The Cudahy Packing Co.

In thetMatter: o'f THE CUDAFI.Y,,,PACKING. CObl1'AN,Y,6VIld-i:UNITEp^PACKr ING HOUSE WORKERS LOCAL INDUSTRIAL UNION No. 194 Cases Nos. C-650 and R--208.-Decided November 4, 1939 Meat Packing Industry-Interference, Restraint, and Coereion: anti-union statements ; misrepresentation of rights of employees ; expression of hostility to outside unions-Commmpany-Domiaiated Labor Organizations: background: em- ployee representation plan abandoned in April 1937: form and operation ana- lyzed ; domination and support by respondent ; formation and administration of unaffiliated union : similarities in structure and operation to former plan ; re- spondent's statement and acts interpreted in light of former plan ; facilities furnished ; expenses paid ; organization meeting addressed by respondent's super- intendent ; solicitation of members in plant during working hours ; membership in, and participation of supervisory employees; recognition granted without check on membership claims ; refusal to consider membership claim of outside union ; contract entered into with: absence of opportunity for consideration of, provi- sion in for support, and 'subsequent misrepresentation of benefits therein pro- vided to employees ; preference for, expressed ; adoption of procedure preventing collective action by members and nondisclosure to respondent of vote of indi- vidual employees ; prohibition of solicitation in plant : significance where follows recognition of inside union which had been allowed to solicit; respondent ordered to disestablish-Employee Status: supervisory : strawbosses and foreladies, as- Contract: with company dominated labor organization; respondent ordered to cease giving effect-Discrimination: charges of, not sustained-Investigation of Representatives: question concerning representation: respondent refused to consider claim of outside union on ground of recognition of, and, subsequently, on ground contract with, company-dominated organization ; rival outside unions- Unit Appropriate for Collective Bargaining: production and maintenance enr ployees, excluding foremen, assistant foremen, strawbosses, and foreladies- Election Ordered: at time hereafter directed by the Board-Procedure: par- ticipation in representation case by labor organization served with•`notice°'of bearing but not requesting leave to intervene, improperly denied ; application for leave to intervene and to add name to ballot, made after hearing, unopposed, granted. Mr. Henry H. Foster, Jr., and Mr. Daniel J. Leary, for the Board. Mr. Tiros. Creigh, of Chicago, Ill., and Mr. J. 0. Emerson, of Kansas City, Kans., for the respondent. Mr. Harry C. Clark and Mr. Louis W. Krings, both of Kansas City, Mo., for the United. Mr. William H. McCamish and Mr. James D. Howell, both of Kansas City, Kans., for the P. H. W. U. Mr. W. Lawrence, of Kansas City, Mo., for the Amalgamated.,,- 17 N. L. R. B., No. 18. 302 THE CUDAHY PACKING CODIPANY 303 :--Mr.,.,R,edmon,d S.f- Bremncun, of,.:Kansas City; 'Mo., for the.Aiilal. gamated Local. Mr. Victor A. Pascal, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF TIIE CASE On June 7, 1937, a petition was filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri), on behalf of United Packing House `Yorkers Local Industrial Union No. 194, herein called the United, alleging that a question affecting coinn-lerce had ,a;lsisen , concerning the.. representation of. employees of The.,.Cudahy Packing Company, Kansas City, Kansas,- herein called the respond- ent, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act-' On June 23, 1937, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Section 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. On June-26, 1937, the Regional Director. issued. a-notice of hearing,2 copies of which were duly served upon the respondent, the United, and the Amalgamated Meat Cutters and Butcher Work- men of North America, herein called the Amalgamated.3 . On July 19, 20, 21, and 22, 1937, a hearing was held at Kansas City, Missouri, before Irving G. McCann, the Trial Examiner duly desig- 'The petition was signed "Elmer G. -Williamson , Chairman. United Packing House Workers." This was the name adopted about May 1937, by a labor organization of em- ployees of the respondent which had been formed and had elected officers on April 9, 1937. At about the time this name was adopted , the organization applied to the Commit- tee for Industrial Organization for a charter. Upon receipt of the charter the name of the organization was changed to United Packing House Workers Local Industrial Union No. 194, in conformity with the charter. The original officers, including Williamson , who had been elected chairman at the meeting on April 9 , 1937 , continued in office . It is apparent from the record , and we find , that the organization formed on April 9 , 1937, is `the same organization presently designated United, Packing -House - Workers Local, Industrial- Union No. 194 . The respondent is also incorrectly designated in the pleadings , being named as Cudahy Packing Company. 2 The hearing was originally noticed for July 8, 1937 , and was thereafter apparently adjourned to July 19, 1937. See footnote 4, infra. s Notice of hearing was also served on Mr. Charlton Ogburn , presumably as counsel for the American Federation of Labor with which the Amalgamated is affiliated. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nated by the Board.4 At the opening of the hearing the Trial Ex- aminer granted a motion for leave to intervene filed by Packing House Workers Union of Kansas City, herein called the P. H. W. U., a labor organization claiming to represent employees directly affected by the investigation.5 On July 21, 1937, the respondent filed an an- swer denying the jurisdiction of the Board on the ground that its business did not affect interstate commerce., At the opening of the hearing on July 19, 1937, the International Association of Machinists, herein called the I. A. Al., and the Amalga- mated, appeared by their respective representatives. The representa- tive of the I. A. M. stated that it wished to be included upon the ballot in event that an election was ordered, but did not seek to inter- vene and did not participate in the hearing. The I. A. Al. subse- quently advised the Board that it does not claim to represent any of the employees affected by the investigation.? The representative of the Amalgamated filed a "protest" requesting that the Board deter- mine "whether or not an election should be held on a national or a local plant unit basis." The Trial Examiner ruled that the "protest" did not constitute a petition for leave to intervene, and further ruled that the Amalgamated would, therefore, not be heard in the case. Since the Amalgamated had been served with notice of the hearing, it was not required to file a petition to intervene in order to acquire 4 Trial Examiner McCann was designated by an order of the Board issued on July 17, 1937 , to act in place and stead of James C . Batten who had been previously designated by an order of the Board issued on July 15, 1937 . Theretofore , on June 29 , 1937, the Board, acting pursuant to Article III, Section 10 (c) (2 ), of the Rules and Regulations, had ordered the Instant proceedings consolidated with a representation case ( No. XVII-R-14 ; R-207 ) concerning the employees of Armour and Company , Kansas City, Kansas, herein referred to as the Armour case . No evidence was introduced with respect to the Armour case, since the parties thereto agreed that a consent election be held . On August 7, 1939, the Armour case was severed from the instant case by an order of the Board . We shall' refer in the text of our decision only to the case concerning the representation of employees of the respondent and the case which thereafter arose upon charges of unfair labor practices against the respondent, and was consolidated ( see infra ) with said representation case. The P. H. W. U. also employs the title "Packing House Workers Union of Kansas City, Kansas." The petition of the United alleged that the P. H . W. U., referred to therein as Packing House Workers , was a "company union " which the "company has been actively and openly forming . . . for the past six weeks ." At the opening of the hearing on the next day the United sought to file a "rider " to the petition so as more specifically to allege that the P . H. W. U. was a labor organization with respect to which the respondent had engaged in unfair labor practices within the meaning of Section 8 ( 2) of the Act. The proposed amendment, referred to by counsel for the United as "reply " to the petition for intervention , caused the P. II. W. U. to file a "reply" denying the alleged unfair labor practices . On July 21 , 1937, the Trial Examiner denied the application of the United to amend' its petition in the aforesaid respect. 6 The answer also denied the unfair labor practices alleged in the petition . See footnote 5, supra. 7 The I. A. AT., by its representative, so advised the Board at the oral arguments had before the Board at Washington, D. C., on November 29, 1938, and August 3, 1939. The ,representative stated on those occasions that he appeared because the caption of the notices of argument served upon the I. A. M. referred not only to the instant case but`also.to the Armour case then consolidated therewith ( see footnote 4, supra), and that the I. A. M. was interested in the Armour case but was "not concerned with" the instant case. THE CUDAHY PACKING COMPANY 305 the status of a party.8 We find, however, that this ruling of the Trial Examiner does not affect any substantial interest of the Amalga- mated, or constitute prejudicial error, in view of the application for intervention in the representation case made by the Amalgamated Meat Cutters 'and Butcher Workmen of North America,, Local No. 574, herein called the Amalgamated Local, on or about September 29, 1939,: and our.disposition thereof, as set forth below. The Board, the respondent, the United, and the P. H. W. U. were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. .The rulings are hereby affirmed. At the close of the hearing counsel for the Board moved to amend the pleadings to conform to the evidence. The Trial Examiner made no ruling on the motion, which is hereby granted. Upon a charge duly filed on or about January 11, 1938, on behalf of the United a alleging that the respondent had engaged in and was engaging in unfair labor practices, the Board, by the Regional Direc- tor, issued its complaint, dated January 15, 1938, against the respond- ent; alleging 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. With respect to the unfair labor practices, the complaint alleged in sub- stance that the respondent by various acts had dominated and inter- fered with the formation and administration of and had contributed support to the P. H. W. U.; and that the respondent by the afore- said acts, and by urging, coercing, and intimidating its employees from joining and continuing membership in the United, and by other acts had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent, the United, and the P. H. W. U. On or about January 18, 1938, the respondent applied to the Regional Director for a continuance of the hearing. On Jan- uary 20, 1938, the Regional Director ordered the hearing continued s Rules and Regulations, Article III, Sections 3 and 6, and Article II, Section 25. 9 The charge is annexed to the complaint in evidence and is entitled "Amended Charge." It is signed "Barny A. McWilliams, C. I. O. Field Representative for United Packing House Workers Local # 194, Kansas City, Kansas ." The complaint issued thereon designates that labor organization United Packing I-louse Workers , Local 194. As stated above (see footnote 1) the record shows that correct designation of the organization is United Packing House Workers Local Industrial Union No. 194. The respondent is incorrectly designated in the pleadings as "The Cudahy Company Incorporated, a Corporation." 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until-February 3, =1938, and, copies of., said ..order' were ,duly.^,served upon the respondent, the United, and the P. H. W. U. On or about January 22, 1938, the respondent filed its answer, admitting certain allegations of the complaint with respect to the nature of its business, but denying the jurisdiction of the Board and the averments of unfair labor practices. On or about January 27, 1938, the P. H. W. U. applied to the Regional Director for leave to intervene and to file an answer. On January 28, 1938, leave to intervene was granted the P. H. W. U. by the Regional Director. In its answer the P. H. W. U. denied the allegations of the complaint of unfair labor practices with respect to its formation and administration. On February 1, 1938, the Board, acting pursuant to the Rules and regulations, issued an order consolidating, for all purposes, the case initiated by the filing of the charge of unfair labor practice and the representation case in which, as stated above, a hearing had been held'in July 1937.10 Pursuant to the notice and the continuance, a hearing was held in Kansas City, Missouri, on February 3, 4, 5, 7, 8, 9, 10, 11, 14, 15, 16, and 17, 1938, before David F. Smith, the Trial Examiner duly desig- nated by the Board. The Board, the respondent, and the P. H. W. U. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. . At the hearing on February 3, 1938, the Trial Examiner admitted intotevidence the'order of-consolidation over-objection of -counsel for the respondent and counsel for the P. H. W. U.,11 and ruled that the record in the representation case would be received in evidence as part of the record of the hearing upon the complaint. Thereafter, on February 7, 1938, the Trial Examiner reversed this ruling,, and stated that only such of the testimony and exhibits in the previous record as were specifically offered in evidence before him would be "The order of consolidation did not purport to consolidate the Armour case ( see foot- note 4 , supra ), with the case arising upon the charge. n The objection to the order of consolidation was made principally upon the ground that the order was made without prior notice to the respondent and on the further ground that evidence introduced at the hearing on the representation case tending to establish unfair labor practices by the respondent had been ruled by the Trial Examiner in that case to be outside of the issues. The record in the representation case does not sustain the latter contention so broadly stated; it discloses that the Trial Examiner ruled that evidence of interference with, and domination and support of the P. II. W. U. would not be'received for the purpose of establishing that the respondent had engaged in unfair labor practices, but would be received so as "to determine the integrity" of the P. I-I. W. U. and to ascer- tain whether the P. II. W. U. was "a growth which starts from the president's office and goes down to the-Wren." In any event the ultimate ruling of the Trial Examiner excluded the record in the representation case, as such, in the hearing upon the complaint. The claim that the respondent and the P. H. W. U. were entitled to be heard in advance upon the order of consolidation is plainly without merit. THE CUDAHY PACKING COMPANY 307 considered part of the record of the hearing upon the complaint. None of the testimony in the earlier case was so offered, but certain exhibits therein were specifically offered by counsel for the Board and counsel for the P. H. W. U. and admitted into evidence. The respondent objected to the admission of the exhibits offered by counsel for the Board but stated he had no objection to those offered by counsel for the intervenor. Counsel for the respondent declined to specify the grounds for his objection, other than to state that the hearing had proceeded for several days upon the basis of the prior ruling, and did not seek to introduce any of the testimony given in the representation case with respect to the exhibits. Further, the exhibits admitted were • properly a part, of the record in the hearing upon the complaint irrespective of their admission in the previous representation case, and there was full opportunity in the latter case to offer testimony with respect to them, an opportunity which in fact was availed of. During the hearing on February 8, 1938, counsel for the Board moved to amend the complaint to add allegations that the respondent had discharged and/or laid off three employees, Dorce Cline., Burl C. Rasey, and William Thayer, for the reason that each of them had joined or assisted in the promotion and administration of the United. The Trial Examiner granted the motion, allowed the re- spondent until February 14, 1938, to file its answer, and stated that pending such answer the additional averments of unfair labor prac- tices would be deemed denied by the respondent. On February 10, 1938, counsel for the Board served upon the respondent a copy of the complaint as amended by, the motion,12 and during the hearing on the following day was permitted by the Trial Examiner to place the same in evidence. At that time, upon a claim of surprise being advanced by counsel for the respondent on the ground of an alleged variance between the motion to amend and the amended complaint received in evidence,73 the Trial Examiner adjourned the hearing until February 14, 1938, at which time the respondent filed its answer to the, amended complaint denying the unfair labor practices and the jurisdiction of the Board, and the P. H. W. U. also filed aai 1' An amended charge, alleging the discriminatory termination of employment of Rasey, Cline, and Thayer and realleging the unfair labor practice previously charged, was annexed. to the complaint, as amended. 