Neuhoff Packing Co.

In the Matter of NEUHOFF PACKING COMPANY, SWIFT & COMPANY and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 405 , Case No. C-1091-Decided February 17, 1941 Jurisdiction : meat packing industry. Unfair Labor Practices Company-Dominated Union: formation of successor organization patterned after predecessor on dissolution of latter-management participation in formation of : suggesting formation of successor organization at meeting of predecessor- contribution of support to : permitting inside union to hold election on com- pany premises ; granting recognition to inside union despite a prior outstand- ing request by outside union for recognition. Discrimination: dismissal of allegations. Collective Bargaining: request for, by union obtaining majority votes in consent election-employer's failure to bargain in good faith: refusal to make counter- proposals or to sign written contract concerning matters on which agreement had been reached. Remedial Orders : respondent ordered to, withdraw recognition from company- dominated union ; as' to dominated organization found defunct, no disestablish- ment order entered-respondent ordered to bargain collectively and if re- quested, to embody any understanding in written contract-persons who had engaged in strike caused by employer's unfair labor practices ordered rein- stated despite allegation that they had subsequently obtained regularly and substantially equivalent employment. Unit Appropriate for Collective Bargaining : all the respondents' employees at their Nashville, Tennessee, plant, except foremen, assistant foremen, office em- ployees, clerical employees, plant clerks, scalers, salesmen, managerial employees, and executives. Mr. Maurice J. Nicoson, Mr. Marion A. Prowell, Mr. Alexander E. Wilson, Jr., and Mr. Lester Asher, for the Board. Mr., William N. Strack and Mr. J. Wesley T. Blades, of Chicago, Ill., for the respondents. Mr. Herbert G. B. King, of Chattanooga, Tenn., and Mr. Joseph A. Padway and Mr. Henry Kaiser, of Washington, D. C., for the Amalgamated. Mr. Richard H. Meigs, of counsel to the Board. 29 N. L R. B., No. 121 746 NEUHOFF PACKING COMPANY DECISION AND ORDER 747 STATEMENT OF THE CASE Charges and amended charges having been duly filed by Amalgam- ated Meat Cutters and Butcher Workmen of North America, Local 405, herein called the Amalgamated, the National Labor, Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint, dated September 1, 1938, against Neuhoff Packing Company, Nashville, Tennessee, herein called Neuhoff. On September 24, 1938, the Board, by the Regional Director, issued its amended complaint againt Neuhoff, and Swift and Company, Chicago, Illinois, herein called Swift and herein, together with Neuhoff, called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and amended complaint, accompanied by notices of hearing, were duly served upon Neuhoff and the Amalgamated, and a copy of the amended complaint, accompanied by notice of hearing, was duly served upon Swift. In respect to the unfair labor practices, the amended complaint alleged, in substance, that the respondents (1) fostered, aided, domi- nated, and supported two labor organizations, respectively known as Employes Representation Plan, Neuhoff Packing Company, 1933, herein called the Plan, and Neuhoff Employes Independent Association herein called the Independent; (2) discriminated in regard to the hire and tenure of employment of 18 named employees,' thereby dis- couraging membership in a labor organization; (3) refused to bargain collectively with the Amalgamated as the exclusive collective bar- gaining representative of the respondents' employees in an appro- priate unit consisting of all the employees at the respondents' Nash- ville, Tennessee, plant, ekcept foremen, assistant foremen, office em- ployees, clerical employees, plant clerks, scalers, salesmen, managerial employees, and executives; and (4) by the foregoing and other acts, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 17 and October 3, 1938, respectively, Neuhoff filed its answer to the complaint and amended complaint, and on October 3, IM. E. Bowers , Martin Evitts , Albert Lee , Henry Craig, Lawrence Hobson , George Vick, C R. Collins , L. B. Davidson, George Simmons , William ( W. M ) Stagner, J. B. Frogge, Alvin Boyd , F. J. Green, Sam Pardue, A. C Allen, R. L Webster , J. II Fitzgerald, and Fred Basham 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1938, Swift filed its answer to the amended complaint. In their answers, the respondents, in substance, denied that they had engaged in the alleged unfair labor practices. In addition, Swift denied, in substance, that it operates the plant at which the alleged unfair labor practices are alleged to have occurred. Pursuant to notice, a hearing was held on October 3, 4, 5, 6, 7, 8, 10, and 11, 1938, at Nashville, Tennessee, before Waldo C. Holden, the Trial Examiner duly designated by the Board. The Board, the re- spondents, and the Amalgamated were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues Was afforded all parties. At the outset of the hearing, the Trial Examiner denied Neuhoff's motions to make the third amended charge and the amended complaint more specific, definite, and certain. The ruling is hereby affirmed. The Trial Examiner made no ruling with respect to similar motions by Neuhoff relating to the charge, amended charge, second amended charge, and complaint. The mo- tions are hereby denied. At the conclusion of the Board's case, the Trial Examiner granted a motion by counsel for the Board to con- form the pleadings to the proof. The Trial Examiner reserved ruling on a motion of counsel for the Board to dismiss the amended com- plaint without prejudice as to six persons named therein as having been discriminated against 2 Said motion was subsequently granted by the Trial Examiner in his Intermediate Report. In his Inter- mediate Report, also, the Trial Examiner denied a motion by the re- spondents to dismiss the amended complaint. During the course of the hearing the Trial Examiner made numerous 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.3 On December 7, 1938, the Trial Examiner issued his Intermediate Report in which he found that the respondents had engaged 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 and rec- ommended that the respondents cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner further found that'the respondents did not dis- 2M. E . Bowers, Martin Evitts, Albert Lee, Henry Craig, Lawrence Hobson , and George Vick. $ At the hearing the Trial Examiner excluded evidence « hich the respondents sought to introduce to show illegal strike activities on the part of certain of the respondents' em- ployees alleged in the amended complaint to have been discriminated against . The Trial Examiner 's ruling in this respect was erroneous However, pursuant to the Board 's order, a further hearing was held on February 26, 1940 , at which the respondents were afforded full opportunity to present evidence of the nature of that which was excluded by the Trial Examiner at the original hearing. The respondents have, therefore , not been prejudiced by the Trial Examiner's ruling. NEUHOFF PACKING COMPANY 749 criminate in regard to the hire and tenure of employment of Fred Bashain and recommended that the complaint, in so far as it relates to Basham, be dismissed. On December 30, 1938, Neuhoff filed a petition to reopen this pro- ceeding for the taking of further testimony. On January 9, 1939, the respondents filed their separate exceptions to the Intermediate Report. On November 2, 1939, the Amalgamated filed its answer to Neuhoff's petition to reopen. On November 14 and December 29, 1939, the Board issued and duly served upon the parties an order and an amended order, respectively, ordering the record reopened and a further hearing held upon the issues made out by Neuhoff's petition to reopen and the Amalgamated's answer thereto, ordering that the parties be permitted to introduce evidence with respect to alleged illegal activities of certain of the respondents' employees during a strike at the respondents' plant,4 and referring the case to the Regional Director for the purposes of such further hearing. Pursuant to notice, a further hearing was held on February 26, 1940, at Nashville, Tennessee, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the respondents, and the Amalgamated were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues for the deter- mination of which the further hearing was held was afforded all parties. During the course of the hearing the Trial Examiner made, several rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error-, were committed. The rulings are hereby affirmed. On May 28, 1940, the Board ordered th tt no Intermediate Report be issued by Trial Examiner Maguire and, pursuant to Article II, Sec- tion 37, of National Labor Relations Board Rules and Regulations- Series 2, as amended, ordered that Proposed Findings of Fact, Pro- posed Conclusions of Law, and Proposed Order be issued; that the parties should have the right within twenty (20) days from the date * See footnote 3, supra BAt the hearing of February 26,-1940 , the Trial Examiner denied a petition by Neuhoff for a subpoena duces tecum sought by Neuhoff to show certain facts with reference to the Amalgamated and its status as a labor organization. The Trial Examiner 's ruling in this respect was erroneous However, pursuant to the Board 's order, a further hearing was held on December 5, 1940, at which the respondents were afforded full opportunity to pre- sent evidence of the nature of that which was excluded by the ruling of the Trial Examiner at the hearing of February 26, 1940 , denying the petition for a subpoena dotes tecum Prior to the December 5, 1940 , hearing , the respondents were gianted the subpoena daces tecum sought for and said subpoena was complied with at said hearing . The respondents have, therefore , not been prejudiced by the ruling of the Trial Examiner at the hearing of February 26, 1340 750 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD of said Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order to file exceptions and request oral argument before the Board; and that the parties should have the right within thirty (30) days from the date of the Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order to file briefs with the Board. On August 22, 1940, the Board issued and duly served upon the par- ties copies of its Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. On September 20, 1940, the respondents filed exceptions to the Proposed Findings of Fact, Proposed Conclu- sions of Law, and Proposed Order. On September 28, 1940, the Amal- gamated lodged with the Board exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order and a request for extension of time within which to file same. The Amal' gamated's request is hereby granted. On September 30, 1940, the respondents filed briefs in support of their exceptions to the Proposed Findings of Fact, Proposed Con- clusions of Law, and- Proposed Order. On