Armour and Company

In the Matter of ARMOUR AND COMPANY and UNITED PACKING HOUSE WORKERS INDUSTRIAL UNION LOCAL 153, AFFILIATED WITH C. I. 0.1 In the Matter of ARMOUR AND COMPANY and UNITED PACKING Housn WORKERS LOCAL INDUSTRIAL UNION No. 153 THROUGH PACKING HOUSE WORKERS ORGANIZING COMMITTEE AFFILIATED WITH C. I. 0.1 Cases Nos. C-661 and R-1309, respectively.Decided August 15,19-39' Meat Packing Industry-Interference, Restraint, and Coercion : expressed oppo- sition to outside labor organization ; questioning employee regarding progress of outside union-Company-Dominated Union : domination of and interference with formation and administration ; support ; intimidation and coercion to join ; dis- crimination in favor of : recognition as representative of employees ; endorsement;. disestablished, as agency for collective bargaining-Discrimination: charges of, dismissed, evidence fails to sustain charges-Investigation of Representatives : controversy concerning representation of employees : refusal to recognize petition- ing union because of recognition granted to company-dominated union-Unit Appropriate for Collective Bargaining: hourly paid and piece-work production, and maintenance employees, excluding foremen, foreladies , and assistant fore- men, gang leaders , all other employees in a supervisory capacity, clerical and office workers, scalers, checkers , yardmasters , students , policemen and watch- men, firemen, restaurant employees, ear-line employees, workers in the employees' and wholesale markets, truck drivers, general office garage employees , and em- ployees in country trucking-Election Ordered: company-dominated union ex- cluded from ballot; election to be conducted at such time as the Board shall in the future direct-.Evidence: offers of proof of coercion and intimidation to join union, exclusion of by Trial Examiner incorrect. Mr. Daniel J. Leary, for the Board. Mr. Walter C. Kirk, of Chicago, Ill., and Kennedy, Holland, DeLacy & Svoboda, by Mr. Ralph E. Svoboda and Mr. L. J. Tierney, of Omaha, Nebr., for the respondent. Mr. John J. Brownlee, of Chicago, Ill., for the United. Boyle d Boyle, by Mr. Hugh Boyle, of Omaha, Nebr., for the Association. Mr. Harry E. Selekman, of counsel to the Board. 1 Although the charges and amended charges in the complaint proceeding and the petition in the representation proceeding were filed by "United Packinghouse Workers Local Industrial Union No. 153", the name "Local Union No . 8, United Packinghouse Workers of America, of the Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations" was at the hearing beginning on March 2, 1939, substituted therefor upon motion granted by the Trial Examiner. The facts concerning the change in the name and affiliation of Local No. 153 to Local Union No. 8 are set forth in detail in Section II below. 14 N. L. R. B., No. 48. 682 ARMOUR AND COMPANY DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF TIIE CASE 683 On January 19, 1938, Local Union No. 8, United Packinghouse Workers of America, of the Packinghouse Workers Organizing Com- mittee,2 herein called the United, filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri ) charges that Armour and Company, Omaha, Nebraska , herein called the respondent, had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7 ) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 20, 1938, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region, issued its complaint against the respondent, al- leging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. In respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent since on or about April 1, 1937, had urged, coerced, and persuaded its employees to organize and participate in the formation and administration of Armour's -Employees Protective Association, herein called the Association, and had given aid and support to said -organization ; and (2) that the respondent had interfered with, re- strained, and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent, the United, and the Association . On January 26, 1938, the respondent filed a mo- tion for a more specific statement of the allegations of the complaint and an answer admitting that it was engaged in interstate commerce but denying that it had engaged in the alleged unfair labor practices. On February 11, 1938, the Association filed a motion for intervention, stating that it represented more than 51 per cent of the employees of the respondent and that it had been recognized as the exclusive bar- gaining representative of the respondent's employees, but denying that it had been dominated or interfered with by the respondent. On February 14, 1938, the United filed amended charges alleging that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act. On Feb- 2 See footnote 1. 684 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ruary 15, 1938, the Board duly served a notice upon the respondent, the United, and the Association, that at the hearing it would move to amend the complaint to read as set forth in the notice. The com- plaint as thus amended would include in addition to the allegations set forth in the original complaint allegations that the respondent discharged Edmund King about January 30, 1937, and Ann Lock- hard 8 about June 17, 1937, and laid off 12 named employees 4 during the period from January 23, 1937, to December 8, 1937, because they joined and assisted the United. The said additional allegations are all covered by the amended charges filed by the United on Feb- ruary 14, 1938. On February 19, 1938, the United filed second amended charges alleging that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act. The second amended charges contain in addition to the allegations set forth in the original charges and the first amended charges allega- tions that the respondent discharged Charles R. Jones on June 15, 1937, and laid off Charles Waltrip about March 27, 1937, and Syl- vester Morrison about July 2, 1937, because of their activity on behalf of the United. On February 19, 1938, the Regional Director issued an order permitting the Association to intervene in the proceedings to such an extent as its interests were involved. Pursuant to the notice, a hearing was held from February 21 to March 10, 1938, at Olnaha, Nebraska, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Association withdrew its motion to intervene on the first day of the hearing and did not participate in the proceedings. The Board and the re- spondent were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. At the commencement of the hearing, counsel for the Board moved that the complaint be amended to set forth in addi- tion to the allegations contained in the complaint as originally issued allegations that the respondent discharged Charles R. Jones, Ann Lochard, and Edmund King on specified dates, and thereafter re- fused to reinstate them, because of their activity on behalf of the United, and that the respondent laid off on specified dates Michael Verbeck, Nels Peterson, Anton Vinski, Mitchell Wolski, Stanley Wolski, James Pazderka, Charles Davenport, William Bell, Claude