Tovrea Packing Company, a Corporation

In the Matter of TOVREA PACKING COMPANY , A CORPORATION and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 313 Case No. C-622.-Decided May 18, 1939 Meat Packing Industry-Interference, Restraint, and Coercion: anti-union statements and activity by supervisory employees-Company-Dominated Union: reorganization of admittedly company-dominated union coinciding with drive of outside union ; supervisory officials resign from office in inside union but select successor ; continued interest of supervisors in inside union; promise to recognize inside union as exclusive bargaining agent by company prior to its complete reorganization ; reorganization of inside union a subterfuge to forestall organization of outside union ; favoritism of inside union as contrasted with expressed opposition to outside anion ; disestablishment of and abrogation of contract with company-dominated union-Employee Status: agricultural la- borer ; individuals employed by meat-packing company to feed and care for cattle held in feed lots adjacent to packing plant, where majority of cattle so cared for are processed by company, held not agricultural laborers-Labor Organization : defined ; committee chosen by employees for purpose of dealing with employer concerning rates of pay as-Discrimination : discharge of em- ployee for acting on employee committee to obtain increase in wages, discourag- ing membership in a labor organization ; discharge and lay-off of employees for joining and acting on behalf of outside union; charges of, dismissed as to some employees-Reinstatement-Back Pay: awarded-Collective Bargaining: charges of refusal to, dismissed ; unit consisting of only part of plant unit held inappro- priate, plant functioned as integrated unit, drive for membership on plant-wide basis, no showing of craft or functional differences in unit claimed appropriate. Mr. David Persinger, for the Board. Ellimwood c Ross, by Mr. Denison Kitcltel and Mr. William A. Evans, of Phoenix, Ariz., for the respondent. Mr. Jesse Palmer, of Phoenix, Ariz., for the Union. Mr. Harold L. Divelbess, of Phoenix, Ariz., for the Association. Mr. Allan Lind, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 12 N. L. It. B., No. 106. 1063 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 313,1 herein called Local 313, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty- first Region (Los Angeles, California), issued its complaint dated February 24, 1938, against Tovrea Packing Company, Phoenix, Arizona, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the accom- panying notice of hearing were duly served upon the respondent, upon Local 313, and upon the Tovrea Employees' Association, herein called the Association, a labor organization. On March 4, 1938, the Association filed a motion to intervene in this proceeding, and on March 9 the motion was granted by the Regional Director. The complaint alleged, in substance, (1) that the respondent did discharge and refuse to reinstate 27 named individuals for the reason that each of them joined and assisted Local 313 or Local 448 and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection; (2) that by such acts respondent discriminated against each of the named individuals in regard to their hire and tenure of employment, and by so doing the respondent was and is discouraging membership in a labor organization; (3) that the respondent, subsequent to January 1, 1938, did dominate and interfere with the formation and adminis- tration of the Association; (4) that the respondent on January 24, 1938, and thereafter did refuse to bargain with Local 448 which had been duly designated as the bargaining agent of a majority of the respondent's employees in an appropriate unit; and (5) that the fore- going activities of the respondent constituted unfair labor practices within the meaning of Section 8 (1), (2), (3), and (5) of the Act. The respondent in its verified answer, dated March 10, 1938, denied that it had engaged in any unfair labor practices, and further alleged that all but 4 of the 27 named individuals were employed as "agri- cultural laborers" at the time of their severance from the respondent's pay roll, within the meaning of Section 2 (3) of the Act and are, therefore, exempt from the jurisdiction of the Board. Pursuant to an amended notice, a hearing was held in Phoenix, Arizona, on March 14, 15, 16, 17, and 18, 1938, before Jesse E. Jacob- son, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Association were represented by counsel. Local 313 and Local 448 appeared by its representative. Full oppor- 1 At the hearing the complaint was amended without objection to show that Local No. 448 of the Amalgamated Meat Cutters and Butcher Workmen of North America , herein called Local 448, was also a party to the proceeding. TOVREA PACKING COMPANY 1065 tunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing counsel for the Board moved to amend the complaint so as to include the names of Clyde Williams and Afton Wilson as having been discharged on December 1, 1937, and to include the name of D. B. McCarty as having been discharged on November 30, 1937, and to further amend the complaint to change the date of the discharge of Woodrow Wilson from November 15 to November 29, 1937. The Board's counsel also moved to dismiss the complaint without prejudice as to N. Gregson, Columbus Still, Her- man Schindler, Henry T. Romo, and Tom Overly. There being no objections, the motions were granted by the Trial Examiner. These rulings are hereby affirmed. At the conclusion of the Board's case and at the conclusion of the entire proceeding, counsel for the respondent moved to dismiss the complaint as to all the remaining named individuals, except James Allred and Fred Bledsoe, on the grounds, that such individuals were "agricultural laborers"; that there was no evidence to show that the alleged unfair labor practices have led or tend to lead to a labor dispute burdening or obstructing commerce; and that any jurisdic- tion attempted to be exercised by the Board in this proceeding would be in contravention of the Tenth Amendment of the Constitution of the United States of America. These motions were denied by the Trial Examiner. These rulings are hereby affirmed. During the course of the hearing other rulings were made by the Trial Examiner on mo- tions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. The rulings are hereby affirmed. On May 11, 1938, the Trial Examiner filed his Intermediate Report finding that the respondent had engaged in and was engaging in un- fair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommending that the Board, issue a cease and desist order restraining the respondent from certain unfair labor practices; order the respondent to reinstate 23 named individuals; and order the respondent to disestablish the Asso- ciation as a bargaining agent for its employees. With regard to the alleged violation of Section 8 (5) of the Act, the Trial Examiner found the unit stated in the complaint as amended at the hearing to be inappropriate for the purposes of collective bargaining and, there- fore, recommended the dismissal of the charge. Exceptions to the Intermediate Report and a brief were thereafter filed by the respondent. On August 9, 1938, pursuant to a request by the respondent, oral argument was had before the Board, at Wash- ington, D. C. The respondent and Locals 313 and 448 were repre- 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented at the oral argument. Thereafter the representative of the unions submitted a brief in support of the Trial Examiner's findings. The Board has duly considered the exceptions to the Intermediate Report, the briefs filed by the respondent and the unions, and the oral arguments made before it. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE RESPONDENT Tovrea Packing Company is an Arizona corporation engaged chiefly in the purchase, feeding, and slaughtering of livestock, and the proc- essing and marketing of the products therefrom. During the years 1936 and 1937, the respondent purchased raw materials , other than livestock, valued at $1,423,668.10, of which 18 per cent were shipped from points outside the State of Arizona. During the same years, the respondent purchased 239,997 head of livestock from the ranges and feed lots of Arizona, New Mexico, Texas, and Oklahoma at a cost of $6,098,459.17, of which 38 per cent were shipped from States other than the State of Arizona. Also for 1936 and 1937 the respond- ent sold, processed, and manufactured products valued at $9,587,- 019.259 of which 28 per cent were shipped to points outside the State of Arizona. II. THE ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, Local Nos. 313 and 448, are labor organizations affiliated with the American Federation of Labor. Local No. 313 is known as the stock- handlers division of the union, admitting to its membership the feed lot and feed mill employees of the respondent. Local No. 448 admits to membership all packing-house employees of the respondent, ex- cluding supervisory employees, clerical help, and truck drivers. Tovrea Employees' Association is an unaffiliated labor organization, admitting to membership the respondent's employees, excluding feed lot and feed mill employees, and supervisory employees having the authority to hire and discharge. III. "AGRICULTURAL LABORER" The present controversy concerns the respondent's employees engaged in the feeding of cattle and in the preparation of feed at the respondent's feed lots and feed mill. The respondent contends that these workers are agricultural laborers and therefore not "employees" within the meaning of Section 2 (3) of the Act. With reference to this contention we shall briefly describe the work of the employees and the operations of the respondent. TOVREA PACKING COMPANY 1067 Eight or nine of the employees herein involved were working at the respondent's feed mill located on the respondent's property next to its packing plant. The feed-mill employees were engaged in the grinding of hay and grain, and the mixing of hegira ensilage, chopped hay, grain, cottonseed meal, and molasses, by machines or by hand. When the feed is mixed it is loaded on trucks or wagons and distributed by the feed lot employees to the cattle. The chief task of the feed lot employees is the hauling and dis- tribution of feed by wagon or motor truck to the cattle held in the feed lot pens. In some sections the wagons are pulled by tractors instead of teams. The feed lot employees also clean out the feed and water troughs, gather up the manure, stack hay, repair fences, and doctor sick cattle. The respondent employs from 12 to 30 feed lot employees. The evidence which was submitted by the respondent at the hearing shows that the cattle fed by the feed lot employees are obtained full grown from ranches and ranges in Arizona, New Mexico, Texas, and Oklahoma. They are held for fattening in the respondent's feed pens for periods from 30 days to 6 months, depending upon their condition when received. After the fattening process, most of the cattle are transferred to the respondent's retaining pens ready for the slaughtering process at the respondent's plant. In 1936 approxi- mately 60 per cent of the cattle fattened in the respondent's feed lots adjacent to its plant were slaughtered and processed at its packing plant, while 40 per cent were shipped to the market for sale. In 1937 approximately 54 per cent of the cattle slaughtered and processed at the respondent's plant came from its feed lots, while 46 per cent came from outside sources. The respondent contended that the feed lots were maintained independently from its packing plant. In view of the evidence above and in view of the fact that both the feed lots and packing- plant operations are controlled and directed by W. L. Bainbridge,, respondent's general manager and vice president, it is hardly con- ceivable that such is the case. A more logical conclusion is that the feed lots and feed mill are maintained as an incident to and as a part of the packing-house operations of the respondent, and we so. find. In support of its contention that the feed mill and lot employees are agricultural laborers, the respondent produced as witnesses a number of ranchers who testified, substantially, that the work done by laborers on their ranches was identical to the work done by the feed lot and feed mill employees of the respondent. The respondent also proffered the opinion of Dr. E. L. Scott, livestock manager for Western Managed Farms Company, and a duly qualified expert in agricultural matters, to the effect that the respondent's employees in 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the feed lots and feed mill are engaged in the feeding and mainte- nance of livestock and should be classified as agricultural laborers. While the raising, feeding, and management of livestock is nor- mally agricultural in nature, the determination of whether or not the feed lot and feed mill employees of the.respondent are engaged as "agricultural laborers" within the meaning of the Act is not easy. Under modern conditions, industry and agriculture so shade into each other that it is often difficult to draw the line dividing them. We are aided somewhat in this decision by considering the decisions of other Federal agencies. The term "agricultural labor" as used in the Social Security Act z has been defined by the Treasury Department, Bureau of Internal Revenue, and the Social Security Board. We have already had occa- sion to examine those rulings in two of our previous decisions.3 Such rulings may be summarized in the proposition that employees are not "agricultural laborers" unless (1) they are employed by the owner or a tenant of a farm on which the products in their raw or natural state are produced, and (2) unless such employees are engaged in work that is carried on as an incident to or in connection with ordi- nary farming operations as distinguished from manufacturing or commercial operations. The fact that part of the respondent's operations are similar to certain of those which are performed on ranches' does not make the respondent a rancher in the ordinary sense of that word. Since the respondent performs only the final step in the whole process of raising cattle, it is not to be classified as the owner or tenant of a ranch on which the products in their raw or natural state are pro- duced. Furthermore, the work done by the feed lot and feed mill employees is, on the whole, incidental to the commercial activities of the respondent carried on at its packing plant, rather than inci- dental to ranching operations. Under all the circumstances of the case we conclude that the persons employed by the respondent in its feed lots and feed mill adjacent to its packing house are not employed as "agricultural laborers" within the meaning of Section 2 (3) of the Act. 9 It is significant to note that both the respondent and its feed lot and feed mill employees contribute to the payment of the Social Security tax. S See Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Union, Local No t1091, 10 N L R B 1269; Matter of American Fruit Grow- ers, Inc., et at. and Fruit & Vegetable Workers Sub-Local of #191, UCAPAWA, C. 1. 