Wilson & Co., Inc

In the Matter of WILSON & Co., Ixc. and LOCAL UNION No. 25, UNITED PACKINGHOUSE WORKERS OF AMERICA OF PWOC, AFFILI- ATED WITH CIO Case No. C-1763.-Decided April 29, 1941 Jurisdiction : meat packing industry. Unfair. Labor Practices Interference, Restraint, and Coercion: allegations that the employer questioned its employees as to their union activities, warned them not to become affili- ated-with "outside" labor organizations and not to vote in an election, and threatened to close the plant if employees designated the "outside" organi- zation, dismissed. Company-Dominated Union: formation of successor organization similar in structure to predecessor dominated employee representation plan by com- mitteemen of predecessor-adoption of, with the approval and participation of the employer-support : meetings held on Company time and property ; ballots and election material furnished ; elections permitted to be conducted rind a petition designating representatives to be circulated in the plant during working hours ; financial support-indicia : lack of opportunity accorded em- ployees to accept or reject organization prior to formation ; recognition of, without proof of authority ; structure of : absence of provisions for dues ; meetings limited to those of employee representatives ; amendments per- mitted only upon consent of management. Remedial Orders: disestablishment of successor company-dominated union. Mr. Robert R. Rissrnan , for the Board. Mr. James D. Cooney and Mr. Marshal Riedel, of Chicago , Ill., for the respondent. Mr. Daniel J. Harrington , of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Local Union No. 25, United Packinghouse Workers of America of PWOC, affili- ated with CIO, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated August-29, 1940, against Wilson & Co., Inc., Chicago, Illinois, herein called the respondent, alleging that the respondent at its Chicago, 31 N. L. R: B., No. 69. 440 - WILSON & COMPANY, INC. 441 Illinois, plant had engaged in and was engaging in unfair labor,prac- tices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, ac- companied by notices of hearing thereon, were duly served upon the respondent, the Union, and Wilson Employees' Representation Plan, herein called the Plan. As to the unfair labor practices, the complaint alleged, in 'sub- stance, that the respondent: (1) on, or about May 21, 1921, created a labor organization among its employees known as the Joint, Rep- resentative Committee Plan for Wilson & Co. Employees, herein called the JRCP, and from May 21, 1921, to December 15, 1936, did dominate and interfere with the administration of the JRCP and did contribute financial and other support to it; '(2) on or about Decem- ber 15, 1936, created the Plan, a labor organization, and from that date to the date of the filing of the complaint did dominate and interfere with its administration and did contribute-financial and other sup- port to it, and did on or about June 16,1937, recognize the Employees' Representative Committee of the Plan, herein called the Committee, as the bargaining agent of the employees in the plant for the pur- poses of collective bargaining; (3) from on or about July 5, 1935, interrogated its union employees concerning their union activities, -warned them against affiliations with "outside" labor organizations, urged them not to vote for the Union in an election conducted by the Board on January.26, 1940,1 and threatened to close the plant if the Union' were designated as the collective 'bargaining agency of its employees as a result of said election; and (4) by said acts' and by other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Thereafter the respondent filed-its answer, admitting the allegations of the complaint with respect to interstate commerce, but denying that it had, engaged in any unfair labor, practices. By way of affirmative defense, the answer averred inter alia: (1) that prior to January 26, 1940, the Union carried on organizational activities in the vicinity of the plant and accused the Committee of being a labor organization dominated by the respondent; (2) that the Committee received a majority of the votes cast in the election conducted by the Board on that date, but was not certified as the bargaining agent because the Union filed objections to the election report; (3) that although the Union has withdrawn such objections the Board has failed to certify the Committee as the bargaining agency; (4) that the charges filed by the Union in the instant proceedings were not i See Matter of Wilson t Co, Inc and Local 25, United Packinghouse Workers of Amer- ica, of P. W. 0. C , affiliated with C. 1 0 11 18 N L R B 958 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed in good-faith, but for the purpose of preventing the Committee from being certified as sole bargaining agency of the respondent's employees; (5) that by reason of said averments the Union and the Board are precluded from proceeding in the instant case; and (6) that the Board did not have the right to proceed in the instant case because "the charge upon which said complaint was based was not filed in the manner or by the persons authorized to file such a charge." 2 Pursuant to notice, a hearing was held from September 19 to Octo- ber 1, 1940, at Chicago, Illinois, before Webster Powell, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. All parties were afforded full opportunity, to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing the re- spondent moved for a bill of particulars, which motion was denied by the Trial Examiner. During the course of the hearing, counsel for the Board moved to strike the affirmative averments of the re- spondent's answer. The Trial Examiner reserved ruling on said motion, and in his Intermediate Report, mentioned below, denied it. At the close of the hearing a motion by counsel for the Board to conform the pleadings to the proof in minor particulars was granted by the Trial Examiner without objection. During the hear- ing the Trial Examiner made numerous rulings on other motions and on objections to the admission of evidence. The Board has reviewed 2 At the hearing the Trial Examiner denied the respondent 's offer to prove allegations ( 7 ), (4), and ( 5) contained in its answer . This ruling is hereby affirmed. The mere fact that a labor organization participates in an election conducted by the Board under Section 9 (c) of the Act or is designated by a majority of the employees in an appropriate unit does not per se establish its freedom from employer domination , inter- ference, or assistance. When charges of unfair labor practices under Section 8 (2) of the Act involving such organization have been filed , the Board is not precluded from proceeding with respect to such unfair