Agar Packing & Provision Corp.Download PDFNational Labor Relations Board - Board DecisionsOct 6, 194458 N.L.R.B. 738 (N.L.R.B. 1944) Copy Citation In the Matter Of AGAR PACKING & PROVISION CORPORATION and PACK- INGHOUSE WORKERS ORGANIZING COMMITTEE ON BEHALF OF UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL 24, C. I. O. Case No. -13-C-2-158.-Decided October 6, 194.41 DECISION AND ORDER Upon a complaint issued pursuant to charges filed by Packinghouse Workers Organizing Committee, on behalf of United Packinghouse Workers of America, Local 24, affiliated with the Congress of Indus- trial Organizations,' herein called the Union, against Agar Packing & Provision Corporation, Chicago, Illinois, herein called the respond- ent, a ,hearing was held before a Trial Examiner at Chicago,-Illinois, from July 26 to August 4, 1943, in which the Board, the respondent, and the Union participated by their representatives. The Board has reviewed the Trial Examiner's rulings on motions and on objections to the admission of evidence and finds that no prejudicial error was committed. The rulings, with the exception noted below, are hereby affirmed. On September 8, 1943, the Trial Examiner issued his Inter- mediate Report, a copy of which is attached hereto, in which he found that the respondent had engaged in unfair labor practices. There- after, the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. Oral argument was held before the Board at Washington, D. C., on October 26, 1943. The complaint herein alleges, among other things, that the re- spondent required its employees to execute individual employment con- tracts, and that it utilized such contracts to prevent self-organization and collective activity among its employees.2 The respondent has moved to dismiss the complaint in its entirety because of a provision in the National Labor Relations Board Appropriation Act, 1944,3 im- Case No . 13-R-1616 , which was consolidated with Case No. 13-C-2158 on July 2, 1943, was thereafter severed from the last -mentioned case following the request of the petitioning union in Case No. 13-R-1616 for permission to withdraw the petition therein , which request was granted. s The Trial Examiner considered these allegations of the complaint on their merits and recommended that they be dismissed. 8 57 Stat. 515. 58 N. L. R B , No. 153. 738 AGAR PACKING & PROVISION CORPORATION 739 posing a restriction on the use of the funds therein appropriated, in connection with complaint casts arising over agreements "between management and labor" which had been in existence for 3 months or longer without complaint being filed.4 The 1944 Appropriation Act expired on June 30, 1944, and was followed by the National Labor Rela- tions Board Appropriation Act, 1945,5 presently in force and effect, which contains a limitation somewhat similar to that contained in the 1944 Act.6 Since, as hereinafter set forth, our finding that the re- spondent violated Section 8 (1) of the Act is adequately supported without regard to the respondent's alleged conduct in connection with the individual employment contracts, we find it unnecessary to deter- mine whether such conduct was violative of the Act. Since we shall make no finding or order herein concerning the individual employ- ment contracts, we deem it unnecessary to consider the applicability of the afore-mentioned limitation in the 1945 Appropriation Act to such contracts. Moreover, even if such contracts were held to come within the purview of that limitation, this would not preclude us from pro- ceeding with a determination of the other unfair labor practices in- volved herein and found below. Those unfair labor practices are distinct and severable from, and not dependent upon or materially affected by, the alleged unfair labor practices connected with the indi- vidual employment contracts, and are in nowise related to those con- tracts, and we so find. Thus, insofar as the complaint embraces the unfair labor practices found below, it is not "a complaint case arising over an agreement between management and labor," and we conse- quently see no reason for not proceeding with that portion of the com- plaint.7 The afore-mentioned motion of the respondent to dismiss the complaint in its entirety is, accordingly, denied. 4 This provision read as follows • No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement between management and labor which has been in existence for 3 months or longer without complaint being filed Provided, That , hereafter , notice of such agreement shall have been posted in the plant affected for said period of 3 months, said notice containing information as to the loca- tion at an accessible place of such agreement where said agreement shall be open for inspection by any interested person " Public Law No 373 , 78th Congress , 2nd Session , Title IV. a The lin Cation in the 1945 Act reads as follows : "No part of the funds appropriated in this title shall be used in any way in connection with a complaint case ausmg over an agreement , or a renewal thereof , between management and labor which has been in existence for 3 months or longer without complaint being filed by an employee or employees of such plant : Provided, That, hereafter , notice of such agreement, or renewal thereof , shall have been posted in the plant affected for said period of 3 months , said notice containing informa- tion as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested person• Provided further, That these limitations shall not apply to agreements with labor organizations formed in violation of section 158, paragraph 2, title 29, United States Code [ Sec 8 ( 2) of the National Labor Relations Act]." 7 Cf Matter of Greenville Steel Car Company , 54 N. L R B 608. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the Intermediate Report, the exceptions and brief, and the entire record, and' hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with our findings and order herein set forth. We agree with the conclusion of the Trial Examiner that the re- spondent, prior to the election held on May 11 and 12, 1943, engaged in a course of conduct which was violative of Section 8 (1) of the Act: For approximately 11/2 weeks prior to the election, a number of employees distributed anti-union leaflets in front of the respondent's plant. Upon reviewing the record, we find, as did the Trial Ex- aminer, that Foreman Potocki told employee Mazeika that the re- spondent would compensate her for the time that she would spend in distributing these leaflets; that a similar promise was made to many employees by LaBedz, a matron employed by the respondent, who was in charge of the distribution of these leaflets; and that the respondent in fact compensated several employees for time spent by them, outside their regular working hours, in such distribution."- The grant of economic benefits to employees for engaging in anti-union conduct is plainly a form of interference prescribed by the Act. Favors be- stowed by an employer upon his employees to induce them to withdraw from a union has been recognized as an unfair labor practice in the recently decided case of Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678, in which the United States Supreme Court stated : . . . The words and purpose of §§ 7 and 8 (1) of the Act enjoin an employer from interfering with, or coercing, its em- ployees in their rights to self-organization, to form, join, or assist labor organizations, and to bargain collectively through repre- sentatives of their own choosing. There could be no more obvious way-of interfering with these rights of employees than by grants of wage increases upon the understanding that they would leave the union in return. The action of employees with respect to the choice of their bargaining agents may be induced by favors be- stowed by the employer as well as by his threats or domination. International Ass'n of Machinists v. Labor Board, 311 U. S. 72; Labor Board v. Falk Corp., supra; Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 266-268. The conferring of benefits upon employees for engaging in anti-union demonstrations or activities is no less potent a form of interference than is the grant of favors to them in return for their withdrawal 8 The record establishes to our satisfaction that at least six employees ( Haldys, Murphy, Price , LaBedz , Sobie, and Turner ) were paid by the respondent for time spent by them in the distribution of anti -union leaflets. AGAR PACKING & PROVISION CORPORATION 741 from the Union . Such conduct by an employer at any time is clearly objectionable . A fortiori should it be frowned upon when engaged in on the eve of an election , when it becomes little less than an outright purchase by the employer of anti-union votes. Consistent with the respondent 's unlawful conduct in bestowing economic favors upon its employees for engaging in anti-union demon- strations was Vice-President Edwards ' activity , at a meeting of em- ployees called by him on the day preceding the election , in displaying a group of bonus checks to the employees and advising them that they would secure those checks as scon as the bonus was approved by the War Labor Board, and that they would receive them sooner than would the employees at "Armours and Swifts and other companies" who "have a union .'' a The respondent had already notified the employees a few weeks prior thereto that an application for approval of the bonus had been submitted by it to the War Labor Board. In view of this cir- cumstance , the imminence of the election , and the respondent's conduct as a whole, it is plain, and we find, that Edwards ' afore-mentioned activity and remarks were designed and were reasonably interpreted by the employees as an offer to them of an early payment of the bonus in return for, or as a means of inducing, their rejection of the Union at the polls , and that such conduct by Edwards was violative of Section 8 (1) of the Act. As recently stated by the Circuit Court of Appeals for the Seventh Circuit in 1Vestenn Cartridge Co. v. N. L. R. B., 134 F. (2d) 240 (C. C. A. 7), cert. den., 320 U. S. 746: ... interference is no less interference because it is accomplished through allurements rather than coercion , when [such allure- The above finding concerning Edwards ' remark that the employees would receive the checkr, sooner than would the employees at unionized plants, is based upon the testimony of employee Mazeika , whom we find to be an honest witness Employee LaBedz , whom we find to be an incredible witness , testified that Edwards merely stated that he could not distribute the checks until lie obtained a "release " Employee Christian testified that he " thought" the "C . I 0 " was not mentioned on the occasion in question Other employees, in testifying conceining the event , made no mention of the rena ' k in question , but neither these employees nor Christian were questioned as to whether that remark was made, nor did Edwards deny making it Also , while the respondent offered to prove, through many witnesses , that Edwards displayed bonus checks and told the employees that they would be distributed as soon as the bonus was approved , which offer was pioperly rejected because the pioffeied evidence would have been unnecessarily cumulative , the respondent made no offer to prove that Edwards did not make the remark in question. In view of the foregoing, and upon the record as a whole, we find that Edwards made the remark substantially as found above But even if Edwards did not make the remark attiibuted to him by Mazeika, his other conduct in connection with the bonus checks was violative of the Act , since, in view of its timing , the expressed opposition of the respondent to the Union, and the respond- ent's conduct on the eve of the election as a whole , it was intended and was reasonably interpreted by the employees as an offer of an economic benefit to them in order to induce then to defeat the Union at the polls Cf. Medo Photo Supply Corp v.'N. L R - B, supra, and Western Cartridge Co v N. L R B, 134 F (2d) 240 (C C. A 7), cert. den 320,U. S. 746. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments are] employed to stem a tide of organization and [are] adopted as, a means of eliminating outside unions as collective bargaining agents of the company's employees.io Granting and offering economic benefits to the employees were not the only media employed by the respondent to induce them to reject the Union at the polls. Another, more subtle, but no less objectionable, technique for the attainment of that end was utilized by the respond- ent on the day preceding the election, when Vice-President Edwards distributed to the employees, approximately 85 percent of whom were wearing caps bearing the legend "P. W. 0. C.-C. I. 0. Locals 23-24- 56" which were distributed by the Union about 9 days previously, and requested them to wear a more attractive cap bearing the legend "Vic- tory-100% American-Buy Bonds," whereupon many employees re- placed the union cap with the cap distributed by the respondent. In view of its timing,hi and considered in the light of the respondent's conduct as a whole, we are convinced, and we find, as did the Trial Examiners that Edwards' distribution of the cap on the day preceding the election was not induced by a desire to commemorate the completion of a war bond campaign which bad been in progress at the plant, but was rather designed to remove from the scene on the eve of an elec- tion a very conspicuous union insignia (the union cap) and to identify the respondent's opposition to the Union with 100 percent American- ism. The respondent's conduct in requesting the employees, a day before the election, to replace the 'union cap with its own, thereby in- ducing them to engage in an anti-union demonstration during work- ing hours, was an ill-disguised form of coercion and interference proscribed by Section 8 (1) of the Act.12 10 See also Medo Photo Supply Corp v. N. L. R B , supra , and Matter of Tampa Electrio Co, 56 N. L R B 1270. 11 There is no showing that the goal set by the respondent in the bond drive of having all the employees deduct 10 percent from their wages for the purchase of bonds , which was to be the occasion on which , according to the respondent, it was to distribute caps to the employees , was reached on the day (May 10) that Edwards distributed the caps In any event , there is no reason why the respondent could not have waited with the distribution of these caps until , the day following the election 1' Even if the distribution of the caps , when considered in isolation, were not to be deemed improper , such activity was clearly violative of the Act when viewed in the light of the totality of the respondent 's conduct on the eve of the election . We do not agree with the view that the respondent 's distribution of the caps on the day preceding the election was not violative of the Act, even when viewed in the light of the respondent ' s entire course of conduct, on the theory that the respondent could in any event have prohibited the wearing of the union caps during working hours because they were conspicuous campaign material. We see no ground on which the respondent herein could have enjoined the wearing of the union caps, any more than it could Lave prohibited the wearing of any other conspicuous union insignia such as large membership or stewards ' buttons, during working hours, with- out violating the Act See Republic Aviation Corp v N L R B, 142 F. ( 2d) 193 (C. C. A. 2), enf'g 51 N L . R B. 1186 ; Matter of National Container Corp, 57 N L. , R B. 565. The record establishes that employees frequently wore caps of their own in con- AGAR PACKING & PROVISION CORPORATION 743 Forming part of the coercive conduct outlined above Were Vice- President Edwards' remarks, in an address to the employees at the plant on the day preceding the election, that 2 years prior thereto the respondent had succeeded in removing the radicals [meaning the Union] from the plant, that "he intended to keep them out," and that "all,o f the employees were to help him keep them out." 13 This unequivocal declaration of the respondent's attitude toward the Union, particularly when viewed in the -light of the other manifestations of the respondent's intense hostility toward that organization, not only, made it clear to the employees that the respondent was intent on doing all in its power to prevent the Union from organizing its employees, but was tantamount to a directive to the employees not to affiliate them- selves with the Union. Such utterances have "telling effect among men who know the consequences of incurring [their] employer's strong displeasure," 14 and, containing, as they do, an "intimation of re- prisal" 15 against those who would not abide by the employer's wishes, are violative of Section 8 (1) of the Act 15 Another weapon utilized by the respondent on the eve of the election to insure the Union's defeat was the highly emotional and inflamma- tory letter of May 8 to the employees. In this letter, the respondent, among other things, reminded the employees that the Union (C. I. 0.) had in the past caused them to suffer a loss of wages by instigating work stoppages and strikes, stated that the Union was composed of gangs, cliques, schemers, contract breakers, savages, bullies, trouble nection with their work, and there is no showing that the wearing of the union caps during working hours interfered with the employees ' operations. 