Swift and Co.

National Labor Relations Board - Board Decisions

Mar 1, 1939

11 N.L.R.B. 809 (N.L.R.B. 1939)

In the Matter of SWIFT AND, COMPANY, A CORPORATION and LOCAL
No. 530, UNITED PACKING HOUSE WORKERS INDUSTRIAL UNION,
AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION
Case No. C-613.-Decided March 1, 1939
Meat Packing Industry-Interference, Restradnt , and Coercion-Company-
Dominated Union: domination of and interference with formation and ad-
ministration; support; canvass of employees for, during working hours, with
assistance of supervisors ; use of employer facilities at nominal charge ; meetings
on company property ; desk space in employment office; production of bulletins
and notices for ; denial of similar facilities to union ; discrimination in favor
of, in recognition as representative of employees ; employer ordered to refrain
from recognizing as agency for collective bargaining , in view of voluntary dis-
solution subsequent to issuance of Intermediate Report-Discrimination: dis-
charges, lay-offs, reductions in basic rate of pay ; charges of, not sustained ;
charges of , dismissed without prejudice as to three persons.
Mr. Joseph A. Hoskins, for the Board.
Mr. William N. Strack and Mr. J. Wesley T. Blades, of Chicago,
Ill., for the respondent.
Mr. Arthur R. Felsen, of East St. Louis, Ill., for the E. P. A.
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been duly filed by Local No.
530, United Packing House Workers Industrial Union, herein called
the Union, affiliated with the Committee for Industrial Organiza-
tion, herein called the C. I. O., the National Labor Relations Board,
herein called the Board, by Dorothea de Schweinitz, Regional Direc-
tor for the Fourteenth Region (St. Louis, Missouri), issued and duly
served its complaint dated February 3, 1938, against Swift and Com-
pany, National City, Illinois, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section
1 The original charge was filed by United Packing House Workers , Local No. 380; the
amended and second amended charges were filed by Local No. 530, United Packing House
Workers Industrial Union , the successor organization to Local No. 380.
11 N. L. R. B., No. 62.
809
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
On February 12, 1938, the respondent filed a motion to dismiss the
complaint on the ground that neither the complaint nor the second
amended charge contained "a clear and concise statement of facts
constituting the alleged unfair labor practice affecting commerce"
on the part of the respondent. On the same date the respondent
filed separate motions that the second amended charge and the com-
plaint be made more specific, definite, and certain. Without waiver
of or prejudice to the above-mentioned motions, the respondent filed
an answer in which it denied that it had engaged in or was engaging in
the unfair labor practices affecting commerce alleged in the complaint.
Pursuant to notices of hearing duly served upon the respondent,
the Union, and Employes Protective Association of Swift and Com-
pany, herein called the E. P. A., a labor organization claiming to
represent employees of the respondent, a hearing was held at East
St. Louis, Illinois, from February 17 to March 11, 1938, inclusive,
before Albert L. Lohm, the Trial Examiner duly designated by the
Board. On February 18, 1938, the E. P. A. was permitted to inter-
vene. All parties, except the Union which did not appear, were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the beginning of the hearing the Trial Examiner denied the
motion to dismiss the complaint and the motions to make the com-.
plaint and the second amended charge more specific, definite, and
certain. At the conclusion of the Board's case the respondent re-
newed the aforesaid motions, which were again denied. The re-
spondent thereupon moved to dismiss the complaint for lack of juris-
diction and failure to establish a prima facie case. This motion was
denied. The Trial Examiner granted a motion, made by counsel for
the Board, to limit the E. P. A. to the rebuttal of allegations in the
complaint. Amendments to the answer, both written and oral, were
tendered and allowed during the hearing. At the conclusion of the
hearing the complaint was amended to conform to the proof. A
motion by the E. P. A. for leave to withdraw the original minutes of
its meetings and substitute a copy thereof, made at the close of the
hearing, was allowed by the Trial Examiner in his Intermediate Re-
port, effective as of the time when the case is concluded before the
Board. During the course of the hearing the Trial Examiner made
various other rulings on motions and on objections to the admission
of. evidence. The Board has reviewed the rulings of the Trial Ex-
ainer, and, except as specifically mentioned below, finds that no
prejudicial errors were committed. All rulings of the Trial Examiner
not hereinafter specifically overruled, are hereby affirmed.
SWIFT AND COMPANY ET AL. 811
On April 28, 1938, the Trial Examiner issued his Intermediate
Report in which he found that the respondent had dominated and
interfered with the formation and administration of the E. P. A.
and contributed support thereto, coerced its employees in the exercise
of their right to self-organization, and discouraged membership in a
labor organization by discrimination in regard to the hire and tenure
of employment of Richard Shields, Alex A. Warchol, Euell Mann,
Ray L. Cox, William J. Green, John J. Wojtczuk, Joseph John
Olszewski, Louis V. Alvey, Antonia Czaicka, Clement Goebel, Wil-
liam Bates, Al Levinski, Frank Stancellis, Julius Pochek, and
William Pochek. The Trial Examiner found that the respondent
had not engaged in unfair labor practices with respect to Robert
Phillip, Earl Bailey, and William E. George. On May 21, 1938, the
respondent, pursuant to an extension of time granted by the Board,
filed exceptions to the Intermediate Report, in which it excepted to
each ruling made by the Trial Examiner at the hearing in sustain-
ing objections of counsel for the Board and to his conduct of the
proceedings, as well as to all findings of fact and recommendations
in the Intermediate Report.
On July 1, 1938, the respondent filed a petition to reopen the case
for the purpose of taking further testimony relating to facts pertain-
ing to the voluntary dissolution of the E. P. A. subsequent to the
issuance of the Intermediate Report. On October 31, 1938, the Board
duly issued and served on the parties its order denying the petition
to reopen.
On November 3, 1938, the Board ordered the present proceeding
severed from Case No. XIV-R-29,2 and further ordered that the
present proceeding be continued before the Board.
Pursuant to notice, a hearing was held before the Board on De-
cember 8, 1938, for the purpose of oral argument. Only the respond-
ent appeared and participated therein.
The Board has considered the exceptions to the Intermediate Re-
port and, except as otherwise pointed out 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 RESPONDENT
Swift and Company, an Illinois corporation with its general offices
at Chicago, Illinois, is engaged principally in the business of acquir-
3 On June 29 , 1937, a petition for investigation and certification was filed by Local No.
380, United Packing House Workers . On December 15, 1937, the Board ordered an investi-
gation and consolidated the representation case (XIV-R-29) with the present proceeding
for purposes of hearing . On January 31, 1938, the Board entered its order permitting the
withdrawal of the petition in the representation proceeding.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and slaughtering livestock, and marketing the products and by-
products thereof. In addition, it purchases, processes, and sells
dairy, poultry, and other food products. It owns and operates, in the
United States, approximately 25 packing plants, 110 produce plants,
and a substantial number of distributing houses located in the prin-
cipal cities. The respondent employs about 61,000 employees, of
which number approximately 27,000 are production workers in its
packing plants. During the fiscal year 1936, total sales amounted
to $831,671,748, and as of October 30, 1937, its inventory was valued
at $109,295,895.
This proceeding is concerned only with the plant of the respondent
located at National City, Illinois, herein called the National City
plant, which is an integral part of the respondent's entire operations.
The live weight of cattle, sheep, and hogs acquired from all sources
by the respondent's National City plant in 1936 amounted to 320,-
492,563 pounds; in 1937, livestock acquisitions totaled 305,793,037
pounds. All cattle, and over 95 per cent of calves and sheep, were
purchased at the public stockyards in National City, Illinois; ap-
proximately 30 per cent of the hogs were secured directly from
sources outside the State of Illinois. A substantial part of the live-
stock purchased at the public stockyards in National City, Illinois,
originate in other States. Products processed or manufactured at the
National City plant are shipped into and distributed in 22 States.
About 83 per cent of the meat and miscellaneous products, as shown
by figures for 1936 and 1937, are shipped into and distributed in
States other than Illinois. The respondent employs approximately
1,500 production workers at its National City plant.
H. THE ORGANIZATIONS INVOLVED
Local No. 530 , United Packing House Workers Industrial Union,
affiliated with the Committee for Industrial Organization , is a labor
organization admitting to its membership production employees of
the respondent in National City, Illinois.
Employes Protective Association of Swift and Company is a labor
organization , unaffiliated with any other labor organization•,. admit-
ting to its membership all employees of the respondent on the Na-
tional City plant pay roll, except employees having authority to
employ or discharge . 3
S The first constitution of the E . P. A. also excluded from membership those having the
right to discipline employees . At the January 11, 1938, meeting of the E. P. A. it was
moved that the constitution be amended to permit employees of the Commercial Fertilizer
Company to be members of the E . P. A. At that meeting, 28 applications from employees
of said Company were accepted . At the next meeting, held February 1, 1938, the consti-
tution was formally amended as suggested at the preceding meeting. It appears that the
Commercial Fertilizer Company is affiliated with the respondent.
SWIFT AND COMPANY ET AL. 813
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
For about 16 years prior to 1937, the respondent had maintained
at its National City plant an organization of its employees known as
the Employes Representation Plan, a labor organization herein called
the Plan. The governing body of the Plan was the Plant Assembly,
which consisted of 14 employee representatives elected by secret
ballot, one from each of 14 voting divisions in the plant, each division
consisting of a department or a number of related departments, to-
gether with an equal number of representatives appointed by the
management from plant and office employees who were not eligible
to vote for employee representatives. Under the Plan, grievances
were first taken up with the foreman or other plant authority; only
if the employee failed to obtain satisfaction by this procedure could
he present the matter to his employee representative who, together
with the corresponding management representative, had authority to
effect a settlement. If the paired representatives were unable to
dispose of the matter, it was referred to the appropriate standing
committee, and eventually to the Plant Assembly. The standing
committees of the Plant Assembly consisted of equal numbers of em-
ployee and management representatives. Final action by a commit-
tee required the unanimous vote of those present; however, a vote
could not be taken unless a majority of each of both classes of repre-
sentatives were present. At meetings of the Plant Assembly, the
voting power of the two groups of representatives was always equal,
and any question before the meeting calling for action by the man-
agement required a two-thirds vote. The respondent supplied the
facilities for conducting meetings and other business of the Plan.
Employees serving as members of the Plant Assembly were paid
their regular pay for such time as they spent in the work of the Plan.
By the respondent's admission, the Plan continued to function
until it was officially dissolved on April 20, 1937. It is clear that
for nearly 2 years after July 5, 1935, the effective date of the Act,
the respondent, notwithstanding the declaration in its booklet de-
scribing the Plan that "There shall be on the part of the Company
and on the part of the Employes strict observance of the Federal
and State Laws respecting Labor," had continued to dominate and
interfere with the administration of a labor organization and con-
tribute financial and other support thereto.