Lynch, Caroline Dixon, James Dean, Charles Waltrip, Sylvester Morrison, and David Collins, and thereafter refused to give them 8 Referred to as Ann Lochard in the record. • Michael Verbeck, Nels Peterson, Anton Vinski, Mitchell Wolski, Stanley Wolski, James Pazderka, Charles Davenport, William Bell, Claude Lynch, Caroline Dickson (Dixon ), James Dean, and David Collins. ARMOUR AND COMPANY 685, regular and steady employment, for the reason that they joined and assisted the United. The respondent agreed to such amendment of the complaint and the motion for such amendment was granted by the Trial Examiner. At the end of the hearing, counsel for the Board moved to strike from the amended complaint the allegations thereof with respect to Edmund King, Michael Verbeck, James Pazderka, William Bell, and Caroline Dixon. The Trial Examiner granted this motion. He also granted a motion by counsel for the Board ±to amend. the pleadings to conform with the proof. At the close of the hearing, the respondent moved that the case be dis- missed. This motion was denied. The Trial Examiner made sev- eral other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The various rulings of the Trial Examiner are hereby affirmed. On March 14, 1938, the respondent filed an answer to the com- plaint as amended admitting its interstate activity but denying that it had dominated or interfered with the Association and that it had discharged or laid off any of its employees because of their union activity. It alleged further that such discharges and lay-offs were necessary because. of the decrease in production at its plant and that the lay-offs were pursuant to the seniority and experience of the employees. On May 26, 1938, the Trial Examiner filed his Intermediate Re- port, dated May 7, 1938, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act, but that the respondent had not dis- criminated with regard to the hire and tenure of employment of Charles Waltrip, David Collins, Charles R. Jones, Anton Vinski, Ann Lochard, and Mitchell Wolski. He recommended that the Board order the respondent to reinstate with back pay Nels Peterson,. Stanley Wolski, Charles Davenport, James Dean, and Sylvester Mor- rison,and further order the respondent to withdraw all recognition from and.to disestablish the Association as the bargaining represent- ative of any of its employees. On June 3, 1938, the respondent filed its exceptions to the. Intermediate Report of the Trial Examiner. The respondent requested an opportunity to argue orally before the Board, and all parties were duly notified that a hearing would be held before the Board on July 12, 1938, in Washington, D. C., for the purpose of oral argument. On July 12, 1938, the respondent sub- mitted a brief, but none' of the parties appeared to participate in the oral argument. Thereafter, the respondent filed a supplemental brief and a second supplemental brief in support of its exceptions. The Board has considered the briefs of the respondent and its excep- tions to the Intermediate Report of the Trial Examiner. ' The Board 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finds that the exceptions are without merit in so far as they are inconsistent with the findings, conclusions, and order set forth below. On May 11, 1938, the United 5 filed with the Regional Director for the Seventeenth Region a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of the respondent and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the Act. On October 7, 1938, Van A. Bittner, chairman of the Packinghouse Workers Organizing Committee, requested that the Board proceed with a hearing on the petition and issue a decision on the consoli- dated proceedings. On October 17, 1938, the United filed an amended petition. On January 5, 1939, the Board, acting pursuant to Sec- ^tion 9 (c)• of the Act, and Article III, Section 3, of National Labor :Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, ordered that the representation and complaint cases be consolidated for the purpose of hearing and for all other purposes. On February 13, 1939, the :Acting Regional Director issued a notice of hearing, copies of which were duly served upon the respondent, the United, and the Associa- tion. Pursuant to the notice, a hearing was held on March 2, 3, 6, 7, and 8, 1939, at Omaha,. Nebraska, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Board. At the hearing the United. objected to the participation of the Association in the pro- ceedings. This objection was overruled by the Trial Examiner. The Board, the respondent, the United, and the Association, 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. 'The Trial Examiner excluded certain offers of proof made by the Association relating to alleged acts of intimidation and coercion by members of the United with respect to various employees of the respondent for the purpose of forcing such employees to join the United. We are of the opinion that this ruling was erroneous and that such evidence should have been admitted. We shall consider -the offers of proof as part of the record.' The Board has reviewed the other rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. Such rulings are hereby affirmed. Pursuant to the requests of the Association and the respondent, oral: argument was set before the Board on April 2, 1939. The parties 5 See footnote 1. See Matter of Fisher Body Corporation and United Automobile Workers of America, Local 76, 7 N. L. R. B. 1083. . ARMOUR AND COMPANY 687 thereafter waived oral argument, but the respondent and the Asso- ciation submitted briefs. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT . Armour and Company, an Illinois corporation, operates at Omaha, Nebraska, a meat-packing plant at which it purchases and slaughters. livestock and processes and distributes various products and by- products to retail and wholesale markets. Although the livestock slaughtered at the Omaha plant is purchased principally in the Union Stock Yards at Omaha, approximately 40 per cent of the cattle, 56 per cent of the hogs,-and 67 per cent of the sheep, shipped to the Union Stock Yards in 1938 originated outside the State of Nebraska. From November 1, 1937, to October 31, 1938, 924,904 animals, having a value of approximately $24,657,229.00, were slaugh- tered at the plant. During the same period, the respondent shipped outside the State of Nebraska 244,555,483 pounds of products or about 85 per cent of its total production. The respondent does not contest the jurisdiction of the Board. II. THE ORGANIZATIONS INVOLVED . Local Union No. 8, United Packinghouse Workers of America,, of Packinghouse Workers Organizing Committee, is a labor organi zation affiliated with the Congress of Industrial Organizations, admit- ting to its membership hourly paid and piece-work production and maintenance employees of the respondent. It was chartered by Packinghouse Workers Organizing Committee on February 6, 1939, the said Committee having been authorized by the Congress of In- dustrial Organizations in January 1939 to issue charters. Local Union No. 8 retained the same membership, jurisdiction, officers, and executive committee, which United Packinghouse Workers Local Industrial Union No. 153, chartered by the Committee for Indus- trial Organization on June 28, 1937, had had prior to February 6,. 