13 The motion to amend made on July 8, 1938, specifically alleged that the termination of employment of Rasey, Cline, and Thayer constituted unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. Through obvious inadvertence counsel for the Board did not move to conform the final paragraph of the complaint which then read : "The aforesaid acts of respondent constitute unfair labor practices affecting commerce within the meaning of Section 8, Subdivisions ( 1) and (2), and Section 2, Subdivisions (6) and (7) of said Act." The amended complaint, received in evidence, corrected this omission by referring in the concluding paragraph to "Section 8, Subdivisions ( 1), (2), and (3), and Section 2, Subdivisions (6) and (7) of said Act." The respondent's claim of surprise on that account was plainly captious. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer, reiterating the denials made in its original answer. At the time the motion to amend was granted and again at the hearings held on February 13, 14, 15, and '16, 1938, the Trial Examiner stated that if the respondent claimed that any prejudice resulted from the amendment of the complaint after witnesses called by the Board had testified, he would direct their recall for further examination by the respondent. Counsel for the respondent agreed that this was "very fair," and at no time requested the recall of any witness. During the course of the hearing, the Trial Examiner made several other rulings on other motions and on objections to the admission of evidence. At the close of the hearing the Trial Examiner granted the motion of counsel for the Board to conform the pleadings to the evidence as to formal matters. The Board has reviewed the, rulings of the Trial Examiner and finds no prejudicial errors were committed. The rulings are hereby affirmed. On or about May 13, 1938, the Trial Examiner issued his Interme- diate Report, which was thereafter filed with the Board and copies duly served upon the parties. In his Intermediate Report the Trial Examiner 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 rec- ommended that the respondent cease and desist therefrom and take certain affirmative action to remedy the situation brought about by those unfair labor practices. The Trial Examiner further found in his Intermediate Report that the respondent had not engaged in un- fair labor practices within the meaning of Section 8 (3) of the Act, and recommended that the allegations of the amended complaint with respect to Rasey, Cline, and Thayer be dismissed. Exceptions to the Intermediate Report were filed by the respondent on May 31 and by the P. H. W. U. on June 7, 1938. On November 29, 1938, pursuant to notice duly served upon the parties, a hearing was held 'in Washington, D. C., for the purpose of oral argument. The respondent, appeared by counsel who submitted a memorandum, which the Board has considered, and presented oral argument to two Inem- hers of the Board. Neither the United nor the P. H. W. U. appeared. Owing to the subsequent expiration of the term of one of the members of the Board who sat at the oral argument, the parties were granted an opportunity to request further oral argument. Further argument was thereafter requested by the respondent, and on August 3, 1939, was held,,pursuant to notice to the parties. The respondent appeared by counsel who was heard; neither the United nor the P. H. W. U. ,appeared .14 1* As we have stated above , in footnote 7, the I. A. Vii . appeared at.the oral arguments and disclaimed any interest. TI-IE CUDAHY PACKING COMPANY 309 We have reviewed the exceptions of the respondent and the P. H. W. U. to the Intermediate Report and find them to be without merit in so far as they are inconsistent with the findings, conclusions, and order set forth below. The Board has also considered the exceptions of the respondent and the P. II. W. U. with respect to certain alleged instances of improper examination of witnesses by the Trial Exami- ner. We have examined and reviewed the record, not only with respect to the instances specified by the respondent and the P. H. W. U. but also with respect to the participation of the Trial Examiner in the examination of other witnesses, and find no basis for any charge of improper or prejudicial conduct. We have further considered, and find to be without substance, general contentions made by the respond- ent and the intervenor with respect to the conduct of the hearing. As we have stated above, the Amalgamated Local, on September 29, 1939, applied to the Board for leave to intervene in the representation case. On October 3, 1939, the Board acting pursuant to National Labor Relations Board Rules and Regulations-Series 2,15 issued a notice to the respondent, the United, the P. H. W. U., the Amalga- mated, and the Amalgamated Local, who were duly served with cop- ies thereof, that on October 17, 1939, or as soon thereafter as conven- ient, the Board, unless sufficient cause to the contrary should then appear, would permit the Amalgamated Local to file the intervening petition accompanying said application for leave to intervene, and would make the Amalgamated Local a party in the representation case. Thereafter, no objections having been filed, the Board, by an order issued on October 19, 1939, granted the Amalgamated Local leave to file said intervening petition, made said intervening petition part of record in the representation case, and made the Amalgamated Local a party in said case. Upon the entire record in the case, the Board makes the. following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Cudahy Packing Company, a Maine corporation, having its principal executive offices in Chicago, Illinois, is chiefly engaged in the purchase and slaughter of livestock and the processing and marketing of the products therefrom. Its activities 16 include the refining of vegetable oils and the production and sale of shortening 15 Effeck,ice„July 14, 1930. 16 The business of the respondent is partially conducted through the following corpora- tions , all, or substantially all, the stock of which it owns : The Cudahy Packing Co. of Alabama, The Cudahy Packing Co. of Louisiana , Ltd., Barry Machinery Co., The Dow Cheese Co., Bissell Leather Co., Olneyville Wool Combing Co., Willows Cattle Co., The Cudahy Packing Co., Ltd. (foreign ), Cudahy & Company , Ltd. (foreign ), and American Sale Corporation. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and cooking and salad oils; the manufacture and marketing of soaps and cleaning powders; pulling, scouring, and combing wool and the marketing of wool and tanned sheep skins; the purchase, packing, and sale of eggs, poultry, and cheese; the purchase of cream and but- ter and the manufacture and sale of butter, margarine, and ice cream; the mining of rock salt, operation of brine wells, and the production, refining, packing, and sale of all kinds of salt. The respondent also owns, maintains, and operates 1496 refrigerator and 44 tank cars for the transportation of its products. The, respondent's slaughtering and meat-packing plants are lo- cated in Omaha, Nebraska; Kansas City; Kansas; Sioux City., .Iowa; Los Angeles, California; Wichita, Kansas; North Salt Lake, Utah; Jersey City, New Jersey ; St. Paul, Minnesota ; San Diego, ; Cali- fornia; Denver, Colorado; Detroit, Michigan; and Albany, Georgia. In addition, the respondent also operates produce collecting and proc- essing plants in many States, and approximately 80 branch houses located in the principal cities of the United States.17 At the close of its fiscal year ending October 30, 1937, the assets of the respondent totalled $85,870,946.06. During such year its sales amounted to $222,222,000. We are concerned in this case only with the respondent's Kansas City, Kansas, plant, herein called the Kansas City plant, at which the respondent slaughters and processes livestock. In addition, the Kansas City plant, which is the sole plant of the respondent engaged in canning meat products, receives products for such processing from plants of the respondent located in other States, including Iowa, Minnesota, and Nebraska. The Kansas City plant is also the only plant at which the respondent manufactures margarine. Approximately 50 per cent of the livestock slaughtered at the Kansas City plant is shipped to Kansas City from States other than the State of Kansas, and approximately 80 to 90 per cent of the meat products of the Kansas City plant are shipped to points outside the State of Kansas. During the 6 months ending July 31, 1937, the respondent slaughtered at its Kansas City plant 54,597 cattle, 94,995 hogs, 54,136 calves, and 175,321 sheep. During the same period an average of 1,237 persons were employed in production and mainte- nance work at the Kansas City plant,13 and the pay roll amounted to 17 The respondent maintains shops for the construction and repair of its refrigerator cars at East Chicago, Indiana. At East Chicago it also maintains a soap and Old Dutch Cleanser factory and a wool pullery. Another soap and Old Dutch Cleanser factory is located at Toronto, Canada. The respondent's plant for the refining of vegetable oils and the production of shortening and cooking and salad oils is located near Memphis, Ten- nessee. A wool scouring, combing and storage plant is located at Providence, Rhode Island; and a salt mine and refinery for the production of rock and evaporated salts at Lyons, Kansas. 18 This included approximately 50 to 60 foremen and assistant foremen. The number of persons employed fluctuated between 1152 and 1335 during this period. THE CUDAHY PACKING COMPANY 311 $845,126.90. In the fiscal year ending October 30 , 1937, the sales of the Kansas City plant amounted to approximately $28,000,000, its pay roll was $1, 704,526, and the weight of products shipped from it amounted to approximately 53,750 tons. II. THE ORGANIZATIONS INVOLVED United Packing House Workers Local Industrial Union No. 194, a, labor organization affiliated with the Committee for Industrial Organization,19 admits to membership employees at the Kansas City plant. Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 574, a labor organization affiliated with the American Federation of Labor, also admits to membership em- ployees at the Kansas City plant. Packing House Workers Union of Kansas City is an unaffiliated labor organization. According to its Articles of Association, its membership is limited to employees at the plant, excluding "foremen, assistant foremen, and employees having power of supervision, em- ployment or discharge." 20 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; interference with, domina- tion of, and support given to the P. H. W. U. In 1921, a plan of employee representation, herein called the Plan, was established at the various packing plants of the respondent and continued in operation until April 1937, when, under circumstances which we consider below, it fell into disuse. The provisions of the Plan were set forth in a printed booklet which the respondent fur- nished to employees "in order that they might be familiar with the plan." In addition the respondent each month issued and distrib- uted to its employees at each plant a printed publication entitled "Force" which contained "matters pertaining to the operation of the Conference Board." Under the Plan, a Conference Board was set up at each plant, consisting of representatives, not to exceed 12 in number, elected by employees according to electoral divisions within the plant, and management representatives, in not more than the same number, appointed by the respondent. The employee representatives of each Plant Conference Board, in turn, elected one or more representatives, depending upon the size of the plant, to a General Conference Board 19Now the Congress of Industrial Organizations. =°According to the bylaws of the P. 1I. W. U. it excludes from membership "foremen, assistant foremen, managers or assistant managers of departments, time-study men, and employees having power of supervision, employment or discharge." 247384-40-vol. 17-21 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to which the respondent appointed its representatives. Under this provision of the Plan two employee representatives were elected by the Plant Conference Board at the Kansas City plant.21 The Plan further provided that meetings of the Plant Conference Board should be held monthly and special meetings might be called on notice given by the chairman, secretary, or any three members. While the Plan further provided that "there shall be one regular meeting yearly of the General Conference Board," both the time and place of such meeting was left to the designation of the respondent's president. Special meetings of the General Conference Board might also be called by the respondent's president "whenever in (his) opin- ion . . . _ any matter coming before any Plant Conference Board affects other Plants of the Company" or whenever the vote in a Plant Conference Board upon any question remained a tie. In the event of reference of any matter to the General Conference Board, the Plant Conference Board was enjoined from further action thereon. In both the Plant and General Conference Boards, em- ployees and management representatives voted as separate units. In the event of a tie vote in either the Plant or General Conference Boards, "by mutual agreement," the matter might be referred to arbitration. The Plan, however, expressly provided that Decisions affecting wages made by any Plant Conference Board or General Conference Board or by arbitration, shall be sub- ject to revision whenever changed conditions justify. Employee representatives and employees eligible to vote for such representatives, were limited by the terms of the Plan to employees exclusive of "foremen, assistant foremen, clerks, timekeepers, and employees having the power of supervision, employment or dis- charge." In addition the plan provided that employees were eligible for nomination as employee representatives only for the division of the plant in which they were employed, and must have been con- tinuously in the Plant's service for one year immediately prior to nomination. The Plan further provided that loss of eligibility re- sulted in the employee ceasing to be a representative. Employee representatives were elected to the Plant Conference Board for a term of 1 year, half being elected each 6 months. Upon the Plan, the respondent furnished, "at its expense" a meeting place for the Plant Conference Boards, and their subcommittees,22 and employee representatives received their regular compensation for time spent away from work in performing their duties as representatives. In =Article XIV, Section 2, of the Plan provided , "There shall be one such member of the General Conference Board for the first 50 employees in any plant, and one additional mem- ber for each additional t,000 employees, or major fraction thereof." 22 It appears that subcommittees were designated to handle such matters as "athletics," "good fellowship," "grievances ," and "safety." THE CUDAHY PACKING COMPANY 313 the case of meetings of the General Conference Board, the respondent agreed to pay reasonable traveling expenses, including hotel bills. The Plant Conference Boards were, by the terms of the Plan, empowered to "consider and make recommendations" on "matters of mutual interest, including wages, hours, working conditions," "safety and prevention of accidents," "education and publications," and "recreation and athletics." The Plan contained no statement of matters which might be considered at the regular annual meeting of the General Conference Board, and with respect to special meetings of the General Conference Board provided only for the considera- tion of particular matters which were referred to it by the respond- ent's president because of a tie vote in the Plant Conference Board or because in his opinion the matter affected other plants of the respondent. Moreover, it may fairly be inferred from the entire Plan, and from the express provision that the chairman of the General Conference Board should be a person designated by the respondent, that the agenda of all meetings of the General Con- ference Board was determined by the wishes of the respondent. In at least one important respect the provisions of the printed provisions of the Plan were disregarded by the respondent in actual practice. Theodore Heuck, superintendent of the Kansas City plant, admitted that no meeting of the Plant Conference Board at Kansas City, of which he was chairman, might be held except when B. M. Boyce '23 "general relations" lean from the respondent's Chicago office, at which all matters of labor policy were determined, was present, and that no meetings were scheduled until he was notified by Boyce of the time when the latter would be able to attend. It also appears from the testimony of Heuck that the annual meetings of the General Conference Board were held in Omaha, Nebraska, a. circumstance to which we shall refer below in connection with the formation and administration of the P. H. W. U., which was organized shortly after April 12, 1937. It is clear that the respondent interferred with, dominated, and sup- ported the administration of the Plan throughout its existence.24 All employee representatives looked to the respondent for compensation, could be chosen as representatives only by employees in a particular division of the plant, and the respondent could effect their removal from office simply by transferring them to a job in a different division of the plant. Not only were "outsiders" barred as such from the position of employee representative but too sudden infusion of new =Also referred to in the record as "Boice." 