0., 10 N. L. R. B 316. ' The term "farm," as used in the regulations of the Treasury Department, embraces the farm in the ordinary accepted sense, and includes ranches. TOV"IEA PACKING COIIPAN Y IV. THE 'UNFAIR LABOR PRACTICES A. The discharges 1. Bond B. Henry 1069 In October 1937 the rates of wages in force in the feed lots and feed mill were 25 cents per hour for the first 6 months of employ- ment and 30 cents per hour thereafter. The hours were 9 a day and •63 a week. The employees were becoming dissatisfied with these -conditions and there is some indication in the record that a strike was being contemplated. On October 24, 1937, Bond B. Henry, an employee in the feed lots, was asked by Walter LeBarron, foreman of the feed lots and mill, if the men were talking of striking. Henry denied any knowledge of a strike, but did state to LeBarron that the men were dissatisfied with the rate of pay they were receiving. LeBarron then suggested that Henry call a meeting of all the employees in the feed lot to select a committee to meet with W. L. Bainbridge, general manager, or Phillip Tovrea, president of the respondent, for the purpose of securing better pay. On October 25, pursuant to the suggestion, a group of employees met and nominated Henry, Cline, another em- ployee in the feed lot, and LeBarron as a committee of three to meet with the management. LeBarron, on being notified of his selection, stated that he would go up to the office and get an appointment with the management. Later in the afternoon on the same day, Cline came to Henry and stated that he had talked with LeBarron and both of them had thought that while it would be all right to ask the management for an advance in pay for the employees who drove the teams and had charge of the cattle, it would not be advisable to ask for a general wage increase. Henry stated his conviction that such a proposal would not be fair to the other employees in the feed lots and made a counter suggestion to the effect that the committee should ask for a 10 cents an, hour raise for all the employees in the feed lots. Noth- ing more was said at that time. The following day at noon time, Cline approached Henry and stated that he had heard that there was a report up in the office that "we were going to have a strike and if we went up to the office we would all get canned," and that, therefore, he was withdrawing from the committee. At the end of the day, Henry was discharged by LeBarron. The reason given for the discharge was that he was not giving the cattle enough feed. Henry denied that he had failed to give the cattle enough feed and told LeBarron that he did not think that that was the reason. LeBarron refused to state any other reason, 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD saying, "I'll tell you, Bond. I am on the spot. I cannot talk. I have got to make a go of this." The reason advanced by LeBarron for Henry's discharge does not seem plausible in view of the following facts. Henry had been em- ployed by the respondent for more than a year prior to his discharge while the average length of employment in the respondent's feed lot was but 3 months. During Henry's employment no complaints had been made of his work. From these two facts we conclude that he had proved to be a satisfactory employee. From the testimony showing that Cline, who apparently was in close contact with LeBarron, had resigned as a member of the com- mittee for fear of being discharged; the implausible reason for Henry's discharge given by LeBarron; the language used by Le- Barron when pressed by Henry for a more logical reason for his discharge, we conclude that Henry's activities on behalf of the em- ployees for a raise in wages were the real reason for his discharge. We therefore find that Bond Henry was discharged because of his active leadership of the employees in their demands for higher wages. Section 2 (5) of the Act defines the term "labor organization" as meaning "any organization of any kind, or any agency or any employee representation committee or plan in which employees par- ticipate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." [Italics ours.] In view of the fact that Henry was a member of a committee chosen by the employees for the purpose of dealing with the respond- ent concerning their rates of pay, we conclude that he was acting on behalf of a labor organization. We find, therefore, that the respondent has discriminated against Bond Henry with regard to the hire and tenure of his employment, thereby discouraging mem- bership in a labor organization. We further find that by the acts set forth above the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Woodrow Wilson, Wilford Henry, Claude Wayne Berry, and De Ward McCarty During the latter part of November 1937, Local 313 of the union began an organizational drive among the feed lot and feed mill employees of the respondent . On November 26 the union had its first meeting, at which a large number of the feed lot employees joined Local 313. - On November 29 the union had its second meeting, at which officers were elected . We deem it pertinent to note that the discharges and the so-called lay-offs occurred immediately after TOVREA PACKING COMPANY 1071 the organizational drive of Local 313 began and effectively prevented its completion. Woodrow Wilson started to work for the respondent on May 25, 1935. He worked until November 1935, returned again to work for the respondent on August 15, 1936, and worked continuously until he was discharged on November 29, 1937. He joined Local 313 on November 26, 1937, and was elected its president on the 29th. Prior to his discharge, he had been made "strawboss" of the feed mill by the respondent. When he was discharged, LeBarron, his foreman, informed him that he was being discharged because he had allowed some wagons or trucks to be parked in a driveway between the mill and the manger in such a manner that the cattle being driven along the lane were forced to jump over the feed lot troughs and as a consequence some of the cattle fell and others were knocked down. Wilson denied that he was the cause of the trucks or wagons being parked where they were and informed LeBarron of that fact. Wilson testified that LeBarron then told him that he was not being discharged for that cause but it was because he had gone to the union meeting on the 26th. Wilson further testified that LeBarron "told me to go home and say nothing about the union or to go to any of the meet- ings, and I would be back to work in a few days." Joe Wilson, who was present during the conversation, corroborated the testimony of his brother. LeBarron denied the above statements attributed to him by the Wilsons and testified to the effect that Woodrow Wilson had been discharged for the wagon-parking incident and because he had failed to attend to his duties properly at the feed mill after being repeatedly warned about the matter. Wilson denied that he had been negligent in his duties and also denied responsibility for the parking of the wagons. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, resolved the above conflicting evidence by finding that Woodrow Wilson was discriminatorily discharged. We find in accordance with the Trial Examiner upon the following analysis of the evidence. Wilson had been employed by the respond- ent for several years and his services were of such a nature that he had been promoted to the position of strawboss in the feed mill. It seems unlikely that such a person would be discharged for the reasons alleged by LeBarron. We are convinced by the above analysis and by Wilson's testimony, to which we grant credence, that his union activity was the motivating cause for his discharge, and we so find. Wilford Henry started to work for the respondent at the feed lots on June 12, 1937. He was first given a job shoveling manure, and after a few days he was put on a feed wagon as a helper. Later he was given a team and wagon of which he had complete charge. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ten days prior to his discharge he was transferred to driving a truck for the respondent. These successive advances indicate quite clearly that Henry was considered a good worker by the respondent. He joined Local 313 on November 26 and was elected its vice president on the 29th. He was discharged on November 30, 1937. Prior to his discharge, he had been "talking organization," and LeBarron had told him that if he did not stop talking with the new hands, although he was a pretty good feeder, he would be obliged to lay him off. At the time of his discharge, Henry was told that he was being dis- charged because he had left a feed lot gate open and allowed some cows to get out. Henry denied that he had left the gate open and told LeBarron that that was not the reason for his discharge. The respondent did not offer any witnesses to corroborate LeBar- ron's charge. In view of this fact and LeBarron's previous threat to- discharge Henry for "talking" to new employees, we find that the respondent discharged Wilford Henry on November 30, 1937, because of his union affiliation and activities, thereby discriminating against him in regard to hire and tenure of employment. Claude Wayne Berry was employed by the respondent from Octo- ber 3. 1936, to December 1, 1937, at which time he was discharged. He had joined Local 313 on November 26, 1937, and was elected to the position of gdide. He testified that the day after he had joined Local 313, LeBarron asked him whether he had joined the union, to which he replied that he had. Berry further testified that on the day of his discharge he saw LeBarron coming toward him together with an employee who was to replace Berry. Berry looked up upon their arrival and realizing LeBarron's purpose said, "I guess I'm next." LeBarron replied, "Yes, I hate to say so, but I have a man here to take your place." LeBarron then asked Berry to show the other employee his duties, while LeBarron went to the office to get Berry's time slip. The reason written on Berry's time slip for his discharge was that his work was unsatisfactory. Upon reading this Berry exclaimed, "Evidently it is, but if anybody in the world could work for Mr. Tovrea and please him, that is an impossibility." LeBarron denied that Berry had been discharged for his union activities or membership and stated that his discharge came about under the following circumstances. Berry had been in charge of the watering troughs, and it was his duty to see that they were properly taken care of. Several days prior to his discharge the watering trough in "Section All of the feed lot overflowed and caused an unhealthy condition for the cattle in that section. LeBarron investi- gated the flood and discovered that it was due to Berry's failure to attend to his duties. Berry told LeBarron that he had not had time tc make the necessary adjustments. LeBarron instructed Berry that TOVREA PACKING COMPANY 1073 the condition would have to be remedied. On the day before Berry's discharge the corral in "Section C" was flooded under similar circum- stances. This led to Berry's replacement. While Berry denied that he had been lax in his duties and claimed that he was not responsible for the overflows, he admitted that the troughs of which he had charge had overflowed on numerous occasions. Under all the circumstances we are not persuaded by Berry's denial of responsibility. While the case is not free from doubt we are not convinced by the record that Berry was discharged because of his union affiliation. We shall therefore dismiss the complaint as to him. De Ward McCarty started to work for the respondent in October 1937. At the time of his discharge he was employed as a night watch- man for the respondent. McCarty testified that on Sunday night, the 28th of November, while he was on duty, he became ill; feeling he could not continue working he turned over his night watchman's clock to the other night watchman, who promised to turn in his clock for him and take care of McCarty's watch area for the night. Although McCarty attended the union meeting on Monday night and joined Local 313, he felt he was not well enough to return to work then and he did not do so. McCarty failed to report to any super- visory official that he was sick. When he returned to work on the 30th, he was told by LeBarron that, because of his failure to report his sickness, another man had been put in his place. LeBarron and McCarty then went to the respondent's office to see if the matter could be straightened out. It was decided by the management that since LeBarron had already placed another man in McCarty's place that McCarty should be discharged. In view of the above facts we conclude that McCarty was not dis- charged because of his union affiliation. B. The so-called lay-offs 1. Feed lot employees The remaining named individuals 5 were, according to the com- plaint, discharged because of their union affiliation or activity. The respondent contends that they were not "discharged" but "laid off" due to changes in operations. The word "lay-off" as distinguished from "discharge" usually implies that the employee may be reem- ployed at some future date. For our purposes it is immaterial which word is used to designate the termination of employment. The issue for our determination is whether or not the respondent discouraged 5 Coleman Pettit, Sebarne Spriggs, William Derendor , Sherman Moss, Earl Taylor, Jodie Yowell , William Oldham, Winfield French, Afton Wilson , Ernest Robinson , Robert Harris, Otis Crabtree, Hubert Thomas, Clyde Williams, Joe Wilson, Jess Williams, Forrest Pul- liam, John Smith , James Allred, and Fred Bledsoe. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in the union, either by discharging or by laying off the above-named employees. For the sake of the following discussion we shall use the term "lay-off," preferred by the respondent. The respondent contends that the so-called lay-offs in the feed lot were necessitated by changes in operation, having nothing to do with the union affiliation of the employees. Reasons advanced for the lay- offs are, briefly, as follows : Sometime during the month of November the respondent determined to reduce what it termed the exceptionally high number of employees in the feed lots and to lower the cost of production. In carrying out this twofold determination the re- spondent proceeded to (1) hire leased trucks to replace teams and wagons; (2) change the feed rations fed the cattle; and (3) reduce the number of cattle held in the feed lots. One of the first steps taken to reduce costs, according to Bain- bridge, was the hiring of. leased trucks for the purpose of transport- ing feed to the cattle. This step involved the hiring of independent contractors to load and haul the feed to the mangers or feed troughs. These contractors used their own trucks, hired their own help, and were paid by the respondent on the basis of tonnage hauled. Bain- bridge testified that by the hiring of leased trucks the respondent was able to reduce its hauling cost from 33 cents to 30 cents a ton, and that this change in operation naturally necessitated the lay-off of a number of employees. The respondent also points to the fact that the number of cattle held in the feed lots was reduced from 20,000 head in November 1937, to 10,000 in March 1938, and to 5,800 head on May 19, 1938. Bainbridge stated at the hearing, that in making the reduction in force LeBarron, foreman of the feed lot and feed mills, was given complete power to determine who should be laid off, but was told that because of the Act he was not to discriminate against any of the men because of their union affiliation. LeBarron testified that in making the lay-offs he retained the ones who, he thought, would be the best hands and that he had no way of knowing which of the employees belonged to the union. The above statements made by LeBarron are controverted by the testimony of Lee Leonard, an employee of the respondent, who was subpenaed as a witness by the Board. He testified that during the time of the discharges or lay-offs he had several conversations with LeBarron relating to the union affiliation of the feed lot and feed mill employees. In one