1937, at which time Local No. 153 surrendered its charter. The change in name and affiliation did not therefore affect the struc- ture of the organization. Armour's Employees Protective Association is an unaffiliated labor organization, admitting to its membership production and mainte- nance employees of the respondent. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III:.THE UNFAIR LABOR PRACTICES A. Domination of and interference with, the Association; interference, restraint, and coercion In 1921 the respondent established at its Omaha plant an Em- ployee Representation Plan, under which there was set up a Con- ference Board consisting of employee representatives chosen by em- ployees from divisions and precincts established in the plant and an equal number of management representatives appointed by the plant -superintendent. Shortly after the decision of the Supreme Court of the United States on April 12, 1937, sustaining the constitutionality ,of the National Labor Relations Act, H. S. Eldred, vice president of the respondent with offices in Chicago, Illinois, sent a letter to the officials at the various plants of the respondent, including officials at the Omaha plant, stating that the Conference Board of elected representatives was legal under the Act and that the respondent would continue to deal with such representatives until the employees indicated a desire to form some other type of organization. Upon receipt of the letter at the Omaha plant, M. F. O'Meara, the plant superintendent, called a meeting of the employee and management representatives of the Conference Board at which he read the letter. The letter was also posted throughout the plant. Several weeks later, O'Meara informed the employee representa- tives on the Conference Board that he had received another letter from the Chicago offices of the respondent which stated that the Conference Board was illegal under the Act. He also informed the employees that the Conference Board was being discontinued, but that' the''respondeht would continue to bargain with the, elected, em- ployee ' representatives until such time as the employees indicated a desire to the contrary. He further stated that the employees could not bold any more meetings on the premises of the respondent and that the respondent could no longer give them any financial aid. After O'Meara completed his remarks, he granted the employees present permission to remain and discuss what steps should be taken. It was then decided that a handbill should be printed informing the employees that the elected representatives would continue to act on their behalf and that a petition authorizing the elected representa- tives to continue in such a capacity should be circulated among the employees. At this time a committee of five employees, consisting of James Dean, John Eckert, Antone Yablonski, Thomas Hassett, and Bess. Gebhart, was chosen to formulate organizational plans. On the following day, the committee of five met in the assembly room at the respondent's plant. Dean had with him a copy of a con- stitution and bylaws of a proposed organization which he had pre- APM'IOUT AND COMPANY 689 viously prepared. After the proposed constitution. and, bylaws were -discussed, Dean agreed to revise them in accordance with suggestions made at the meeting. It was also agreed that a further meeting should be held. Shortly before the meeting adjourned, O'Meara en- tered the assembly room and repeated his instructions,that no further meetings should be held on the respondent's premises. Dean testified that several days after the meeting of the committee ,of five, he discussed with J. C. Van Riper, the respondent's employ- ment manager, the proposed organization' of employees and that Van Riper furnished him a list of divisions and precincts which had been established in connection with the Employee Representation. Plan and that Van Riper also suggested changes in the proposed plan. Van Riper denied at the hearing that he had discussed the proposed plan with Dean and testified that any list of divisions or precincts which had been furnished Dean was furnished prior to the discon- tinuance of the Plan. About this same time, the employees who had acted as employee representatives under the Plan distributed among the employees at the plant handbills stating that the employee representatives would continue to act on behalf of the employees. Shortly after the meeting of the committee of five, permission was secured from Van Riper for the holding of a meeting during the evening iii the visitors' room at the respondent's plant. At such meeting, which was attended only by the employees who had con- stituted the employee representatives under the Employee Representa- tion Plan, the proposed constitution and bylaws were discussed. A proposal was also made that O'Meara, be requested to allow the em- ployees to use the visitors' room regularly for meetings, a fee to be paid for such use. The employees attending the meeting communi- cated with O'Meara who came to the .meeting and advised the em- ployees that he would not be able to permit them to hold meetings in the visitors' room at the plant. O'Meara thereafter stayed at the meeting and entered into the discussion which took place relative to the Conference Board which had existed at the plant and relative to labor organizations in general. The meeting ended without anything being definitely decided upon with regard to organization of the employees. About a week after this meeting, Hassett discussed with Dean, who had apparently become dissatisfied at the failure of the employees to adopt the type of plan suggested by him, the continuation of plans for formation - of an organization of employees. Hassett suggested that Bernard Boyle, a local attorney who had been a foreman for the respondent about 10 years previously, be asked to assist in the forma- tion of an organization. It was agreed that Dean should turn over 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Hassett the bylaws and constitution which Dean had previously drafted and that Hassett should submit them to Boyle: Shortly after the above conversation, Hassett, Robert Washington; Eckert, Dean, and other employees, circulated throughout the plant petitions drafted by Dean which authorized the employee representa- tives elected under the Employee Representation Plan to continue to act as representatives of the employees . Some of the supervisory of- ficials of the respondent read the petitions and stood nearby while the,employees signed them. Thereafter, in the early part of June 1937 , Hassett communicated with Boyle who agreed to help form an organization of the employees. Boyle suggested that Hassett destroy the petitions which had been previously signed because of their soiled condition and this sugges- tion was apparently followed by Hassett . Boyle also stated that he would