Swift & Co.

National Labor Relations Board - Board Decisions

Oct 9, 1939

15 N.L.R.B. 992 (N.L.R.B. 1939)

In the Matter of SWIFT & COMPANY and UNITED PACKING HOUSE
WORKERS LOCAL INDUSTRIAL UNION #814
Case No. C-9.3.Decided October '9, 1939
Meat Packing Industry-Interference, Restraint, and Coercion-Company-
Dominated Union: domination of and interference with formation and adminis-
tration ; support ; respondent's expression of preference for an unaffiliated labor
organization after voluntary dissolution of company-dominated plan; circulation
of petitions for, during working hours, with encouragement of foremen and
other supervisory employees ; coercive statements of supervisory employees
against membership in rival labor organization ; dissolved by action of members,
and recognition as collective bargaining agent withdrawn by respondent subse-
quent to 'issuance of complaint but prior to hearing; respondent ordered to
refuse recognition if it should return to active existence-Discrimination: dis-
charge : charges of, not sustained ; dismissed.
Mr. Lee Loevinger, for the Board.
Mr. William N. Strack, of Chicago, Ill., and Mr. D.' L. Grannis,
of South'St. Paul, Minn., for the respondent.
Mr. Ralph L. Helstein, of St. Paul, Minn., for the United.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Packing House Workers Local
Industrial Union #814,1 herein called the United, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Eighteenth Region (Minneapolis, Minnesota), issued a com-
plaint, dated July 5, 1938, against Swift and Company, South St.
Paul, Minnesota, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (2)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act.
IIn the charge, complaint, and other pleadings and papers, the charging union was
designated United Packing House Workers Local Industrial Union 756. By motions allowed
at the hearing, the charge, complaint, and other pleadings and papers were amended to
designate the number of the union as 814.
15 N. L. R. B., No.110.
992
SWIFT & COMPANY 993
The complaint alleged in substance that the respondent, through
its officers and agents, has dominated and interfered with the forma-
tion and administration of the Employees Security Association and
its successor, the Packing House Employees' Union of South St. Paul,
Local No. 1,2 herein called the Association, and has contributed
financial and other support thereto, and has urged, persuaded, and
warned its employees against becoming members of the United, and
has carried on a general course of coercion and intimidation against
its employees who were members of the United.
A copy of the complaint, accompanied by notice of hearing, was
duly served upon the respondent and upon the United on July 6,
1938. The respondent filed a motion to dismiss the complaint, dated
July 7, 1938, which motion was denied by the Regional Director.
Thereafter, the respondent filed its answer, dated July 13, 1938, in
which it denied all the material allegations of the complaint. On
July 18, 1938, the respondent filed motions asking that the charge
and the complaint, respectively, be made more specific, definite, and
certain and that the facts be stated to sustain the conclusions pleaded
therein, on the ground that they failed to state the names of the persons
involved and the time and place of occurrence of the acts alleged to
have been committed by respondent's officers and agents, thereby leav-
ing the respondent without opportunity to prepare its defense for the
hearing. On July 28, 1938, the attorney for the Board filed an answer
to the motion regarding the complaint, in which answer the names of
the respondent's officers and agents who were alleged to have com-
mitted the unfair labor practices and the time and place of occur-
rence were set forth ; at the same time the answer denied that the
original complaint was defective in the respects alleged by the
respondent. This answer was served on the respondent the same day
and the hearing postponed. Under these -circumstances we find that
the respondent was not prejudiced by any lack of specification in the
original charge or complaint.
On August 3, 1938, the respondent filed an amendment to its
original answer, stating that it had been notified by the Association,
that said Association had been dissolved on July 29, 1938, and further
stating that the respondent notified its employees on August 3, 1938,
that the Association was completely disestablished as their represent-
ative for the purposes of collective bargaining.
In the meantime, an amended charge was filed by the United, dated
July 29, 1938, alleging that the respondent had committed an unfair
labor practice, within the meaning of Section 8 (3) of the Act, by
discharging Wallace Donovan on or about November 21, 1937, for the
reason that he was a. member of and active in the United. The
2 Incorrectly designated in the complaint as Employees Packinghouse Union.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board; through its Regional Attorney, thereupon filed a motion to
amend the complaint to include the 'new charge: This motion was
served upon the parties by registered mail, receipts for which show
delivery on August 4, 1938.