The complaint alleges that the respondent on and after April 15,
1937, engaged in unfair labor practices within the meaning of the
Act. The participation of the respondent in the formation and
administration of the Plan prior to the first date alleged in the com-
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint is relevant, however, in indicating a course of conduct and
furnishing a background against which the events occurring after
April 15, 1937, can be better understood. -
B. Interference with, and domination and support of Employes Pro-
tective Association
On April 20, 1937, a special meeting of the Plant Assembly was
called at the request of M. Z. Irish, manager of the National City
plant. The purpose of the meeting was to inform the representatives
of the dissolution of the Plan. Irish read the following statement
and a prepared digest of the Act, both of which had been sent him
by the respondent's Chicago office :
On Monday, April 12, the United States Supreme Court made
public its decisions on several cases under the National Labor
Relations Act (The Wagner Bill) and held the Act valid.
It is Swift & Company's intention to comply with the law
as the Court has now construed it and it is not possible to con-
tinue 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 negotiating with the company on wages, hours, and
working conditions, it should not include management participa-
tion in election of employe representatives, the furnishing of
printed material by the company, nor company compensation
to employe representatives for time spent away from their work,
except when conferring with management, as this latter is not
prohibited by law.
It shall be the policy of the company to continue to consult
with its employes on all matters of mutual interest in an honest
effort to find the proper solution to problems. Finally, the com-
pany earnestly desires that the understanding growing out of
our relationships during these past many years will be the basis
upon which the continued good relations between employes and
the company will be maintained.
/s/ M. Z. IRISH.
Isl A. F. ZWICKY.
After reading the notice, which was immediately posted on bulletin
boards throughout the plant, Irish testified that he withdrew from
the meeting, but that the management representatives remained. O.
E. Kent, division superintendent and a management representative
under the Plan, testified that after Irish left, the meeting was ad-
journed and the management representatives also withdrew, leaving
SWIFT AND COMPANY ET AL. 815
the employee representatives who were then gathering in a group and
beginning a discussion. Coincident with the meeting of the Plant
Assembly, Zwicky, the plant superintendent, met with those members
of the respondent's supervisory force who were not in attendance at
the meeting of the Plant Assembly as management representatives,
informed them of the dissolution of the Plan, and gave instructions
that supervisory employees were not to participate in any future
organizational activities.
The employee representatives, following the withdrawal of Irish and
the management representatives, determined to canvass the employees
on the question of an "inside" organization. This canvass was con-
ducted by the former employee representatives between April 20 and
22, during working hours, without objection by the respondent's fore-
men and supervisors. The employee representatives had lists with
the employees' names and check numbers and each employee was asked
whether he favored the formation of an "inside" organization. The
answers were recorded opposite the employees' names. In only one
department, at the insistence of Joe Behnen, later president of the
Union, was the poll conducted secretly. Witnesses for the Board
testified that in a number of departments foremen assisted the em-
ployee representatives in polling the employees, by calling employees
together or explaining the object of the vote. In practically each in-
stance, the foremen denied rendering such assistance and disclaimed
any knowledge of the fact that a canvass was being made. However, in
view of the fact that the canvass was conducted publicly and during
working hours without objection, we attach little credence to the denials
and disclaimers of the foremen. Under the circumstances, we con-
clude that the respondent was aware of the canvass and gave at least
tacit approval thereto.
The results of the canvass, according to Connelly, an employee in
the employees' market and later president of the E. P. A., indicated
that approximately 1,200 employees were in favor of the formation
of an "inside" organization. On April 22, when the canvass had
been completed, Mallett, a former employee representative, approached
Connelly and asked him if he would serve as the temporary president
of the "inside" organization which the employee representatives, pur-
suant to the results of the canvass, had determined to form. Con-
nelly accepted. That night, he testified, without the assistance of
anyone and without reference to any documents, he drew up a draft
of a proposed constitution and bylaws. The following day, Connelly,
Mallett, and Reed, another employee representative who was active
in the formation of the E. P. A., met and approved, with some minor
changes, the constitution and bylaws Connelly had drafted, and de-
cided upon the name of the organization. That afternoon Connelly,
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the consent of Zwicky, had 2,000 copies of the constitution and
bylaws mimeographed in the respondent's plant.
On Saturday, April 24, Connelly, Mallett, Reed, and the former
employee representatives met during the noon hour in the respond-
ent's assembly hall. At this meeting Reed was selected as temporary
vice president and Mallett as temporary secretary-treasurer. The
group determined to have membership and application cards printed,
which were delivered on Monday, April 26. Connelly distributed the
application cards to the employee representatives with instructions
to solicit members.
On Tuesday evening, April 27, a mass meeting was held in the plant
cafeteria, the use of which had been granted by Zwicky. According
to Connelly, about 600 or 700 employees were present. The results of
the canvass were given, the proposed constitution and bylaws read,
and announcement was made of a further meeting on May 4.
The first official meeting of the E. P. A. was held on May 4 in the
plant cafeteria. Connelly testified that he had asked Zwicky for
permission to use the cafeteria, and Zwicky had agreed provided
rent, in an amount to be determined by the accounting department,
was paid for this and the prior meeting.4 The constitution and by-
laws, as drafted by Connelly and approved by the employee repre-
sentatives, were adopted unanimously, 163 employees voting. Con-
nelly was elected president by a plurality, receiving 92 votes out
of 190 cast for three candidates. Reed was appointed vice president
and Mallett secretary-treasurer. Prior to this meeting, however,
cards evidencing membership in the E. P. A. had been given em-
ployees, signed by Connelly as president. Two such cards, dated
April 26 and 27, are in evidence. Thus it appears that even before
the organization was formally launched, the sponsors had enrolled
members.
The constitution and bylaws as adopted by the E. P. A., bear
marked similarities to the constitution of the Employes Representa-
tion Plan. These similarities are the more striking in view of the
fact that Connelly testified that his draft, which was adopted without
any material alterations, was composed by him without assistance or
reference to any documents. The E. P. A. constitution provided that
"all employees on the plant payroll . . . shall be entitled to member-
ship in the plan b and vote for officers and divisional representatives,"
4 On cross-examination Connelly stated that prior to the May 4 meeting , he told Zwicky
that the use of the cafeteria was needed because "we were attempting to form an inde-
pendent union and he [Zwicky ] advised us that if that was the purpose we were using the
cafeteria for we would be charged rental and we agreed and this was made retroactive to
cover the mass meeting."
6 In the latest copy of the E. P. A. constitution the word "organization" appears in place
of the word "plan." The official E. P. A. minutes , however, which are in evidence, do not
reveal when this change in designation was authorized.
SWIFT AND COMPANY ET AL. 817
and the corresponding provision in the bylaws provided that "all
members on the plant payroll ... shall be entitled to participate in
the plane and vote for their divisional representative." The com-
parable provision in the constitution of the Plan provided that "all
employees on the payroll of the plant shall be entitled to participate
in the Plan and vote for Employe Representatives." Both constitu-
tions made provision for one representative to be selected by the
employees in each of a number of divisions consisting of related
departments. In this connection, it is interesting to note that the
original provision in the E. P. A. constitution that these employee
representatives "shall constitute a committee whose duty shall be to
meet with management and bargain collectively," was eliminated at
-the August meeting, by a unanimous vote, as shown by the official
E. P. A. minutes. Thus, as Connelly testified at the hearing, this
deletion left the E. P. A. without a bargaining committee.
On May 18 or 19, Irish and Zwicky were waited upon by an E. P. A.
committee composed of Connelly, Reed, and Mallett. The committee,
as testified by Irish, stated they. represented the E. P. A. and requested
sole bargaining rights in the plant and presented an agreement. Irish
testified he asked the committee how many employees they repre-
sented, and he was told "that they represented 1196 of the some 1400
employees that we had at that time." The committee had various doc-
uments and records in support of the claim to majority representation,
which were offered to Irish and Zwicky in proof thereof, but Irish
testified that he and Zwicky accepted the claim "without scrutinizing
the record which would have taken a considerable length of time,
and at that time there was no other organization or union involved.
They were our employees and had been with us for a long time, and we
said `All right, we will just take your word for it."' Irish and Zwicky
took the proposed agreement under advisement and arrangements
were made for a meeting the following day.
On the following day, the same group met and the E. P. A. com-
mittee was handed a statement, dated May 19, 1937, signed by Irish
and Zwicky stating that "The Management will accept" the E. P. A.
as "the bargaining agents for the employees . . . who are members of
the association, and will not make a collective agreement with any
other group without taking it up with the association." The "in-
tention of the Company to continue the present policies" relating to
wages, pensions, vacations, and "other working conditions of a major
character" was affirmed, and the respondent pledged itself to confer
with the E. P. A. before any changes in these policies were made.
This "agreement," which was similar to the one presented by the
6 See footnote 5, supra.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. P. A.,7 made no reference to grievance procedure, but Irish testified
that it was understood that such matters would be handled through
Zwicky.
The alacrity with which the respondent recognized the E. P. A.,
particularly when viewed in the light of its subsequent dealings with
the Union as to recognition, strongly suggests that the respondent, by
that action, sought to forestall and discourage the organizational
activities of the Union in the National City plant. The Union first
became active in the respondent's plant in April 1937, at about the
same time as the E. P. A. was being organized. While Irish testified
that when the E. P. A. was recognized "there was no other organiza-
tion or union involved," he later admitted that sometime in the first
part of May he had heard "rumors" that some of the respondent's'
employees were members of the Union, but that it was not until the
"C. I. O. demonstration day" that he actually knew some of the em-
ployees belonged to the Union.
This demonstration day, or "book day" as it is referred to in the
record, occurred on June 21. On that day the Union declared a
holiday, and employees of the respondent who were members of
the Union picketed the respondent's plant and succeeded in enrolling
a large number of respondent's employees as union members. Only
about 25 per cent of the regular force, according to Zwicky, worked
that day. The following day, the employees returned to work.
On June 24, Verdu, the C. I. O. organizer of Local 380, had an
interview with Irish and Zwicky. Verdu asked that the respondent
recognize and bargain with the Union, claiming that it represented
about 75 or 80 per cent of the respondent's employees. Irish re-
quested proof of the claim and refused to take Verdu's word for it.
Irish told Verdu that the matter was one of a dispute between two
labor organizations which should be settled by an election. Verdu
asked for a meeting the following week, and on June 29 renewed
his request for recognition and a bargaining conference. Irish re-
fused, as he testified, on the ground that "we couldn't bargain with
him, or we couldn't give him such rights, because we already had an
agreement with our own employees, E. P. A." However, the re-
spondent agreed to meet with Behnen, president of the Union, in
7 On this point Connelly testified as follows :
Q. [By Hoskins .] Can you tell me what rights were promised in yours that were
not in the one he [ Irish] had?
