Wilson & Co., Inc.

In the-Matter Of WILSON & CO., INC. and UNITED CANNERY AGRICUL- TURAL PACKING AND ALLIED WORKERS OF AMERICA, LOCAL 216, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-863.-Decided .August 7, 1940 Jurisdiction : produce packing industry. Unfair Labor Practices In General: responsibility of employer for acts of supervisory employees. Company=Dominated Union: Employer's participation through its agents in forma- tion of and in solicitation of members for-contribution of support to: furnish- ing meeting place to-discrimination against members of rival outside union. Discrimination: refusal to reinstate laid-off employees for union membership and activities. Remedial Orders : reinstatement and back pay awarded; company-dominated union disestablished. Mr. Thurlow Smoot, and Mr. Lee Loevinger, for the Board. ' Mr. James D. Cooney, and Mr. Marshal Wiedel, of Chicago, Ill., for the respondent. Mr. Thomas H. Quinn, of Faribault, Minn., for the Club. Mr. Ralph Helstein, for the Minnesota State Industrial Council, Committee for Industrial Organization. Mr. Harry A. Sellery, Jr., and Mr. Henry J. Fox, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Cannery, Agricultural, Packing and Allied Workers of America, Local 216, herein called Local 216, affiliated with the Committee for Industrial Organization, the National Labor Relations Board, herein called the Board, by the Acting Regional Director' for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint, dated May, 4, 1938, against Wilson & Co., Inc., Faribault, Minnesota, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of 26 N. L. R. B., No. 32. 297 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and Local 216. In respect to the unfair labor practices, the complaint, as amended -during the hearing, alleged in substance: (1) that,the respondent dominated, and interfered with the,formatioa,and administration of, and contributed financial:and other support to, a, labor, organization known as the Employes' Club, herein called the Club; (2) that the respondent discriminatorily refused to reinstate Marie Chavie, Alfred Christensen, LaVerne Hensel, Effie Summers, and Cordelia_Thibodeau because of their union membership and activity; and (3) that the respondent'by'the foregoing and by other acts,: interfered with, re- -atrained, and coerced its employees'in the exercise of the rights guar- anteed, in Seo"tion 7 of the'Act. The respondent filed' an answer, dated May; 12, 1938, which, as amended during the hearing, denied that the respondent's business ;affects,commerce, within the meaning of the Act, and that the respond- ent had engaged in the alleged unfair labor practices.' 'The answer affirmatively alleged that Local, 216 is a ,successor to an- organization formerly known as Independent -Union of All Workers, herein called the Independent, and that the Independent was a lawless and sub- versive organization. Pursuant to notice, a, hearing vas held at Faribault, Minnesota, from 1May 23 through June 3, 1938, before J. J. Fitzpatrick, ,the Trial ,Examiner duly, designated , by' the Board. The Board and,, the re- spondent were represented by counsel and participated in the hearing. At the opening of the hearing the Club,, appearing by counsel, moved to intervene in the proceeding. The motion also sought leave for intervention individually by 32 named persons alleged to be members of the Club. The Trial Examiner sustained the Board's objection to the intervention of such persons. He,gri,nted the motion to inter- vene, as to the Club, but limited its participation in the proceeding to the allegation of the complaint 'that it is company dominated. Thereafter the Club was represented by counsel :and participated- in the hearing in accordance with the Trialxaminer's,ruling;regarding the terms of intervention. Full opportunity to be heard,,to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. After its motion to intervene had been granted, the Club then moved for leave to file an answer to the complaint which alleged in substance: (1) that the Club is an unincorporated labor organization, the members of which are all, production, employees at the, plant;. (2) that the Club is not company dominated; (3) that the Club. was, formed. in.order that its members would not be required to join and be 'represented for collective bargaining purposes by Local 216; (4) that Local 216 is the WILSON & CO., INC. 299, successor, to a-branch of the Independent, .that the objectives of the Independent are.violence and strikes, and that Frank Ellis, a, leader, of the Independent, sought to force himself upon the working people, of Faribault, including the respondent's employees, as their ,collective bargaining representative; (5) that the respondent's production em- ployees constitute a -unit appropriate.for the purposes, of. collective bargaining, and that the Club represents 98 per. cent of such employees; and (6) that a question has arisen concerning the representation,of the respondent's employees and that such question, affects commerce, within the, meaning of the Act. The answer. concluded, inter, alia, with a petition that the Board certify the, Club as the collective bar- gaining representative of the respondent's production employees at the 'plant. The Trial Examiner denied, the Club's application for leave to *file; the answer, on the ground, that; it raised issues of repre- sentation and other issues not involved in this proceeding. He gave the Club leave, however, to file an,answer within the issues of the,case. The Club did not-thereafter offer to file such an answer.- ,., , I . During, the hearing the respondent and the Club both applied: for the issuance • of subpoenas., As-to . ,certain witnesses and, :records covered by the respondent's applications .for subpoenas, counsel -for the Board agreed to produce such -witnesses. and records. . The, Trial Examiner therefore did not rule upon those, portions, of.the respond- ent's applications and he denied the,remaining portions,of the,respond- ent's applications and the Club's application on the ground that-the evidence 'thereby sought to be adduced was irrelevant to the issues of the case.. Duringtthe hearing the-Trial Examiner granted the Board's motions to dismiss the complaint as to Thibodeau and to conform the pleadings to the proof. ' At the close of the Board's case and again at the,close of the hearing the respondent moved that the complaint be dismissed in its entirety. The Club moved that the allegations, of the complaint that the Club is company dominated be, dismissed.. The Trial Examiner, denied these motions. .During 'the hearing the 'Trial Examiner made several rulings on other motions andon objections to the admission of evidence. The Board has reviewed all -the rulings of the' Trial Examiner, during the hearing, including those mentioned above, and finds that no prejudicial errors were committed: The rulings are hereby affirmed. , I . , . _ , On August 4, 1938, the.Trial Examiner filed, his; Intermediate Report, copies ' of which, were duly served upon the parties. On September 6, 1938; the respondent and the Club: filed exceptions, to the Intermediate Report. The respondent also requested permission to file a brief and to argue orally before the Board. On April 26,-1939, all parties were granted permission to file briefs with the Board and 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequently the parties were duly notified that the oral argument before the Board was scheduled for June 6, 1939. None of the parties availed itself of the opportunity to file a brief and none appeared before the Board on June 6, 1939, to present oral argument. On July 6, 1939, acting pursuant to Article II, Section 38, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued an order, copies of which were duly served upon the parties, vacating and setting aside the Intermediate Report, reopening the record, and 'authorizing the Regional Director to issue an amended complaint and notice of further hearing. Upon a second amended charge duly filed by Local 216, the Regional Director issued an amendment to complaint dated September 6,. 