Swift and Co.

In the Matter Of SWIFT AND COMPANY and UNITED PACKING HOUSE WORKERS LOCAL INDUSTRIAL UNION No. 874 THROUGH THE PACKING HOUSE WORKERS ORGANIZING COMMITTEE (C. I. 0.) Cases Nos . C-1116 and R-1125.Decided March $7, 1940 - Meat Packing Indus try-l-nterference, Restraint, and Coercion: derisive remarks about C. I. O. by foremen and other supervisory employees ; employees solicited by foremen and other supervisors to remove their C. I. O. badges- Company-Dominated Union: company fostered employee representation plant and assembly existed for several years prior to April 21, 1937; in announcing abandonment of plan and dissolution of assembly, company "suggested" con- tinuation of a similar plan of employee representation ; employee representa- tives told they would have 48 hours within which to form a new organization ; employee representatives immediately formed new organization ; recruiting ac- tivities on company tune' followed , at times with aid and encouragement of supervisors ; company recognized new organization without proof of majority ; company rented office space for dues collection at nominal sum until affiliated union asked like privilege ; company met monthly with 16 representatives and consummated a written understanding ; disestablishment, and posting of no- tices of, ordered-Unit Appropriate for Collective Bargeinan'g: production and maintenance employees, excluding superintendent, assistant superintendent, gen- eral foremen, foremen, assistant foremen, office workers, steady-time employees, watchmen, timekeepers, truck drivers, and garage mechanic-Representatives: proof of choice ; applications for membership ; majority lost by reason of dis- charges following strike-Collective Bargaining: refusal to bargain; refusal to meet with union committees on grievances and other collective bargaining questions-Ordered: respondent to bargain in event union obtains a majority in election ordered by Board-Strike: prolonged by refusal to bargain ; strikers, except those discharged for cause, entitled to reinstatement upon application-Discrimination : alleged in discharge of strikers ; charges of, dis- missed : practices of strikers proscribed by Supreme Court in Fansteel case- Investigatioa of Representatives. controversy 'concerning representation of em- ployees. employer refuses to bargain with union-Election Ordered: to be held after effects of unfair labor practices removed. Mr. Lee Loevinger, for the Board. Mr. Byron L. Siff ord, of Sioux City, Iowa, and Mr. William N. Strack, of Chicago , Ill., for the respondent. Messrs . Baron ct Bolton, by Mr. A. H. Bolton, Sioux City, Iowa, for the Independent. Mr. John J . Brownlee , of Chicago, Ill., for the P. W. O. C. Mr. Walter 7'. Nolte, of counsel to the Board. 21 N L Il B ., No. 120. 1169 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 8, 1938, United Packing House Workers Local Indus- trial Union No. 389, herein called Local 389, filed a charge with the Regional Director for the Thirteenth Region (Chicago, Illinois),' alleging that Swift and Company, Sioux City, Iowa, herein called 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 7, 1938, United Packing House Workers Local Industrial Union No. 874, through the Packinghouse Workers Organizing Committee, affiliated with the Committee for Industrial Organization,' herein called the P. W. O. C., filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) a petition alleging that a questioli affecting commerce had arisen concerning the representation of em- ployees of the respondent and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the Act: On September 30, 1938, United Packing House Workers Local In- dustrial Union No. 874,1 herein called Local 874, filed a charge with the Regional Director, supplementing and amending the charge filed on February 8, 1938, and alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, Within the meaning of Section 8 (1), (2), and (5) and Section (2) (6) and (7) of the Act. By an order of consolidation directing in- vestigation and hearing dated October 4, 1938, and an amendment thereto dated October 5, 1938, the National Labor Relations Board, i By an order, dated May 11, 1938 , the National Labor Relation Board transferred the case to its Eighteenth Region. 2 Dui ing the hearing, on motion of the Union , the designation "United Packing House Wm kers Local Industrial Union No 874 of the Packing House Workers Organizing Com- mittee ( C I. 0 )," as it originally appeared in the title of the case , was changed to "United Packing House Workers Local Industrial Union No 874 , through the Packing- house Workers Organizing Committee , affiliated with the Committee for Industrial Organization " 3 United Packing House Workers Local Industrial Union No 389, organized in June 1937, was granted jurisdiction over packing house workers in the Sioux City, Iowa, area In July 1938, the organization of a separate local for each major packing house in the area was authorized and on August 10, 1938, United Packing House Workers Local Indus- trial Union No 874 was granted a charter by the Committee for Industrial Organization, herein called the C I. 0 The jurisdiction of the latter organization was limited to em- ployees of the respondent . The terms "Local 874" and the "P. W 0 C." are used inter- changeably herein. SWIFT AND COMPANY 1171 herein called the Board, acting pursuant 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 investiga- tion of the question concerning representation raised by the petition and authorized the Regional Director to conduct such investigation and to provide for an appropriate hearing upon due notice. At the same time, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, the Board ordered that the cases arising from the petition and the charge, as supplemented and amended, be consolidated for the purposes of hear- ing and for all other purposes. Thereafter, on October 6, 1938, the P. W. O. C. filed with the Regional Director an amended petition for investigation and certification of representatives and an amended charge alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. Upon the charge, as supplemented and amended, the Board, by the Regional Director, issued its complaint dated October 6, 1938, against the respondent, alleging that the respondent had engaged in and was ,engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. 'Copies of the complaint and an accompanying notice of hearing in the consolidated cases were duly served upon the re- spondent and the P. W. O. C.4 With respect to the unfair labor practices, the complaint alleged in substance (1) that all production workers employed by the respondent at its Sioux City, Iowa, plant, excluding the superintendent, assistant superintendent, foremen, sub- foremen, and all other supervisory employees, and excluding also front-office workers, timekeepers, all other clerical employees, scalers, watchmen, maintenance workers, and truck drivers, constitute a unit appropriate for the purposes of collective bargaining; (2) that on or before August 15, 1938, a majority of the employees in said unit had designated the P. -W. O. C. as their bargaining representative; (3) that on or about August 16, 23, 29, September 1, 27, and 29, 1938, the respondent refused to bargain collectively with the P. W. O. C. upon request, as the exclusive representative of all the employees in said unit; (4) that on September 29, 1938, the employees stopped work in protest against the respondent's refusal to bargain with their representative and in order to protect their right to bargain collec- tively, whereupon the respondent discharged 147 named employees and has since imposed unlawful conditions upon their reinstatement; (5) that on or about- April 14, 1937, the respondent instigated the 40n October 11, 1938 , the Regional Director issued a separate notice of hearing in the representation proceeding and duly served a copy thereof on the Independent. 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formation of a labor organization among its employees, known as the Employees' Security League of Swift and Company, herein called the Security League, which labor organization later became known as Independent Packing House Workers Union, Local No. 2, herein called the Independent, and has since that date by its officers and agents dominated and interfered with the administration of and con- tributed financial and other support to said organization; (6) that on or about June 29, 1937, the respondent announced to its employees that it had recognized the Security League as their exclusive repre- sentatiye and has since continued to accord such recognition to the Security League, although it was not and has not been the duly desig- nated representative of the employees; and (7) that since on or about March 15, 1937, the respondent had advised, urged, threatened, and warned its employees to refrain from becoming or remaining mem- bers of the P. W. O. C. Pursuant to notice, a hearing upon the amended petition and the complaint was held at Sioux City, Iowa, from October 17, to Novem- ber 10, 1938, inclusive, before William P. Webb, the Trial Examiner duly designated by the Board. At the opening of the hearing, the Independent waived notice of hearing in the unfair labor practice, proceeding and filed an answer to the amended petition for investiga- tion and certification of representatives and a motion for leave to intervene in the consolidated cases in so far as its interests were affected thereby. The Trial Examiner granted the motion. The Board, the respondent, the P. W. O. C., and the Independent were represented by counsel or other representative 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. Upon the opening of the hearing, the re- spondent filed motions that the complaint and the charge, as sup- plemented and amended, be made more specific, definite, and certain and thereafter filed its answer, denying the commission of the unfair labor practices alleged in the complaint. The Trial Examiner denied the respondent's motions. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter the Trial Examiner filed an Intermediate Report dated January 3, 1939, copies of which were duly served upon the parties. The Trial Examiner found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. He found, however, that the respondent had not engaged in unfair labor prac- SWIFT AND COMPANY 1173 tices within the meaning of Section 8 (3) of the Act. He recom- mended that the respondent cease and desist from its unfair labor practices; bargain collectively with the P. W. O. C. as the exclusive representative of its production and maintenance employees; upon application reinstate all employees who went on strike on September 29, 1938, and make such employees whole for any loss of pay that might arise from the respondent's refusal of their application for reinstatement from the date of that application to the date of rein- statOment; withdraw all recognition from the Independent and disestablish that organization as the representative of the employees for the purposes of collective bargaining; and take certain other affirmative action designed to effectuate the policies of the Act. Exceptions, to the Intermediate Report were duly filed by the respondent and the Independent. The respondent also requested an opportunity to argue orally before the Board. Pursuant to notice duly served upon all parties, a hearing was held before the Board in Washington, D. C., on November 2, 1939, for the purpose of oral argument. The respondent and the P. W. O. C. were represented and participated in the argument. The Independent did not appear. The Board has considered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Swift and Company is an Illinois corporation, maintaining its principal office at Chicago, Illinois. In the conduct of an extensive business enterprise devoted chiefly to the slaughter, processing, and distribution of meat products and byproducts, the respondent owns and operates numerous slaughtering and packing plants, including one at Sioux City, Iowa, herein called the Sioux City plant, the only plant involved in the present proceedings. Operations at the Sioux City plant include the slaughter and processing of livestock, the distribution of resulting products and byproducts, and the distribu- tion of soap,, margarine, canned food, and cheese. Purchases for the Sioux City plant for the fiscal year ending October 31, 1937, totaled more than $13,010,000. Of this total, $558,000, or approximately 4 per cent, represented purchases made outside the State of Iowa. Approximately 96 per cent of the pur- chases, amounting to $12,452,000, were made within the State of Iowa. Except for purchases of supplies, amounting to $142,000, the purchases made within the State of Iowa consisted of cattle, calves, 2R3042-41-vo1 21-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sheep, and hogs purchased at the Sioux "City stockyard, a stockyard supplied by a producing area encompassing Iowa, Nebraska, and South Dakota. Sales from the Sioux City plant during the fiscal year ending October 31, 1937, totaled slightly more than $15,000,000. During that period, sales outside the State of Iowa amounted to $12,882,000, or approximately 85 per cent of the total sales. Purchases and sales for the fiscal year ending October 31, 1938, were substantially the same as those for the fiscal year ending October 31, 1937. II. THE ORGANIZATIONS INVOLVED United Packing House Workers Local Industrial Union No. 874, through the Packinghouse Workers Organizing Committee, affiliated with the Committee for Industrial Organization,5 is a labor or- ganization admitting to its membership production and maintenance employees of the respondent at the Sioux City plant, excluding the superintendent, the assistant superintendent, foremen, subforemen, clerical and office workers, timekeepers, scalers, 'watchmen, truck drivers, and all employees in a supervisory capacity. Employees' Security League of Swift and Company, now,known as Independent Packing House Workers Union, Local No. 2, affiliated with the National Federated Independent Union, is a labor organiza- tion 'admitting to its membership employees of the respondent at the Sioux City plant with the exception of superintendents and depart- ment managers. III. THE UNFAIR LABOR PRACTICES ' A. Interference with. and domination and support of the Independent and other interference, restraint, and coercion Prior to April 21, 1937, there existed in the Sioux City plant an employee representation plan, the central feature of which was a representative body known as the "Assembly." The assembly was composed of an equal number of elected employee representatives and appointed management representatives chosen by the officers of the respondent. The employee and management representatives, constituting the assembly, chose as their chairman an employee of the respondent who was not one of their own number. In the history of the assembly at the Sioux City plant, the respondent's traffic manager had invariably been chosen for the position of chair- man of the assembly. Regular monthly meetings of the assembly were held at the plant during working hours and the several repre- sentatives were paid by the respondent for time spent at such meet- Now the Congress of Industiial Organizations. SWIFT AND COMPANY 1175 ings. In previous cases involving other plants owned and operated by the respondent, we have found and discussed facts with respect to similar employee representation plans and assemblies." It is clear that for nearly 2 years after July 5, 1935, the effective date of the Act, the respondent persisted in dominating and interfering with the administration of a labor organization, and contributing financial and other support thereto. The complaint, however, alleges no vio- lation of the Act arising from the employee-representation plan and the assembly. Nevertheless, the facts with respect to their existence and operation are relevant to the consideration of the allegations of interference with, and domination and support of, the Security League and the Independent.7 On April 21, 1937, the representatives constituting the assembly were called together by the management in the plant superintendent's office where F. A. Gale, general manager, announced that the Supreme Court's determination of the constitutional validity of the Act required the abandonment of the employee representation plan and the dissolution of the assembly. In addition to the general manager and the regular management representatives on the assem- bly, the plant superintendent and the office manager were present on this occasion. After the initial announcement had been made, Gale told the employee representatives that they could decide for them- selves whether or not they wanted to organize a union of their own or join an outside union. He also told them, however, that if they wished to continue a form of employee representation they would have 48 hours within which to determine upon an organization. Thereupon, the respondent's officers and the management representa- tives withdrew from the meeting. The importance placed upon the 48-hour time limitation by the employee representatives was manifest to other employees immedi- ately after the meeting. Walter Conklin, the employee representa- tive from the beef-cutting department, ran through that department announcing that the assembly- had been dissolved and that they had ° Cf. Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Worbnien of North America , Local No 61,1 , and United Packing House Workers Local Industrial Union No 300, 7 N L R B 269, enf'd as mod Swift & Company N National Labor Relations Board, 106 F (2d) 87 (C C A 10) : Matter of Swift d Com- pany and United Automobile Workers of America, Local No 265, 7 N. L R B 287; Matter of Swift & Company, a Corporation and Local No 130, United Packing house Workers Industrial Union, affiliated with the Committee for Industrial Organization. 11 N L L' 11 809 entd as mod national Labor Relations Board v Swift and Company, a Corporation 108 F (2d) 988 (C. C A 7) and Matter of Swift it Company and United Pact u1 Hou,c i)"oi ker s Local Indust? ial Union x#814. 15 N L it B 992 -Cf National Labor Relations Board v Pennsylvania Greryliornid Lines , Inc, et al , '103 Ti S 261, rev g 91 F (2d) 178 (C C A 3), and aff'g Matter of Pennsylvania Giey- hound Lines, Inc. Gieyhound Management Company, Coipo,ations and Local Division No. 1063 of the Amalgamated Association of Street , Electric Railway and Motor Coach Em- ployees of America, 1 N L R B I 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 48 hours within which to form a new organization. The_ employee representatives acted quickly. On the following day, April 22, they met with the management and announced that they had decided to form an unaffiliated organization with membership limited to em- ployees in the Sioux City plant. They asked what was being done toward the reestablishment of employee representation at the other plants of the respondent and were told that plant-wide organizations known as Employees Security Leagues were being formed. On the day following this meeting between the employee represent- atives of the assembly and the management, applications for mem- bership in a new organization were distributed among the employees during working hours by the employee representatives. The first name chosen for the new organization was Swift's Employees' Labor Organization. In May 1937 the name of the organization was changed by a vote of the members to the Employees Security League of Swift and Company after the president of Swift's Employees' Labor Organization had suggested that the original name sounded too much like that of a company organization." Thereafter, applications for membership in the Security League were distributed among the employees and on June 