13 These remarks were attributed to Edwards by employee Christian, whom we find to be an honest witness See N L. R B v. Virginia Electric & Power Co., 314 U S 461), 477. is See N. L R B v. American Tube Bending Co , 134 F. (2d) 993 (C C A 2), cert den, 320 U. S 76S. 16 In addition to the remarks mentioned above, Edwards stated that "to be sure that he would keep [the ITnion] out . . he would get on a soap box and make speeches if he had to " In view of the respondent 's conduct as a whole, Edwards' reference to making speeches on a soap box in order to keep the Union out can hardly be said to have been construed by the employees as a complete definition of the measures he might possibly take in order to insure the desired result. It is more reasonable to infer that this was viewed merely as Edwards' picturesque manner of stating that, if necessary, he would resort to as unorthodox a technique for a vice president of a large industry to employ as soap box oratory As recently recognized by the United States Court of Appeals for the District of Columbia in Peter J. Schweitzer v. N. L. R. B., 144 F. (2d) 520 (C. A. D C ). "Words are not pebbles in alien juxtaposition ; they have only a communal existence , and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the set- ting in which they are used , of which the relation between the speaker and the hearer is perhaps the most important part: What to an outsider will be no more than the vigorous presentation of a conviction , to an employee may be the manifestation of a determination which it is not safe to thwart. N. L. R. B v. Federbush Co., 121 F (2d) 954 , 957 (C. C. A. 2), 1941. See N. L. R. B. v. Trojan Powder Co , 135 F (2d) 337 (C C A 3), 1943, cert den. 320 U. S. 768; N. L. R B. v. Sunbeam Electric Mfg Co., 133 F ( 2d) 856 (C C A 7), 1943; Valley Mould & Iron Corp. v. N. L. R. B., 116 F (2d) 760 (C. C. A. 7), 1940." 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD makers, radicals, "enemies of our jobs," paid agitators, "checker-offers," saboteurs, men who have "preached hate and spread falsehood" and engaged in Japanese tactics, and told the employees that "it is danger- out to your job-your pay" to "put yourself again in the shackles-of these trouble makers" and that the employees would "be better cff' without the Union "or any other outsiders." While the respondent directed its attack principally against the C. I. 0., from the general tenor of the letter, as well as from specific statements therein, it is clear that the respondent was casting the same aspersions on the A. F. of L., which was also- to be on the ballot in the coming election, and the respondent, in this letter, urged the employees to vote for neither the C. I. O. nor the A. F. of L. in that election. Viewed in the light of the respondent's entire course of conduct on the eve of the election, this letter plainly interfered with, restrained, and coerced the em- ployees in the exercise of their rights under the Act," and we so find.18 We further find that the coercive effect of such, letter, as well as of the respondent's conduct as a whole, was not neutralized by the casual statement in that same letter that the employees could vote as they pleased because their ballot was secret and that the respondent would "not hold it against" them no matter how they voted, or by Edwards' oral statement to-the employees on the eve of the election that they could vote any way they pleased. In N. L. R. B. v. Virginia Electric cC Power Co., 314 U. S. 469, the Supreme Court recognized that while "The bulletin and the speeches set forth the right of the employees to do as they please without fear of retaliation by the Company," the "purport of these utterances may be altered by imponderable subtleties at wo7k, which it is not our function to appraise." [Italics supplied.] In the instant case, the whole course of unlawful and coercive conduct by the respondent, as well as the contents and tone of the 4-page letter as a whole, constitutes the "imponderable subtlety at work" 17 See N. L. R B V. Virginia Electric it Power Co ., 314 U. S 469 18 Cf N L R B v American Tube Bending Co snpra , which is distinguishable not only be- cause no coere,te course of conduct was there established in the light of which the letter and speech the) em znvolaed could be propel 1j appraised but also because in the Anerican Tube Bending lettei and speech, unlike the respondent's letter horein, the "argument . that a union would be against the employees' interests as well as the employer's" was "temperate in form," and the employer made it clear to the employees that lie would loyally abide by the results at the polls . As the Court pointed out in that case "The respondent professed itself icilling to abide loyally by the results of the election, but did not conceal , though perhaps it made some effort to disguise its preference for no union whatever . But there was no intimation of reprisal against those who thought otherwise; quite the opposite The most that can be gathered from them was an argument, temperate in folm, that a union wi•u'd be against the empogees ' interests as well as the employer's, and that the continued prosperity of the compan3 depended on going on as they had been Italics supplied.] AGAR PACKING & PROVISION CORPORATION 745 which clearly alters the purport of the afore-mentioned statemeitts,19 and we so find.20 10 In justification of its letter of May 8, as wall as of other conduct by the respondent on the eve of the election, the respondent offered to prove, among other things, that from 1938 to Ju'y 1941. the Union, in violation of the provisions of the contracts under which the respondent and the Union were then operating, instigated slow-downs, sti etch-outs, and work stoppages ; that in September 1941, while the Union and the respondent were negotiat- ing for a new contract, the Union called an unauthorized 3-day strike, which continued for 5 weeks because of the respondents refusal to reinstate the employees who'were responsible for the 3-day strike , and that the strike was accompanied by violence. The Trial Examiner rejected this offer of proof We believe that the Tual Examiner erred in this ruling, and we accept the facts stated in that offer of proof as true and consider them' as part of the record herein and give them the same force and effect as if they had been established by competent testimony However, for reasons set forth below, such facts do not alter our conclusion that, the respondent committed unfair labor practices within the meaning of Section 8 (1) of the Act. The record also discloses that a few days prior to the respondent's letter of May 8, dis- cuss d above, the Union issued a circular to the respondent's employees in which it made vaiior,s accusations against and d'iparaging remarks about the respondent. According to the testimony of Vice-President Edwards, who wrote the letter of May 8, as well as of other witnesses, these accusations were answered by Edwards in one of his addresses to the employees 2 drys following the issuance of the letter It thus appears that the May 8 letter was not intended es a reply to the charges contained in the Union's circular But even if that circular were to be considered as background in d^.terinining the, validity of the letter,,or,of.the other afore-mentioned- activities of the respondent on. the eve of the election, for reasons indicated below, our conclusion that the respondent violated the Act would not be affected thereby We ri coguuze the right of an employer to answer charges directed against him by a labor organization and, under certain circumstances, to bring to the attention of his employees facts concerning that organization of which he b-lieves the employees should be apprised We have accoid,ngly found nothing improper in Vice-Pres dent Edwards' conduct, in an 'address to the employees on May 10, in denying the statements made by the Union in' its afore-mentioned circular that the employees were "shackled by their management" and that the respondent "held that whip over [their] head" However, the existence of that right does not serve as a license to engage in activities, which have the effect of interfering with, restraining. or coercing his employees in the exercise of the rights guaranteed in Section 7 and if the employer's conduct, reasonably construed, produces such an effect, it is proscr.bed by the Act. It is clear, and we find, that the respondent in the instant case went far beyond the exercise of its legitimate rights It granted and offered economic favors to the employees in return for their participation in anti-union activity and their rejection of the Union at the polls, induced the employees, during working hours, to engage in an anti-union demonstration by wearing attractive caps distributed by the respondent and removing ordinary looking caps distributed by the, Union, made. it clear to the em- ployees that the respondent would do all in its power to prevent the Union from organizing their. and virtually told the employees that they were not to affiliate themselves with the Union . and distributed to its employees a letter which, far from dispassionately setting 'forth the facts concerning the Union's past conduct and the arguments in favor of non- affiliation with that organization or with the A F of L. constituted an intemperate, un- restrained outburst against these organizations, and which, considering the statements therein made, its highly emotional tone. and other acts of the respondent described above, was unmistakably coercive in character - 20In connection with the respondent's afore-mentioned offer of proof concerning eeitam misconduct by the C I 0 over a period which terminated approximately a year and a half pi for to the date of the election and'the issuance of the letter of May 8, we wish to make certain observations, in the light of the Supreme Court's decision in N. L R B v. Indiana & Michigan Electric Co, 318 U S 9 We believe that case to be clearly distinguishable from the instant one, in the following important respects, among others. In that case, the Board rejected the proffered evidence concerning misconduct by persons connected with the charging union therein, on the ground that it had "no relation to the' issues in [that] proceeding." In the instant case, on the other hand, we have accepted the detailed facts f 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD / Upon the entire record, we are convinced, and we find, that the acts and statements of the respondent, outlined above, were integral parts of a course of conduct which interfered with, restrained,,and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.21 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Agar Packing & Provision Corporation, Chicago, Illinois,. and its officers, agents, successors, and assigns, shall : contained in the respondent 's offer of proof because wit believe they have some relation to the issues involved , and we have regarded them as part of the congeries of facts before us and have given them the same force and effect as if they had been established by competent testimony . After careful consideration of such facts , we have found for reasons already indicated , that they did not excuse the respondent 's coercive conduct on the eve of the election , of which the letter of May 8 was an integral part In view of the foregoing, we believe that the Trial Examiner 's error in rejecting the proffered evidence has been cured, and that, on the facts of this case , nothing is to be gained by a-new and protracted hearing covering such evidence We fail to see how the respondent can in any sense be said to be prejudiced by our acceptance of the detailed facts contained in its offer of proof as true, instead of requiring it to establish them by testimony which might be rebutted by the Union. The instant case is distinguishable from the Indiana & Michigan Electric Co case in another important respect . It was the opinion of the supreme Court in that case that since the proffered evidence bore directly on the credibility of witnesses upon whose testi- mony the Board , in the opinion of the Court , relied in finding unfair labor practices, as well as on the issue of whether the employees voluntarily formed the organization found by the Board to have been company -dominated , the Board , had it admitted and considered such evidence , might have come to the conclusion that no unfair labor practices had been committed . The Court was further of the opinion that had the Board considered the proffered evidence ; which indicated that the charging union was engaging in a course of violence , concurrent with the proceedings before the Board , for the purpose of intimidating the respondent and its witnesses , the Board , on the theory that it would not wish "to submit its process to abuse ," might have dismissed the complaint . In the case before us, on the other hand , the nature of the issues involved and of the facts contained in the respondent 's offer of proof are such that those facts, considered in the light of the record - as a whole , cannot be said to remove the respondent 's conduct on the eve of the election front the proscription of the Act, since the respondent went far beyond merely apprising the employees of the C. 1 -O 's past misconduct , and engaged in activities which were clearly coercive-and which must therefore be enjoined . As the Supienie Court itself recog- nized in the Indiana & Michigan Electric Co. case : . the Board can act to prevent the employer ' s wrong -doing prohibited by the Act, even though it cannot reach other wrong-doing. Nor are we disposed to dismiss the instant proceedings because of the acts of misconduct on the part of the C I 0 , the charging union herein , set forth in the respondent's offer of proof In addition to the foregoing , we wish to point out that the record is barren of any evidence of misconduct on the part of the A F. of L . which would in any manner justify the respondent 's attack on that organization , which , as evidenced by the general tenor of the letter of May 8 , as well as by specific statements therein , was the victim of the same aspersions as wsre cast by the respondent on the C. I 0 n In, finding that the respondent engaged in a course of conduct which was violative of Section 8 ( 1) of the Act , we have considered the testimoiy and proffered testimony of various employees that the respondent ' s conduct did not have the effect of intertering with, restraining , or coercing them in the exercise of their rights to self-organization Testimony of that character is clearly not decisive of the issue before us Western Cartridge Co. v. N L. It. B, 134 F ( 2d) 240 ( C. C. A 7), cert den , 320 U. S. 746; Matter of Marshall Field & Co, 34 N L. R. B. 1, enf'd, Feb . 