1939, alleging that the respondent was continuing to engage in unfair labor practices, within the meaning of Section 8 (3) of the Act, by discriminatorily refusing to reemploy Chavie, Christensen, Hensel, and, Summers because of their union membership and activity. Copies of the amend- ment to complaint, accompanied by notice of further hearing, were duly served upon the respondent, Local 216, and the Club. There- after, the respondent filed with the Regional Director a motion to dismiss the amendment to complaint and at the same time an answer denying the allegations of the amendment to complaint. Pursuant to notice, a further hearing was held at Faribault, Minne- sota, on December 21, 1939, before J. J.•Fitzpatrick, the Trial Exam- iner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the further 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 opening of the hearing, the Trial Examiner denied the respondent's motion to dismiss the amendment to complaint. During the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner at the further hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 6, 1940, the Trial Examiner filed his Intermediate Report on both the hearing and the further hearing, copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the' meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. - He recommended that the respond- ent cease and desist from interfering with, restraining, and coercing its employees in the-exercise of the rights guaranteed in Section 7 of the s Counsel for the Club was not present at the further hearing WILSON & CO., INC. 301 Act, that the respondent disestablish and withdraw all recognition from the Club as a labor organization , and that the respondent rein- state Chavie, Christensen, Hensel, and Summers with back pay. Exceptions to the intermediate Report were filed by the Club on January 26 , 1940, and by the respondent on February 5, 1940. The respondent also requested permission to file a brief and to argue orally before the ' Board. On February 6, 1940, all parties were granted permission to file briefs , and subsequently the parties were duly notified that the oral argument was set for April 16, 1940 . None of the parties availed itself of the opportunity to file a brief and none appeared before the Board on April 16, 1940, to present oral argument. The Board has considered the exceptions to the Intermediate Report of January 6, 1940, and , except as they are consistent with the findings of fact, conclusions of law, and order herein, finds them without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT. Wilson & Co., Inc., a Delaware corporation , maintains its principal office and place of business in Chicago , Illinois. It owns and operates packing plants in California , Georgia, Illinois, Iowa, Kansas, Minne- sota, and Oklahoma and produce packing plants in Alabama, Iowa, Minnesota, Missouri, Oklahoma, Tennessee , and Texas . Through a subsidiary New Jersey corporation the respondent operates about 100 branch houses in Eastern , New England, Middle Western, South- western, and Southeastern States, distributing and selling the respond- ent's products to wholesale and retail dealers. The respondent operates a produce-packing plant at Faribault, Minnesota, which is the plant involved' in this proceeding, where butter, eggs , chickens , and turkeys are processed and prepared for market. For the fiscal year ending in April 1938 the plant processed and prepared for the market 1,387,590 pounds of fowl, 824,020 pounds of turkeys , 1,886,390 dozen eggs, and 4,345,763 pounds of butter. About 99 per cent of the fowl, 100 per cent of the turkeys, and 84 per cent of the butter were purchased within Minnesota . During this same period about 80 per cent of the dressed and processed fowl, 84 per cent of the dressed turkeys, and 95 per cent of the processed butter were sold outside Minnesota. Of the eggs , 786,273 dozen shell eggs were processed and prepared for the market , of which about 82 per cent were sold outside Minnesota ; and 1,472,468 pounds of frozen eggs were processed and prepared for the market , of which about 62 per cent were sold outside Minnesota. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED United Cannery, Agricultural, Packing and Allied Workers of America, Local 216, is a labor organization affiliated with the Com- mittee for Industrial Organization,' herein called the C. I. 0., ad- mitting to membership the respondent's non-supervisory employees at the plant, excluding office employees. Employes' Club is an unaffiliated labor organization admitting to membership the respondent's employees at the plant, excluding the plant manager, assistant plant manager, office manager, assistant office manager, and plant superintendent. III. THE UNFAIR LABOR PRACTICES A. The background The respondent's business is seasonal, except for the work in the butter room, where butter is processed and prepared for market and where the volume of work is substantially constant throughout the year. All other departments of the plant virtually suspend opera- tions from Christmas until March of each year. The processing of eggs normally begins early in March and ends late in July. The work in the egg department is of two types: Can- dling, for the purpose of grading the eggs ; and breaking, for the purpose of removing the egg meat from the shell. After the egg meat has been removed, it is churned and prepared for sale in bulk form. The work in the poultry picking room normally begins early in June, as .the egg season slackens, and continues until about Christmas. Shortly before Thanksgiving and Christmas there are two peak periods each lasting about 10 days. The work in the poultry picking room consists of killing the poultry and removing the feathers. The receiving dock, the feeding station, and the poultry packing room are auxiliary to the picking room and the volume of work and number of employees fluctuate in accordance with the volume of work in the picking room. During the slack season the egg and poultry depart- ments operate only one or two days a week. In 1933 and 1934 the Independent organized one of its units in the plant. About July 