A. No.
Q. Is there anything in here substantially different from the paper you had when
you came into the meeting?
A. No great difference-possibly a word or two.
Q. Your entire discussion was as to a word or two?
A Yes, sir, the sound of it when it was read , the meaning it would convey.
Q. There were no new rights added?
A. No, sir.
SWIFT AND COMPANY ET AL. 819
regard to individual cases involving grievances, and the record shows
that Behnen and Zwicky on many occasions discussed such matters.
During the 2 weeks between April 20 and May 4, while the E. P. A.
was being organized, Zwicky authorized Connelly to obtain stationery
and supplies from the respondent's offices and permitted the proposed
constitution and notices of the mass meeting on April 27 to be mim-
eographed by its office staff, with the understanding that either Con-
nelly or the proposed organization would reimburse the respondent
for the cost of such facilities. After May 4 the E. P. A. secured all
its supplies from the respondent and bulletins and notices in large
quantities were run off on the respondent's mimeograph. The E. P. A.
paid for these items at nominal rates.8
Zwicky readily gave the E. P. A. permission to use the cafeteria
and the assembly hall for meeting purposes whenever a request was
made. Connelly testified that he obtained Zwicky's permission to use
the cafeteria for the mass meeting held on April 27, but that he did
not state its purpose other than to say that the employees desired to
hold a meeting. When Connelly later requested use of the cafeteria
for the May 4 meeting, he told Zwicky that the employees were in
the process of forming an independent union, that there had been
"a good attendance at the mass meeting and applications were com-
ing in and we wanted to continue our attempt with other meetings."
According to Connelly, Zwicky then informed him that rent would
be charged. Zwicky, however, testified that although the purpose
of the meeting may not have been stated when use of the cafeteria
for the April 27 meeting was requested, "I, of course, surmised that
it was for the purpose of deciding what they would do. That was
the first I knew that there was any consideration given to organizing
an independent organization." Zwicky testified he did not give his
permission until the next day, after consulting with Irish, and then
on condition that a rental would be paid in an amount which was
later fixed by the accounting department at $1.50 per hour.
The E. P. A. used the cafeteria until September or October, and
then when Behnen, president of the Union, requested similar privi-
leges, Zwicky told him that the arrangement with the E. P. A. was
only temporary and refused Behnen's request. Thereafter, the
E. P. A. made arrangements to use the respondent's assembly hall
for meeting purposes at a rental of 75 cents an hour.
About the latter part of May, the respondent, as testified by Zwicky,
agreed to rent "temporary desk space" to the E. P. A. in the same
office as was then occupied by Thompson, division superintendent in
charge of the employment and time office. The rental fixed by the
s From a number of invoices in evidence , it appears that the usual charge for mimeo-
graphing 1,000 bulletins was 50 cents for labor and 50 cents for materials.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accounting department was $5 per month. Sometime in September,
Thompson was moved to other quarters and the E. P. A. thereafter
occupied the office alone without any increase in rent. Although
Zwicky testified that this arrangement was only temporary, it was
still in effect at the time of the hearing, and in August the re-
spondent permitted the E. P. A. to have a sign, "Employes' Protec-
tive Association," lettered on the glass of the office door. Zwicky
denied the Union's request for desk space, on the ground that no
room was available. At the hearing, Zwicky testified he told Behnen
it October that the only available space was that formerly occupied
by Thompson, with the E. P. A., and that he "did not think it would
be very desirable to have two rival organizations to occupy the same
space."
By a procedure which became effective in the early part of May,
the respondent kept an account of the time spent by E. P. A. officers
and representatives in organizational activities in order that they
might be compensated for such time by the E. P. A. According to
the uncontradicted testimony of Connelly, the system operated as
follows : Each officer or representative furnished the accounting de-
partment a daily report of time spent in performing various duties,
including E. P. A. work. Time spent in conferring with the man-
agement on grievances was listed separately. The accounting depart-
ment sent the E. P. A. a daily and weekly report showing for each
E. P. A. officer and representative the number of hours chargeable
to E. P. A. work. The respondent paid the employees for their total
time, including that spent in conferring on grievances, less the amount
shown to have been devoted to E. P. A. affairs. The E. P. A. then
paid the employees, at their regular hourly rate, for the balance
representing E. P. A. work, as shown by the records of the account-
ing department. Connelly testified that the respondent made no
charge for the additional work involved in keeping these records.
The monthly salary payments made by the E. P. A. under this ar-
rangement averaged about $160.
In May and June, Florence Wierceszewski, who at that time was
employed in the beef-casing department, worked at intervals in the
E. P. A. office. Thompson, who was in charge of the employment
office, testified that she was placed in the E. P. A. office by the em-
ployment department. According to her service record, she was dis-
charged July 7. Stella Kocot was first hired by the respondent on
June 28, 1937, and placed on the miscellaneous pay roll as a clerk,
in which capacity she remained until August 25, when she was trans-
ferred to the beef-casing department. During the period from June
28 td August 25, Kocot worked full time in the E. P. A. office.
SWIFT AND COMPANY ET AL. 821
When Thompson was first cross-examined concerning the employ-
ment of these two women, he testified that both were paid by the
respondent for the time they spent in the E. P. A. office, and that the
E. P. A. was billed for their time. On further cross-examination by
the Board's attorney he stated it was his "understanding" that the
two women were paid in this manner. On cross-examination by
counsel for the E. P. A., however, he admitted that he did not know
personally that such was the arrangement. At this point the re-
spondent rested, with the reservation, granted by the Trial Examiner,
to call other witnesses to show that the women in question were paid
directly by the E. P. A. or the E. P. A. reimbursed the respondent
for the time they spent in doing E. P. A. work, in the event that
such evidence was not adduced by the E. P. A.
Connelly, who was the only witness for the E. P. A., testified that
both Kocot and Wierceszewski were paid directly by the E. P. A.
He admitted, however, that Kocot was hired by the respondent, that
she had a "regular clock card like a Swift & Company employee," and
that she worked in the E. P. A. office from about the first of July to
the first of September.
After the E. P. A. had completed its proof, the respondent recalled
Thompson, who then testified that when he had previously testified
concerning the employment of Kocot and Wierceszewski he had not
examined the pay-roll records. Subsequently, he had examined the
pay-roll records relating to these two employees and was prepared to
testify with the records before him as to whether the respondent had
paid the women during the periods they had worked in the E. P. A.
office. The Trial Examiner sustained the objection of the Board's
attorney to this evidence, on the ground it constituted an attempt by
the respondent to impeach its own witness. However, the Trial Ex-
aminer permitted Thompson and J. R. Irvin, general foreman of the
beef-casing department, to testify, with the understanding that their
testimony should have the effect of an offer of proof. We are of the
opinion that the Trial Examiner erred in sustaining the objection,
since he had previously granted the respondent the right to produce
additional witnesses to show the manner in which these employees were
paid, in the event the testimony adduced by the E. P. A. did not
clarify the matter. Thompson's prior testimony, we believe, indicates
an uncertainty on his part as to the method of payment, and the
offered evidence constitutes explanatory, rather than impeaching, testi-
mony. We shall, therefore, reverse this ruling, and consider the
respondent's offer of proof as proper and competent testimony.
This testimony shows that Wierceszewski was paid by the respond-
ent for the period between May 22 and June 25 only for working in
the beef-casing department. Kocot was paid nothing by the respond-
164275-39-vol. xi-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent for the period between June 28 and August 25, which constituted
the period she was listed on the miscellaneous pay roll and worked in
the E. P. A. office.
In light of all the evidence relating to the employment of Wierces-
zewski and Kocot, we conclude that although the respondent did not
pay them for work performed for the E. P. A., the respondent ar-
ranged for them to work for the E. P. A. while carrying them on its
records as regular employees. We accept as fact Thompson's testi-
mony, which is corroborated by Connelly, that Kocot was hired by
the respondent for the specific purpose of acting as clerk in the E. P. A.
office.
While the respondent fostered and assisted the E. P. A. and per-
mitted E. P. A. representatives to engage in organizational activities
during working hours, its supervisory officials were quick to curb
similar activity in behalf of the Union by reprimanding employees
who engaged or were suspected of engaging in such activity. Loyd
Hodge, vice president of the Union, testified that he was told by his
foreman, Smith, that he was "talking too much union," and that
Kent, the division superintendent, warned him to refrain from talk-
ing about the Union during working hours. Smith admitted having
warned Hodge to quit talking about unions during working hours.
Kent claimed that he had admonished Hodge only in regard to some
threats Hodge allegedly had made, but admitted telling Hodge that
he was not to engage in organizational activities during working hours.
C. R. Irvin, who at the time was an acting general foreman, stated
that in November 1937 he reprimanded Joseph Olszewski for allegedly
attempting to solicit members for the Union during working hours.
William Bates testified that in August, when he was seeking a job
following a lay-off, Kent told him that "if you get on the right side
of the fence you might be working." Although Kent denied having
made this statement, in view of all the circumstances we do not believe
that his denial is entitled to credit.°
Upon the foregoing facts, and the entire record, we are satisfied
that the respondent, having decided to dissolve the Employes Repre-
sentation Plan, embarked upon a course of conduct designed to en-
courage and dominate the formation and administration of the
E. P. A., and lend support to it. The evidence in its entirety shows
that the respondent had resolved that the form of employee representa-
tion should be as amendable as the Plan, itself, had been.
The first step in this direction was the revelation of the respondent's
favorable disposition to an employees representation plan shorn of
the more obvious badges of employer control, given the employee
9 Kent's statement is discussed in more detail in Section C (2) (a) in connection with
the lay-off of William Bates.
. SWIFT AND COMPANY ET AL. 823
representatives at the April 20 meeting . The notice read to the old
employee representatives , under the circumstances , was both an invi-
tation to them to form an "independent" organization and a caution
as to what should be done to free it from apparent company domina-
tion. The record shows that the employee representatives , after Irish
and the management representatives withdrew from the meeting,
forthwith acted upon the respondent 's suggestion and proceeded with
the formation of an "inside " organization .1° They immediately
polled the employees on the "inside" union proposition ; a constitu-
tion and bylaws , patterned after the constitution of the Plan, were
drafted; and permission to use the respondent 's cafeteria and mimeo-
graph facilities was obtained.