26, 1937, that organization was incorporated as a non-profit corporation pursuant to the laws of the State of Iowa. On June 16, 1937, the Security League wrote to the respondent requesting recognition as the exclusive bargaining representative of the employees in the Sioux City plant. No proof that the Security League represented a majority of the employees was offered and none was called for by the respondent. On June 18 the respondent re- plied as follows : We have received your letter of June 16th, 1937, requesting recognition for your Employees' Security League as the sole bargaining agency for the employees of Swift and Company of Sioux City, Iowa. We will recognize the Employees' Security League as the sole bargaining agency for all the employees as long as the Em- ployees' Security League have a majority of the employees in its membership and will not make collective agreements with any other group without first taking it up with the Employees' Security League. Although the exact nature of the system of representation under the Security League is not shown in the record, it is apparent that the practice of choosing employee representatives on a departmental 8 Fred Buettner, who testified to the circumstances sure ounding the change of name, produced his own membership card in Swift's Employees' Labor Organization, which he said he received in April He also produced a Secuiit} League dues card which he said he received after the change of name SWIFT AND COMPANY 1177 basis was carried over from the employee representation plan. Ballots for the choice of new employee representatives were conducted in June and thereafter these representatives, approximately 16 in number, met once a month with the management, usually with the plant superintendent. The respondent not only recognized the Security League but also accorded it various forms of support and assistance. The Security League rented a small office in the plant from the respondent for $2.50 a month to be used after working hours on pay days for the collection of dues. On such occasions a sign was posted outside the door of the office bearing the following legend : "Pay your dues here." This practice was continued until approximately July 1938 when, after the P. W. 0. C. had asked for like privileges, it was discontinued at the request of the respondent. From its inception, numerous activities of the Security League were freely carried on at the plant during working hours. Various notices were posted on the timeclock and in the dressing rooms. Solicitation of member- ship was carried on openly and, on occasion, with encouragement from supervisory employees. Shortly after the Security League was formed, George Lovinger, foreman of the hog-cut department, asked Oliver Horsley, an employee who was then soliciting members, whether everyone he approached had joined. When Horsley replied "all but a few," Lovinger remarked, "Why don't you talk to them again, they will probably be willing to join if you see them again." In September 1937 Louis Williams, an assistant foreman, told Earl Sutherland, an employee in Williams' department, that a representa- tive of the Security League wanted to talk with him and then took Sutherland's place for the duration of the discussion. The assur- ance with which proponents of the Security League went about their membership recruiting activities during working hours is shown in an incident wherein Wallace Luckhart, an employee and a member of the Security League, called an entire gang in the car-icing depart- ment away from their work and extolled the organization to them for about 10 minutes. There were, on the other hand, a few occa- sions when supervisors reprimanded employees for activity on behalf of the Security League during working hours. Those reprimands, however, were not effective in discouraging such activity.9 Late in June `1937 a counter-union movement sprang up when Local 389 was chartered by the C. I. 0.10 During the summer of 1937 an organization campaign was instituted by that organization. 9 Cf. Sunft d Company v. National Labor Relations Boa) d, 106 F (2d) 87 (C C. A. 10) enf'g as mod. Matter of Swoft 0 Company, a Corporation and Amalgamated 111-eat Cutters and Butcher Workmen of North Ame,ica, Local No 6i1, and Unttcd Packing House Workers Local Industrial Union No 300 , 7 N L R B 2611 10 See footnote 3. supra 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some of the respondent's employees became members. and during the fall of 1937, C. I. O. badges began to appear in the respondent's plant. Their appearance elicited adverse and slurring comments from the respondent's foremen and other supervisory employees. Charles White, general foreman of the beef- and sheep-killing depart- ments, accused Arthell Shelton of passing out a C. I. O. badge on the killing floor. Louis Williams, an assistant foreman of the sheep- killing department, told Lewis that he "didn't see any benefit the employees could get from any kind of a union." When Jess Pauley removed his C. I. O. badge after having worn it for about 3 days in November 1937, Williams remarked that he was glad, to 'see Pauley get out of that organization. The record is replete with accounts of similar instances which took .place in 1938 up until the time of the strike on September 29 of that year. In the spring Williams approached several men in the sheep- killing department and asked them if they would remove their C. I. O. badges if other employees would do so. In April or May 1938 Frank Shamrod, foreman of the sweet-pickle and dry-salt cellars, warned Stanley Osteen to take off his C. I. O. badge because "It is.liable to cause a lot of trouble." When an employee named .Richard Williams began to wear a C. I. O. badge in June 1938, Andrew Liebhart, foreman of the cold-storage gang, remarked to him, "Well, 'that button will never get you nowhere." A number of further incidents occurred throughout the summer of 1938. Liebhart, upon observing Ray Amundsen wearing a C. I. O. steward's badge, remarked to Fred Buettner that Amundsen would not be wearing that badge long. In the course of remarks to Homer Rummel, Joe Schneiders, assistant foreman in the hog-killing and cutting department, characterized the C. I. O. as being "radical" and "no good." On another occasion Schneiders made a similar remark to " Emerson Zackery. Henry Hesse, foreman of the freezers and fancy-meat cooler, remarked to both Edward Schulz and Dan O'Con- nor that he was going to have "a hard time explaining to his boss why so many members of his gang were signing up with the C. I. 0." Wallace Smith, general foreman of the casing department, questioned Alice Kozlowski about her membership and activities in the P. W. O. C. In marked contrast to the above is an incident which took place dur= ing the summer of 1938 wherein Levi Van Meter, an assistant fore- man in the casing department, urged Casper Holder' to join the'Inde- pendent so that he would have someone to take care of his grievances and promised Holder and a group of employees who worked with him a larger bonus if they joined the Independent. While the respondent's foremen and supervisors were thus decrying the P. W. O. C. and lending support to the Independent, the repre- SWIFT AND COMPANY 1179 sentatives of the latter organization continued their organizational activities and regular monthly conferences with the respondent. Such conferences were devoted to discussions of general problems. Indi- vidual grievances were handled in a manner long customary at the respondent's plant, namely, by conferences between the management and 'the aggrieved employee and his departmental representative. After winning exclusive recognition from the respondent in June 1937, the Security League offered to the respondent a proposed contract covering wages, hours, and other working conditions. Negotiations on the subject were continued until December 1937, when an agree- ment was reached. This agreement did not take the form of a con- tract and is evidenced only by an exchange of correspondence. On December 3 the respondent wrote to the Security League as follows : The-management on June 29 11 recognized the Employees Se- curity League as the sole bargaining agency for the employees of Swift & Company of Sioux City, Iowa. We recognized the Employees Security League as the sole bargaining agency for all of the employees as long as the Employees Security League has a majority of the employees in its membership and will not make a collective agreement with any other group without taking it up with the Employees Security League. This acknowledgment resulted from the Employees Security League submitting evidence to the company that they repre- sented a majority of the employees working in this plant .1-2 The company in cooperation with its employees and their rep- resentatives, has adopted policies dealing with Employer-Em- ployee relationship which are set forth in the attached memoran- dum. The company will not make any change in these policies without first discussing with the representatives of the employees. The company will discuss any of these policies with the em- ployees' representatives at any time the representatives so desire. The memorandum referred to in the letter is entitled "Memoran- dum of Company Policies.'•' In it the respondent's established regu- lations with respect to vacations, seniority, hours, weekly guarantees, and holidays are briefly summarized. The memorandum states that complete statements of the respondent's vacation and seniority policies have been turned over to the Security League. With respect to the subject of seniority, the memorandum contains the following: "The Company has a comprehensive seniority policy which we think is well understood by both management and employees." The complete 11 The letter granting recognition, previously quoted, was dated June 18 11 As is indicated above , the evidence in the record is to the contrary and the respond- ent's letter granting recognition made no reference to proof of majority representation. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements of policy with respect to vacations and seniority referred to in the memorandum are attached thereto. The statements appear to be typewritten copies of company bulletins. The one with respect to vacations is marked "Chicago-December 1, 1937" and is entitled "Vacation Policy for Hourly and Piece-Work Employees at Packing Plant 1938." The statement on seniority appears under the date of December 31, 1934. The sole evidence of confirmation of this agree- ment by the Security League is to be found in a letter to the respond- ent dated December 14, 1937, which reads as follows : This is to inform you that the letter and attached memorandum presented by Swift & Company to the Employees Security League, December 3; was accepted on December 10 by vote of the membership. The copy of the letter offered in evidence is unsigned . The record contains no additional evidence of negotiations between the Security League and the respondent. On May 11, 1938, the Security League was granted a charter by the National Federated Independent Union in which it was designated as Local No. 2. On June 10 , 1938, the members of the Security League voted to change the name of the organization to Independent Pack- ing House Workers Union , Local No. 2. The only explanation in the record for the change of name is to be found in the testimony of Oliver Horsley, a former member of the assembly and an organizer of the Security League, who said that there was some doubt among the mem- bers as to whether or not the Security League was legal . No other changes were made in the character of the organization . The officers of the Security League continued to act as officers of the Independent. No effort was made to negotiate a new agreement with the respondent. Counsel for the Independent contended at the hearing that the two organizations were identical except for the change in name, asserting, in support of such contention , that the corporate existence was not broken thereby. A slight shift in membership occurred at this time due to the fact that the Independent obtained and distributed new applications for membership . The extent of this shift is not, how- ever, disclosed in the record. We are of the opinion that the Independent bears the imprint of the respondent's domination , interference, and support. The em- ployee representation plan with its assembly was continued in opera- tion by the respondent from the effective date of the Act, July 5, 1935, until April 21, 1937, clearly and admittedly in violation of the prin- ciples of the Act. In the course of abandoning the plan and dissolv- ing the assembly, the respondent made manifest to its employees a desire for the continuation of a similar form of employee representa- SWIFT AND COMPANY 1181 tion. Without explainnig the need for such haste, it told the em- ployees they would have 48 hours within which to organize if they desired to continue the former pattern of employee representation. When the employees followed the cue and established an,organiza- tion acceptable to the respondent, it lent its support in numerous ways. Widespread recruiting activities were permitted, and in some instances aided and encouraged, at the plant during working hours. Quick recognition was granted to the Security League without requir- ing proof of a majority representation. The advantage of office space for the collection of dues was accorded to the Security League and later to the Independent at a nominal sum until such time as the P. W. O. C. requested like privileges. A group of approximately 16 representatives, first of the Security League and then of the Inde- pendent, was received monthly by the management. Although no contract was executed with the Security League, a semblance of a formal, written understanding was achieved through.the agreement consummated in December 1937. " In marked contrast to the respond- ent's treatment of the Security League and the Independent, its fore- men and supervisors freely expressed to the employees their hostility toward the P. W. O. C. The employees gave graphic expression to their reaction to the respondent's favored treatment of the Security League and the Independent. Several, while on the witness stand, consistently referred to the organization as the "Sewing Circle." The record discloses that this name was commonly used by all em- ployees at the plant. We find that the respondent, by its officers, agents, foremen, and other supervisors, has dominated and interfered with the formation and administration of the Security League and its successor, the Independent, and contributed support to that organization. We further find that by such acts and by the expressed hostility of its foremen and other supervisors to the P. W. O. C., the respondent has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act.13 B. The refusal to bargain and the, alleged discriminatory discharges 1. The chronology of events On or about April 6, 1938, four employees of the respondent, led by Arthell Shelton, vice president of Local 389, approached F. A. 18 Similar findings were upheld in Swift C Company Y. National Labor Relations Board, 106 F. (2d) 87' (C C A. 10), enf'g as mod. Matter of Swift d Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No 641, and United I'ackIng Honse Workers Local Industrial Union No 300, 7 N. L ii B. 269. 1182 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Gale, then general manager of the Sioux City plant, and asked him to meet a committee of nine representing Local 389 to discuss recog- nition of that organization by the respondent. Gale made arrange- ments for the committee to meet with Waldo Krebs, general super- intendent of the Sioux City plant, on the following day. The meet- ing was scheduled for 2 o'clock in the afternoon. At 1:30 Krebs called in Shelton and announced, without explaining the basis of his position, that the committee,should be limited to three individuals. In addition he specified that the three individuals with whom he would be willing to meet were Harris, a national director of the C.I.O., Ballard, regional director of the C.1.0., and Shelton. These representatives met with Krebs. At the meeting Local 389 claimed to represent a majority of the hourly paid employees of the Sioux City plant and requested recognition as their exclusive collec- tive bargaining representative. In reply Krebs stated that he wished time to take the matter under advisement and also to consult the respondent's Chicago office. It was agreed that another meeting should be held in 10 days or 2 weeks. There was also some discussion as to the size of the committees to represent Local 389 in the future. The representatives of the Union stated that it was the policy of the C. I. 0. to have large negotiating committees but Krebs took the posi- tion that the committees should be limited to three members. His stated reason for this position was that the respondent had a policy of meeting only with small negotiating committees. If such a policy existed, however, it was not being applied to the Independent, for the respondent was then meeting monthly with approximately 16 representatives of that organization. A second meeting was held within 2 weeks. At this time the respondent was represented by Krebs and Gale, and Local 389 was represented by Thompson, a regional organizer for the C. I. 0., and Ballard and Shelton. Krebs announced that the respondent refused to grant Local 389's request for recognition as the exclusive representative of the employees and rejected an offer by the Union to prove its majority by submitted application cards, contending that the proffered method of proof was unsatisfactory and un- acceptable to the respondent. When the meeting adjourned no progress had been made toward an understanding on the question of recognition. No further negotiations between the respondent and Local 389 took place until Shelton arranged with Krebs for a meeting on June 13, 1938. Shelton asked that a larger union committee be present on this occasion but Krebs again insisted upon meeting with only three representatives. The conferees were the same as those who had participated in the last previous meeting. Local 389 SWIFT AND COMPANY 1183 again asked for recognition and renewed its offer to prove its majority by showing the respondent application cards and member- ship records. The respondent again refused the request for recog- nition and the offer of proof, whereupon the, union representatives asked whether the respondent would consent to an election held or supervised by the Board to determine the majority question. When the respondent indicated its approval of this procedure, Bal- lard stated that he would petition the Board to hold an election and that the respondent would be notified by the Board when the election would be held. The meeting then adjourned without provision for further negotiations. About the second week in July, Shelton again asked the respondent to meet with representatives of Local 389. The respondent agreed and a fourth meeting between the parties took place, shortly there- after. The conferees were the same as those who had participated in the last two preceding meetings. Local 389 renewed its request for recognition. The respondent replied in the negative and intro- duced the question of the proposed election agreed upon at the June meeting., Ballard replied for Local 389, stating that no petition for an election had been filed because the situation had been thrown into some confusion. He explained that Local 389 had understood that the organization contesting its claim to represent a majority of the employees was known as Swift Employees' Security League until a letter had been received from the Board's Regional Director in which reference was made to a claim filed by an organization known as Independent Packing House