1934 the Independent called the employees out on strike, and the plant remained closed for about 9 months. When the respondent reopened the plant about April 1935 many of the em- ployees who had participated in the strike were rehired. By that time, however, the Independent had ceased to exist as a labor organi- zation of the respondent's employees. Late in November 1937 a group of employees organized Local 216. On December 10, 1937, after many of the employees had joined, 3 Now the Congress of Industrial Organizations WILSON & CO., INC. 303 Local 216 received a charter from United Cannery, Packing, Agri- cultural and Allied Workers of America. B. The Club About December 9, 1937, Russell Woods, the employee in charge of the poultry picking room, and Anthony O'Brien, the employee in charge of the receiving dock, decided to organize an unaffiliated union of the respondent's employees in opposition to Local 216. According to their testimony, at the recess period about 9:30 a. in. on December 9, 1937, they went to the office of Thomas H. Quinn, a local attorney, who had in his possession the documents for an unaffiliated union, the organization of which had been contemplated during We 1934 strike. They secured the documents at Quinn's office and proceeded to the office of another attorney, Charles Sales. In consultation with Woods and O'Brien, Sales deleted several paragraphs allegedly inapplicable to the labor organization then to be established. Leaving the papers in O'Brien's custody, the two 'men thereupon returned to the plant. Among the documents was a petition for the establishment of the Club which Woods and' O'Brien took back ' to the plant. Al- though the recess period lasts only 10 or 15 minutes, Woods claimed that O'Brien and he went to the office of Quinn, 12 or 13 blocks distant from the plant, then proceeded to the office of Sales, and returned to work,by the end of the recess period. During the same day the organizers started a campaign to secure members for the Club by soliciting the signatures of the employees to the petition. Thus O'Brien gave the petition to Nellie Hel]evik, an employee in the poultry picking room. In accordance with the arrangement made between Hellevik and Bessie Rauschert, the em- ployee in charge of the egg candling room, the latter stationed herself in the dressing room and, as Hellevik directed about 25 employees individually to leave their work, they went to the dressing room where Rauschert solicited them to sign the petition for the Club.' Hellevik explained that the only girls whom she sent to Rauschert were those who, she knew, had not joined Local 216. All the women so directed to the dressing room signed the petition. Although Woods denied observing any solicitation for the Club on company time and property, his work required him to move about the picking room constantly. We are unable, therefore, to give credence to his testimony that a steady stream of about 25 consecutive absences from work in the picking room could occur in one morning without those absences coming to his attention. Thereafter and during the next 2 days the employees in the other departments were solicited by Clarence J. St. Martin, the employee 3 Rauschert was not at work at the time she engaged in this solicitation. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in charge of the poultry packing department . In this manner, within a few, days, the. Club had enlished as members about 76 employees, most of whom had signed the petition at the direct solicitation of the employees under whom they. worked. ' Fred Allison , the employee in charge of the butter department , acted as the president of the Club during the organizing campaign . Sometime in December O'Brien was elected the president of the Club. Local 216 and the Club were thus competing for members at a time when the respondent was about to make the customary seasonal lay- offs, which were scheduled to go into effect a few days before Christmas 1937: Fearful that its members would be discriminated against in the impending lay-offs and might not be ' reinstated the next spring, Local 216 sent a committee to negotiate with the respondent on December 11 , 1937. This committee consisted of Frank Krueger, Marie Chavie, Alfred Christensen , La Verne Hensel, Martin Paquette, Effie and Pearl Summers, and Cordelia Thibodeau , who were em- ployees of the respondent , and George E. Evans and Ed Folan, two C. I. O. representatives . The' respondent was represented by William J. Wilson, . the plant manager, Harvey Clark, the assistant plant manager, and Maury Hopkins, the director of the respondent's industrial relations department. Evans and Folan, who were the principal spokesmen for Local 216, stated that its members feared that they might be discriminated against in the impending seasonal lay-offs, owing to the activities of the head employees in the various departments in organizing the Club, and that Local 216 had secured signed statements from certain of its members regarding such activities. Hopkins claimed that Erickson was the only foreman at the plant, summoned him to the meeting, and asked him if he had assisted in any way in the Club 's formation. Erickson denied that he had engaged in such activity , whereupon he was excused from the meeting. Hopkins stated that since the only foreman in the plant had denied participating in the Club 's formation, he would not examine the statements submitted by Local 216 with re- spect to the activities of alleged supervisory employees. Pearl Summers asked if the respondent would follow seniority in the impending seasonal lay-offs' and in reinstating the employees to work in the spring . Hopkins explained that, owing to the seasonal character of its business , the respondent needed large numbers of employees on short notice and could not , 'therefore , agree to recall the employees in the order of their seniority . He agreed , however, that the respondent would recall the employees in accordance with their seniority "as far as humanly possible." During the meeting, the representatives of Local 216 asked if the respondent would post notices in the plant stating that the respondent would not discriminate against the members of Local 216 in laying off and recalling the em- WILSON & CO., INC. 305 'ployees and that the members of Local 216 might present grievances without fear of discrimination against them by the respondent. The respondent rejected this request on the ground that its policy respect- ing its employees was well known, that it did not discriminate against employees because of their membership or activity in a labor organiza- tion, and that it was always willing to negotiate respecting working conditions with any group of employees. During the previous slack seasons it had been the respondent's practice to recall substantially all the employees for a few hours on one or two days a week to process the products in the plant. During the summer and fall of 1937 the Chicago office decided to abandon this practice, and for the slack season beginning at Christmas 1937 to retain a small group of employees who were able to work in several departments and to