By May 4, 2 weeks after the dissolution of the Plan, the E. P. A.
was fully organized . Early in May the respondent arranged to keep
account of the time spent by E. P . A. officers and representatives in
organizational activities during working hours, so that they might
be paid therefor by the E. P. A. On May 18 the respondent accepted
the word of the E. P. A. committee that it represented 1,196 em-
ployees and , without further proof , forthwith recognized the E. P. A.
as a collective bargaining agency. The inference is plain that the
respondent did not ask for proof of the representative status of the
E. P. A. because the respondent , having encouraged the formation
and influenced the administration of the E. P. A., had every assurance
that the E. P. A. would be as susceptible to domination and control
as the Plan.
From the day the Plan was dissolved the respondent evinced a
cooperative and paternalistic interest in the E. P. A. The respondent
permitted the E. P. A. almost unrestricted use of its facilities in pro-
moting organizational activities , a circumstance well calculated to re-
sult in an organization which was but the counterpart, to all intents
and purposes , of the Employee Representation Plan. The evidence
is uncontradicted , and we find , that from the inception of the E. P. A.
until the hearing , the respondent fostered and supported the E. P. A.
by furnishing supplies and facilities at very nominal rates for the pro-
duction of bulletins , notices, and handbills urging employees to join
and support the E. P. A.; by permitting the E. P. A., and not the
10 In two prior cases, involving the respondent 's Evansville , Indiana, and Deliver, Colo-
rado, plants , a similar sequence of events occurred. In both, a meeting of the old repre-
sentatives was called on April 20, a notice identical in language with that here involved
was read, the management representatives withdrew upon the conclusion of the reading,
and the employee representatives thereupon determined to form an " inside" organization
See Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 6111 , and United Packing House Workers
Local Industrial Union No. 300, 7 N. L R B. 269; Matter of Swift & Company and United
Automobile Workers of America, Local No. 265, Case No. 0-484 ; Matter of Swift & Com-
pany and United Packing House Workers L. I. Union No . 328 Affiliate C. I. 0., Case No.
R-605, 7 N. L. R. B. 287.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, to use its cafeteria and assembly hall, in return for a nominal
rental, for meeting purposes; by renting desk space in the employment
office to the E. P. A. and refusing similar accommodations to the
Union ; and by allowing E. P. A. representatives to solicit members
and engage in other organizational activities during working hours.
We are convinced that the respondent's officials and supervisors were
well aware of the extensive activities carried on by the E. P. A. during
working hours, and that by their failure to take effective steps to curb
such activities, while withholding from the Union the facilities to en-
gage in similar activities, they sought to encourage the growth of the
E. P. A. Moreover, the respondent sought to discourage membership
in the Union by preventing employees from engaging in activities
in its behalf and by warning them to refrain from soliciting members
for the Union or even talking about the Union during working hours.
In view of the fact that E. P. A. representatives were allowed to en-
gage in organizational activities during working hours without
reprimand or interference, it is clear that, by denying similar priv-
ileges to adherents of the Union, the respondent sought to discourage
membership in the Union. By the above-mentioned aid and support,
the respondent made clear to the employees that the E. P. A-. was the
organization it preferred, while by its refusal to accord similar aid
and support to the Union, the respondent indicated that it was opposed
to the Union.
We find that the respondent has dominated and interfered with
the formation and administration of the E. P. A., and has contributed
support to it; that by its aforesaid acts, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of
their right to self-organization, and to form, join, and assist labor
organizations.
C. The alleged discriminatory discharges, lay-offs, and reductions in
basic rate of pay
1. The discharges
a. The facts as to the discharges
Richard Shields had worked intermittently for the respondent
from 1933 to 1936. His last steady employment was from June 23,
1936, to September 9, 1937, when he was discharged. Shields testi-
fied that he and a fellow employee, a colored man named Crittenden,
had engaged in heated arguments during working hours over a
period beginning in the fall or winter of 1936. Shields claimed that
Crittenden always started the arguments, but admitted he would
generally lose his temper and both would use profanity freely.
SWIFT AND COMPANY ET AL. 825
The day before Shields' discharge, the foreman, Mike Deering,
found Shields and Crittenden arguing and threatening each other
with bodily harm. The following morning Deering reported the
incident to Kent, his immediate superior, and demanded that both
men be discharged because he was afraid that one might injure the
other. Both men were called into Kent's office, questioned about the
incident, and discharged. Deering testified that he had warned both
men on a number of occasions.
Shields was a member of the Union but had also joined the E. P. A.
in April. He testified that shortly after the constitutionality of the
Act was affirmed by the Supreme Court of the United States in April
1937, Deering, his foreman, informed him that he was welcome to
join any labor organization he wished, but to think twice and not
be a fool in picking one. Deering denied having made this statement
to Shields.
In January or February, after his discharge, Shields claimed that
he talked to Kent, who told him that refraining from arguments was
not the only lesson he had to learn. Kent denied making this state-
ment and testified he had told Shields that when sheep killing picked
up he would be given a job.
Shields also testified that although Crittenden was equally to blame
for the quarrel, Crittenden was reemployed after both were dis-
charged. Kent and Thompson denied that Crittenden had been em-
ployed by the respondent at any time after September 9, 1937.
Alex A. Warchol was employed by the respondent in the beef-
killing department from April 1935 to August 6, 1937. He joined
the Union on April 28, 1937, the day after he had joined the E. P. A.,
and served as steward and on a union committee.
On August 6, 1937, Warchol was discharged allegedly for alter-
natively speeding up and slowing down his work in the beef-killing
gang on the preceding day, which disrupted the operations of the
gang and resulted in scored hides and damaged carcasses. Tony
Deering, Warchol's foreman, testified that Warchol's speeding up and
slowing down tactics had begun in July 1937 and that he had spoken
to Warchol about the matter on several occasions. In the afternoon
of August 5, 1937, Deering asserted he told the killing gang to in-
crease the speed of the operations so that they might be finished by
4: 30 o'clock, whereupon Warchol started working at such a fast
rate that his work was inefficient and he was scoring hides and cutting
the flesh of the beef carcasses. Deering stated he then told Warchol
to slow down to a point where the work could be done in a proper
manner. A short while thereafter Deering saw Warchol at the other
end of the killing floor, away from his gang, arguing with several
other employees. Deering ordered Warchol to go back to work,
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whereupon Warchol resumed his work and said "Tomorrow we will
not kill a damned cow over."
Warchol's version of the incident is that Deering had told the gang
to rush, but later; seeing that they might get through too early,
ordered them to slow down.
The day of his discharge Warchol was called to Kent's office, after
Deering had reported the incident to Kent. Deering's report, ac-
cording to Kent, was substantiated by statements made in Warchol's
presence by Podwojski and Dawson, employees in the same gang as
Warchol. According to Kent, Warchol refused to tell his story, al-
though urged, saying "I will tell my story to the Labor Board."
Warchol, however, said he refused to make a statement unless some
of his fellow C. I. 0. members were called in as witnesses.
Warchol testified that after he had voted "no" on the inside union
proposition, Tony Deering told him that about 75 per cent of the
employees had voted "yes" and advised him to "vote the same way
and keep the peace in the family." Sometime in May or June 1937,
Kent, Warchol claims, said "I am going to fire you . . . you are
kind of radical here lately . . . I am just giving you a tip as a
friend . . . if I were you I would just stay away from C. I. 0.
meetings." Shortly after the labor demonstration on June 21, 1937,
Deering allegedly told Warchol that if he did not sign up with the
E. P. A. by the following Monday or Tuesday he would be laid off
because "that is Company policy." In July Kent allegedly said,
"Well, Alex, before I tell you anything I want to tell you I am going
to fire you the first chance I get."
Kent and Deering denied making any of the above statements to
Warchol. Kent, however, stated he had observed Warchol on a
number of occasions after the labor demonstration day "strutting
up and down the floor, interfering with the gang, getting three or
four men in groups around him, talking to them, whispering to them."
Kent warned him about his conduct on the floor, but disclaimed any
interest in his organizational activities so long as Warchol did not
let them interfere with his work. Warchol, Kent testified, readily
promised to cause no further trouble. However, a few days later
Warchol resumed his disruptive tactics.
There is uncontradicted evidence that the work of the beef-killing
gang is a continuous process which requires that a uniform rate of
speed be maintained by all employees in the gang. It seems clear
that any speeding up or slowing down on the part of one employee
would interrupt the continuity of operations. Moreover, the testi-
v Respondent 's operations in the beef -killing department are set to enable the slaughter
of cattle at a given rate per hour. Deering explained that w archol 's remark meant that
the hourly killing rate should not be exceeded.
SWIFT AND COMPANY ET AL. 827
mony of witnesses for the respondent is not controverted with respect
to the disruptive tactics of Warchol over a period of at least 2 months.
Euell Mann was first employed by the respondent in July or
August 1936 and worked irregularly thereafter. On June 24, 1937,
he was hired in the beef-loading dock and worked until his dis-
charge on July 8, 1937. Mann joined the Union about July 2, 1937,
shortly after he returned to work. He was allegedly discharged for
making threats of bodily harm to two employees, Allen Aiken and
Cletus LeTempt.
Kent, who discharged Mann, testified that Aiken and LeTempt
reported to him that Mann had told them during working hours, that
if they did not join the C. I. O. he would beat their heads in. Kent
and Thompson took a statement from these two employees and then
Kent called Mann and his foreman into his office. Kent read the
statement to Mann and told him that he and several others had been
warned on the preceding day about bunching up and making threats.
Mann denied making the threat and told Kent there must be some
mistake, but Kent accepted the version given him by the two other
employees on the ground that they had been with the respondent
much longer than Mann. Aiken and LeTempt were not called as
witnesses.
Joseph John Olszewski entered the respondent's employ in October
1931 and worked at a number of jobs until November 17, 1937, when,
as he alleges, he was discharged. The respondent, however, claims
that he quit. For the past 5 years, he had worked in the pickle
room as helper to Lester, the pickle maker, and at other jobs. He
joined the Union April 28, 1937.
On July 10, 1937, Olszewski was transferred from the pickle room
to the sweet-pickle shipping gang. This transfer was made pur-
suant to instructions of Battaglia, general foreman. Olszewski re-
ported for work in the shipping room, but stayed only a few hours,
and then "just walked off the job. I went home because they put
me down there and I didn't think that was my job." He returned to
the plant on July 12 and asked for his job. Battaglia is asserted
to have told him, "You are too sarcastic and if you ever change
your attitude, we will give you your job back." On July 16 Olszew-
ski returned to the pickle-shipping gang, at the same rate of pay as
he received in the pickle room.
Both Battaglia and Lester, the head pickle maker, testified that
for about 2 months prior to his transfer, Olszewski had exhibited
a very indifferent attitude toward his work, had made mistakes in
his work, and had "raged" against Lester when the latter had re-
ported an error to Battaglia. Battaglia testified that Olszewski was
employed on July 16, through the intervention of Behnen, president
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union, upon the understanding that he would perform what-
ever tasks were assigned to him in the sweet-pickle department.
