Swift and Company, Iowa Packing Company, and Newton Packing Company, Corporations

National Labor Relations Board - Board Decisions

Jan 5, 1939

10 N.L.R.B. 991 (N.L.R.B. 1939)

In the. Matter of SWIFT AND COMPANY, IOWA PACKING COMPANY, and
NEWTON PACKING COMPANY, CORPORATIONS and LOCAL 630, AMAL-
GAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA
and DETROIT AND WAYNE COUNTY FEDERATION OF LABOR
Cases Nos. C-450 and R-580.-Decided January 5, 1939
Meat Packing Industry-Employer: parent corporation- and wholly owned sub-
sidiaries-Interference, Restraint, and Coercion-Company-Dominated Union:
domination of and interference with formation and administration ; support;
outgrowth of employee representation plan presented to employees by respond-'
ents; disestablished, as agency for collective bargaining-Collective Bargaining:
charges of failure, dismissed, .upon finding that union represented less than
majority-Strike: caused by respondents' unfair labor practice ; strikers to be
reinstated upon application-Investigation of Representatives: controversy con-
cerning representation of employees : employers' refusal to grant recognition of
union-Unit Appropriate for Collective Bargaining: plant-wide, excluding cleri-
cal, office, and supervisory employees-Election Ordered: company-dominated
union excluded from ballot; election to be conducted at such time as the Board
shall in the future direct.
Mr. Harold A. Crane fiield and Mr. 0. H. Walburn, for{ the Board.
Buteel,'Eaman, Long, Gust and Bills, by Mr. Victor W. Klein, of
Detroit, Mich., for the respondents.
Mr. W. S. McDowell, of Detroit, Mich., for the League.
Mr. Joseph Padways, of Washington, D. C., for Local 630 and the,
Federation.
Mr. Walter T. Nolte, of counsel to the Board.
. DECISION
ORDER
AND
DIRECTION OF ELECTION'
STATEMENT OF THE CASE
On March 9, 1937, Local 630, Amalgamated Meat Cutters and
Butcher Workmen of North America, herein called Local 630, and
Detroit and Wayne County Federation of Labor, herein called the
Federation, jointly filed with Frank H. Bowen, Regional Director
for the Seventh Region (Detroit, Michigan), a charge alleging that
1 Set aside by Order of March 29, 1939 , 11 N. L. R. B ., No. 127.
10 N. L. R. B. No. 90.
991
992 NATIONAL LABOR RELATIONS BOARD
Swift and Company and Newton Packing Company, together con-
trolling and operating a plant at 5075 Fourteenth Street, Detroit,
Michigan, had engaged in and were engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. At the same time Local
630 and the Federation jointly filed a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of the two companies at the said plant and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the Act. On! March 11, 1937, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c)
of the Act, and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered an in-
vestigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing' upon due notice. The Board,
acting through the Regional Director, issued a complaint and notice
of hearing, both dated March 16, 1937, copies of which were duly
served upon Swift and Company, Newton Packing Company, Iowa
Packing Company, Local 630, and the Federation.
On March 16, 1937, Local 630 and the Federation filed an amended
charge and an amended petitions for the purpose of joining Iowa
Packing Company as a respondent with Swift and Company and
Newton Packing Company in both proceedings. The companies so
joined will be referred to herein collectively as the respondents and
individually as Swift, Newton, and Iowa. On March 17, 1937, the
Board ordered an investigation and authorized a hearing upon the
basis of the amended petition. On March 19, 1937, acting pursuant
to Article III, Section 10 (c) (2), of said Rules and Regulations-
Series 1, as amended, the Board ordered that the representation pro-
ceeding and the proceeding with respect to the alleged unfair labor
practices be consolidated fort the purpose of hearing.
On March 20, 1937, the Board, by the Regional Director, issued
an amended complaint alleging that the respondents had engaged in
and were engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (2), and (5) and Section 2
(6) and (7) of the Act. Copies of the amended complaint and an
amended notice of hearing were duly served upon Swift, Newton,
Iowa, Local 630, and the Federation.
The complaint, as amended, alleged in substance that on or about
March 4, and 5, 1937, and on several occasions thereafter, the re-
spondents refused to bargain collectively with Local 630 and the
Federation as the duly authorized representatives of a majority of
the respondents' employees in an appropriate unit at their plant
DECISIONS AND ORDERS 993
at 5075 Fourteenth Street, Detroit, Michigan; that on or about,-Feb-
rua0ry 25, 1937, the respondents fostered and encouraged the forma-
tion of a labor organization of their employees known as an "Em-
ployee Representation Plan"; that on February 26,1937, the respond-
ents' employees, having attempted by various means to bargain with
the respondents for higher rates of pay and having failed to obtain
consideration in good faith of their proposals, went on strike; and
that such strike was being prolonged by the aforesaid alleged unfair
labor practices.
Thereafter the respondents filed a joint and several motion to dis-
miss the amended complaint for lack of jurisdiction in the Board and
on the ground that the Act was unconstitutional. The respondents
also filed a joint and several answer to said complaint, in which they
adopted and renewed their motion to dismiss, denied all material
allegations of the complaint, and alleged in substance that Swift had
no employees at the plant; that Swift had no interest in Newton and
Iowa or in their operations except for the ownership and control of
100 per cent of the stock of each corporation; that the strike which
occurred on February 26, 1937, and continued until March 20, 1937,
was an unlawful seizure of the plant and property of Newton and
Iowa by a minority of their employees conspiring with certain,per-
sons not employees of Newton and Iowa; that on and after March 4,
1937, the persons in and about the plant were no longer employees
of Newton or Iowa, having terminated their employment by their
unlawful acts and having received notice of such termination from
Newton and Iowa on March 1, 1937.
The respondents also filed a joint and several motion to dismiss
The amended petition for investigation and certification of repre-
sentatives and a joint and several answer to such amended petition, in
which they incorporated by reference all the matters set forth in
their motion to dismiss the amended complaint and in their answer
thereto, respectively.
Pursuant to notice, a hearing was opened on March 29, 1937, at
Detroit, Michigan, before Robert M. Gates, the Trial Examiner duly
designated by the Board. The Board and the respondents were
represented by counsel and participated in the hearing. At the
opening of the hearing counsel for the Board moved that the pro-
ceedings be dismissed as to Iowa without prejudice to the right of
the Board to reinstate the proceedings against that corporation at a
later date.2 The motion was granted over the objection of the. re-
spondents' counsel to the dismissal without prejudice. Later in the
same day the Trial Examiner and the attorneys for the Board were
2 The .ground of this motion was the existence of a preliminary injunction issued by *a
-"United States District Court elsewhere in the United States," enjoining the Board from
proceeding against Iowa in another matter.