have application cards printed for signature by the employees.. On June 17, 1937, a meeting of employees of the respondent which was arranged by Hassett was held at the Polish Home located near the respondent's plant. At this meeting, presided over by Boyle, a motion was passed by the employees present that the employees form a labor organization . Boyle then outlined a proposed form of organi- zation which was discussed by the employees and suggested that the- employees elect officers . An election was then held at which Hassett was elected president, Washington vice president , and Joy Wilsey secretary. A board of directors, composed of two employees from each of the four plant divisions , was also chosen . The board included two employees, Antone Yablonski and Emmett Boggs, who had pre- viously served as employee representatives on the Conference Board under the Employee Representation Plan. The officers and board of directors were authorized to meet with Boyle and to draft a con- stitution and bylaws. Following the meeting on June 17 , Boyle suet with the officers and' members of the board of directors and a proposed constitution and 'bylaws were drafted for an organization to be known as "Armour's Employees Protective Association." Boyle also prepared membership application cards for such an Association and an active campaign was instituted with regard to the signing of such membership application cards. The record reveals that not only were the Association membership' application cards distributed in the plant with the knowledge and consent of the respondent's supervisory employees , but also that a number of the supervisory employees actively encouraged and assisted the Association members in their efforts. Dean testified that he circulated Association membership application cards in the presence of his foreman , Jack Sparks ; and that on several' ARMOUR AND COMPANY 691 ,occasions when he had difficulty procuring signatures of employees to the cards he reported this to Sparks who stated that he would speak to such employees. Dean also testified that Sparks commended him for his activities on behalf of the Association. Claude Lynch testified that Sparks promised to give him more work if he would induce the employees in his department to join the Association and that when he informed Sparks that this had been accomplished Sparks told him that he had done good work. David Collins testified that Sparks told him that he did not know why Collins wanted to belong to an organi- zation like the C. I. O. when the employees had a good one of their own in the plant. Sparks denied at the hearing the substance of the testimony of Dean, Lynch, and Collins. We are of the opinion, how- ,ever, in view of the entire evidence and the conclusions of the Trial Examiner with respect to the credibility of the various witnesses, that Sparks engaged in the. activities and made the statements attributed to him by Dean, Lynch, and Collins. We so find. Mitchell Wolski testified that during a period of about three weeks Hassett and Washington, employees who were active on behalf of the Association, frequently spent long periods of time in the sweet- pickle department soliciting members for the Association and that :such solicitation was carried out in the presence of Mike Bosilibac, assistant,, foreman, who raised no objection. Caroline Dixon testified to similar activity by Hassett in the pork-trim department in the presence of Joe Thill, assistant foreman. She also testified that the employees were told by Hassett in the presence of Thill that they would lose their jobs if they failed to join the Association. Charles Davenport testified that after Hassett and Washington unsuccessfully solicited him to join the Association, the assistant foreman, Joe Sweeney, told him "Charlie, you had better sign up with the Com- pany union. I would like to keep you on this pigs' feet job here, but I don't know whether I can or not." Catherine Ourada testified that Hassett and Washington often solicited employees for the Association in the pork-casing department in the presence of and without objec- tion on the part of Adolph Hanna, foreman. She also testified that -she frequently left his department with the permission of Hanna to <collect dues for the Association. Hassett denied at the hearing that lie participated in activity on behalf of the Association in the presence .of foremen; the various foremen denied that they were aware of solicitation for the Association in their departments or that they had themselves aided the Association. The Trial Examiner found in. his Intermediate Report that the testimony of the witnesses as set forth above was to be credited rather than the testimony of Has- :sett and the various foremen. We find that Bosilibac, Thill, Sweeney, and Hanna permitted solicitation for the Association in their depart- ments and that they. encouraged membership in the Association thereby 692 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD and by the other acts and statements testified to by the witnesses whose testimony we have considered herein. While assisting the Association, the supervisory employees of the respondent attempted to discourage membership in any other labor organization. Sylvester Morrison testified that his foreman, James Pesek, questioned him as to the progress which the C. I. O. was making among the employees and then stated that he had never seen a union which amounted to a damn, that all ' that the unions wanted was to collect the employees' money, to call a strike, and then to abscond with the funds. Nels Peterson testified that after. he became an officer of the C. I. O. Pesek told him it was foolish for him "taking a job as officer anyway in the union" and "that is where you get all the burn of the tick." Dean testified that his foreman,. Sparks, stated to him his opposition to the C. I. O. and termed it a communistic and radical organization. Claude Lynch and Grover Smith testified that Sparks stated that the respondent was going to call in all its hog buyers if the C. I. O. continued its activity in the plant. We find that Pesek and Sparks made the statements attributed to them. At a meeting of employees held at the Polish Home on June 30, 1937, the proposed constitution and bylaws were adopted and the name "Armour's Employees Protective Association" was agreed uponi. About this same date, the Association notified the respondent that it had as members more than 51 per cent of the respondent's employees and requested recognition as exclusive bargaining representative of the employees. The respondent employed a firm of certified public accountants to check the membership cards submitted by the Associa- tion with the employment records of the respondent. During the period of the check, which took approximately 8 days, Joy Wilsey, an employee who was secretary of the Association, was permitted by O'Meara to assist in the making of the check and was paid for the time thus spent. On July 10, 1937, the certified public account- ants informed the respondent that 63 per cent of the respondent's employees