinski were retained in the cooper shop after he was laid off. Moreover, although Levinski had more seniority than 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brandt and Adamite in the cooper shop as a whole, the evidence shows that both of these employees were more 'experienced than Levinski in the skilled jobs that remained after the reduction in force. From July until January, the only two regular tight-barrel coopers were Rokito and Shearer, both of whom had greater seniority than Levinski. On the basis of all the evidence, we conclude that the respondent did not discriminate against Al Levinski. We find that the respondent did not discriminate in regard to the hire and tenure of employment of Ray L. Cox, William J. Green, John J. Wojtczuk, Louis V. Alvey, Antonia Czaicka, Clement Goebel, William Bates, and Al Levinski, thereby discouraging membership in a labor organization. The complaint also alleged that the respondent had discrimina- torily laid off William E. George on August 1, 1937. The answer denied the lay-off, but alleged that George was discharged on July 10, 1937, for continually reporting late to work. No evidence was intro- duced as to George. We will, therefore, dismiss the complaint with- out prejudice in so far as it relates to William E. George. 3. The reductions in basic rate of pay a. The facts as to the reductions Frank Stancellis had been employed by the respondent at its National City plant since April 17, 1931, at various jobs in the cattle- killing department. Since December 1933 he had worked as a floors- man and fell cutter. The hourly wage rates for these two jobs, since March 1937, have been $1.06 and 76 cents, respectively. The com- plaint alleged that the basic rate of pay of Stancellis was reduced from on or about July 15, 1937, to on or about August 15, 1937, and from on or about December 20, 1937, to and including the date of the issuance of the complaint, for the reason that he had joined the Union or refused to join the E. P. A. Stancellis joined the Union April 23, 1937, but it does not appear that he was particularly active in the Union. Stancellis testified that he began wearing his C. I. O. button about July 24 or 25. At that time he had been cutting fells for several days, but testified that he was paid at the floorsman's rate, which continued until August 2, when the force was reduced. On July 25 or 26, according to Stancellis, his foreman, Tony Deering, looked at his C. I. O. button and said, "From now on you going to get paid, see, what you do," meaning that he would no longer get paid at the floorsman's rate while cutting fells. When the force was reduced in August Timkevitch remained as a floorsman, although Stancellis claimed to hold seniority over him. SWIFT AND COMPANY ET AL. 841 About 2 or 3 weeks later, when the gang was increased, he was put back on the floorsman's job and rate, which continued until December 13 or 14, when he was reduced to fell cutting at 76 cents an hour. Stancellis also testified that a week after he voted "no" on the question of inside organization, his foreman asked why he had not voted "yes," and said that an inside union was better because, "We- don't want any radical stuff, racketeers, C. I. 0. to come inside our plant." Thereupon he joined the E. P. A. Deering denied having made this statement to Stancellis, and also denied talking to him about the C. I. 0. Kent and Tony Deering testified that about July 9 the volume of cattle killed fell from 108 to about 81 per hour. Consequently Stancellis, who was not a regular floorsman but a combination floors- man and fell cutter, was reduced to fell cutting and a regular floors- man, John Syzdeki, was placed on the combination job. Timkevitch had been a regular floorsman since August 1, 1933, and business had never dropped to a point where it was necessary to reduce him. The burden of Stancellis' complaint seems to be that when he was assigned to fell cutting he was not paid floorsman's wages, contrary to the practice which he claimed had existed prior to July 1937. In this connection, he testified on cross-examination as follows : Q. You are now kicking because you are working as a fell cutter and they are not paying you the floorsman rate, is that it? A. Yes. Q. That is what you are kicking about? A. Yes, sir. Stancellis admitted that during prior slack periods he had been paid the fell-cutting rate when doing that work, but claimed that since 1933 he had gotten the floorsman rate "almost all the time" no matter what he did, although he was unable to give any definite date when he had been paid the higher rate for cutting fells. The facts are undisputed that when the cattle-killing rate increased in August, Stancellis worked as a floorsman and was paid the rate applicable to that job. Julius Pochek began working for the respondent in 1931. In March 1934 he was first given work as a calf skinner. Although after September 1934 he was listed as having a split rate, from June 1936 to December 1937 he was paid the rate applicable to calf skin- ning. The complaint alleged Pochek's basic rate of pay was reduced December 20, 1937, because he had joined and assisted the Union or refused to join the E. P. A. Pochek joined the Union April 23,1937, and took an active part in the labor demonstration in June. Pochek testified that "after the C. I. 0. business started, why, when- ever they would have any labor work they would pick on me." How- 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, he admitted, and the record of his earnings establishes, that between the time he joined the Union in April and December 1937, he was paid the calf-skinning rate for all hours worked, with the exception of 61/2 hours at the laborer's rate during the week ending July 30. In December he was put to work in the cattle-killing department, at 62 cents an hour, and did not work as a calf skinner thereafter. Pochek testified that he was transferred, and that two men with less seniority, Casey and Benedict, remained as calf skinners. Kent testified that Pochek was loaned, not transferred, to the