994 NATIONAL LABOR RELATIONS BOARD
served with notice of ' a temporary restraining order issued under
"date of March 29, 1937 , by the Circuit Court for the County of
Wayne, State of Michigan , against them and against the Regional
Director as individuals and as agents of the Board, restraining said
persons from taking any action in the instant proceedings , pending
further order of the court . The hearing was thereupon adjourned'
indefinitely . Subsequently , as a result of removal proceedings insti-
tuted by the Board , the bill of complaint upon which the above-de-
scribed restraining order was predicated was transferred to the
United States District Court for the Eastern District of Michigan
which, on April 16, 1937, dismissed the bill and dissolved the tem-
porary restraining - order.
The hearing before the Trial Examiner was resumed on May 10,
and concluded on May 22, 1937. Immediately upon the resumption
.of the hearing , Newton Employees Social League , herein called the
ZBague, filed a motion to intervene in that part of the proceedings
concerning the investigation and certification of representatives.
The Trial Examiner granted the motion . The Board , the resppond-
ents, and the League were represented by counsel and participated
-in the hearing. Fill opportunity to be heard , to examine and cross-
wexamine witnesses , and to introduce evidence bearing upon the issues
was afforded all parties.
At the reopening of the hearing, counsel for the Board moved for
the reinstatement of the proceedings as to Iowa on the ground that
the temporary injunction which had been the basis of his earlier
motion to dismiss had been since dissolved . The motion was granted.
The respondents made two separate motions for, a continuance on
the grounds (1) that there had been inadequate notice of the resump-
tion of the hearing and (2) that no notice of the Board's intention to
move to reinstate the proceeding as to Iowa had been given them.
Both motions were denied. At the close of the Board's case, at the
close of their own case, and again at the conclusion of the hearing,
the respondents moved to dismiss both the amended complaint and
the amended petition on the grounds of lack of jurisdiction in the
Board under the Act and failure of the evidence to substantiate the
allegations of the complaint and of the petition. The motions were
denied. At the close of the Board's case the respondents also moved
to strike from the record the amended charge and amended petition
on the grounds - that the individuals signing for and on behalf of Local
, 630 and the Federation were without authority to act for the respec-
tive organizations , and further that the Federation had no authority
to represent the-" respondents '' employees . This motion was denied.
During the course of the hearing the Trial Examiner made various
other rulings on motions and objections to the admission of evidence.
DECISIONS AND ORDERS 995
.The Board has reviewed all the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On February 19, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly • served upon the respondents,
Local 630, the Federation, and the League. The Trial Examiner
found that the respondents had committed unfair labor practices af-
fecting commerce, within the meaning of Section 8 (1) and (2), and
Section 2 (6) and (7) of the Act, but found that the evidence failed
to substantiate the allegations of the commission of unfair labor
practices within. the meaning of Section 8 (5) of the Act. He rec-
ommended that the respondents cease and desist from their unfair
labor practices, that upon application they offer immediate and full
reinstatement to employees who went on strike on February 26, 1937,
as a result of the unfair labor practices, and that they take certain
other action to remedy the effects of their unlawful conduct.
On March 2, 1938, the respondents filed a "Motion to Dismiss and
Joint and Several Exceptions to the Intermediate Report and to the
Record and the Proceedings Before the Examiner." The motion to
dismiss was predicated upon the grounds that the evidence failed to
support the allegations of the amended complaint and established
the lack of jurisdiction in the Board. The exceptions were directed
to rulings at the hearing adverse to the respondents; to all findings,
conclusions, apd recommendations in the Intermediate Report adverse
to the respondents; and to the failure of the Trial Examiner to make
numerous specific findings favorable to the respondents. The excep-
tions also included a request for opportunity to file briefs and present
oral argument before the Board.
On March 5, 1938, Local 630 filed its exceptions to the Intermediate
Report, in which exception was taken to the Trial Examiner's find-
ings that Local 630 did not represent a majority of the respondents'
employees and that the respondents had not therefore refused to
bargain collectively within the meaning of the Act. On March 19,
1938, the League filed a brief in opposition to the exceptions of Local
630, and on March 21, 1938, Local 630 and the respondents filed briefs
in support of their respective exceptions.
Pursuant to notice duly served upon all parties; a 'bearing was
held before the Board in Washington, D. C., on March'22, 1938, for
.the purpose of oral argument. The respondents 'nd Local 630 and
the Federation were represented by counsel and participated in the
"argument. The respondents thereafter *suppleinented their excep-
tions, brief, and argument in a letter to the Board dated April 1, 1938.
The Board has reviewed the various exceptions to the Intermediate
Report and has considered the briefs filed by the parties.. Except in
,996 NATIONAL LABOR RELATIONS BOARD
-so far as they are consistent with the Decision and Order below, the
Board finds the exceptions to be without merit.
Upon the entire records in both cases, the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The present proceedings involve the operations at a slaughtering
and packing plant located at 5075 Fourteenth Street, Detroit, Michi-
gan. All employees at the plant are on the pay rolls of either Newton
Packing Company, a Michigan corporation, or Iowa Packing Com-
pany, an Iowa corporation. Swift and Company, an Illinois corpora-
tion, has an, interest in, the operations stemming from its ownership,
of 100 per cent of the capital stock of both Newton and Iowa. Prior
to 1928, when Swift first acquired its ownership of Newton's capital
stock, the plant was owned and operated exclusively by Newton.
Subsequently, Iowa qualified to do business in Michigan and took
over all buying, packing, and slaughtering operations at the plant.
Newton thereupon confined itself exclusively to sales and distribu-
tion of products obtained by it from Iowa, but sold under trade
and brand names owned by Newton. Such a situation still obtained
at the time of the hearing in the instant proceedings.