24 A copy of the Plan as amended on or about February 27, 1937, is in evidence. We conclude from Heuck 's testimony that the Plan and the operation thereof did not pre- viously differ in any material respect . The record also leaves no doubt that the enact- ment of the National Labor Relations Act on July 5, 1935, occasioned no change in the respondent's labor rels.tions. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, blood was guarded against by restricting employee representatives to employees who at the time of their nomination had been continuously employed by the respondent for a year. Moreover, the Plan did not contemplate genuine collective bargaining. Thus the ultimate achieve- ment of the Plant and General Conference Boards was the making of recommendations which the respondent might or might not accept. Ineffectiveness was further assured by holding meetings of the Plant Conference Board only when the respondent chose, and by requiring that no recommendation might even be made, except with the concur- rence of representatives appointed by the respondent. In addition the respondent reserved the right to revise wages "whenever changed conditions justify." Though recognizing that matters coming before any Plant Conference Board might affect other plants, the Plan made no provision whereby employee representatives might convoke a meet- ing of the General Conference Board for the consideration of such questions and did not even provide for their consideration at the reg- ular annual meeting of the General Conference Board. In contrast the respondent might, when it chose, call a meeting of the General Con- ference Board for the consideration of such matters as it wished to have considered. Furthermore, by distributing to employees copies of the Plan and a monthly publication reporting the operation of the Plan, the respondent had constantly placed before its employees the fact that the respondent regarded the Plan as a satisfactory and desir- able instrumentality of labor relations. On April 12, 1937, the Supreme Court of the United States in the Jones cC Laughlin 25 case sustained the constitutionality of the Act as applied to certain manufacturing enterprises. Within a few days thereafter members of the Plant Conference Board at the respondent's St. Paul, Minnesota, plant began to organize a union known as the Packing House Workers Union of St. Paul,2G and on or about April 17, 1937, sent letters to five employees at the Kansas City plant, all of whom were or had been members of the Kansas City Plant Conference Board .27 The record discloses that one of the letters was delivered to an employee representative, at his work, by a messenger from the main office. It further appears that such had been the practice with respect to delivering communications to members of the Plant Con- ference Board, and we conclude that all of the letters from St. Paul National Labor Relations Board v. Jones d Laughlin Steel Corp ., 301 U. S. 1. 26 In Matter of The Cudahy Packing Company and Packing House Workers Local Indus- trial Union No. 62, affiliated with the Committee for Industrial Organization, 5 N. L. R. B. 472, enforced in this respect in Cudahy Packing Co. v. National Labor Relations Board, 102 F. (2d) 745 (C. C. A. 8) ; cert. den. 308 U. S. 565 (October 9. 1939) we found that the Packing House Workers Union of St. Paul was formed with the active assistance and support of the respondent, and that the respondent had dominated and interfered with and had contributed support to its formation and administration. -7 The five were Charles Allison, Philip Beil (sometimes referred to in the record as "Biel"), William Ilack, J. ("Jerry") Holtzman, and Floyd Stark. THE CUDAHY PACKING COMPANY 315 were delivered in this manner.. Since it also appears that mail was not so distributed to employees in general, it is clear that, even at this date, the respondent continued to treat employee representatives under the Plan as entitled to special privileges. Corney Snelling, employed with Floyd Stark, an employee repre- sentative, in the fresh-pork department, testified that about this time he saw a messenger from the main office deliver a letter to Stark; that Stark took the letter to the office of T. E. Evans, foreman 28 of the department where he remained for approximately 15 minutes and then left the department for approximately the same length of time. Snelling further testified that when thereafter Stark asked him to sign a petition for the organization of the P. H. W. U., Stark ex- plained that "they are forming a union up at St. Paul, Minnesota, and we are going to have one here like they got up there," and, on being questioned by Snelling, stated that the matter had been the subject of the letter. Snelling testified that he then asked Stark whether he had not shown the letter to Evans, and that Stark ad- mitted that he had done so, but refused to state whether the foreman had expressed approval. Stark did not testify and Evans, who was called as a witness by the respondent, made no denial of the part in the incident attributed to him. We find that Snelling's account of the incident is a true one, and that the respondent was well aware that its facilities had been used to distribute letters urging the forma- tion of the P. H. W. U. at the Kansas City plant. Moreover, Heuck testified that, about this time, he was questioned by some employees as to the status of the Plan. Heuck did not testify as to the names of his questioners. We believe that they would not have been em- ployees whose participation in the Plan had been limited to the cast- ing of a vote for an employee representative. More probably they were those employees who had held office under the Plan, and espe- cially those employee representatives to whom a new form of labor organization had recently been broached. Since Heuck admitted that the recipients of the letters from St. Paul had discussed the communications with him, it is reasonable to infer that it was the recipients who inquired as to the status of the Plan. The conversa- tion could have left no doubt in the minds of the questioners as to the respondent's wishes. Heuck stated, in reply to their question as to the status of the Plan, that he regarded it as "apparently" at an end, and when asked "what are we going to do now," answered "I presume something will take its place." One of the letters from St. Paul was received by Charles Allison, an employee in the loading-dock department who had been an em- 21 The foremen in charge of the various departments are variously referred to in the record as "superintendents," "departmental superintendents," and "foremen." Their im- mediate assistants are sometimes called "assistant superintendents " or "assistant foremen." 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee representative under the Plan. for the- last 13 years. Allison testified that he consulted with the other employees who had received letters, decided to form an independent union, arranged for a meeting at Drexel Hall, and invited various persons, including Heuck, to attend. Allison admitted that the meeting place was secured by Henry Schuster, foreman of the ham house 29 at the Kansas City plant. He further admitted that "we" paid no rent for the hall, and made no claim that he had ever offered to pay any rent. Schus- ter did not testify. While Allison claimed that he had made the request as a friend of Schuster's, other testimony by Allison, and the entire record, leave no doubt that he sought Schuster's assistance, and that the latter extended such aid as representative of the man- agement. In explaining Heuck's attendance at the meeting at Drexel Hall, Allison testified that he had asked Heuck "if he would come out and give us a short talk," and that Heuck "told me he would come out there and give a talk at that meeting as a personal friend of mine or as an individual and not as an executive of the Company." It appears from Heuck's testimony that Allison invited him to attend the meeting "because the men wanted the benefit of your [Heuck's] advice," and that Heuck accepted so that he might tell them what he "considered their rights." It is apparent, despite Allison's gloss, that Schuster's, and even more clearly, Heuck's ac- tions were not mere personal gestures of friends but were the acts of the respondent's agents. At the time of the Drexel Hall meeting, the United had for more than a month been conducting a campaign to organize employees at the Kansas City plant, had elected officers on April 9, 1937, and had begun to conduct organizational meetings in Kansas City. Heuck's remarks at the Drexel Hall meeting disclose his awareness of the activities of the United. Heuck testified that he stated at the meet- ing to the approximately 40 employees, including many members or former employee representatives under the Plan, that they would no doubt be approached, and as I understand it they were being approached by unions for union affiliations. Heuck further testified that he had gone on to say that so far as myself and the company were concerned we had no interest in the matter except harmony, of course, and that I was not a lawyer and did not know all the facts of the Wagner Act, but as I understood it they had every right to do as they saw fit. I mentioned the fact that we had the Conference Board in effect, that had been in effect, and I presumed the Conference Board no longer was in existence. "The record shows that Schuster was also foreman of the sliced -ham, sliced-bacon, and sliced-beef departments. THE CUDAHY PACKING COMPANY 317 We do not believe that Heuck's speech can be regarded as, or was considered by his audience to be, no more than an expression by the respondent of indifference to the form of labor organization to be chosen by its employees upon the abandonment of the Plan. It is clear from the nature of the invitation extended to Heuck that many of the respondent's employees looked to the respondent rather than to the Act, for a declaration of their rights to engage in self -organiza- tion. In a sense it would have been strange if they had not, in view of the respondent's flagrant disregard of the Act for almost 2 years. Moreover, irrespective of the statement that employees might "do as they saw fit," Heuck by attending and addressing a meeting called for the purpose of organizing a plant union, indicated that the or- ganization whose formation was there under consideration met with the respondent's approval. Had the respondent wished only to in- form its employees that it would no longer engage in unfair labor practices, it could easily have made a general announcement to that effect, just as in the past it had made each employee "familiar with the Plan." This, on the contrary, the respondent never did, and, indeed, did not even make a general announcement that the Plan would no longer continue. Allison testified, and we find, that at the conclusion of the meeting petitions were distributed for circulation among the employees at the Kansas City plant. The petitions stated that the signatories applied for membership in a labor organization to be known as the Packing House Workers Union of Kansas City and designated such organization when formed, and, until its formation, the organizing committee consisting of the five employees who had received letters from St. Paul, as their agent for the purposes of collective bargain- ing. During the next week, under circumstances which we will consider in detail below, the petitions were circulated throughout the Kansas City plant during working hours and over 750 signatures were thus obtained. The petitions, which were introduced in evi- dence, disclose that many are on stencilled forms, while others were on forms prepared on a typewriter. Allison testified that the type- written copies were prepared in the office of William H. McCamish, who had been retained as attorney for the proposed organization. Allison offered no reason why all the forms had not been prepared at the office of the attorney, nor is the testimony as to the origin of the stencilled forms credible. Allison testified that he had asked one of the messengers in the plant whether there was a machine in the office which might be used to run off more copies. Allison further testified, "I think Mr. Callowick got in touch with him." Nicolai 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Callowick,30 who with Allison was the most active of the employees in the circulation of the petition, when first asked concerning the ar- rangements for mimeographing the petitions, testified I asked Mr. Allison if he thought it was possible for us to use a mimeograph machine in the office and he said he would find out and evidently it was 0. K. because they were printed up there I believe. In the face of this disclaimer of knowledge-as to where the petitions were mimeographed, Callowick, whose job was that of a pike-pole man lifting beef onto and off rails in the beef cooler and who had never been a member of the Plant Conference Board, later claimed that he had gone to the office, where he admitted "I very seldom have occasion to go," had waited to see the office manager leave the office, had asked a boy in the office to set up stencils, and had run off the sheets himself. Callowick testified that to "my knowledge we used it [the mimeograph machine] once since then, that is in passing the tolerance hours propo- sition, when we were taking the vote for the tolerance hours." We do not believe this testimony as to the origin of the stencilled forms of the petition for the formation of the P. H. W. U. We are not per- suaded that Callowick, who had never been an employee representa- tive, had no occasion to go to the office, and was employed at a job which gave him no excuse for being in the office, would have acted as he claimed to have done. Moreover, as we shall point out below, Cal- lowick, who became president of the P. H. W. U. was a completely untruthful witness. Further, comparison of the exhibits in evidence discloses that the petition for the formation of the P. H. W. U. and the proposal concerning tolerance hours, as well as the grievance forms used by the P. H. W. U. as early as May 17, 1937, were printed on the same or a similar machine, and that the tolerance-hours proposal, which was circulated in the plant in December 1937,31 was admittedly printed by the respondent. Even apart from the fact that the re- spondent had already lent its messenger services to the circulation of letters proposing the formation of the P. H. W. U., and thereafter actively participated in its formation, we think it clear that the re- spondent had full knowledge of and acquiesced in the use of its ma- chine for the preparation of the stencilled forms of petitions for the P. H. W. U., and we so find. As appears from the foregoing the respondent by April 18, 1937, well knowing of the campaign by the United to organize employees at the Kansas City plant, had in several ways acted to further the forma- tion of another labor organization by a group of employees who were $0 Also referred to in the record as "Nick" Callowick. 31 The tolerance-ho"- proposal is discussed -infra. THE CUDAHY PACKING COMPANY 319 or had been employee representatives under a company-dominated Plan. By permitting the use of the plant-messenger system to convey the communications from the members of the Plant Conference Board at St. Paul concerning the formation of such a plant organization, by allowing the use of the mimeographing machine at the Kansas City plant to prepare petitions for the formation of the P. H. W. U., by securing for the promoters of the P. H. W. U. a meeting place without cost, and finally by Heuck's statements to the recipients of the letters and his speech delivered at a meeting known to him to be held for the purpose of forming that organization, the respondent sponsored, pro- moted, and assisted in the formation of the P. H. W. U. About April 19, 1937, the respondent distributed to employees at the Kansas City plant, a special edition of "Force," the publication in which it theretofore had brought to the attention of employees ma- terial pertaining to the operations of the Conference Board. The "Extra Force," as the special issue was titled, was the first and only extra issue ever published, and was entirely devoted to a message from E. A. Cudahy, Jr., the respondent's president, "To Cudahy Employees" concerning "The long awaited Supreme Court decision on the Wagner Labor Relations Act . . . handed down on April 12th." The "Extra Force" began by stating that "naturally, this momentous ruling ... was the subject of much discussion" and warned that Out of this discussion there may come not a little ill considered expression as to what the effects of the Act may be so far as American industry and its workers are concerned . . . It is probable that in some instances individuals who hold positions of responsibility in labor circles, in their first sense of gratifica- tion over the advantages gained by labor as: a result of the Supreme Court's approval of the Act, may become over-enthu- siastic and misinterpret the provisions of the Act and mistake the gains it guarantees for license to overstep the boundaries established by justice and a fair deal for all concerned, the employer as well as the employee. "Extra Force" next purported to quote the provisions of the Act. The quotations in several respects misrepresented or distorted the provisions of the statute. Thus, Section 8 (3) of the Act was set forth as providing that it shall be an unfair labor practice for an employer : By discrimination in regard to hire or tenure of employment of [sic] any term or condition of employment, to encourage or discourage membership in any labor organization. 