cattle- killing department with the understanding he would go back to the calf-skinning gang when that work picked up. Because the transfer was temporary, his rates on the service record continued to be listed as 60 and 801/2 cents. However, his weekly pay at these two rates was so arranged that his earnings equalled 62 cents a hour, the rate applicable to the work he was doing. At other periods of low volume Pochek had been sent to the cattle gang. However, neither Benedict nor Casey had been demoted during such periods, and consequently in December they were retained because they had more hours to their credit as calf skinners. Kent admitted, however, that Casey had started as a calf skinner after Pochek, but in point of total hours worked at that job he had more seniority than Pochek. No new men were assigned calf-skinning work after December, when Pochek was temporarily assigned to the cattle-killing department. William Pochek began working for the respondent in September 1929, and with the exception of about 4 days in August 1936, worked steadily since June 1930. In February 1934 he became a regular calf skinner, a job requiring a certain amount of skill, which position he held until December 1936, when he was transferred to the cattle-kill- ing gang because calf killing fell off. During the spring of 1937 he skinned calves during rush periods, but not regularly. The com- plaint alleged that Pochek's basic rate of pay had been reduced in May 1937, to and including thq date of the issuance of the complaint, for the reason that he had joined and assisted the Union and refused to join the E. P. A. Pochek, a very active union member, joined the Union April 23, 1937, and served as financial secretary. Shortly after the dissolution of the Plan John Podwojski, sn employee in the beef-killing department, asked Pochek to vote on the question of the inside organization. Pochek voted "no," and Pod- wojski recorded his vote on a sheet of paper on which was listed the names and check numbers of the employees in the beef-killing and sheep-killing departments. The day following this vote, Tony Deer- ing, the foreman in the beef-killing department, allegedly told Pochek, "I see you voted `no' yesterday . . . If you want to, you can SWIFT AND COMPANY ET AL. 843 change it . . . I will send Johnny [Podwojski] around to you and you can tell him what you want to do about it." The same afternoon Podwojski came back, but Pochek told him to "leave that vote stand just the way it is." Deering denied having this or any similar con- versation with Pochek. Pochek testified that a few days before the vote was taken, Tony Deering told him, that "from now on, no matter what you do, your pay will be calf skinner's rate," which was 801/2 cents. Pochek was at that time listed as having a split rate of 60 cents and 801/2 cents per hour, for labor and calf skinning. Pochek asserted that about the last week in April, after the vote was taken, he was reduced to 621/ cents an hour and transferred to the sheep-killing department. At that time Kent told him the transfer was made because of slack work. Kent also said, "I don't give a damn whether you belong to the C. I. O. or A. F. of L. It don't make any difference to me.... and as soon as things pick up in the cattle kill, I will put you on a better paying job." Pochek asked to be transferred to the calf cooler, but Kent said that could not be done as he had the least seniority there because when he had quit in August 1936 and been off for several days his seniority had been broken. Pochek had quit in August 1936, but returned to work in a few days. He claimed that he returned with the understanding that his break in seniority had been bridged. However, the respondent's wit- nesses testified that the break in service had been bridged only in order to allow Pochek to have 2 weeks' vacation, which required at least 5 years of continuous service. His service record, a copy of which was introduced in evidence, shows that opposite the date he returned in August 1936 a notation had been made "agree to close for vacation," followed by the initials of Zwicky. The employment manager, Ragsdale, who was called as a witness by the Board, testi- fied that according to the record, Pochek's seniority began August 25, 1936, the day he returned after having quit. Kent testified that Pochek was junior to all employees in the calf-skinning gang when he was transferred to the cattle-killing department in December 1936. The respondent's service record for Pochek, a copy of which was introduced in evidence, shows that from March 13 to April 24, 1937, Pochek had been employed in the cattle-killing department at a split rate of 60 cents and 801/2 cents per hour, for labor and calf skinning. On April 24 his rate was changed to 62 cents and 801/2 cents per hour, for breaking joints and calf skinning. On May 1 he was transferred to the sheep-killing department, but his hourly rate, apparently, remained at 62 cents and 801/2 cents. From March 12 to April 23, 1937, he had been paid 801/2 cents per hour for all hours worked, as shown by the respondent's records of his weekly earnings. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, after April 23, his weekly earnings record shows he was paid at a rate of 62 cents per hour, until December 11, 1937, with the exception of several weeks when he was paid 801/2 cents for part of the total hours worked. At no time in 1937 did Pochek go back to skinning calves regularly, but he did that work during rush periods only. Pochek testified, however, that up to April 24, 1937, "when I was on the job they paid 62 cents an hour, . . . I would make more money than 62 cents." Counsel for the respondent thereupon asked Pochek, "When they finally caught up with that and started paying you for what you were actually doing, you didn't like it, is that right ... ?" Pochek replied he did not. After April 24, Pochek admitted that he was paid the applicable rate for the work he was doing. It appears, therefore, that during March and April 1937, Pochek was paid at a rate in excess of the rate applicable to the work he was doing. b. Conclusions as to the reductions We conclude that the record does not establish that the respondent discriminatorily reduced the basic rate of pay of Frank Stancellis, Julius Pochek, and William Pochek. We find that the respondent did not discriminate in regard to the hire and tenure of these em- ployees, as alleged in the complaint, thereby discouraging member- ship in a labor organization. The complaint also alleged that the respondent discriminatorily reduced the basic rate of pay of Earl Bailey from on or about July 10, 1937, to on or about January 1, 1938. The answer denied that Bailey's basic rate of pay had been so reduced. No evidence was introduced with respect to Bailey. We will, therefore, dismiss the complaint without prejudice in so far as it relates to Earl Bailey. 