Pursuant to notice, a hearing was. held in St. Paul, Minnesota, on
August'8, 9, 10, and 11, 1938, before W. P. Webb, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
United were represented by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses, and to produce evidence
bearing upon the issues was afforded all parties.
At the commencement of the hearing the respondent filed its
written motion to strike the motion to amend the complaint, on: the
ground that it was filed and served on the respondent less than 5
days prior to the opening of the hearing and violates Article II, Sec-
tion 5, of National Labor Relations Board Rules and Regulations-
Series 1, as amended. The Trial Examiner ruled that the motion to
amend the complaint should be granted, but that no evidence on the
alleged unfair labor practice stated in the motion should be heard
before August 10, 1938. In view of the fact that we have found that
the allegation contained in the amendment is not supported by the
evidence,3 it is unnecessary to determine the correctness of the ruling
of the Trial Examiner in this matter.
During the course of the hearing, the Trial Examiner made vari-
ous rulings on other motions and objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Thereafter, the Trial Examiner filed his Intermediate Report, a
copy of which was served upon counsel for the respondent on Sep-
tember 26, 1938, finding that the respondent had committed unfair
labor practices affecting commerce within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7), of the Act, and recom-
mending that the respondent cease and desist from such unfair labor
practices, withdraw all recognition from the Association as the repre-
sentative of its employees for the purposes of collective bargaining,
and take certain other action to remedy the situation brought about
by the unfair labor practices, and further finding that there had
been no discrimination in regard to the hire or tenure of employ-
ment of Wallace Donovan within the meaning of Section 8 (3) of
the Act. Upon request of the respondent, its time for filing excep-
tions to the Intermediate Report was extended to November 21, 1938,
on which- date exceptions were filed. On August 29, 1939, oral
argument on the exceptions and record was had before the Board in
Washington, D. C., by the respondent.
+ See Section III C, infra.
SWIFT & COMPANY 995
The Board has reviewed the exceptions to the Intermediate Report
and, save as consistent with the findings, conclusions, and order,
hereinafter set forth, finds them to be without merit.
Upon the. entire- record in the case, the Board makes the following :
FINDINGS OF FAor
1. THE BUSINESS OF THE RESPONDENT
Swift and .Company is an Illinois corporation with its principal
executive offices at Chicago, Illinois. It operates approximately 35
plants in various parts of the country for the slaughter of livestock
and the processing of meat products and in 1937 was licensed to do
business in 45 • States, including Minnesota. It ranks as one of the
four largest meat-packing companies in the United States.
At its South St. Paul, Minnesota, plant, which is the only plant
ilivolved in the present proceedings, the respondent. is engaged in
the purchase and slaughter of cattle, sheep, and hogs, the processing
of meat and cheese, and also handles butter and eggs. Livestock is
shipped to the South St. Paul stockyards from Wisconsin, North and
South Dakota, Montana, and Minnesota. Most purchases are made
by the respondent from commission men at the yards. During the
fiscal year ending October 30, 1937, the respondent purchased
$38,906,214.42 worth of such livestock, or approximately 96 per cent
of its total purchases, at the South St. Paul yards. Four per cent
of its livestock purchases were made outside the State of Minnesota.
Other supplies, such as boxes, barrels, sugar, salt, and spices, amount-
ing to $1,450,084, were purchased during the same fiscal year;
$565,762 worth of such supplies were bought in Minnesota, and
$884,322 worth outside the State. Sales of products produced at the
South St. Paul plant in that year amounted to $51,570,360. Ap-
proximately 11 per cent of these sales were distributed within Minne-
sota; the balance elsewhere, chiefly in Wisconsin, Illinois,. Iowa,
Montana, North and South Dakota.
The respondent normally employs approximately 2,800 persons at
its South St. Paul plant, of whom about 300 are in the office and
sales forces.
II. THE LABOR ORGANIZATIONS INVOLVED
United Packing House Workers Local Industrial Union $k814 is
a labor organization affiliated with the Congress of Industrial
Organizations.