have them perform all the available work. Ex- cluding the plant manager, the assistant plant manager, the general superintendent, and the office force, the number of production em- ployees in early December 1937 was 89.. During the rush period before Christmas 1937 the number of production employees increased to about 105. • Late in December 1937 the lay-offs were made. On December 22, 1937, before the seasonal lay-offs, about 41 employees, or 47'per cent of the employees then working, were mem- bers of the Club; 30 employees, or 34 per cent, were members of Local 216; and 17 employees, or 19 per cent, were not members of either labor organization.4 Of the 51 employees laid off, 13, or 25 per cent, were members of the Club; 26, or 51 per cent, were members of Local 216; and 12, or 24 per cent, were not members of either organization.5 If the respondent had reduced its force proportionately about 17 members of Local 216 would have been laid off. Thus, by December 30, 1937, the membership of Local 216 among the working employees had been reduced from .30 to 4, a reduction in terms of percentage from 34 per cent to 11 percent. The operation of the laws of chance requires us to make an allowance for a reasonable variation between the actual and the theoretical figures, since these laws cannot be expected to operate in precise proportions. Accordingly a reasonable variation between the actual and the theoretical figures would not indicate that the respondent's method of reducing its force was discriminatory in its application to the members of the two labor organizations. But this variation between the actual and the theoretical figures is about 23 per cent. This variation is so con- siderable that we can only conclude that a disproportionate number of the members of Local 216 were laid off on or about December 22, 1937, and a disproportionate number of the members of the Club were 4 This figure includes four employees who were members of both the Club and Local 216, hence it is im- possible to determine with which organization they were , in fact, affiliated 5 This figure includes two of the four employees listed in footnote 4, supra 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retained in the week after Christmas 1937. Thus, during the seasonal lay-offs, the fears of Local 216 were realized and its members suffered. In 1938'the Club held at least two meetings in the evening after work in the plant; one in February and one in April. At the February meeting Delbert Greenwood, an ordinary employee, was elected to succeed O'Brien as the president of the Club in order to avoid any con- troversy as to the propriety of an employee in O'Brien's position acting as the president. On the evening of the April meeting, which consisted in part of a party, Oscar Rauschert, whose work is similar to that of a night watchman, covered the lower half of the plant windows facing the street with heavy wrapping paper, because he "didn't know what the management would say about having beer in the building." He conceded that the windows had not been so covered on any other oc- casion. Clark, then the assistant plant manager and general super- intendent, attended this party. In view of Clark's presence, the rea- son advanced by Rauschert for covering the windows is not worthy of'belief. In our opinion, the plant windows were covered to conceal the fact that the Club was utilizing the respondent's property, and we so find. Clark claimed that he understood that the party was merely one given by the employees and denied that he had any knowledge that it was given by the Club. Wilson admitted that he would not have permitted Local 216 to hold a meeting in the plant. We are of the opinion that the respondent, through its supervisory employees, organized the Club and thereafter contributed support to it." The respondent contends that Allison; O'Brien, Bessie Rauschert, St. Martin, and Woods, respectively in charge of the butter, receiving, 'egg candling, 'poultry packing, and poultry picking departments, are not supervisory employees for whose acts it is responsible. We do not agree with this contention. These employees exercise substantial supervision over the employees in the departments to which they are assigned. Although they operate machinery and work with the or- dinary employees, they are responsible for maintaining time records, transmitting instructions from the general superintendent to the ordi- nary employees, instructing new employees in the proper performance of their duties, and maintaining discipline. They receive steady employment, being transferred among the departments during slack seasons, and receive an hourly wage rate higher than the rates paid to ordinary employees. Although they do not possess the absolute power to hire and discharge in their respective' departments, these employees are consulted , by the higher officials in such matters. • 6 The Club claims that it was formed by a group of employees in self defense against the activities of the organizers of Local 216 , and contends that the members of Local 216 generally engaged in acts of physical vio- lence, such as "backing up" employees against the wall to compel them to join Local 216. There was con- siderable enthusiasm and propagandizing by the leaders of both ' the Club and Local 216 in competing for members. The competition for members produced some feeling between the two groups , including one or two brief lights. The contention of general physical violence and threats on the part of members of Local 216 is not substantiated, however, by the record. WILSON & CO., INC. 307 That they are considered by the employees as representatives of the management is plainly shown by the resignation of O'Brien from the presidency of the Club because of the belief that it was improper for a department head to fill this position. On the basis of all the evidence, we find that Allision,_ O'Brien, Bessie Rauschert, St. Martin, and Woods are supervisory employees and representatives of the manage- ment for whose activities the respondent is chargeable.7 We have observed that Woods and O'Brien initiated the formation of the Club and, with the aid of other department heads, succeeded in soliciting a substantial number of members for the Club. Despite the complaint of Local 216, the respondent refused to instruct these super- visory employees to desist from their activity and refused to curb these employees in any other manner from enlisting the respondent's prestige on the side of the Club. Indeed, in the face of these activities of the supervisory employees, the respondent even refused to post assurances that members of Local 216 would not be subject to dis- crimination. In addition the respondent permitted the Club to hold meetings on its property and admitted that a similar privilege would not have been accorded Local 216. Finally, upon the termination of the peak season, the respondent chose for lay-off almost every member of Local 216 in the plant. In view of the disproportionate number of members of Local 216 thus laid off, and, as we conclude below, in the absence of any explanation for such choice of Local 216 adherents, we are satisfied and find that the respondent discriminated in its choice of employees to be laid off in order to discourage member- ship in Local 216 and encourage membership in the Club.' In the light of the activities of the supervisory employees in behalf of the Club and the support described above that the respondent acccorded to this labor organization, it is plain that the Club can not and does not represent the free choice of the employees. Upon the basis of the foregoing facts, we find that the respondent dominated and interfered with the formation and administration of the Club and contributed support to it. We further find that the - 7 See Swift & Company v . National Labor Relations Board, 106 F. (2d) 87, 93 (C. C. A 10), mod'g and enf'g Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, et at., 7 N. L. R. B 269, where the Court states: ... They (two high supervisory officials) took no effective means to stop repeated violations of the Act. Furthermore, with respect to the acts of the supervisory foremen, the doctrine of respondent superior applied and petitioner (the company) is responsible for the actions of its supervisory foremen, even though it had no actual participation therein. See also International Association of Machinists et at v. National Labor Relations Board, November 20, 1939 (C. A. for D. C.), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N. L R. B 621. 8 Montgomery Ward & Co v. National Labor Relations Board, 107 F. (2d) 555 (C C. A. 7), mod'g and enf'g Matter of Montgomery Ward & Company and Reuben Litzenberger et al., 9 N: L- B B. 438 See also Hamilton- Brown Shoe Co. v. National Labor Relations Board, 104 F. (2d) 49 (C C. A 8), mod'g and enf'g Matter of Hamilton-Brown Shoe Company and Local No 125, United Shoe Workers of America, etc ,, 9 N. L. R. B. 1073, Matter of United States Smelting etc. Company and Bingham Underground Miners' Union No. 2 of the Inter- national Union of Mine, Mill and Smelter Workers, 10 N. L. R. B. 1015. Cf Matter of Hilgartner Marble Company and InternationalAssociation ofMarble, Slate, and Stone Polishers, etc., 13 N. L. R. B. 1200. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent has thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusals to reinstate As we have stated above, the respondent laid off a disproportionate number of the members of Local 216 in December 1937 and did not indicate to Local 216 that it was abandoning its previous system of work during the slack season. So far as the record indicates, however, the previous system was not abandoned for the purpose of eliminating the members of Local. 216 as employees. , During January and February 1938 the number of production em- ployees was about 27. The customary seasonal increase in the re- spondent's operations began in March 1938. The pay rolls for the period extending from March 3 to May 19, 1938, inclusive, show a steady increase from 27 to 48. At the hearing Clark, then the general superintendent, explained that in recalling the employees in the spring of 1938 the respondent took into account the following factors: (1) availability, or the promptness with which an employee could he put to work; (2) experience; (3) the economic necessity of an employee for work; (4) seniority; (5) cooperation with other employees; and (6) an employee's attitude toward his supervisors. By "attitude" Clark stated he meant that an employee was not "smart alecky about taking orders," -"surly," or "grouchy and fussing." In the light of thesi' circumstances, we turn to consider the refusal of the respondent, to reinstate the employees named in the complaint. 1. Hensel and Summers LaVerne Hensel and Effie Summers were hired in May 1935 and April 1937, respectively. In the spring of 1937 Hensel's wages were raised from 25 to 30 cents per hour. Prior to the 1938 season she customarily worked steadily each year from March until June in the egg department, and from July until Christmas in the poultry picking room. Woods laid Hensel off on December 22, 1937, stating that she would be recalled during the following week when, he believed, the respondent would resume operations in the picking room. Summers worked in the egg candling department from April until September 1937 and in the poultry picking room until December 1937. On December 17, 1937; through her-husband, Pearl Summers, she secured permission from Erickson, then the general superintendent, to go home for Christmas. Erickson told Pearl Summers that his wife could return to work after the Christmas holidays. Hensel and Summers both joined Local 216 in December 1937 and were members of the union committee which conferred with the re- spondent in that month. It is clear that the union membership and WILSON & CO.; INC. 309, activity of Hensel and Effie Summers were known to the respondent before their work ended in 1937. I . - About March 15, 1938, Hensel and; Summers applied together .to the respondent for reinstatement. Clark -told them, that no. work.was then available, but that the respondent might,be able to recall them to work within a few days. During the -week, of March 3, 1938, the name of one new female employee appeared on the pay, roll,'but the record does not show whether that was the first week that she was employed in 1938.9 During the week of March 17, 1938, the respond- ent hired three new female employees 10 and, reinstated one female employee 11 for the new season. During the week of March 31,•1938, the respondent hired five new female employees, 12 and reinstated three female employees.13 During the-week of April 7, 1938, the respondent hired four new female employees 14,and reinstated two female employ- ees.11 Thereafter, up to and including the week of May, 19, 1938, the respondent reinstated four additional employees .16 To summarize: From March up to and including the week of May 19 ,1938, inclusive, the respondent increased its staff of female employees by 23, of whom 18 were hired or reinstated, as the case may be, following the week in which Hensel and Summers applied for reinstatement. None. 'of the employees thus hired or reinstated were members of Local 216, except Cole, Headline, and Walderon. These three women joined Local 216 in January 1938, after their lay-offs. They do not, appear to have been active in any way in that organization. -Cole subse-, quently joined the Club. Stearns, Smith, and Tousignant were mem-. bers of Local 216 in December 1937, but withdrew from membership in December 1937, January, and March, 1938, respectively. , All.sub- sequently joined the Club. , ' It is clear, therefore, that the respondent materially increased its force after Hensel and Summers applied for reinstatement. Of the 12 new employees who were hired during the 1938 egg season, 7 worked principally in the egg candling department whereHensel and Summers had worked during the 1937 season. Of the seven new employees,, three were hired before Hensel and Summers applied for reinstatement and four thereafter. , 9 Catherine Newkirk We regard as a new employee a person whose name'does not appear on a pay roll in December 1937, when the respondent's operations were at the yearly peak and when the respondent was most in need of employees Had they worked for the respondent earlier in the 1937 season ,, they were laid off before Hensel and - Summers, or Christensen, whose case will be discussed below, and presumably had less seniority or were less desirable as employees to the respondent than Hensel , Summers, and Chris- tensen 10 Juanita Cunningham , Elaine Gravelin , and Della La Pierre. 