Workers Union, Local No. 2. Ballard stated further that while a petition for an election had been withheld for this, reason, Local 389 still claimed to represent a majority of the, respondent's employees and was therefore renewing its request for exclusive recognition. The meeting adjourned after Ballard had informed the respondent that it was his present in- tention to petition the Board in the near future for a hearing and for certification of Local 389 as the exclusive representative of the respondent's employees. A fifth meeting took place about the 14th or 15th of August. In the interval between this meeting and the last preceding one, Local 874 had been chartered to represent the respondent's employees and the union representatives came to the August meeting as spokesmen for Local 874. Shelton's testimony as to what took place at this meeting is as follows : "We discussed recognition again, we asked them wouldn't they give us recognition without going through with the hearing, that they knew as well as we did that we had the majority." In reply the respondent indicated that it was willing to go through with the hearing, whereupon the union representatives 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again told the respondent that they would petition the Board for a hearing and certification. On August 30 Shelton, as president of Local 874, sent,a.letter,to the respondent in which he requested that it recognize Local 874 as the exclusive representative of the employees and agree to a col- lective bargaining conference. The respondent did not reply to this letter. On September 2 Shelton and another member of Local 874, an employee named Earl Strop, went in to see Krebs concerning con- ditions in the plant restaurant. Krebs told them that he had ap- pointed a committee to investigate the situation and agreed to place Shelton's name on the list of members of the committee. Shelton then inquired of Krebs whether he had received the letter of August 30. When Krebs acknowledged receipt of the letter, Shelton asked him if he had sent a reply, to which query Krebs gave no answer. Shelton also asked Krebs whether lie had received a list containing the names of the members of a bargaining committee chosen by Local 874 for the purpose of handling grievances with the respond- ent and conducting other negotiations. Shelton had given this list to Fay Shearer, the timekeeper at the plant, with a request that he transmit it to Krebs. Krebs admitted having received the list but indicated that he would not agree to meet with the committee. Later in the month of September a grievance arose from the transfer of Ernest Seward, a member of Local 874, from one de- partment to another. Representatives of Local 874 discussed this grievance with a foreman and with the assistant plant superin- tendent but reached no solution. Shelton then asked R. A. Woods, the assistant plant superintendent, and Charles White, the general foreman in the beef- and sheep-killing departments, to inform Krebs that a committee of five from Local 874 would come to his office after working hours on September 27 to discuss Seward's grievance. White reported back to Shelton that Krebs had agreed to meet with the committee. When the committee, composed of five employees, including Seward and Shelton, went to see Krebs, he met them outside his office and told them that, pursuant to the respondent's established policy, he would discuss the grievance only with the aggrieved employee and one representative. According to Krebs' statement the aggrieved employee or the representatives of Local 874 were free to choose any individual they might desire to act in the capacity of representative. Shelton replied to Krebs that the committee had been elected by the members of Local 874 for the purpose of handling individual grievances and that Seward desired to have his grievance presented by the committee. To this Krebs replied "You are not giving anybody instructions around in I SWIFT AND COMPANY 1185 here." Shelton denied that he was attempting to instruct Krebs and stated that he was merely indicating the policy of Local 874. The matter remained deadlocked at that point and the committee withdrew. Later in the day, a group of the stewards and executive board members of Local 874 voted to stop work in the hog-, sheep-, and cattle-killing departments on September 29 at 10 o'clock in the morning in an attempt to compel the respondent to meet with the full committee. A previous meeting of the members of Local 874 had authorized such action in the discretion of the executive board and other officers of the organization. Although Seward's griev- ance was adjusted voluntarily by the respondent on the following clay, September 28, plans for the stoppage of work were not abandoned. During the early part of the morning of September 29, Shelton told the various shop stewards in the three departments to inform the employees that work would stop promptly at 10 o'clock. At that hour, on signal from Shelton, the conveyor chains and other machinery were stopped by the employees and all of the men in the 3 departments, numbering approximately 90 workers, ceased work. They did not remain at their posts but congregated in groups and' milled about from place to place. Easy access to each of the three departments was possible, for though separately designated, they are operated contiguously in one large open space on a single floor of the plant. As soon as the machinery was shut off and the men stopped work-' ing, a general foreman inquired of Shelton as to the cause of the shut-down. Shelton told him that the men wanted to reach an understanding with the respondent with respect to future grievance procedure and that they would like to see Krebs. Krebs, E. S. Ka- derabek, then general manager of the plant, and I. W. Green, a rep- resentative of the respondent's Chicago office, appeared in 5 or 10 minutes. Shelton told Krebs that the men were ready to go back to work if he would agree to meet P. W. 0. C. committees in the future with respect to grievances and other collective bargaining matters. Krebs refused and reiterated the position that he had taken on September 27 to the effect that the respondent would continue to handle grievances by meeting with the aggrieved employee and one representative. Krebs, Kaderabek, and Green then left the kill- ing floor. They returned in 15 or 20 minutes and Krebs and Shelton engaged in a conversation which consisted largely of a repetition of the remarks that each had previously made. Shelton offered at this time to choose one employee from each killing department other 1186 DECISIONS Or NATIONAL LABOR RELATIONS BOARD than his own and meet with Krebs in his office in an -attempt to reach an agreement. Krebs rejected this offer. The employees did not return to work thereafter but remained on the killing floor. After the stoppage of work had been in effect for about an hour, a group' of supervisory employees made an attempt to complete the slaughtering of carcasses left on the killing floor by the employees. They abandoned the attempt, however, after being warned away by a group of employees. Similar attempts were made during the course of the day with like results. There is a conflict in the testimony with respect to the nature of the warnings given by the employees to the supervisors. The employees testified that they had, on several occasions, warned supervisors to stop work on the carcasses because they were taking away the jobs of those who had stopped work. When called by the respondent, the supervisors testified that they had been threatened with bodily barn as well. This latter testimony the employees specifically denied. Whatever the nature of the warnings, however, they were effective. The supervisors heeded them without exception and consequently aban- doned all attempts to continue the slaughtering process. As a result, the carcasses left on the killing floor when the employees stopped work remained there throughout the day. On several occasions when supervisors took steps to alleviate deterioration in the carcasses by puncturing or otherwise treating them without removing then from the floor, they encountered no opposition from the employees. Such operations were purely emergency in nature, however, and did not approximate the normal treatment of animals after slaughter. At noon the strike spread to the beef-cutting department and the loading dock when employees in those sections of the plant stopped work in support of the movement begun earlier on the killing floor. Between 12:30 and 12:45 p. in. Krebs and Kaderabek returned to the killing floor and issued an ultimatum to the employees who were congregated there that unless they returned to work or left the plant within 30 minutes they would be liable to discharge. They then proceeded immediately to the beef-cutting department and the load- ing dock and made a similar announcement. A like policy was applied to employees in the remaining departments as work was completed during the course of the afternoon and employees were told by their foremen that they were through for the day. After the expiration of the 30-minute deadline, discharge slips were given to the foremen of the various departments for distribu- tion to their employees. The process of issuing slips to employees who failed to leave the plant pursuant to the ultimatum continued throughout the afternoon. As a result the respondent entered upon its records the discharges of 165 employees. SWIFT AND COMPANY 1187 At about- 6 o'clock in the evening, the mayor of Sioux City arrived at the plant. He had been apprised of the existing situation by the respondent and had been told that a public nuisance was being cre- ated as a result of the putrefaction of the carcasses which the em- ployees -had left on the killing floor and which the respondent was unable to remove. He called the men together and asked them to return to work for a sufficient time to clean