Behnen also testified to the same effect.
Early in November 1937, C. R. Irvin, who was acting general fore-
man during Battaglia's absence, accused Olszewski of attempting
during working hours to sign up two employees as members of the
Union. Olszewski denied the accusation and requested that Irvin
produce the two employees. Irvin declined to go into that further
and said that if he heard anything of a similar nature it would be
referred to Zwicky's office.
On November 17, 1937, the day his employment terminated, Ols-
zewski was working with Ralph Wayne in the green meat depart-
ment. Ray Guyette, foreman in the premium belly and barrel pork
department, sent for him and told him to bring some bacon bellies
from the third floor to the basement. While Olszewski was unloading
the bacon bellies, some slipped and fell onto the floor. Olszewski
testified that Guyette then said, "Why in hell don't you watch
what you're doing? You can't throw those bellies around like
that," and ordered him to get a truck and start hauling freezer
boxes out of the hog cooler. Guyette testified that he reprimanded
Olszewski for permitting the bacon bellies to fall on the floor, but
denied that the instance had anything to do with his assigning
Olszewski to haul freezer boxes.
Olszewski testified that he refused to haul the boxes, which weighed
approximately 1,400 to 1,500 pounds each, unless he was given help,
but that Guyette stated that one man had been doing the work
and asked if he was quitting. Olszewski testified that he replied
that he was not quitting, but stated that he continued to refuse to do
the work alone. According to Olszewski, Guyette, after conferring
with Irvin, gave Olszewski a time slip which stated that he refused
to do the work assigned and had quit.
Guyette stated at the hearing that no mention was made about
another man helping on the freezer boxes, but that Olszewski had
flatly refused to do the work. He stated that, as a matter of fact,
he had assigned another employee to the same task shortly before
he directed Olszewski to haul the freezer boxes. On cross-examina-
tion Olszewski admitted that Mueller was supposed to go with him
and would have been available to help load the truck.
Irvin testified concerning the above incident as follows : That he
overheard a conversation between Guyette and Olszewski about the
freezer boxes which was to the effect that Olszewski refused to do
his work; that he (Irvin) then asked Olszewski what the trouble
was and that Olszewski replied that he would quit before he would
go to the freezer; and that, after advising Thompson of the incident,
he called Guyette and told him to mark Olszewski's ticket "quit."
SWIFT AND COMPANY ET AL . 829
b. Conclusions as to the discharges
Although we think that the testimony of the various witnesses
raises some doubt as to whether the respondent discriminated against
the above-named employees, we do not think that the evidence is
sufficient to justify a finding of discrimination. We shall, therefore,
dismiss the allegations of the complaint in so far as it relates to
these employees. We find that the respondent did not discriminate
against Richard Shields, Alex A. Warchol, Euell Mann, and Joseph
John Olszewski in regard to their hire and tenure of employment,
thereby discouraging membership in a labor organization.
The complaint alleged that Robert Phillip had been discharged
in September 1937 because he had joined and assisted the Union.
The respondent's answer denied that Phillip had been discharged and
alleged he had voluntarily quit. No evidence was introduced with
regard to Phillip. We will, therefore, dismiss the complaint without
prejudice in so far as it relates to Robert Phillip.
2. The lay-offs
a. The facts as to the lay-offs
Ray L. Cox had worked for the respondent irregularly since 1929;
his last steady employment was from April 15, 1937, to December 15,
1937, as a laborer in the calf cooler. Cox joined the Union in the
latter part of April 1937, and was active in its behalf, serving on the
executive committee and as shop steward.
On May 22, 1937, Cox was given an increase in wages of 5 cents
an hour because he was then learning to skin calves, a more skilled
job. Cox claims that after the labor demonstration on June 21, 1937,
in which he took part, he was not given lessons in calf skinning.
Kent, however, testified that Cox's activities in behalf of and mem-
bership in the Union had nothing to do with the termination of the
instruction but that a slacking off in the work was the reason. Kent
further testified that when he started Cox on calf skinning Cox said
he was a member of the Union.
Cox was laid off on December 15, 1937, at the same time as William
Childress,12 a member of the same gang. Cox admitted he and Child-
ress were the youngest men in point of seniority at that time, but
claims he should have been transferred to some other department as
had been done during previous slack seasons. Cox intimated to Kent
that he believed he was being laid off for union activities, and ad-
mitted that Kent told him that that was not the reason and that when
things picked up he would be put back in the calf gang. Cox stated
"Also referred to as William Childers.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Childress was reemployed shortly after both were laid off. How-
ever, Kent, the division superintendent, testified that no one had been
hired in the calf gang since Cox was laid off, but another man had
since been laid off.
William J. Green had worked irregularly in a number of depart-
ments since 1933. His last steady employment with the respondent
dates from March 18, 1935, when he was hired as a laborer in the
engine room. On May 3, 1935, he was laid off in the engine room
but hired the same day as a laborer in the car-washing department
and continued until his lay-off on October 19, 1937. Green joined
the Union on April 23, 1937. He was laid off allegedly because of
slack work and according to seniority.
Green testified that Crews, his foreman, had called his attention
to an E., P. A. notice which Crews allegedly had posted, and had
advised Green on another occasion that he, Crews, was against any
kind of labor organization but felt that an "inside" union was pref-
erable. Crews denied having posted any E. P. A. notices or calling
Green's attention to them, and also denied that he had told Green
that he preferred an "inside" union. Crews, however, authorized
the employees in his department to attend a meeting in the respond-
ent's assembly hall for the purpose of electing E. P. A. representa-
tives.
Green testified that during previous slack seasons he had worked
steadily. Crews explained that during such periods Green had been
kept busy making and repairing liver racks, but in the fall of 1937
there was no such work to be done because the respondent had discon-
tinued using the former type of rack and the new type used was not
made by the respondent and required no repair.
Green also claimed that one Zelinsky was retained in the car-wash-
ing gang although he had less seniority than Green. Witnesses for
the respondent established that Zelinsky's service in the car-washing
department began on April 3, 1935, whereas Green's service in that
department dated from May 3, 1935. Under the respondent's senior-
ity policy, an employee does not carry his seniority from one depart-
ment to another unless he is transferred by the management or has
5 years or more of continuous service.
Green claimed that since his lay-off several men had been put to
work in the car-washing department. Crews, however, stated that
no men had been hired in that department or transferred to it since
Green's lay-off. He admitted that on occasion he had "borrowed"
help for short periods from other departments since October 1937.
Evidence establishes that such "borrowing" is a regular practice,
since it frequently happens that a particular department may be
rushed for a short period. This practice was in effect prior to Green's
lay-off, and according to the respondent's records relating to the
SWIFT AND COMPANY ET AL. 831
car-washing department, the average weekly man-hours "borrowed"
by that department decreased, with the exception of the weeks around
Thanksgiving and-Christmas, after the middle of October 1937.
John J. Wojtczuk was first employed by the respondent on October
9, 1935, and worked until December 28, 1935. His employment rec-
ord shows two short periods of employment during the summer of
1936. His last steady employment, as a laborer in the beef cooler,
was from August 21, 1936, to December 31, 1937, on which date he
was laid off allegedly because of lack of work. Wojtczuk joined the
Union on May 6, 1937, served as steward and committeeman, and
was active in union affairs.
Wojtczuk was laid off at the same time as three other employees,
Thomas, Benoit, and Al Childress. Wojtczuk admitted that he was
laid off in order of seniority, but claims that Thomas, who had less
seniority, was hired in the beef-casing department shortly after
January 1, 1938, and, after working in that department 2 days, was
transferred to the beef cooler, where he is still employed. Wojtczuk
admitted he was not at the plant the day Thomas was hired for
the beef-casing department. Wojtczuk also testified that about 3
days after he was laid off two employees, Hartman and Smith, were
transferred from beef cutting to the beef cooler. Wojtczuk stated
that a day or two after this transfer he protested to Thompson, who
allegedly replied, "Well, we lay them off according to seniority
but ... we don't make any agreement to hire them by their
seniority."
Dare, the foreman, testified that he told Wojtczuk that he would
put him back on when the opportunity occurred, and that had
Wojtczuk been in the lobby when he, Dare, went out to look for
men, he might have hired Wojtczuk instead of borrowing Thomas
from, the beef-casing department.
J. R. Irvin, general foreman of the beef-casing department, testified
that he had to borrow two men and hire another on January 3 as he
had a large order which had to go out. Thomas was in the lobby
and Irvin picked him, although he did not know Thomas by name.
Thomas worked a few days and then was borrowed by Dare, and
later transferred to the beef cooler.
There is no evidence that new men were hired for the beef cooler
shortly after December 31, 1937, when Wojtczuk was laid off. Thomas
was hired only for temporary work in the beef-casing department and
later transferred to the beef cooler. Hartman and Smith were not
transferred to the beef cooler but worked there only a few days be-
cause of a particular rush order. Concerning the respondent's policy
regarding hiring, Thompson testified that the respondent attempts to
rehire former employees, but does not observe seniority in so doing.
When men are needed, it is the practice to pick them from the ap-
832 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
plicants in the lobby, rather than to send for former employees.
Only in cases where considerable skill is required does the respondent
send for former employees.
Louis V. Alvey entered the respondent's employ December 3, 1918.
His last steady employment, with the exception of a short lay-off and
absences 'due to illness, dates from November 23, 1922. Since 1930
he worked in the pork offal department as a liver trimmer. He was
laid off July 9, 1937, when through a general reduction in force in
his department two gangs were combined into one. Alvey joined
the Union in April 1937„ but it does not appear that he was partic-
ularly active in union affairs.
On the day the gang was reduced, the foreman, Howard, told Alvey
to see Thompson. Thompson, so Alvey testified, told him that he
was being laid off but that the respondent would carry him on the
pay roll for 14 weeks on half time and he would be put back to
work when the gang was increased. The half-time pay, Alvey testi-
fied, was to be deducted from his pension allowance. On the follow-
ing day, Alvey saw Thompson again, and was informed that he would
be given an immediate advance of 4 weeks' full pay in addition to
the half-time pay for 14 weeks. When the force was increased in
August, Alvey went to see Thompson about a job and was told there
was nothing for him as he was on the retired list.
The respondent asserted that Alvey was laid off because his physical
condition was such that he could not perform any duties that re-
mained after the general reduction in his department. The evidence
is undisputed that when Alvey first entered the respondent's employ
he had a hernia, which prevented him from being approved for
insurance by the respondent's doctor. However, on the recommenda-
tion of Zwicky's predecessor, Alvey was retained in the service al-
though he was ineligible for insurance. Alvey admitted that he had
asthma, which caused him to leave his job frequently for a few
moments to secure temporary relief, and that because of his hernia
condition he would not risk doing certain types of work. According
to the respondent's records, in 1932 he was examined for an operation,
but the doctor concluded the hernia condition was too old for
operation.