were members of the Association and 2 days later the respondent recognized the Association as the exclusive bargaining representative of its employees. Thereafter a series of conferences were held by the bargaining committee of the Association with offi- cials of the respondent and as a result thereof the respondent gave various wage increases. There was apparently no attempt on the part of the Association to obtain a contract with the respondent. We think it clear from, the facts set forth above that the respond- ent, through its supervisory employees, indicated unmistakably its approval of an organization such as the Association and its disap- proval of the organization affiliated with the C. I. O. The super- visory employees of the respondent not only allowed widespread ARMOUR AND COMPANY 693 solicitation and other activity on behalf of the Association in the plant during working hours, but actively aided and assisted the As- sociation by their acts and statements set forth above. Once the Association was organized the respondent recognized it as the ex- clusive bargaining representative of its employees notwithstanding the fact that it knew that the employees had been afforded no oppor- tunity free from coercion and interference to designate a bargaining representative. We find that the respondent has dominated and interfered with the formation and administration of the Association and contributed support to it. We further find that thereby and by the acts and statements of its supervisory employees in opposition to any other labor organization the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The allegedly, discri?minatory discharges and lay-offs The complaint, as amended at the hearing, alleges that the re- spondent discharged , Charles R. Jones and Ann Lochard, and there- after refused to reinstate them , because of their activity on behalf of the United, and further that the respondent laid off Nels Peterson, Anton Vinski, Mitchell Wolski, Stanley Wolski , Charles Davenport, Claude Lynch, James Dean, David Collins , Chaxles . Waltrip, and Sylvester Morrison , and thereafter refused to give them regular and steady employment , for the reason that they -joined and assisted the United . The Trial Examiner found that the "proof regarding the discharges and lay-offs of Charles Waltrip , David Collins, Charles R. Jones, Anton Vinski, Ann. Lockhard, and Mitchell Wolski is not sufficiently clear and convincing to warrant a finding that they were discriminated against by reason of union activities." He recom- mended that the complaint in so far as it related to said employees be dismissed . The United filed no exceptions to the aforesaid find- ings and recommendation of the Trial Examiner. We find that the respondent has not discriminated in regard to the hire and tenure of employment of Charles Waltrip, David Collins, Charles R. Jones, Anton Vinski, Ann Lochard, and Mitchell Wolski, thereby encouraging or discouraging membership in. a labor organization. The Trial Examiner made no finding or recommendation with regard to Claude Lynch. Nor did the United file any exceptions with regard to the failure of the Trial Examiner to do so. We are of the opinion , moreover, that the evidence does not sustain a finding that the respondent discriminated with respect to his hire and tenure of employment. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has not discriminated with regard to the hire and tenure of employment of Claude Lynch, thereby encouraging or discouraging membership in a labor organization. The Trial Examiner found that the respondent discriminated with regard to the hire and tenure of employment of Stanley. Wolski, Charles Davenport, Sylvester Morrison, James Dean, and Nels Peter- son, and recommended that the respondent be ordered to reinstate said employees and make them whole for any loss of pay suffered by reason of the respondent's discriminatory acts. The respondent filed exceptions to the aforesaid findings and recommendation of the Trial Examiner. The respondent contends that due to unfavorable business conditions it found it necessary from time to time to dis- charge or lay off various of its employees and that the discharges and lay-offs in question were due solely to factors other than union affiliation or activity. The evidence shows in this connection that during the past few years production at the Omaha plant had steadily decreased and that during the period in question the plant was oper- ating at only approximately 50 per cent of its, capacity. Nels Peterson was first employed by the respondent in June 1929 and worked for the respondent on various occasions thereafter. His employment was principally in the sheep-dress department. At all times after January 7, 1937, he was active on behalf of the C. I. O. union in the plant and was secretary and treasurer of the organiza- tion which subsequently became the United. On April 22, 1937, the respondent laid off about 20 to 25 employees in the sheep-dress department, including Peterson. The respondent did not at this time retain in the department any employee who had less seniority than Peterson. On April 27, 1937, the respondent re- employed a number of persons in the sheep-dress department, in- cluding two persons with less seniority than Peterson. The latter was not,, however, qualified to do the work to which the two men were assigned. On July 31, 1937, the respondent recalled Peterson and the remaining men laid off on April 22. Peterson testified that his foreman, Tony Pesek, at that time told him that he should have joined all the unions in the plant as the other employees had done and that it was foolish for him to have taken a job as an officer in, the union. Peterson worked until August 3, 1937, at which time he was laid off together with a large number of other employees in his department. He did not at that time have seniority over any employees retained by the respondent. Peterson was again employed by the respondent on August 25, 1937, and worked until August 31, 1937, at which time he quit to work with the W. P. A. He testified that he took such action because his lay-off of more than 60 days fol- lowing April 22, 1937, took away his seniority rights and precluded a guarantee of any regular employment with the respondent. ARMOUR AND COMPANY 695 We conclude that the evidence does not establish that the respond- ent laid off Peterson on April 22, 1937 , or thereafter, because of his union membership or activity . We find, therefore, that the re- spondent has not discriminated against Nels Peterson in regard to his hire and tenure of employment , thereby encouraging or discourag- ing membership in a labor organization. Stanley Wolski was first employed by the respondent in September 1934, but was laid off on numerous occasions because of lack of work. He joined Local No. 153, which was subsequently chartered as the United, in June 1937 at which time he was working in the sweet- pickle department and thereafter wore his C. I. O. button in the plant.. Shortly before July 7, 1937 , Robert Washington, at that time vice president ofthe Association, advised Wolski to become a member of the Association if he desired to retain his job. There is no show- ing, however , that the respondent knew of or was responsible for the statement made by Washington. On July 7, 1937, Wolski was laid off allegedly because of lack of work . Wolski testified that at that time the respondent retained in its employ in the sweet-pickle de- partment, George Booker and Frank Cera , two employees with less seniority . The evidence shows, however, that Booker was also laid off on July 7, 1937, and that Cera had seniority over Wolski in the sweet-pickle department. Wolski was reinstated on November 19, 1937, and again , laid off on November 29, 1937. He was thereafter laid off and reinstated on several occasions . The evidence does not establish that any employee with less seniority was retained by the respondent at the time of the various lay-offs of Wolski. We find that the respondent has not discriminated against Stanley Wolski in regard to his hire and tenure ' of employment, thereby en- couraging or discouraging membership in a.labor organization. Charles Davenport had been in the respondent 's employ at various times since 1927. He began to work in the sweet-pickle department on December 4, 1935, and was employed regularly in that department until August 4, 1937 . He joined Local No. 153, which was subse- quently chartered as the United , on June 8, 1937, and thereafter wore a C. I. O. button in the plant . Prior to August 4, 1937, he was asked to join the Association by members of the latter organization but refused to do so. On August 4, 1937 , he was laid off allegedly be- cause of lack of work. At the time of his lay -off, Davenport had seniority over a number of the employees in his department who were retained by the respondent . The respondent contends , however, that the employees retained at the time were better qualified than Daven- port at various key operations and that the respondent deemed it necessary to retain such keymen when the gang was reduced. Al- though Davenport testified that he could perform the operations in 190935-40-vol. 14--45 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question, the .evidence discloses that he was less experienced in such operations: than- the employees; retained by the respondent. On September'24,.1937, Davenport was called back to work by the respondent in the curing department. On the following day, as we have noted- above, Joe E. Sweeney, assistant foreman of the curing department, told him, "Charlie, you had better sign up with the Com- pany union. I. would like to keep you on this pigs' feet job here but I don't know whether I can or not." Thereafter, Davenport re- mained in the respondent's employ until October 8, 1937, at which time he was again laid off allegedly because of a lack of work. Six other employees were laid off in the department at the same time. There is no evidence that any employee retained in the curing depart- ment at that time had less seniority than Davenport. Having failed after October 8 to secure further employment with the respondent, Davenport left Omaha on October 25, 1937. There is no evidence that the respondent took on any employees in the curing department or sweet-pickle department between October 8 and October 25, 1937. Although we think that. the statement which Sweeney made to Davenport on September 25, 1937, raises a doubt as to the real reason for the lay-offs of Davenport, we conclude that the evidence is insufficient to establish that the respondent discriminated against Davenport. We find that the respondent has not discriminated against Daven- port in regard to his hire and tenure of employment, thereby en- couraging or discouraging membership in a labor organization. Sylvester Morrison was employed by the respondent on various occasions beginning in August 1928 and was at all times after Febru- ary 1937 active in union activities at the Omaha plant. In May 1937, O'Meara, the plant superintendent, warned him against his union activity and advised him to discontinue it. On June 25, 1937, Morrison was elected president of United Packinghouse Workers Local. Industrial Union No. 153, which was chartered subsequently as the labor organization herein called the United. On July 2, 1937, the respondent laid off Morrison and approxi- mately 15 other employees in the beef-offal department. Morrison had first begun to work in the beef-offal department in March 1929, but his employment in that department had- been interrupted on a number of occasions by lay-offs, sickness, and work in the beef -clean- up department for a period in 1934. He contends that at the time of the lay-off s on July 2, 1937, the respondent retained in the beef-offal department 7 employees who had less seniority than he. The re- spondent claims, on the other hand, that all the 7 employees, with the possible exception of Leonard East, had greater seniority because of a break in Morrison's seniority due to employment in the beef- clean-up department for more than 60 days in 1934. Leonard East, ARMOUR AND COMPANY 697 who was laid off the.day after Morrison's lay-off, was qualified to do, paunch trimming- which Morrison admittedly was not- qualified to do. On July 9, 1937, Morrison was; recalled by the. respondent at. which time East was also -recalled. ; Thereafter Morrison was laid off and recalled to employment on numerous occasions. -He was last recalled to employment 3 days prior to the hearing. At the time of the var- ious lay-offs after July 2,,the respondent retained in the beef-offal department some of the employees over whom Morrison claims seniority. Under all the circumstances, we conclude that it has, not been es- tablished that the respondent discriminated against Morrison because of his union affiliation or activity. We think it unnecessary in this connection to determine, whether Morrison's employment in the beef- clean-up department in 1934 caused a break in his seniority in the beef-offal department. We think it has not been established that the respondent proceeded on a basis other than its belief that such em- ployment did cause a break in Morrison's seniority under the respondent's general rules with respect to seniority. We find that the respondent has not discriminated against Sylvester Morrison in regard to his hire and tenure of employment, thereby encouraging or discouraging membership in a labor organization. James Dean was first employed by the respondent in January 1925 and worked for the respondent on numerous occasions thereafter. He was an employee representative on the Conference Board and thereafter became active in the Association. He served as a steward of the Association until about the middle of November 1937. At that time, he resigned from the Association and became a member of the C. I. O. Union in the plant. He was elected a steward of the latter organization shortly after he joined it and on January 1, 1938, was chosen as president of the organization. On December 8, 1937, at which time Dean was working in the hog- cut department, the respondent laid -off approximately 25 of the approximately 90 employees in the hog-cut department. Dean was included in this lay-off. He was, however, reinstated 3 days later on December 11, 1937, at which time the other laid-off employees were reinstated. On the latter date, Dean was instrumental in calling a stoppage of work in his department for a short period of time, in protest against the solicitation in the plant on behalf of the Associa- tion by Claude Lynch, an employee. Dean thereafter continued to work until February 10, 1938, at which time he was laid off together with about 25 employees in his department. He was again reinstated to employment on February 18, 1938, and was working for the respondent at the time of the hearing. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dean contends and the evidence , indicates that the respondent retained in its employ at the time Dean was laid off on December 8, 1937, and on February 10, 1938, a number of employees with less seniority than Dean. The respondent claims, however, that due to the reduction in force it was necessary to retain men who. could per- form a number of jobs and that Dean was not as qualified in this regard as the men retained. The evidence supports this claim of the respondent. Under all the circumstances, we conclude that the evi- dence does not establish that Dean was discriminated against on account of his affiliation in or activity on behalf of a labor organization. We find that the respondent has not discriminated against James Dean in regard to his hire and tenure of employment, thereby encouraging or discouraging membership in a labor organization. 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 respond- ent described in Section I above, have a close, intimate, 'and sub- stantial 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 Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging in such practices. Moreover, we shall order the respondent to take certain affirmative action which we deem necessary to effec- tuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the Association. We shall order the respondent to withdraw all recognition from and disestablish the Association as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. Since we have found that the respondent has not discriminated against the persons named in the complaint as amended in regard to their hire and tenure of employment, we shall dismiss the complaint in so far as it pertains to said alleged discriminations. VI. THE QUESTION CONCERNING REPRESENTATION On April 1, 1938, Local No. 153 of the United Packinghouse Workers Industrial Union, which as we have noted thereafter became ARMOUR AND COMPANY 699 the United, informed the respondent by letter that it represented a majority of 'the employees of the respondent at its Omaha plant and requested recognition as exclusive bargaining representative. By letter dated April 11, 1938, the respondent refused to grant such recognition, stating that the Association had already been granted recognition as bargaining representative at the Omaha plant and that the matter of representation was before the Board for determination. In its petition, as amended, the United claims to represent a majority of the respondent's employees in an appropriate unit and requests certification as exclusive bargaining representative. , We find that a question has arisen concerning representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT The United claims that the appropriate unit should consist of all hourly paid and piece-work production and maintenance employees of the respondent at its Omaha plant, exclusive of foremen, fore- ladies, assistant foremen, gang leaders, all other employees in a supervisory capacity, clerical and office workers, scalers, checkers, yardmasters, students, policemen and watchmen, firemen, restaurant employees, car-line employees, workers in the employees' and whole- sale markets, truck drivers, general office garage employees, and employees in country trucking. The respondent objected to the exclusion from the unit of the scalers, checkers, yardmasters, res- taurant employees, car-line employees, workers in the employees' and wholesale markets, truck drivers, general office garage employees, employees in the country trucking, and gang leaders. Since the United is the only bona fide labor organization here involved and since the exclusion of the employees in question is not inconsistent with its claims relating to the other employees, we shall exclude the employees in question from the bargaining unit.? We find that all hourly paid and piece-work production and main- tenance employees of the respondent at its Omaha plant, excluding 7 See Matter of Armour & Company and Packing House Workers Organizing Committee for United Packing House Workers, Local $47, 8 N. L. R . B. 1100. 700 DECISIONS OF' NATIONAL-LABO'R RELATIONS BOARD foremen, foreladies, and assistant foremen, gang 'leaders, all other employees 'in a supervisory capacity, clerical and office workers, Scalers, checkers, yardmasters, students, 'policemen and watchmen, firemen, restaurant employees, car-line employees, workers in the employees' and wholesale markets, truck drivers, general office garage employees, and employees in country trucking, constitute a unit appropriate for the purposes of collective bargaining and that said unit will ' insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and other- wise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES There was introduced in evidence a pay roll of the, respondent for the week ending February 18,. 1939, containing the names of approxi- mately 1,150 persons in the unit which we have found to be appro- priate. The United submitted in evidence a list containing the names of 711 persons whose names appeared on the February 18 pay roll and who were alleged to be members of the United. The United also submitted in evidence membership application cards of 40 addi- tional persons. The authenticity of these cards was, however, con- tested by the respondent. The respondent also contended that approximately 192 of the persons whose names appeared on the United's membership list were no longer members in good standing. As we have noted above, the Trial Examiner excluded offers of proof of alleged acts of intimidation and coercion by the United for the purpose of forcing the. employees to join the United. We have con- cluded above that the exclusion of this evidence was incorrect. We ,think that such evidence is proper with regard to the issue as to whether an election should be held.8 In view of the entire record, we conclude that the question con- cerning representation which has arisen can' best be resolved by an election by secret ballot. We shall not,-however, now fix the date for .the holding of the. election since it should not be held until sufficient time has elapsed to permit a free choice of representatives unaffected by the respondent's unfair labor practices. 