Employees Security Association and its successor, Packing House
Employees' Union of South St. Paul, Local No. 1, are unaffiliated
labor organizations admitting to membership employees of-the`re-
spondent at its South St. Paul plant.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR . PRACTICES
A. The employee-representation plan
For at least 15 years prior to April 1937 there had been in opera-
tion at the South St. Paul plant of the respondent an employee-
representation plan known as the Assembly Plan. The Assembly
was composed of 15 persons appointed by the management to repre-
sent the interests of the respondent and 15 representatives elected
by the hourly paid employees. These 30 representatives chose one
of their number as chairman, usually one of the persons appointed
to the Assembly by the respondent. The Assembly handled griev-
ances of the hourly paid employees. The management of the re-
spondent participated actively in the operation of this Plan. Mem-
bers of the Assembly. were customarily notified by the respondent's
employment manager that meetings were to take place. Meetings
,were held in the assembly room of the respondent's general office and,
on occasion, during working hours. On April 21, 1937, the re-
spondent dissolved the Assembly Plan.
The complaint does not allege that the respondent engaged in an
unfair labor practice within the meaning of the Act by dominating
or interfering with the Assembly, and we make no finding to that
effect. However, the sponsorship of and participation in the As-
sembly Plan by the respondent for some years prior to April 1937
reveal the respondent's course of conduct up to the time of the events
alleged by the complaint to be unfair labor practices, and supply
.a background against which these subsequent events can be more
accurately evaluated.4
B. Interference with, and domination and support of, Employees
Security Association
At a meeting of the Assembly on April 21, 1937, the representa-
tives were informed of the dissolution of the Plan by the respondent.
A statement was read to the assembled representatives which had
been sent from the Chicago office of the respondent' for that purpose.
The statement, which was also posted by the respondent on the bul-
letin boards of the South St. Paul plant, follows herewith :
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 continue
the present Representation Plan.
"See National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., and
Greyhound Management Company, 303 U. S. 261.
SWIFT & COMPANY 997
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 partici-
pation in elections 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
company 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.
After the reading of the statement, C. A. Cushman, the general
manager of the South St. Paul plant, -made a talk in which he
lauded the Assembly Plan and went on to tell the Assembly that the
employees now had the choice of organizing an independent union of
their own or affiliating with a national organization, and that they
were privileged to do as they liked. He added that personally he
preferred to talk directly to the employees. George Evasku, one
of the witnesses, stated at the hearing that Cushman also said in this
connection that he would rather deal with the employees because
"you get an outsider down here and you know what happens . . .
there is usually a fight." Cushman's own version of his talk does not
include the quoted remarks, but he did not specifically deny them
and admitted that he spoke extemporaneously to the Assembly. We
find that Cushman made the remarks attributed to him by the wit-
ness Evasku. Superintendent McDonald of the plant also spoke,
telling the representatives that he felt it would be much better to
deal with "their own employees." Thereupon, the 15 representatives
of the management and Cushman and McDonald withdrew from the
meeting, leaving the 15 employee representatives to decide what
action to take. They elected temporary officers, decided to form an
unaffiliated union, and went from the respondent's assembly room to
their own meeting room "across the tracks," which is apparently off
the respondent's premises. They sent for Superintendent McDonald
with whom they discussed the question of what lawyer to employ to
assist them in forming an organization. The respondent's lawyer
was mentioned and rejected, whereupon McDonald said: "Well, you
fellows haven't got any particular person in mind. I have the name
199549-39-vol. 15-64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this fellow Green . . . he was the attorney for the Cudahy boys
and he is supposed to be pretty well versed on this labor question,
so I guess he can take care of you boys." McDonald had Green's
name already written down and drew it from his pocket and threw
it on the desk as he spoke.5 A committee was named to go to see
Green at once. They met him that afternoon at a room in the Lowry
Hotel in St. Paul where he was in conference with some of the
Cudahy employees. He drew up a petition designating 15 employees,
14 of whom had been representatives under the Assembly Plan, as
temporary representatives for the purposes of collective bargaining
and urged haste in securing the signatures. The 15 representatives
went off the respondent's pay roll at noon of the day the Assembly
Plan was dissolved, • which was Wednesday, April 21, and remained
off the pay roll the rest of that week. Their time was devoted to
soliciting signatures to the petition which designated a temporary
bargaining committee and also stated the desire. of the employees to
join the proposed independent union.