Swift, though not a direct employer of labor at the plant, is con=
nected with certain of its operations, notable among which are the
following : Application for inspection at the plant by the United
States Department of Agriculture was made and granted in the
names of Newton and Swift jointly; Swift appears as consignor on
many shipments from the plant; four of the five directorships of both
Newton and Iowa are held by Swift officers or employees; the
offices of treasurer and assistant treasurer of both Newton and Iowa
are held by assistant treasurers of Swift; the Swift accounting
system is used by both Newton and Iowa; there is a teletype con-
nection between the plant and Swift's Detroit office;. Swift em-
ployees regularly inspect the equipment and processes at the plant ;
members of Swift's industrial relations staff presented an employee
representation plan to the employees of Newton and Iowa in the
manner hereinafter described in Section III A; agents of Swift were
active on behalf of the management during the course of the strike
at the plant in March of 1937; there are frequent interchanges of
products for sale, storage, processing, and: the like, in the usual and
ordinary course of operations between Iowa and other Swift plants
throughout the United States; stationery and forms in daily use,
by both Newton and Iowa bear the Swift name; monthly reports,
are made by both Newton and Iowa to Swift's Chicago offices; and
DECISIONS AND ORDERS 997
on Swift's chart of operations for the 3' or 4 years immediately pre-
ceding the hearing in this case a single Swift executive was shown
to be responsible for` Newton's operations.
Direct management of the plant is vested in a• plant manager, a
plant superintendent, and an auditor employed jointly by Newton
and Iowa. The present incumbents of the three offices above men-
tioned have no direct connection with the Swift organization although
all are former Swift employees of long standing. General wage
determinations are made by the plant manager and the, plant super-
intendent only after consulting the Newton or Iowa board of direc-
tors, as.the case may be. Individual wage adjustments may be made
by the plant manager and the plant superintendent without other
authority.
We have previously stated that Iowa carries on all of the buying,
slaughtering, and processing at the plant. In so doing it leases the
plant and equipment from Newton. Receipts of livestock shipments
at the plant for a 4-month period from December 1936 through March
1937 may be tabulated as follows :
December 1936_________________________
January 1937
February and
___M__a_r_c__h__
1937__---------------
From public stockyards, pro-
ducers, or other sources, out-
side the State of Michigan
From public stockyards, pro-
dueers,orother sources, with-
in the State of Michigan
(original source unknown)
Value (in
dollars)
Weight (in
pounds)
Value (in
dollars)
Weight (in
pounds)
23,687 322,420 322, 508 3,929,185
17,455 250, 705 400,137 4,530,535
33, 372 465,136 455, 801 4,703,750
Sales by Iowa for the fiscal year ending November 1936, totaled 30
million pounds. While the total value of such sales is not a part of
the record, it appears that 78.88 per cent of all sales during the 1936
fiscal year, computed on a value basis, were made within the State
of Michigan and 21.12 per cent outside the State. Intrastate sales
fall into two categories which, in relation to total sales value, may
be expressed as follows : sales to, Newton 71.08 per cent and sales to
local branches operated directly by Swift 7.8 per cent. Interstate
sales fall into three categories which, when expressed in percentages
of total sales value, are as follows : sales to Swift branch houses 5.2
per cent, sales to Swift plants 7 per cent and sales to the trade (i. e.
retailers and the like) 8.92 per cent. In addition to the Iowa opera-,
tions covered by the above figures, there is some buying conducted
at the Detroit stockyards by commission buyers for shipment to
various eastern points for the account of Iowa. Such livestock
never enters the plant, and therefore is not included in the above
figures of shipments received.
147841-39-vo]. 10-64
998 NATIONAL LABOR RELATIONS BOARD
All, products sold, and distributed by Newton in connection with
.its operations at the plant are purchased by it from Iowa, delivery
being deemed completed at the plant's loading dock. Newton's sales
are confined entirely to the local trade in the immediate area of
Detroit, Michigan.
The record contains no indication of the underlying reasons for
,the use of a dual corporate structure in the operation of the plant.
It is not, apparently, a usual practice among Swift subsidiaries.
Strict separability is maintained in such formal matters as corporate
and operating records and general accounting. With respect to the
less formal matters, pertaining to day by day operation of the plant,
the same clear separability is not maintained. As has been pre-
viously stated, supervision and management of the operations con-
ducted by both Newton and Iowa are vested in the same individuals.
Employees are transferred from department to department even
though such changes may involve a change from operations con-
ducted by one company to those conducted by the other. The record
shows specifically that a truck driver named Simon, an employee of
Newton, was, shortly before the hearing, given a position as checker
on the Iowa pay roll. Employee witnesses were unable to state ac-
curately whether they worked for one or the other of the two com-
panies. That they believed themselves to be employees of Newton
is evident from the fact that all union applications in this record
designate Newton as the employer. That this attitude on the part
of the employees is also a general impression with respect to the
identity of the operator of the plant is apparent from the fact that
Newton is named as consignee on all records introduced in this
proceeding to show shipments received at the plant, although it ap-
pears that such shipments are paid for by Iowa checks and recorded
in Iowa's books of account. The management made no distinction
between employees of Newton and employees of Iowa in the con-
templation or presentation of the employee representation plan, as
detailed in Section III, A, post.
We have been asked to dismiss the amended charge and amended
petititon as to Swift on the grounds that Swift has, no employees at
the plant and has no interest in the affairs of Newton and Iowa other
than by reason of its ownership and control of the entire capital stock
of each and is therefore not an employer within the meaning of the
Act. We are, however, impressed with the other factors in Swift's
relationship with this plant as outlined above. On the basis of all
the evidence it is apparent that Swift exercises substantial control over
the labor relations policies of the other two respondents. Such con-
trol coupled with stock ownership fixes upon a parent corporation
responsibility for the labor relations policies, of subsidiaries. We
DECISIONS AND ORDERS 999
have so held in a previous decision involving an analogous, situation.3
We find, therefore, that the relationship of Swift to both Newton and
-Iowa and to the operation of the plant is such as to constitute Swift
an employer, within the meaning of Section 2 (2) of the Act, for the
purpose of this proceeding.
There remains to determine the relationship between Newton and
Iowa, 'since objection has been made to the inclusion of Newton on
the ground that it is engaged exclusively in activities of a purely local
nature. The record clearly establishes that the business operations of
Newton are inseparable from those of Iowa.. We find, upon the basis
of the facts above outlined and upon the entire record, that, for the
purpose of this proceeding, the corporate fiction as between Newton
and Iowa must be disregarded and the plant considered as a unitary
enterprise operated by one management.`
II. THE ORGANIZATIONS INVOLVED
Local 630, Amalgamated Meat Cutters and Butcher Workmen of
North America, is a labor organization affiliated with the American
Federation of Labor. It admits to membership employees of the
respondents exclusive of those engaged in office, clerical, supervisory,
or executive capacities.