26, 1942 (C. C. A. 7). AGAR PACKING & PROVISION CORPORATION 747 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self -organi- zation, to form labor organizations, to join or. assist Packinghouse Workers Organizing Committee, or United Packinghouse Workers of America, Local 24, both affiliated with the Congress of Industrial Or- ganizations, or Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual'aid or protec- tion, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Distribute to all its employees, by special delivery mail, notices stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order; (b) Post immediately in conspicuous places at its plant in Chicago, Illinois, and maintain for a period of not less than sixty (60) consecu- tive days from the date of posting, notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order; and (c) 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. Mn. GERARD D. REILLY, concurring in part and dissenting in part: I concur in the Decision and Order as I think that the conduct of the respondent in paying certain employees for the distribution of anti-union propaganda, combined with the appeal of a responsible company official to help them keep the Union out of the plant, amounted to unlawful interference with the organizational activities of its employees. It seems to me that these incidents, as well as the reference to the bonus checks, showed that the respondent was alter- nately resorting to cajolery and threats to deter employees from sup- porting the complaining Union, and that a proper remedy would be to set aside the results of the election conducted against this back- ground and order this Company to desist from further conduct of this character. Unfortunately, the majority opinion does not stop short with these observations, but goes on to find interference in conduct which it is difficult upon this record to regard as illegal per se. It is by no means clear, for example, that the distribution of the so-called victory caps was not a legitimate means of fostering the bond drive rather than discouraging employees from wearing their union caps, particularly 74S DECISIONS OF NATIONAL LABOR RELATIONS BOARD - as there is nothing in the Act which would prevent an employer from forbidding the wearing of such conspicuous signs during working hours.22 - The majority opinion is even more seriously weakened by the find- ing that the letter of May 8 exceeded the permissible bounds of free speech. Prior to the Decision in the Virginia Electric cC Power Co. case, I had always assumed; along with the other members of the -Board, that the law required an employer to maintain a neutral atti- tude towards-labor organizations and pending representation elec- -tions. This seemed to be the proper inference to draw from various cases supporting findings of company domination with respect to "suc- cessor" unions if an employer failed to make it unmistakably clear that the new union did not command his support.23 Since the Vir- ginia Electric case,24 however, which was closely followed by the re- fusal of the Supreme Court to review a decision of the Circuit Court of Appeals for the Second Cir6uit,25 overruling the Federbush case '21, the law must be regarded as settled that a hostile statement of an employer with respect to unions is not coercive, per se, because of his status as an employer, but an expression of opinion protected by the First Amendment. This does not mean, however, that conduct evidenced in part by speech may not amount to coercion within the meaning of the Act, where the total activities of an employer place an unlawful restraint upon the free choice of the workers .21 The majority opinion does not profess to dispute these fundamental principles. Its application of them, however, is highly questionable insofar as the holding with respect to the letter of May 8 is concerned. Under the doctrine of the Virginia Electric case it was the duty of the Board to appraise this letter in the light of all the circumstances of the case. Instead the Board attempts to distinguish this publi- cation from the utterances drawn into question in the American Tube Rending case, on the ground that the tone of the instant letter was less 22 Cf Matter of Gates Rubber ( fo, eman appal ently justified in for bidding wearing of union shirt if real motive had been preservation of plant discipline ), 40 N L R B 424, 438 23 Magnolia Petroleum Co. v N L R. B , 115 F (2d) 1007 (C. C A 10 ). Thus , courts have recognized the necessity of "wiping the slate clean " ( N. L R B v Newport News Shipbuilding and Dry Dock Co , .308 Ti S 241) ; "clearing of decks" (Westinghouse Electric & Mfg bo. v. N L R. B, 112 F ( 2d) 657 (C. C. A. 2)) ; "absolute and public cleavage between tfle old and the new' (11'rstern Union Telegiaph Co v N L R B, 113 (2d) 992 (C C A 2)) ; clearing the field "of the original illegal growth ," thus rendering it "suitable for sowing the seeds of an undominated body" (E I Dupont de Nemours & Co v N L R B, 116 F (2d) 388 (C C A 4)) ; washing out " the virus of control" (N. L. R. B. Y. H. E. Fletcher Co , 108 F (2d) 459 (C. C A 1) ) 24 N L R B v Virginia Electric & Power Co , 314 U S 469 25 N L R B . v Amgrican, Tube Bending Co., 134 F . ( 2d) 093 (C C. A 2), 1943 , cert den , 320 U S 768 PN L R B v Federbush Co, 121 F . ( 2d) 954 , 957 (C C. A 2), 1041. 27 See N. L R B v Virginia Electric if Power Co, supra, and N L R B v Trojan Powder Co , 135 F. ( 2d) 337 (C C A. 3), 1943, cert. den., 320 U S. 768. AGAR PACKING & PROVISION CORPORATION 749 temperate than the anti-union remarks viewed as legitimate by the Court in the latter decision. In the case before us, however, the re- spondent offered to show that the conduct of the complaining union had been such that its invidious description of that organization was reasonably accurate. The Trial Examiner excluded this offer of proof and it is conceded that his ruling was error. Consequently, this error was not cured by treating this offer of proof as true and then proceeding to ignore its implications. In my judgment, the only way of correcting this error is to remand the case and admit the proffered evidence so that we can appraise it fully, as was suggested by the Supreme Court in a recent decision,28 or to disregard the entire incident of the letter, as I would do, since the hatter was not fully litigated and any finding with respect to it would at best be merely cumulative. - INTERMEDIATE REPORT Mr. Robes t F Ackerberg, for the Board. Jacobson, Nierm-an d StIbert, by Mcssss David Silbert and Milton K. Joseph, and Jacob B. Courshon, of Chicago, Ill , for the respondent Mr. Ralph Helstein and Mr. Arthur Kampfeit, of Chicago, I11., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on July 13, 1943, by Packinghouse Workers Organizing Committee , on behalf of United Packinghouse Workers of America, Local 24 , affiliated with tl,e Congress of Industrial Organizations , herein called the Union , the National Labor Relations Board , herein called the Board, by its Regional Director for the Thirteenth Region tChicago, Illinois ), issued its coln- plaintdated July 13, 1943, against Agar Packing & Provision Corporation , Chicago, Illinois, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices , within the meaning of Section 8 (1) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, and consolidated notice of hearing thereon and on the Union's Objections to Election , were duly served upon the respondent , the Union and the Amalgamated Meat Cutters and Butcher \Vork- men of North America, A . F. of L, herein called the Amalgamated.' 28 N L. R B v Indiana C Michigan Electric Co , 318 U S 9 Despite the argumentative footnote , it is submitted that there is no real distinction between this case and the instant one It is true that in the Indiana cf Michigan Electric Co case, the Board " rejected" the proffered evidence, wheieas here , it "accepts " it But the rejection necessarily had the legal effect of assuming it to be true, and yet ignoring it as irrelevant The majority decision here does precisely the same thing The difference is merely one of phraseology ' On February 2, 1943. the Union filed with the Regional Director of the Board , a peti- tion in Case No 13-R-1616 alleging that a que,tion affecting commerce had arisen con- ceining the representation of the iespondent 's employees and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act On April 21, 1943, the respondent , the Union and the Amalgamated , a labor organization named by the Uni"n in its petition for mi estigation and certification, entered into a Stipulation for Certification upon Consent Election Pursuant theieto an election by secret ballot was conducted on 1tlay 11, 1943, among all of the respondent ' s hourly and piece work production and mainte- nance employees , with stated exceptions n,,t here pei tinent On May 13, 1943, the Regional Diiector ssucd an Election Report , s'iowing that a majority of the employees voted against the Union and Amalgamated On May 19, 1943 , the Union filed Objections and Protest to 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent, from on or about December 1, 1942, and continuing-through July 13, 1943: (1) required its employees to execute individual employment con- tracts and during such time utilized said contracts for the purpose of preventing self-organization; (2) from on or about April 1, 1943, to May 12, 1943, interfered with the rights of its employees to select representatives of their own choosing for purposes of collective bargaining at the election held May 11 and 12, 1943, by (a) questioning employees how they would vote at said election; (b) keeping lists of those voting at said election; (c) urging, warning and threatening its em- ployees to vote against any union by means of statements, speeches, circulation of leaflets, and letters sent to said employees; (d) requiring employees to replace union insignia with other insignia; (e) causing mass distribution of anti-union literature to its employees while interfering with the distribution of union litera- ture; (f) promising its employees wage increases and overtime pay; and (3) has from January 1, 1943, and continuing down to July 13, 1943, made derogatory remarks and statements about the Union, thus indicating to its employees its dis- approval of and opposition to the self-organization of the said employees. On July 22, 1943, the respondent filed its answer and a motion to dismiss the complaint with the Regional Director. In the answer the respondent admitted the allegations concerning the nature of its business, but denied that it had com- mitted any unfair labor practices or that it had at any time interfered with the rights of its employees to select representatives of their own choosing at the election held on May 11 and 12, 1943. Pursuant to notice, a hearing was held at Chicago, Illinois, from July 26, 1943, to August 4, 1943, before Mortimer Werner, the undersigned Trial Examiner, duly designated by the Chief Trial' Examiner. The Board and the respondent were represented by counsel, and the Union by counsel and its representative ; all par- ties 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 opening of the hearing, the respondent renewed its motion to dismiss the complaint, on the ground that the complaint involved agreements between management and labor covering hours of labor, rates of pay, and other working conditions; and that pursuant to "National Labor Relations Board Appropriation Act, 1944," R no part of the Board's appropriation for that fiscal year could be used in any way in connection with a complaint case arising over an agreement the Election , alleging in substance that the respondent by numerous anti-union statements, speeches , the distribution of anti-union leaflets and caps designed to identify the respondent with complete devotion to the principles of Ameiicanism and to create the impression that the Union was interfering with the war effort , and by the conduct of a lottery , had prevented a free and uncoeiced election In his Report on Objections to Election Report , dated June 11, 1943, the Regional Director found that the matters to which the objections filed by the Union were directed , raised " substantial and mateiial issues with respect to the conduct of the ballot" and recommended "that a hearing be directed by the Board on the substantial and material issues with respect to the conduct of the ballot which are raised by the Objections filed by the Union " In the meantime , on May 19 , 1943 , the Union filed a charge with the Regional Director. Theieafter , by Order dated June 21 , 1943, the Board having found that the Union ' s Objec- tions to Election raised substantial and material issues with respect to the conduct of the ballot , directed that a bearing be held on the said Objections On July 2, 1943 , the Board, acting puisuant to Article III, Section II (C) (2 ), and Article II, Section 26 (b) of the Board 's Rules and Regulations-Series 2, as amended, ordered that Case No. 13-2-2158, the unfair labor piactice proceeding , be consolidated with Case No. R-5524, the representa- tion proceeding. 2 Labor-Federal Security Appropriation Act, 1944 ( Act of July -12, 1943, Public Law No. 135, 78th Congress , 1st Session). AGAR PACKING & PROVISION CORPORATION 751 between management and labor which had been in existence for 3 months or longer, without complaint being filed. The motion was denied. The respondent also moved to exclude all witnesses from the hearing. This motion was granted. At the close of the Board's case the Board moved to conform the pleadings to the proof in respect to formal matters. The motion was granted without objection. At the close of the hearing, the respondent moved to strike from the record a group of photographs admitted into evidence as Board exhibits, upon the theory that the photographs were posed photographs and, for that reason, not admissible in evidence, and for the further reason that they were immaterial and irrelevant. Said motion is herein denied. At the conclusion of the hearing, the Board and the parties argued orally on the record. At the conclusion of such oral argu- ment, the Board consented to have stricken from the complaint the allegation that the respondent questioned employees how they would vote at the election held on May 11 and 12, 1943. Accordingly, the complaint in this respect was dis- missed All parties were granted but waived the right to file briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 3 The respondent herein, Agar Packing & Provision Corporation, is a Virginia cor- poration with its principal office and place of business in Chicago, Illinois, where it is engaged in the business of buying live hogs at the Chicago Union Stock Yards and slaughtering and processing them into fresh pork, hams, bacon, smoked and canned meats, sausage, lard and other products. For the year ending June 30, 1943, the respondent purchased hogs and materials valued in excess of $12,000,000, of which a substantial percentage was shipped to its plant from points outside the State of Illinois. During the same period, the total sales of products manufac- tured exceeded $16,000,003, most of which was ,sold under United States Army, Navy and Lend-Lease contracts, and of which more than 25 percent was shipped and delivered to points outside the State of Illinois The respondent concedes that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Packinghouse Workers Organizing Committee and United Packinghouse Work- ers of America, Local 24, are labor organizations both affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent IIT. THE UNFAIR LABOR PRACTICES A. Introduction In 1937, the Union began an organizational campaign among the respondent's employees culminating in the execution of a collective bargaining agreement be- tween the Union and the respondent. Upon its expiration in 1938 it was renewed for another term. According to the testimony of Kenneth Collins, president of the Union's local, during the, life of the second agreement in 1938, all of the respond-: ent's employees were union members. He testified further, that the respondent assisted the Union to,the end that all employees joined the Union, despite the 8The facts found in this section are based upon-the admissions in the respondent's answer. 