11 Esther Smith ii Ione Aube, Alvma David, Irma Davis, Mary Gale, and Lucille Wolfe , . , 13 Bertha Pommeranz, Josephine Smith, and Catherine Stearns It Florence Cole, Marie Junker, Elizabeth Miller, and Gertrude Walderon. ii Ann Duchene and Margaret Headline 16 Hattie Johnson, Catherine Magadanz , Alice Tousignant, and Dorothy Weed 323429-42-vol. 26-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent did not contend that Hensel and Summers were not readily available, did not need work," did not cooperate with their. fellow, employees, or that they had an attitude toward their super- visors which was unsatisfactory to the respondent. The only remain- ing factors listed by the respondent as bearing upon the order in which itL recalled the employees to work in the spring of 1938 are experience and seniority. Hensel had worked in the egg candling and poultry picking departments during the three previous sesaons, and her wages had been raised in the last season . Summers had worked in the same departments for several months each during the 1937 season. Thus, both were. experienced in two departments. Moreover, in Woods' opinion, both were good workers. . The egg candling department normally employs about 12 women. According to her testimony Hensel was the fifth in seniority in .that department and Summers claimed that she was about the sixth in seniority in that department. The respondent did not controvert their claims regarding their seniority and we accept them as substan- tially correct. Six women were employed in the egg candling depart- ment during the week in which Hensel and Summers applied for reinstatement. Even assuming that the respondent did not observe seniority strictly, and therefore making an allowance for the reinstate- ment of certain employees in 1938 prior to the date of Hensel and Sum- mers' application for reinstatement, the respondent did not defend its reinstatement of three egg candlers 18 after Hensel and Summers applied, for reinstatement on the ground that the three egg candlers so reinstated had,more seniority than Hensel and Summers. Apart from the question of their seniority, in view of Hensel and Summers' experience and particularly since the respondent had failed. to reinstate any members of Local 216, except three whose union activ- ity, appears to have been negligible, it was incumbent upon the re- spondent, we believe, to make an adequate explanation for the hiring of seven new egg candlers in the spring of 1938.19 The respondent did not account for the hiring of four new and inexperienced egg candlers' after Hensel and Summers applied for reinstatement. Later in 1938 season, after the week of May 19, the respondent hired seven women, who admittedly had no experience in that opera- tion, to work in the poultry picking department.20 This was the other department in which Hensel and Summers had worked in the previous season. 17 Summers' husband was employed by the W P. A ie See footnote 13, supra. iY Cf Montgomery Ward & Co. v. Nat,enat Labor Relations Board, footnote 8, supra, where, in an analogous situation, the Court stated, "This inference of discriminatory discharge leaves it up to the employer to give an adequate 'explanation of the discharge ' even though the burden of proof remains on the Board, since it is obvious that the reason of the discharge 'lay exclusively within its knowledge ' National Labor Relations Board v. Remington Rand, Inc , 94 F. (2d) 862, 871, 872." 20 Elsie Ahlman, Jessie Crandall, Mrs. John Hunt, Vernes Kruze, Madeline Waibrock, Hazel Wheeler, and Mary Frances Wheeler. WILSON & CO., ' INC: 311 The reinstatement of old employees without an explanation of their qualifications and seniority as contrasted with Hensel and Sum- mers, the hiring of the new and inexperienced employees, and the refusal to reinstate Hensel and Summers in 1938 were contrary.to the respondent's professed policy of reinstating employees with refer- ence to, their seniority and of hiring experienced employees who were capable of working in more than one department of the plant. It is therefore apparent that the respondent was inconsistent in applying its professed rules 'respecting seniority and experience in refusing to reinstate Hensel and Summers in the spring and summer' of 1938. The respondent's sole explanation for the employment of other women and its refusal to reinstate Hensel and Summers in the spring of 1938 is Clark's statement, "There have been some put on that I thought, were better fitted for the job and that could do the work I wanted." He did not vouchsafe the reasons, for his opinion, did, not specify which persons he regarded as superior, and did not contend that they were all superior. He did not claim that Hensel and Sum-' mers were incompetent or unsatisfactory employees. In circum- stances requiring an adequate explanation for the refusal to reinstate Hensel and Summers in the spring of 1938, the respondent contented itself with making a general claim that some of the employees thus hired were superior. The vague and indefinite character of the respondent's explanation for its refusal to reinstate Hensel and Summers prior to July 1938 is in sharp contrast to the explicit character of the explanation for its refusal to reinstate them in a period extending from July 1938 to December 1939. About July 1, 1938, Woods succeeded Clark as the general superintendent of the plant. The former stated that shortly thereafter several employees asked him if he intended to recall any members of Local 216, notifying him of their unwillingness to 'work with the members of Local 216 and warning him that if he reinstated them there would be a'strike. Woods explained that he' had refused to reinstate Hensel and Summers for'the following reason: They [the employees who joined Local 216] organized a union down here that fall [1937] . . . they used such coercion,, such threats, tried to intimidate the other employees, and used, such abuse that there was a personal feeling against these people, so that in order to keep peace in the plant and to keep the other folks from going out on strike, because they refused to work with them, that I didn't rehire them. . . . My, reason for not rehiring them back . . . was due` to the abuse, the threats and intimidation that, they put on the people who didn't believe as they believed. There was a per- sonal feeling down in the plant that the other people refused to 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Work with them and in order to keep peace in the plant I didn't dare hire them back until there was a different feeling towards them.21 The record does not support Woods' contention that the members of Local 216 engaged in such misconduct as to warrant his refusal to reinstate them'." We need not decide whether the respondent was seriously concerned about 'the strike threats of several Club members.22 Even though induced by the attitude of the Club, such discrimination was unlawful.23 It is plain that the respondent refused to reinstate Hensel and Summers because of their union membership and activity. Upon the basis of the'foregoing facts, we find that the respondent, by refusing to reinstate LaVerne Hensel and Effie Summers on and after March 31, 1938, discriminated against them in regard to their tenure of employment, thereby discouraging membership in Local 216. We further find that 'the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Neither Hensel nor Summers has had any earnings since her lay-off . 