October 3, 1940, pur- suant to request therefor and notice thereof to all parties, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. Counsel for the respondents and the Amalgam- ated appeared and participated therein. On October 24, 1940, the Board issued and duly served upon the parties an order reopening the record, directing that a further hear- ing be held upon the issues made out by Neuhoff's petition to reopen of December 30, 1938, and the Amalgamated's answer thereto, and referring the case to the Regional Director for the purposes of such further hearing. Pursuant to notice, a further hearing was held on December 5, 1940, at-Chicago, Illinois, before Martin Raphael, the Trial Exam- iner duly designated by the Board. The Board and the respondents were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues for the determination of which the further hearing was held was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on 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. On December 17, 1940, the Amalgamated filed further exceptions with the Board, in substance reiterating its exceptions filed on September 28, 1940. The Board has considered the exceptions filed by the respondents and the Amalgamated to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order and, save as they are NEUHOFF PACKING COMPANY 751 consistent with the findings of fact, conclusions of law, and Order, as set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Swift and Company is an Illinois corporation, having its executive office at Chicago, Illinois. It is engaged chiefly in the business of purchasing and slaughtering livestock and marketing the products and byproducts thereof. In addition, it purchases, processes, and sells dairy, poultry, and other food products. Swift ranks as one of the world's largest producers of meats, produce, and other foods. Its operating facilities in the United States, Canada, and Cuba include approximately 45 packing plants, 126 produce plants, 18 fertilizer works, 24 cottonseed-oil mills and refineries, and over 350 distributing agencies. Swift also maintains sales companies in England and various European countries. These numerous prop- erties are owned by Swift either directly or through its subsidiaries.6 Neuhoff Packing Company, a wholly owned subsidiary- of Swift, is a Tennessee corporation, having its principal office and place of business at Nashville, Tennessee. In general, it conducts a business similar to that of Swift. This proceeding is concerned only with the Neuhoff plant located at Nashville, Tennessee, herein called the plant. During its fiscal year ending November 1, 1937,' Neuhoff purchased raw materigIs amounting in value to, approximately $8,102 934, ap- proximately 15 per cent of which ,it received from outside the State of Tennessee. Neuhoff's total sales during the same period amounted in value to approximately $9,185,423, approximately 59 per cent of which represents sales of products sold and shipped to'points outside the State of Tennessee. Swift, though not a direct employer of labor at the plant, is con- nected with certain of its operations, notable among which are the following : Application for inspection at the plant by the United States Department of Agriculture was made in the name of Nenhoff and 6 Swift has at least 40 wholly owned subsidiaries in the United States, as well as 6 wholly owned foreign subsidiaries . In addition , it has large controlling interests in a number of important companies Among them is Libby , McNeill, & Libby , which itself has numerous wholly owned domestic and foreign subsidiaries and controlling interests in several foreign companies. - 'At the hearing, E. C. Tompkins, president and general manager of Neuboff , testified that the figures contained in this paragraph are approximately the same as the correspond- ing figures for the following fiscal year. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swift jointly; Swift appears as consignor on many shipments from the plant; the vice president and the secretary of Neuhoff, who are also two of its five directors, are, respectively also the vice president and secretary of Swift; E. C. Tompkins, the president and general manager of Neuhoff, was previously employed by Swift; Tompkins frequently consults with and is advised by officials and members of the legal de- partment of Swift concerning matters relating to Neuhoff's labor policies; Swift drafted and furnished to Neuhoff the following docu- ments, discussed below in detail: (1) Employes Representation Plan, Neuhoff Packing Company, 1933, (2) an announcement to Neuhoff .employees of the discontinuance of said Plan, and (3) a purported summary of the Act; agents of Swift participated in the negotiations discussed below between Neuhoff and the Amalgamated; following the strike discussed below, Fred J. Green, a shipping employee in the plant, sent a letter to Swift, applying for reinstatement to his job, in reply to which Swift reviewed certain circumstances to explain Green's failure to obtain reinstatement and concluded, "We regret that we cannot offer you anything more encouraging at the moment . .."; and employees of Neuhoff participate, in an organization known as Employees Benefit Association, which operates pursuant to the pro- visions of 'a document known as Rules and,. Regulations, Swift R Company Employees Benefit Association, and, as a prerequisite for membership, requires employment by Swift or one of its subsidiaries. We-have been asked to dismiss the amended complaint as to Swift on the grounds that Swift has no employees at the plant and has no interest in the affairs of Neuhoff other than by reason of its ownership and control of the entire capital stock thereof and is, therefore, not an employer within the meaning of the Act. We are, however, im- pressed with the other factors in Swift's relationship with this plant as outlined above. On the basis of all the evidence it is apparent that Swift exercises substantial control over the labor relations policies of Neuhoff. Such control coupled with stock ownership fixes upon a parent corporation responsibility for the labor relations policies of a subsidiary. We have so held in previous decisions involving anal- ogous situations." We find, therefore, that the relationship of Swift to Neuhoff and to the operation of the plant is such as to constitute Swift an employer, within the meaning of Section 2 (2) of the Act, for the purpose of this proceeding. 8 Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co., and Tietjen and Lang Dry Dock Co. and Industrial Union of Marine and Shipbuilding Workers of Amer- ica, 5 N. L R. B 20, Matter of Swift and Company, Iowa Packing Company, and Newton Packing Company, corporations and Local 630, Amalgamated Meat Cutters and 'Butcher Workmen of North America and Detroit and Wayne County Federation of Labor; 10 N L R B. 901. NEUHOFF PACKING COMPANY , - 753 , H. THE ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the respondents, exclusive of those engaged in office, clerical, supervisory, or executive capacities. The respondents contend that the Amalgam- ated is no longer in existence and that it was dissolved prior to September 23, 1938, the date on which it filed its third amended charge herein. The respondents' contentions in this respect are not supported by the evidence. The Amalgamated was chartered on July 2, 1936, reorganized on May 5, 1937, and in existence continuously thereafter. On June 27, 1937, the members of the Amalgamated em- ployed in the respondents' plant went on strike. From that time until April 15, 1938, the Amalgamated's parent international organization "carried" the Amalgamated members without the payment of dues by them. On April 15, 1938, the Amalgamated was reinstated on a dues-paying basis by its parent organization and has been continuously in existence and in good standing since that date. We find, therefore, that at all times material herein the Amalgamated was and that it is an"existing labor organization. Employes Representation Plan, Neuhoff Packing Company, 1933, was, prior to April 21, 1937, an unaffiliated labor organization admit- ting to its membership employees of the respondents "with the excep- tion of all steady-time employees and of such hourly or weekly paid .employees as have the authority to' employ, discharge, or discipline other employees." Neuhoff Employes Independent Association is an unaffiliated labor organization admitting to its membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. Domination of, interference with, and support of labor organizations 1. The Plan In 1933 a document known as Employes Representation Plan, Neuhoff Packing Company, 1933, was drafted and furnished to Neuhoff by Swift, pursuant to Neuhoff's request. Later that year the Plan was presented to the employees and put into effect in the-plant by E. C. Tompkins, the president and general manager of Neuhoff. Except for variance in name and in one article, the Plan was identical in all material respects with similar plans then in effect at other Swift 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plants and, according to Tompkins, "probably was discussed with some of the officials of Swift and Company." Pursuant to the Plan, an "Assembly" was established, composed of equal numbers of employee representatives elected by the employees and management representatives appointed by Neuhoff, whose duties included , inter alia, consideration of matters relating to changes in hours, ,wages, and other working conditions . Participation in the Plan as an employee representative was limited to persons 21 years of age or older who were American citizens or had their initial natural- ization papers, and who had been employed in the plant for 1 year and in their "Voting Division" for 4 months immediately preceding the election . Representatives were initially selected pursuant to the following procedure prescribed by the Plan: In order to provide for the first elections of Representatives, the President of the Company shall appoint three Representatives of the Management, and the Plant Superintendent shall appoint three Representatives of the Employes to serve on a temporary Joint Committee for the above purpose. The Plan specified that the Assembly should have no executive or administrative authority and any matter requiring action by the management, after having obtained a two-thirds vote by the Assembly, was to be filed with the managemefit. At such stage either Neuhoff's board of directors or the employee representatives as a group could request the Assembly to reopen the matter for further consideration. The Plan further provided : When, after such reconsideration in the Assembly, it is deemed impossible to arrive at a collective agreement by joint conference on any issue, the maiiageinent and the employees are at liberty to take such action outside 'of the Plan as they may think desir- able. But such action will- not of itself terminate the general use of the Plan, which shall continue in full force so long as it is desired by Employer