conversation LeBarron asked him whether he had gone to the union meeting and whether he knew of "any of the boys that had been to the meeting." LeBarron inquired particularly about "Jodie Yowell, Bill Oldham, Spriggs, Pete Henry, Johnny Smith, Jim Derendor" and several others whose names the witness could not remember. Leonard told him that Spriggs and Derendor TOVREA PACKING COMPANY 1075 had been at the union meeting, but that he did not know about Smith, Oldham, and Yowell. Leonard asked LeBarron whether he was going to discharge all the union employees, to -which LeBarron re- plied, "Everyone that I can find." Leonard expressed regret that they were to be discharged and LeBarron replied that while he hated to discharge them he had orders to do so and "you know, I have got to hold my job." LeBarron also informed Leonard that if he went to the union meeting "it would be too bad." At some later conversation Leonard advised LeBarron to let "all the boys join the Union," but LeBarron said, "No, you had better stay away from that meeting. We're going to get you out, all the boys that join." Aaron Lee Armstrong, who was still in the employ of the respond- ent at the time of the hearing, testified that he asked LeBarron why the men were being discharged. LeBarron replied, according to Armstrong, that they were being laid off because of their union affiliation. At a later conversation Armstrong asked LeBarron what he thought of the union. LeBarron replied, that "it was no good, and if I wanted to put my name on there I would get my time." Early in January, Armstrong joined Local 313 but later threw his pin away when he discovered that he was not getting as much work as before. He testified that by throwing his pin away LeBarron told him "he had fallen in line with the company." The testimony of Glenn Kohl, a witness for the respondent, who accompanied LeBarron while lay-offs were being made, sheds some light upon the motives of the respondent in ordering the lay-offs. Kohl's admitted purpose in riding around with LeBarron was as follows : Mr. Tovrea himself had asked me to go out and find out what I could about the boys in regard to the union, I rode with Mr. LeBarron to find out what I could about the thing. It was something new and we wanted to know what it was about. The following testimony of employees who were laid off serves further to clarify the real motives of the respondent. Coleman Pettit had been employed as a feeder in the feed lots. He started to work on November 16, 1937, and his employment terminated on November 29, 1937. Although he had not joined Local 313, Pettit had been helping to organize the employees prior to the time of his lay-off. He was dismissed by LeBarron, who gave as his reason that they were cutting down on the help and, therefore, did not need Pettit any longer. Pettit told LeBarron, "I don't think that's it, Walter." LeBarron replied by saying, "Well, you are helping to organize. You belong to the Union. We are going to get rid of all them that do that." 169134-39-vol 12-69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sebarne P. Spriggs was employed as a cattle feeder in the feed pens and started to work on October 21, 1937. He joined Local 313 on November 26 and his employment ceased on November 29. Spriggs had been working with Grant I. Scott and they were both laid off at the same time. Scott started work on November 11, 1937, and was still working for the respondent at the date of the hearing. Scott was called as a witness for the Board and testified that while he was laid off with Spriggs on November 29, he was immediately put back to work after, he had assured LeBarron that he did not belong to the union. At the time of his lay-off and before he was reemployed he had a conversation with LeBarron in which he said, "Walter, there is some misunderstanding. I have not joined the Union." LeBarron said, "You haven't? You did not go to the meeting the other night?" Upon receiving a negative reply, LeBar- ron asked, "Can you prove that?" Scott replied that he could not prove it unless LeBarron asked all the men who had been at the meeting on the 26th. LeBarron then said, according to Scott, "Well, I will take a chance on you if you will promise me that you will stay out of this Union, keep your nose out of it, and not go back." Scott was then allowed to go back to work. William H. Derendor began work for the respondent on June 18, 1937, and filled various positions at the feed lot and feed mill. When he was laid off on November 29, 1937, he was driving a dump truck. His testimony was as follows : On November 29, at noontime, while Derendor was on his way to lunch, he heard Robert Callis, who was in charge of the livestock at the respondent's plant and ranches, tell LeBarron that he would have to fire the men belonging to the union, and that if he did not the Company would get someone who would. Derendor started to cross the street and heard Callis tell LeBarron, "There goes one of them now. Get him." LeBarron then approached Derendor and said, "Jim, I will have to let you go. The work is com- pleted." Derendor told LeBarron at the time that he did not think he was being laid off because the work was being completed', but that it was because of his union activities. LeBarron failed to reply. Derendor further testified that immediately preceding his lay-off he had been employed hauling dirt by truck and that after his lay-off he saw some other employee take his truck and drive off for more dirt. LeBarron admitted that the truck might have hauled more dirt but stated that it was no longer under his jurisdiction having been transferred to some other department in the plant. Sherman Moss started to work for the respondent about Novem- ber 1, 1936, arid was laid off on December 1, 1937, with the mill crew. He joined Local 313 on November 26 and was elected sergeant-at-arms on November 29. On December 8,.1937, Moss obtained a position TOVREA PACKING COMPANY 1077 with one of the independent contractors whom the respondent had hired to feed the cattle. Moss testified that he worked for this in- dependent contractor for 11/2 days, that on the first day he did not see LeBarron, but that on the second day when LeBarron saw him working he informed the contractor that he would no longer need his services. A few weeks later the independent contractor was rehired by the respondent, but Moss was replaced by another helper. Earl Taylor started working for the respondent in October 1936. He was employed in a number of different capacities, hauling manure, loading freight cars, cutting bales, and stacking hay. He was straw- boss over five hay stackers and received more pay than any of the other stackers. At the time of his lay-off on December 1, 1937, he asked LeBarron for a written statement of the reason and was told "You know where the bunch went the other night." Jodie Yowell and William Oldham were dismissed on the same date, December 3, 1937. Both were old feed lot employees of the re- spondent, Yowell having started working for the respondent on June 4, 1936, while Oldham had worked with respondent since November 1934. Both joined the union on November 29, 1937. Oldham had been elected secretary-treasurer of the union. At the time of their lay-off, LeBarron came to them and said, "I want to see you boys-I have got to make my speech." Yowell replied, "There is no use in making your speech, Mr. LeBarron. We know what. it is all about anyway." LeBarron then said, "Well, I have got to make my speech anyway. We are going to motorize this. place around here, and we won't need you boys any more." The two men then got into the pick-up truck that LeBarron was driving and on their way to the office Yowell asked if there would be any chance of getting back to work, to which LeBarron replied, "Well, I am not in a position to talk, but my personal advice would be for you boys not to go to any meet- ings that is being held down town. Just go on and keep your mouth shut." LeBarron denied the anti-union remarks attributed to him by Leonard, Armstrong, Pettit, Scott, Derendor, Taylor, Yowell, and Oldham. Callis and Kohl corroborated LeBarron's denials with re- spect to the testimony of Derendor and Leonard. However, LeBarron admitted that Leonard volunteered information about the union, and that Scott had told him that he did not belong to the union. Accord- ing to LeBarron, Scott was rehired not because of his lack of union affiliation but because an extra man was needed at that particular time due to some misunderstanding. Unless it was known that LeBarron was hostile to the union no reason appears why Scott should mention his non-affiliation as a ground for being retained. Then too, Leonard's volunteering of information about the `union becomes in- explicable unless we assume that LeBarron was interested therein. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assuming, therefore, that LeBarron was interested in the union affilia- tion of the employees we find that Scott and Leonard's testimony is to, be given credence. Moss' testimony concerning the dismissal of the independent con- tractor by whom Moss was employed and the subsequent rehiring of the contractor when Moss was no longer his helper remained uncon- tradicted in the record. This factor serves further to impel the con- clusion that LeBarron was using the union affiliation or activity of the employees as a basis for terminating their employment. The Trial Examiner, who had an opportunity to observe the de- meanor of the witnesses, resolved the conflict of evidence between LeBarron and the employees by finding in accordance with the testi- mony of the employees. We are in agreement with the Trial Ex- aminer's resolution of this conflict. The evidence submitted by the respondent that the lay-offs were necessary because of the hiring of leased trucks and the reduction in the number of cattle, while plausible, does not survive analysis. Two of the leased trucks were hired on November 15 and 17, 1937, because of a shortage of equipment. On November 29 three additional leased trucks were hired. On November 30, December 2 and 4, three more trucks were hired. The hiring of the last six trucks coincided with the termination of employment of the eight feed lot employees alleged by the complaint, to have been discharged for their union affiliation or activity. On cross-examination, Bainbridge revealed that this was the first time that the respondent had4 resorted to the use of leased trucks, and furthermore that at the date of the hearing the leased trucks were no longer being used. The reasons given by Bainbridge for discontinuing the use of the leased trucks were that with the reduction in the number of cattle it was unnecessary to use both the leased trucks and the respondent's equipment and since it would not pay to allow the respondent's equipment to stand idle the leased trucks were dispensed with. The evidence shows that as late as October 1, 1937, several new wagons were being constructed for i he respondent. The fact that the respondent hired trucks for the first time in November 1937, that it did not long retain such hire, that it continued to build new wagons, and that its foreman displayed an attitude of hostility toward the union leads us to conclude that the hiring of leased trucks was but a temporary device designed to replace employees laid off for their union affiliation. The reduction in the number of cattle, taken care of by the re- spondent, from 20,000 head in November 1937, to 5,800 head in May 1938, necessitated the lay-off of a number of the employees in the feed lots, but there is no evidence that this reduction was the cause of the lay-offs during the week between November 29 and December 6, 1937. No showing was made in the record that any great number TOVREA PACKING COMPANY 1079 of cattle had been slaughtered or shipped before this week. In fact, Bainbridge testified that the hiring of the leased trucks on November 29, December 1 and 3, 1937, was for the purpose of taking care of the cattle during a peak period. This testimony militates against the possibility that the reduction in the number of cattle occurred before the time the lay-offs took place. We find that Coleman Pettit, Sebarne Spriggs, William Derendor, Earl Taylor, Jodie Yowell, and William Oldham, were laid off be- cause they had joined or were suspected of having joined and assisted Local 313. We further find that by so doing the respondent has dis- criminated and is discriminating against the above-named employees with respect to hire and tenure of their employment and thereby has discouraged and is discouraging membership in a labor organization. We also find that by the acts set forth above the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Feed mill employees Winfield French, Alton Wilson, Ernest Robinson, Robert Harris, Otis Crabtree, Hubert Thomas, Clyde Williams, Sherman Moss, Joe Wilson, and Forrest Pulliam, were all employed in or about the re- spondent's feed mill. Jess Williams was employed repairing fences. All of the above-mentioned employees were laid off with the shut-down of the feed mill on or about December 1, 1937. While all were members of the Local 313 there is but slight evidence indicating the extent of their union activity. The respondent showed that the shut-down of the feed mill oc- curred when it changed the rations fed the cattle from a mixture of hay, meal, and molasses, to a combination of cottonseed meal and hulls. The change resulted in a savings of $3.58 per ton fed. The new feed was procured from the Agricultural Products Company plant, located on the respondent's property, which had been completed just prior to December 1, 1937. For reasons of economy the respond- ent's feed mill was shut down and as a necessary result the employees were laid off. Although the record leaves us doubtful, we are of the opinion that the evidence does not support the allegations of the complaint with respect to the above-mentioned feed mill employees. We shall there- fore dismiss the complaint as to them. Although it appears that the respondent instigated the discharge of Moss on December 8, 1937, we find that the respondent did not itself discharge him, as alleged in the complaint, inasmuch as the record indicates that Moss was not an employee of the respondent at that time. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Smith was a feed lot employee and had been ill for several days prior to his lay-off on December 6, 1937. When he returned he was informed that his place had been filled during his absence and that there were no available positions left open. While Smith was a member of Local 313, he was not an active member. While his case is not free from doubt we are of the opinion that the evidence does not support the allegations of the complaint with respect to Smith. We shall therefore dismiss the complaint as to him. James Allred and Fred Bledsoe had been working for the respond- ent for approximately a year. Allred was a plumber's helper, while Bledsoe was a machine-shop helper. Both were laid off on or about January 22, 1938. They were told that they were being laid off because of the completion of the construction work at the respond- ent's plant. This was substantiated by the record. Although both had joined Local 448 on December 22, 1937, neither had been active in union affairs. We conclude that these two individuals were not laid off because of their union affiliation or activity. We shall there- fore dismiss the complaint with respect to James Allred and Fred Bledsoe. C. Interference with, domination and support of the Association Tovrea Employees' Association was organized in 1933 or 1934. It functioned mainly as a social organization, the giving of