up the killing floor. The men did not respond. He then asked them to allow the respondent's supervisors to do the work, but failed to win an affirmative response. Shortly thereafter, however, the employees made an offer to the respondent whereby they agreed to return to work for the purpose of cleaning up the killing floor if the respondent would reimburse them for the time consumed in that task. With the advice of Thomp- son, an organizer for the P. W. O. C., the men returned to work pursuant to this proposal at about 6:30. At approximately the same time the sheriff was removing 10 or 15 of their number from the plant under warrants issued as a result of a proceeding under Iowa statutes governing criminal conspiracy begun by the respondent during the course of the afternoon. When Thompson subsequently learned that several of the men had been arrested and removed from the 'plant and that the respondent considered the discharges as remaining in effect irrespective of the clean-up work, he instructed the men to stop work again. At that time the men had been back at work about 1/2 hour and the cleaning-up process was as yet incomplete. The men remained in the plant until about 1 o'clock on the follow- ing morning. They were then told that the sheriff was on his way to the plant with- warrants for their arrest and they walked out in advance of his anticipated arrival. Thereupon the respondent or- ganized a crew of supervisors and other available employees to com- plete the cleaning up of the killing floor and the salvaging of the carcasses. It was impossible at that time, however, to save many of the carcasses. Evidence introduced by the respondent shows that 63 cattle were left on the killing floor when the employees stopped work at 10 o'clock in the morning. Of these, 49 were condemned by gov- ernment inspectors and could thereafter be utilized only in the making of fertilizer. The remaining 14 were mutilated to some extent in the process of inspection. The men organized a picket line after they had vacated the plant and a strike was still in effect at the time of the hearing in this pro- ceeding. Although the P. W. O. C. and the respondent met on numer- ous occasions during the first 2 weeks in October, they disagreed over the question whether the 165 discharged employees should be returned to work and all efforts to settle the strike failed.. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions with respect to the alleged discriminatory, discharges The complaint, as amended during the hearing, incorporates the respondent's list of 165 employees discharged on September 29 and alleges that each was discharged because he had stopped work in protest against the respondent's refusal to bargain with the P. W. O. C. and in order to protect his right to bargain collectively. Later in the hearing the complaint was dismissed as to 11 of the 165 on motion of counsel for the Board 14 We are of the opinion that by the mere stoppage of work, the employees did not overstep the bounds of permissible union activity. Their initial collective bargaining amounted to no more than usual strike activity and cannot be characterized as a retention of the plant in defiance of the respondent's right of possession." There- after, however, the conduct of the employees in preventing the salvage of the slaughtered animals which they had left on the kill- ing floor, coupled with their refusal to leave the plant, resulted in substantial damage to the respondent's property. Such conduct constituted activity proscribed by the Supreme Court in the Famsteel case.1a Under the circumstances, therefore, we do not find that the discharge of the employees constituted an unfair labor practice within the meaning of the Act. We will, therefore, dismiss the allegations of the complaint, as amended, with respect to the alleged discriminatory discharges of the 154 named employees. 3. Conclusions with respect to the refusal to bargain a. The appropriate unit All parties agreed at the hearing to a unit consisting of produc- tion and maintenance employees of the Sioux City plant, excluding the superintendent, the assistant superintendent,' general foremen, foremen, assistant foremen, office workers, steady-time employees, 14 In addition the record shows that three discharges were made by the respondent as a result of a mistake of fact . Gilbert Anderson was at home ill on September 29 TIe attempted to enter the plant at 6 p in after having head of the strike, but was denied admission by the respondent ' s watchman Arthur Steil and Willard Fish left the plant pursuant to the respondent's ultimatum. i5 See National Labor Relations Board v . American Manufacturing Co and Nu -Art Em- ployees, Inc, 106 F. (2d) 61 (C C. A 2), enf'g Matter of American Manufacturing Com- pany , Company Union of the American Manufacturing Company; The Collective Bar- gaincng Committee of the Brooklyn Plant of the American Manufacturing Company and Textile IVot kegs Organizing Committee, C 1 O , 5 N. L. R. B 443. 11 See Fans teel - Metallurgical Corporation v. N. L. R. B, 306 U. S. 240, mod. and affg as mod 98 F (2d) 375 (C C A. 7) and setting aside in part Matter of Fansteel Metal- lurgical Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 66, 5 N. L. R. B 930; McNeely & Price Co . v. N. L. R. B., 106 F. (2d) 878 (C C. A. 3- 1939 ) mod and enf'g as mod. Matter of McNeely & Price Company and National Leather Workers Association, Local No. 30 of the C. I. 0., 6 N. L. R B. 800. SWIFT AND COMPANY 1189 watchmen, and timekeepers.'T The P. W. O. C. contended, in addition, for the exclusion of truck drivers and a garage me- chanic. The P. W. O. C. introduced evidence showing that the truck drivers are engaged in the distribution of meat products from the plant to local customers; that they are eligible to membership in the International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, af- filiated with the American Federation of Labor; that their hours of work differ from those of other employees; that they are paid a weekly salary as distinguished from an hourly rate; and that they have been excluded as a general rule in similar plants throughout the United States.'s The respondent contended for the inclusion of the truck d rivers and the mechanic. We shall follow our usual practice with respect to these employees and exclude them from the unit 1i) We find that the production and maintenance employees of the respondent at its Sioux City plant, excluding the superintendent, the assistant superintendent, general foremen, foremen, assistant fore- men, office workers, steady-time employees, watchmen, timekeepers, truck drivers, and the garage mechanic, constitute a unit appro- priate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise ef- fectuates the policies of the Act. b Representation by the P. W. O. C. of a majority in the appro- priate unit The complaint, as amended, alleges that on or before August 15, 1938, a majority of the employees in the appropriate unit had desig- nated the P. W. O. C. as their collective bargaining representative. No majority is shown by the record, however, on any date prior to 17 The complaint and the amended petition of the P . W 0 C both describe the appio- priate unit for collective bargaining as consisting of production workers of the respondent at the Sioux City plant . During the hearing, counsel for the Board moved to include maintenance workers. The P. W. 0 C interposed no objection to this motion , although it did not formally amend its petition. 18 Although the mechanic was not specifically mentioned in this evidence , Nie assume that , in general, it applies to him as well 19 Cf Matter of Swift & Co . (United Dressed Beef Co , J. J Harrington, N Y Veal & Mutton Co ) and Committee for Industrial Organization on behalf of the employees of Swift & Co, et al., 11 N. L It. B. 950; Matter of Armour & Company and Packing House Workers Organizing Committee for United Packing House Workers, Local 347, 8 N L R B 1100; Matter of Armour & Company and United Packing House Workers , Local Indus- trial Union No 893, through the Packing House Workers Organizing Committee, affiliated with the C. I. 0., 12 N. L. It. B. 49; Matter of Armour & Company and Local E61, Meat Cutters Union, 15 N. L. It. B 268; and Matter of The Cudahy Packing Company and United Packing House Workers Local Industrial Union No. 389 and U. P. W H, L I U No 873, affiliated with the P W. O. C. and C. 1 O , 15 N L R B 676 283032-41-vol 21--76 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September. 