320 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD The omission of any reference to the proviso clause of Section 8 (3)32 can not be regarded as inadvertent in view of the flat misstatement later in the "Extra Force" that "the Court definitely ruled the closed shop out of the law." Section 8 (5) of the Act is quoted in the "Extra Force" as providing that it shall be an unfair labor practice for an employer : To refuse to bargain collectively with a representative of his employees. The omission of any reference to the status of such representative as "the exclusive representative of employees," 83 appears to have been deliberate, in as much as the "Extra Force" thereafter states, with reference to the Jones cQi Laughlin decision that the Court ... made clear that the Act merely 34 requires the em- ployer to bargain with a representative chosen by the majority of his employees, but does not compel agreement between them.. . Further, the Court definitely ruled the closed shop out of the scope of the law, pointing out that the employer may make an agree- ment with the representative of the majority of his employees, but he is not precluded from making other bargains with minority employees." [Italics added.] In respect to each of the misrepresentations to which we have re- ferred, the "Extra Force" misled employees as to their rights under the Act and thereby interfered with the exercise of those rights. The "Extra, Force," moreover, was not restricted to a purported statement of the rights of employees. It concluded with a statement, immedi- ately above the facsimile signature of the respondent's president, as to 8' Section 8 (3) provides that it shall be an unfair labor practice for an employer "By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, That nothing in this Act . . . shall preclude an employer from making an agree- ment with a labor organization ( not established , maintained , or assisted by any action defined in this Act as an unfair labor practice ) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made." 33 Section 8 (5) provides that it shall be an unfair labor practice for an employer "To refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9 (a)." Section 9 (a) provides : "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment : Provided, That any indi- vidual employee or group of employees shall have the right at any time to present griev- ances to their employer." [Italics added.] 34 The employment of the qualification "merely" at least obscures, if it does not negative the existence of a duty not only to meet with the representatives of employees but to seek by negotiation in good faith to reach an agreement by collective bargaining. THE CUDAHY PACKING COMPANY 321 the nature of the labor relations the respondent regarded as proper and desirable under the Act. This it did in the following words May I suggest, too, that in these times of change in the general conception of the relations between worker and employer we, of the Cudahy organization, will do well to keep to our charted course of industrial relations by which we have progressed steadily for so many years. Further it seems to me that until the rules and regulations em- bodied in the Wagner Labor Relations Act are known and under- stood thoroughly, it is the part of good judgment to maintain our accustomed way and not be unduly influenced by the developments of the moment. To its employees, such counsel by the respondent to "maintain the accustomed way" and to keep to the "charted course by which we have. progressed ... so many years" could only mean that the respondent desired that its labor relations should continue to be, as for 16 years they had been, under the Plan, insulated against participation by non- employees. The "developments of the moment," which the respondent cautioned the employees that they should "not be unduly influenced by," were obviously the efforts of nationally affiliated unions to enter into fields as yet unorganized, or, in many instances, as at the respond- ent's plants, organized under employer-controlled representation plans, and the movement among employees to join and form such national organizations and to secure representation by them for the purposes of collective bargaining. The admonition was not only directly obstruc- tive of the United's campaign, but was unmistakably a proposal that employees turn for leadership to those who had sought or might seek to organize them upon a plant basis. Nor is it of consequence that this message "To Cudahy Employees" did not employ threats to make its point. The respondent's message was addressed not to an economic equal, but to economic dependents. Suggestions made by an employer take on the aspect of command to employees, particularly where, as in the present case, the employer has for many years financed, promoted, and controlled their minimal form of collective action.35 Under such circumstances it was particularly essential that the respondent should not thus prejudice the determination to be made by its employees as to the form of self-organization they should choose. We find that the as Cf. National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U. S. 272, 274-275. See also National Labor Relations Board v. The Griswold Manufacturing Com- pany, 100 P. (2d) 713 (C. C. A. 3). The Senate Committee on Education and Labor, discussing Section 8 ( 2), stated ( Sen. Comm. Print Comparison of S. 2961, 73d Cong., and S. 1958 , 74th Cong., p. 27) : As the testimony before the Committee last year and this year amply demon- strates it is at the stage of "formation" that employer activity is most effective and harmful. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent by its message sponsored, promoted, and assisted the for- mation of the P. H. W. U., and that by the distribution of "Extra Force," and by the other acts of assistance to the P. H. W. U. and obstructive of the United, above set forth, interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. As we have stated above the "Extra Force" was distributed at the time when the circularization in the plant of petitions for the formation of the P. H. W. U. was beginning. By April 27, 1939, scarcely a week later, signatures of over 750 of the approximately 1150 employees then working at the Kansas City plant had been obtained to the petitions.36 Within a few days thereafter articles of associa- tion of the P. H. W. U. were circulated in the plant, and by May 7, 1937, a majority of employees had signed the articles. We shall con- sider below in detail the manner in which the circulation of the petitions and the articles of association was conducted and the re- spondent's participation therein. While there is some dispute in the evidence as to the manner of circulation and the respondent's part in it, it is clear that, apart therefrom, the affiliation within so short a period of such a proportion of the employees with the P. H. W. U. is to be accounted for in part by the distributing to employees of the special edition of the respondent's publication counseling against out- side labor organizations and urging adherence to the "accustomed way." The articles of association themselves recite that the P. H. W. U. is formed by employees at the Kansas City plant who believe "it to be for the best interests of the employees of that plant to unite in an organization of which they will have control, which can best deal with their particular problems, and which will be free from en- tangling alliances with other organizations whose problems are dis- tinct from theirs." 37 The articles of association in other respects kept to the "charted course of industrial relations." They provide that membership shall be limited to employees at the Kansas City plant,311 and while providing for the election of officers by the mem- bership at large, the articles in respect to the machinery of collective bargaining again follow the principles of the Plan. They provide for the election of a board of trustees to be chosen by employees in various electoral divisions in the plant, and declare that, by signing 3' The figure of 1150 employees includes approximately 50 to 60 foremen and assistant foremen. See footnote 18, supra. 37 Compare the statement made by the respondent in the July 1937 issue of "Force," quoted infra. m The bylaws of the P. H. W. U. further provide that, "If any officer (including Trus- tees) shall cease to be an employee of the Kansas City plant of The Cudahy Packing Com- pany, his office shall become vacant." THE CUDAHY PACKING COMPANY 323 the articles, employees "designate and select" the board of trustees to be elected "as our representatives." The articles conclude with the provision which could not fail to impress an employee with the continuity of labor relations under the Plan and the P. H. W. U. The final paragraph of the articles provides that a copy of the arti- cles, together with the names of the trustees shall be forwarded to the respondent, and that not only changes in the membership of the board of trustees but "any amendments to these Articles" as well should be forwarded to the respondent. That the board of trustees regarded itself as merely a successor to Plant Conference Board and with functions of no different character is indicated by the testimony of Philip Beil and Aubrey A. McDaniels, the only trustees to testify at the hearing as to the operation of the P. H. W. U.3° Beil had been an employee representative under the Plan since 1923, had been chair- man of its grievance committee for 10 years, and was elected chair- man of the board of trustees of the P. H. W. U. He testified that "the reason the trustees were formed and I was made (their) chair- man . . . (was) to hear those complaints and to bring them to the attention of the trustees." McDaniels described his concept of his trusteeship as follows: Well, at one of the meetings they elected me as trustee and the part I took in there, as I understand it, is to work over the stew- ards and things like that on grievances and things.40 We have referred above to the fact that the petitions for the for- mation of the P. H. W. U. and the articles of association were cir- culated throughout the plant. It is contended that this was done without the knowledge of the respondent. The record, on the con- trary, shows that the solicitation of employees was carried on openly, on the respondent's time, with the knowledge and acquiescence of its 3'Allison, the only other trustee to testify, gave no testimony on this point. The bylaws of the P. H. W. U. adopted May 5, 1937, provide : "The Trustees shall act as the exclusive representatives of all the employees of the Kansas City plant of the Cudahy Packing Com- pany for the purpose of collective bargaining with said The Cudahy Packing Company in respect to rates of pay , wages, hours of employment , and other conditions of employment and shall have authority to enter into agreements with said Company relative thereto. They shall receive and consider all grievances presented to them by department stewards representing the members of the Union in various departments of the plant, in the manner prescribed in the section of these by-laws with reference to grievances and negotiate with the Management concerning such grievances when necessary." (Article III, Sec. 8). The declaration that "The Trustees shall act as the exclusive representatives of all the em- ployees of the Kansas City plant" would seem to bespeak advance assurance by the re- spondent that it would always recognize the claim by the I'. H. W. U. to have been des- ignated by a majority of the employees . For the claim that the articles of association had been signed by a majority of the employees was first communicated' to the respondent by a letter of May 7, 1937. Moreover, a legitimate labor organization would hardly write into its bylaws a declaration of a perpetual majority status. 40 That the trustees. as a whole, in no real sense regarded themselves as representatives for collective bargaining is further disclosed by their conduct in December 1937 in connec- tion with the consideration of the tolerance-hour proposal, to which we have referred above and which we shall consider. in detail below. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory employees, and in many instances by the supervisory employees themselves. That in some instances such supervisory em- ployees are designated strawbosses and foreladies does not relieve the respondent from responsibility for their acts. The record clearly shows that both strawbosses and fore]adies act in a supervisory ca- pacity, that they transmit orders of the foreman or assistant foreman, are charged with proper execution of such orders, and arrange the work among the employees under their direct supervision. Unlike gang leaders, as the record shows, they are not charged with per- sonally performing physical labor. Admittedly, strawbosses have and exercise the right to make recommendations as to discharges and lay-offs, and their recommendations, unless thought to be based upon personal animosity, are accepted. Some strawbosses are paid on an hourly basis, others receive a weekly salary. Foreladies in some in- stances work under the immediate supervision of strawbosses who in addition supervise other employees, but in some cases foreladies have as their only superior a foreman who is in charge of several depart- ments. From the testimony of the respondent's own witnesses, it is apparent that there is frequently no essential difference between strawbosses and assistant foremen. Thus, in the animal-feed depart- ment, White, a supervisory employee in charge of 15 to 20 men and subject to the orders of a foreman and assistant foreman who super- vise several departments, regards himself and is regarded by the respondent as an assistant foreman. On the other hand, Katie Crofton, who is classified as a forelady, is in charge of 25 to 30 women in the sliced-bacon department and is subject only to the orders of a foreman who has no assistant foreman and supervises three departments. Again, Broadhurst, a supervisory employee, is described by Heuck as a strawboss, although he had his own office and is regarded as foreman of the pork-trim department not only by Williamson and Winterringer, employees called as witnesses by the Board, but also by the respondent's witness, Kinscheloe, who him- self is assistant foreman in the fresh-pork department. Moreover, by their terms, though in the case of the P. H. W. U. practice belies profession, both the Plan and the Articles of Association of the P. H. W. U. recognize that foremen and assistant foremen are not the only employees who are supervisory employees and identified with the management.41 We perceive no basis for disregarding the si By its terms , the Plan excluded from participation in the selection of employee repre- sentatives "foremen, assistant foremen, clerks, timekeepers, and employees having the power of supervision, employment or discharge." Similarly the Plan provided that "fore- men, assistant foremen, clerks, timekeepers and employees having the power of supervision, employment or discharge" were not eligible to this office of employee representatives. The Articles of Association of the P. H. W. U. provide : "Foremen, assistant foremen, and employees having poker of supervision, employment or discharge" shall not be eligible to membership. [Italics added.] The bylaws of the P. H. W. U., in addition expressly ex- clude, "managers or assistant managers or departments, (and) time study men." THE CUDAHY PACKING • COMPANY 325 obvious fact that strawbosses and foreladies represent the respondent in the conduct of its operations, and the record clearly shows that they are regarded by other employees as part of the management. As we have stated above, supervisory employees participated ex- tensively in the circulation of the petition and the articles of associa- tion of the P. H. W. U. We shall note only a few of the instances. White, assistant foreman of the animal-feed department, signed the petition of the P. H. W. U. and admitted that he had secured the signatures of approximately 9 or 10 of the 12 employees in that department whose names follow his on the petition in evidence. Williamson, an employee in the mechanical department whose duties carry him throughout the plant, testified that he saw Kinscheloe, who was then a scaler and checker, call a number of women into Broadhurst's office about this time to sign certain papers. His testi- mony is corroborated by the articles of association in evidence which contain on the same page Kinscheloe's name and the names of a num- ber of women, the surnames of two of whom had been added with the notation that it was written "By W. D. Kinscheloe." While Kinsch- eloe denied calling the women to the office, he testified, "I tried to sign them up, whether it was in Mr. Broadhurst's office or it was out- side it didn't matter to me." We find that Williamson's account of the incident is to be credited. The participation of other supervisory employees is established by uncontradicted testimony. Hodges, strawboss over 10 to 23 men in the canning department and receiving a salary, signed both the petition and the articles of association, and admitted that he had openly worn his P. H. W. U. membership button until a month before the hearing and was a paid-up member. He also admitted that he had asked "probably all of the gang" to join the P. H. W. U. Anna Millich, forelady in the canning department 42 with 25 to 30 women under her supervision, signed the petition. It appears from the uncontradicted testimony of Mary Horn, that Millich directed her and the other women under Millich's supervision to sign the petition at their work.. It also appears from the uncontradicted testimony of Horn and M. A. Borris that Protrasky, who was a strawboss over approximately 55 employees in the canning depart- ment-and Millich's immediate superior, assigned Borris to the job of one Savage at the grinding machine for approximately 3 hours, so that Savage might circulate either the petition or the articles of association, and that Savage used the office of Lewis, foreman of the department, to solicit signatures during working hours. Emma Gillette, employed in the labelling and shipping divisions of the 42 The canning department employs as many as 175 persons and, apparently, is the largest department in the Kansas City plant. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD canning department, testified, without contradiction, that Bob Beason, strawboss over approximately 35 employees in those di- visions, asked her and other employees at their work to. sign the petition, and told them that "Mr. Lewis [foreman of the entire de- partment] wanted it back at the office by noon." Broadhurst, foreman of the pork-trim department, Cordon, straw- boss over 6 to 8 employees, and Pokas, loading strawboss over 10 to 20 men, signed both the petition and the articles of association. The petition was also signed by King, strawboss over 10 to 15 employees in the ham-boning department, Kolenda, strawboss over 10 to 15 employees in the sweet-pickle department, and Newnan, a salaried "roustabout boss" over 5 to 20 employees in the mechanical depart- ment labor group. Sullivan, strawboss in the sausage department over 10 employees, signed the articles of association. None of these supervisory employees was called as a witness to explain his action in signing the documents. We have stated above that Callowick, who was employed as a pike-pole man in the beef-cooler department, was among the most active of the employees who circulated the petition and articles of association. While Callowick's testimony does not always distin- guish between the petition and the articles, it appears from his own admissions that he spent approximately 2 to 4 days circulating each of them, and was away from his job on those days from 2 or 3 hours and on some occasions a half to a third of his working time, that he circulated the documents in a majority of the departments, and that he secured many signatures to both documents and 200 to 250 signatures to one of them. Callowick testified that his foreman, Weber, did not know that he had left his job. Weber did not testify. We cannot believe that Weber was unaware of and did not arrange for Callowick's absence from his work. Callowick visited depart- ments of the plant such as the fertilizer plant and tank house, which were a considerable distance from the beef-cooler department. More- over, it appears that the nature of Callowick's work was such that, while he may have been able to complete all work on hand, there was no way for him to anticipate the time when meat would be de- livered to him to be poled. Callowick claimed that he had tried to avoid being observed by the foremen and assistant foremen in the departments which he visited. The claim is contrary not only to the testimony given by the employees called as witnesses by the Board, but also to the testimony of at least one of the foremen involved. Callowick admitted that he had signed up employees in the beef-kill department at the desk of Rodler, the foreman. Callo- wick claimed that neither Rodler nor Barrett, the assistant foreman, were present. Garcia and Washington, employees in the beef-kill THE CUDAHY PACKING COMPANY 327 , department, testified that Barrett had been present. Rodler testified that he had returned from lunch and had found Callowick at his desk with a group of employees gathered at his desk, that he had not inquired as to the reason for such a gathering, that he had found Barrett in the department within view of the desk and that except in cases of emergency either he or Barrett are always present in the department. We find that Callowick solicited in the beef-kill depart- ment with the knowledge and acquiescence of the respondent. In- deed, Callowick testified that he had asked permission from one fore- man on the fourth floor to talk to the men in the department and that the foreman had allowed him to do so, stating "he had to go somewhere and what he didn't see wouldn't hurt him." Callowick went so far as to testify that he had managed to get one foreman away from his department, so as to solicit unnoticed, by falsely tell- ing him that Weber, Callowick's foreman, wanted to see the foreman. Obviously this would have disclosed to Weber that Callowick was away from his job. We are satisfied that Callowick's actions in circulating the petition and documents were fully known to and per- mitted by the respondent. In addition to the facts which we have set forth above, it is to be noted that the record clearly shows that Callowick could not have avoided the notice of strawbosses and foreladies who, the record shows, were by the nature of their duties present wherever work was being done by employees subject to their supervision. That they were seen by those supervisory employees was not denied either by Callowick or by Allison, who claimed that he secured signatures by jumping off his tractor to talk to employees as he made deliveries in various departments. Also active in circulating the articles of association was Walter Blevins, an employee in the fresh-pork department whose status we shall consider below. Blevins, who admittedly had until recently been assistant foreman in the fresh-pork department, circulated the articles of association, and later collected dues for the P. H. W. U. throughout the plant for a period of at least 2 weeks, and at least as early as May 17, 1937, as spokesman for the P. H. W. U., interviewed employees in the plant concerning grievances. During this entire time Blevins wore his foreman's smock. It is contended that Blevins had terminated his employment before engaging in these activities and that the respondent had no knowledge of his presence in the' plant. Blevins admitted that he had visited the beef-kill department two or three times, and as we have noted above, either the foreman or assistant foreman is present in the department except in emer- gencies. Blevins testified that during these visits he had hidden behind carcasses so as not to be seen. Rodler, foreman of the depart- ment, admitted, however, that he had seen Blevins talking to the 247 ;S4-4o-vol. 1.7 22 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men. Blevins was a clearly untruthful witness, and we credit the testimony of Willis, Candido, Smart, Washington, Yarmek, M. J. Borris, Briner, Williford, Williamson, Winterringer, and other em- ployees that Blevins openly spoke to them or to other employees at their work concerning the P. H. W. U. Indeed, Wilkerson, a witness called by the P. H. W. U., testified that when he and others were laid off in his department they looked for Blevins in the plant in order to present their grievances to him as a representative of the P. H. W. U., and that they found him in the yard near the employment office. Obviously Blevins' presence in the plant was not only open but a matter of common knowledge. Moreover, Blevins did not contend that he had sought to avoid the notice of strawbosses and foreladies, and as we have pointed out above he could not possibly have done so. Several foremen testified that they received instructions from Heuck to maintain a neutral position with respect to the competing union. The respondent, however, offered no proof that it had issued any instructions to strawbosses and foreladies, although as we have pointed out, they were active in promoting the P. H. W. U. and the respondent was clearly responsible for their actions. Moreover, the testimony of the foremen is indefinite as to the date when they received the alleged instructions, and other evidence indicates, and we find, that such instructions were not issued until after the P. H. W. U. had been granted exclusive recognition by the respondent as the bar- gaining agent of the employees at the Kansas City plant. That the purported policy of neutrality was not inaugurated at a time when, if enforced, it would have indicated to employees the respondent's impartiality, is revealed by the testimony of Seever, an employee who had been outspoken for the United. Seever testified that during the period when the articles of association were being openly circulated in the plant, Epperson, foreman of the sweet-pickle department, had warned him, "I am informed that you are talking union and that is not permitted." 43 Epperson was not called as a witness, and we find that the facts were as stated by Seever. While it appears that by July the respondent had promulgated a rule which prohibited circu- lation of petitions by either organization in the plant, the P. H. W. U. had meanwhile been granted- recognition as the exclusive representa- tive of all employees, and the record leaves no doubt that prohibition While Callowick testified that adherents of the United were also seeking to sign up employees , the incidents to which he refers seem to have been surreptitious and to have occurred in the dressing rooms. Allison . who claimed his duties carried him through many departments , admitted that he had never seen solicitation for the United in the plant, and Bell testified that the solicitation by the United he had witnessed "was (at) noon hour and before work hours in the morning." In any event it is clear from the record that the activities of the United in the plant were-in contrast with those of the F. H. W. U.- the exception and not the rule, and were in no case participated in by supervisory employees. THE Cti DAHY PACKING COMPANY 329 was a means devised to preserve the advantageous position theretofore achieved by the P. H. W. U. through the respondent's assistance. At that time, for example, the rule was invoked to prevent Winterringer, one of the officers of the United, from circulating a petition in his department on which employees might indicate their preference between the United and the P. H. W. U. By the afore-mentioned solicitation on behalf of the P. H. W. U., carried on openly, on the respondent's time, with the knowledge and acquiescence of supervisory employees, as well as by supervisory em- ployees themselves, the respondent fostered, promoted, and otherwise encouraged the formation of the P. H. W. U., and contributed support to it. The immediate facts with respect to the circulation of the petition and articles of association at once indicated to its employees the respondent's wish and intention that the P. H. W. U. should be formed and that employees should become members thereof. Thereby free choice of the P. H. W. U. as a bargaining representative by employees became impossible and the P. H. W. U. was stamped as the respondent's creature. That previously the respondent, for 16 years, had carried on its labor relations through a dominated Plan, only made more certain, as did other unconcealed activities of the respon- dent, that its wishes and intentions would be recognized and observed by employees. - We have referred above to the activities of Blevins in the circula- tion of the articles of association, and the collection of dues for the P. H. W. U. inside the plant. It is contended that these activities occurred after May 8, 1937; that on said date Blevins was only a clerk in the fresh-pork department, having been reduced to that status from the position of assistant foreman 2 or 3 months previously; and that on said date Blevins acting in his own interest, quit his employ- ment with the respondent to become financial secretary of the P. H. W. U. Whether Blevins engaged in any activities inside the plant on behalf of the P. H. W. U. before May 8, 1937 , is of no particular consequence, since he admittedly did so thereafter until about May 24, 1937,4 and, as we find, did so wearing the indicia of a supervisory employee and acting with the knowledge of the respondent. More- over, the contentions as to Blevins' status on May 8, 1937, and the alleged reason for the termination of his employment by the respon- dent and his subsequent participation in the affairs of the P. H. W. U. are not supported by the record. Blevins testified that he quit his job on May 8, 1937, to become financial secretary of the P. H. W. U. and that for about 60 days 44 About Dfac 24, 1937 . one of the representatives of the United protested to Heuck that Blevins was allowed the freedom of the plant while such privilege was denied the United. It was not disputed that Blevins then ceased his activities inside the plant. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously he had been "reduced to a clerk" whose "duties were con- fined to a desk within a small office." He stated that the change in his position to that of a clerk was "due to the small volume of busi- ness" and that the clerk whom he replaced was transferred to "the gang." Blevins admitted that his salary had not been reduced at the time of the alleged change in positions. Evans, superintendent of the fresh-pork department, testified that "perhaps two or three months" before May 8, 1937, Blevins was placed "in the office doing the work of a clerk," because "business was slow" and the regular clerk "was put back in the gang, scaling." Kinscheloe, who suc- ceeded to Blevins' position, testified that he was not made assistant foreman until June 18, 1937, at which time he stated there was ,in increase in business, and that the position of assistant foreman had meanwhile remained vacant. We find that this testimony cannot be credited in view of the documentary evidence in the record. Thus, though Blevins is alleged to have been demoted to the position of clerk some 60 to 90 days prior to May 8, 1937, because of slackening business and the position to have remained vacant until Kinscheloe was made assistant foreman on June 18, 1937, because of an increase in business, the respondent's records of hogs killed weekly from February through July 1937, disclose the following : Week ending- Hogs killed week ending- Hogs killed 216/37 ---------- 4,798 5/8/37 ------------ 2,445 , 2/13/37 --------- 5,088 5/15/37 ----------- 2 354 2/20/37--_ ----- 5,069 5/22/37 ----------- 2, 773 2/27/37 --------- 4,597 5/29/37 ----------- 3,498 3/6/37 ---------- 4,989 6/5/37 ------------ 3, 565 3/13137 --------- 5, 629 6/12/37 ----------- 3, 701 3/20/37--------- 5,138 6/19/37 ----------- 2,622 3/27/37 --------- 3,503 6/26/37 ----------- 3,322 4/2/37 ---------- 4,529 7/3/37 ------------ 3, 258 4/10/37 --------- 3, 675 7/10/37 ----------- 1,811 4/17/37 --------- 4,614 7/17/37 ----------- 2, 147 4/24/37 --------- 4,558 7/24/37 ----------- 1,890 5/1/37 ---------- 3, 325 7/31/37 ----------- 2,097 Blevins' employment record shows that, between 1926 and 1937, he held various jobs at different salaries, the most recent change recorded being his transfer on July 13, 1937, from time-study man 45 to assist- ant foreman in the fresh-pork department. The employment record shows no change from the latter position, although it is clear there- from that the respondent customarily recorded changes in status. In view of this documentary evidence and Blevins' admission that his salary was not reduced, and upon the entire record, we find that 11 Time studies were made to determine the rate of compensation for piece work. THE CUDAHY PACKING COMPANY 331 Blevins was employed by the respondent until May 8, 1937, as assist- ant foreman in the fresh-pork department of the Kansas City plant. We next consider the contention that Blevins quit his job on May 8, 1937, for reasons of his own, and that he thereafter, for the first time, participated in the affairs of the P. H. W. U. Blevins testified that "early on the afternoon" of May 8, 1937, which was a Saturday, Callo- wick approached him in the rest room and asked him whether he would be interested in becoming financial secretary of the P. H. W. U., that he answered he would not, that, as he o as leaving work later in the afternoon, Callowick approached him near the gate of the plant and again asked whether he would accept the job of financial secretary at the same salary "I was getting as assistant foreman of the fresh- pork," and that he accepted the offer and immediately returned to the plant, wrote out a resignation and left it on the foreman's desk. Blevins testified that he simply "walked off the job" and, except by way of the note left on the foreman's desk, gave the respondent no notice that he was resigning. Blevins further testified that, except for a casual conversation with fellow employees on the evening of May 7, he had no knowledge of the formation of the P. H. W. U.'