14 2. Christensen - Alfred Christensen was hired by the respondent in 1933 as a common laborer -and was subsequently transferred to the picking room where he worked,under Woods. Except for the 9 months in 1934 and 1935 when the plant was closed because of the strike, and the seasonal lay-offs, he worked continuously for the respondent until he was laid off, on December 22, 1937. Christensen, joined Local 216 on December 3, 1937, and wore his union button at work. About December 6, 1937, when Woods learned that Christensen had joined Local 216, he asked Christensen ' 22 At the beginning of the 1939 season, Woods asked several employees what would occur if he reinstated the employees who had been members of Local 216. The persons whom Woods questioned stated that the employees would object strenuously. Nevertheless Woods recalled Margaret Kolterman about June 1939 According to Woods, there was "a feeling of tenseness" among the employees for several days after Kolter- man was reinstated. As soon as Woods concluded that the "feeling" induced by Kolterman 's reinstatement had quieted down, he recalled Thelma Pemrick about July 1939 and Ann St. Martin in the fall of 1939. Woods' explanation for reinstating Kolterman, Pemrick and St. Martin before the other members of Local 216 was that these three were less "aggressive" than the others and that it was better to reinstate the less aggressive persons first. 22 It should be noted in this respect that we have already found that the respondent dominated the forma- tion and administration of the Club It is doubtful, under the circumstances, that the respondent would have feared reprisals from the organization that it had created and controlled. .22 National Labor Relations Board v. Star Publishing-Co , 97 F. (2d) 465 (C. C. A. 9), enf'g Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82,4 N. L. R. B 498, Matter of Trawler Maris Stella, Inc and American Communications Association, 12 N. L. R. B 415. 24 During rebuttal, counsel for the Board called several witnesses to show that there had been tampering with Hensel as a Board witness following her testimony in chief for the Board. The evidence introduced by the Board showed: (1) that after Hensel testified, complaints were made to officials of the City of Fari- bault by officials of the local Chamber of Commerce with respect to the retention of Hensel's husband, Fred Hensel, as a city policeman, (2) that subsequently these officials of the City of Faribault secured Hensel's resignation from the police force. The evidence introduced by the respondent and the Club showed that neither the respondent nor the Club Taal any connection with the procuring of Fred Hensel's resignation. ,WILSON & CO., INC. 313 whether he had and Christensen answered affirmatively. About this same time in December 1937 Superintendent Erickson encountered Christensen in a Faribault beer tavern and remarked, "Al, I can't figure out that you of all people should join a union. 'I thought you always had it pretty nice around this plant." Christensen' was a mem- ber of the union committee which conferred with the respondent in December 1937. It is clear that his union membership was known to his superiors at the plant before his lay-off. When Christensen was laid off in December 1937, the respondent did not state when he would be recalled. The respondent's practice in previous years had been to recall him in the spring. In March4938 he applied for reinstatement, asking why the respondent had not previously recalled him. Wilson told Christensen that the respondent had no work for him at that time, but that he would be recalled when his services were required. Christensen did not thereafter apply for reinstatement nor was he recalled to work. During the 1938 season the respondent hired three male employees in August 25 and one in October.26 Duchene, had previously been employed by the respondent as a common laborer for a short time in the 1937 season and his work did not require experience. Fliegel and, Schultz had been employed by the respondent during the 1937 season in the • poultry packing and poultry picking departments, respectively, but neither was employed by the respondent in Decem- ber 1937 when the plant operations were at the yearly peak and when presumably the respondent was most in need of employees. Donald Hoban, who had no previous experience with the respondent, was first hired in August 1938 as a poultry packer. It is plain that Christensen had greater seniority and experience than any of the above-named employees. Nevertheless the respondent hired these four men and refused to reinstate Christensen who had been in its employ contin- uously since 1935. Clark did not contend that these employees were superior to Christensen, and Woods did not claim that Christensen was an unsatisfactory employee. As in the case of Hensel and Summers, described above, Woods gave the fear of economic reprisal on the part of the Club members as a reason for not reinstating Christensen. It is plain that the respondent refused to reinstate Christensen because of his union membership. , • 1 Upon the basis of the foregoing facts, we find that the respondent, by refusing to reinstate Alfred Christensen in August 1938 and at all times thereafter, discriminated in regard to his tenure of employment, thereby discouraging membership in Local 216. We further find that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - . 2& Hubert Duchene, Joseph Fliegel, and Donald Hoban. 35 Edward Schultz. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Marie Chavie We shall, not consider the respondent's allegedly discriminatory refusal to reinstate Marie Chavie in this case. We shall do so 'in a companion case decided this day and involving the same issues with respect to her.27 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III B and C 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. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. . ' We have found that the respondent dominated and interfered with the formation and administration of the Club and contributed support to it. By reason of the respondent's domination, interfer- ence, and support, the Club cannot serve as the freely chosen repre- sentative of the respondent's employees. We will therefore order the respondent to withdraw all recognition from the Club as a collective bargaining representative of its employees and to disestablish it as such representative. We have also found that the respondent, in violation of the' Act, refused to consider for reinstatement Christensen, Hensel, and Summers. We shall order the respondent to offer' them reinstate- ment, without loss of their seniority and other rights and privileges, in the manner more fully described' below. Hensel and Summers had been employed in both the egg and poultry picking departments during the 1937 season. Seasonal operations began in the egg department in March 1938. During the week, end- ing March 31, 1938, and after Hensel and. Summers had applied for reinstatement, new female employees were hired as egg candlers. Had the respondent not engaged in the unfair labor practices, it is clear that Hensel and Summers would have been reinstated, before these new egg candlers were hired. We shall order the respondent to offer reinstatement to Hensel and Summers, dismissing if neces- sary to provide them with employment all new female employees 27 Matter of Wilson & Co , Inc. and United Cannery, Packing, Agricultural & Allied Workers of Arnerica, Local 116, etc. 26 N. L. R. B. 273. WILSON & . CO., ^ INC. 315 hired in the egg candling department during the week ending March 31, 1938, the week in which the respondent engaged in the unfair labor practices by refusing to consider Hensel and Summers, for reinstatement, and any new female employees hired thereafter in that department and in the poultry picking department. Christensen had been employed in the poultry department: Seasonal operations in that department began in-July 1938. As stated above; in August 1938 the respondent hired three new male employees. Had the respondent not engaged in the unfair labor practices, it is clear that Christensen would have been reinstated before any new male employees were hired in the poultry department. We shall therefore order the respondent to offer him reinstatement, dismissing if necessary to provide him with employment all new male employees hired in the poultry department in August 1938, the month in which the respondent engaged in the unfair labor practices by refusing to consider Christensen for reinstatement, and thereafter. We shall order the respondent to make Hensel and Summers whole for any loss of pay which they may have suffered by reason of the respondent's discrimination against them by payment to 'each of them of a sum of money equal to the amount that he would have ' earned from the week ending March 31, 1938, to the date of the offer of rein- statement, less their net earnings 28 during said period. We shall also order the respondent to make Christensen whole for any loss of pay which he may have suffered by reason of the respondent's discrimina- tion against him by payment to him of a sum of money equal to that which he would have earned from that date in August,1938, upon which the respondent hired the first new male employee to work in the poultry department, to the date of the offer of reinstatement, less his net earnings during said period. We will grant the respondent's, motion to dismiss the complaint as to Marie Chavie, without prejudice. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Cannery, Agricultural, Packing and Allied Workers of America, Local 216, affiliated with the Committee for Industrial 28 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board ,, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for her unlawful lay-off and the consequent necessity of her seeking employ- ment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 8690, 8 N L R B 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects are not considered as earn- ings, but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Organization, and the Employes' Club are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis' tration of the Employes' Club and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the tenure of employment of Alfred Christensen, LaVerne Hensel, and Effie Summers, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged- in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 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, Wilson & Co., Inc., Faribault, Minnesota, and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) In any manner dominating or interfering with the administration of the Employes' Club, or with the formation and administration of any other labor organization of its employees, and from contributing support to the Employes' Club or any other labor organization of its employees; (b) Recognizing the Employes' Club as the representative of any of its employees for the purpose of dealing with the respondent con- cerning grievances, labor disputes, rates of pay, wages, hours of employment, or conditions of work; (c) Discouraging membership in United Cannery, Agricultural, Packing and Allied Workers of America, Local 216, or any other labor organization of its employees, by refusing to reinstate any of its em- ployees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employ- ment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to, bargain collectively through representatives of their own choosing, or to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. WILSON & CO., INC. 317 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Withdraw all recognition from the Employes' Club as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish the Employes' Club as such representative; (b) Offer to Alfred Christensen, LaVerne Hensel, and Effie Summers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole LaVerne Hensel and Effie Summers for any loss of pay which may have suffered by reason of the respondent's dis- crimination against them by payment to each of them of a sum of money equal to that which she would normally have earned as wages from the week ending March 31, 1938, to the date of the offer of reinstatement, less her net earnings during said period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work per- formed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects; (d) Make whole Alfred Christensen for any loss of pay which he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the respond- ent's discrimination against him in August 1938 to the date of the offer of reinstatement, less his net earnings during said period; deduct- ing, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Post immediately in conspicuous' places at its produce plant at Faribault, Minnesota, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirma- tive action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's employees are free to become or remain members of United Cannery, Agricultural, Packing and 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Allied Workers of America, Local 216, and that the respondent will not discriminate against them because of membership or activity in that organization; (f) Notify the Regional Director for the Eighteenth Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS ORDERED that the complaint be, and it hereby is, dis- missed as to Marie Chavie , without prejudice. MR. WILLIAM L. LEISERSON took no part in the consideration of the above Decision and Order.