24, 1938. On the basis of the pay roll for the week end- ing September 3, 1938, which was introduced in evidence, the Trial Examiner found that as of that date the P. W. O. C. did not rep- resent a majority.of the employees in the appropriate unit. The P. W. O. C. filed no exception to this finding. We have reviewed the evidence and we find that the P. W. O. C. did not represent a majority of the employees in the appropriate unit as of that date. The pay roll for the week ending September 24, 1938, was also introduced in evidence. This pay roll was made current as of Sep- tei_.ber 29 by a supplement showing employees laid off and hired up to that time. The pay roll, as supplemented, shows 454 employees within the unit on September 29. In addition James Meilunas, whose name does not appear on the pay roll, testified that he was employed as a night janitor up to and including September 29, thereby bringing the total of employees within the unit to 455. Three hundred and fifty-six applications for membership in the P. W. O. C. were introduced in evidence. Of these applications, 274 bear the names of employees listed on the pay roll and bear dates or were shown to have been executed prior to September 29.20 Various means of identifying the application cards were em- ployed during the course of the hearing. Of the 274, 196 were identified by the signers, 7 by testimony of the signers and subse- quent introduction in evidence, 52 by witnesses to the signing, and 19 by the secretary of Local 874, who testified that she kept the membership records of the local and that she knew that the per- sons whose names appeared on the cards were bona fide members of Local 874. The respondent objected to the admission of the applica- tion cards only in so far as individual signers were not made avail- able for cross-examination, basing such objection on the ground that it had received reports that some employees had signed under duress. The respondent made no effort to call such employees as its wit- nesses nor did it challenge the authenticity of any of the cards. We find no merit in the respondent's objection. We are satisfied that the P. W. O. C. represented a majority of the employees in the appropriate unit on September 29 prior to the time when the 165 employees were discharged as a result of the stoppage of work. Those discharges, however, reduced the number of employees within the unit to 290. The number of employees 20 On the record, two adjustments are required They offset one another, however, and the total remains as stated Evelyn whetten, whose application is included in the total, •testified that although she signed the application on September 28, she never wanted the P W 0 C to represent her for she had signed only because fellow employees told her that they would not work with her unless she signed On the other hand, Vincent Rodriguez, for whom no card was introduced, testified that he had signed an application for the P W. O. C. on September 19 and that he still desired to have the P \T 0 C. represent him SWIFT AND COMPANY 1191 represented by the P. W. O. C. was at the salve time reduced by 161, leaving a representation of 113, or less than a majority. During the period from September 29 to the date of the hearing in this pro- ceeding, the P. W. O. C. augmented its representation by signing 31 individuals who remained on the respondent's pay roll after the dis- charges of September 29. Even with these additional employees, however, the P. W. O. C.'s maximum representation following the discharges was 144, or less than a majority of the employees then on the pay roll. We further find, therefore, that the P. W. O. C. did not represent a majority of the respondent's employees within the unit found to be, appropriate following the discharge of 165 employees on September 29, 1938. We find that on September 29, 1938, prior to the discharges, the P. W. O. C. represented a majority of the respondent's employees in the appropriate unit and that the P. W. O. C. was at that time the exclusive representative of all the employees in said unit for the purposes of collective bargaining. c. The refusal to bargain From April 7 to September 2, 1938, as described above, the P. W. O. C. repeatedly sought recognition from the respondent as the exclusive collective bargaining representative of its employees. From the out- set, the respondent refused to meet with more than 3 representatives of the P. W. O. C., in contrast with its treatment of the Independ- ent with whose committee of 16 the respondent met monthly. Moreover, the respondent repeatedly requested proof that the P. W. O. C. represented a majority of the employees in the appropriate unit, although, as noted above, it granted such recognition to the Security League in 1937 without requiring any proof of member- ship. The treatment thus accorded the P. W. O. C., in contrast with the treatment accorded the Security League and the Independ- ent, unmistakably showed a desire on the part of the respondent not to deal with the P. W. O. C.71 In compliance with the respondent's request for proof of its repre- sentation, the P. W. O. C. offered to submit to the respondent its application cards and membership records. This offer was rejected by the respondent whereupon the P. W. O. C. announced its inten- tion of securing certification frpm the Board. The record plainly shows, however, that the P. W. O. C. did not waive its claim to recognition without such procedure. At each successive conference 21Ct Matter of National Motor Bearing Company and International Union, Unoted Automobile TYwl,ers or Amevnca. Local No K 5 N L R B 409, enf'd as mod N L R B v National Motor Bearing Company ; International Association of Machinists, et at v. N. L R B , 105 F (2d) 652 (C C A 9) 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it voiced its desire for immediate recognition. Further, unmistak- able evidence of such desire is to be found in Shelton's letter of August 30 and his conversation with Krebs on September 2. The respondent insisted throughout the negotiations, however, that the P. W. O. C. pursue the procedure for certification. The offer of the P. W. O. C. to submit its proof of representation to the respondent was not unreasonable.22 That the respondent's rejection of this offer was made in bad faith is plain from the con- trasting manner in which without question it accorded such recogni- tion to the Security League. Moreover, that the P. W. O. C. could not proceed to establish the requested proof is directly attributable to the unlawful conduct of the respondent. As described above, the failure of the P. W. O. C. so to proceed was ascribable to the presence in the plant of the Independent, a labor organization which we have found was the recipient of the respondent's support and subject to its domination. Thus, the P. W. O. C. was effectively blocked from demonstrating its membership claims.23 So long as the P. W. O. C. did not in fact represent a majority of the employees in the appropriate unit, the respondent's refusal to grant exclusive iecognition did not constitute a refusal to bargain. Under the cir- cumstances here present, however, the respondent was not justified in its position and was refusing at its own peril to recogniz'> the P. W. O. C.24 It is apparent, however, that the P. W. O. C. was exercising a con- tinuing claim for recognition. On September 29 during the strike, when Shelton demanded of Krebs that the respondent meet P. W. O. C. committees in the future on grievances and other collective bargaining matters, the P. W. O. C. in fact represented a majority of the em- ployees. In the light of previous events, such a demand was tanta- mount to a demand for recognition. The respondent rejected this demand at its peril. Since at the time the P. W. O. C. represented a 22 Cf N. L R B v. Piqua Munising Wood Products Co, 109 F (2d) 532 (C C A 6), enf'g Matter of Piqua Munising Wood Products Company and Federal Labor Union Local 18787, 7 N L R B 782 , in which the court said : The employer acts at his peril in refusing to recognize a duly selected bargaining agency of an appropriate unit of his employees unless the tacts show that in the exercise of reasonable judgment he lacked knowledge of the appropiiateness of the unit or the selection of the majority representative 23 Cf. Matter of Much Leather Company and General C 1 0. Union , 11 N L R B 394 24 Cf N. L R B v Remington Rand, Inc., 94 F (2d ) 862 (C C A 2) ( 1938), cert i'en 301 U S 576 enf'g Matter of Remington Rand , Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers , 2 N L R B 626; Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1719, 7 N L It B 714, and Matter of Art Metal Construction Company and International Association of Machinists, Local 1559, affiliated unth District # G5, of the I A M (A F of L ), 12 N L R B .'1307, enf'd as rood Art Metal Conti uction Company v N L R B . 110 F (2d) 148 (C C A 2, Feb 26, 1940). SWIFT Ali D COMPANY 1193 majority of the employees, the respondent's refusal to meet with its representatives amounted to a refusal to bargain. We find that the respondent refused, on September 29, 1938, to bar- gain collectively with the P. W. 0. C. as the exclusive representative of its employees within the unit hereinabove found to be appropriate for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. As described above, the strike was called in order to induce the respondent to bargain collectively with the P. W. O. C. Shortly after the commencement of the strike, Shelton told Krebs 'that the men were ready to go back to work if the respondent would agree to meet with P. W. 0. C. committees in the future. The re- spondent refused so to agree. We accordingly find that the strike was prolonged because of the respondent's refusal to bargain collectively with the P. W. 0. C. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UNON COMMERCE We find that the activities of the respondent, set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from certain activities and practices in which we have found it to have engaged and, in aid of such order and as a. means for removing and avoiding the consequences of such activities and practices, that the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent dominated and interfered with the formation and administration of the Security League and its suc- cessor, the Independent, and contributed support to that organization. We have also found that by such practices, and in numerous other ways, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. According, we shall order the respondent to cease and desist from such unfair labor practices. We shall also order affirmatively that the respondent withdraw all recognition from and disestablish 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Independent as a representative of its employees for the purposes of collective bargaining and post notices in conspicuous places through- out its plant stating that it has withdrawn recognition from and dis- established the Independent and will cease and desist from unfair labor practices as aforesaid.25 We have also found that the respondent refused, on September 29, 1938, to bargain with the P. W. 0. C. as the exclusive representative of its employees. In view of the subsequent loss of majority by the P. W. 0. C., however, we shall modify our usual order in such cases by omitting