labor practices and public policy as embodied in the Act requires the Board to proceed with respect to them Cf. N. L R B. v. Newport News Shipbuilding if Dry Dock Co, 308 U. S. 241 ; Matter of S. Blechman if Sons, Inc and United Wholesale Employees of New York, Local 65, Textile Workers Organizing Committee-Committee for Industrial Organization, 4 N. L. R. B. 15; Matter of Pennsylvania Greyhound Lines et al. and The Brotherhood of Railroad Trainmen , 3 N. L. R. B. 622 ; National Licorice Company v. N. L. R. B , 309 U. S 350; Matter of Killefer Manufacturing Corporation and Steel Workers Organizing Committee , 22 N. L R. B 484 The respondent's contention that the charge upon which the complaint was based was not filed in the manner or by the persons authorized to file such a charge is without merit and finds no support in the Act or in Board Rules and Regulations The charges and amended charges upon which the complaint was issued were filed by the Union and were signed by its representative.. The Act provides that the Boaid may issue a complaint "whenever it is charged that any person has engaged in" unfair labor practices (Section 10 (b).) The Board's Rules and Regulations provide that such a charge may be made by any person or labor organization . No showing of authority to make the charge is necessary. Matter of Blanton Company and United Oleomargarine Workers Local Industrial Union No 489, 16 N. L. R. B. 951 ; ef. Consumers Powet Company v. N. L. R. B , 113 F (2d) 38 (C. C. A. 6) ; N. L. R. B. v Pennsylvania Greyhound Lines, Inc, et al, 303 U. S 261, reversing 91 F. (2d) 178 (C C. A 3), enforcing as modified 1 N L R. B. 1 WILSON & 'COMPANY, INC. 443 the rulings of the Trial Examiner and finds that no prejudicial er- rors were committed. The rulings are hereby affirmed. At the con- clusion of the/bearing, all parties waived the opportunity to argue orally before the Trial Examiner. The parties were advised that they might file briefs with the Trial Examiner. No briefs were submitted. On December 17, 1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent, the Union, and the Plan, wherein he found that the respondent had dominated and interfered with the administration of and contributed financial and other support to the JRCP and the Joint Representa- tive Committee established thereunder, herein called the Joint Com- mittee, and the Plan and the Committee established thereunder and recommended that the respondent cease and desist therefrom and take certain affirmative action to remedy the situation. He further rec- ommended that the complaint be dismissed in so far as it alleged that the respondent questioned its employees as to their union a; tivi- ties, warned them not to become affiliated with "outside" labor organ- izations and not to vote for the Union-in the election conducted by the Board on January 26, 1940, and threatened to close its plant if the majority of the employees designated the Union as their agency for collective bargaining. Exceptions to the Intermediate Report and,to the record were filed by the respondent on January 8, 1941. Upon request of the respondent a hearing was scheduled before the Board in Washington, D. C., on February 27, 1941, for the pur- pose of oral argument. Although the respondent, the Union, -and the Plan were served with notice of the hearing, none of them ap- peared. The Board has considered the exceptions to the Interme- diate Report filed by the respondent and 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 RESPONDENT The respondent, Wilson & Co., is a Delaware corporation having its principal office and place of business in Chicago, Illinois. It operates 8 meat packing plants in as many States and about 90 branch houses throughout the United States. The respondent's packing- house at Union Stockyards in Chicago, Illinois, is the only plant involved in this proceeding. At this plant the respondent purchases and slaughters livestock, and processes, manufactures, and distributes various products and byproducts thereof. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During November 1939, the respondent purchased and slaughtered at its Chicago plant 40,000,000 pounds of livestock . A large portion of the livestock was purchased through commission men doing business in Chicago . Approximately ' 2 per cent of the cattle , 6 per cent of the calves, 17 per cent of the sheep , and 18 per cent of the hogs slaughtered during November 1939 were purchased by the respondent directly from sources outside the State of Illinois. About 86 per cent of the production at the Chicago plant, which in November 1939 amounted to approximately $10,000,000 in value, is shipped to points outside the State of Illinois by thee-respondent and by Wilson & Co. of New Jersey, a wholly owned subsidiary of the respondent. The proportion of out-of-State purchases and shipments at the time of the hearing was substantially the same as during November 1939. The respondent employs approximately 3,600 production and mainte- nance workers at its Chicago plant. - II. THE ORGANIZATIONS INVOLVED Local No. 25, United Packinghouse Workers of America of PWOC, affiliated with CIO, is a labor organization , affiliated with the Con- gress of Industrial Organizations , admitting to membership produc- tion and maintenance employees at the Chicago plant of the respondent. The Wilson Employes' Representation Plan and the Employes' Representative Committee are unaffiliated labor organizations par- ticipated in by the production and maintenance employees at the respondent's Chicago plant. The Joint Representative Committee Plan for Wilson & Co. Em- ployees and the Joint Representative Committee were labor organiza- tions participated in by the production and maintenance employees of the respondent at its Chicago plant. III. THE 'UNFAIR LABOR PRACTICES A. The JRCP The JRCP was, according to a printed booklet embodying its pro- visions, "Approved and adopted May 1921." The purpose of the JRCP was, in part, according to the printed booklet, "to provide a means for the adjustment of all Industrial Relation problems by representation of all interests involved in accordance with right principles." Under the JRCP, the employees were divided into various divi- sions. Each employee of 1 month's standing , except supervisory employees, foremen, assistant foremen, clerks , and timekeepers,, was WILSON & COMPANY, INC. - 445 entitled to vote in an annual election for a representative from his, own division. Only employees of 1 year's standing who were 21 years of age or over and citizens of the United States were eligible for election as. representatives. Each representative was required to be an employee of the division which he represented. The elections were conducted by the employee representatives who