752. .DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of any closed shop provision in the agreement between the parties In September 1942, the Union renewed its efforts to unionize the respondent's em- ployees, when Arthur Kampfert, an international representative of the Union was assigned to the task of organizing the plant. On or about November 17, 1942, James W. Colman, a former police sergeant on the force of the Chicago Police Department and then employed in the respondent's personnel department, told Kanipfert that the property adjacent to the respondent's plant was Government property, and warned him not to distribute union literature in front of the plant and to confine his activities to the sidewalk opposite the plant. Kampfert said lie would cooperate with Colman, believing at the time that Colman was a Federal employee Thereafter, when Kampfert learned that Colman was in fact one of the respondent's employees, he continued his distribution on the sidewalk in front of the plant. Thereafter, from time to time Colman directed him to con- tinue his activities opposite the plant. As stated above, the Union filed a petition for Investigation and Certifica- tion of Representatives on February 2, 1943. On April 21, 1943, the' Union, the Amalgamated and the respondent entered into a Stipulation for Certification upon Consent Election. Pursuant thereto, the Board conducted an election between the hours of 6 a. m. on May 11 and 2 a. in. on May 12, 1943, among the re- spondent's hourly and piece work production and maintenance employees, to determine whether or not they wished to be represented by the Union, by the Amalgamated, or by neither. The Union lost the election. The issues herein arise out of the Union's charge that, prior to the election, the respondent en- gaged in an anti-union campaign designed to deprive its employees of their right to select a bargaining representative of their own choosing. B. Interference , restraint, and coercion 1: The issues raised by the complaint With the exception of the allegation that the respondent required its em- ployees to execute individual employment contracts and utilized said contracts for the purpose of preventing self-organization, a matter which will be sep- arately considered below, the allegations of the complaint follow closely the Objections to the Election filed by the Union, and are based for the most part upon the continuing conduct end action of the respondent following the distri- bution of union literature on April 26, down to the date of the election, May 11, 19.3. The testimony of the Board's witnesses respecting the respondent's activities may be grouped into a consideration of separate but inter-related activi- ties, some commencing prior to April 26, 1943, but all designed and manipulated thereafter, according to the Board's contention, to thwart the free choice of a bargaining representative at the Board election These separate but inter- related activities may be described on the basis of the testimony of witnesses as follows. (1) the distribution of anti-union leaflets in opposition to the Union; (2) the distribution of a cap bearing the legend "VICTORY-100% AMERICAN- BUY PONDS," hereafter referred to as a victory cap, for the purpose of identify- ing the respondent's opposition to the Union with 109 percent Americanism, and for the further purpose of influencing the employees to remove caps dis- tributed by the Union and to replace them with the victory caps; (3) the con- duct of a "jack-pot" lottery ostensibly to reduce absenteeism but .in fact to serve as a further expression of opposition to the Union and as an indication of the respondent's consideration of the employees' welfare ; (4) speeches of W. O. . Edwards, the respondent's vice presideht and treasurer, made during the period immediately preceding the election and particularly on May 10, 1943,-the day, AGAR PACKING & PROVISION CORPORATION 753 before the election; (5) a four-page printed document in the form of a letter sent by the respondent over the signature of Edwards by special delivery on May 8, 1943, to all of the respondent's employees, in which Edwards vilified the Union and urged every employee to vote for "neither" ; (0) the action of plant guards employed by the respondent, who allegedly urged workers to vote "in the middle," i. e. for neither the Union nor the Amalgamated, on May 11, the date of the election, and (7) the promise of wage increases and overtime pay. Because the respondent's defense sought to justify these activities, and for the purpose of clarification and a clearer understanding of the issues, these matters will be separately discussed hereafter. Nevertheless, a separate treat- ment does not overlook their combined use and the inter-relation of.one to the other, and their timing with the activities of the Union and the election of May 11, 1943. 2. Synopsis of events between April 20 and May 12, 1943 Following the signing of the Stipulation for Certification upon Consent Election on April 21, 1943, the Union on April 26, commenced an active campaign, prepara- tory to the election of May 11, 1943. On that day, representatives of the Union appeared in front of the plant and started the distribution of union leaflets. Although theretofore distribution of union leaflets had been restricted by Colman, to the sidewalk opposite the plant, on April 27, and thereafter, as a result of the intercession at the Union's request of Lt George Barnes of the Labor Detail of the Chicago Police Department, the Union was permitted to continue its distribution on the sidewalk adjacent to the plant. This leaflet distribution by the Union continued down to the election. On April 29, 1943, plant watchmen distributed to employees a mimeographed notice on the respondent's letterhead, notifying them that the respondent had applied to the National War Labor Board for permission to pay all employees, a night work bonus of 5 cents per hour. The notice informed the employees that the bonus, when approved, would be retroactive to November 1, 1942, and that the current weekly pay rate of the night shift employees would be increased to-include the bonus On April 30, about 20 of the women employed on the night shift, under the direction of Cecelia LaBedz, a matron employed by the respondent, undertook the solicitation of funds to pay for the distribution of leaflets in' opposition to the Union. Money was solicited in the area nearby the plant, from the employees reporting to and leaving work at the time of the shift change With the money resulting from this first collection, LaBedz had printed 2,000 each of two types of leaflets. At a meeting of the Union held on May 2, 1943, the Union distributed to the respondent's employees, a cap similar in foiin and style to those customarily worn by painters, and bearing the legend just above the forepeak, "P. W 0 C -C I 0 LOJALS 23-24-56." In all, about 1,209 caps were distributed to the respond- ent's employees prior to the election. About 3 o'clock on the afternoon of May 4, about 40 women workers from the canning department, again under the direction of LaBedz, undeitook a second collection of funds and the distribution of the two leaflets that -LaBedz had printed following the April 30 collection. The collection and distribution took place between.the hours of 3 and 4: 30 p. in. by workers who customarily reported for work at about 4: 30 p. in. Some of the women had, previous to the hour of distribution, punched in their tinie cards and changer] into their work elo',hcs, a white sanitary apron or wrap-around required to be worn in the plant. One of the set of leaflets distributed on this day bore in bold hcadliues at the top of the leaflet, the following legend, "FOOD FOR OUR SOLDIERS-NOT 009591-45-vol 58-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STRIKES." The leaflet characterized the Union and the Amalgamated as "Thugs" and urged every employee to 'vote "neither" and "In the Middle" to thus eliminate the "Check Off " The other leaflet which was distributed on this day referred to the Union and the Amalgamated as rackets, and was headed in hold type "OUR SOLDIERS' PRAYER," and again urged all employees to vote "Your Soldier's Way" for "Neither." The third collection of funds, was undertaken on May 5, between the hours of 6: 30 and 7: 30 a in, by substantially the same group of women employees who customarily concluded their work on the night shift at about 3 a. m On this occasion, a leaflet was distributed, which LaBedz had printed and which leaflet notified the, employees reporting for work on the clay shift that at an election' held on May 4, 1943, the previous day at a nearby plant the "C. I 0 Was Beat 2 to 1," and urged the workers to vote in the "Middle" in order to "Keep Check Off Out" On May 4, when leaflets were distributed to the incoming workers, a radio sound truck appeared playing patriotic songs. LaBedz had rented this equipment, paying the sum of $10 for the service. When LaBedz came to woe k, on May 6, she was given one of the respondent's victory caps LaBedz wore the cap to the women's dressing room, and told some of the leaflet (list rvbutors that they were going to be given similar caps for their bond purchases under the respondent's pay roll deduction plan. The fourth and final collection of funds was undertaken on the afternoon of May 7, by about 50 women, substantially the same group who had previously collected funds This work was done after some of the women had checked in and had changed their street clothes for the white dressing gown worn in the plant In connection with this final collection of funds, the women distributed two addi- tional leaflets One was a pink facsimile of the Board's official sample ballot, but which, in this instance, had printed in the block reserved for the "neither" ,,ote, a prominent X, and contained the direction directly thereunder, "Vote Hev e For No Check Off" The other leaflet distributed 'on that day contained only the simple statement in bold.blue type on a white background, "VOTE IN MIDDT E KEEP C 1 0 RACKETS OUT FIGHT OR WORK WIN WAR" On Saturday, May 3, the respondent sent each of its employees by special delivery mail, a four-page printed letter over the signature of W 0 Edwards, its vice-president and treasurer This document, too long ti be quoted in full at this place in the Intermediate Report, commenced by reciting that it was "an appeal to reason, and a friendly suggestion to each and every one of my fellow workers " The document reviewed the disruption caused by strikes and istoppages, and the effect of such activities upon the Government's food pro- grain. The document then stated that an election was set for May 11, that this presented each employee with a "Chance to Get Rid of Trouble Makers." and that the respondent welcomed this chance to rid itself of "the sti ake leaders, all the radicals, all the ennui es of our jobs and oar pay envelopes all the paid agitators, the checker-offers, the s_cboteurs, the stoppage artists, and those who for the past 22 months have preached hate and spread falsehood . " [Italics in original was in bold face type 1 The letter informed the employees that they could vote as they pleased in a secret ballot, but Edwards stated that, in his- "honest opinion, every worker in the plant should vote for `Neither'" Directly under this statement appeared three boxes, one labeled C I 0 in the left margin of the document, one labeled A F L. in the right margin, and in the center, under heavy type appeared the t'ords "VOTE NEITHFR" with an X in the box, The document thereafter went on to review the respondent's policy with respect to wages and hours; stated that the respondent had fulfilled every promise to the employees; granted full seniority and job security ; that Union claims were AGAR PACKING & PROVISION CORPORATION 75 5. "sheer rubbish" , and that the Union had broken contracts The documents made an appeal to patriotism, and by innuendo compared the Union to "Hitler, Musso- lini and Tojo" ; appealed again to the workers by citing the respondent's record for job security ; stated that the company deserved the workers' confidence because of its past record ; called to the employees' attention the fact that the Union had lost tvvo elections in nearby plants where the employees had voted for "Neither"; and again urged the workers to "Vote Neither," with an appropriate type set-up that prominently displayed an X in the box reserved for the "neither" vote. The letter concluded with the following peroration : Yours for peace and freedom from strike racketeers and trouble makers. Yours for safety, job security, prosperity and victory. [In bold type.] Your sincere friend, W. 0 EDWARDS, Vice President-Treasurer, Agar Packing & Provision Corporation. This document was received at the homes of the workers on May 9 and 10. Monday, May 10, the day before the election, was a day of intense activity in and around the plant. LaBedz enlisted the services of between 80 and ICO. women workers, who again distributed all of the leaflets. This took place between the hours of 3 and 5:30 on the afternoon of May 10 Some of the women distributors on this occasion, punched their time cards before they started the distribution of the leaflets, thereafter reporting for work at about 5 p. in. on the night shift The distributors wore their customary white aprons and victory caps, the latter of which had been given them by LaBedz There is a conflict in the testimony of the numerous witnesses as to whether they were promised remuneration for their leaflet distribution. This conflict is resolved in considering hereafter the Board's contention that the respondent was respon- sible for the leaflet distribution. In addition to the mass circulation of anti-union leaflets that to,ik place on May 10, other activities occurred within the plant On the morning of that day, a group of women workers employed in the plant were called to the respondent's personnel office, and there asked to distribute the respondent's victory caps. Thereafter, they accompanied Edwards to the respondent's warehouse and to various departments within the-main plant, about six in all, where Edwards addressed the, employees Edwards appealed to the workers to help the respond- ent reduce absenteeism. He stressed the importance of puichasiig war bonds and stated, in substance, that the respondent's drive initiated in February or March to have a 100 percent pay roll bond deduction of 10 percent or better of the employees' weekly pay had been successful and that, as a reward to the workers, the girls were present to distribute the victory caps in acknowledgement of that achievement.' In some departments, Edwards varied the tenor of his remarks by reading letters from former employees now in the serN ice of the armed forces He made an appeal to their patriotism, tying it tip with the respondent's efforts to eliminate absenteeism and to stimulate the purchase of war bonds. Edwards was usually accompanied by other company executives. In the afternoon and on the evening of May 10, Edwards made two speeches, wherein, in addition to his remarks about absenteeism and war bonds, he also 'spoke about the election. There is no dispute in the evidence that Edwards did, in fact; mention the election, in at least these two speeches but there is a major conflict between the testimony of the witnesses for the Board and those called by the respondent that as claimed by the Board, in connection with his last speech, he urged the employees to vote against the Union, exhibiting to the 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assembled employees the facsimile sample ballot, which prominently displayed a bold X in the square reserved for the "neither" vote. This conflict is reviewed and resolved hereafter. The undersigned is satisfied on a review of all the evidence however, and finds that in the speech made on the afternoon of May 10, on the first floor of the cutting department, Edwards stated in connection with the forthcoming election, in substance, that the people who were "in before" were trying to get back ; that these were the same people who had caused the employees to lose money as a result of a strike held