Detroit and Wayne County Federation of Labor is a labor organi-
zation composed of delegates from trade and labor unions in Detroit
and Wayne County affiliated with the American Federation of
Labor, including Local 630. Its purpose is to coordinate and consoli-
date the activities of such trade and labor unions.
Newton Employees Social League is an incorporated, unaffiliated
'labor organization, admitting to its membership employees' of the
respondents at the plant located at 5075 Fourteenth Street, Detroit,
Michigan, with the exception of steady-time employees and hourly
employees having the authority to hire, discharge,, or discipline.
III. THE UNFAIR LABOR PRACTICES
A. Presentation of the Plan
Prior to Wednesday, February 24, 1937, there had been no organi-
zation among employees at the plant. While some individual bar-
gaining had taken place from time to time, there is no indication of
any collective effort looking towards bargaining on the part of the em-
- 3Mattei of Todd Shipyards Corporation , Robins Dry Dock and Repair Co, and Tictjen
and Lang Dry Dock Co and Industrial Union of Marine and Shipbuilding Workers of
America, 5 N L R B 20.
4Matter of Waggoner Refining Company, Inc, and IV T. Waggoner Estate and Interna-
tional Association of Oil Field , Gas Well and Refinery TVor7hers of America ; Matter of
Waggoner Refining Company , Inc., and W. T . Waggoner Estate and Waggoner Employees
Federation, 6 N. L. R. B. 731.
.1000 NATIONAL LABOR RELATIONS BOARD
ployees. Vierling, an ex-Swift employee, recently arrived at the plant
as manager, had, soon after his arrival, discussed with Ingram, plant
superintendent, the advisability of inaugurating an employee repre-
sentation plan upon the pattern used extensively throughout the
Swift organization since 1921. The two were agreed that the step
should be taken. Accordingly, Vierling invited Bagsley and Marker,
two men from the Swift industrial relations department in Chicago,
to present such a plan to the employees.
On Wednesday, February 24, 1937, all employees at the plant were
called together by the management at 12: 30 p. in., immediately fol-
lowing their lunch period. At this meeting, held in the produce
-room, Vierling was introduced to the employees by Ingram. Vierling
in turn introduced the two Swift men from Chicago. Copies of a.
booklet entitled "Employes - Representation Plan-Swift and Com-
pany 1934", herein called the Plan, were thereupon distributed among
the employees and one of the Swift representatives proceeded to
read and comment upon the Plan, paragraph by paragraph. Em-
ployees were instructed to follow the reading of the Plan on their
own copies. After a brief discussion during which questions were
called for, adoption of the Plan was recommended to the employees
and a vote upon such question was announced for the following day.
Vierling suggested to the employees that they choose a temporary
committee of four to act with a like number of individuals chosen by
the management in the conduct of the ballot and, in the event of the
adoption of the Plan, until permanent. representatives could be
chosen. The employees, however, were unable to act for themselves,
and after some hesitation and indecision it was suggested from the
floor by one of their number that Vierling choose the entire tem-
porary joint committee, including representatives of the employees
as well as of the management. This Vierling proceeded to do, where-
upon the meeting adjourned.
The Plan, as presented to the employees, contemplated the estab-
lishment of an "Assembly" composed of equal numbers of elected
employee representatives and of management representatives ap-
pointed by the employer. Participation in the Plan in the capacity
of employee representatives was limited to persons 21 years of age
who were American citizens or had their initial naturalization papers,,
and who had been employed in the plant for 1 year and in a voting
division thereof for 4 months immediately preceding their election.
Eligibility to participate generally in the Plan and to vote for em-
ployee representatives was extended to all employees except steady-
time employees and supervisory employees. It was specified that the
"Assembly" should have no executive or administrative powers. Any
proposition requiring action by the management, after being passed
by a two-thirds vote of the "Assembly", was to be filed with the man-
DECISIONS AND ORDERS 1001
ageinent for consideration. At such stage either the board of directors
or the employee representatives as a group were empowered to reopen
the matter before the "Assembly."
When, after such reconsideration in the Assembly, it is deemed
impossible to arrive at a collective agreement by joint conference
on any issue, the management and the employees are at liberty
to take such action outside of the Plan as they may think desir-
able. But such action will not of itself terminate the general use
of the Plan, which shall continue in full force so long as it is
desired by Employer and Employees.
Voting power of management and employee representatives in the
Assembly was at all times required to be equal. A majority of both
was necessary for a quorum.
In the evening of the same day, Wednesday, February 24, 1937, a
group of truck drivers, employees of Newton, met in a small-restaurant
on the plant property for the purpose of discussing a demand for an
increase in wages. A demand of $35 a week was agreed upon at the
meeting and a committee was elected to request the management to
meet with the drivers for the discussion of the wage question. No
further plans were made. An employee, not a driver, who walked
through the restaurant during the meeting and observed the drivers
gathered together, promptly reported his observations • to Ingram.
On the following morning Ingram conveyed the information to Vier-
ling, whereupon the two decided to call the drivers in one by one,
question them as to their grievances, and offer them raises of $1 or $2
a week over the $27 or $28 they were then receiving. Accordingly,
individual drivers were called in from time to time during the morn-
ing as their work permitted. The drivers' committee, after canvassing
those drivers who had met with Vierling and Ingram and finding that
they were still anxious to proceed with the plan agreed upon the
previous evening, went to the management at 1 o'clock in the afternoon
to present their demands and request a meeting of the management
and all drivers. The committee was met by Vierling and Ingram
and a meeting between the management and all drivers was set for
the following Tuesday. Shortly thereafter Ingram and Vierling,
without again consulting the drivers' committee, decided to advance
the day of the meeting to the following day, Friday, February 26,
1937, in order to "get the thing over with as quickly as possible." The
foreman of the drivers was told to notify each of them of the change;
those who could not be reached during the remainder of the day were
to be notified on the following morning.
While the above-described negotiations between the management
and the drivers were being carried on, a vote was also being con-
ducted on the Plan throughout the entire plant. The ballot box was
1002 NATIONAL LABOR RELATIONS BOARD
carried about the plant during working hours by an employee as-
signed to the task and employees cast their ballots at their posts of
duty. It is apparent that the results were known during the day
on which balloting took place for the mimeographed notice of the
results is dated February 25, 1937. The vote was overwhelmingly in
favor of the adoption of the Plan. According to the notice, 146 of
the 181 eligibles favored the Plan and only 20 were opposed to its
adoption. The notice also stated that the temporary joint commit-
tee had divided the, plant into five voting divisions for the purpose
of electing employee representatives and that a primary election for
the nomination of such representatives would be announced at a.
later date.