had been elected the previous year. The respondent provided ballot boxes and ballots and the elections were held in the plant during working hours. The JRCP functioned through a Joint 'Representative Committee composed of the representatives elected by the employees and an equal number of representatives appointed by the management. Each group chose its own chairman and in addition there were "appointed by the management, a permanent impartial chairman and a permanent impartial secretary." This Joint Committee held regular monthly meetings at "suitable places" provided by the re- spondent. The usual meeting place was in the plant restaurant or the office of the superintendent. The function of this Joint Com- mittee was to ". .. consider and make recommendations on all questions relating to wages and hours, employment and working conditions . . ." The provisions governing the procedure of this Joint Committee stated that both groups were to ".. . have an equal voice and voting power in the consideration of matters coming before the Joint Representative Committee." Voting was to be secret, the employee representatives and the management representatives voting separately. The vote of a majority of each group was-taken as the vote of all and recorded as its unit vote. It was the practice for employee representatives to meet alone for about a half hour before each meeting of the Joint Committee and both groups had the right to withdraw temporarily from any meeting for private discussion of any matter under consideration. The Joint Committee was also empowered to appoint subcommittees and it was provided that on "all such sub-committees both the em- ployees and the management shall-be represented, and each group of Representatives- shall have equal voting power." The respondent was further obligated to provide "at its expense suitable places for meetings" of these sub-committees. The employee representatives also received "their regular pay from the 'Company during such ab- sence from work as this service actually requires." .This was not limited to time spent at Joint Committee meetings but covered all time spent at duties as an employee representative. The meetings of employee representatives were the only meetings of employees provided for by the JRCP. There were no' general meetings of employees or regular employee meetings of any kind. Further, there were no provisions covering membership. There were 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no dues payments. The JRCP had no treasury and no independent source of funds.3 The JRCP could be amended only by a majority vote of both the employee representatives and the management representatives. No amendment could be adopted that would destroy or limit the equal voting power of each group. The JRCP was clearly an organization operating in such a manner as to insure domination and control by the respondent, and to render the organization incapable of functioning as a real bargaining agency for the employees. The employees did not pay dues or contrib- ute to the support of the JRCP; it was financed completely by the respondent and was thus dependent upon the respondent for its operation. In selecting employee representatives to represent them in meetings with the respondent, the employees were restricted to employees of the respondent. These representatives looked to the respondent, not to the employees, for compensation for time spent in connection with their duties as representatives. No general meet- ings of the employees were either planned for in the JRCP or held as a matter of practice. Employees participated in the JRCP only in the annual elections; they had no effective or certain voice in the determination of. issues or decisions on policy; no opportunity was provided whereby they might formulate their demands and instruct their representatives. All meetings were held on the property of the respondent. Elections were held in the plant during working hours; the representatives, who acted as election tellers, were paid by 'the respondent for their time lost from work, and the ballots for such elections were printed by the respondent. Further, the elected rep- resentatives were not permitted to make any decisions or conduct any activities without the approval of the management representa- tives. Through the unit voting system whereby the elected repre- sentatives had one vote and the appointed representatives had one vote, -the respondent could effectively- block any action sponsored by the elected. representatives which it did not approve. In addition, the "impartial chairman" of the Joint Committee was a manage- ment appointee. Finally, by the requirement that amendments to- the JRCP be approved by the majority of the management repre- sentatives, the essential structure of the JRCP could not be altered without the consent of the respondent, and it was further expressly provided that the set-up of the JRCP which insured a controlling voice to the respondent could not be altered in any fashion. Such 3 From some time in 1935, some of the expenses of the JRCP were purportedly met from a Canteen Fund. The relationship between the respondent , the Canteen Fund, and the labor organizations at the respondent's plant are discussed hereinafter in connection with the Plan. See Section III B ( 3), infra. WILSON & COMPANY, INC. 447 control of the form and structure of a labor organization by an em- ployer obviously subjects the operation of the labor organization to the will and domination of the employer and deprives the employees' of the complete freedom of action guaranteed to them by the Act.4 The JRCP was, according to the testimony of employee represent- atives, terminated on December 15, 1936, at which date it was suc- ceeded by the Plan, as discussed hereinafter. Likewise the Joint Committee was terminated on the same date. Nevertheless, from July 5, 1935, the effective date of -the Act, until the date of the termi- nation of the JRCP and the Joint Committee, the -respondent domi- nated and interfered with the administration of' and contributed financial and other support to the JRCP and the Joint Committee established thereunder, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and we so find.r, . B. The Plan (1) Its origin on December 15, 1936 On December 15, 1936, at a meeting of the Joint Committee•a new -plan of employee representation was adopted, which was known as the Wilson Employes' Representation Plan. Emil Rogalla, one of "the employee representatives on the joint Committee, testified 'that during the summer. of 1936 he received a copy of an employee 'repre- 'sentation plan in effect at the respondent's plant at Albert Lea, Minnesota ,6 from one of the employees of the Albert Lea plant and immediately turned the copy over to William "Pemberton; the •chair- •'man of the employee representative's on the joint Committee. Maury Hopkins, manager of industrial relations for the respond- ent, testified that sometime in November 1936 'Pemberton and one or two other employee representatives came to his office and that Pem- berton stated that the employee representatives "had been discussing 4 See N. L. -R. B. v. Newport News Shipbuilding and Dry Dock Company, 308 U. S. 241; Bethlehem Shipbuilding Corporation, Limited, et al v. N. L. R. B., 114 F. ( 2d) 930 (C. C. A. 1), cert. dismissed 312 U S. 710 ; Westinghouse Electric & Manufacturing Co. v. N. L. R B ,*312 U. S 660. 