Neuhoff Packing Co.

National Labor Relations Board - Board Decisions

Feb 17, 1941

29 N.L.R.B. 746 (N.L.R.B. 1941)

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