B. Abandonment of the Plan and formation of the League
Such was the situation when the drivers reported for work at
about 5:45 a. in. on the following morning, Friday, February 26,
1937, in advance of the other employees, as was their usual custom.
Although aware of their own pending meeting with the management
and the favorable vote on the Plan,, the drivers, after a brief dis-
cussion, decided to strike and did so immediately. The strike, which
took the form of a "stay-in" or "sit-down" strike and was partici-
pated in not only by the drivers but also by employees of other
departments, continued until Saturday, March 20, 1937, when all re-
maining strikers were removed from the plant by officers executing
body attachments issued by the Circuit Court for Wayne County
pursuant to proceedings instituted by Newton and Iowa.
Rehabilitation of the plant after the strike required some time
and operations were not resumed until early in the month of April.
Subsequently the management received a number of inquiries from
employees as to whether' the Plan, as adopted prior to the strike,
could be put into operation. Sometime between April 21 and 24,
1937, Ingram called the employees together in two separate groups
to explain the position of the management with respect to the Plan:
His own interpretation of the statement made by him at such
meetings is as follows :
A. And I called the employees all together, in two different
groups, just for 2 or 3 minutes each time, that is, two different
groups. I told them that we would not go ahead with the
employees' representation plan that was in progress before the
strike; since the decision by the Supreme Court on the Wagner
Act, that. we would not participate. We would not give them
any help to organize the plan; that they were free to organize
any kind of a plan' that they saw fit, and elect representatives
DECISIONS AND ORDERS 1003
at their own, choosing, but they would have to do it on their
own time. We would not contribute financially. We would
not even allow them to meet during working hours. We would
not even furnish them a place to meet and if they wanted a
place to meet after working hours that I would charge them
rent for it, but they were free to go ahead and organize a plan
of their own if they saw fit, if they wanted to.
They asked me when they could organize that plan. I said
"That is entirely up to you boys. You can go ahead any time
you want to."
Q. Did you encourage them, that you wanted them to organize
a plan?
A. I did not.
Ingram's amlouncement of the management's intention to with-
draw from the Plan did not, however, sound its death knell. At
about 5:30 p. m. on the same ;day on which Ingram's statement
had been delivered to the employees, Hamilton, Richter, who was
an assistant foreman, and Fitzgerald, all employees of the respond-
ents, met in the locker room of the plant and devised a petition,
dated April 24, 1937, reading : "We, the undersigned, wish to
organize an Employee Representation Plan for Collective Bargain-
ing." Copies of the petition were circulated throughout the plant
during the next few days. Between April 25 and 28, Ingram.
according to his testimony, first heard of the incipient organization.
At that time Richter approached him to ask for the name of an
attorney whom the employees might hire to perfect their organiza-
tion. Ingram called the office of Butzel, Eaman, Long,.Gust. and
Bills, the respondents' counsel in this proceeding, and was given
the name of McDowell as an attorney with some previous experi-
ence in organizing workers in the Detroit area. The information
thus obtained was given by Ingram to Richter. Ingram also testi-
fied that Hamilton approached him several days later with the
information that an attorney named McDowell had been retained
to assist the employees with their organization upon his, Hamilton's.
recommendation. According to both Hamilton and Ingram, Hamil-
ton then stated that he had been given McDowell's name by persons
acquainted with the situation at the Semet Solvay Company where
McDowell had organized the workers to their complete satisfaction.
In spite of this testimony, however, there is every reason to credit
Ingram's statement that he gave McDowell's name to Richter, and
we so find.
On or about April 28, Hamilton asked Ingram for the use of the
time room for a committee meeting. The room was made available
to the committee at a rental of $1. This committee included, in ad-
1004 NATIONAL LABOR RELATIONS BOARD
dition to Richter, Hamilton, and Fitzgerald, several employees selected
by them from various departments of the plant. At the committee
meeting the plan of organization was discussed and the employment
of McDowell approved. On April 30 Hamilton, Richter, and Fitz-
gerald met McDowell in the latter's office, discussed the petition which
had been drawn and circulated by the three, went over a proposed
constitution prepared in longhand by Richter, and, on McDowell's
recommendation, agreed .to . a revision- of • both the petition and the
proposed constitution.
On May 5 a meeting was held in the produce room of the plant
which the respondents made available upon, payment of a $2 rental.
Ingram testified that this was the first request ever received by the
respondents for the rental of the produce room and that, whereas the
respondents granted this request, Local 630 would not be given similar
treatment "because it did not represent the employees." By special
arrangement with the management, the meeting of May 5 was called,
for 3 o'clock in the afternoon, although work was not customarily
completed at that hour. Hamilton, ivho acted as chairman at this,
meeting, explained to the employees the ,nature and purpose of the
meeting and then introduced McDowell. McDowell proceeded to,
explain the Wagner Act to the employees and read to them a proposed,
constitution, prepared by him from Richter's draft. After some dis-
cussion the following resolution was circulated for the signatures of
the employees :
We, the undersigned, being employees of the Newton Packing
Company at its plant in Detroit, Michigan, having heard read
to us the plan of organization of the Newton Employees Social
League, hereby individually and collectively approve of such
plan and do hereby authorize Earl Hamilton, Arthur Fitzgerald,
and Peter Richter, our fellow employees, to jointly act as our
sole and exclusive agents, in the formal organization of a Michi-
gan Non-Profit Corporation, of which each of us are charter
members thereof to be known as Newton Employees Social League,
under a constitution of which we have full knowledge, and we do
empower said joint agents, and said League when incorporated,
as their successor to fully represent us in our dealing with our
common employer, as our exclusive agent for purpose of Col-
lective Bargaining in accordance with Wagner Labor Act and
this exclusive agency shall continue for a period of 1 year from
date, and for mutual consideration from one to the other and
each and all of us, shall be irrevocable during that time :
IN WITNESS WHEREOF We have set our hands, and set forth our
"clock number" at the days and dates set opposite our respective
names.