1 Insofar as this decision has dealt with events occurring prior to the effective date of the Act, it has considered them not as constituting separate unfair labor practices , but rather with regard to their bearing upon the issues raised by the complaint . Cf. N. L. R. B. v. Pennsylvania Grephound Lines, Inc., et al., 303 U. S. 261. 9 On June 20 , 1938, the Board held with regard to the employee representation plan at the Albert Lea plant that "by dominating and interfering with the formation and adminis- tration of Wilson Employees' Representation Plan and by 'contributing financial and other support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 '(2) of the Act " See Matter of Wilson & Co ., Inc. and, Independent Union of All Workers or its successor United Packing House Workers, 7 N L. R. B. 986, modified in another particular and enforced in Wilson & Co ,, Inc v. N. L R. B , 103 F. ( 2d) 243 (C C. A.'8). '.448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -the question of abolishing the appointed side and getting a Plan more like one that was in effect at Albert Lea, Minnesota, and he asked me [Hopkins] if the Company, if the management would deal with such a committee and recognize it as the bargaining agency like it had been doing with the Joint Representative Committee." Hop- - kips further testified that in reply to this request he told Pemberton and the other employee representatives that it was_ "a matter for the employees of the plant to select and have the kind of agency that they 'wanted to represent them, and if the employees wanted that, why it was satisfactory to the management, and we would meet with them and bargain with them as we had been doing with the Joint Repre- sentative Plan." - On December 14, 1936, a meeting of the elected representatives was held at which a plan was drawn up which would give to the em- ployees of the' plant a plan of employee representation that would not involve management appointive members on the representative committee as provided in the JRCP. Hopkins attended this meet- ing. He informed the employee representatives that under, the pro- posed plan the management repre`sentative's would not attend meet- ings of the employee representatives, but that the employee repre- sentatives would probably desire; and it would be necessary for, a representative of the management to be present if meetings were held on company time, because, as he testified, ". . . as we understood the law at that time, they were bargaining, they were meeting on company time . . ." He then read the, plan and various questions about its provisions were discussed. The employee representatives then adopted the Plan. A meeting of the Joint Committee was held on December 15, 1936. At this meeting Hopkins stated that the respondent was "agreeable to granting [the] request" of November 1936 of the elective members that the JRCP be amended by substituting a plan of employee repre- sentation not involving management appointive representatives. He then read the Plan to the representatives. It was then voted that the Plan be adopted and that the elected representatives then serving on the Joint Committee constitute the Committee under the Plan until the election of representatives in May 1937 as provided in • the Plan. The management representatives as well as employee repre- sentatives participated in this vote. (2) The structure and operation of the Plan The Plan' adopted at the December 15 meeting of, JRCP repre- sentatives was little different from the JRCP in its structure and essentially similar in operation. Perhaps the only feature that could WILSON & COMPANY, INC. 449 be pointed to as a significant change was the elimination of-the appointive representatives and of the unit voting system hereinabove described.. In practice, however, management representatives con- tinued to participate in Committee meetings. Joint Committee meet- ings under the JRCP were attended by 15 representatives of the management, whereas the Committee meetings under the Plan were attended, except in a few instances, by 1 or 2 representatives of the management. Section I, Article I, of the Plan provided that : This plan 'is adopted by employees of Wilson & Co., at Chicago, Illinois, and approved by the management to provide a means whereby employees through representatives of their own choos- ing may deal collectively with management and have a voice in the consideration of matters of mutual interest. As under the JRCP the employees were.divided into various divi- sions for voting purposes. ' The restrictions on voting in annual' elections were relaxed to permit any non-supervisory employee to vote. Representatives were required to he employees of the division which they represented and to be in the employ of the 'respondent for 1 year: The elections were conducted by an election committee ap- pointed by the employee representatives,' and the respondent, as before, provided ballots, and the elections were held in the plant during working hours. The ballots were counted on the premises. The Committee continued to hold its meetings on the property of the respondent, sometimes with a management representative present and sometimes alone. The Plan provided that "Meetings will ordi- narily be held during regular business hours and no representative shall suffer any loss of compensation by reason-of attendance at such meetings." The respondent, subsequently, on May 18, 1937, issued rules to the effect that employee representatives would be paid only for time spent in meetings with the management, but these rules were disregarded. . The representatives in fact received their regular pay for all time lost on representative duties whether this time was spent in meetings -with-the management or in meetings among them- selves or on any other matter connected with representative duties. Indeed, many of the representatives would take time off from work for purposes other than the performance of their duties as representa- tives, although stating to their respective foremen that this time was spent on representative duties. This practice' although known to the respondent, was