The record shows that the respondent paid Alvey a dismissal
allowance in installments totaling $363.73, equal to 142/3 weeks' wages
based on 40 hours per week at 62 cents an hour, or 1 week's wages
for each year of continuous service. As noted above, Alvey had con-
tinuous service dating from November 23, 1922. Since Alvey's last
employment began in 1922, when he was 41 years of age, he had no
right to a pension.'8
' It appears that the respondent 's employees are entitled to a pension at 65, provided
they have 25 years of continuous service begun before they reached the age of 40.
SWIFT AND COMPANY ET AL. 833
Antonia Czaicka had worked for the respondent since 1922, and
about 51/2 years in the pork-trimming department prior to her lay-off
on July 2, 1937. She had the most seniority of any of the women
in the group laid off at the same time because of a general reduction
in the force. She joined the Union in April 1937, but was not par-
ticularly active in union affairs. Mrs. Czaicka testified that when she
was laid off eight women, whom she named, were not laid off although
each of them had less seniority.
Mrs. Czaicka was reemployed on January 15, 1938, and worked
2 weeks when she and three others, who were also hired on January
15, were laid off. Mrs. Czaicka stated that before the July 2 lay-off
there were about 25 women in the pork-trimming department, whereas
on January 15, when she returned, there were over 30.
Charles Brady, general foreman of the fresh-pork department,
testified that when the pork-trimming department was to be reduced
from a force of 32 or 33 to about 15, he personally determined who
was to be laid off by consulting the seniority records. He prepared
a list of 15 employees who were to be laid off. Originally, Mrs.
Czaicka's name was not on the list. However, shortly before the
lay-off was announced, two women from the pork-trimming depart-
ment came to him and pleaded that they be retained because of
illness in the family and for other similar reasons. He and Thomp-
son, after investigating both cases, determined to retain both of
these women, although they had less seniority than Mrs. Czaicka.
Brady and Thompson testified they determined that Mis. Czaicka's
husband was working, and therefore concluded she could get along
without her job whereas the other two women could not. Upon the
retention of these two, Mrs. Czaicka's name was placed upon the list
of those to be laid off.
As to the other six women whom Mrs. Czaicka claimed were
retained although they had less seniority than she had, Brady testi-
fied that two were transferred to the sliced-bacon department because
they were qualified for that work and Mrs. Czaicka was not; another,
Florence Perkins, had been a dressing-room matron since June 5,
1937, and was no longer considered a member of the pork-trimming
department; Mary Coval was working in the sweet-pickle cellars,
having been transferred to that department sometime prior to July
2; Stella Dee was laid off on July 2; and Rose Thomen had greater
seniority than Mrs. Czaicka, and was consequently retained. Brady
also stated three other women were laid off the week following July 2,
when the force was further reduced, although these three were
reemployed in the latter part of July.
Thompson testified that he had approved the retention of the
two women of less seniority than Mrs. Czaicka on the ground that
they were in greater need than she. He further stated that the re-
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's seniority policy was not strictly applied to married women,
in that the respondent would lay off a married woman with other
means of support rather than a single woman of less seniority who
had no other means of support. While this limitation on the sen-
iority policy does not appear in the written statement thereof which
was introduced in evidence, Thompson stated on cross-examination
that he had advised many employees of that fact and that the
limitation had been in force for a long period of time.
Clement Goebel had worked irregularly for the respondent since
August 1936. His last hiring prior to his lay-off on September 24,
1937, was on May 10, 1937, as a laborer in the car-washing depart-
ment. Since his lay-off on September 24, Goebel has been hired
and laid off five times as a laborer in the hog cooler, his total em-
ployment since the September 24 lay-off amounting to about 75 or 80
days. The complaint alleged that Goebel was discriminatorily laid
off on September 24. Goebel joined the Union about a week before
the labor demonstration on June 21, in which he took part, but
aside from that it does not appear that he was particularly active
in union affairs.
Goebel testified that his foreman, Crews, during the latter part of
July or the first part of August asked him if he had as yet joined the
E. P. A., and when Crews came back from his vacation he told Goebel
that had he stayed on the right side of the fence he might have been
placed in a more desirable job. Crews denied having these conver-
sations with Goebel. The day after the labor demonstration two
colored men, who had been hired the day before for the car-washing
department, were assigned to work with the men in that department,
some of whom had participated in the labor holiday. These men,
including Goebel, had been reported to Crews as protesting against
working with "scabs." Thereupon Crews and Thompson told them
that if they did not wish to work with the new men, the respondent
would hire someone who would. With that the incident closed and
the employees returned to work.
Goebel claimed that he frequently helped out in the car-icing
department during rush periods, although he admitted that about
75 per cent of his time was spent in the car-washing department.
However, when he was laid off on September 24 five men were re-
tained in the car-icing gang who had been employed after he began
work in the car-washing department in May. Goebel also claimed
that one of these five was transferred to the car-washing department
the day after he was laid off.
Crews, who was foreman of both the car-washing and car-icing
departments at that time, testified that after September 24 no one
was hired or transferred to the car-washing department, although
SWIFT AND COMPANY ET AL. 835
some men were later borrowed from the car-icing department for
temporary work.
As to the five men whom Goebel claimed were retained in the car-
icing department, Thompson testified that two were not in that de-
partment at that time but were assigned to the hog cooler. The other
three had been hired in May and June, after Goebel, and were laid off
in October. However, Thompson testified that car icing and car
washing were and always had been two separate departments. Con-
sequently, Goebel's seniority was limited to the car-washing depart-
ment and the fact that he was laid off when men more recently hired
in the car-icing department were retained was not discriminatory.
From the evidence, it appears that some employees were under the
impression that car icing and car washing were one department and
that employees could claim seniority in car icing although they
worked in car washing, and vice versa. However, in view of the
fact that employees were hired for one or the other and usually
spent the bulk of their time in one type of work, and also because
the respondent kept account of the man-hours borrowed by each, it
seems clear that the departments were not combined.
William Bates began working for the respondent in July 1933. Up
to the time of the hearing he had been hired and laid off about 25
times and had worked in 6 or 7 departments. His longest period of
steady employment was from June 27, 1936, until May 21, 1937, his
last job during this period being that of laborer and callie sawer in
the pork-cutting department from December 22, 1936, to May 21,
1937. On May 29, 1937, he returned to work as a laborer in the sweet-
pickle department and was laid off June 25, 1937. On July 1 he
worked 1 day as a laborer in the trim-loading department. From
August 26 to September 10, and October 20 to February 8, 1938, he
worked as a laborer and callie Bawer in the pork-cutting department.
He returned to that job on February 23, the day before he testified
at the hearing. The complaint, as amended, alleged that Bates was
laid off on May 21, 1937, because of union activity, and although lie
had been employed since then, the respondent had refused to rein-
state him to steady employment in his former position. Bates joined
the Union the latter part of April or first part of May 1937, and took
part in the labor demonstration on June 21.
During July and August Bates unsuccessfully sought employment
on frequent occasions. Once he saw Miller, foreman of the beef
cooler, who said he had tried to get Bates back to work without suc-
cess, but that Bates should not tell anyone because he, Miller, would
"catch the devil about it." About 2 weeks before he returned to work
on August 26, Bates saw Kent and asked him "what have they against
me in the office." Kent, according to Bates, replied "I don't know,
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wait a minute," and after stepping into the office returned and said,
"It seems to me you are in some kind of trouble, I am not going to
hire you; seems you have got mixed up in some bad company, but,
if you get on the right side of the fence you might be working."
Bates testified that his father, who had been employed by the respond-
ent for about 25 years, was present during this conversation and,
when asked by Kent, agreed that Kent's statement was correct. Two
or three days later Bates again saw Kent, who told him "don't lose
hope."
A day or so after this last encounter with Kent, Bates informed
Thompson that Kent had said he, Bates, might be working if he were
on the right side of the fence. Thompson called in Kent and Bates
reiterated the statement he had attributed to Kent when speaking to
Thompson. Kent told Bates he was a "damn liar" and denied having
made the statement. That evening Bates' father brought a message
that Kent wished to see him. Kent wanted to know what Bates
meant by attributing the remarks to him; that he, Kent, was only
trying to help Bates.
Following this, Bates, in company with Belmen, the president of
the Union, went to see Zwicky. Behnen presented Bates' case and
mentioned the "right side of the fence" remark made by Kent.
Zwicky called Kent and Thompson into his office and had Bates
reiterate the statement. Kent denied having made it, whereupon
Bates said he had a witness although he was reluctant to produce
him. Upon being assured by Zwicky that the witness would not be
prejudiced, Bates said his father had witnessed the conversation.
Bates, Sr., was called in, and after first stating he would rather
not have anything to do with the matter, said he had seen Kent
talking to his son, but if Kent made the statement, he Bates, Sr., had
not heard it.
The day following this meeting in Zwicky's office Bates again saw
Kent. Kent allegedly told Bates "you come darn near getting me
fired yesterday." After some further conversation, so Bates testi-
fied, Kent asked him to go into the office and change his statement,
and both went to Thompson's office and Bates told Thompson that
he had lied about Kent. Within a few minutes after this retraction,
Bates was put to work in the pork-cutting department. On the
witness stand Bates testified that Kent had made the statement, but
because he felt sorry for Kent and because "he talked to me darn
nice," Bates changed his statement.
Kent denied telling Bates he might have a job if he were on the
right side of the fence, and asserted Bates, Sr., was not more than 3
feet away during the entire conversation. Kent admitted that he
had been called in by Thompson and also by Zwicky and asked A out
the statement Bates claimed he had made. His version of what hap-
SWIFT AND COMPANY ET AL. 837
pened in Zwicky's office when Bates, S;r., was called in corroborates
the testimony of Bates. Kent testified that after the meeting in
Zwicky's office Bates came to him and said he was sorry he had
lied about Kent, whereupon Kent said "forget about it." Kent de-
nied he went with Bates to Thompson's office on that occasion.
Thompson corroborated Bates and Kent concerning the incident in
Zwicky's office. He also testified that a day or two after this meet-
ing, Bates came into his office and said Kent had not made the state-
ment. Thompson called Kent in, who happened to be passing through
the lobby, and told him Bates had changed his statement.
Behnen, the president of the Union, testified to substantially the
same facts as Bates, Thompson, and Kent, in regard to the meeting
in Zwicky 's office. He added, however, that Zwicky said he wished
to investigate Bates' case further and told Bates to come back the
next day.