DECISIONS AND ORDERS 1005
Pursuant to the provisions of the resolution the new organization
was duly incorporated on May 7, 1937, under the laws of the State
of Michigan . Up to the time of the conclusion of the hearing on May
22, 1937, no negotiations had been started or were pending between
the League and the respondents and no contract had been proposed on
either side . On or about May 8, 1937 , a meeting of the members of
the League was held for the purpose of electing employee represen-
tatives. Except for that meeting , none had been held or announced
at the time the hearing closed. No meetings are provided for in the
League's constitution , other than an annual meeting. The represen-
tatives chosen at the May 8 meeting in turn elected 'a president and
secretary -treasurer . It appears that since such meeting none of the
three incorporators holds any position or office in the organization,
two of the three, namely , Richter and Hamilton, being ineligible for
participation in the ' League as employee representatives . Richter
is in fact ineligible under the constitution to participate in the League
in any manner due to his position as an assistant foreman. Hamil-
ton is eligible for membership and only temporarily ineligible to act
as an employee representative until such time as he has been in his
present department for 4 months . Apparently the newly chosen of-
ficers of the League did not, in spite of this situation , at once take
over its active management , for the petition to intervene in this
proceeding , filed May 10, 1937, was signed by the three incorporators
rather than by the officers.
As we described above, Richter prepared the original draft of the
constitution of the League in longhand . Although the source of
Richter's draft is not directly revealed in the record , a comparison of
the constitution of the League and of the Plan shows the following
verbatim similarities ; division of the plant into voting units for the
purpose of electing employee representatives , eligibility to member-
ship, eligibility to serve as representatives , term of office of representa-
tives, method of nominating representatives , method of electing repre-
sentatives , vacancies on the Board, recall of representatives , and han-
dling of grievances . ' In both constitutions the grievance provision
contemplates the presentation of a grievance by the employee to his
foreman in the first instance . If no satisfaction is thus obtained, the
employee calls in his division representative . Failing to effect a
settlement the division representative will take the matter to the
board of directors of the League by referral to the president thereof.
The vote of a majority of the board of directors on the matter is the
final decision in any event . The chief dissimilarity lies in the purpose
clause of the League constitution . Appearing in the revised draft sub-
mitted to the employees by McDowell , it specifically defines the or-
ganization as one formed for collective bargaining pursuant to the
provisions of the "Wagner Labor Act."
1006 NATIONAL LABOR RELATIONS BOARD
C. Conclusions with respect to the Plan and the League
The facts with respect to the presentation of the Plan were not
seriously controverted in the record. The respondents argue that
since the employees were free to choose or reject the Plan there was
no domination and interference by the respondents within the mean-
ing of the Act. They also urge that, whether domination and inter-
ference be found or not, there is no occasion for an order against them
with respect to the Plan in view of its complete abandonment. We'
cannot accept the respondents' first contention. To argue that there
was complete freedom of choice for the employees after the Plan had
been presented and unqualifiedly recommended by the management
without so much as a reference to the possibility of modification or
alteration of the Plan or the availability of "outside" representation
is to disregard totally the effect of the management's influence and
domination over the employees in their choice of bargaining repre-
sentatives. It is also impossible for us to accept the respondents'
second and alternative argument. While the announcement of the
abandonment of the Plan paid lip-service to the principles of the Act,
it clearly amounted to an invitation to the employees to continue with
the organization suggested by the Plan. Although the form has been
changed and the open and direct participation by the respondents has
been abandoned, the League is nothing more than the Plan reincar-
nated. The identical wording of many provisions in both constitutions
is eloquent proof that the Plan was not irrevocably destroyed.
Other factors support the conclusion that the League is a bargain-
ing agency proscribed by the Act. The prime mover in the organiza-
tion of the League was Richter, an assistant foreman identified with
the management and ineligible to participate. McDowell, the attor-
ney retained by the organizers, was recommended to them by Ingram.
The first organization meeting on May 5 was called during working
hours. The respondents' admission that they would not have accorded
similar treatment to Local 630 "because it did not represent the em-
ployees" is significant in reflecting the partiality of the respondents
to the League even before its organization.
We find that the respondents have dominated and interfered with
the presentation of an Employee Representation Plan to their em-
ployees and have dominated and interfered with the formation and
administration of said Plan as revised under the name of Newton Em-
ployees Social League,5 thereby engaging in unfair labor practices
' For similar findings based upon somewhat analogous situations see . Matter of Swift
and Company , a Corporation and Amalgamated Meat Cutters and Butcher Workmen of
North America, Local No. 641, and United Packing House Workers Local Industrial Union
No 300 , 7 N L R B 269 ; and Matter of Swift and Company and United Automobile Work-
ers of America, Local No 265, 7 N. L. R. B. 287.
DECISIONS AND ORDERS 1007
within the meaning of Section 8 (2) of the Act, and interfering with,
restraining , and coercing their employees in the exercise of the rights
.guaranteed in Section 7 of the Act.
D. The alleged refusal to bargain with Local 630 and the Federation
1. The appropriate unit
The amended petition filed by Local 630 and the Federation alleges
-that all the respondents ' employees at their Fourteenth Street, Detroit,
Michigan , plant, except clerical , office, and supervisory employees, con-
stitute a unit appropriate for the purposes of collective bargaining.
An essentially similar appropriate unit is alleged in the amended
complaint.
Local 630 admits such employees to membership and there was no
controversy at the hearing over the propriety of this unit. We find,
therefore , that all the respondents ' employees at their Fourteenth
Street, Detroit, Michigan , plant, except clerical , office, and supervisory
employees , constitute a unit appropriate for the purposes of collective
bargaining and that such unit will insure to employees of the respond-
ents the full benefit of their right to self -organization and collective
bargaining and otherwise effectuate the policies of the Act.
2. The alleged representation by Local 630 and the Federation of the
majority in the appropriate unit
Ingram testified that on February 26, 1937, the day the strike began,
there were 207 employees on the pay roll, excluding the office force and
foremen. The respondents contended that of the 207, 20 should be
excluded from the unit, and it was agreed by the Board's counsel 6 that
13 of the 20, including 5 casual employees, 4 watchmen, 1 buyer and
penner, 2 schochtim, and 1 clerical employee located outside the office,
should be so excluded. Ingram testified as to the duties of the remain-
ing 7 of the 20. We have reviewed the evidence with respect to those 7
and find that it shows them to be either assistant foremen or vested
-with such supervisory authority as to bring them within the class of
supervisory employees which we have excluded from the unit. It
therefore appears that on February 26, 1937 , there were 187 employees
-within the appropriate unit.