condoned by it, and the representatives were paid for this time as they were for time actually spent on representative 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'duties.7 Further, the representatives were reimbursed for their time spent on representative duties on days when their departments were shut down and they, accordingly, lost no time from work. . About 50 per cent of the representatives' time was spent on representative business. As under the JRCP, the meetings of employee representatives were the only meetings of employees provided for under the Plan. Walter Piotrowski, who as secretary of the Committee, kept the minutes of their meetings, regularly turned over these minutes to either A. E. Stube, general timekeeper, plant superintendent Cameron, or L. O. Green, assistant to Hopkins. Green revised these minutes as to form and had them typed or mimeographed. The minutes were then dis- tributed to the .15 employee ' representatives. On at least one 'occa- sion, Piotrowski was instructed to revise %his minutes by Cameron, plant superintendent, who told Piotrowski that his original minutes were "written too drastic." Finally, as with the' JRCP, amendments to the Plan required the approval of the respondent. The relevant provision; Article.X, reads as follows : This Plan and the supplementary sections covering organiza- tion and election, .procedure may be amended with.the approval of the management by a majority of,all, the elected representa-, tives concerned. ' The 'respondent made much at the hearing of testimony that repiesentatives'of the re- spondent frequently warned the employee representatives, against this .practice of so-called "gold-bricking." Nevertheless, the respondent never adopted the easily available penalty of docking the representatives guilty of this practice. See the testimony' estimony of Hopkins on this point : . . Q Without going into, detail, Mr. Hopkins, how many times %ould you say since you have been with the company you have talked with the Committee or members of the Committee about leaving their Rork ostensibly on Committee' business when they did not have any Committee business? A How many times? Q. Yes. A Well, I,should say it would average once a week since the first of 1937 that I either talked to some member of the Committee or some group of members of the whole Committee. Mr. Brssu'y Is that right down to date? Q. (By Mr. COONEY.) When was the last time you remember of talking to any mem her of the Committee, Mr. Hopkins, about that? A. In the spring of 1940 i t • f t 4 Q. When you talked to these men did they agree they were gold-bricking or did they claim they were on Committee work when you'accused them of being away? A: They claimed that they were on Committee work in some form or another, or that they were waiting for somebody. Q. (By Mr. COONEY.) Did you notice at the talks you had with the Committee mem- bers, Mr. Hopkins, whether your talks had any effect upon them, or otherwise? A. Well, they didn't cut it out. WILSON & COMPANY, INC. 451 Apparently in accord with this provision, the employee representa- tives in May 1937 considered - with the management the problem of representation of checkers in the Plan. Cameron and Hopkins 'stated,, for 'the' respondent, 'that checkers were regarded as super- visors, and under the respondent's interpretation of the Plan were not eligible for participation in the Plan. Similarly, in June 1937 'the employee representatives discussed certain suggested clarifications -in the written provisions of the Plan, while Cameron was present as a'represeniative of the management. In April 1937, after the Supreme Court decisions upholding the constitutionality of'the Act, certain of the 'employee representatives raised questions concerning the legality of the Plan. At a meeting of employee representatives on April 20, 1937, Cameron read a letter 'pertaining to this question from James D. Cooney, vice president of and counsel for the respondent. This letter reads as. follows: There have been a great many questions asked by different em- ployees of, ours 'as to whether the Nilson Employee Representa- ytive- Plan is a . violation of the National Labor Relations, Act (Wagner Law). , These inquiries have,, no doubt, been brought "about by, the wide publicity that has, been given ,to the recent Supreme Coiirt decision. Tlic' National Labor Relations Act answer the question whether or` not our Employe Representation Plan Js a violation of the law., Section 2 (5) specifically makes le galathe Wilson Employe Rep'res'entation Committees, and says: • The term "labor organization" means any organization of any kind, or any-agency or .employe representation committee or plan, in'which employes participate and which exists for he purpose in whole or in part, 'of dealing with employers concerning grievances, labor disputes, wages, rates of pay, houl;s of employment or conditions of work. In view of the undisputed legality of the Wilson Employe Rep- resentation Plan, you can see that there is no doubt about the con- tinuance of our dealings with our employes' chosen representa- tives, as they have been conducted in the past. - In case you have any inquiries from your'own employes, you are at liberty to show them this communication: The minutes of this meeting record that after the reading of the letter, "A motion was made; seconded and carried to have the above letter printed and posted-throughout the plant." On May 4, 1937,, representatives for the period May 1937 to May 1938 were nominated and the following week the election of repre- 141843-42-Nof 31-30 1 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives took place. Instructions setting forth the Plan provisions covering eligibility to vote and eligibility to be elected as a repre- sentative were posted on bulletin boards throughout the plant. Both .elections were held at the plant during working hours and on each occasion consumed approximately the entire day. With one excep- tion, the same 15 representatives that were serving under the JRCP in the latter part of 1936 and served under the Plan from December 15, 1936, until the date of the election, were reelected on May 11. John Ryan replaced Pemberton as chairman of the Committee and Piotrowski replaced George King as secretary of the Committee. Both Ryan and Piotrowski had been elective representatives under .the JRCP. Soon after the election notices of the nominations and ,the number of votes received by each nominee were posted on the plant bulletin boards. Elections in 1938, 1939, and 1940, were simi- larly conducted. Several slight changes in the written provisions of the Plan were made on June 16, 1937. From Section I of Article I, which read : "This Plan is adopted by the employees of Wilson & Co. at