'We shall, at the time we specify the date, on which the election is to be held, also specify the .date on "the' basis of which eligibility to vote in the' election shall be determined. Since we have found that the respondent dominated and interfered with the formation and administration of the Association, and that .the Association must be disestablished as a bargaining representative, -no' 'provision shall be made for the designation of the Association upon the ballot. 8 See footnote 6. ARMOUR AND COMPANY 701 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 Union No. 8, United Packinghouse Workers of America, and Armour's Employees Protective Association, are labor organiza- tions within the meaning of. Section 2 (5) of the Act. 2. ' The respondent, by dominating and interfering with the forma- tion and administration of Armour's Employees Protective Associa- tion and contributing support to it, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2)- of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 .of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. A question affecting commerce has arisen concerning the repre- 'sentation of the employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 7. The hourly paid and piece-work production and maintenance employees of the respondent at its Omaha plant, excluding foremen, foreladies, and assistant foremen, gang leaders, all other employees in a supervisory capacity, clerical and office workers, scalers, checkers, yardmasters, students, policemen and watchmen, firemen, restaurant employees, car-line employees, workers in the employees', and whole- sale markets, truck drivers, general office garage employees, and em- ployees in country trucking, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond= ,ent, Armour and Company, Omaha, Nebraska, and its officers, agents, successors, and assigns shall: . 1. Cease and desist from : . (a) In any manner dominating or interfering with the adminis= tration of Armour's Employees Protective Association, or with the 702 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD formation or administration of any other labor organization of its employees and from contributing support thereto; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Withdraw all recognition from Armour's Employees Protective Association as the representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor dis- putes,.wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said organization as such representative; (b) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days, stating (1) that the respondent will cease and desist as aforesaid, and (2) that the respondent will withdraw all recogni- tion from Armour's Employees Protective Association as the repre- sentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and that said organization is completely disestablished as such representative; (c) Notify the Regional Director for the Seventeenth 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 as amended be dismissed 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. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Armour and Company, Omaha, Nebraska, an election by secret bal- lot shall be conducted at such time as the Board shall in the future direct, under the direction and supervision of the Regional Director for the Seventeenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, ARMOUR AND COMPANY 703 of said Rules and Regulations, among the hourly paid and piece-work production and maintenance employees of the respondent at its Omaha plant, who were employed by the respondent during a pay-roll period which the Board shall in the future specify, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding foremen, foreladies, and assistant foremen, gang leaders, all other employees in a supervisory capacity, clerical and office workers, scalers, checkers, yardmasters, students, policemen and watchmen, firemen, restaurant employees, car-line employees, workers in the employees' and wholesale markets, truck drivers, general office garage employees, and employees in country trucking, and also ex= eluding those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Local Union No. 8, United Packinghouse Workers of America, of the Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election. [SAME TITLE AMENDMENT TO DIRECTION OF ELECTION August 19, 1939 On August 15, 1939, the National Labor Relations Board, herein called the Board, issued a Decision; Order, and Direction of Election in the above-entitled proceeding. The Direction 'of Election pro- vided that an election by secret ballot be conducted at such time as the Board should in the future direct, among the hourly paid and piece-work production and maintenance employees of Armour and Company, Omaha, Nebraska, herein called the respondent, who were employed by it at the Omaha plant during a pay-roll period which the Board shall in the future specify, including employees who did not work during such a pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding foremen, foreladies, and assistant foremen, gang leaders, and all other employees in a supervisory capacity, clerical and office workers, scalers, checkers, yardmasters, students, policemen and watchmen, firemen, restaurant employees, car-line employees, workers in the employees' and wholesale markets, truck drivers, general office garage employees, and employees in country 704 DECISIONS OF NATIONAL` LABOR RELATIONS BOARD trucking, and also excluding those :employees who have since quit or.7!:Wen:'discharged for cause, to determine whether or not they desire'to be represented by Local Union No. 8, United Packinghouse Workers of America, of the Packinghouse Workers Organizing Com- mittee; affiliated with -the Congress of Industrial Organizations, for the purposes' of collective bargaining. On August 17, 1939, United filed with .the Board at Washington, D. C., a motion requesting the Board to direct that the election be held immediately. Since the purpose of delaying the election was to allow the dissipation of the effects of unfair labor practices directed against the United, the Board sees no reason for not grant- ing this request. The Board, therefore, hereby amends the above-mentioned Direc- tion of Election by striking therefrom the words, "at such time as the Board should in the future direct," and substituting therefor the words, "within fifteen (15) days from the date of this Amendment to Direction of Election," and by striking therefrom the words, "during a pay-roll period which the Board shall in the future specify, including employees who did not work during such a pay- roll `period because they were ill or. on vacation and employees who were then or have since been temporarily laid off," and substituting therefor the words, "during the pay-roll period immediately pre- ceding the date of this Amendment to Direction of Election, includ- ing employees who did not work during such a pay-roll period because they were ill or on vacation and employees who were laid off within sixty (60) days prior to said pay-roll period." MR. WILLIAM M. LEISERsoN took no part in the consideration of the above amendment to Direction of Election. ,14-N. L. R. B., No. 48a.