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 re- spondent 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 At the oral argument counsel for the respondent contended that the issue concerning the respondent's domination and support of the E. P. A. was moot, for the reason that the E. P. A. had voluntarily disbanded subsequent to the issuance of the Intermediate Report. SWIFT AND COMPANY ET AL. 845 In its petition to reopen, filed July 1, 1938, the respondent alleged that on or about June 1, 1938, it had been notified of the voluntary dissolution of the E. P. A. and that pursuant to such notice it had caused to be posted, on June 4, 1938, its own notice stating that the action taken by the E. P. A. "automatically disestablishes it as the representative of the employees . . . and accordingly all recognition of the Employes Protective Association is withdrawn." 14 As stated above, the Board denied the petition to reopen on October 31, 1938. The voluntary dissolution of the E. P. A. has no effect upon the foregoing findings of fact with respect to the respondent' s domina- tion, interference, and support of the E. P. A. The fact that the E. P. A. is no longer in existence is relevant only on the question whether the respondent should be ordered to disestablish the organi- zation 15 We shall, therefore, order the respondent to cease and de- sist from interfering with, restraining, and coercing its employees in the exercise of their right of self-organization , and to refuse to give the E. P. A. any recognition as a collective bargaining agency, if it should ever return to active existence under its present form and name, or any other. However, since it appears that the E. P. A. has been dissolved by its voluntary action, we shall not require the respondent to disestablish the organization. We have also found that the respondent has not discriminated in regard to the hire and tenure of employment of employees named in the complaint, thereby discouraging membership in a labor organ- ization. We shall, therefore, dismiss this portion of the complaint. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local No. 530, United Packing House Workers Industrial Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. Employes Protective Association of Swift and Company is a labor organization within the meaning of Section 2 (5) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of 14 The petition to reopen the case incorporated as a part thereof a copy of a letter from the chairman in charge of the final business of the E. P. A., notifying the respondent of dissolution . This letter stated that at a meeting of the E. P. A. held May 17, 1938, there was considerable discussion as to the advisability of disestablishing the organization. In view of the Intermediate Report, "the majority of those present were inclined to believe that the order to disestablish would be upheld," and as a result, the motion to disestab- lish carried. ii Cf. Consolidated Edison Company of New York v National Labor Relations Board, 59 S. Ct. 206; Matter of Yates-American Machine Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1787, 7 N. L. R. B. 627; Matter of American Manufacturing Company, Inc. and International Association of Machinists, Local Union No. 794 7 N. L. R. B. 375. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The respondent, by dominating and interfering with the forma- tion and administration of Employes Protective Association of Swift and Company, and by contributing support to said organization, has engaged in unfair labor practices, within the meaning of Sec- tion 8 (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Swift and Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist : (a) From in any manner dominating or interfering with the administration of Employes Protective Association of Swift and Company, or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Employes Protective Association of Swift and Company or to any other labor organization of its employees; (b) From in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Refrain from recognizing Employes Protective Association of Swift and Company as a representative of any of its employees for the purposes of dealing with it with respect to grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Immediately post notices in conspicuous places throughout its National City, Illinois, plant and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent SWIFT AND COMPANY ET AL. 847 will cease and desist in the manner set forth in 1 (a) and (b), and that it will take the affirmative action set forth in 2 (a), of this Order ; (c) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, by discharging and refusing to reinstate Richard Shields, Alex A. Warchol, Edell Mann, and Joseph John Olszewski, by laying off Ray L. Cox, William J. Green, John J. Wojtczuk, Louis V. Alvey, Antonia Czaicka, Clement Goebel, Wil- liam Bates, and Al Levinski, and by reducing the basic rate of pay of Frank Stancellis, Julius Pochek, and William Pochek, be, and the same hereby is, dismissed. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to Robert Phillip, William E. George, and Earl Bailey, be, and the same hereby is, dis- missed without prejudice.