Chicago, Illinois, ... and approved by the management," was deleted the words, "and approved by the management." Article IV, paragraph 2, concerning eligibility, was changed so that any employee who was not a supervisory employee became eligible to nomination and elec- tion as a representative.8 However, Article X remained the same : the revised Plan could not be amended except with the "approval of thet,management." On °the same date Cameron signed the' ,following statement appended to the revised Plan of June 16: Wilson & Co., Inc., recognizes the -Committee selected pursuant to the foregoing Employes' Representation Plan as the bargain- ing agents of the employees of its Chicago plant for the purpose of collective bargaining. In November 1939 the employee representatives received notice of a petition for certification filed by the Union with the Regional Office of the Board, and determined to secure .the services of an attorney. Ryan consulted with Gimbeck of the respondent's legal staff who referred -him to an attorney, who was thereupon retained by the employee representatives. At the attorney's suggestion a peti-, tion designating the employee representatives as bargaining repre- sentative was prepared for circulation among the employees. Sub- sequently this petition "was circulated in the plant during working hours. 8 Previously only employees who had been in the regular employ of the respondent for I- year or more immediately preceding the date of the primary election were eligil le. WILSON & COMPANY, INC. 453 (3) The Canteen Fund The Plan provided for no membership dues and certain of the expenses of the employee representatives were purportedly paid for out of a so-called Employees' Canteen Fund. These expenses in- cluded such items as a $2.00 weekly payment to the secretary of the Committee, reimbursement to the members of the election committee for their time lost in the conduct of the elections in 1938, 1939, and 1940, and other miscellaneous items. The method of payment was as follows. Vouchers for amounts to be paid were prepared by L. 0. Green, Hopkins' assistant. Upon signature by the chairman of the Committee, these vouchers were honored by the respondent's cashier. The amounts so paid were, according to the testimony, charged by the respondent to the Canteen Fund. The monies in this'Canteen Fund came from rentals paid by companies maintaining certain candy vending machines in the respondent's plant. According to Ryan, checks from these companies were presented to him by 'Green for his endorsement, and after endorsement the checks would be returned to' Green. Gi` en',was in full charge of this Canteen Fund; neither Ryan nor any of the other representatives were aware of the amount of income or expenditures from the Fund. Green did not testify, nor were any records of the Canteen Fund produced. It is impos- sible, therefore, to determine from the record whether the vouchers signed by Ryan were in fact met by the Canteen Fund. Whether or not the vouchers were paid, out of this Canteen Fund, it is clear that the vouchers were honored by the respondent's cashier from funds in the respondent's control. The property used for the placing of the vending machines was the respondent's, not the Committee's; the decision to permit the vending machines to be placed in the plant was the respondent's, not the Committee's; how the rental was to be used was clearly up to the respondent. Thus, whether the monies used to meet the vouchers were paid out of the Canteen Fund or other funds of the respondent, it is clear that such payments constituted financial support by the respondent to the Committee." (4) Conclusions regarding the Plan We have found above that the JRCP was a labor organization operating under the respondent's domination and control and with the respondent's financial and other support. The 'revisions in the JRCP adopted on December 15, 1936, that led to the organization ,of the Plan did not establish an independent labor organization. 9 See Matter of Revere Copper and Brass Incorporated and United Electrical, Radio d Machine Workers of America, Local #303, 16 N. L. R B. 437; Matter of Iowa Packing Company and United Packinghouse Workers Local Industrial Union No 144, 11 N L. R. B. 986; Matter of Clark Equipment Company and International Association of Machinists, Lodge 46, 12 N L. R. B 1469 454 DECISIONS Off' NATIONAL LABOR RELATIONS BOARD There was a complete continuity. between the two organizations. Without reference to the employees, the revisions were prepared by the employee representatives, many of whom had served in this capacity for a long time under the JRCP, an organization dominated and controlled by the respondent.1° As in the past, employee repre- sentatives consulted not with the employees but with the respondent ; Hopkins participated in the preparation of the. Plan and, as stated in the Plan itself, it was adopted with the approval of the respond- ent.lt The Plan was in fact adopted by the Joint Committee established under the JRCP and thus also was adopted with the participation and approval of the respondent. The Plan was clearly the successor to the JRCP. Its structure and organization with the exception above described was almost ,identical. The employee representatives under the JRCP continued to function as employee representatives under the Plan, assuming these positions by virtue of their position in the JRCP. The respond- ent, moreover; continued to deal with the employee representatives under the Plan precisely as 'it had dealt with them iuider the JRCP, according them the same privileges and perquisites. That they met with only one or two members of the management instead of with a number equal to themselves is scarcely a material consideration inas- much as ma'nagemen't representatives continued to ,participate in meetings of the representatives at which internal Committee affairs as well as matters properly the subject of collective bargaining were discussed. The employees iR general could hardly have considered the Plan as other than the successor to the JRCP.12 The respondent did not request nor was it furnished any evidence that the represent- atives had been, designated by the majority of the employees. It extended them recognition, nevertheless. , Finally, the respondent reserved under the Plan as it had under ,the JRCP a veto power over all amendments to,the Plan, and as the record shows, participated in discussions of amendments or revisions. As has been stated above, such control of the form and structure of a labor organization by an employer obviously subjects the operation 10 Cf International Association of Machinists v. N L R. B., 110 F ( 2d) 29 (App. D C.), aff'd 311 U. S. 72; Westinghouse Electric it Manufacturing Co. v N. L. R. B. .312 U S. 660; N. L. R