the requirement that the respondent bargain collectively with the P. W. 0. C. upon request. Nevertheless. since we are here- inafter directing an election among the respondent's employees to determine whether or not they desire to be represented by the P. W. 0. C. and since the record establishes a disposition on the part of the respondent to refuse to bargain with the P. W. 0. C. we shall substitute for our usual order a requirement that the respondent bar- gain collectively with the P. W. 0. C. upon request, in the event that the P. W. 0. C. is designated in the election by a majority of the employees as their representative for such purposes and is so certified by this Board.26 Since the strike of September 29, 1938, was prolonged by reason of the respondent's unfair labor practices, we shall, in accordance with our usual custom, order the respondent, upon application, to offer reinstatement to all striking employees who have not been reinstated, except those who were discharged for cause on September 29, 1938. The offers of reinstatement shall be without prejudice to seniority and other rights and privileges. Such reinstatement shall be effected in the following manner: All persons hired after September 29, 1938, and who were not on the pay roll as of that date, shall, if necessary to provide employment for those to be offered reinstatement, be dis- missed. If thereupon by reason of a reduction in the force of, em- ployees needed, there is not sufficient employment immediately avail- able for the remaining employees, including those to be offered re- instatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remain- 25 A similar affirmative order, including the posting of like notices, was upheld by the Supreme Court in N L R B. v. The Falk Corporation, 308 U S 453 (U S S C-Januaiy 2. 1940), rev'g in part 102 F (2d) 383 and 106 F. (2d) 454 (C C A 7-1939) and enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Worl.ers of North America, Lodge 1528, 6 N L. R B 634 2g Matter of West Kentucky Coal Company and United Mine Workers of America, Dis- trict No 23, 10 N. L. R. B. 88. SWIFT AND COMPANY 1195 ing after such distribution, for whom no eniploynient is immediately available, shall be placed upon a preferential list prepared in ac- cordance with the principles set forth in the previous sentence, and shall thereafter, in-accordance with such list, be offered employment in their former or in substantially equivalent positions, as such em- ployment becomes available and before other persons are hired for such work. VI. THE. QUESTION CONCERNING REPRESENTATION The amended petition of the P. W. O. C. alleges the existence of a question concerning the representation of employees of the respondent. As described above, the P. W. O. C. represented a substantial num- ber of the respondent's employees at the time of the hearing. We. find that a question has arisen concerning representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE ' 'We- find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE DETERMINATION OF REPRESENTATIVES Our previous findings indicate that, although the P. W. O. C. lost its majority when the respondent discharged 465 employees on September 29, it nevertheless continued to represent a substantial number of the employees in the appropriate unit. We find that the question con- cerning representation which has arisen can best be resolved by the holding of an election by secret ballot. The Independent has requested, as a part of its ' intervention in the proceedings, that it be given a place on any ballot for the choice of representatives. The request is, however, incompatible with our order that the Independent be disestablished a a representative of the employees and we shall, therefore, make no provision for the designation of the Independent on the secret ballot.27 Since the respondent has, by engaging in various unfair labor prac- tices, interfered with the exercise by its employees of the rights guar- 21 Cf N L R B v The Falk Corporation , 308 U S 453 (U S S C-January 2, 1940), rev'g in part 102 F. ( 2d) 383 and 106 F (2d) 454 (C. C A 7), and enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America , Lodge 128, 6 N L R B 654 1196 DECISIONS Or NATIONAL LABOR RELATIONS BOARD anteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful. acts.. At the time we fix the date of the election, we will determine the pay- roll date to be used in ascertaining the eligibility of the employees in the appropriate unit to vote. Upon the basis of the above findings of fact and upon the entire record in the cases, the Board makes the following : CONCLUSIONS OF LAW 1. United Packing House Workers Local Industrial Union No. 874, through the Packinghouse Workers Organizing Committee, affiliated with the Committee for Industrial Organization, and Independent Packing House Workers Union, Local No. 2, formerly known as Eiii- ployees' Security League of Swift and Company, are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Employees' Security League of Swift and Company and its successor, Independent Packing House Workers Union, Local No. 2, and by contributing support to that organization, the respondent has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The production and maintenance employees of the respondent at its Sioux City plant, excluding the superintendent, the assistant superintendent, general foremen, foremen, assistant foremen, office workers, steady-time employees, watchmen, timekeepers, truck drivers, and the garage mechanic, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 5. United Packing House Workers Local Industrial Union No. 874, through the Packinghouse Workers Organizing Committee, affiliated with the Committee for Industrial Organization, was, on September 29, 1938, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. By refusing, on September 29, 1938, to bargain collectively with United Packing House Workers Local Industrial Union No. 874, through the Packinghouse Workers Organizing Committee, affiliated SWIFT AND COMPANY 1197 with the Committee for Industrial Organization, as the exclusive rep- --resentativeraf • the=employees in such, unit, the respondent, engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 9. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent at its Sioux City plant, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Swift and Company, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Packing House Workers Union, Local No. 2, or the forma- tion and administration of any other labor organization of employees at its Sioux City, Iowa, plant, and from contributing financial or other.,support to said Independent or to any other labor organization of the employees at said plant; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Packing. House Workers Union, Local No. 2, as the representative of any of its em- ployees at its Sioux City, Iowa, plant for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, and completely disestablish Independent Packing House Workers Union, Local No. 2, as such representative; (b) Upon application, offer to those employees who were on strike on September 29, 1938, and thereafter, and who have not since been fully reinstated, except those who were discharged for cause on that 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner; offer them employment as it becomes available; (c) In the event that United Packing House Workers Local In- dustrial Union No. 874, through the Packinghouse Workers Or- ganizing Committee, affiliated with the Congress of Industrial Or- ganizations, is selected in the election hereinafter directed, as their representative by a majority of the employees in the appropriate unit, and is thereafter certified by the Board as the exclusive rep- resentative of all employees in such unit, then, upon request, bargain collectively with United Packing House Workers Local Industrial Union No. 874, through the Packinghouse Workers Organizing Com- mittee, affiliated with the' Congress of Industrial Organizations, as the exclusive representative of all of the respondent's production and maintenance employees at its Sioux City plant, excluding the super- intendent, the assistant superintendent, general foremen, foremen, assistant foremen, office workers, steady-time employees, watchmen, timekeepers, truck drivers, and the garage mechanic, with respect to rates of pay, wages, hours of employment, or other conditions of employment ; (d) Immediately post notices in conspicuous places throughout its Sioux City, Iowa, plant, and maintain such notices for at least sixty (60) consecutive days from the date of posting, stating that the re- spondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) and that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND-IT IS FURTHER ORDERED that the allegations of the complaint, as amended, charging the respondent with engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, be, and they hereby are, dismissed. 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, Sections 8 and 9, of National SWIFT AND COMPANY 1199 Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Swift and Company, Sioux City, Iowa, aii election by secret ballot shall be coil ducted at such time as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Eighteenth Region, acting in this matter as the agent of the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the production and maintenance employees of Swift & Company at its Sioux City, Iowa, plant whose names appear on the pay roll to be hereafter determined by the Board, excluding the superintendent, the assistant superintendent, general foremen, foremen, assistant foremen, office workers, steady-time em- ployees, watchmen, timekeepers, truck drivers, and the garage me- chanic, to determine whether or not they desire to be represented by United Packing House Workers Local Industrial Union No. 874, through Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining.