Rath Packing Company

In the Matter of RATH PACKING COMPANY and UNITED PACKING HOUSE WORKERS LOCAL INDUSTRIAL UNION No. 600, THROUGH THE PACKING HOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-686-Decided August 18, 1939 Meat Processing Industry-Interference, Restraint , and Coercion-Employee Representation Plan: form and operation ; order disestablishing-Discrimination: charges of, not sustained. Mr. Stephen M. Reynolds, for the Board. Swisher, Swisher & Cohart, by Mr. B. F. Swisher, of Waterloo, Iowa, for the respondent. Mr. William Strong, of counsel to the Board. DECISION AND ORDER STATEMENT OF TILE CASE Upon charges and amended charges duly filed by United Packing House Workers, Local, Industrial Union No. 600, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated April 13, 1938, against Rath Packing Company, Waterloo, Iowa, herein called the respondent, alleging that the ,respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1),\(2), and (3) and Section 2 (6) and (7) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the United. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges in substance that the respondent (1) dominated and interfered with the formation and administration of The Employees Repre- sentative Council of Plant Employees of the Rath Packing Com- 14 N. L. R. B., No. 59. 805 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, a labor organization, herein called the Council, and rendered financial and other support to it, (2) discouraged membership in they United by discriminating in regard to the hire and tenure of em- ployment of two employees and the terms and conditions of employ- ment of a third because they had joined and assisted the United, and (3) by the foregoing acts, and by advising, urging, and warning its employees to refrain from becoming or remaining members of the Union, interfered with,. restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The re- spondent filed an answer and, at the hearing, an amended answer, denying the unfair labor practices charged. Pursuant to the notice, a hearing was held at Waterloo, Iowa., on April 25, 26, and 27, 1938, before J. J. Fitzpatrick, the Trial Ex- aminer duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing on the issues, was afforded all parties. In the course of the hearing, the Trial Ex- aminer ruled upon numerous motions and 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 rulings are hereby affirmed. The respondent filed a brief with the Trial Examiner, wherein, on various grounds, it moved to dismiss the complaint. The motion is hereby denied. Shortly before the close of the hearing, the respondent made a motion for extension of time to file briefs and arguments. This motion was granted. On May 21, 1938, the Trial Examiner issued his Intermediate Re- port, wherein he found 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, and recommended that the respondent cease and desist from its unfair labor practices, and take certain affirmative action remedial of their effect. He found further, that the respondent had not en- gaged in unfair labor practices within the meaning of ?Section 8 (3) of the Act, and recommended that the complaint in that regard be dismissed. Thereafter, the respondent filed exceptions to the Inter- mediate Report. On June 30, 1938, pursuant to permission granted by the Board, the respondent filed a brief in .support of its excep- tions. The Board has fully considered the respondent's exceptions to the Intermediate Report, and the arguments advanced by the respondent in its briefs, and, in so far as the exceptions are incon- sistent with the findings, conclusions, and order set forth below, finds them to be without merit. RATH PACKING COMPANY 807 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Rath Packing Company is an Iowa corporation, engaged at a plant at Waterloo, Iowa, in slaughtering livestock, and processing and mar- keting livestock products. In 1937 it slaughtered 1,318,990 head of livestock, consisting of hogs, cattle, sheep, and calves. Its total sales for that year approximated $40,000,000. The respondent obtains ap- proximately 20 per cent of its livestock from points outside the State of Iowa, and sells and ships over 90 per cent of its products to pur- chasers outside of Iowa. It has branch offices in a number : of the principal cities throughout the United States, uses about 28 registered trade-marks, and employs approximately 350 salesmen. In 1937 the respondent employed between 2,000 and 2,500 persons at its plant. II. THE ORGANIZATIONS INVOLVED United Packing House Workers, Local Industrial Union No. 600, is a labor organization affiliated with the Committee for Industrial Organization, admitting to membership hourly paid production em- ployees of the respondent. The Employees Representative Council of Plant Employees of the Rath Packing Company is an unaffiliated labor organization, ad- mitting to membership plant employees of the respondent, excluding supervisory and clerical employees, and timekeepers. III. THE UNFAIR LABOR PRACTICES A. Domination of the Council 1. The Council's origin The Council had its inception at a meeting called some time in 1933 by A. D. Donnell, the respondent's assistant superintendent, and attended by Charles G. Groth, head test clerk, and L. A. Davis, chief timekeeper. A printed booklet containing a constitution and bylaws designed for a labor organization "appeared" at the meeting, and plans were made for an election to be held among the employees for the purpose of selecting representatives. Groth and Davis, testify- ing at the hearing, could not recall whether anyone else was present at the meeting, or who provided the constitution and bylaws. 190935-40-vol. 14-52 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Groth supervises tests on livestock received at the respondent's plant. Davis makes up pay rolls and handles complaints regarding time and pay, supervising a staff of clerical employees. We find that Donnell, Groth, and Davis are supervisory employees of the re- spondent and that they met, at Donnell's call, in the respondent's interest. We find, further, that Groth and Davis, in their subse- quent activities on behalf of the Council acted and continued to act at the respondent's instance and in its interest. Groth prepared and distributed notices announcing the projected election, and arranged for tellers. An election was held and, shortly thereafter, the first meeting of the Council took place in the store- room of the respondent's plant, presided over by Davis, with Groth acting as secretary. The labor organization which thus came into being was initiated solely by agents of the respondent and without voice by the employees except in so far as they voted in the election. arranged by Groth. The constitution and bylaws which "appeared" at the meeting called by Donnell governed the new labor organization from its inception. We find that the respondent provided the con- stitution and bylaws and imposed them upon the Council and that they were never submitted to or -adopted by the employees. 2. The Council's constitution and bylaws By July 5, 1935, the effective date of the Act, the 1933 constitu- tion and bylaws had been changed in a few respects and a new book- let containing these instruments, issued by the respondent in 1934. governed the Council. In November 1935 the respondent suggested to the Council certain changes in the constitution and bylaws, in- tended to eliminate provisions which appeared to be in conflict with the Act. The Council removed these provisions. Again, in 1937, after the Act had been declared constitutional, other patently objec- tionable provisions were simply stricken out with ink by one of the respondent's representatives on the Council. All the editions of the constitution state the purpose of the Council, provide for its composition and enumerate its • powers, duties, and procedures. They will be dealt with collectively in so far as they are similar. It is provided in the constitution that all the employees of the re- spondent who had been in its employ for at least 90 days, except those in supervisory and clerical classifications, can participate in the election of employee representatives to the Council. In addition, employee representatives are required to be citizens of the United States, and must have been in the employ of the respondent for at least 1 year. Provision is made for recall of representatives and for replacement of representatives whose offices become vacant. RATH PACKING COMPANY 809 The constitution provides that Council representatives are to per- form their functions as far as possible during regular working hours and that they are to receive their regular pay for all time so spent. The plant is divided into 9 districts ,l each of which elects 2 repre- sentatives for 1-year terms, half of the divisions electing in Septem- ber and the other half in March. The elected representatives appoint an equal number of so-called "selected representatives." Until its November 1935 revision, the constitution provided that the respondent was to appoint "management representatives," whose place is now taken by the "selected representatives." The two groups of representatives vote as separate units, a majority vote of each being required to determine the unit vote. All actions of the Council are predicated upon the approval of both groups. The inability of the two groups to reach an agreement results in a reopening of the matter for further discussion or the presentation of a substitute or compromise recommendation. Where there is a tie vote, the Council is also empowered to submit the proposition being considered to the president of the respondent, who is to appear before the Council personally or by representative to endeavor to adjust the matter and secure a decisive vote. The Council is empowered to hear and consider various matters enumerated in the constitution, and to make recommendations con- cerning them to the respondent. The execution of the recommendations is dealt with in the constitution in the following manner : When the Council reaches an agreement on any matter, its recommendation is referred to the plant superintendent for execution ; the superintendent may, at his discretion, refer it to the president of the Company with- in a reasonable time, if he considers the matter of sufficient impor- tance ; the president then may either order its immediate execution or refer it to the Council for reconsideration. It is provided further that the Council is to be concerned solely with recommendations and that the execution of the recommendations remains with the respondent, except that the manner of that execu- tion may be a subject for consideration by the Council at any time. The constitution and bylaws provide the manner of conducting nominations and elections. If the balloting in an election of repre- sentatives results in a tie, the election is decided by lot. It is provided that meetings of the Council are to be held once a month and also at whatever other times the Council deems neces- sary. No meeting can be held without a quorum consisting of a majority of the employee representatives plus a majority of the selected representatives. The constitution provides that the respond- s Originally there were but eight districts. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent "shall provide suitable places for meetings and shall bear all the expenses incident to them and to the efficient promotion of the activi- ties of the Representative Council." Until its 1935 revision, the constitution provided that the chairman and the secretary of the Council were to be appointed by the re- spondent, and that neither was to have any vote in the Council's decisions. The 1935 revision provides for selection of these officers by the Council itself. None of the editions of the constitution con- tain any statement of qualifications for these offices. The chairman, subject to the approval of the Council, appoints the standing committees enumerated in the bylaws, and also all special committees, composed of an equal number of elected and selected representatives. It is provided in the constitution that the Council shall enact such bylaws as are necessary for the operation of the plan and that the constitution may be amended at any time by means of a petition signed by two-thirds of the elected representatives and two-thirds of the selected representatives. Finally, the constitution provides that the respondent can refer to the Council any matters which it should consider, and provides that the management of the respondent's properties, the direction of its working force, the right to hire or transfer, and the right to remove employees from duty because of lack of work or other legitimate reasons, is vested exclusively in the respondent, and, except as ex- pressly restricted in the constitution, that these rights are not to be' abridged. The bylaws enumerate the duties of the two officers of the Council. In. - addition to appointing the committees, the chairman also pre- sides at all meetings of the Council. The secretary, keeps the min- utes of all meetings, and it is further provided that "he shall trans- mit to the Management a copy of all recommendations and actions taken by the Representative Council." The secretary also acts as chairman of all committees. The standing committees and their duties, as set forth in the by- laws, are as follows: (a) grievance committee-handles all com- plaints; (b) safety committee-conducts safety campaigns and is responsible for the Council's part in accident prevention in the plant; it also acts in an advisory capacity to the respondent with respect to the lessening of all hazards; (c) sanitation committee-inspects plant facilities, instructs employees in the handling and care of equip- ment, and recommends improvements in sanitary conditions; (d) rules committee-drafts bylaws, provides rules of order governing Council meetings, and has blanket jurisdiction over subjects not in- cluded within the jurisdiction of other committees. RATH PACKING COMPANY 811 There are also provisions concerning nominations and elections, and the time and manner in which they are to be conducted. The bylaws provide that "the Representative Council shall hold its regular monthly meetings at 10:30 a. m. on the first Tuesday of each month or some other time agreed upon." The standing com- mittees are to meet at least. once during the 6 working days preced- ing the regular meeting of the Council, and both the standing com- mittees and the Council may be called to a special meeting at any time necessary. Further provisions deal with the freedom of employees performing Council duties, the right of the Council to make investigations in any part of the plant, and the right of representatives to withdraw from Council meetings for private discussion. Any employee who feels aggrieved is granted the privilege of appealing to higher officials of the respondent after he has sought to have the matter in question adjusted by conference, in person or through his regularly elected representative, with his foreman, the departmental superintendent, plant superintendent, and the Council. Nowhere in the constitution or the bylaws is there any provision for dues or for the office of treasurer. Likewise, there is no provision for membership in the plan or for general meetings of the employees. The Council, because of the unit-vote rule, can take no formal ac- tion at all if but a small number of its members refuse to approve the action. The respondent, also because of the unit-vote rule, by its influence over but a small minority of the committee members can prevent the committees from taking any action. which it deems inadvisable. We find that the provisions of the constitution and bylaws give the respondent a large measure of control over the Council and over its employees' collective bargaining activities through the Council. Upon close examination, the constitution and bylaws reveal that they were designed by the respondent to deprive the employees of effective representation and to interfere with and prevent the free exercise by employees of their rights under the Act.2 3. Operation of the Council The respondent's domination of and control over the Council is further shown upon examination of the actual operation of the Council. Such operation is best revealed by the testimony of Davis 2 For further discussion regarding provisions of the type contained in the within constitution and bylaws , see Matter of International Harvester Company and Local Union No. 57, International Union, United Automobile Workers of America, 2 N. L. It. B. 310; Matter of Pacific Greyhound Lines, Inc . and Brotherhood of Locomotive Firemen and Bnginenien, 2 N. L. It . B. 431, order enforced in National Labor Relations Board v. Pacific Greyhound Lines, Inc ., 303 U. S. 272. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Groth. Although in 1935 the provision in the constitution call- ing for the appointment of the chairman and the secretary by the re- spondent was deleted, Davis and Groth continued to hold those offices and their tenure has never been contested. At the present time, and since the effective date of the Act, Davis and Groth, by their actions, have proved that they are still the representatives of the respondent. At no time since the inception of the Council have more than one-third of the employees participated in elections; an obvious in- dication of disinterest on the part of the employees as to the affairs and management of the Council. In the matter of the elected and selected representatives, the pro- cedure has been to rotate the offices so that the outgoing elected representatives are generally appointed as selected representatives. Thus, substantially the same individuals have been continually in office. The only recorded departure from this pattern is the case of one councilman, Oscar Leeper, against whom an unsuccessful at- tempt at removal was made in the early part of 1938, after he had presented a general grievance to certain officials of the respondent, and when it was discovered that he was also a member of the United. At the following election, Leeper was not reelected, nor was he sub- sequently appointed as a selected member of the Council. In the fall of 1937, a few of the employees, dissatisfied with the ineffectiveness of the Council, made an effort to ascertain the em- ployees' wishes as to another collective bargaining agent. The min- utes of December 8, 1937, reveal that the chairman of the Council, Davis, was requested to find out what could be done toward calling an election to determine the collective bargaining agent. Davis consented to look into the matter, but thereafter nothing was done. Until 1937 meetings of the Council were held on the respondent's premises and during working hours, in accordance with the pro- visions of the constitution. Committee meetings were held immedi- ately before the Council meetings. Those attending these meetings received full pay from the respondent, and no charge was made for the use of the respondent's premises. Groth testified that in 1937, after the Supreme Court had de- clared the constitutional validity of the Act, he felt that the provision of the constitution of the Council, wherein it is stated that the re- spondent should provide suitable places for meetings, and that the meetings and other necessary work of the Council should be carried on during the regular working hours as far as possible, was probably illegal under the Act. Having arrived at this conclusion, Groth, without consulting the Council, simply struck out in ink these pro- visions of the constitution. In reply to a question as to the purpose and effect of this action, Groth testified that he thought it advisable to amend the constitution in view of the provisions of the Act. RATII PACKING COMPANY 813 He further stated that he acted merely to guide further action by the Council itself "pursuant to the Wagner Act," and not for the purpose of effectuating an amendment of the constitution. The Council itself has never taken any formal action with respect to these deletions , but, since 1937, it has met after working hours in the respondent's cafeteria , for the use of which it now pays the respondent . The committees , however, continue to make free use of respondent's premises. Moreover, no deduction in pay is made for time spent by various employees on Council activities during their working hours. While there is no provision for the collection of dues, and the Council had no funds until June 1937, nevertheless it did incur ex- penses for stationery, ballots, placards, and notices, a tent in which elections were held, and the cost of the services of stenographers and tellers, for elections . All these expenses were paid by the respondent. In June 1937 the Council held a picnic for the express purpose of raising funds. Tickets for the picnic were sold at the plant dur- ing working hours, and the sum of approximately $190 was thereby collected . These are the only funds which the Council itself has raised. Upon acquiring these funds it appeared to Davis that the Council should have a treasurer . There is no provision in the con- stitution for such an office nor is there any record of any formal action ever haying been taken by the Council to create it . Notwith- standing this, the Council now has the office of treasurer, and Groth is its present incumbent. The respondent , through Groth and Davis , supervises and guides every action of the Council . Thus, it is the duty of the secretary to report to' the respondent every action of the Council affecting the respondent's ,interests. Groth testified that he has always fulfilled his duty in this respect and has always transmitted to the respondent copies of all proceedings . Groth qualified this testimony by stating that he has not transmitted to the management matters which did not involve it, but inasmuch as, under the constitution , the Council can act only upon matters enumerated therein, and inasmuch as all such matters involve the respondent , the qualification is without meaning. Grievances of employees and matters which were to be referred to the respondent were subjected to special consideration on the part of Davis. Although the rules committee has all residuary powers of the Council, Davis appoints a special committee at each Council meeting to discuss such grievances with the respondent's officials. The bylaws name the secretary as chairman of all standing and special committees of the Council. , . Davis, however, has always ap- 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed himself the chairman of the special committee on griev- ances and has accompanied it in the performance of its functions. Davis testified that 15 to 20 matters are discussed each time the com- mittee meets with the respondent's officials, consuming about 30 minutes time. Very often Davis, alone , consults with the respond- ent's superintendent regarding grievances and other Council matters, and thus disposes of the issues involved. The respondent has closed every avenue of bona fide collective bar- gaining. To preclude the possibility of insurgence on the part of Council members, the respondent in contravention of the provisions of the Council's constitution, which it itself supplied, has canalized all contact between the Council and the respondent 's officials through one of its supervisory employees on the Council , Davis. The effec- tiveness of the respondent's control was emphasized in one instance in particular, when a motion that the Council discuss with the re- spondent the possibility of making a contract for a 40-hour week, at straight time pay, did not even receive a second. , Since the Council failed to serve them properly, attempts to exer- cise their legitimate rights of collective bargaining outside of the Council were resorted to by employees . The testimony of Oscar Leeper reveals the results of such an attempt made after the Council had come into existence : Q. Were there any other kinds of matters that were ever con- sidered? A. Well, I had a grievance when I first went over there, that the sheep kill wanted a meeting with Mr. Rath, Mr. Donnell, and Mr. Morris, but never anything turn out about it. Q. Now, what was that grievance you presented? A. Well, the grievance itself was that the sheep kill thought as a body they should do better by meeting Mr . Rath, Mr. Don- nell, and Mr. Morris. We thought our boss a little bit beyond reason and the speed of the chain was a little too fast, and hours sought on Saturday was not .necessary, not necessary to start so late, and we saw if we could go direct to the management, we didn't think the management knew it, and we thought if we could go direct to management, we could get some results. That is the grievance that I presented. Q. Well, how was it considered in the council meeting? A. In the council meeting all they did was just to mark it down and take it and do nothing, but I was called to Jack Morris' office Q. Who is Jack Morris? A. He is the company superintendent. RATH PACKING COMPANY 815 Q. You say you were called to his office? A. Yes. Q. When? A. I don't remember exactly how long after the meeting it was, because I didn't expect what I got. He told me in a round about way that me and my wife were both working there and we were getting along nice and if I listened to all those fellows' troubles, it would get me into trouble, and I should just forget about it. Q. Forget about what? A. About the grievance that I had, about the meeting that I had asked for. And then at the next meeting, Chairman Davis, instead of read- ing off the results of what the grievance was, he said, "I guess Oscar and Jack have settled that already." Q. Who did he mean by Oscar and Jack? A. That is Jack Morris, the superintendent. He knew that I had been called to the office and had been told to keep quiet. Q. And as far as you know did any committee from the Coun- cil go to see Mr. Morris or any of the other officials about your grievance? A. No. Later I took it to Mr. Rath and he told me to go back to Mr. Morris. Q. Did you go back to Mr. Morris? A. No. I knew it would not do any good to go back. During the entire period of the existence of the Council this inci- dent is the outstanding attempt by employees of the respondent at collective bargaining through the facilities of the Council. The Council, whose primary function it was to handle matters of this nature, did nothing in this matter. It was testified that subsequently the sheep kill and another division did achieve some of their objec- tives, but not through the intervention or assistance of the Council. The impotence of the Council, whose activities are already strictly limited by the constitution, is most clearly brought out in the pro- cedure which it follows in securing action upon its recommendations. Upon reaching a decision that something should be done about some matters, the Council "might ask [the respondent] that they be im- proved." The Council's recommendation is directed to the superin- tendent, who, if he sees fit to do so, either puts it into effect or refers it to a higher official. A rejection by the superintendent puts an end to the entire matter. A rejection by the higher officials is usually in the form of a return of the proposition to the Council for reconsid- 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eration. Groth, testifying concerning this procedure, stated as follows : A. Well, they [the Council] might make recommendations as to the conditions in the plant of safety. and sanitation, or .changes in different ways. Q. Would you say that the Representative Council makes de- mands on the management? A. They don't make demands but make recommendations. Q. They simply suggest that certain conditions might be improved? A. Yes. They show that certain conditions exist and they might ask that they be improved. Q. And what if the management refuses to make the sug- gested changes? A. Well, there is nothing to do about it, I suppose. On the entire record we find that the respondent formed the Coun- cil, and, since the effective date of the Act, has dominated and inter- fered with its administration and has contributed financial and other support to it and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find, further, that the Council is incapable of serv- ing the respondent's