B v. Link-Belt Co, 311 U. S. 584; Bethlehem Shipbuilding Corporation, Limited, et al v. N. L. R B 114 F. (2d) 930 (C. C A 1), cert. dismissed , 312 U S 710. , ,11 Clearly the deletion of this statement in the June 16, 1937, revision of the Plan does not alter the fact of its approval by the respondent 13 Cf. Republic Steel Corporation v. N. L. R. B , 107 F. (2d) 472, enforcing as modified Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219 (modified in another particular in Republic Steel Corporation v N. L R. B., 311 U. S. 7) ; Western Union v. N. L R B, 113 F. ( 2d) 992 (C. C A 2), enf'g Matter of The Western Union Telegraph Company and American Communications Association; 17 N. L R. B 134; Magnolia Petroleum Company v N L R. B (C. C. A 10), decided November 18, 1940. WILSON & COMPANY, INC. 455 of the labor organization to the will and domination of the, employer and deprives the employees of the complete freedom of action guar-, anteed to them by the Act.13 Moreover, the respondent continued 'to support the Plan as it had the JRCP before it. The manner in which the respondent's contribu- tion of the proceeds of the rental of space for candy vending machines constituted financial support has already been described. In addition, the respondent extended its facilities to the employee representatives for meetings and for the conduct of elections. It permitted elections to be conducted and a petition to be circulated in the plant during working hours. The respondent paid the employee representatives for many activities not covered by the proviso of Section 8 (2) of the Act "permitting employees to confer with him [the employer] during working hours without loss of time or pay." For example, the re- spondent paid employee representatives for time spent at meetings or other representative duties where no representative of the manage- ment was present; as we have found above, it paid the employee representatives for time spent on other than representative duties, condoning the pretense that the time was in fact spent on representa- tive work; it paid employee representatives for their time on repre- sentative work when their departments were closed and they would not otherwise have worked. Further, the presence of a management official at meetings of the employee representatives not devoted solely to bargaining or conferring with the management, but also to matters concerning the-employee representatives alone does not bring such meetings within the proviso of Section 8 (2) of the Act. The proviso is designed to permit employees to confer with their employer during working hours on grievances and similar matters without loss of time or pay; it is not intended to serve as a cloak for an employer's support of a labor organization of its employees.14 In fact, the presence of a management official at meetings of employee representatives in which the internal affairs of the organization are considered in itself con- stitutes domination and interference with the administration of the Plan. We find that the respondent, by the above-described course of con- duct, has dominated and interfered with the formation and administra- tion of Wilson Employes' Representation Plan and the, Employes' 11 See cases cited in footnote 4, supra 14 Because of the existence of some ambiguity in the record on the question , we have not considered the nature of various subcommittees under the Plan such as the Committee on Education and on Safety. Although finding it unnecessary to pass upon the point, we en- tertain considerable doubt as to whether these committee meetings constitute such bargain- ing conferences as would come within the proviso of Section 8 (2) permitting employees to confer with management without loss of time or -pay. See Matter of The Colorado Fuel and Iron Corporation and International Union of Mine, Mill and Smelter Workers, Local 442, 22 N L R. B 184 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representative Committee established thereunder and has contributed' financial and other 'support thereto, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ' C. Other alleged acts of interference, restraint, and coercion The complaint alleged that from on or about July 5, '1935, the respondent had intimidated its employees by questioning them as to their union activities, by warning them not to become affiliated with "outside" labor organizations _and not to vote for the, Union in the election conducted on January 26, 1940, and by threatening to close the plant if the Union were designated as the collective bargaining agency of its employees. The proof adduced at the hear-- ind does not support these allegations. There was no testimony concerning threats to close the plant in the event the Union were designated as collective bargaining agency. One ' employee, Anton Pasinsky, testified that he was- questioned by his, foreman, Stanley. Lenski, concerning union activities and warned against, affiliating with "outside" labor organizations and against voting for the Union in the election on January 26. Another. witness, Thomas Jefferson McCallum, testified that he overheard his foreman, Herman Palm,_ instruct an employee to vote for the Plan in the election, and a third witness, Louis Karlak, testified. that his assistant foreman, Robert Mensik, spoke to him, questioning the advisability of .joining a union. All his testimony was denied by the foremen and the assistant foreman alleged to have made these statements. From his examination of the testimony and his observation of all these. wit- nesses at the hearing, the Trial Examiner found that these allega- tions, were not supported by the evidence.. No exceptions were filed to such finding. We find, as did the Trial Examiner, that the allegations of. the' complaint that the respondent questioned its employees as to their union activity, warned them against affiliation with "outside" labor organizations and against voting for the Union in the, election of January 26, and threatened to close the plant if the. Union .were designated as the collective bargaining agency of its employees are not supported by the evidence. Accordingly, the complaint will be dismissed as to these allegations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and sub- WILSON & COMPANY, INC. 457 stantial relation in trade, traffic, and commerce among the several' 'States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and/to take certain affirmative action which we find necessary, to effectuate the policies of the Act. We have found that the -respondent dominated and interfered with the administration of and contributed financial and other support to the JRCP. Because of its discontinuance, we will not order its dis- establishment. We have also found that the respondent dominated and interfered with the formation and administration -of and con- tributed financial and other support to Wilson Employes' Representa- tion Plan and the Employes' Representative Committee established thereunder. We further find that the effects and consequences of the respondent's domination, interference with, and support of the Plan and the Committee, as well as the continued recognition of- the Com-• mittee as the bargaining representative for its employees, constitute, a continuing obstacle to the free exercise by its employees of the right to self-organization and to bargain collectively through representa- tives of their own choosing. The Plan and-the Committee were created and have been utilized by the respondent as an instrumentality to defeat the rights of its employees under the Act. For these reasons, the Committee is incapable of serving said employees as a genuine collective bargaining agency. Accordingly, we will order that the respondent disestablish and withdraw all recognition from the Plan and the Committee as the representative of any of its employees for the'purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment.,, Because of the possibility of their revival at some future time, we shall also order the respondent to refuse recognition to the Joint Representative Committee Plan and the Joint Representative Com- mittee established thereunder. As we have found above, the respondent has by varying methods and over a long period of time dominated and interfered with labor organizations of its employees and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's course of conduct in this respect,,by virtue both of its intensive and extensive character, dis- ss See N. L. R. B. v. Newport News Shipbuilding and Dry Dock Company, 308 U S. 241. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closes a purpose to defeat self-organization and its objects. Thus the respondent, by its participation in, the administration of the JRCP, its financing of that organization, its control of the organization's form and structure, upon the termination of the JRCP, its participa- tion in the formation of the Plan and in its administration, the finan- cial and other support contributed to the Plan, the control of that organization's form and structure, and. by other conduct hereinabove set forth, interfered with its employees' right to self-organization, and to form, join, and assist labor organizations, denied its employees the free opportunity to bargain collectively through representatives of their own choosing, and substantially deprived its employees of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, except in the channels directed by the respondent. Because of the respondent's unlawful conduct and its underlying purpose, we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the respondent's conduct in the past.1' The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of, Section 7, to prevent a recurrence.of unfair labor practices, and thereby to minimize indus- trial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we will order the respondent to cease and desist from in any manner infringing the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local Union No. 25, United Packinghouse Workers of America of PWOC, affiliated with CIO, Wilson Employes' Repre-, sentation Plan and the Employes' Representative Committee estab- lished thereunder are labor organizations, and Joint Representative Committee Plan for Wilson & Co. Employees and the Joint Repre- sentative Committee established thereunder were labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of and contributing financial and other support to Joint Representative Committee Plan for Wilson & Co. Employees and the Joint Repre- sentative Committee, established thereunder, the respondent has en- "See N. L. R B v. 'Express Publish4ng'C^mpany;'312 U. S 426 WILSON & COMPANY, INC. 459 ;gaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (2) of the Act. 3. By -dominating and interfering with the formation and admin- istration of, and contributing financial' and other support to Wilson Employes' Representation Plan and the Employes' Representative Committee established thereunder, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Sec- tion 8 (2) of the Act. - 4. By interfering with, restraining, and coercing its employees in the exercise of the, rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices ,within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c)a of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Wilson & .Co., Inc., Chicago, Illinois, its officers, agents, successor's, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Joint Representative Committee Plan for Wilson & Co. Employees, the Joint Representative Committee established thereunder, Wilson Em- ployes' Representation Plan, and the Employes' Representative Com- mittee established thereunder, or with the formation or administra- tion of any other labor organization of, its employees, and from contributing financial or other support,to said labor organizations or to any other labor organization of its employees; (b) Recognizing Wilson Employees Representation Plan or the Employees Representative Committee established thereunder as the representative of any of the employees for the purpose of ,dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain' collectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Wilson Employes' Representa- tion Plan and the Employes' Representative Committee. established thereunder, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment, and completely disestablish said Wilson Employes' Representation Plan and the Employes' Representative Committee established thereunder, as such representative; (b) Refuse to recognize Joint Representative Committee Plan for Wilson & Co. Employees and the Joint Representative Committee established thereunder as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) Post immediately in conspicuous places throughout its plant in Chicago, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of the posting, notices to its employees stating that the respondent will not engage in the conduct from which it has been ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; and that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order: (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it, hereby is, dismissed in so far as it alleges that the respondent questioned its employees as to their union activities, warned them not to become affiliated with "outside" labor organizations and not to vote for the Union in the election conducted on January 26, 1940, and threatened to close its plant if the majority of its employees designated the Union as their agency for collective bargaining.