Local 630 produced 112 signed applications for membership blanks,
91 of which were introduced in evidence . Of the 91, however, 3 were
signed by supervisory employees and must be excluded from consider-
ation under our determination of the unit. Furthermore , the remain-
ing 88 blanks are not all worthy of credit, since the genuineness of the
6 Local 630 and the Federation were not represented at the hearing
1008 NATIONAL LABOR RELATIONS BOARD
signature's or the act of execution was not established at the hearing
with respect to a substantial number. At least 14 fall within this
group, while an additional 7 were identified only by statements of
witnesses to the effect that the purported applicants had told the wit-
nesses that they had signed blanks. Thus the record contains only 67
application blanks with established probative value. There is, how-
ever, evidence in the record to the effect that 24 other employees, for
whom no blanks were produced, had nevertheless chosen Local 630
and the Federation as their collective bargaining representatives. Two
employees testified that they had signed application blanks. Four em-
ployees were said by witnesses to have signed blanks in their presence.
Of the 60 or more employees arraigned in court on March 20, after the
strike was concluded by the arrest of the remaining strikers, 18 are
identified with Local 630 and the Federation only by reason of such
arrest.
A majority is lacking unless there be considered, in addition to the
24 employees for whom no blanks are in evidence not only those cov-
ered by the 67 creditable application blanks but also the 7 who told
witnesses they had signed. The evidence with respect to the 7 blanks
last named, while of some force, is too doubtful to be accorded great
weight. We are unable to find, therefore, that Local 630 and the Fed-
eration represented a majority of the respondents' employees in the
unit found to be appropriate.
In view of our finding above, it becomes unnecessary to determine
whether or not the respondents refused, upon demand, to bargain with
Local 630 and the Federation as the exclusive representatives of their
employees in a unit appropriate for the purposes of collective
bargaining.
We find that the evidence fails to sustain the allegations of the
amended complaint to the effect that the respondents refused to bar-
gain with Local 630 and the Federation as the representatives of a
majority of the respondents' employees in a unit appropriate for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment. Such
allegations of the amended complaint will, therefore, be dismissed.
E. The respondents' unfair labor practices and the strike
The events immediately preceding the strike and the situation
existing at the time the strike went into effect have been described
above. The respondents have urged that the strike was started by
the drivers in order to obtain increased wages and that they were
later joined by other employees with a similar motive. The re-
spondents also assert that all strikers on the witness stand so testified
and that there is, therefore, no basis for an inference that the strike
was caused by the presentation of the Plan.
DECISIONS AND ORDERS 1009
The strike began just 2 days after the presentation of the Plan
to the employees and on the day following its acceptance by a large
majority. We cannot believe that the Plan was not prominent in
the minds of the employees at the time. In view of the fact that the
drivers chose their own committee on the same day the Plan was
presented and proceeded to bargain through that committee, we are
convinced that they did not consider the Plan an effective bargaining
agent for them. Furthermore, a meeting between the drivers and
the management, arranged upon request of the drivers' committee,
was pending at the time the strike went into effect. The chief
.obstacle to the effectiveness of that meeting was the prospective
organization of the Plan which necessarily explains the action of
the drivers in calling the strike. Although the strike was in part
motivated by a desire of the drivers for a wage increase, it is ap-
parent and we so find that the presentation of the Plan by the re-
spondents was a substantial contributing cause of the strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth, in Section
III above, occurring in connection with the operations of the re-
spondents 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
We have found that the respondents dominated and interfered
-with the presentation of the Plan to their employees and, in the
process of abandoning the Plan and thereafter, with the formation
-and administration of the League. We shall order the respondents
to withdraw any and all recognition from the League and to dis-
establish it as a representative of their employees for the purposes
of collective bargaining.
The respondents have argued that, whether or not it be found that
the strike resulted from unfair labor practices, they should not be
required to reinstate the strikers, since all who participated in the
strike were guilty of both felonies and misdemeanors under the laws
of the State of Michigan and those who were removed from the plant
by the sheriff on March 20, 1937, either pleaded guilty or were found
to be in contempt of court for refusal to obey the temporary injunction
referred to above. At the oral argument before the Board on March
22, 1937, counsel for the respondents advanced the additional argument
that reinstatement of strikers'would be inegjuitable in view of the fact
that some individuals who had, at that time, been working in the
'plant for nearly a year would, as a result, be forced out.
1010 NATIONAL LABOR RELATIONS BOARD
The alleged felonies and misdemeanors have never been adjudicated
and, being questions of focal criminal law, cannot be tried here. But
whether determined or not, such allegations, as well as the established
contempt of court on the part of the strikers, cannot be decisive in
this case, for the respondents have voluntarily disregarded both mat-
ters in the rehiring of employees. The record shows that, of the ap-
proximately 110 employees rehired at the time of the hearing, 25 or
30 were strikers who participated in the sit-down. Ingram testified
that strikers were being rehired as rapidly as the volume of business
would permit and that most of the strikers would eventually be re-
employed. According to his testimony, the respondents had made
no decision' as to the particular individuals to be denied reinstate-
ment, indicating that the respondents, having seen fit not to bar all
strikers from reinstatement because of their alleged unlawful conduct,
were not ready to single out certain individuals as more culpable than
others. Furthermore, the record provides no basis for separating out
particular individuals from the whole group of strikers. We con-
clude that all are entitled to reinstatement.'
The respondents' second argument is not persuasive. The forcing
out of individuals hired since the end of the strike is a necessary con-
comitant of reinstatement." Such individuals hold their positions
subject to the prior rights of employees whose work has ceased as a
result of a labor dispute.
Since the strike was caused by the respondents' unfair labor
practices, and in the absence of any convincing evidence that par-
ticular employees are not entitled to reinstatement, we shall, in
accordance with our usual custom, order the respondents, upon ap-
plication, to offer reinstatement to their former or substantially
equivalent positions to those employees who went out on strike and
have not since been fully reinstated. Such reinstatement shall be
effected in the following manner : All employees hired after the
commencement of the strike shall, if necessary to provide employ-
ment'.`for those to be offered reinstatement, be dismissed. If, there-
upon; by reason of a reduction in force there is not sufficient
employment immediately available for the remaining employees,
including those to be -offered reinstatement, all available positions
shall be distributed among such remaining employees in accordance
with the respondents' usual method of reducing its force, without
discrimination against any employee because of his union affiliation
or activities or participation in the strike, following a system of
seniority to such extent as has heretofore been applied in the eon-
7Matter of Electric Boat Company and Industrial Union of Marine and Shipbuilding
Workers of America, Local No 6, 7 N L R B 572 ; and Matter of Republic Steel Corpora-
tion and Steel Workers Organizing Committee, 9 N. L R. B. 219.