° at the time Callowick spoke to him, and that he accepted Callowick's proposal without inquiry as to the membership of the P. H. W. U. and relied solely upon Callowick's assurance that he would receive the $35 a week he had been paid by the respondent. When questioned as to why he felt he could rely upon this assurance, Blevins answered that he "had ,come in contact with him [Callowick] about a year, I would say, or a year and a half, and I found that his word was as good as his bond." Pressed as to the nature of his previous "contacts," Blevins offered nothing beyond the statement that the "contacts" were "working and personally," and admitted they were not "close personal friends at the time." Blevins testified that he decided to accept the position as finan- cial secretary because "he was on the down hill side" in his job, alleg- ing that he at one time had earned $38.50 a week in the employ of the respondent and that he had been on his last job for "over a year and I had asked my superior officer for a raise and all I got was prom- ises." Blevins further testified that he entered upon his duties as financial secretary on Monday, May 10, 1937. According to Callowick the trustees and officers of the P. H. W. U. at a meeting held at Allison's home the evening of May 7, 1937, de- cided that Blevins was the person to be secured as financial secretary, that it had then been decided to offer him $35 a week, that he had been chosen in preference to others considered because "I understood he 46 Blevins also testified that he had never participated in the Plant Conference Board. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a clerk." Asked as to the basis of this understanding, Callowick stated : The basis of that understanding is the man was on the fifth floor of the beef-boning department where I have to go quite often and I have often seen the man working on records and as there are four or five clerks in that office I assumed the man was a clerk. Callowick, when asked whether he "knew Blevins as a friend before the time you approached him to be financial secretary," testified "I knew him very slightly." He further testified that he made no check to determine Blevins' efficiency as a. "clerk." Regarding the conversa- tion with Blevins, Callowick, who also fixed the date as the afternoon of May 8, 1937, testified : I explained to him only that the job would pay $35.00 and the possibilities were it would go higher as we got more members. That was the extent of practically the whole conversation. Callowick also testified that Blevins began his. duties as financial secretary on May 10, 1937. Evans, foreman of the fresh-pork department, testified that Blevins had placed the note of resignation on his desk, but that the first time he had any conversation with Blevins about the letter was some 6 weeks later. Although he admitted this was the only occasion upon which he had received a resignation from an employee, Evans claimed that he had kept the note in his desk until he had received a call for it from Heuck's stenographer at about 1 o'clock in the after- noon of February 4, 1938. At that time neither Blevins nor Callo- wick had testified, but that morning there had been introduced in evidence at the hearing Blevins' employment record containing the notation that on May 8, 1937, he had received a leave of absence. Heuck, at the hearing on the afternoon of February 4, 1938, testi- fied that he alone had authority to grant a leave of absence, that in such a case he might forward to the clerk in the employment office a note concerning the leave to supplement the usual release slip, denied that Blevins, who had worked directly under him as "time study" man for almost 2 years immediately preceding his transfer to the job of assistant foreman, had spoken to him about leaving his job, or had asked for a leave of absence, and alleged that the clerk in making the notation on Blevins' employment record that he had been given a leave of absence was "without authority" or "he was mis- informed." Heuck admitted that the clerk who had made the entry on Blevins' employment record was still employed by the respondent. The clerk was not called as a witness. THE CUDAHY PACKING COMPANY 333 We are unable to credit the testimony which we have set out with respect to the circumstances under which Blevins' employment by the respondent was terminated and he began to act as financial secretary of the P. H. W. U. Blevins' alleged motive for relinquishing his job is patently untrue. At the time he was receiving $35 a week, and his employment record shows that this was the highest wage he had ever received. Moreover, the employment record shows that within the period of less than a year he had received two raises in his salary as assistant foreman. We cannot believe that a person in his super- visory position, under these circumstances, would, on the spur of the moment, quit his job to become financial secretary of an organization as to whose membership he was entirely ignorant, and with no assur- ance that he would receive even his accustomed salary, other than the promise of another employee who testified that at the time the arti- cles of association were circulated "I didn't hardly know Blevins." Moreover, the explanation advanced by Callowick for selecting Ble- vins is palpably false. The board of trustees of the P. H. W. U. could hardly have known on May 7, 1937, the amount of the salary Blevins was receiving from the respondent. Nor could they have selected him because of his assumed competence as a clerk in the beef-boning department, since he worked in an entirely different de- partment. Nor was Blevins one of several clerks in the office of the fresh-pork department. Moreover, in a plant obviously having many persons engaged in clerical work, it is incredible that there should be chosen as financial secretary an employee who, allegedly, had not even been approached to join the P. H. W. U. Equally unpersuasive is Blevins' testimony that after 11 years in the respondent's employ, more than once in a supervisory position, he simply walked off his job in the fresh-pork department. We think that his employment record, a document which did not lend itself to fabrication since it contained entries for the past 11 years, is to be credited. We con- clude that Blevins became financial secretary at the instance of the respondent, and was granted a leave of absence by Heuck in order that he might act in that position. While the evidence compels such a conclusion even upon the assumption that Blevins did not become financial secretary until May 8, 1937, the record shows that Blevins had become financial secretary even earlier. On May 7, 1937, the P. H. W. U. wrote Heuck requesting recognition of its board of trustees as the exclusive representative of employees at the Kansas City plant for the purposes of collective bargaining. On May 10, 1937, Heuck replied by letter granting such recognition. Previously on April 29 and 30, 1937, there had been a similar exchange of letters resulting in the recognition by the respondent of the organ- izing committee of the P. H. W. U. as exclusive representatives pend- 334 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD ing the completion of the organization. On May 11, 1937, Heuck forwarded copies of the May 7 and May 10, 1937, letters to R. E. Yocum at the respondent's office in Chicago. Yocum is the general superintendent in charge of all of the respondent's plants and in charge of all labor relations. In the covering letter, dated May 11, 1937, Heuck referred among other things to a meeting of the P. H. W. U. held on May 5, 1937, at which officers and trustees were elected, and named as among the officers elected "W. W. Blevins, Employee of our fresh pork department." Heuck's letter of May 11 also refers to the election by the board of trustees at a meeting on the evening of May 7 of Philip Beil as chairman. Beil testified that he attended the meet- ing on May 5, 1937, that he was temporary chairman of the meeting, and that Blevins was present and was chosen financial secretary. We find that Blevins became secretary of the P. H. W. U. during his employment as assistant foreman by the respondent, and that he did so at the instance of the respondent in order that the respondent might insure its control over that organization and that he was given a leave of absence as a token of assurance that he might return to his former position. As we have pointed out above the respondent, on April 30, 1937, recognized the P. H. W. U. organizing committee as the exclusive bar- gaining agent of employees at the Kansas City plant, and, on May 10, 1937, granted such recognition to the then organized P. H. W. U. Other than the statement in Heuck's letter of May 10, there is no evidence in the record that the respondent made any check to determine how many employees had signed the articles of association of the P. H. W. U. before the letter was sent. In the letter Heuck wrote that the articles had been presented to him for verification by McCamish, attorney for the P. H. W. U. In his letter of April 30, Heuck had made an identical statement with respect to the P. H. W. U. petitions. McCamish did not testify. Heuck, when interrogated, said that the petitions had been presented by Allison and Callowick whom he de- scribed as officers of the P. H. W. U., although no officers were elected or articles of association or bylaws adopted until a week later. Heuck sought to explain the statement in the letter that the petitions had been presented by McCamish, on the ground that he assumed that the officers of the union were presenting them on behalf of their attorney. Alli- son's only testimony with respect to the petitions after they were col- lected was that they had been sent to the attorney for safekeeping. Callowick testified that the petitions had been turned over to the attorney, that he had left the matter entirely in the hands of the attor- ney, and that he had no knowledge of any check made by the respon- dent. Although Heuck testified that the petitions were checked by the timekeeper and a clerk, neither was called as a witness. Heuck THE CUDAHY PACKING COMPANY 335 did not testify as to the basis for the statement made in the letter of May 10 that the articles of association had been presented by McCam- ish. We conclude that on April 30, 1937, the respondent granted recognition to the P. H. W. U. organizing committee, and on May 10, 1937, to the P. H. W. U., without making any check of its claims of membership. Indeed, that the entire exchange of letters was part of a prearranged scheme is indicated by the fact that identical letters were sent by the organizing committees at St. Paul and Kansas City plants, and identical letters of recognition were sent by the superin- tendents of those plants. As we have also pointed out above the respondent knew as early as April 18, 1937, that the United was seeking to organize the em- ployees at the Kansas City plant. The respondent's precipitate recognition of the P. H. W. U. committee and later the P. H. W. U., without any check of their membership claims, was obviously a step taken in order to obstruct the United's organizational efforts and to give support to the P. H. W. U. That this 'was the respondent's plan of action is further shown by the circumstances under which it entered into an exclusive bargaining contract with the P. H. W. U. on June 3, 1937. On May 21, 1937, representatives of the United conferred with Renck, stated that they had enrolled a majority of the employees, and asked for bargaining rights. Heuck stated that he would have to consult his superiors in Chicago and another meeting was agreed upon. Following the meeting Heuck consulted Yocum at the re- spondent's Chicago office by telephone with respect to the United's claim and request, a procedure he also followed with respect to his later meetings with the United. On May 24 the United representa- tives met again with Heuck and asked for recognition. On this occasion Heuck stated that the P. H. W. U. had shown proof of a majority and had been granted recognition, and intimated that the United should submit its evidence of membership. When pressed as to whether, if shown evidence of the United's majority, he would grant recognition to the United, Heuck said that he would have to consult his superiors. The United representatives, therefore, de- clined to present any proof but pointed out that it was apparent that there was a duplication of members in the two organizations and proposed that the issue of majority be determined by an election to be held by the National Labor Relations Board. To this Heuck de- clined to agree. Heuck stated that he would consult with the Chicago office, and a further meeting was set for May 28. At the meeting held on May 28, the United representatives asked for recognition as the representatives of their members. Again Heuck said he would have to consult his superiors, and June 4 was agreed upon as the date of the next meeting. On June 4 Heuck was in Omaha. On June 7 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he met again with the representatives of the United and at that time told them that nothing further could be done in view of the con- tract which the respondent had meanwhile entered into with the P. H. W. U. When Heuck met with the United representatives on May 24, Cal- lowick and Orme, one of the trustees of the P. H. W. U., were in Omaha for the purpose of negotiating a contract with the respondent on behalf of the P. H. W. U. This, Heuck, by his own admission, knew. By May 26 the contract had been agreed upon. It is reason- able to infer that Heuck was so informed, and according to his own testimony was so told by Callowick on the latter's return from Omaha on May 29. However, Heuck did not refer to the negotiations in Omaha in his meetings with the United on May 24 and 28, and Smith, the assistant superintendent at the Kansas City plant, called off the meeting with the United scheduled for June 4 without disclos- ing the fact that the contract had meanwhile been agreed upon. Moreover, one of the' persons signing the contract on behalf of the respondent was Yocum, whom Heuck had advised of the claims made by the United. In failing to disclose to the United the pendency of negotia- tions with the P. H. W. U. and in consummating a contract with it despite the conflicting claim of the United to represent employees at the Kansas City plant, the respondent clearly indicated preference for the P. H. W. U. and unwillingness to consider the status of the United as the bargaining agent for its employees, and thereby the respondent gave support to the P. H. W. U. and obstructed the United. In so finding we have not overlooked the contention that the record shows that in May 1937 the United had not been designated by a majority of employees at the Kansas City plant. While we do not find the contention, so broadly stated, to be in accordance with the evidence,47 we think that in any event the argument based thereon is beside the point. The record shows that the respondent proceeded with the negotiation of a contract with the P. H. W. U.. in the face of a competing claim of representation, the validity of which it did not seek to determine. While the United had declined to exhibit proof of membership, it did so only after the respondent had indi- cated that it would give no weight to such evidence, and would not agree to an election even if shown that the claims of the two labor organizations were based upon a duplication of members. Whether or not, in fact, the United had been designated by the majority of employees was not a matter by which the respondent intended to be deterred. Its manifest intention to disregard, rather than the actual. status of the United, is the circumstance to which reference must be 47 See Section IX, infra. THE CUDAHY PACKING COMPANY 337 had in appraising the respondent's conduct in entering into the con- tract with the P. H. W. U. We have stated above that by his own admission Heuck knew, It the time of the conferences between himself and the United repre- sentatives, that Callowick and Orme were in Omaha for the pur- pose of negotiating a contract with the respondent on behalf of the P. H. W. U. Heuck also admitted, and we find, that he had given Callowick and Orme $40 each for the expenses of the trip to Omaha after Callowick had advised him of the projected conference and he had consulted Yocum by telephone, and that he had granted Callo- wick permission to be away from his job. Later in the hearing Callo- wick denied that he had received any funds from the respondent and produced cancelled checks of the P. H. W. U. for $40 each payable to himself and Orme. While Blevins also testified that the checks had been issued by the P. H. W. U. to defray the expenses of the trip, we find that the coincidence in amount between the checks and the sum which Heuck stated he paid in cash for the expenses, entirely cor- roborates Heuck's admission that the respondent paid the expenses of the trip. Whether the money was paid over to Callowick, de- posited in the account of the P. H. W. U., and then withdrawn by check, or whether it was later paid over to reimburse the P. H. W. U. for its expenditures; is unimportant. Callowick also denied that he had advised Heuck of the proposed trip to Omaha, and stated that he had obtained permission from his foreman to be away from his job and had given the foreman no explanation for the request. The foreman was not called as a wit- ness. Since Callowick could have had no reason not to advise Heuck of the proposed trip, we conclude that his denial that he did so was part of his attempt to controvert the proof that the respondent had paid the expenses of the trip. Callowick testified that the occasion for the trip to Omaha was a letter which he had received from one Nakromis, president of the independent union at the respondent's Omaha plant, which asked if we would like to sit in on a conference that the Omaha plant was having at the time with the company with regard to con- tracts; they thought possibly, as they explained in the letter, that we should unify a plan that would be substantially good for two or three plants or whatever it may concern. The letter, according to Callowick, stated that two delegates were to be present from the independent labor organizations at the respond- ent's Sioux City 48 and Omaha plants. Callowick further testified that 4S In Matter of The Cudahy Packing Company and United Packinghouse Workers Local Industrial Union No. 889, 15 N. L. R. B., 676, we found that the respondent interfered 'with, dominated , and contributed support to the adw8nistration of this organization, the Packinghouse Workers Union of Sioux City. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the letter had been addressed to him as president of the P. H. W. U. and that it Was the first communication he had ever received from Nakromis. When questioned as to the whereabouts of the letter Cal- lowick stated that it had been stolen from his locker. Later when questioned concerning the origin of the P. H. W. U., Callowick testified that he had received. an earlier letter from Nakromis, also allegedly stolen from his locker, stating "that they were organizing a union and were going to call it that [Packing House Workers Union]." Callo- wick, who had never been a member of the Conference Board, offered no explanation for the alleged earlier letter having been sent to him. He went so far as to testify that he had never heard of communications from the St. Paul organization, though the record clearly shows that the organizing committee of the P. H. W. U. received letters from St. Paul, and that the articles of association of the P. H. W. U., which Callowick claimed he had drafted,49 were copied from the articles of association of the St. Paul organization. Callowick further testified that he and Orme had been chosen as delegates by the P. H. W. U. at a meeting of the board of trustees held one afternoon in the yard of the Kansas City plant. McDaniels, one of the trustees of the P. H. W. U., on the other hand testified "we had all got together and talked between ourselves and maybe two or three of us, threshed it out that would be a good thing to send them." Mc- Daniel's version would account for the testimony of Beil, the chairman of the board, that he had "no idea" how Callowick was selected to go to Omaha. McDaniels further testified that he did not know that labor organizations from the other plants of the respondent were to attend the meeting in Omaha and that, while there had been some dis- cussion of holding a meeting with the respondent in Kansas City to secure a contract, Callowick and Blevins had advised that the matter could best be handled at Omaha. Callowick testified that the subject of contract was discussed by the board of trustees of the P. H. W. U. before he and Orme went to Omaha. According to Callowick the discussion occurred between May 5 and May 10, 1937, at the time of a conference of the trustees with Heuck, who "was asked to leave the room for a few minutes and I believe he did so and went into the fire-hall" and did not return for a half hour. McDaniels denied that Heuck had ever left the room during the conference with trustees, and, in fact, the record shows that the first meeting between Heuck and the trustees did not occur until May 11, the day after the P. H. W. U. was recognized. According to 4° When interrogated as to the details regarding the preparation of the articles of association, Callowick stated that "several rough drafts (were) prepared," including one which he prepared "using as my example some rules we had from a previous anion to which I had belonged . . . in Chicago," and that he and others on a committee had derived the final articles from these drafts. THE CUDAI-[Y PACKING COMPANY 339 McDaniel's testimony "there was a meeting or two of the trustees" at which provisions Were drawn up "about the eight-hour day and forty- hour week and we left a whole lot of that up to him [Callowick] and two that went to Omaha, him and Orme to get the best and do the best that they could." As We shall point out below, in connection with the evidence concerning its ratification by the trustees, McDaniels was im- provising in his testimony concerning the contract. Beil, chairman of the board of trustees, had no recollection of any meeting of the trus- tees for the purpose of discussing a contract to be made at Omaha. We find that the matter was not the subject of any discussion at any meeting of the board of trustees. The meeting at Omaha on May 24, 25, and 26, 1937, was attended by delegates from Packing House Workers Unions which had been organized at all of the larger plants of the respondent. According to the testimony of Callowick and a statement of E. A. Cudahy, Jr., the respondent's president, appearing in the July issue of "Force," the delegates formulated their demands during the first 2 days of the meeting and on the third day called in the respondent, presented their demands, and arrived at an agreement. By the end of the third day of the meeting, a contract to cover each of the plants,50 effective June 14, 1937, had been prepared and had been signed by the dele- gates. Subsequently, copies of the contract were typed for signa- ture by the board of trustees at each plant, signed by the respondent, and forwarded to the various plants to be executed by the trustees. In the case of the contract with the P. H. W. U., the contract was forwarded by automobile from Omaha on the morning of June 3 to Smith, assistant superintendent at the Kansas City plant in charge of the plant in the absence of Heuck, with instructions to call a meeting of the trustees to obtain their signatures. The contract was signed by the trustees on the same day, June 3, 1937. Callowick testified that prior to the signing of the contract by the trustees he had presented the substance of the contract to a general membership meeting of the P. H. W. U. However, the bylaws of the P. H. W. U. clearly indicate 51 and Callowick himself stated that w With respect to wages the contract provided that- All employees in one locality shall receive a rate of compensation at least equal to the highest rate of wages paid by any other packing plant of comparable size in the same locality, provided , however, that this clause shall not apply to exceptional rates paid by such other plants. Special provisions with respect to three of the plants was made in one of the para- graphs, as follows : Any employee who is employed regularly or temporarily as foreman and having supervision or control of five (5) or more employees shall not be permitted to work as one of the regular employees , but his duties shall be confined to a super- visory capacity except that this will not apply to Salt Lake, San Diego, and Denver Plants. 61Article VII, Section 2 of the bylaws provides "Regular meetings of the membership of this Union shall be held the first Friday of each month, at such place as may be desig- nated by the Board of Trustees." 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the membership meeting was held the first Friday in • June, which was June 4. McDaniels testified that he had read the contract in advance of the day on which it was signed by the trustees. His tes- timony is evasive, as well as confused and contradictory,. and even Callowick admitted that he had brought back no copy from Omaha. We find that the contract was signed by the trustees without having been presented to the members of the P. H. W. U. for approval, and without opportunity even for deliberate consideration by the trus- tees themselves. The next week employees in the various depart- ments were assembled in the plant by supervisory employees, with Heuck's sanction, to listen to a reading of the contract by Callowick. Callowick spent an entire day reading the agreement to the various groups, and was paid his regular wages for the time so spent. Apart from Callowick's obviously untrue testimony with respect to the occasion for the conference at Omaha, and Heuck's testimony that he recalled Callowick telling him that he had received an invi- tation from "some other group ... to send delegates to Omaha," no explanation was offered for the Omaha meeting. We cannot be- lieve, however, that merely upon such a statement Heuck would have telephoned to the Chicago office for authority to pay the expenses of Callowick and another delegate to the meeting, or that Yocum would have authorized such an expenditure. It is plain that the meeting at Omaha was called by the respondent for the purpose of negotiating a contract with the various plant unions. Like the dele- gates to the General Conference Board, the delegates of the Packing House Workers Union met at a time and place designated by the respondent when the respondent was of the opinion that there was a matter which affected more than one of its plants; and, like the delegates to the General Conference Board, they were paid their expenses by the respondent and the meeting was held in Omaha. It is clear that the consummation of the contract was simply the last step in a project by the respondent to substitute for the Plan, an- other dominated labor organization. Indeed, the contract itself, in several respects, reveals the continuity between the Plan and the P. H. W. U. It expressly provides : The Company shall compensate all employees at their regular rate when such employees are attending a convention of the unions from the various Cudahy plants ... Compensation for time spent at conventions of plant unions was not the only financial support promised the P. H. W. U. by the con- tract of June 3. The contract provides that the respondent shall further compensate all employees at their regular rate for all time spent in conferences with the company representatives THE CUDAHY PACKING COMPANY 341 in regard to matters of collective bargaining or other matters of general interest to the employees. [Italics added.] This provision is supplemented by the further provision that in all activities in which the employees are interested, either directly or indirectly, the representatives of the Union shall have an equal voice with the Company in the management and admin- istration of such activities, except in manners pertaining to pen- sions, compensation and group insurance, in which matters the workmen shall have one representative on each of the last named committees. The record shows that under the Plan, employee representatives had shared equally with management representatives in the management of athletic activities; the record discloses that pursuant to the con- tract, representatives of the P. H. W. U. took the places of the employee representatives.52 In the case of "pensions, compensation and group insurance," the contract does not provide for representa- tion by the P. H. W. U. but provides instead that "workmen shall have one representative." In making such a distinction the contract again conformed to the prior practice under the Plan. In July 1937, the respondent distributed to employees an edition of "Force," the first page of which was devoted to a message from the respondent's president concerning the meeting at Omaha. The message stated, in part : A further matter of interest is that the Cudahy Packing House Workers Unions intend to continue in force pensions, group in- surance, goodfellowship work, athletic and educational activities, safety and accident prevention, credit unions, the thrift plan, and similar activities which I am happy to say I personally inau- gurated and which we have maintained through our cooperative efforts. As provided for at the Omaha meeting, all these advantages enjoyed by Cudahy Workers will be included among the projects promoted by the Cudahy Packing House Workers Unions. The record shows that pensions, group insurance, credit unions, and the thrift plan had been in effect for many years at the respondent's plants. The statement that the Omaha meeting provided that these activities of the respondent would be "promoted by the Packing House Workers Unions" and that those Unions would "continue (them) in force" was a misrepresentation of the provisions of the contract and of the facts, and had no possible purpose except to puff the Packing It is clear that in compensating representatives of the P. H. W. U. for time spent in such activities the respondent contributed financial support to the P. H. W. IT 342 DECISIONS OF N ATIO\' AL LABOR RELATIONS BOARD House Workers Unions to employees and, perhaps, to cause employees to believe that these advantages might be retained only through sup- port of those organizations. The statement was plainly designed to and gave support to, the P. H. 11". U. After setting forth the principal changes made by the June 3 con- tract in conditions of employment,523 averring that there was now "no occasion for misunderstanding and conflict," denying "mistaken re- ports" that the plant unions were not organized by employees alone, and declaring they were "truly representatives of the Cudahy plant workers," President Cudahy continued in the July issue of "Force" with the statement that : In my opinion the Cudahy Packing House Workers Unions are a suitable form of organization for Cudahy plant workers be- cause they conform in every particular to, the provisions of the Wagner Labor Relations Act and therefore, afford the worker all the protection guaranteed him by that Act. Further, membership in the Cudahy Packing House Workers Unions is restricted to Cudahy plant workers. This, I think we agree, is as it should be because Cudahy workers and the company by the very nature of things know their own jobs and their own problems better than anyone else does or can be expected to know them. We shall not here repeat the considerations which we set forth above with respect to the, perhaps, less explicit counsel of the respond- eiit in the April 19 issue of "Extra Force." For the reasons there set forth, and because of the respondent's subsequent open and active interference in the formation and administration of the P. H. W. U., the distribution of the July issue of "Force" was plainly obstructive of the efforts of the United to organize the employees at the Kansas -City plant and gave support to the administration and continuance of the P. H. W. U. We find that by distributing to its employees the July 1937 issue of "Force" the respondent interfered with, coerced, and restrained its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Beginning about June 8, 1937, weekly meetings were held between Heuck and the trustees of the P. H. W. U. to consider grievances. 6' These were described as a "liberal interpretation" of the respondent's seniority prac- tice ; institution of "a basic forty-hour week, with time and a half to be paid for all time worked over eight hours in any one day or over forty hours in any one week" ; and provi- sion for "double time to be paid for Sunday and holiday work." Actually the provisions of the contract for a 40-hour week and 8-hour day were limited in duration to a period of 90 days after the effective date of the contract; later those provisions were extended by agreement for a further 4 months. THE CUDAHY PACKING COMPANY 343 In December 1937, an event occurred which, like the circumstances under which the June 3 contract was signed by the trustees, reveals the extent to which the P. H. W.' U: was treated as a mere continua- tion of the prior Plan, and confirms the testimony of Beil and Mc- Daniels that they understood that, as trustees of the P. H. W. U., their concern was the handling of grievances. In December 1937, the respondent proposed the abandonment of the 40-hour week and 8- hour day, which were inaugurated by the June 3, 1937, contract and represented the principal concession made'by the respondent in that contract.54 According to Heuck, when the proposed change was dis- cussed with the trustees of the P. H. W. U., "They considered that it was a matter of too great moment for the eleven or twelve of them to decide the wishes of twelve or thirteen hundred employees without knowing what the majority sentiment was." The "method . . . devised in order to secure that sentiment" consisted of the circulation throughout the plant of a statement reading : Effective January 14th, 1938, the maximum work day will be (9) Nine hours and maximum week (48) forty-eight hours. Time worked over, (9) nine hours daily, or (48) forty-eight hours weekly, will be paid for at the rate of time and one-half. A maximum of (168) one hundred sixty-eight tolerance hours over a period of (52) fifty-two weeks is agreed upon as the aggre- gate permissible under the•paragraph above. After the (168) one hundred sixty-eight tolerance hours have been worked as above, time and one-half will be paid for all work over (8) hours daily, and (40) forty hours weekly. Heuck testified that the statement was mimeographed by the respond- ent; that it was circulated by "the trustees and others," including some of the supervisory employees; 55 and that he was advised that a ma- jority of the employees approved the proposed change. The modification agreement is dated December 3, 1937. To what extent supervisory employees participated in the circula- tion of the statement does not appear. However, even apart from their participation, the "method devised" was manifestly one calculated to prevent free choice by employees. The statement itself was so phrased as to impress employees with the fact that the decision had already been made. Furthermore, each employee after indicating his preference on the statement was required to sign his name thereto. Under these circumstances the vote can hardly be regarded as express- ing the wishes of the employees. Moreover, the incident reveals how far short the P. H. W. U. fell of being, or even being regarded by its officials and the respondent, a medium for collective bargaining. Tile c4 See footnote 53, supra. 