Bates admitted that several employees were laid off in the pork-
cutting department on May 21, the same date he was laid off, but
he asserted that two employees, Buchek and Nelson, were retained
although they had less seniority than he. Thompson testified that
Buchek was laid off May 21 and not rehired until September 1, 1937.
According to Thompson, who referxed to the individual service
records during his testimony, Nelson's seniority in the pork-cutting
department dated from March 1934. He was laid off July 2, 1937,
but rehired in August. One Meeks, another employee in that depart-
ment, with seniority dating from October 1935, was also laid off
July 2, rehired in August, and subsequently laid off and rehired on
approximately the same dates as Bates. Another employee, Janovsky,
whose seniority dated from May 1933, was laid off July 16, 1937, and
was subsequently laid off and rehired on about the same dates as
Bates. Two employees, Kellogg and Windsor, who were laid off on
May 21, were later rehired after Bates was put to work in August,
and their subsequent employment corresponds closely to that of
Bates. Korba, foreman of the pork-cutting department, testified that
during the periods after May 21 when Bates was not employed in
the pork-cutting department, no one was hired to operate the callie
saw, which was the only skilled job Bates could handle. Bates
admitted that his skill was confined to operating the callie saw and
that when he was laid off Sokolsky, a ham trimmer, who had worked
for the respondent about 25 years, operated the callie saw.
Al Levinski had worked for the respondent for 51/2 years in the
cooper shop at the time he was laid off July 6, 1937, allegedly because
of lack of work. When he was laid off, he was working as a tight-
barrel cooper. Levinski was rehired July 12 as a laborer in the house
gang and worked in that capacity until September 17, 1937. On
January 3, 1938, he was rehired to his former job in the cooper shop.
164275-39-vol. xi-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleged he was laid off on July 6 and refused steady
employment in his former position thereafter because he had joined
and assisted the Union. Levinski joined the Union April 23, 1937,
and was elected sergeant at arms in May. He participated in the
labor demonstration in June and was active in union affairs.
Shortly after April 20, 1937, Emil Hoelscher, an employee in the
machine shop who had been a representative under the Plan, in-
formed the cooper-shop employees, who had been called together for
that purpose by Schenk, the foreman, that the Plan was dissolved
and that he was no longer their representative and also told about
the new inside union that was being organized. Later Hoelscher
asked Levinski and some other men in the cooper shop to join the
E. P. A. However, it appears that most of the men in the cooper
shop refused to join the E. P. A. and joined the C. I. O. Both
Levinski and Novak, another employee in the cooper shop, testified
that Schenk asked them what organization they were going to join.
On July 6 Schenk told Levinski that he would have to lay him off
because business was bad. Levinski objected that two employees,
Adamite and Brandt, had less seniority than he. Schenk admitted
that Adamite and Brandt had less seniority than Levinski, but as-
serted that he decided to lay off Levinski because he was the poorest
worker. On this point, Schenk testified he consulted the service
records of the cooper-shop employees, to ascertain the seniority of
each, but that strict seniority was not followed since in reducing the
force he always laid off "the man that does the sloppiest work and
poorest work." Schenk admitted he had never been given permis-
sion to disregard the respondent's seniority policy, that he always
determined who should be laid off on the basis of efficiency, and "If
there is any little difference in the seniority, it don't make any differ-
ence. You have to keep a man qualified for the job." Thompson
testified he approved the lay-off of Levinski because, according to the
information supplied him by Schenk, Levinski was not as efficient
as the two men with less seniority who were retained.
When Levinski was laid off, Schenk retained two tight-barrel
coopers, Shearer and Rokito, assigned two coopers, Novak and
Brandt, to labor work, kept Adamite as slack-barrel cooper, and Out-
law, who had worked in the cooper shop about 20 years, as barrel
washer. The men who were kept, according to Schenk, were "all
around men"-"men that could do any kind of a job called upon to
do." He later qualified this definition to mean that the tight-barrel
coopers retained could do slack-barrel work, and the slack-barrel
cooper was qualified to work on both new and second-hand slack bar-
rels ; Novak and Brandt could do only a little slack-barrel work.
Levinski was not as experienced on tight barrels as either Novak or
SWIFT AND COMPANY ET AL. 839
Brandt. However, Levinski had worked on slack barrels as much or
more than Novak and Brandt, although he was not as experienced in
that work as Adamite, and until 1934, he had worked as a laborer in
the shop. Both Novak and Brandt were active members of the
Union, and Brandt was recording secretary. Both testified that they
did very little tight-barrel coopering after the reduction in July,
until business picked up in the fall; most of the time they were doing
labor work or working on slack barrels.
From October to December the respondent hired several men for
labor work in the' cooper shop, as business picked up. On October
9, 1937, the respondent hired one Lewis as a laborer in the cooper
shop. About 20 minutes after Lewis was hired Levinski, who was
at the plant that day seeking employment, came to Schenk and pro-
tested, saying "I thought you were a square shooter." Schenk re-
plied "I am just about as square as you are." Levinski thereupon
called Schenk a "God damed liar," whereupon Schenk ordered him to
leave the shop or he would call the police. Schenk admitted that
between July 6 and January 3, particularly after October, there was
labor work in the shop that Levinski could do. However, the evi-
dence shows that no one hired during this period was assigned to
tight-barrel coopering, the job Levinski had before his lay-off.
b. Conclusions as to the lay-offs
We are of the opinion that the evidence does not sufficiently estab-
lish that the respondent discriminated against Ray L. Cox, William
J. Green, John J. Wojtczuk, Louis V. Alvey, Antonia Czaicka, and
Clement Goebel.
As to William Bates, the evidence shows that his employment over
a period of years had been irregular. While we believe that Kent
told Bates in August that he might be working if he were "on the
right side of the fence," the evidence establishes that Bates was laid
off each time in order of seniority, other employees in his department
were also laid off and rehired at about the same dates as Bates, and
during the periods Bates was not employed following his lay-off in
May, no one was hired to do the skilled work he customarily did in
the pork-cutting department. On the basis of all the evidence, we
conclude that Bates was not discriminatorily laid off on May 21,
1937, and thereafter refused steady employment in his former
position.
With respect to Al Levinski, the evidence is not entirely free from
doubt. However, it is clear that employees admittedly as active in
the Union as Levinski were retained in the cooper shop after he was
laid off. Moreover, although Levinski had more seniority than
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brandt and Adamite in the cooper shop as a whole, the evidence
shows that both of these employees were more 'experienced than
Levinski in the skilled jobs that remained after the reduction in
force. From July until January, the only two regular tight-barrel
coopers were Rokito and Shearer, both of whom had greater seniority
than Levinski. On the basis of all the evidence, we conclude that
the respondent did not discriminate against Al Levinski.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of Ray L. Cox, William J. Green,
John J. Wojtczuk, Louis V. Alvey, Antonia Czaicka, Clement Goebel,
William Bates, and Al Levinski, thereby discouraging membership
in a labor organization.
The complaint also alleged that the respondent had discrimina-
torily laid off William E. George on August 1, 1937. The answer
denied the lay-off, but alleged that George was discharged on July 10,
1937, for continually reporting late to work. No evidence was intro-
duced as to George. We will, therefore, dismiss the complaint with-
out prejudice in so far as it relates to William E. George.
3. The reductions in basic rate of pay
a. The facts as to the reductions
Frank Stancellis had been employed by the respondent at its
National City plant since April 17, 1931, at various jobs in the cattle-
killing department. Since December 1933 he had worked as a floors-
man and fell cutter. The hourly wage rates for these two jobs, since
March 1937, have been $1.06 and 76 cents, respectively. The com-
plaint alleged that the basic rate of pay of Stancellis was reduced
from on or about July 15, 1937, to on or about August 15, 1937, and
from on or about December 20, 1937, to and including the date of the
issuance of the complaint, for the reason that he had joined the Union
or refused to join the E. P. A. Stancellis joined the Union April 23,
1937, but it does not appear that he was particularly active in the
Union.
Stancellis testified that he began wearing his C. I. O. button about
July 24 or 25. At that time he had been cutting fells for several
days, but testified that he was paid at the floorsman's rate, which
continued until August 2, when the force was reduced. On July 25
or 26, according to Stancellis, his foreman, Tony Deering, looked at
his C. I. O. button and said, "From now on you going to get paid,
see, what you do," meaning that he would no longer get paid at the
floorsman's rate while cutting fells. When the force was reduced in
August Timkevitch remained as a floorsman, although Stancellis
claimed to hold seniority over him.
SWIFT AND COMPANY ET AL. 841
About 2 or 3 weeks later, when the gang was increased, he was put
back on the floorsman's job and rate, which continued until December
13 or 14, when he was reduced to fell cutting at 76 cents an hour.
Stancellis also testified that a week after he voted "no" on the
question of inside organization, his foreman asked why he had not
voted "yes," and said that an inside union was better because, "We-
don't want any radical stuff, racketeers, C. I. 0. to come inside our
plant." Thereupon he joined the E. P. A. Deering denied having
made this statement to Stancellis, and also denied talking to him
about the C. I. 0.
Kent and Tony Deering testified that about July 9 the volume of
cattle killed fell from 108 to about 81 per hour. Consequently
Stancellis, who was not a regular floorsman but a combination floors-
man and fell cutter, was reduced to fell cutting and a regular floors-
man, John Syzdeki, was placed on the combination job. Timkevitch
had been a regular floorsman since August 1, 1933, and business had
never dropped to a point where it was necessary to reduce him.
The burden of Stancellis' complaint seems to be that when he was
assigned to fell cutting he was not paid floorsman's wages, contrary
to the practice which he claimed had existed prior to July 1937.
In this connection, he testified on cross-examination as follows :
Q. You are now kicking because you are working as a fell
cutter and they are not paying you the floorsman rate, is that it?
A. Yes.
Q. That is what you are kicking about?
A. Yes, sir.
Stancellis admitted that during prior slack periods he had been
paid the fell-cutting rate when doing that work, but claimed that
since 1933 he had gotten the floorsman rate "almost all the time" no
matter what he did, although he was unable to give any definite
date when he had been paid the higher rate for cutting fells. The
facts are undisputed that when the cattle-killing rate increased in
August, Stancellis worked as a floorsman and was paid the rate
applicable to that job.
Julius Pochek began working for the respondent in 1931. In
March 1934 he was first given work as a calf skinner. Although
after September 1934 he was listed as having a split rate, from June
1936 to December 1937 he was paid the rate applicable to calf skin-
ning. The complaint alleged Pochek's basic rate of pay was reduced
December 20, 1937, because he had joined and assisted the Union or
refused to join the E. P. A. Pochek joined the Union April 23,1937,
and took an active part in the labor demonstration in June.