8 National Labor Relations Board v. Remington Rand, Inc , 94 F. (2d) 862 ( certiorari
denied, 304 U. S. 576) and 97 F. (2d) 195.
DECISIONS AND ORDERS 1011
duct of the respondents' business. Those employees remaining after
such distribution, for whom no employment is immediately avail-
able, shall be placed upon a preferential list prepared in accord-
ance with the principles set forth in the previous sentence, and shall
thereafter, in accordance with such list, be offered employment in
their former or in substantially equivalent positions, as such em-
ployment becomes available and before other persons are hired for
such work.
• We shall also order the respondents to make whole the employees
ordered to be offered reinstatement for any loss of pay they will
have suffered by reason of the respondents' refusal to reinstate them,
upon application, following the issuance of this order, by payment
to them, respectively, of a sum of money equal to that which each
would normally have earned as wages during the period from five
(5) days after the date of such application for reinstatement to the
date of the offer of employment or placement upon the preferential
list required by the preceding paragraph, less his net earnings," if
any, during that period.
VI. THE QUESTION CONCERNING REPRESENTATION
The amended petition filed by Local 630 and the Federation
alleges that the petitioners represent a majority of the employees in
It unit appropriate for the purposes of collective bargaining. In
their answer to the amended petition, and throughout the proceed-
ings, the respondents have steadfastly denied that the petitioners
have at any time represented a majority of their employees and
that they are under a duty to bargain collectively- with the peti-
tioners as employee representatives.
We find that a question has arisen concerning representation of
employees of the respondents.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respond-
ents described in Section I above, has a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents , which would not have been incurred but for the refusal of
reinstatement and the consequent necessity of his seeking employment elsewhere See
Matte) of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B 440
101 2 NATIONAL LABOR RELATIONS BOARD
VIII. THE DETERMINATION OF REPRESENTATIVES
Our findings, in Section III, D, supra, indicate that, while
Local 630 and the Federation lacked proof of a majority, they
did nevertheless represent a substantial number of the respondents'
employees in a unit appropriate for the purposes of collective bar-
gaining at the time of the strike in March 1937. The respondents
on the other hand failed to show that a majority of their, employees
were averse to being represented by Local 630 and the Federation.
The question concerning representation which has arisen can, there-
fore, best be resolved by holding an election by secret ballot.
Since we have found that the respondents have dominated and
interfered with the formation of the League, the petitions submitted
by it as evidence of its representation of a majority of the employees
must be disregarded as not representative of a free choice by the
employees. We shall make'no provision for the designation of the
League on the secret ballot.
An election held prior to such time as the, effects of the respond-
ents' unfair labor practices have been dissipated would not accu-
rately reflect the untrammeled wishes of the employees. We shall,
therefore, direct that an election by secret ballot be held, but we
will not set the date for such election at this time.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CoNOLtsloNS OF LAW
1. Local 630, Amalgamated Meat Cutters and Butcher Workmen of
North America, Detroit and Wayne County Federation of Labor,
and Newton Employees Social League are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. The respondents, by interfering with, restraining, and coercing
their employees in the exercise of the rights guaranteed in Section 7
of the Act, have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
3. The respondents, by dominating and interfering with the presen-
tation to their employees of an Employee Representation Plan, and
by dominating and interfering with the formation and administra-
tion of such Plan as revised and known as Newton Employees Social
League, have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondents have not engaged in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
DECISIONS AND ORDERS 1013
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondents, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
7. All employees of the respondents at their plant at 5075 Four-
teenth Street, Detroit, Michigan, except clerical, office, and super-
visory employees, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) 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
respondents, Swift and Company, Iowa Packing Company, and
Newton Packing Company, together operating a slaughtering and
packing plant at 5075 Fourteenth Street, Detroit, Michigan, and
their officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Newton Employees Social League or with the formation
or administration of any other labor organization of their employees,
and from contributing support thereto;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Newton Employees Social
League as the representative of any of their employees for the pur-
pose of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish said Newton Em-
ployees Social League as such representative;
(b) Upon application, offer fo those employees who went out on
strike on February 26, 1937, ancr thereafter, to and including March
20, 1937, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, in the manner set forth in the section
entitled "Remedy" above, placing those employees for whom em-
ployment is not immediately available upon a preferential list in the
manner set forth in said section, and thereafter, in said manner, offer
them employment as it becomes available;
147841-30-vol 10--65
1014 NATIONAL LABOR RELATIONS BOARD
(c) Make whole the employees ordered to be offered reinstatement
for any loss of pay they will have suffered by reason of the respond-
ents' refusal to reinstate them, upon application , following the issu-
ance of this Order, by payment to them, respectively, of a sum of
money equal to that which each would normally have earned as wages
during the period from five (5 ) days after the date of such application
for reinstatement to the date of the offer of employment , or placement
upon the preferential list required by paragraph (b) above, less his
net earnings , if any, during that period;
(d) Immediately post notices in conspicuous places throughout
their 5075 Fourteenth Street, Detroit, Michigan , plant, and main-
tain such notices for a period of at least sixty ( 60) consecutive days,
stating that the respondents will cease and desist in the manner set
forth in 1 (a) and (b), and that they will take the affirmative action
set forth in 2 (a ), (b), and (c), of this Order;
(e) Notify the Regional Director for the Seventh Region (Detroit,
Michigan) in writing, within ten (10) days from the date of this
Order, what steps the respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the amended com-
plaint, charging the respondents with engaging in unfair labor prac-
tices within the meaning of Section 8 (5) of the Act, be, and they
hereby are , dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Sections 8 and 9, of National
Labor Relations Board Rules ' and Regulations-Series 1, as amended,
it is hereby
DIRECTED that, as part of the investigation directed by the Board
to ascertain representatives for the purposes of collective bargaining
with Swift and Company, Iowa Packing Company, and Newton
Packing Company, together operating a slaughtering and packing
plant at 5075 Fourteenth Street, Detroit, Michigan , an election by
secret ballot shall be conducted at such time as the Board shall in the
future direct, under the direction and supervision of the Regional
Director for the Seventh Region, acting in this matter as agent for
the National Labor Relations Board, among all employees at said
5075 Fourteenth Street plant in Detroit, Michigan, except clerical,
office, and supervisory employees, to determine whether or not they
desire to be represented by Local 630, Amalgamated Meat Cutters
and Butcher Workmen of North America and the Detroit and Wayne
County Federation of Labor for the purposes of collective bargaining.