and Employees. Voting power of management and employee representatives in the Assembly was required to be equal at all times. A majority of both classes of representatives was necessary for a quorum., No provision was made for general meetings of the employees. Under the Plan, an aggrieved employee could not present his grievance to his employee representative without first attempting to settle the matter with his foreman or other plant authority. No dues were paid under the Plan, all expenses being borne by the respondents. Pursuant to the Plan, Neuhoff, "at its expense," pro- vided meeting places for the Assembly and its committees, and, in NELTHOFF PACKING COMPANY 755 addition, paid members of the Assembly and "other employees attend- ing any meeting at the request of the Assembly or of any of its Com- mittees or Subcommittees" at their regular rates of pay for the time thus spent. Neuhoff also provided certain employees in the plant with free copies of the Plan in booklet form. 2. The Independent . On April 21, 1937, a special meeting of the Assembly was called at the request of E. C. Tompkins, the president and general manager of Neuhoff. The meeting was held in the plant during working hours and was attended by Tompkins and J. E. Covey, superintendent of Neuhoff. Members of the Assembly were paid for their attendance in the usual manner. Tompkins announced to the Assembly that since the Supreme Court of the United States had upheld the constitution- ality of the Act, no further meetings under the Plan could be held, but that the employees "ought to work out some plan among them- selves." Tompking then read to the Assembly two documents which were subsequently posted in the plant. One of these, which purports to be a summary of the Act, had been prepared by Swift's legal de- partment and mailed to Tompkins "as a suggestive method of dis- continuing the representative plan which Chicago knew we had adopted in our plants." The other, which, according to Tompkins' testimony, "may have been, in part, based on information furnished by Swift," read substantially as follows : On Monday, April 12, the United States Supreme Court made public its decisions on several cases under the National Labor Relations Act (Wagner Bill) and held the Act valid. It is Neuhoff Packing Company's intention to comply with the law as the Court has now construed if and it is not possible to continue with the present Representation Plan. Whether you wish to establish an employes representation plan for collective bargaining, that will comply with the terms of the law, is a matter for you to decide. If you wish to adopt a plan for negotiation with the company on wages, hours, and working conditions, it should not include management participation in the election of employe representatives, nor company compensation to employe representatives for-time spent away from their work, except when conferring with the management, as the latter is not prohibited by law. It. shall be the policy of the company to continue to_ consult with its employees on all matters of mutual interest-and honest effort to find the proper solution to problems. Finally, the company earnestly desires that the understanding growing out 413002-42-vo1 20--49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of our relationship during these past many years will be the basis upon which the continued good relations between employes and the company will be maintained. Following the reading of these documents, Tompkins and Covey left the meeting still in session.9 There is no evidence as to what further discussion, if any, then took place. Shortly after the Assembly meeting of April 21, 1937, C. P. Collins, an employee who had been a representative under the Plan, conferred with Covey concerning certain grievances which had not been acted upon prior to the announcement of the Plan's abandonment. Accord- ing to Collins' testimony, Covey asked Collins whether he had yet joined the Amalgamated, to which question Collins replied that he had not but that he was considering the matter; Collins testified that Covey then stated that "it was going to be up to the employees" to form some kind of bargaining agency; that independent associations in other plants had been successful; and that the company did not like to see an outside organization come in and take money from the employees and cause disturbances. Collins further testified that Covey declared himself in favor of an inside union and remarked, "You fellows, as employee representatives, have developed more or less leadership among your constituents." Covey, at the hearing, denied that he had discussed with Collins the formation of an inside labor organization, but admitted that he had "invited" Collins to "weigh the question well" with regard to his joining the Amalgam- ated. Since Collins' version of the aforesaid conversation is more consistent, with the respondents other activities in connection with the formation and administration of the Independent, we credit Collins' testimony. We find that the conversation occurred substantially as testified to by Collins. ,On a pay day shortly after the meeting of April 21, 1937, Frank Coakley, the head timekeeper and employment manager at the plant Plans, similar in all material respects to the Plan discussed above, were put into effect by Swift in other of its plants prior to 10 37. On April 20, 1937, special meetings of the Assemblies tinder these plans were held and announcements of the dissolution of the plans were read by the managers or superintendents of the plants in question In each case the announcement read and the circumstances surrounding its reading were almost identical with those involved in the dissolution of the Plan in the instant case See Matter of Swift & Company, a Corpoiatton and Amalgamated Association of Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Indu.e- trial Union No 500, 7 N L It B 269. enf'd as mod , Sieift .C Co. v. N. R L B , 106 F (2d) 87 (C C A 10) ; Matter of Swift & Company and United Automobile Workers of Arne, lea, Local No. 265, and United Pactinq [lease Worlers, L T Union No .425, Affiliate C T 0 7 N L R B. 287; Matter of Swift and Company, a corporation and Local No. 530, United I'acl,inq House 1Porl.ems Industrial Union, affiliated with the Comniitteefoi'Industrial organization, 11 N L R B 809, enf'd as mod. N L R B v. Swift &"Co, lOS F (2d) 988 (C C A 7) , Matter of Swift & Company and United Packing House Workers Local Indus- trial Union #814, 15 N L It B 992, enf d. N L R B v Swift d Co, 116 F (2d) 143 (C C A 8) 11 NEUHOFF PACKING COMPANY 757 and ex-secretary of the Plan, stationed himself inside the plant gate and distributed to the employees their time cards, as a step in the customary wage-payment procedure. On this occasion, Cpakley also gave various employees a copy of a pamphlet entitled "Effect of Wagner Labor Act upon Employers and Employees." This pamph- let, wholly misleading in character, was confined almost entirely to stating w hat the provisions of the Act, d.o not purport to do, without adequately or accurately listing the rights which the Act guarantees to employees. We have condemned the distribution of similar liter- ature by employers as violative of the Act.10 The respondents deny knowledge of and responsibility for Coakley's act in distributing the pamphlet. We find it difficult to believe that Coakley's action could, have escaped the respond'ent's' attention, since it was openly done in the plant in connection with his regular job. Moreover, Coakley's duties in the plant include the supervision of several timekeepers, and the hiring of new employees when regnested to do so by foremen. Under the circumstances, the doctrine of respondeat superior applies. and the respondents are responsible for Coakley's distribution of the pamphlet even though they may not, have otherwise participated therein." On April 24, 1937, a group of employees asked Superintendent Covey for permission to hold an organization meeting in the plant garage. Covey conferred with Tompkins concerning the request, and they agreed to make the garage available to the employees upon payment of a 57-cent rental charge. According to Tompkins, this sum was determined "on the basis of 19 per cent to cover actual investment, depreciation, taxes, insurance, and so forth, i.nd reduced to the time the garage was actually used." The rental cost was-paid by the group sponsoring the meeting and the meeting was held during the lunch period on the same clay. Several employees addressed the meeting,' stating, in effect, that a new labor organization was being formed for the purposes of collective bargaining and to "keep out any outside organization from coining in and telling Neuhoff how to run their business.'? By letter elated May 6, 1937. the Amalgamated advised Tompkins that it represented a majority of the employees in the plant and re- 10 See Matter of Mansfield Mills , Inc. and Textile Workers Organizing Committee, 3 N L. R B. 901; Matter of Nebel Knitting Company, Inc . and American. Federation of Hosiey Workers, 6 N. L. R B 284, enf'd as mod , N L R B. v. Nebel Knitting Co , Inc., 103 F. (2d) 594 (C. C. A. 4) ; Matter of The Perfection Steel Body Company (A. K A The Per- fection Burial Vault Company ) and Local 1151, International Association of Machinists, A. F. of L., 23 N L R. B 99. 11 See So%ift & Company v N. L. R B, 106 F (2d) 87 (C. C. A 10), enf'g Mattel of Swift & Company, a Corporation and Ainalganiated Meat Cutters and Butcher workmen of North Amer ica, Local 641, and United Packing House 'lFordeis Local IndZustiial Union' No 300, 7 N L R B 269. 758 DECISIONS OF'NATIONAL` LABOR ' RELATIONS BOARD quested a collective bargaining conference . So far as the record shows, no answer to this letter was ever received by the Amalgamated. Shortly prior to May 10, 1937, a group of employees called on Tompkins, introduced themselves as the organizing committee for the Independent, and requested recognition of the Independent as collec- tive bargaining agent for employees in the plant. Tompkins advised the committee that he could not recognize an organization that did'not exist in fact. Shortly after this occurrence, another group of em- ployees, also claiming to represent the Independent, conferred with Tompkins and Covey and requested permission to conduct , on com- pany premises, an election of representatives among employees in the plant. The respondents granted the requests, provided that the group would furnish its own ballot box, ballots , and, watchers, and that the voting would not be conducted during working hours . Covey vol- untarily undertook to define for the group standards of eligibility to vote in the election. Shortly thereafter, without objection by the .respondents, a printed notice was posted on the time-clock in the plant, announcing that on May 10 and 11, 1937, balloting would be conducted at the time clock for the purpose of electing representatives to the Independent . The election was held as planned. A ballot box, placed, with the permission of Covey and Tompkins, near the time clocks inside the entrance to the plant, was presided over by the organizers of the Independent, who solicited the other employees to vote. In addition, a watchman, detailed by Covey, stationed himself near the ballot box "to make sure that there was no disorder." The record does not show the results of the balloting. On May 22, 1937, a group of three employees, calling themselves the executive committee of the Independent , submitted to Tompkins and Covey a number of applications for membership in the Independent purporting to be signed by employees in the plant , reported to them the results of the election of May 10 and 11, 1937, and requested the respondents' exclusive recognition of the Independent as the collec- tive bargaining representative of all the employees in the plant. Covey then checked the membership applications and determined that approximately 230 of them, a majority of the hourly paid em- ployees in the plant at that time , were valid . Later that day Tomp- kins drafted a document addressed to "The Executive Committee of, the Neuhoff Employees Independent Association," stating : The management of the Neuhoff Packing Company accepts the Neuhoff Employees Independent Association as the bargaining agent of employees of the Neuhoff Packing Company who are members of this Association and further will not make a collec- tive bargaining agreement with any other group without taking the matter up with the Neuhoff Employees Independent Asso- NEUFIOFF PACKING COMPANY 759 ciation. The management also assures the Association that there will be no change in wages, hours or working conditions unless they are referred to the Neuhoff Employees Independent Asso- ciation. After but a limited discussion of the terms of this document, it was signed by Tompkins and Covey and presented to the representatives of the Independent. Concerning the last sentence of the document, Tompkins testified that it meant "That I would follow our previous policy that had been in effect before and since, that when there is any change in these connections, that we-notify our employees . . ." With the exception of an agreement for a consent election held thereafter and discussed in Section III B, below, there is no evidence of any further dealings between the respondents and the Independent. 3. Conclusions as to the Plan and the Independent It thus appears that the Plan, put into effect by the respondents in 1933, remained in effect at the plant until the respondents ordered its dissolution in April 1937. The respondents bore the expenses incidental to the administration of the Plan and paid members of the Assembly and other employees who attended Assembly meetings for their time thus spent. The respondents participated in the ad- ministration of the Plan by means of management representatives appointed by the management to the Assembly and through this and other devices provided for by the Plan kept the Plan subservient-to the will of the respondents and rendered the Plan incapable of serving the employees as their genuine representative for the purposes of collective bargaining. We find that the respondents dominated and interfered with the administration of the Plan and contributed finan- cial and other support thereto, and that the respondents 'thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act.1i The circumstances surrounding the formation of the independent indicate the respondents' resolution to continue their domination of their employees' organization. - The calling of the meeting of the Assembly by Tompkins on April 21, 1937, was the first step in the carrying out of this resolve. By unilateral action the respondents then dissolved the Plan, in language which invited the employees to form another employee-representation plan to be free of management -12 See Mutter of Swift and Company, Iowa Packing Company, and Newton Packing Com- pany, corporations and Local 630, Amalgamated Meat Cutters and Butcher Workmen of North Ameiica and Detioit and Wayne County Federation of Labor, 10 N. L. R. B. 991; Matter of A. E. Staley Manufacturing Company , a corporation and United Crain Processors, Local 21490 a liated with American Federation of Labor, 22 N L. R B 663, enf'd as mod, A E Staley Manufacturing Company, a corporation v N L R B 117 P. (2d) 868 (C. C. A. 7). I 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participation and to be based upon "the understanding growing out of our realtionship during these past many years." This was clear indication to the employees that the respondents desired them' to form a new inside union patterned after the old. The retirement of Tomp- kins and Covey from the April 21 meeting was an invitation to the old employee representatives to proceed to act upon the suggestions of the respondents.13 Indeed, the invitation was subsequently couched in specific language by Covey in his conversation with Collins de- scribed above. Coakley's distribution, shortly after the announce- ment of the Plan's dissolution, of the pamphlets entitled "Effect of the Wagner Labor Act upon Employers and Employees" also advised the employees of the respondents' hostility towards outside labor organizations and of the respondents' desire that the employees form an inside union.14 The respondents' encouragement of the formation of such an organization also manifested itself in their granting per-. mission to the Independent to conduct all election on the plant premises. The respondents further aided the establishment of the Indehendent by according it r'ecogl ition as collective bargaininb representative and agreeing hot to "make a collective bargaining agieement•with any other group *ithoiit taking the matter up with the" Independent, despite a prior outstanding request by the Amal- gamated for recognition as the exclusive collective bargaining repre- sentative of the respondents' employees, and by agreeing to refer to the Independent any question concerning changes in wages, hours, or working conditions, all without even a sernblahce of bargaining. The friendly assurance thus given by the respondents to the Inde- pendent must be contrasted with the treathlelit they accorded to the Amalgamated when, on May 6, 1937, it presented to the respondents its claim of majority representation and a request for a collective bargaining conference. The Amalgamated's letter dealing with these matteris was, so far as the record shows, ignored by the i espondents in their efforts to encourage the formation and establishment of ail inside labor organization and to discourage their employees from joining an outside labor organization. In short, although the Plain, 13 See Matter of Swift it Company, a Corporation and Amalgamated Association of Meat Cutters and Butcher Workmen of , North America, Local No 6/r1 and United Packinq House Workers Local Industrial Union No. 500, 7 N. L. R B. 209, enf'd as mod., Swift it Co v. N. `L. R B, 106 F. (2d) 87 (C. C. A. 10) ; Matter of Swift f Company and United_Automo- bile Workers of America, Local No. 265, and United Packing House Workers, L. I. Union No. 325, Affiliate C. I. 0., 7 N. L. R. B. 2S7; Matter of Swift and Company, a corporation and Local No. 530, United Packing House Workers Industrial Union, affiliated with the Codnmittee for Industrial Organization, 11 N. L. R. B. 809, enf'd as mod., N. L. R B v. Swift it Co, 108 F. (2d) 988 (C. C. A. 7). 11 We are not unmindful of the force given to this advice by virtue of its distribution to the employees in connection with the payment of their wages , the very source of their livelihood See Matter of The Perfection Steel Body Company (A K A The Perfection Burial Vault Company ) and Local 1151, Inter'natio 'nal Association of Machinists , A. F. of L, 23 N L. R. B 99. NEUHOFF PACKING COMPANY 761 as such, was abandoned, such abandonment did not include the re- spondents' withdrawal from participation in, domination of, and interference with their employees' organizational activities. We find that the respondents dominated and interfered with the formation and administration of the Independent and contributed support to it, and that the respondents thereby interfered with, re- strained, ahd coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the document addressed by Neuhoff to "The Executive Committee of the Neuhoff Employees Independent Asso- ciation" on May 22, 1931, is invalid since it was not the result of collective bargaining between the respondents and the freely 'desig- nated representatives of their employees but was executed as an integral part of the respondents' program of'domination of, inter; feFFence with, and support to the Independent. B. The refusal to bargain collectively with the Amalgamated 1. The appropriate unit The amended complaint alleges that all the respondents' employees in the plant, exclusive of foremen; assistant foremen, office employees, clerical help, plant clerks, scalers, salesmen, managerial employees, and executives, constitute a unit appropriate for the purposes of col- lective bargaining. There was no controversy at the hearing con- cerning the appropriateness of such a unit. The Amalgamated ad- mits such employees to its membership. The employees in such a unit are those who were eligible to vote in a consent election held on Jhne 2, 1937, discussed below ih Section III B 2. We find that all the respondents' employees at their Nashville, Tennessee, plant ex- cept foremen, assistant foremen, office employees, clerical employees, plant clerks, scalers, salesmen, managerial employees, and executives, at all times iriaterial herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondents the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the Amalgamated of the majority in the appropriate unit Oh May 29, 1937, an agreement for a consent election among the respondents' employees, to be held under the supervision of the Regional Director, was entered into between Neilhoff, the Independ- ent, the Amalgamated, and the Board. Under the terms of the agree- ment, all employees in the appropriate unit who were on the plant pay roll for the period ending May 27, 1937, were eligible to vote. r 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The agreement provided that the organization selected by a majority of such employes would be accorded sole bargaining rights by Neu- hoff for the respondents' employees for a period of 1 year from the date of the certification of the election returns by the Regional Director. The election was held on June 2, 1937. On June 5, 1937, the Re- gional Director issued and duly served upon the parties his Election Report. As to the balloting and its results, the Regional Director reported as follows : Total number eligible to vote______________________________ 463 Total number of ballots cast______________________________ 436 Total number of votes for the ' Independent----------------- 196 Total number of votes cast for the Amalgamated___________ 228 Total number of votes challenged _________________________ 12 We find that on June 2, 1937, and at all times thereafter, the Amalgamated was and that it is the duly designated representative of the employees in the appropriate unit. Pursuant to Section 9 (a) of the Act, the Amalgamated was and is, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. 3. The refusal to bargain collectively On June 7, 1937, the Amalgamated addressed a letter to Neuhoff, referring to the results of the election and requesting a conference for the purpose of negotiating a collective bargaining agreement. There- after, on June 11, 14, 16, and, 25, 1937, conferences between the re- spondents and the Amalgamated were held in the plant at which the 23 articles of a proposed agreement submitted by the Amalgamated were discussed, seriatim. The respondents objected to nearly all of the provisions of the agreement. As a result of these objections, the Amalgamated withdrew from its proposal 7 of the 23 articles.15 As to three other articles the respondents and the Amalgalllated reached substantial agreement."G However, as to the 13 remaining articles, hereinbelow discussed, no agreement was reached. The respondents objected to Article 1 which contemplated the establishment of a closed shop in the plant and no agreement was reached in respect thereto. 'b These 7 articles dealt with notice to the Amalgamated in cases of personnel changes, the dismissal of persons guilty of misconduct and dishonesty , the prohibition of strikes, lock-outs, and cessation of work during the life of the agreement , assistance by the Amal- gamated in the marketing of the respondents ' products , the effect of a wage scale contem- plated in the agreement on employees receiving rates of pay in excess of those prescribed therein, night work and rates of pay therefor , and truck drivers ' expenses while absent from the plant in the performance of their duties. - 11 These dealt with holidays and rates of pay for work performed on such days , seniority with respect to lay-offs and reemployment and the distribution of work during slack periods, and the furnishing and laundering by the respondents of employees' uniforms. NEUHOFF PACKING COMPANY 763 Article 2 of the proposed contract liinitedd the work week in all processing departments to 40 hours and the work week for truck drivers to 48 hours, and provided for the payment of overtime on the basis of time and one half. During the conferences this article was amended by the Amalgamated so as to include the shipping depart- ment with the truck drivers on a 48-hour week basis. The respond- ents, however, claimed that they were "working on N. R. A. hours .. . and expected to continue to do so or to abide by any new ininunum wage laws that were passed by Congress." No agreement was reached as to this article. Article 5 provided that members of the Amalgamated would be given preference when new employees were hired and that any non- members hired would be required to join the Amalagamated within 30 days of the date of their employment. The respondents objected to this as they had to Article 1 and no agreement was reached. Articles 8, 9, 10, 11, and 12 provided for a formal grievance pro- cedure in the plant. Under the contract shop stewards were to be appointed from among the employees in each of the various depart- ments throughout the plant to adjust minor differences arising in their respective departments.. At the conferences, following objections by the respondents, the Amalgamated consented to amend the'contract so as to provide for a maximum number of eight stewards in the plant, each to represent a "section" of the plant. The contract provided for further machinery for handling grievances not susceptible of settlement by the shop stewards. However, the respondents raised numerous objections to the proposed procedures and no agreement was reached with respect to grievance procedure. Article 13 pro- vided that the term of the proposed contract should be 2 years, unless reopened by either party by written notice to the other party rendered 30 days prior to the expiration of the first year. The respondents took the position that the life of the agreement should be limited to 1 year from 'the date of the Regional Director's certification of the consent election results, and no agreement was reached as to this. Articles 14 and 22 provided for retroactive wage increases for certain classes of employees in the plant. The respondents said that they "did not see any reason why any wage scale should be a part of the agreement." The Amalgamated contended that a wage in- crease was necessary to compensate for an increase in the cost of living. The respondents claimed that the statistics relied upon by the Amalgamated in support of its contention showed that the pro- posed wage increase exceeded any increase in living costs and, fur- ther, that substantial increases in wages had been granted during the previous year and "we felt quite sure that present earnings of our employees was Well in line with other local industries." No agreement was reached as to this article. 764 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD Article 15 provided that "work in the different departments shall be apportioned out among the employees of the departments as ,evenly as is humanely (sic) possible." The respondents opposed embodying such a provision in an agreement since it was ' in line with existing policy. The Amalgamated stated that it desired such a provision in order to prevent partiality on the part of foremen and other supervisory employees. The respondents contended that "this simply did not happen in our company" and no agreement as to this article was reached. - Article 18 provided for a week's vacation with pay for employees .with a year's service. The respondents rejected this proposal, stating that they considered their existing vacation policy 17 sufficiently liberal. No agreement was reached as to this article. At the conclusion of the conference of June 25 Ray Wolfington, organizer for the Amalgamated and its chief negotiator, asked Tomp- kins whether he would definitely agree as to any part of the pro- posed agreement. Tompkins replied in the negative. Tompkins also refused Wolfington's request that he make counterproposals. Wolfington then expressed his dissatisfaction with the result of the negotiations and stated that he would have to take the matter up with the' Amalgamated's membership. Accordingly, on the morn- ing of June 27, 1937, at a meeting of the Amalgamated, its negotiat- ing committee reported to the membership concerning the foregoing negotiations. The members thereupon voted to strike, and on the evening of the same day the Amalgamated instituted a strike. On the following morning, the employees formed a picket line in front of the plant and none of the hourly paid employees went to work at the usual time. Later in the day Covey announced that any em- ployees who wanted to work could do so. Employees then began to return to work and, by the end of the week, all of the approxi- mately 450 'striking employees had returned, except about 25. On several occasions during that period A. C. Allen, a member of the Amalgamated negotiating committee, called Tompkins' office in order to open negotiations for a strike settlement. On each occasion Allen was informed that Tompkins was busy and could not speak to him. On July 3, 1937, the Amalgamated wrote a letter to the respond- ents, requesting a conference in order "to settle any differences which may exist between us." Pursuant to this request, the Amalgamated and the respondents met on July, 7, 1937, and, after a brief session, adjourned in order to permit a new member of the Amalgamated's committee to familiarize himself with the matters to be discussed. On July 9, 1937, a further conference between representatives of the respondents and the Amalgamated took place. At this meeting, 17 One week's vacation after 2 years' service ; 2 weeks' after 5 years' service. NEUFIOFF PACKING COMPANY 765 Jordan Stokes, III, an attorney for the Amalgamated, inquired of the respondents whether they would sign an agreement with the Amalgamated in the event that such an agreement was achieved. Tompkins replied that such an inquiry was not proper since no agree- .ment had been reached. Stokes then inquired whether the respond- ents would come to an agreement with the Amalgamated. Tompkins replied that he did not know, since several previous meetings had failed to result in such an agreement. Stokes then asked whether the respondents would agree to anything. At this point one Horton, a member of Swift's legal department, stated that "anything" was too broad a term and suggested that they should consider one thing at a time. Stokes then inquired of Tompkins whether a 40-hour week was in-effect in the plant. Upon being informed that it was, Stokes asked whether the respondents would agree to maintain a 40-hour week policy for 6 months. Tompkins replied that, while it, was Neuhoff's policy to maintain short hours, he would not bind himself to continue such a policy in effect. Stokes then asked whether the respondents would agree to maintain a 40-hour week policy for a period of 60 days. Horton answered in the negative. Stokes then asked whether the respondents would agree not to abandon the 40- hour week policy without referring the matter to the Amalgamated. Tompkins replied that, while it had always been the custom of the respondents to take up such matters with their employees and while they would "in all likelihood" continue to do so, such matters would remain subject to change without notice at the respondents' will. Stokes then made inquiries of the respondents, similar to those set forth above, relating to rates of pay then in effect in the plant. The respondents made the same replies to these inquiries as they had to those concerning hours of work. Finally, Stokes asked the re- spondents whether they, would summit any counterproposals. Tompkins replied in the negative. The Amalgamated then requested the reinstatement of the strikers who had not yet returned to work and was advised that the men shquld see their respective foremen and that, if they were needed, they would then be interviewed by Covey. 4. Conclusions as to the refusal to bargiin collectively From the foregoing, it is clear that from the date of the consent election to the date of the strike and thereafter the respondents continuously and persistently refused to enter into any agreement with the Amalgamated. In the June 1937 conferences between the Amalgamated and the respondents, the latter rejected a number of the Amalgamated's proposals whereupon the Amalgamated withdrew them from consideration. Other objections made by the respondents resulted in the disagreement of the parties as to many articles of the 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . proposed contract. As to these, the respondents, although requested to do so by the Amalgamated, failed to make any, counterproposals, or to make any effort to submit any plan or offer which could be considered evidence of the respondents' intention to bargain in good faith.1$ The respondents' failure in this respect was such as to make productive negotiations impossible. in the discussions of the proposed contract, substantial agreement was reached by the parties as to several matters, including articles which embodied existing employer 1 policies. However, even as to these, the respondents refused to enter into a contract, just as in the July 9 conference they refused to enter into even a 60-day agreement embodying current wages or hours. Collective bargaining as contemplated by the Act is a procedure looking toward the making of a collective agreement by the employer with, the accredited representatives of his employees concerning wages, hours of service, and other working conditions.- If the em- ployer adheres to a preconceived determination not to enter into an agreement with the representatives of his employees, then his meet- ing and discussing the issues with them, however frequently, does not fulfill his obligations under the Act. The respondents' refusal to bind themselves even as to matters concerning which they were in agreement with the Amalgamated cannot be interpreted otherwise than as an expression of their determination to enter into no agree- ment with the Amalgamated. The respondents' refusal to bind themselves by a contract even as to wages, hours, and other working conditions concerning which 18 See Matter of Globe Cotton Mills and Te.itile Worleis Organizing Coinnuttee, 6 N. L. R B 461, enf'd as mod Globe Cotton Mills v . National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5) ; Matter of Harry Schwartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N. L R B 1139, Matter of Wilson it Co, Inc and United Packing House Workers L I. Union No 51, 19 N. L R . B. 990, enf'd Wilson d--Co , Inc, a corporation, v N. L. R. B, 115 F. (2d) 759 (C C A 8), rehearing den Jan 3, 1941; Matter of John J. Oughton, Charles T. Oughton, Bertram E. Oughton, and Robert B. Oughton, individuals and co-partners trading as The Windsor Manufacturing Company and Textile Workers Organizing Committee (C 1. 0 ), 20 N. L. R B 301 , enf'd as mod John J Oughton et at v. N. L. R B, November 19, 1940 (C C. A. 3). 19 See Matter of II. J. Heinz Company and Canning and Pickle Woi kers, Local Union No 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North el merica, American Feder ation of Labor, 10 N. L. R. B 963, enf'd H J. Heinz Co. v N L R. B , Jan 6, 1911. 311 U. S 514, aft•g 110 F (2d) 84k (C C A ) , Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. R B 1248. enf'd N. L R. B. v. Highland Park Mfg Cc, 110 P. (2d) 632 (C C. A. 4) ; Matter of St Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 159, 2 N. L. R. B. 39; Matter of Wilson J Co., Inc. and United Packing House Workers L I. Union No 51, 19 N. L R B 990, enf'd Wilson it Co, Inc, a cor- poration, v N L R B, 115 F (2d) 759 (C. C. A 8), rehearing den Jan 3, 1941 ; see also N. L. R. B. v Sands Manufacturing Company, 306 U S 332, aff'g 96 F. (2d) 721 (C. C. A 6), setting aside Matter of Sands Manufacturing Company and Mechanics Educational Society of America, 1 N. L. R. B. 546; Consolidated Edison Company of New York, Ine, et at v N. L R B, 305 U S 197, aff•g in part and setting aside in part 95 F (2d) 390 (C C A 2), ent'g Matter of Consolidated,Edsson Company of New York, Inc, et at, and United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R. B. 71. NEUHOFF PACKING COMPANY 767 they were not in disagreement with the Amalgamated was based, at least in part, 'upon the respondents' desire to be free to abandon or change such wages, hours, or other conditions of work at any time that they deemed such action advisable, by unilateral action, without even consulting or notifying the Amalgamated. The respondents' attitude in this regard was in contravention of the Act in that it' indicated an intention to act unilaterally with respect to' matters which normally are the subject matters of collective bargaining and a refusal to bargain with the employees' designated representative concerning such matters. This attitude thus expressed was a clear indication to the Amalgamated that the respondents were seeking to relieve themselves- of their obligations to bargain collectively under Section 8 (5) of the Act and constituted a direct attack upon the Amalgamated's efforts to bargain collectively, and, of necessity, dealt a severe blow to the Amalgamated's prestige by demonstrating to .the employees through their negotiating committee 20 that the re- spondents considered collective bargaining with the Amalgamated neither desirable nor necessary.21 We find that the respondents on June 11, 1937, and at all times thereafter refused to bargain, collectively with the Amalgamated as the exclusive representative of their employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that, the respondents thereby interfered with, restrained, and coerced their employees in the exer- cise of rights guaranteed in Section 7 of the Act. We also find that the unfair labor practice of the respondents in 'refusing to bargain collectively with the Amalgamated as the ex- clusive collective bargaining representative of its employees in the appropriate unit caused the strike of June 27, 1937, and that the strike was prolonged because of the respondents' continuing to en- gage in said unfair labor practice. .C. The alleged disci°imination with respect to hire and tenure of e oploynnent ' 1. The strikers The ,amended complaint. alleges that at the termination of the ,strike, and at all times, thereafter, the respondents refused to rein- I The committee was composed in large part of employees of the respondents. 21 See Matter of Whittier Mills Company, et at. and Tea tale IVo) hers Organi2ing Commit- tee, 15 N. L. R. B. 457, enf'd N L. R. B. v Whither Mills Company, et al, 111 F. (2d) 474 (C. C A 5 ) , Matter of John J Oughton, Cha,les T Oauyhiou, Bertram B'Oughton, and Robert B. Onghton, individuals and co-partners trading as The'117 tnd•sor Manufacturing Company and Textile Workers Organiring, Comn'ittee .(C I 0 ) 20 N L R B- 301, onl'd as mod John J. Oughton et al v -N L. R B , Nov 19, 1940 (C C A 3) , Matter of Wilson (C Co , Inc and United Packing House lVorhers L I 'Union No 51,.19 N. L .R B. 990, and cases cited in footnote 11 thereof 768 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD state C. R. Collins, L. B. Davidson, George Simmons, William (W. M.) Stagner, J. W. Frogge, Alvin Boyd, F. J. Green, Sam Pardue, A. C. Allen, R. L. Webster, and J. H. Fitzgerald because of their membership and activities in the Amalgamated and because they engaged in concerted activities 'with other employees for the purposes of collective bargaining. All the above-named employees joined the Amalgamated before the strike, participated in the strike, and did not make application for 'reinstatement until July 19; 1937; or thereafter. On July 9, 1937, ,as stated above, representatives of 'the Amalgamated conferred with the respondents and sought to obtain the reinstatement of these employees. At approximately the same time the Amalgamated in- structed the strikers who had not yet returned to work to apply iil- dividually for reinstatement. Pursuant to those instructions, all the above-named employees made at least one application to Covey -'or to their respective foremen before July 23, 1937, and, in most cases, applied again on later dates. In each case, they were informed that there was no work available for them. In'explanation of their refusals to reinstate these employees the respondents aver that following the strike operations in the plaht declined so as to require fewer employees than previously. We have held that where, as here, a 'strike has been caused by the unfair labor practices of an employer; the striking employees are, in the absence of some valid cause for discharge, entitled to rein- statement to their former positions upon request, and that, if neces- sary to make positions available for the applicants for reinstatement, the employer must discharge any new 'employees hired during the strike aid must displace such non-strikers or strikers who have pre- viously abandoned the strike as would northally be replaced by the applicants for reinstatement under the employer's normal lay-off and rehiring policy.22 On July 9, 1937, the respondents had in their employ at the plant fewer employees than they had had im- niediatel'y p'rior to th'e strike aiid there 'vas ino work available for the strikers who applied for reinstatement thereafter.23 No new employees were hired by the respondents during the strike. Further- more there is no evidence that the position of any of the 11 strikers in question was filled at the time of hi's application for reinstatement thereto by any non-striker' or by any striker who had returned to work prior to July 9 whom the respondents should have replaced with the applicant for reinstatement pursuant to thei'r usual lay-off 22 See Matter of Acine-E cans Company and Federal Labor Union No 218,3, affiliated with the A. F. of L., et at., 24 N. L R B. 71. 23 Between 'July 9 and 23, 1937, the period during which the strikers now under consid- eiation made application for reinstatement, only'one employee, an electric welder, was hired, and there is no evidence that any of the applicants were qualified to perform that type of work. NEUHOFF PACKING COMPANY 769 and rehiring policy. Nor is there here evidence of such intentional wrongdoing by the respondents with respect to the strikers as to prove discrimination against at least some of the 11 strikers and as to require the respondents, in the absence of specific evidence such as that referred to in the previous sentence, to "disentangle the consequences" of their acts.24 1 It remains to be determined whether the respondents discriminated against these strikers by hiring certain new employees subsequent to July 23. Under the respondents' reemployment policy at the plant, where there has been a reduction in force, employees having less than 5 years of continuous, service in the plant are entitled to reemployment on a departmental seniority basis, provided that the break in their service does not exceed 30 working days, and em- ployees having over 5 years of continuous service in the plant. are entitled to reemployment on a plant-wide seniority basis, 'provided that the break in their service does not exceed 60 working days. Even though no positions were available to the strikers during the period from July 9 to July 23, 1937, we find that they were neverthe- less eligible for reemployment pursuant to the terms of the respond- ents' reemployment policy, by the terms of which six of the strikers were entitled to reemployment on a. departmental seniority basis within a period of 30 Working days and five were entitled to reemploy- ment on a plant-wide seniority basis within a period of 60 working days. Except for the welder, mentioned above, no new employees were hired at the plant during the 30-working-day period from July 9 25 to August 13, 1937. As stated above, there is no evidence that any of the group under consideration Were qualified to do welding work. During the 60-working-day period from July 9 to September 18, 1937, in addition to the electric welder, only two new employees v,-ere hired, a chauffeur's helper and an extra laborer. Under the respondents' reemployment policy, only five of the strikers now under consideration were eligible to these positions. However, prior to the, strike, these five had worked in the plant either as hog butchers, packers, carpenters, or wrappers and inspectors of smoked meats. In N,iew of the patent disparity between such duties and those usually performed by a chauffeur's helper and an extra laborer, and in the absence of any evidence to show that at times of reduction in force and reemployment employees iii such divergent jobs were normally considered interchangeable, we cannot say that the respondents acted 24 Cf Matter of Ford Motor Uompany and United Automobile Worleis of America, Local No 32., 23 N. L R. B 342 See N L R B v. Remington Rand, Inc, 94 F. (2d) 802 (C C A 2), cert. denied 304 U. S 576 We do not decide that the break-in-service period should be computed from the date of the end otthe strike rather than from that of the strike's beginning However, since \\e find that the respondents did not discriminate in regai d to the strikers' hire and tenuie of employ i ient, we are using the date of the stiske's end for this purpose'so as to view the strikeis' ease in its most fa,orable light - 770 DECISIONS" OF NATIONAL LABOR RELATIONS BOARD discriminatorily in failing to reemploy these five strikers in the period during which they were eligible to reinstatement under the respondents' reemployment policy. Those strikers who reapplied for reinstatement after July 23, 1937, were again refused work because none was available. The evidence as to the dates of the reapplications and the amount of work available at such times is insufficient to support a finding of discrimination against the strikers-at those times. A consideration of all the evidence leads us to conclude that it does not support the allegations in the amended complaint that the respondents discriminatorily refused to reinstate C. R. Collins, L. B. Davidson, George Simmons, William (W. M.) Stagner. J. W. Frogge, Alvin Boyd, F. J. Green, Sam Pardue, A. C. Allen, R. L. Webster, and J. H. Fitzgerald. We find that the respondents did not dis- criminate in regard to the hire or tenure of employment of these men to discourage membership in a labor. organization. 2. Fred Basham Fred Basham, a bacon skinner and smoked meat curer, had worked for the respondents since June 4, 1935. He joined the Amalgamated about 'February 1937, and engaged in the strike during its early' stages. Prior to July 9. 1937, however, lie abandoned the strike and returned to work. There is no evidence that Basham engaged in any union activities thereafter. He continued to work until his dis- charge on November 2, 1937. The amended complaint alleges that Basham was discharged because of his union membership and activities. The, respondents contend that Basham was discharged for negli- gence in the performance of his work. Basham's duties included the tending of several curing houses and the regulation of the tempera- tures therein. Basham's work shift commenced at 9: 30 p. in. and 'terminated at 5 or 6 a. in. B. F. Irby, Basham's foreman, testified that lie had instructed Basham to consult the man whom he relieved from the prior Shift in order to ascertain the temperature condition of the curing houses, the approximate times the dampers should be opened, and the temperatures to be maintained throughout the opera- tions. While Basham denied at the hearing that he had been so instructed by Irby, he admitted that he "sometimes" had so consulted with the men lie relieved. On November 2, 1937, about 20 minutes after Basham commenced work, one of the curing houses under his supervision became overheated, with the result that a considerable quantity of , bacon was overprocessed and excessively shrunk. Basham admitted at the hearing that he had failed on that occasion to check the temperatures of the houses with the man from the prior shift whom he had relieved. According to Irby's uncontroverted NEUHOFF PACKING COMPANY 771 'testimony, Basham had negligently permitted bacon to become simi- larly over-processed at least twice during the previous month and had been reprimanded therefor. Following the November 2 occur- rence, Irby discussed the matter with Covey and, with the latter's approval, discharged Basham. In our Proposed Findings of Fact we found that the evidence does not support the allegation in the amended complaint that Basham was discriminatorily discharged. The Amalgamated filed no excep- tions to this finding. We find that the respondents did not discrimi- nate in regard to Basham's hire or tenure of employment to dis- courage membership in a labor organization. IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III A and B, above, occurring in connection with the operations of the respondents 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 ob- structing commerce and the free flow of commerce. 1'. THE REMEDY WTe have found that the respondents have engaged in certain un- fair labor practices . We shall order them to cease and desist there- from and to take certain affirmative action which we find necessary to effectuate the policies of the At. We have found that the respondents dominated and interfered with the administration of the Plan and contributed financial and other support to it and that the respondents dominated and interfered with the formation and administration of the Independent and con- tributed support to it. Since the Plan has been abandoned , we shall not order its disestablishment . The respondents contend that the agreement for a consent election entered into by the Independent and the Amalgamated on May 29, 1937 , effected a cancelation of the -recognition agreement between Neuhoff and the Independent which was entered into on May 22, 1937, and that the respondents have neither recognized the Independent as collective bargaining repre- sentative nor dealt with it since May 29, 1937. While the Inde- pendent lost that election and the respondents were thereafter obli- gated to deal only with the Amalgamated and while there is no evidence that the respondents have ever dealt with the Independent as a collective bargaining agent of their employees since that time, it is not clear that the respondents have ever formally withdrawn recognition from the Independent or ceased to adhere to their agree- ment with the Independent entered into on May 22, 1937. We shall, 413602-42-N ol. 29--50 - 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, order the respondents to withdraw all recognition from the Independent as the representative of any of their, employees for the purpose of dealing with the respondents concerning grievances, labor, disputes, wages, rates of pay, hours of employment, or other conditions of employment and to disestablish it as such, representa- tive. Wshall also order the respondents to 'cease and desist from giving effect to their agreement of May 22, 1937, with the Inde- pendent as well as to any extension, renewal, modification, or supple- ment thereof, and to any superseding contract. , We have found that the respondents on June 11; 1937, and at all times thereafter, refused to bargain collectively with the Amalgam- ated as the exclusive representatives of their employees in an appro- priate unit consisting of all the employees at their Nashville, Tennessee, plant, exclusive of foremen, assistant foremen, office em- ployees,'clerical employees, plant clerks, scalers, -salesmen, managerial 'empl'oyees, and executives. We shall orde'r the respondents upon i•equ'est to bargain' collectively with the Amalgamated as the exclusive representative of their employees in said unit. Having further found that the respon'd'ents refused to put into binding form matters as to which they were in agreement with the Amalgamated, we shall address our order 'specifically to the wrong sought to be remedied and order the respondents to embody any understandings reached .n a written, signed contract if requested to do so by the Amalgamated.211 Having found that the respondents did not discriminate in regard to hire and tenure of employment, we shall order that the amended complaint in so far as it alleges such discrimination be dismissed. However, we have found that C. R. Collins, L. B. Davidson, George Simmons, William (W. M.) Stagner, J. W. Frogge, Alvin Boyd, F. J. Green, Sam Pardue, A. C. Allen, R. L. Webster, and J. H. Fitzgerald-, left their work as a result of the respondents' unfair 'labor practices. In accordance with our usual practice, we shall order the respondents to reinstate these employees in the manner set forth below.27 I The respondents contend that certain of the 11 strikers in question obtained regular and substantially equivalent employment after the 26 See H J Ilein^ Company v N L R. B, January 6, 1941, 311 U S. 514, aff'g 110 F (2d) 843 (C. C. A 6) ^, enf'g Matter of H J. Heii_- Co,%p'any and Canning anil Pickle tl'oi 1 cis, Local Unnon No. 325, affiliated with Amalgamated Meat Cutters and Butcher Work- nieia of North i4te) ica, Ainei•ican Federation of Labor, 110 N L R. B. 963: Matter of Metal Htse & Tubinry C6, Inc add United R'ubbcr Workers of America,'Local 162, C. 1 0, 23 N L R B 1121 , and cases cited in footnote 30 thereof 27 See Matter of Jefferij-De1Vtitt Insulator Co And Local No 435, United Brick aTid 'Clay Worl.'ers of Amer ca, -1 N. I,. R. B. '618, enf'd Jeffery-V51Vitt Zifsulator 'Co v Al 'L 'R B , 91 F (2d) 134 (C C A 4), cert. den 302 U S 731; Matter of Remington Rand, Inc and Reniing'toii Rand Joint Protective Board of 'the District Council Ofelce Lituiprneiit 1Varlers, 2 N L R B 626, enf'd N L R B v Remington Rand, Inc, 94 F (2d) 862 (C C A 2). cei t den 304 U S 376 NEUHOFF PACKING COMPANY 773 strike; that they thereby ceased to be "employees" within the mean- ing 'of Section 2 (3) of the Act; and that only, employees within the meaning of that Section fall within the jurisdiction of the Board fo`r purposes of remedial action. We find no merit in the respond- ents' contention. While Section 10 (c) of the Act refers specifically only to reinstatement of "employees" we do not believe that those -strikers \vlio have-obtained regular and substantially equivalent em- ployment thereby became remediless for the purposes of future employment with the respondents.28 The respondents further urge that some of the 11 strikers in question engaged in misconduct during the strike sufficient to preclude the Board from ordering the I;espondents to take any remedial action with respect to such employees. In the case of three of these employ- ees;29 the alleged misconduct consisted of halting trucks carrying live- stock for delivery at the plant and requesting the drivers to proceed without unloading. Another,30 together with a group of unidenti- -fied strikers, halted a railroad switch locomotive, conversed with the engineer; and persuaded him to reverse the locomotive and proceed in `the 'opposite direction. A fifth mah,31 with other unidentified strikers, attempted to stretch a cable across a public street adjacent to the plant. This project, however, was peaceably abandoned pur- suant to police order. Another occurrence complained of by the respondents involved the removal by strikers 32 of two lambs from a truck, carryimrg livestock in an attempt to compel the driver to proceed *ithout unloading at the plant. Two other occurrences complained of by 'the respondents are of a far more trivial nature. None of these acts took place on the respondents' property or involved damage thereto. Moreo\,er, none of the persons charged by the respondents with the alleged misconduct were in any maiuner called to account therefor either through criminal or civil action either by the public ,,. autliorities or'by the respondents. Furthermore, both Tompkins and Covey testified that they did not consider the alleged misconduct as see Matte, of Eagle-Picher Mining & Smelting Conipang, a corporation, and Eagle- Picher Lead Co;npani, a corporation, and International anion 'of Mine, Mill if Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N L R B. 727. At the hearing, counsel for the respondents and for the Board entered into a stipulation whereby the respondents' counsel a'g'reed to refrain from cross-examination of certain of the complainants on the issue of substantially equivalent employment with the understanding that, in the event the Board found that the respondents had discriminated in ne _aid to the, hire and tenure of employment of any 'of the complainants , the hearing would be reopened for the purpose of receiving evidence on the subject of substantially equivalent employ mint, if any, obtained by such persons. We have not found that the respondents discrimmated with respect to their employees' hire and tenure of employment Even had we so found, howeNer, we would not reopen the hearing at this time in view of our. findmii that substantially equivalent employment is no bar to the granting of a remedy we find that the respondents have not been prejudiced by the aforesaid stipulation 2 Allen, Green , and Pardue. xu Web`ster. m Collins 92 Including Green. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a factor militating against the reinstatement of the strikers at the times of their application therefor. Our review of the evidence re- lating to the conduct of the strikers discloses no individual as to whom -our remedial action herein would not effectuate the policies of the Act. As we have indicated above, we shall order the respondents to offer reinstatement to their former or substantially equivalent positions to C. R Collins, L. B. Davidson, George Simmons, William (W. M.) Stagier, J. W. Frogge, Alvin Boyd, F. J. Green, Sam'Parclue, A. C. Allen, R. L. Webster, and J. H. Fitzgerald. Such reinstatement shall be effected in the following manner: All employees hired after the commencement of the strike shall, if necessary to provide employ- ment for those to be offered reinstatement, be dismissed. If, there- upon, by reason of a reduction in force there is not sufficient employ- ]nent immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be dis- tributed among such remaining employees in accordance with the respondents' usual method of reducing their force, without discrimina- tion against any employee because of his union affiliation or activities, following a system of seniority to such an extent as has heretofore been applied in the conduct of the respondents' business. Those, employees remaining after such distribution, for whom no employment is, im- mediately available, shall be placed upon a preferential list.prepared in accordance 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 employ- ment becomes available and before other persons are hired for such work. We shall order the respondents to make whole the employees or dered to be offered reinstatement for any loss of pay which they will have suffered, if any, by reason of the respondents' refusal to offer them reinstatement following .the issuance of our order herein, by payment to each of them, respectively, of a sum of money equal to the amount- which he would normally have earned as wages, during the period from .five days after the elate of our order herein to the date of the offer of employment or placement upon a preferential list as described above, less his net earnings 33 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : By "net earnings" is meant ea,nmgs less expenoes, such as ]or transportation, room, and board incurred by such employee in connection with obtaining woik and working else- where than for the respondent, which would not have been ]ncuued but for the unlawful disciimination against him and the consequent necessity of his seeking employment- else- where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Jome,s'of America, Lumber and Sawmill Worl,ers Union ; Local 2590, 8 N L R. B. 440. Monies received for work peiformed upon Federal , State , county, municipal or other work- relief projects shall be considered as earnings . See Republic Steel Corporation v. N L X B '11 U S T NEUHOFF PACKING COMPANY -775 CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of, North America, Local 405, and Neuhoff Employees Independent Associa- tion are labor organizations, within the meaning of Section 2 (5) of the Act. 2. Employes Representation Plan, Neulioff Packing Company, 1933, was a labor organization, within the meaning of Section 2 (5) of the Act. 3. The respondents, by dominating and interfering with the ad- ministration of Employes Representation Plan, Neuhoff Packing Company, 1933, and contributing financial and other, support to it, and by dominating and interfering with the formation and adminis- tration of Neuhoff Employes Independent Association and contribut- ing support to it, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. All the respondents' employees at their Nashville, Tennessee, plant, except forenien, assistant foremen, office employees, clerical employees, plant clerks, scalers, salesmen, managerial employees, and executives, at all times material herein constituted, and they now constitute, a unit appropriate for the purposes of collective bargain ing, within the meaning of Section 9 (b) of the Act. 5. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405, was on June 2, 1937, and at all times thereafter has been, 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 June 11, 1937, and at all times thereafter to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405, as the exclusive representa- tive of their employees in the appropriate unit, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. By interfering With, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7, of the Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The respondents have not engaged in unfair practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the National Labor' Relations Board hereby orders that the respondents, Swift and, Company and Neuhoff Packing Company, together operating a plant in Nashville, Tennessee, and each of them, and their officers, agents, successors , and assigns , shall: 1. Cease and desist from : (a) Dominating or interfering with the.iadministration of Neuhoff Employes Independent Association or with the formation or admin- istration of any other labor organization of their employees, and from contributing financial or other support to Neuhoff .Employes Independent Association or to any other labor organization of their employees ; (b) Recognizing Neuhoff Employes Independent Association as the representative of any of their employees for the purposes of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to their agreement of May 22, 1937, with Neuhoff Employes Independent Association or to any extension , renewal, modification, or supplement thereof, or to any superseding contract with said organization; (d) Refusing to bargain collectively with A malgarnated Megt Cut- ters and Butcher Workmen of North America, Local 405, as the exclusive representative of all their employees at their plant at Nash- ville, Tennessee, except foremen, assistant foremen, office employees, clerical employees, plant clerks, scalers, salesmen, managerial employees, and executives; , (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self' organization, to, form, join, or assist labor organizations , to bargain collectively, through representatives of their own choosing, and to engage in con certed - activities for the purposes of collective bargaining or. other, mutual aid or protection , as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Neuhoff Employes Independ- ent Association as representative of any of their employees for the purposes of dealing with the respondents concerning grievances, labor; disputes, wages, mites of pay, hours of employment, or other conditions of employment, and completely disestablish said Neuhoff Employes Independent Association as such representative; (b) Upon request bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405, as the exclusive representative of all the employees at their plant at Nash- ville, Tennessee, except foremen, assistant foremen , office employees, NEUHOFF PACKING COMPANY 777 clerical employees, plant clerks, scalers, salesmen, managerial em- ployees, and executives, with respect to wages, rates of pay, hours of employment, and other conditions of employment, and, if an under- standing is reached on any such matters, embody such understanding in a written, signed agreement, if requested to do so by Amalgamated Meat Cutters and Butcher Workmen of North America, Local 405; (c) Offer to C. R. Collins, L. B. Davidson, George Simmons, Wil- liam (W. M.) Stagner, J. W. Frogge, Alvin Boyd, F. J. Green, Sam Pardue, A. C. Allen, R. L. Webster, and J. H. Fitzgerald immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The rem- edy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section ; (d) Make whole the employees ordered to be offered reinstatement for any loss-of pay they will have suffered, if any, by reason of the respondents' refusal to offer them reinstatement following the issu- ance of this Order, by payment to each of them, respectively, of a sum of money equal to the amount which he would normally have earned as wages during the period from five (5) days after the date of this Order to the offer of employment or placement upon a prefer- ential list, required by paragraph (c) above, less his net earnings during said period; (e) Post immediately in conspicuous places throughout their plant in Nashville, Tennessee, and, maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees, stating : (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; and (2) that the respond- ents will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; (f) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the amended complaint, in so far as it alleges that the respondents have engaged in unfair labor prac- tices within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. CHAIRMAN HARRY A. MILLIS took no part in the consideration of the above Decision and Order.