Pochek testified that "after the C. I. 0. business started, why, when-
ever they would have any labor work they would pick on me." How-
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, he admitted, and the record of his earnings establishes, that
between the time he joined the Union in April and December 1937,
he was paid the calf-skinning rate for all hours worked, with the
exception of 61/2 hours at the laborer's rate during the week ending
July 30.
In December he was put to work in the cattle-killing department, at
62 cents an hour, and did not work as a calf skinner thereafter.
Pochek testified that he was transferred, and that two men with less
seniority, Casey and Benedict, remained as calf skinners.
Kent testified that Pochek was loaned, not transferred, to the cattle-
killing department with the understanding he would go back to the
calf-skinning gang when that work picked up. Because the transfer
was temporary, his rates on the service record continued to be listed
as 60 and 801/2 cents. However, his weekly pay at these two rates
was so arranged that his earnings equalled 62 cents a hour, the rate
applicable to the work he was doing. At other periods of low volume
Pochek had been sent to the cattle gang. However, neither Benedict
nor Casey had been demoted during such periods, and consequently in
December they were retained because they had more hours to their
credit as calf skinners. Kent admitted, however, that Casey had
started as a calf skinner after Pochek, but in point of total hours
worked at that job he had more seniority than Pochek. No new men
were assigned calf-skinning work after December, when Pochek was
temporarily assigned to the cattle-killing department.
William Pochek began working for the respondent in September
1929, and with the exception of about 4 days in August 1936, worked
steadily since June 1930. In February 1934 he became a regular calf
skinner, a job requiring a certain amount of skill, which position he
held until December 1936, when he was transferred to the cattle-kill-
ing gang because calf killing fell off. During the spring of 1937 he
skinned calves during rush periods, but not regularly. The com-
plaint alleged that Pochek's basic rate of pay had been reduced in
May 1937, to and including thq date of the issuance of the complaint,
for the reason that he had joined and assisted the Union and refused
to join the E. P. A. Pochek, a very active union member, joined the
Union April 23, 1937, and served as financial secretary.
Shortly after the dissolution of the Plan John Podwojski, sn
employee in the beef-killing department, asked Pochek to vote on the
question of the inside organization. Pochek voted "no," and Pod-
wojski recorded his vote on a sheet of paper on which was listed the
names and check numbers of the employees in the beef-killing and
sheep-killing departments. The day following this vote, Tony Deer-
ing, the foreman in the beef-killing department, allegedly told
Pochek, "I see you voted `no' yesterday . . . If you want to, you can
SWIFT AND COMPANY ET AL. 843
change it . . . I will send Johnny [Podwojski] around to you and
you can tell him what you want to do about it." The same afternoon
Podwojski came back, but Pochek told him to "leave that vote stand
just the way it is." Deering denied having this or any similar con-
versation with Pochek.
Pochek testified that a few days before the vote was taken, Tony
Deering told him, that "from now on, no matter what you do, your
pay will be calf skinner's rate," which was 801/2 cents. Pochek was
at that time listed as having a split rate of 60 cents and 801/2 cents per
hour, for labor and calf skinning. Pochek asserted that about the
last week in April, after the vote was taken, he was reduced to 621/
cents an hour and transferred to the sheep-killing department. At
that time Kent told him the transfer was made because of slack work.
Kent also said, "I don't give a damn whether you belong to the
C. I. O. or A. F. of L. It don't make any difference to me.... and
as soon as things pick up in the cattle kill, I will put you on a better
paying job." Pochek asked to be transferred to the calf cooler, but
Kent said that could not be done as he had the least seniority there
because when he had quit in August 1936 and been off for several
days his seniority had been broken.
Pochek had quit in August 1936, but returned to work in a few
days. He claimed that he returned with the understanding that his
break in seniority had been bridged. However, the respondent's wit-
nesses testified that the break in service had been bridged only in
order to allow Pochek to have 2 weeks' vacation, which required at
least 5 years of continuous service. His service record, a copy of
which was introduced in evidence, shows that opposite the date he
returned in August 1936 a notation had been made "agree to close
for vacation," followed by the initials of Zwicky. The employment
manager, Ragsdale, who was called as a witness by the Board, testi-
fied that according to the record, Pochek's seniority began August
25, 1936, the day he returned after having quit. Kent testified that
Pochek was junior to all employees in the calf-skinning gang when
he was transferred to the cattle-killing department in December 1936.
The respondent's service record for Pochek, a copy of which was
introduced in evidence, shows that from March 13 to April 24, 1937,
Pochek had been employed in the cattle-killing department at a
split rate of 60 cents and 801/2 cents per hour, for labor and calf
skinning. On April 24 his rate was changed to 62 cents and 801/2
cents per hour, for breaking joints and calf skinning. On May 1 he
was transferred to the sheep-killing department, but his hourly rate,
apparently, remained at 62 cents and 801/2 cents. From March 12 to
April 23, 1937, he had been paid 801/2 cents per hour for all hours
worked, as shown by the respondent's records of his weekly earnings.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, after April 23, his weekly earnings record shows he was
paid at a rate of 62 cents per hour, until December 11, 1937, with the
exception of several weeks when he was paid 801/2 cents for part of
the total hours worked.
At no time in 1937 did Pochek go back to skinning calves regularly,
but he did that work during rush periods only. Pochek testified,
however, that up to April 24, 1937, "when I was on the job they
paid 62 cents an hour, . . . I would make more money than 62
cents." Counsel for the respondent thereupon asked Pochek, "When
they finally caught up with that and started paying you for what you
were actually doing, you didn't like it, is that right ... ?" Pochek
replied he did not. After April 24, Pochek admitted that he was
paid the applicable rate for the work he was doing. It appears,
therefore, that during March and April 1937, Pochek was paid at
a rate in excess of the rate applicable to the work he was doing.
b. Conclusions as to the reductions
We conclude that the record does not establish that the respondent
discriminatorily reduced the basic rate of pay of Frank Stancellis,
Julius Pochek, and William Pochek. We find that the respondent
did not discriminate in regard to the hire and tenure of these em-
ployees, as alleged in the complaint, thereby discouraging member-
ship in a labor organization.
The complaint also alleged that the respondent discriminatorily
reduced the basic rate of pay of Earl Bailey from on or about July
10, 1937, to on or about January 1, 1938. The answer denied that
Bailey's basic rate of pay had been so reduced. No evidence was
introduced with respect to Bailey. We will, therefore, dismiss the
complaint without prejudice in so far as it relates to Earl Bailey.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
At the oral argument counsel for the respondent contended that
the issue concerning the respondent's domination and support of the
E. P. A. was moot, for the reason that the E. P. A. had voluntarily
disbanded subsequent to the issuance of the Intermediate Report.
SWIFT AND COMPANY ET AL. 845
In its petition to reopen, filed July 1, 1938, the respondent alleged
that on or about June 1, 1938, it had been notified of the voluntary
dissolution of the E. P. A. and that pursuant to such notice it had
caused to be posted, on June 4, 1938, its own notice stating that the
action taken by the E. P. A. "automatically disestablishes it as the
representative of the employees . . . and accordingly all recognition
of the Employes Protective Association is withdrawn." 14 As stated
above, the Board denied the petition to reopen on October 31, 1938.
The voluntary dissolution of the E. P. A. has no effect upon the
foregoing findings of fact with respect to the respondent' s domina-
tion, interference, and support of the E. P. A. The fact that the
E. P. A. is no longer in existence is relevant only on the question
whether the respondent should be ordered to disestablish the organi-
zation 15 We shall, therefore, order the respondent to cease and de-
sist from interfering with, restraining, and coercing its employees
in the exercise of their right of self-organization , and to refuse to
give the E. P. A. any recognition as a collective bargaining agency,
if it should ever return to active existence under its present form
and name, or any other. However, since it appears that the E. P. A.
has been dissolved by its voluntary action, we shall not require the
respondent to disestablish the organization.
We have also found that the respondent has not discriminated in
regard to the hire and tenure of employment of employees named
in the complaint, thereby discouraging membership in a labor organ-
ization. We shall, therefore, dismiss this portion of the complaint.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local No. 530, United Packing House Workers Industrial Union
is a labor organization within the meaning of Section 2 (5) of
the Act.
2. Employes Protective Association of Swift and Company is a
labor organization within the meaning of Section 2 (5) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of
14 The petition to reopen the case incorporated as a part thereof a copy of a letter from
the chairman in charge of the final business of the E. P. A., notifying the respondent of
dissolution . This letter stated that at a meeting of the E. P. A. held May 17, 1938, there
was considerable discussion as to the advisability of disestablishing the organization. In
view of the Intermediate Report, "the majority of those present were inclined to believe
that the order to disestablish would be upheld," and as a result , the motion to disestab-
lish carried.
ii Cf. Consolidated Edison Company of New York v National Labor Relations Board,
59 S. Ct. 206; Matter of Yates -American Machine Company and Amalgamated Association
of Iron, Steel and Tin Workers of North America, Lodge 1787, 7 N. L. R . B. 627; Matter of
American Manufacturing Company, Inc. and International Association of Machinists, Local
Union No. 794 7 N. L. R. B. 375.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The respondent, by dominating and interfering with the forma-
tion and administration of Employes Protective Association of Swift
and Company, and by contributing support to said organization,
has engaged in unfair labor practices, within the meaning of Sec-
tion 8 (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not engaged in unfair labor 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
Act, the National Labor Relations Board hereby orders that the
respondent, Swift and Company, and its officers, agents, successors,
and assigns shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the
administration of Employes Protective Association of Swift and
Company, or with the formation or administration of any other
labor organization of its employees, and from contributing financial
or other support to Employes Protective Association of Swift and
Company or to any other labor organization of its employees;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Refrain from recognizing Employes Protective Association of
Swift and Company as a representative of any of its employees for
the purposes of dealing with it with respect to grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment;
(b) Immediately post notices in conspicuous places throughout its
National City, Illinois, plant and maintain such notices for a period
of at least sixty (60) consecutive days, stating that the respondent
SWIFT AND COMPANY ET AL. 847
will cease and desist in the manner set forth in 1 (a) and (b), and
that it will take the affirmative action set forth in 2 (a), of this
Order ;
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges that
the respondent has engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act, by discharging and refusing to
reinstate Richard Shields, Alex A. Warchol, Edell Mann, and Joseph
John Olszewski, by laying off Ray L. Cox, William J. Green, John
J. Wojtczuk, Louis V. Alvey, Antonia Czaicka, Clement Goebel, Wil-
liam Bates, and Al Levinski, and by reducing the basic rate of pay
of Frank Stancellis, Julius Pochek, and William Pochek, be, and the
same hereby is, dismissed.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges that
the respondent has engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act, with respect to Robert Phillip,
William E. George, and Earl Bailey, be, and the same hereby is, dis-
missed without prejudice.