in the fall of 1941; and he urged the employees not to pay any attention to propaganda and lies. Edwards enforced this latter remark by reference to a union leaflet which had been distributed on or about April 30, and in which the Union had stated that the respondent's em- ployees had-been "shackled by their management" and that the respondent held a "whip" over their heads "the same as the slave masters" It also appears, without contradiction, and the undersigned finds that on the night of May 10, during the course of Edwards' remarks about absenteeism, the purchase of war bonds, and the forthcoming election, he also displayed a group of checks that had been prepared for the employees, calculated on the basis of the 5 cents an hour night bonus, and stated that the checks would be released upon the approval of the National War Labor Board. Voting in the election commenced at G a in. on May 11, and was concluded at 2 a. in on May 12 As stated above, the-Union lost the election, the "neither" votes receiving a majority. Pursuant to the respondent's direction to its plant guards, all workers leaving the plant to vote at the polls 'set up by the Board were stopped by the guards and asked if they were going to vote If the answer was in the affirmative, their clock numbers were taken and recoi ded on paper which was thereafter referred to the peisonnel department. There is testimony that three of the witnesses called by the Board, after stating their clock numbers to the gdaid, were alicgedly told to vote "in the middle " Numerous witnesses called by both the Board and the respondent (lid not have such experience, and the conflict is discussed hereafter. One other event is worthy of mention in consideration of the total activities that occurred in connection with the election On the afternoon of May 12, LaBedz and some other women workei s, in celebration of the victory over the Union, brought whiskey and wine to the women's dressing room, and there partook of it before reporting for work, and later during the "spell" (rest) periods and at the dinner hour. Although LaBedz, as matron, was in charge of, the women's dressing and locker rooms and knew that the bringing of intoxi- cating liquors and the drinking thereof on company property was against the respondent's rules, she nevertheless permitted this activity to continue The above synopsis of events discloses the significant facts as to which, unless otherwise indicated, there is no dispute concerning their occurrence. These are the facts which, according to the Board's' contention, support the allegation of the complaint that the respondent interfered with the rights of its employees to select, representatives of their own choosing. With this chronology of events in mind, particularly in juxtaposition to the election of May 11, the undersigned turns to a consideration of the various issues which are raised by the chronology above. 3. The issues separately considered a. The responsibility of the respondent for the mass distribution of anti-union literature The Board urges that the respondent should be held accountable for the distri- bution of the anti -union leaflets. This calls for a consideration in more detail AGAR PACKING & PROVISION CORPORATION 757 than indicated above, of all circumstances surrounding their inspiration, source, and the method of distribution by the respondent's employees. According to the testimony of LaBedz, numerous women employees in the canning, converting and lunch meat depottments on the night shift were dis- turbed by the activities of the Union preparatory for the election They came to her shortly after the first union leaflets appeered on April 20, and asked what could be done to counteract the drive of the Union. According to LaBetz's fur- ther testimony, she took some of the union leaflets home and showed them to John Barski, an individual who was a roomer in the home of LaBedz. Barski suggested a reply circular and LaBedz took up his suggestion with some of the women the next day Then it was decided to solicit funds to pay for the print- ing of leaflets in opposition to the Union. The first solicitation of funds oc- curred on April 30. LaBedz then composed the leaflet, entitled "Our Soldiers' Prayer," showed it to the women, secured their approval, and took it to the printer. The next leaflet that LaBedz composed, according to her testimony, was the one entitled, "Food for Our Soldiers Not Strikes." These two leaflets were distributed on the occasion of the second collection of funds on or about May 4, 1943 Between May 4 and May 10, LaBedz secured the printing of three other leaflets that were distributed during this period. In composing these five leaflets, she testified that she consulted Barski and one, Joseph Beleski, an attorney with whom she was acquainted. Before discussing the method of leaflet distribution between May 4 and May 10, it is pertinent to analyze their contents in connection with LaBedz's testimony. At the outset, it is significant to point out that the leaflets distributed by the -workers, under LaBedz's direction, were concise and dramatic presentation of arguments with formats strikingly designed to arouse opposition to the Union by identifying it' with thugs, rackets, strikers and Japs. LaBedz at first testi- fied that Barski helped her compose the "Food For Our Soldiers Not Strikes" leaflet and the "Soldier's Prayer" leaflet. Then LaBedz testified that both of these leaflets were of her own suggestion. This testimony is completely incredible in view of her ignorance as to the meaning of the language contained in both of these leaflets For example, the former leaflet stated "Save America from strikes and a 1"r-oicla collapse" [italics in original ] LaBedz had no idea of what the "French Collapse" referred to or meant. The word `leech" appearing on this leaflet meant, according to LaBedz, "when you hit some one", a check-off was something "you don't want in there" and a thug, another term used in the leaflet, she described as "one who talks too much." Another leaflet distributed during this period called to the attention of the respondent's employees that "Loyal War Workers" of the Republic Food Products Company voted against the Union at an election held on May 4, 1943 Concern- ing this leaflet LaBedz testified that the election was held in April, and she indicated again her complete lack of knowledge as to the participants in that election or the results of the vote. This leaflet was distributed within less than about 12 hours after the results of the election could have become known. How LaBedz could have been informed of the result and had the leaflet printed in that time is not satisfactorily explained. The pink facsimile sample ballot which bore an X in the box reserved for the "neither" vote was copied, accord- ing to L•tBedz, from an official sample ballot that she found in the plant. in ,this connection, despite the in coin prehension and bewilderment that LaBedz displayed with respect to the contents of the other leaflets she was apparently sufficiently informed to realize that in printing the facsimile, it was advisable to leave off the ballot the printed signature of George J. Bott, the Regional Director. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LaBedz's testimony concerning the source of the ideas contained in these various leaflets is replete with contradictions and confusion, and the under- signed cannot believe that LaBedz was the original draftsman of any single leaflet. The undersigned concludes and finds that, with respect to the source of the ideas contained therein, LaBedz was neither responsible for them nor had any part in contributing the ideas that went to make up the leaflets, but that rather she was the willing tool of some person, not disclosed in this record, who made use of LaBedz and other employees in a leaflet campaign in opposi- tion to the Union. One further point is of significance in analyzing the contents of these various leaflets Although printed and distributed before the respondent sent the spoe- cial delivery letter of May 8, to all of its employees urging them to vote "neither", these leaflets bear a striking similarity to the letter. For example, two of the leaflets urged the employees to vote "neither" by placing an X in the middle box reserved tor that vote This was the paramount suggestion in the letter. Ed- wards reieried to radicals, agitators, and by innuendo as heretofore pointed out, compared union officials who failed to keep their pledges with Hitler, Mus- - solini, and Tojo. The leaflets likewise stated that union leaders were "strike thugs" and "Jap pals," a thought similarly expressed but in more delicate lan- guage, in the letter. Finally, Edwards called to the employees' attention the fact that employees of the Republic Food Products Company had voted against the Union on May 4. This was but a repetition of the leaflet allegedly com- posed by LaBedz Although the evidence fails to identify Edwards or any other supervisor with the composition of the leaflets, the similarity of thoughts and the use of similar phrasing suggests at least that someone either connected with management or at the suggestion of management, was responsible for the ideas contained in the leaflets On all the evidence, and in the circumstances of this case, an assumption that the similarity is fortuitous and a mere coincidence is to stretch credulity to a breaking point. Aside from the contents of the leaflets, their method of distribution, clearly establishes, in the undersigned's opinion, that the respondent aided and assisted their distribution Once the leaflets had been printed, a number of employees who were interested in distribution volunteered to assist LaBedz to that end Others were asked by LaBedz to help distribute leaflets. The leaflets were dis- tributed by a group of from 40 women on May 4, to 80 to 100 women on May 10. According to the witness, Sarah Donohue, LaBedz asked her to distribute leaflets on the afternoon of May 10, and told her that she could punch in at 2 p. in. before her regular starting time at 5: 00 or 5. 30. Donohue testified that for her leaflet 'distribution, LaBedz gave her $2.00. LaBedz acknowledged that she gave Donohue $2.00 but testified it was a loan made to Donohue at her request, and fixed the time of the loan as about July 9, 1943. Donohue was not in the respond- ent's employ in July The undersigned does not credit LaBedz's explanation of this payment, and finds that LaBedz did in fact pay Donohue $2.00 for the dis- tribution of leaflets. Margaret Haldys, another witness called by'the Board, was asked on two occa- sions by LaBedz to distribute leaflets. ° She was asked sometime on May 7 to distribute leaflets at 5 a. in on May 8 Haldys' regular check-out time is about 2: 30 a. in. Her time card, a copy of which was introduced in evidence, shows that on May 3, Haldys reported at 4: 55 p m and checked out May 4 at 7: 07 a. m: receiving credit for 51 hours of overtime and that she reported for work on May 6, at 0. 22 p. in. and checked out on Friday at 7: 13 a. m receiving credit for 4 hours of overtime Haldys testified that LaBedz told her to punch out AGAR PACKING & PROVISION CORPORATION 759 when she was through with the leaflet distribution The time card thus cor- roborates her testimony Although IIaldys did not know if she was paid for leaflet distribution, she testified that her third pay check following the distribu- tion was $3 in excess of what she thought she was entitled to, and she assumed that thi- was for the leaflet distribution Sophie Mazeika, another N,%itness called by the Board, customarily started work on the engirt shift at either 4: 30 or 5. 30 p. in and ended her work at about 2 or 3 a. m the following moaning She testified that on either May 7 or May 8, LaBedz asked her to report at 2:30 p in on May 10, to distribute leaflets and to punch in at that time, and that she would be paid for her work in distributing leaflets. Mazeika testified further that she heard LaBedz tell various women employees that the respondent would pay then for the leaflet' distribution Mazeika consulted her foreman, Edward Potocki, about LaBedz's promise to pay and Potocki told her, according to Mazaika's uncontradicted testimony, "Well, if you come 2: 30, I don't know nothing about it But if you come 2: E0 the com- pany will make it right." The undersigned credits Mazeika's credible and unde- nied testimony in this respect and finds Potocki to have Blade these remarks.' LaBedz denied that she promised any employee that either she or the respond- ent would pay for the leaflet distribution, and all of the witnesses called by the respondent denied that they were paid for their leaflet distribution The time cards of a number of employees introduced in evidence, including the cards of LaBedz, reveal however, that they received substantial payments for overtime for those hours during which they were engaged in leaflet distribution. For example, Anna Murphy, whose regular quitting time was about 3. 30 a. m, checked in on the afternoon of April 30, the day of the first money collection, at 5. 57 in the afternoon, and checked out at 7.02 a. in Saturday, May 1, being credited with 8 hours of regular time and 5 hours overtime. On May 6, Murphy checked in at 6: 10 p. in and checked out at 7 • 13 a. m on May 7 On May 10, Murphy checked in at 2: 11 p in , two or three hours before her shift started, and checked out at her regular quitting time at 3: 58 a. in on May 11. Murphy was credited with overtime on both May 6 and May 10. Viola Price, another witness called by the respondent, whose regular quitting time appears to have been about 3 a in, checked out on the moi ling, May 4 at 7. 53 a. in and checked out at 8: 29 a in! on May 7. She received a credit of 24 hours of ovei time for the entire week ending May 8 On Monday, May 10, Price checked'in at 1: 31 p in, at least two, if not three hours before her regular starting time, and out at 3 a. m. May 11. Price received 2 hours of overtime pay for Monday, May 10. Without unduly buidening this Report with the repetition of similar statistics, time cards of other employees introduced in evidence corroborate their testimony that they punched their time cards, in sonic instances, before they commenced leaflet distribution, and in others, after they had completed their leaflet distri- bution The time cards introduced in ei idence moreover i eveal unusual and unexplained departures from the. usual starting and quitting time of the night shift employees, and that they received overtime for hours in excess of 8 worked on those days The regular hours of employment for LaBedz for example, were daily from 3 to 11 p in L'iBedz appears to have checked in usually at about 2: 40 p. in as alnatter of habit On April 30, she reported for work at 2: 34 p in. and checked out at 8: 47 a. in on May 1. She was given credit for 9 hours overtime for that day. On Monday, May 3, LaBedz reported for work at 9: 58 a. in and did not check out until 8: 07 a. in of May 4. On May 6, LaBedz ' Potocki did not testify and the respondent offered no explanation for its failure to call him as a witness. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checked in at 9: 52 a ni and checked out at about her' usual quitting time. But on May 7, the day of the fourth collection of funds and leaflet distribution, she checked in for work at 4: 51 a m ., checked out at 8: 29 a . in., and then reported again for work at or about her usual starting time and finished the day at 11: 51 that evening For the week ending May 8 , LaBedz received credit for 16 hours overtime . LaBedz testified that she always accompanied the women when they distributed leaflets or collected funds The respondent explains the unusual departures and overtime for LaBedz for the week ending May 8, by reason of the fact that on May 4, she started instructing another employee in the duties of a matron This would not explain her_ unusual starting time on Monday, May 3 . Nor does it explain, the adjustment given LaBed_ z for the pay-roll period ending May 15, of additional overtime of 13 hours for the pay-roll period ending May 8, in addition to her credit of 16%/.n hours overtime for the week ending May 15 , making in all a total pay check for that week of $52 47, comprised of regular pay of $24 80, and overtime pay of $27 67 for the weeks ending May 8 and 15. - The undersigned concludes and finds , on the basis of the testimony of wit- nesses for the Board , particularly the payment of $2 given to Donohue by LaBedz, the payment of $3 made to IIaldys , the uncontradictcd testimony of Mazeika, that her foreman Potocki, said that the respondent would pay for overtime while distributing leaflets and the peculiar and unexplained departures from regular starting and quitting time of various employees as revealed by their testimony and time cards introduced in evidence , despite denials by LaBedz that she promised payment for leafl-t distribution and the testimony of George Englund, the respondent 's personnel manager, that none of the employees whose testimony the undersigned has considered were paid for anything other than for work performed in the regular line of duty , that the respondent did in fact credit certain leaflet distributors with overtime other than for the performance of their regular duties , and that payment was made as a reward for their distribution of the leaflets.' b The speeches-of Edwards, his letter of May 8, 1943, and other acts of interfer- ence, restraint, and coercion The complaint alleges that the respondent engaged in further acts of interfer- ence with the employees' i ight to a free and uncoerced selection of a bargaining representative between the period from April 1 to May 12, 1943, by urging and warning the employees to vote against any union, by means of statements, speeches, the circulation of leaflets and letters, and by requiring employees to replace union insignia with other insignia These allegations are concerned with 5 P.efei ence has been made in tie ch- onology of events to a victoi y celebi aeon held in the women ' s dressing room on the afternoon of May 12 , during which whiskey and wine were consumed by the women Although the proof fails to establish the respondent ' s connection with either the purchase or distribution of the liquor, the matter is worthy of footnote reference , because the testimony of all the witnesses indicates conclusively that liquor was freely consumed both before the starting time on the afternoon of May 12, and thereafter during the spell and lunch periods In fact , Viola Price , as the result of what the under- signed believes to be too vivid a participation in the celebration , was unable to continue her work and had to leave The nature of the celebration and the amount of whiskey and wine consumed indicates that the affair must have been a matter of general knowledge within the canning , converting and lunch meat departments According to LaBedz ' s own testi- mony, when the original supply of liquor became exhausted , she and other workers "chipped in" and sent out for additional supplies . Yet, there is no indication that, despite this widespread distribution and drinking by a substantial group of employees , the respondent did anything to either curb the celebration , or thereafter took any action to discipline those employees responsible for the drinking. "AGAR PACKING & PROVISION CORPORATION 761 the speeches of Edwards, his letter of May 8, and the distribution of victory caps to the employees on and shortly prior to May 10, 1943 In June of 1942, the respondent put into operation a second and third shift. This rapid increase in personnel brought with it certain employee problems, par- ticularly, and the only one pertinent to the present discussion, that of absentee- ism The respondent first undertook to deal with it through department man- agers, who sought to curb absenteeism by patriotic appeals to the workers In a further effort to reduce absenteeism, the respondent withheld the pay envelopes of certain employees whose record for the preceding week revealed absences. The pressure of d_partmental foremen and the removal of the privilege of receiving a pay envelope on Friday were helpful, but with the increase and imgra- tion of personnel, the pioblem remained a serious one. On or about March 15, 1943, the respondent announced that it would place two $25 war bonds per day in a "jack-pot" drawing for all of its employees who had proved their loyalty by perfect attendance records. Announcement of the plan was accompanied by a detailed mimeographed release to all employees cov- ering the plan and its method of operation. The release announced that the first drawing would take place on Monday, April 12, 1943, for the week April 4 to April 10, inclusive. Previous to the announcement of the plan and in connection therewith, Edwards made a number of speeches throughout, the plant in which he stressed the importance of reducing absenteeism, and expressed the hope that ,the °jack-pot" drawing would stimulate b Ater attendance records. In the Cl eeches that Edwards made at this time to the employees, he also encouraged the sale of war bonds through a system of pay-roll deduction. This was part of'the respondent's plan inaugurated in February to cooperate with the Treasury Department in the purchase of war bonds. ' The respondent's goal was a 100 percent pay-roll deduction of 10 percent or better of the employees' weekly wage. About April 6, 1243, Edwards instructed the purchasing department to order the victory caps, and it was anticipated that these caps, bearing some appropriate -insignia to memorialize the event, would be distributed at or about the time that the respondent had achieved its goal of a 100 percent pay-roll deduction for the purchase of war bonds Fallowing the first jackpot drawing on April 12, 1943, Edwards thereafter ap- parently made two speeches daily in the plant, during the corn se of which he spoke about the p••oblem of absenteeism, urged the purchase of bonds and made patriotic appeals to the workers At the conclusion of his remarks, there wa.s a jack-pot drawing and the lucky employee, provided he had a perfect attendance record for the previous week, received his award in the form of war bonds. There is no evidence that during this time Edwards made any reference to unions or union activities. Commene.ng April 26, and thereafter clown to May 10, the Union, and numerous employees under the dirc&ion of LaBedz, engaged in an active and vigorous campaign of leaflet distribution At the he_ght of the camp, ign by LaBedz and her loPowers there' was mailed on M .y 8, to all of the employees by special delivery, the four-page printed document heretofore referred to. This document, which Edwards.addressed to his "Fellow Workers," and was headed "A Friendly Letter," reads in part as follows : This is a friendly letter, an appeal to reason, and a friendly suggestion to each and every one of my fellow workers. Time is tco short to speak to each of you personally from the heart, or to u rite each of you a personal letter, as I would like to do 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Partners in Production To Win War' I We are your real friends. Together we produce meat and food for all. Our good is your good, and your good is our good If we prosper, you prosper. If there is a strike-or 6 strikes and stoppages or disruption by gangs, cliques, or schemers, in outside places or in some other plant-then we' are hurt. Also, at the same time you are hunt. We suffer, and you and your family suffers. Your jobs and your pay suffer. What hurts you, hurts us too. What hurts us both, strikes, stoppages, slow-downs, stretch-outs, sabotage, troubles, HURTS THE. UNITED STATES GOVERNMENT AND OUR ALLIES,' and what is most serious, our sons, our brothers, our cousins and blood relatives-who are fighting for our liberties and freedom-from treaty breakers, savages and bullies the world over. It hurts our friends- every man, woman and child in Poland, in Russia--everywhere in the world, who are starving and need every morsel of food. There is an election next Tuesday. We consented to the election. Your Chance To Get Red of Trouble Makers We welcomed the chance this gives you, once and for all, to get rid of all the strike leaders, all the radicals, all the enemies of our jobs and our pay envelopes, all the paid agitators, the checker-offers, the saboteurs, "the" stoppage artists, and those who for the past 22 months (since August, 1941) have preached hate and spread falsehood-just so they could collect your dues, get you in their clutches and rule or ruin you-your job-and your pay check-any old time it suited them THAT'S WHAT HAPPENED BEFORE You don't have to have it happen again. Why let it happen again? * * VOTE AS YOU PLEASE-NOBODY CAN HARM YOU. Your ballot is secret-no one can know how you vote. Whichever way you vote is your own personal business We will not know how any one votes. Certainly, we will not hold it against you-no matter how you vote. We are only hoping that you will vote in the way you think will be BEST FOR YOURSELF AND YOUR FAMILY. In my honest opinion, every worker in the plant should vote for "NEITHER" so:- VOTE CIO NEITHER AFL x "These Are the True Facts" For many many years before there were any outside organizations in our plant, also while we had them in-and ever since they were out-this is what we did: We Always Paid the Highest Wages Without Unions We have always paid the HIGHEST BASIC WAGES IN THE STOCK YARDS. It has always BEEN OUR POLICY to PUT UP OUR BA SIC Italics denotes bold type as in original. ' Upper case as in original. AGAR PACKING & PROVISION CORPORATION 763 WAGES AS HIGH AS THOSE PAID BY THE BIG PACKERS IN CHICAGO. You have known this for many years. THIS WILL CONTINUE TO BE OUR POLICY. YOUR ACTUAL PAY ENVELOPE IS THE BIGGEST IN THE WHOLE MIDDLEWEST OF U. S. So far as.we know, our actual wages paid have BEEN THE HIGHEST in the City of Chicago-the HIGH- EST in the State of ILLINOIS-the HIGHEST in the States of WISCONSIN, MICHIGAN, MINNESOTA, IOWA, MISSOURI, OHIO and all the surround- ing States. Our Workers Receive the Biggest Pay Envelopes We challenge any P. W. 0 C. member in any P W. 0 C. plant to show you his actual pay check-compared to yours On the average, our free Ameri- can employees have had more working hours and more earnings per month and more earnings per year than P. IV. O. C menibei s in P. W. 0 C. shackled plants. Come and look at your own record and challenge any P. W. O. C. dues payer and check off worker to show you as good results. Don't let them fool you. Our independent, free American employees are not shackled by Union rules-not shackled with Union limitations-Union classifications-threat- ened with stewards' orders Free American workers cannot be threatened with Union fines, slow down and stretch out -Every free American work- man, who is not shackled by paid Union agitators can improve his job and his wages on his own merit, any time he wants to. WIIEN WE HAD THE WQRK, WE, NEVER HELD OUR PEOPLE DOWN TO 40 HOURS OR LESS. WE WERE ABLE TO RUN OVERTIME TO SUIT OUR EMPLOYEES NO UNION AND NO COMPETITOR CAN HOLD US DOWN WE ARE INDEPENDENT. The great hollering of these Union agitators amounts to this-They stand over a good goose that lays fine eggs-and yell "Lay 2 eggs instead of one egg" "Lay squared eggs instead of round eggs." But all these agitators put together, can't lay even one egg between them. You Will Never Need Paid Agitators To Get Your Increased Wages Full Seniority and Job Security P. W O. C claims for job security and seniority are sheer rubbish. They give me a laugh. P. W 0 C furnished no jobs, and furnishsed no security. Why, you could never go to sleep at night and know for sure that the next morning some trouble maker or some gang would not pull you down, or would not pull you out on a stoppage or a strike. On the contrary-they made your jobs tinsecure-why, they actually forced you to give up good jobs just to walk the streets without a job and without pay for weeks and weeks. There was no grievance here. It is our firm-we-who always furnished steady secure jobs with good pay. We hope to continue to do so, always. We always protected your seniority, and always will. None Can Trust Contract Breakers You, your family, yours (sic) sons, brothers and blood relations at the front, our firm, our country, our allies-no one can trust contract breakers-at home or abroad. We 'are fighting a war to death"to purge the world of treaty bro'akers- contract violators--bullies and savages who never kept their promises 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Remember Pearl Harbor The citizens and friends of Poland, of Russia, of Czecho Slovakia, of Austria, of Danmark, of Norway, Holland, Greece and France-know that it is worse than shame to trust treaty breakers. All the promises, all the agreements to live in peace with their neighbors- which those neighbors relied on, to their great disaster-meant nothing to Hitler, Mussolini and Tojo. Remember Pearl Harbor-and how the Japs struck down innocent and ti usting good neighbors-and sank our ships, destroyed our planes and killed our soldiers and sailors, on a Sunday morning-while negotiating to renew a treaty of peace and friendship. Remember how P. W. 0. C. while negotiating to renew a contract of peace and friendship with us-(a few months before Peail Harbor)-struck us all down while we were working on U S. Government contracts. For a while we were crippled-just as our Army and Navy were crippled at Pearl IIarbor. You and your family suffered. You lost about 6 weeks' wages-a total of over $200,000 among the three plants struck. If you were in the strike you know that you did not earn one cent during all that time-but you were forced to picket, etc., etc. morning, noon and night. For what-For not/dng-For Tionble Making Agitators. There were 6 strikes over 2 buttons-sheer nonsense. The P. W. 0 C. is trying to erase this from your mind. It can't. You and your family will never forget. You won't forget it. We can't forget it. It is dangerous to you to put yourself again in the shackles of these trouble makers. It is dangerous to your job-your pry It is dangerous to your family We believe it is dangerous to us-and to our customers-our coun- try and our soldiers. We have had no strikes since-let 'us be safe and invite no strikes in the future. We have nothing to recommend the A F of L Meat Cutters, either. We don't need them If you vote "NEITHER" you can play safe. Confidence Our record with you for all these years-never a broken word. Every contract and promise fulfilled-every check cashed for years and years-that is our record-we deserve your con/idence. That is our guarantee to you for peace and victory. The employees of Republic Food Co voted the P. W. 0. C. oiit last Tues- day by a big majority This Thursday the employees of Dries & Frump, 7400 Loomis Street (both in our area), voted against the C. I. 0. and A F. of L. They voted for "NEITHLJP" by a wide majority. You cer- tainly have mop e reason to do the same. My honest judgment is that you don't need P. W. 0 C or any other out- siders in this plant, that you and your family will both be better off with- out them, and I earnestly hope that you will- VOTE NEITHER AFLCIO x AGAR PACKING & PROVISION CORPORATION 765 Yours for peace and freedom from strike racketeers and trouble makers Yours for safety, job security, prosperity and victory. Your sincere friend, (Signed) W. 0. EDWARDS, Vice President-Treasurer, Agar Packing d Provision Corporation. MAY 8, 1943. Reference has been made above to the similarity in language and tenor of this letter to the contents of some of the leaflets distributed by LaBedz Ref- erence has also been made to the fact that Edwards followed his letter of May 8, with a number of addresses in the plant on Monday , May 10 , the day before the election There is no dispute that he made at least six addresses on that day, during the course of which he spoke about the purchase of war bonds and the problem of absenteeism , and that at the conclusion of his remarks there was distributed to the employees the victory caps In addition to the speeches, there was a jack -pot drawing According to the testimony of Collins , lie heard Edwards speak at about 4: 30 p. in . on May 10. During the course of this address , Edwards varied his remarks by stating that there was going to be an election the next day and, according to Collins, that "The people that were in here before are trying to get back ; the ones that caused you workers to lose all that money, they are trying to get back ." Edwards urged the assembled employees not to pay any attention to propaganda and lies, and held up for displ;y a union leaflet which accused the respondent of having shackled its em- ployees ' and held a whip over their heads . Edwards asked the workers if they wore shackles , and whether the respondent had held a whip over their heads, to which the workers responded, "No " At about 11 p. m. on May 10 , Edwards addressed the nig'it shift , during the course of which he stressed the importance of purchasing war bonds and of curbing the problem of absenteeism , and the victory caps were distributed to the workers He also held in his hand a group of bonus checks which lie stated would be released to the employees upon the approval of the National War Labor Board These checks had been prepared pursuant to an application that the respondent had make to the National War Labor Board about March 1, 11)43, for permission to pay its night workers a 5-cent an hour bonus Edwards also combined his appeal to patriotism , his display of the bonus checks, and the distribution of the victory caps , with mention of the election , voting in which would commence at 6 a in on May 11. In this latter connection, there is a major conflict in the testimony of witnesses for the Board and all of those called by the respondent , including Edwards , as to the nature of his remarks about the election. According to Mazeika , Edwards displayed the facsimile ballot which had been previously distributed by'LaBedz , and which bore in heavy type the bold X in the space reserved for the "neither " vote According to her further testimony, Edwards stated that the Union was distributing leaflets attacking him and that if he was not a gentleman , he "would go and knock their blocks off ," and that he also said that he did not care how the employees voted in the forthcoming election , but that he held up the facsimile ballot and by gesture urged the workers to place an X in the box reserved for the "neither " vote Mazeika testified that the ballot that Edwai (Is displayed was the pink one distributed by LaBedz Lee Christian , another vyitness called by the Board , testified substantially as did Mazeika, that Edwards spoke on this occasion about absenteeism and the pur- 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chase of war bonds displaying the bonus checks and, by gestures, indicating with reference to the pink facsimile ballot, that the employees should place their X in the box reserved for the "neither" vote All of the respondent' s witnesses testified that the ballot that Edwards displayed was it copy of the official Board ballot, so folded as it was held in his hand, as to show the three boxes reserved for the vote of the employees, but that Edwards neither by word nor gesture, indicated how the employees should vote, but on the contrary, told the employees to vote the way they wanted. Edwards denied, as did all the other witnesses for the respondent, some of whom, according to their testimony, stood within hree feet of him , that he held the pink facsimile distributed by LaBedz In resolving this conflict, as to whether Edwards did or did not display the •Vjnk facsimile ballot, the testimony of Mazeika indicates some confusion in her o)wn mind as to whether the ballot that Edwards displayed bore an N. If her testimony is correct that Edwards exhibited the pink facsimile ballot, there can be no question that that ballot bore an N in the middle box, but she testified that Edwards indicated by gestures that the X was to be placed in the middle box. She testified also that Edwards stated that he did not care how the employees voted, but that he crossed the middle box with his finger. Christian was likewise somewhat uncertain that Edwards displayed the pink facsimile ballot He testi- fied that the one Edwards held was similar to the pink facsimile ballot, but he could not say whether it was pink or some other color. Christian was positive, however, in his testimony that the ballot bore an X in the middle box. He con- firmed in substance Mazeika's other testimony that on this occasion Edwards stated that 2 years ago the respondent had succeeded in removing the radicals from the plant, and in order to be sure that they did not return, he would get up on a soap box and make speeches to insui e that result On the basis of all the testimony concerning this sbeech, the undersigned concludes and fmc:,s that Edwards did not display the pink sample ballot, as was testified to by Mazeika and Christian, but did, on the contrary, display a copy of the official Board ballot. The undersigned' concludes and finds further,`that on this occasion Edwards spoke about the problem of absenteeism, urged the sale of war bonds, distributed the victory caps to those employees who were present and displayed the bonus checks. The undersigned also finds, that, although he told the workers they could vote any way they wanted to in the forthcoming elec- tion, lie did combine those remarks with an attack upon the Union, as testified to by Mazeika and Christian, wherein he said in substance, that he had suc- ceeded in keeping radicals in the Union out of the plant on a previous occasion, and if necessary he would make every effort to do so again ' As heretofore indicated. the Union at a meeting ou May-2, 1943, distributed to the respondent's employees a painter's cap, bearing union insignia There is testimony that approximately 85 percent of the respondent's employees wore these caps during the week immediate'y prior to the election. The wearing of caps of this nature in the plant was not unusual, the Union having distributed similar caps at various times in the past The employees, whether affiliated with the Union or not, wore them for personal reasons. ' The respondent had never, prior to May 10, given caps to its employees With the distribution of the victory caps on May 10, the workers, quite naturally, ueplaced the caps previously distributed by the Union for the more attractive victory cap There- after union caps were worn in the plant, but not on the same extensive basis as had preceded the respondent's distribution of caps. 8 There is no evidence that any employee was criticized for wearing a union cap. AGAR PACKING & PROVISION CORPORATION 767 c. The wage increases and bonus payments The complaint alleges that , as a further act of interference with the employees' independent selection of their own bargaining representative , the respondent promised its employees wage increases and overtime pay In the speech that Edwards made on the night of May 10, lie displayed a group of bonus checks. The allegation is concerned with that incident, and its timing in connection with the election , as well as a notice distributed to all the employees on or about April 14, 1943 , notifying them that the National War Labor Board had' approved the respondent 's application of overtime pay for all work over 8 hours in any one day, or over 40 hours in any one week at the rate of time and one-half, the regular rate for all such overtime hours. The respondent , as a small packer and in competition in part with the larger packers, in so far as the maintenance of a steady force of employees was con- cerned , as a matter itt policy , attempted to pay wages equal to those paid by the larger packers. It undertook to meet wage rates or increases in overtime pay made by Armour, Swift and Wilson When the National War Labor Board had approved provisions in regard to overtime pay for the large meat packers, the respondent accordingly , pursuant to its policy, made application for similar permission to pay overtime rates. The notice of April 14 , 1943, preceded by about a week the Stipulation for Certification upon Consent Election , which was signed on April 21 , and apparently seems to stand alone and without connection to the' events that followed between April 26 and May 10 There was no mention of it in Edwards ' speeches although it is indirectly referred to in the letter of May 8. The same , however , cannot be said for Edwards ' use of the bonus checks in connection with his other remarks . It is true that the respondent applied to the National War Labor Board on or about March 1 , 1943, for permission to pay this bonus , following a D.rective Order of the War Labor Board that the large packers negotiate with the unions with respect to a night bonus Nevertheless the display of these bonus checks pi eparatory to an election in connection with other remarks about the Union , and particularly when considered in relation to the letter of May 8, could not have failed to suggest that the election was a contest between the respondent , which could be relied upon to iewaid its employees, and a union that promised much and accomplished little. C. Conclusions as to the unfair labor practices he Act envisages a selection by employees of their bargaining representative, free from employer interference, restraint, and coercion. The Petition for Inves- tigation and Certification filed by the Union herein, later followed by the Stipula- tion for Certification upon Consent Election, presented to the employees an oppor- tunity to choose as between the Union, the Amalgamated, or neither. Respecting this choice, the respondent was under a positive duty to maintain a complete and unquestioned neutrality. Instead of maintaining this position of complete neutrality, however, the respondent interjected itself into, and contributed to, a vigorous campaign of opposition to the Union and to its selection by the employees, and by various means, some legitimate and not ordinarily proscribed by the Act, as well as by others prohibited by it, coerced, interfered with, and influenced the employees' choice of a bargaining representative.' The circulation 0 See N L R B v . Norman H Stone, 125 F ( 2d) 752 (C C A 7) cert den 317 U. S 649, Valley Mould and Iron Corporation v. N. L. R. B., 116 F. ( 2d) 760 (C C. A. 7) cert. den. 313 U S 590; N. L R B v Burry Biscuit Corporation , 123 F . ( 2d) 540 (C C. A 7). 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of anti-union leaflets, the election letter of May 8, 1943, the distribution of victory caps, and Edwards' speeches of May 10, the undersigned is convinced, were not a series of isolated and innocent acts, but were on the contrary, part of a carefully conceived and well planned combined attack, to defeat the Union by means of all those devices then at hand No finding has been made above that the respondent is accountable for the' draftsmanship or printing of the anti-union leaflets distributed by LaBedz, al- though the semblance of the ideas in the leaflets to the election letter striking,y suggest responsibility therefor. But the respondent, regardless of the original source of the leaflets and of the honest opposition to the Union ti,at may have been' shared by some of the employees, must be held accountable for their distribution by reason of the overtime payments to employees for engaging in this activity The respondent's anti-union campaign reached its climax just prior to the elec- tion in Vice-president Edwards' inflammatory letter of May 8, and in his speeches of May 10 when he clearly and emphatically emphasized the respondent's opposi- tion to the Union. The letter was cleverly timed so that it would be received by the employees on the week-end preceding the election and while they were at their homes Therein Edwards depicted only the respondent and the employees as partners in production, and the Union as a disrupter and meddler The election was welcomed by the respondent as its chance to get rid of radicals, saboteurs and agitators This violent and boisterous characterization of union leaders was purposely designed to instill hatred and fear of the Union, and more particularly, because of the letter's specious appeal to pati iotism. The Union was accused of making false promises which it could not fulfill and, at the same time, the respondent recounted the advantages it had obtained for the employees. It was plainly suggested that selection of either union in the election would be of no help to the employees in securing higher wages or more advantageous working conditions. In addition, Edwards charged that the Union was not a peaceful bargaining representative, and that representation by it would lead to strikes and financial loss for the employees The employees were warned that the Union could riot be trusted and that their jobs were endangered and their security threatened by a selection of it as a bargaining representative Finally, Edwards urged the workers to "vote neither" in order to secure peace and freedom from strike racketeers and trouble makers, and obtain job security, prosperity and victory.10 This letter clearly posed a spurious issue between voting for the Union and loyalty to Edwards and the respondent. That was not the issue to be decided at the election The only question involved in the election was whether the employees wanted to des grate a representative for purposes of collective bar- gaining with their, employer and, if they did, which of the competing representa- tives would be designated. "An election is not a contest between a labor organi- zation and the employer of the employees being polled, and participation by an employer in a preelection campaign as if he were a contestant is an interference with the employees' right to bargain collectively-through representatives 'of their own choosing.' " 11 The letter was not the only weapon of the respondent's opposition On Mon- (lay, May 10, Edwards followed up his written appeal by making at least two . '0 Purnue the coerce of oral ararment 1`ad upon the i ecoi d at the close of the hearing, counrel for the respondent was asked if the letter was sent out to influence the employees to vote "net''ci ' He ieplicd • "I think so. I think it was sent out to influence them and persua le them " "Matter of Sanb"am ' Plectric Mann facto' inq Co and United Electrical , Radio d Machine Workers of America, affiliated with the C I 0 , 41 N L R B 469, enf ' d in N L R B. v. Sunbeam E lectric Mfg Co , 133 F ( 2d) 856 ( C C. A 7). AGAR PACKING & PROVISION CORPORATION 769 speeches in which he disparagingly referred to the Union Edwards coupled his attack upon the Union with patriotic appeals to the employees to curb absenteeism and purchase war bonds , and exhibited the bonus checks as an illustration of the respondent ' s largess that could riot be matched by the Union . Considered in isolation and divorced from any correction with the impending election, any re- marks that Edwards made about absenteeism , the purchase of war bonds or the prospective payment of a bonus , or even the distribution of victory caps to memo- rialize the completion of the respondent ' s war bond campaign , would be entirely permissible . The undersigned wishes to make clear that no finding is made herein that such activities are per se a violation of the Act But Edwards had already joined issue with the Union and was determined to defeat it in the election With the swine appeal that it candidate for a political office would make by _ distributing election favors and promising future political favors in the event of victory, Edwards distributed attracti ve caps to the employees and held out the prom se of bonus checks . It is true that the hats were purchased and the checks prepared prior to the election , but they could have been distributed after the election rather than May 10, the day preceding the election . Edwards' total activities on_May 10 , following as it did the widespread distribution of the leaflets and the litter of May 8, had, the undersigned is convinced , a single purpose in mind-to defeat the Union at the polls. The respondent contends that the speeches of Edwards and his letter of May 8, involved an expression of the respondent ' s opinion , and that such expressions as contained therein are protected by the constitutional guarantee of freedom