employees as their genuine representative for the purposes of collective bargaining under the Act. B. The alleged discrimination The complaint, as amended at the hearing, alleged that the re- spondent acted in violation of Section 8 (3) of the Act in discharg- ing and refusing to reinstate Mrs. Joe (Luella) Gorman and Robert Harvester, and in influencing and interfering with the Credit Union in connection with an application for a loan by Archie Helm.,, 1. Luella Gorman. On July 31, 1937, the respondent, as part of a general lay-off, caused 20 girls, including Luella Gorman, to be dismissed. The separation was in accordance with the respondent's seniority policy and.the standing of each girl. Luella Gorman was s The original charge and complaint alleged that the discrimination as to Mrs. Gorman began on July 31, 1937, and as to Harvester, on November 4, 1937. In its answer, the respondent admitted that Gorman and Harvester were caused to cease work on those dates , but denied that this constituted a violation of the Act. At the close of the hearing the complaint and the charge were amended to conform to proof adduced, and the respondent was granted permission to file an amended answer. The amended com- plaint narrowed the dates as follows : Gorman from October 1, 1937, to December 27, 1937; Harvester from November 4, 1937, to December 29, 1937, and again from March 1.' 1938, until 2 weeks prior to the, hearing herein . The amended answer again denied discrimination. RATA PACKING COMPANY 817 sixteenth in seniority among the 20.4 On October 1, 19.37, all those who had been laid off with Gorman on July 31 had lost their senior- ity rights. Some rehiring had taken place and, by that date, those persons ' who had been employed previously by the respondent for a shorter period than Luella Gorman, but whose seniority already had been lost, were rehired. The complaint alleges that Luella Gorman was not reemployed because her husband, Joe, is a member of the United. Joe Gorman testified that he had been told by a girl named Casey, who in turn claimed to have been repeating a statement made to her by a girl named Padden, that the latter was told by the personnel manager's sister, Gladys Gillette, that her brother had instructions from the superintendent, Morris, to dispense with union members, or those likely to become union members. Joe Gorman also testified that he had spoken to Gladys Gillette, and that he had verified the statement. At the hearing, all this was denied by the Gillette girl .r, Neither Casey nor Padden were called upon to testify. The reasons for not rehiring Luella, as purportedly repeated by Padden and Casey, were also denied by Ray Gillette, the personnel manager, and by Morris, the superintendent. A conference between representatives of the respondent, repre- sentatives of the United, and representatives of the Board took place in December 1937, at which, it was claimed by the United, the re- spondent had agreed to hire Gorman and Harvester. The respond- ent denied that such an outright promise had been made, but con- ceded it had made a promise to reemploy them when vacancies occurred. On December 27, 1937, Luella Gorman was rehired by the respond- ent, but not in the canning room where she had been employed pre- viously. While employment in this new division was to have been at a lower entrance salary, because of her experience Gorman was paid at the same rate as she had been receiving previously. She was again laid off on March 1, 1938, and reemployed on April 18, 1938. While the circumstance of the hiring of other less experienced employees, who had been with the respondent a shorter time than Mrs. Gorman, is suspicious, it does not in our view, sustain the charge that she was discharged in violation of the Act. The hearsay testimony as to alleged discrimination is, in this instance, of slight probative value. Upon the entire record, we are of the opinion that A The respondent's seniority policy permitted employees to retain seniority in a division for a period of 60 days' absence from the particular division . No seniority which had accrued in one division was carried over to another division. A transfer from one division to another caused the- transferee to lose any seniority gained in the former division after working for 60 days in the latter division. 5 Gladys Gillette testified under her married name of Gladys Biemann. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the evidence does not sustain the charge that Luella Gorman was discriminatorily discharged. The complaint in that regard will accordingly be dismissed. 2. Robert Harvester. Robert Harvester, together with three other employees in the dry-cure department, was separated from the respondent's employ on June 7, 1937. Of those who left with him, two had less seniority and one had equal seniority. Subsequent to the December conference referred to above, Har- vester was reemployed by the respondent in another division on December 29, 1937, and worked until he was again laid off on March 1, 1938. Of the other three employees who had been laid off on June 7, 1937, one with less seniority and one with equal seniority were rehired approximately a month prior to Harvester's rehiring. On several occasions there had been some general conversations concern- ing unions between some of the respondent's supervisory officials and Harvester. These conversations together with a refusal by Har- vester's brother-in-law, Leeper, also an employee of the respondent, to distribute community fund cards, as requested by respondent's officials, and the rehiring of the other two persons who had less or equal seniority than Harvester, are the only facts offered to prove that the separation of Harvester from respondent's employ was in violation of the Act. Leeper was not discharged for his refusal to distribute community cards. The evidence does not sustain the allegation of discrimination with regard to Harvester's hire or tenure of employment. We shall, ac- cordingly, dismiss the complaint in that regard. 