dances, din- ners, and Christmas parties being its chief activities. The record is devoid of any showing that it functioned as a bargaining agent prior to January 1938. Supervisory officials, as well as all other classes of employees at the respondent's packing plant, were admitted to membership. Prior to January 10, 1938, Byrne, the foreman of the shipping department, was president of the Association; Roy Davis, foreman of the Bull Gang, served as a committee representa- tive from his department; Earl Lay, an employee on the killing floor, had been appointed as a committeeman from his department by Elmer Yarborough, his foreman; E. L. Morgan, a strawboss under Bridges, the carpenter foreman, served at Bridges' request as a member on the Association's committee; committee meetings were usually held in some office of the respondent. About the middle of December 1937, Local 448 began a drive for membership among the respondent's packing-house employees. Shortly thereafter the Association proceeded to take steps to reor- ganize as a labor organization. On January 10, 1938, the Associa- tion called a committee meeting for the purpose of adopting a new set of bylaws. Prior to the opening of the meeting, Byrne resigned as president of the Association on the ground that under the Wagner Act no supervisor could be a member of the organization. However, TOVREA PACKING COMPANY 1081 Byrne had already perpetuated his interest in the Association by hav- ing suggested to Morgan the nomination of "Tex" Kilgore as presi- dent of the Association. In accordance with this suggestion. Morgan nominated Kilgore, and he was elected. At the meeting a new set of bylaws were proposed by "Frenchie" Laurent, the assistant audi- tor of the respondent. On or about January 14, 1938, the member- ship voted to accept the new bylaws by secret ballot. Just before the opening of the January 10 meeting, Bainbridge notified the Association that they could no longer meet on the respondent's property. However, Bainbridge also informed the com- mittee that Phillip Tovrea, respondent's president, would cooperate with the Association and would recognize it as the sole collective bar- gaining agent for its employees. Encouraged by this support the Association at its next meeting passed out newly printed membership cards to the committee mem- bers, who were instructed to circulate them among the employees in their department. Byrne continued to be interested in the welfare of the Association and encouraged Morgan in his efforts to sign up the employees in his department. He told Morgan that they should "get Tovrea's Association strong enough that they could keep out all outside organizations." The record shows that Davis and Morgan continued to act in their capacity as committeemen from their respec- tive departments. Lay resigned after practically all of the employees in his department joined Local 448. After approximately 185 plant employees had renewed their alle- giance to the Association by signing the cards circulated by the com- mittee members, the respondent, on January 27, 1938, entered into a collective bargaining agreement with the Association, which specifi- cally provided that it could be terminated on 10 days' notice by either party. In direct contrast to the attitude of the respondent toward the Association is its attitude, as expressed by supervisory officials, toward Local 448. Morgan testified that he had talked with Bridges, the carpenters' foreman, for a few moments prior to the January 10 meeting regarding the union. His testimony is as follows : Q. What did Mr. Bridges say? A. Well, he asked me-he said, "What do you think of the union ?" "Well," I said, "I don't know what to think." I said, "I have not heard much about it." "Well," he says, "I can tell you one thing about it," he says, "There are some of them going to be' looking for jobs that's in it." 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He asked me at that time-he said-lie told me, he didn't ask me-he said, "I believe in union labor but I don't believe in organizing at a time like this when times are so hard." He said, "Phil Tovrea told me that he would run his plant to suit himself and always would. He would close it up before he would let it go Union." The above testimony was uncontroverted. Allan Williams, a former employee of the respondent and acting business agent for Local 448, testified that while employed by the respondent he had a conversation with Bob Dodt, the assistant super- visor for the respondent's plant, on or about' December 20, 1937. His testimony is as follows: Q. What was the conversation? A. . . . he asked me what I thought the chance was for the union to get started and get a foothold in the plant. I told him that due to the fact that several of the boys in the feed lot got laid off, that I didn't think there would be much of a chance. He said, "Well, there might not be very many of them who would join the union, probably as many as four or five, and then we'll fire them." Q. Was there any further conversation? A. . . . he said ... "If we'll just stick together we can whip that damn union." We shall briefly summarize the evidence as revealed above. The influence of the respondent over the Association prior to its reorgani- zation is undisputed. The reorganization of the Association imme- diately after the drive of Local 448 had begun indicates that the respondent was attempting to forestall that drive by giving the Association a new cloak of respectability. The respondent's hostility toward Local 448 as contrasted with the favoritism shown the Asso- ciation could not but aid the latter organization. Bainbridge's state- ment to the Association committee that it would be recognized as the exclusive bargaining agent shows the respondent's support. A statement of this kind made before the employees had an opportunity to ratify the reorganization could not but have its desired effect upon the employees. The continued interest of the respondent's super- visory employees in the Association, as exemplified by the actions of Byrne, shipping-department foreman, and Bridges, carpenter fore- man, coupled with the continued participation in its activities by such employees as Davis, foreman, and Morgan, strawboss, shows that the respondent has not relinquished its control over the Association. We find that the respondent has dominated and interfered with the formation, reorganization, and administration of the Association TOVREA PACKING COMPANY 1083 and has contributed support to it, and has thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. D. The refusal to bargain The complaint, as amended, alleges that the respondent has, since January 24, 1938, refused to bargain with Local 448. The ground for the respondent's refusal was its contention that Local 448 did not represent a majority of employees in an appropriate unit. At the hearing the complaint was amended as to the appropriate unit, Local 448 contending that the appropriate unit should consist of employees in the following departments : Killing and cutting, dry rendering, offal, hides, and night clean-up gang. In addition to the above, the plant contains the following departments : Sweet pickle, smoked meats, lard and compound, cottonseed oil refinery, sausage, ice manu- facturing, machine shop, disposal plant, laundry, bull gang, and sev- eral other smaller departments. The evidence indicated that all of the above-mentioned departments functioned as an integrated unit. Local 448 has jurisdiction over, and admits to its membership, em- ployees in all of the above-mentioned departments. It was admitted by the union representative that Local 448 had conducted its drive for membership on a plant-wide basis and that if a majority of the employees in the plant designated it as their representative it would claim to represent a unit consisting of the entire plant. The only reason advanced by Local 448 that the unit it set forth was appro- priate was based on its claim to represent a majority of employees in a unit composed of these four or five departments. In view of the facts indicating that the organizational activity of Local 448 was on a plant-wide basis, that it admitted to membership employees in nearly all-of the departments in the plant, and the fact that there was no showing in the record that the unit claimed bN Local 448 had any functional or craft characteristics which would justify setting it apart as a separate unit, we conclude that the unit claimed by Local 448 is not appropriate for the purposes of collective bargaining. We shall therefore dismiss the charges alleging a refusal to bargain with Local 448 as representative of a majority of the em- ployees in an appropriate unit. V. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE We find that the activities of the respondent set forth in Section IV above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE REMEDY We have found that the respondent dominated and interfered with the formation , reorganization , and administration of the Association and contributed support thereto. In order to remedy the situation arising from this unlawful conduct we shall order the respondent to withdraw all recognition from the Association and to disestablish it as a collective bargaining representative of any of the respondent's employees. Since the contract between the Association and the re- spondent was made at a time when the respondent was actively sup- porting the Association , contrary to Section 8 (2) of the Act, we find it to be void and of no effect. We will, therefore, order the respondent to cease giving effect to its contract with the Association as one made with an organization not entitled to represent the respondent's employees.6 We have also found that the respondent , by discharging Bond Henry, Woodrow Wilson, and Wilford Henry, and by laying off Cole- man Pettit , Sebarne Spriggs , Earl Taylor, William Oldham, Jodie Yowell, and William Derendor, has discouraged membership in a labor organization and has thereby interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. In order to remedy the effects of these unlawful acts we shall order the respondent to reinstate such employees in the following manner : All employees hired after the lay-offs and discharges herein in- volved shall, if necessary to provide employment for those to be offered reinstatement, be dismissed . If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining em- ployees in accordance with the respondent 's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equiva- lent positions, as such employment becomes available and before other persons are hired for such work. We shall also order the respondent to make the discharged employees whole for any loss of pay they have suffered by reason of their respec- 6 See Matter of Pennsylvania Greyhound Lines, Inc., eto , 1 N L R B 1. Order en- forced in National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261 (1938). TOVREA PACKING COMPANY 1085 tive discharges by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 7 during said period. Since Local 448 failed to show that it represented a majority of employees in an appropriate unit we shall order the dismissal of that portion of the complaint which alleges a violation of Section 8 (5) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local Nos. 313 and 448, Tovrea Employees' Association, and the group of employees who elected Bond B. Henry as a member of a committee. to discuss wages with the respondent, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Tovrea Employees' Association, the respondent has en- gaged in and is engaging in an unfair labor practice within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Bond Henry, Woodrow Wilson, Wilford Henry, Coleman Pettit, Sebarne Spriggs, William Derendor, Earl Taylor, William Oldham, and Jodie Yowell, and thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) 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 and is not engaging in un- fair labor practices within the meaning of Section 8 (5) of the Act. By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which wculd not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R B. 440. Monies received for work performed on Federal, State, county, municipal, or other work-relief projects are not deductible as "net earnings ," but as provided below in the Order, shall be deducted and paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. With regard to the termination of the employment of Claude Wayne Berry, De Ward McCarty, Winfield French, Afton Wilson, Ernest Robinson, Robert Harris, Otis Crabtree, Hubert Thomas, Clyde Williams, Sherman Moss, Joe Wilson, Forrest Pulliam, Jess Williams, John Smith, James Allred, and Fred Bledsoe, the respond- ent 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, Tovrea Packing Company, Phoenix, Arizona, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America or any other labor organization of its employees, by discriminating against its employees in regard to hire or tenure of employment or any term or condition of em- ployment ; (b) Dominating or interfering with the administration of Tovrea Employees' Association, or dominating or interfering with the forma- tion or administration of any other labor organization of its em- ployees, or contributing support thereto; (c) 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, or to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act; (d) Giving effect to its contract with Tovrea Employees' Association. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Tovrea Employees' Associa- tion as a representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish said Association as such representative; (b) Offer to Bond Henry, Woodrow Wilson, Wilford Henry, Coleman Pettit, Sebarne Spriggs, William Derendor, Earl Taylor, William Oldham, and Jodie Yowell, immediate and full reinstate- ment, respectively, to their former positions without prejudice to any rights and privileges previously enjoyed by them in the manner TOVREA PACKING COMPANY 1087 set forth in the section entitled "The remedy" above; and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and there- after, in said manner, offer them employment as it becomes available; (c) Make whole the employees named in 2 (b) above for any loss of pay they will have suffered by reason of the termination of their employment by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages from the date of such termination to the date of the offer of rein- statement .or placement on the preferential list as ordered in para- graph..(b) :abnve, less his net earningq:dllripg skid period; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Post immediately in conspicuous places throughout its plants and other places of employment, and maintain for a period of at least sixty (60) consecutive days, notices stating that the respondent will cease and desist in the manner aforesaid; (e) Notify the Regional Director for the Twenty-first Region 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, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent dis- criminated in regard to the hire and tenure of employment of Claude Wayne Berry, De Ward McCarty, Winfield French, Afton Wilson, Ernest Robinson, Robert Harris, Otis Crabtree, Hubert Thomas, Clyde Williams, Sherman Moss, Joe- Wilson, Forrest Pulliam, Jess Williams, John Smith, James Allred, and Fred Bledsoe. AND IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby- is, dismissed in so far as it' alleges that the respondent has refused to bargain with the duly authorized representative of a majority of its packing-house employees in an appropriate unit within the meaning of Section 8 (5) of the Act.