of speech As the Supreme Court of the United States has recently pointed out, however, the Fist Amendment does not privilege "pressure exerted vocally" by an employer , where that einilayei ' s "who l e course of conduct," properly appraised constitutes interference , restraint , and coercion within the meaning of the Act n The undersigned is convinced by the entire redo d herein , that Edwards' speeches , and the letter of May 8 , were not disconnected and academic expressions of a point of view , but were rather an integral part of a "whole course of conduct" on the part of the respondent , deliberately designed to sway the result of the election Indeed , it is clear from the letter of May 8, that Edwai ds went further than merely to express an opinion about the Uinon, for therein he urged the employees to "vote neither ." This was not an expression of opinion but rather, a direction that only by so voting could the employees continue to enjoy the bene- fits of future employment with job security. tenure and other advantages The letter (lid not honestly set forth the c,inployees ' r'ght to do as they pleased without fear of economic compulsion by the respondent . On the contrary , the clear iinpm•t of that document was that the respondent 's employees would be made to super financial loss . interrupted production , insecurity and want, if they se'ected the Union as their col ' ective bargaining representative in the election Indeed, the letter directly raised the hazard of loss of employment were the Union to be 'elected Expressions of opinion which , in their context , convey such a meaning to the employees involved can and do destroy the rights guaranteed in the Act, par- ticularly when , as in this case, they are tuned to coincide with a crucial event in the Union's efforts to -represent the employees n Unless employees are protected r 12 N L R B v Virginia Electric & Power Company, 314 U S 469 "See N L R B v Chicago Apparatus Co, 116 I' (2d) 753 (C C A 7), in which the Court stated in part: Expressions of opinion concerning labor unions by an employer . . may be of such a nature that their effect is to coerce and intiniic'ate the employees To i old that such expiessions , when employei manifestly intended to give them such an effect, are not violative of the Labor Act , would be to nullify the provisions of the Act and to thwart the public policy evidenced by said Act. 609591-45-vol 58-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Act from such "pressure exerted vocally," they are not free to choose their collective bargaining representatives The undersigned finds that by the respondent's entire course of conduct, in- cluding the payment of overtime for leaflet distribution, the timing in the dis- tribution of the victory caps, the exhibition 'bf the bonus checks, Vice-president Edwards' letter of May 8, and his speeches and conduct of May 10, the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - D. Alleged interference, restraint and coercion The complaint also alleged that from on or about December 1, 1942, and there- after, respondent required its employees to execute individual employment con- tracts for the purpose of preventing self-organization aid collective activity among said employees, and that it interfered with the rights of employees to select representatives of their own choosing by keeping lists of those voting at the election. 1. The employment contracts In November 1941, following a strike by the Union, the respondent furnished every employee with a formal employment contract for the year 1942. The contract contained certain guarantees respecting wages, hours, and other con- ditions of employment. On December 14, 1942, the respondent mailed to all employees then on its pay roll an employment contract for the year 1943, similar in form to the 1942 contract The contract provided that the respond- ent would furnish steady employment, wages consistent with those paid in the stock yards, and other guarantees affecting working conditions The letter which accompanied the contract stated : This contract is not intended to interfere with or restrain or coerce any employee in belonging or not belonging to any organization of any kind. Every employee is absolutely free to do exactly as he or she wishes. There will be no discrimination. The employee was asked to read the contract, keep the copy signed by the re- spondent and to sign the other copy and to return it to the respondent. Following receipt of this 1943 contract, a majority of the employees signed the contract. The contract itself, in addition to some of the terms indicated above, also con- tained the following: The Employee shall also have full right to apply to the United States De- partment of Labor, Conciliation D,vision, and to the National Labor Rela- tions Board at any time, when and as often as desired by hire, without inter- ference or restraint by the firm. In support of the respondent's contention that Edwirds' letter speeches and other conduct contained justifiable expressions of opinion, respondent offered to prove the n hole course and history of its labor relations with the Union, going back to 1935 , that during this history the respondent had at all times lived up to its obligations under the Act, but that the Union had, on the contrary, broken and breached its coiitract obligations ; and that, as a result of this conduct on the part of the Union particulaily in the fall of 1941, respondent was privileged to do what it did in order to defeat the Union and prevent a possible repetition of such activity in the future. The offer was objected to by counsel for the Union and the Board, on the ground that it was incompetent, irrelevant and immate- rial, and for the further reason that it would unduly piolong the hearing to retiy all the issues involving disputes, aiguments , stoppages, slow-downs, interferences, assaults, strikes and acts of violence from 1938 down to the time of the hearing. The offer was rejected by the undersigned, and no consideiation in the.wiiting of this Intermediate Report has been given to the statement of facts contained in the offer of pioof. AGAR PACKING & PROVISION CORPORATION 771 In all other respects the, Employee shall have all rights provided by the National Labor Relations Law, the Fair Labor and Standards Act (Wages and Hours Law), Social Security Laws and all other laws in effect from time to time. The Board does not attack the substantive provisions or the validity of the con- tract, but contends that the employees were forced to sign them by the respond- ent as part of its campaign to attempt to prevent their self-organization. It seems clear to the undersigned that the respondent did not insist upon or force any employee to sign the contract. There is testimony from witnesses called by the Board, that employees were asked if they had signed the contracts and, in the event they had not, were asked why, and were then told that they were free to sign or not and that the decision was up to them. Adam Milash testified that in April, 1943, Colman, who was employed in the personnel depart- ment, sent for him and asked him why he did not sign a contract. He testified that Colman told him lie should sign the contract because "There is a fight between the people ; between the bosses and the workers." He acknowledged that Colman said nothing about the Union Lee Christian testified that on or about May 8, 1943, he was Called to Colnian's office and there in the presence of two other employees, was asked to sign a contract, and that when lie refused, Colman said it was "0. K." According to William Burklov, Colman asked him on two occasions about the contract, the first occasion in either January or Feb- ruary, 1943, when Colman told him the signing was not compulsory and sometnne in April, 1943, when Colman asked Burklow why he did not sign the contract and told him that if he had any grievance he could take it up with Colman Burklow signed the contract after May 11 Frank Cnchy testified that in April 1943, Col- man asked him why he had not signed the contract He testified further that he signed the contract because he was afraid that he was "going to lose" his job if he did not It appears, however, from Cichy's original signed contract, which was identified at the hearing, that lie signed it on February 22, 1943. With respect to this issue, Colman testified that when lie was-employed by the respondent, he was given, among other duties, the task of getting employees to sign the contract, and his testimony that he did not force, urge, or coerce any- one into signing a contract is corroborated by the testimony of other witnesses Colman testified further that he relinquished his efforts to secure signatures to the contracts about the middle of April, 1943, and he identified the time in such a manner as to indicate to the undersigned that this date was approximately correct Hence, the undersigned does not credit the testimony of Christian that he was asked by Colman on or about May 8, 1943, to sign the contract and, as to this date, concludes and finds that Colmar relinquished this activity in mid April, 1943 It also appears affirmatively from the record and from the testimony of witnesses, that those employees who did not sign contracts were not affected in so far as their working terms and conditions were concerned On the basis of all the testimony concerning this allegation of the complaint, the undersigned concludes and finds that the respondent did not coerce or force any employee to sign an employment contract, nor did it utilize the contracts for the purpose of preventing self-organization and collective activities among the employees, and it will be recommended Lei eafter that this allegation of the complaint be dismissed. 2. The lists On May 11, the day of the election, all employees leaving the plant to vote during working hours; were required to go through an exit door leading to the lolls. Under instructions of the respondent's peironnel department, a guard 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was stationed at the door and he was instructed to take the clock number of each employee leaving the building, to record that number and to return the number to the personnel department According to James Paglino, the head guard, the purpose behind this instruction was to see to it that the employees did not loiter outside the building and returned promptly to their place of work after voting. After the number had been reported to the personnel department, it check was made to see if the employees bad returned to their place of employ- ment. There is no question that the employees were asked as they left the building if they were going to vote and, if the answer was in the affirmative, their num- bers were taken down by the Guard However, Frank Farrell testified that on his way to the poll on the morning of the election, he was stopped by Guard No. 705 (later identified as Howard Westny), who said to him, "vote in the middle" Theodoie Adams testified that he was stopped by an unidentified guard and told to vote for "neither Birt Roy testified that on the day of the election, Guard No. 705 took his number and told him to vote "in the middle." None of the other witnesses called by the Boaid whose numbers were taken by the guard testified that they were told how they should vote. Westny, who appeared to the under- signed to be a credible witness, denied that he asked employees how they were going to vote, or that he directed them how to vote. All of the respondent's witnesses who were called on this subject testified that nothing was said to them about the way they should vote. lliere appears to be no reason why Roy, Adams, and Farrell, of all of the witnesses called by both parties, should have been the only ones who were told to vote for "neither" or "in the middle " The preponder- ance of credible testimony is to the contrary and the undersigned concludes and finds, on the basis of all testimony, that Howard Westny did not advise the employees how they should vote. As for the list of voting employees which was compiled by Westny and other guards, the respondent's explanation of its reasons for compiling the list, in the absence of any showing by the Board of any use to which the list was put, is a reasoiiable and, to the undersigned, a satisfactory explnation. The under- signed coric_udes and finds that the respondent did not keep a list of voting eniployecs for the purpose of interfering with their rights to select a bargain- ing representative, and will recommend hereafter that this allegation of th' complaint be dismissed. IV THE EFFECT OF THE UNFA-R LABOR PRACTICES UPON COAM ERCE. The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor d;sputes burdening and ob- structing commerce and the flee flow of commerce V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, and to restore as nearly as possible the status quo existing prior to the commission of the unfair labor practices. "Adam' s descirption of the guard in his testimony was at variance with the physical characteristics of ilowaid Westny . Guard No 705 whom Adams' later identified as the one who stopped hint This identification was made after Adains , at the undersigned's direction , visited the plant and was given an opportunity to identify the guard He did so and testified theicafter that it was Westny AGAR PACKING & PROVISION CORPORATION 773 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following. CONCLUS:ONS OF LAW 1. Packinghouse Workers Organizing Comm!tice and United Packinghouse Workers of America, Local 24, bath affiliated with the Cong 'ess of Industrial Or- ganizations, are labor organizations, within the meaning of Section 2 (5) of the Act. - 2 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 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices, within the mean- Ing of Section 8 (1) of the Act by utilizing its employment contracts to prevent self-organization of its employees, or by interfering with their r.ght to select bargaining representatives, by keeping lists of those voting in the election. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed rl>,commend,s that the respondent, Agar Packing & Provision Corporation, Chicago, Illinois, and its officers, agents, successors, and assigns shall: 1 Cease and desist from : In any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act 2 Take the following affirmative action winch the undersigned finds will effectuate the policies of the Act: (a) Distribute notices to all its employees by special delivery ,nnAl stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of these Recommendations ; 18 (b) Post immediately in conspicuous places througiiout its plant at Chicago, Illinois, and maintain for a period of at least sixty (CO) consecutive days from the date of posting, notices to its employees stating that the respondent will not engage in the conduct from which it is recommended to cease and desist in para- graph 1 of these recommendations ; (c) Notify the Regional Director for the Tenth Region in'writing within ten (10)" days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) (lays from the receipt of this Intermediate Report, the respondent notifies said R:gional Director in writing that it will ccinply with the foregoing recommendations, the National Labor Relations Board issue in order requiring the respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent required its-employees to execute individual employment contracts and utilized said contracts for the purpose of preventing self-organiza- tion and that the respondent interfered with rights of said employees to select 'IN L R. B v. Sunbeam Electric Mfg Co, 133 F ( 2d) 856 (C C A 7). 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing at the election, by keeping lists of those voting at said election. As provided in, Section 33 of Article II of the'Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochaanbeau Building, Wash- ington, D C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section-33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. MORTIMER RIEMER, Trial Examiner. Dated September 8, 1943. Copy with citationCopy as parenthetical citation