65 The transcript reads "supervising employees." 247384-40-vol . 17-2,1 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trustees not only did not call a.special meeting of the members of the P. H. W. U., as they were authorized to do under the bylaws, but in- stead they acquiesced in a "device". which made any collective con- sideration of the matter impossible, and any individual choice one to be exercised in fear of offending the respondent. The record leaves no doubt that the P. H. W. U. is a company-domi- nated organization created and continued by means of the assistance and support of the respondent in order to prevent its employees from exercising the right of self-organization. We find that the respondent dominated and interfered with the formation and administration of the P. H. W. U. and contributed support to it; and that by such acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. B. The alleged discrimination regarding tenure of employment As we have stated above the Trial Examiner found that the re- spondent had not engaged in unfair labor practices within the mean- ing of Section 8 (3) of the Act. More specifically, the Trial Exam- iner found that Rasey, Cline, and Thayer had been laid off in accord- ance with the seniority practice then prevailing in the Kansas City plant, and that there was no proof that they had been discriminated against for the reason that they had joined or assisted in the promo- tion and administration of the United. We have reviewed the record and we conclude that the finding is correct, but deem it unnecessary to review the evidence in detail since the United filed no exceptions to the Intermediate Report. Accordingly, we shall dismiss the alle- gations of the complaint, as amended, with respect to Rasey, Cline, and Thayer. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III-A above, occurring in connection with the operations of the re- spondent 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 It is essential to an effectuation of the purposes and policies of the Act that the respondent be ordered to cease and desist from certain unfair labor practices in which we have found it has engaged, and in aid of such order and as a means of removing and avoiding the con- THE CUDAHY PACKING COMPANY 345 sequences of such practices that the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent in many ways has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by the Act. The respondent must cease and desist from such practices, and we shall so order. We also have found that the respondent dominated and interfered with the formation and administration of the P. H. W. U. and con- tributed support to it. The respondent likewise must cease and desist .from such practices. Moreover, since the effects and consequences of the respondent's support, domination, and interference with respect to the P. H. W. U., and its continued recognition of the P. H. W. U. as a bargaining representative, constitute and will constitute a continuing obstacle to the free exercise by the respondent's employees of their right to self-organization and . to bargain' collectively through rep- resentatives of their own choosing, we shall. order the respondent as a means of removing' this obstacle to withdraw all" recognition of and to disestablish the P. H. W. U. as the representative of any of its em- ployees for the purpose of dealing with the. respondent in respectI to .grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. We have found that the respondent entered into an agreement with the P. H. W. U. covering wages, hours of employment, and working conditions of its employees. Since the agreement, which was intro- duced in evidence, has by its terms expired, it will be unnecessary to make any order with respect thereto. It is necessary, however, in order to free the respondent's employees completely from the effects and influence of the existence of a company-dominated organization in their midst, and to assure them of the rights guaranteed by the Act, that any contract thereafter entered into between the respondent and the P. H. W. U. relating to wages, hours of employment, and other working conditions, be given no effect by the respondent. There- fore, we shall order the respondent to cease giving effect to or perform- ing any contract or arrangement now existing, and to refrain from entering into, renewing, or extending any contract, relating to griev- ances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, with the P. H. W. U. VI. THE QUESTION CONCERNING REPRESENTATION We have found in Section III-A, above, that the representatives of the United in May and June 1937, claiming to represent a majority of employees at the Kansas City plant, asked the respondent for recognition as the bargaining agent for such employees; that the 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent refused to grant the United recognition, at first for the reason that it had recognized the P. H. W. U., and, subsequently, for the reason that it had entered into a contract with the P. H. W. U. in which the P. H. W. U. was recognized as the exclusive representa- tive of employees at the Kansas City plant. We have further found, in Section III-A, above, that the P. H. W. U. is a company-dominated organization, and, in Section V above, that it is necessary that the respondent disestablish and withdraw recognition from the P. H. W. U. and cease giving effect to any contract or arrangement with the P. H. W. U. Consequently, the reasons assigned by the respond- ent for 'declining to recognize the United do not preclude the exist- ence of a question concerning representation. As we have set forth above, in the Statement of the Case, the Board, on October 19, 1939, permitted the Amalgamated Local to file an intervening petition and made said Amalgamated Local a party to the representation case. In its intervening petition the Amalgamated Local alleges that it has been designated by the major- ity of employees at the Kansas City plant, and prays that the Board direct an election, in which its name shall appear on the ballot, in order that the representatives for the purposes of collective bar- gaining for such employees, may be ascertained and certified. We find that a question has arisen concerning the representation of the employees of respondent at its Kansas City plant. 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 In its petition the United alleged that all employees of the respond- ent at its Kansas City plant "engaged in packing house work, ex- cluding office employees, employees in the wholesale market, foremen, assistant foremen, and straw bosses," constitute a unit appropriate for the purposes of collective bargaining. In the light of the record it is clear that the petition is to be interpreted as alleging that the appropriate unit consists of all production and maintenance em- ployees, excluding foremen, assistant foremen, and strawbosses. Neither employees in the wholesale warehouse nor office employees THE CUDAHY PACKING COMPANY 347 are under the direction of Heuck, and they are not regarded by any of the parties as "packing house workers," as are both production and maintenance employees. We also construe the reference in the petition to "straw bosses" to comprehend foreladies because, as we have pointed out above, their duties are substantially the same. At the hearing the respondent raised no objection to the proposed unit. The Amalgamated Local in its intervening petition agrees that the bargaining unit alleged in the petition is appropriate. We find that all production and maintenance employees of the re- spondent at its Kansas City, Kansas, plant, excluding foremen, as- sistant foremen, strawbosses, and foreladies, 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 otherwise effectuate the policies of the Act.. IX. THE DETERMINATION OF REPRESENTATIVES At the hearing, the United presented 587 membership application cards. The signatures on a majority of the cards, in accordance with the directions thereon, were printed. Authentication by comparison with records of the respondent was, therefore, impossible. No such proof of the authenticity of such cards was presented as would per- mit a determination of representatives to be made on the basis thereof. Moreover, as stated above, the Amalgamated Local, in its intervening petition, filed without objection, now claims to have been designated by a majority of the employees in the appropriate unit and prays that an election be directed. We find that the question which has arisen concerning representa- tion can best be resolved by an election by secret ballot upon which the names of the United and the Amalgamated Local will appear. We have found that the P. H. W. U. has been dominated, inter- fered with, and given support by the respondent in its formation and administration. We have further found that it cannot serve the re- spondent's employees as an effective bargaining agency. Accord- ingly, we shall make no provision for its inclusion on the ballot. Since the respondent has, by engaging in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election but shall order that it be conducted at such time as we shall hereafter direct.. Concurrently with, our determination of the date for the election, we shall specify the date on the basis of which the eligibility to vote in the election shall be determined. 56 ° Matter of Panther-Panco Rubber Co., Inc. and United Rubber Workers of America, Local No. 156 , 11 N. L. R. B. 1261. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. United Packing House Workers Local Industrial Union No. 194, Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, Local No. 574, and Packing House Workers Union of Kansas City are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration of Packing House Workers Union of Kansas City 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 prac- tices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor prac- tices 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 employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and' (7) of the Act. 7. All production and maintenance' employees of the respondent at its Kansas City, Kansas, plant, excluding foremen, assistant fore- men, strawbosses, and foreladies, 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 respondent, The Cudahy Packing Company, Kansas City, Kansas, 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 Packing House Workers Union of Kansas City or with the formation or administration of any other labor organization of its employees, and. from 'contributing support thereto; . THE CUDAHY PACKING COMPANY 349 (b) Recognizing Packing House Workers Union of Kansas City as the representative of any of its employees for the purpose of deal- ing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of work; (c) Giving effect to any contract or arrangement with Packing House Workers Union of Kansas City concerning wages, hours, and working conditions; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in- concerted activities for the purposes of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Packing House Workers Union of Kansas City as the representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish Packing House Workers Union of Kansas City as such representative; (b) Immediately post notices in conspicuous places throughout its Kansas City, Kansas, plant and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), and (d) and that it will take the affirmative action set forth in 2 (a) of this Order ; (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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations 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 The Cudahy Packing Company, Kansas City, Kansas, an election by secret ballot 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Sec- tion 9, of said Rules and Regulations, among all production and maintenance employees of the respondent at its Kansas City, Kansas, plant who were employed by the respondent during a pay-roll period which the Board shall in the future specify, including em- ployees 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, assistant fore- men, strawbosses, foreladies, and also excluding those employees who have since quit or been discharged for cause , to determine whether or not they desire to be represented by United Packing House Work- ers Local Industrial Union No. 194, or by Amalgamated Meat Cut- ters and Butcher Workmen of North America, Local 574, for the purposes of collective bargaining, or by neither. [SAME TITLE] ORDER AND AMENDMENT TO DIRECTION OF ELECTION November 16, 1939 On November 4, 1939, the National Labor Relations Board, herein called the Board, issued a Decision, Order and Direction of Election in the above-entitled proceedings, ordering that the respondent cease and desist from certain unfair labor practices and take certain affirma- tive action found necessary to effectuate the policies of the National Labor Relations Act, 49 Stat. 449, and directing that an election by secret ballot be . conducted at such time as the Board should in the future direct, under the direction and supervision of the Regional Director for the Seventeenth Region (Kansas City, Missouri), to de- termine whether the employees in the unit found by the Board to be appropriate, desire to be represented by United Packing House Workers Local Industrial Union No. 194, or by Amalgamated Meat Cutters and Butcher Workmen of North America, Local 574, for the purposes of collective bargaining, or by neither. On November 10, 1939,1 a motion and affidavit in support thereof, were filed by United Packing House. Workers of America, Local Union No. 10, of the Packing House Workers Organizing Committee, affili- I The motion which is dated , and the affidavit which was sworn to. on November 6. 1939, were served upon the parties to the proceedings prior to their filing with the Board. THE CUDAHY PACKING COMPANY 351 atecl with the Congress of Industrial Organizations, stating that on February 7, 1939, the name of United Packing House Workers Local Industrial Union No. 194 was changed to United Packing House Workers of America, Local Union No. 10, of the Packing House Workers Organizing Committee, affiliated with the Congress of Indus- trial Organizations, by which name it is now known, and requesting that the Decision, Order and Direction of Election, and all proceedings herein, be amended in accordance with said allegation. On November 9, 1939,2 an unverified protest against said motion and a request for a hearing thereon were filed by The Cudahy Packing Company. Said motion and affidavit in support thereof, and the protest against said motion and request for a hearing thereon, having been duly con- sidered by the Board, and due deliberation having been had thereon, IT IS HEREBY ORDERED that the Direction of Election herein be, and the same hereby is, amended by striking therefrom the words "United Packing House Workers, Local Industrial Union No. 194" wherever said words appear therein, and substituting therefor the words, "United Packing House Workers of America, Local Union No. 10, of the Packing House Workers Organizing Committee, affiliated with the Congress of Industrial Organizations"; that the said motion of United Packing House Workers of America, Local Union No. 10, of the Pack- ing House Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, be, and the same hereby is, in all other respects, denied;, and that the request of The Cudahy Packing Company for a hearing upon its protest against said motion be, and the same hereby is, denied; and IT IS HEREBY FURTHER ORDERED that the Direction of Election herein be, and the same hereby is, amended by striking therefrom the words, "Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, Local 574" wherever said words appear therein, and substituting therefor the words, "Amalgamated Meat Cutters and Butcher Work- men of North America, Local 574, affiliated with the American Fed- eration of Labor." 2 See footnote 1, supra. 17 N. L. R. B., No. 18a.