3. Archie Helm. It is alleged that the respondent influenced and dominated the credit union, and was instrumental in causing it to refuse a loan of $125 to Archie Helm, because of Helm's membership in the United. The credit union was organized in 1934 by the respondent's employees and operates under a charter issued by the State banking department. All the funds possessed by the credit union were deposited with it by employees. It has no funds belonging to the respondent. Any employee of the respondent may become a mem- ber of the credit union upon payment of a 25-cent membership fee, and is, thereafter, eligible to make deposits or to apply for loans. Applications are considered by a committee of the credit union, and a loan requires the approval of two out of three of its members. Appeals from ' decisions of the credit committee can be made to the board of directors of the credit union. On loans of less than $25, the borrower's signature alone is sufficient. Applications for loans above this sum must have, in addition to the applicant's signature, signatures of two cosigners, and, if the applicant. is married, also of his wife. RATH PACKING COMPANY 819 The treasurer of the credit union testified that on the morning after Helm's application for the $125 loan had been received, one of the cosigners, Edgeton, appeared and requested that his signature be stricken from the application, stating that Edgeton's wife had been told by Helm's wife that, upon the granting of the loan, she and Helm intended to leave town. At the hearing, Edgeton corroborated the treasurer. For this reason the loan was refused. Helm did not appeal the refusal to the board of directors. At the hearing Helm testified that a subforeman had once told him to remove his C. I. O. button if he desired to continue working at the plant. No other anti-union activity with regard to Helm was shown. The evidence in the record is insufficient .to sustain the charge of domination of the credit union by the respondent. We find that the loan of $125 applied for by Helm was refused by the credit union for reasons other than those alleged in the complaint. Accordingly, we shall dismiss the complaint with respect to Archie Helm. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities set forth in Section III, A, above, oc- curring 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent dominated and interfered with the administration of the Council and contributed support to it and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, we shall order the respondent to cease and desist from such unfair labor prac- tices. By reason of the respondent's acts, the Council cannot serve the employees as their genuine bargaining representative. In order to restore to the employees the rights guaranteed them under the Act we shall order the respondent to disestablish the Council as the repre- sentative of any of its employees for the purpose of collective bargaining. Upon the basis of the above findings of fact and upon the entire retard in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Packing House Workers Local Industrial Union No. 600, affiliated with the Committee for Industrial Organization, and 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Representative Council of Plant Employees of the Rath Packing Company, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of the Employees Representative Council of Plant Employees of the Rath Packing Company, and contributing of financial and other support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. 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. 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 discriminated in regard to the hire or tenure of employment or any term or condition of employment of Luella Gorman, Robert Harvester, or Archie Helin within the mean- ing 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, Rath Packing Company, and its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Dominating and interfering with the administration of the Employees Representative Council of Plant Employees of the Rath Packing Company, or the formation or administration of any other labor organization of its employees, and contributing support to Employees Representative Council of Plant Employees of, the Rath Packing Company, or to any other labor organization of its employees ; (b) In any other manner interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw recognition from Employees Representative Coun- cil ' of Plant Employees of the Rath Packing Company as repref. RATH PACKING' COMPANY 821 sentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of ,mployment, or conditions of work, and completely disestablish Employees Representative Council of Plant Employees of the Rath Packing Company as such representative ; (b) Post notices in conspicuous places throughout all departments and divisions of the plant stating that the respondent will cease and desist as aforesaid, and will take the affirmative action required in 2 (a) of this Order; (c) Maintain such posted notices for a period of at least sixty (60) consecutive days from the date of posting; (d) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment, or the terms and conditions of employ- ment, of Luella Gorman, Robert Harvester, and Archie Helm, be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.