While the committee was circulating petitions, it also issued hand-
bills announcing a mass meeting to be held on April 27, 1937, at the
Horse Barn,6 for the purpose of organizing the unaffiliated Associa-
tion. At this mass meeting Attorney Green read a letter from C. A.
Cushman, general manager of the South St. Paul plant, in reply to
one from the committee of 15. The committee's letter bore the date
April 26, 1937, and requested recognition as bargaining agent for the
employees and offered to submit signatures to show that 51 per cent
had agreed to join the proposed Association. The testimony at the
hearing shows that Attorney Green and several of the committee
called on Cushman for a written statement either shortly before the
commencement of the mass meeting or during the first half hour of
the meeting. Cushman gave them a reply to their letter of the 26th
in which he stated that an examination of the petition 7 showed that
more than 51 per cent of the eligible employees had signified their
intention of joining the Association. He further stated that the
respondent would negotiate with representatives of the Association.
The bylaws of the Association, which had been drafted by Green on
6 This incident occurred on April 21, 1937. See Matter of The Cudahy Packing Company
and Packinghouse Workers Local Industrial Union. No . 62, affiliated with the Committee for
Industrial Organization , 5 N. L. R . B., 472, modified and armed in Cudahy Packing Co. v.
National LaboN Relations Board , 102 P. ( 2d) 745 ( C. C. A. 8th, 1939 ), in which the
"independent" union which Attorney Green assisted in organizing for Cudahy employees
at St . Paul after consultation on April 17, 1937, was disestablished as company dominated,
in part because Green was also an attorney for the Cudahy Company.
U A building in the stockyard area but not on the respondent 's property.
7 The record does not disclose in what manner the petition was submitted to the re-
spondent or how long it was in the respondent 's possession , but Cushman testified that
he instructed Superintendent McDonald to have his timekeeper check the signatures and
was advised they had been checked.
SWIFT .C COMPANY 999
the instructions of the committee of 15, were then read, and Green
-urged the employees to support the proposed Association.8 Only
one employee at this meeting opposed organization of the unaffiliated
Association and urged outside affiliation. At a meeting in Croatian
Hall about a week later officers of the Association were elected. Of
15 trustees elected, 13 had been representatives under the Assembly
Plan. Walter Starzmann was'elected president but resigned within
a few months, following accusations that he was too friendly with
the management. Starzmann was succeeded by John Larkin. In
December 1937 Sam Reyer had a conversation with Larkin during
which Larkin inquired where support for the local C. I. O. activities
came from. After giving him the information Reyer said to Larkin :
"Now, will you tell me in your own words a statement of where
you are getting your support from?" Larkin replied: "Swift and
Company and none other." This statement was undenied at the
hearing, and we find that it was made by Larkin with reference
to the Association. In the spring of 1938 the Association changed
its name to Packing House Employees Union of South St. Paul,
Local No. 1. On July 29, 1938, after the complaint was issued in
this proceeding, tlie, trustees of the Association took action to dissolve
and notified the respondent that it no longer claimed to be the repre-
sentative of the employees of the South St. Paul plant. On August
3, 1938, the respondent posted notices stating that it had been notified
of the dissolution of the Association and accordingly had withdrawn
all recognition from said Association * and further stating that the
Association was completely disestablished as such representative.
During the period when the Association was being organized the
solicitation of signatures took place on the premises of the re-
spondent, both in the dressing rooms and on the floors of the plant,
during working hours. George Evasku, one of the 15 employee
representatives under the Assembly Plan, testified that he solicited
memberships in the dressing room of the plant during working hours
for several days after April 21, 1937. 'Blanche Dols, an employee
of the respondent, stated that on or about April 23, 1937, member-
ships in the Association were solicited by Archie Saunders during
working hours in the sausage-chopping department in the presence
of Joe Kalish, a supervisory employee. The witness testified that
Kalish inquired of Saunders "whether he had been down to sign the
night gang yet." This testimony stands undenied. We 'find that
these incidents occurred as described by the witness. An employee
of the icing department was asked sometime between April 21 and
8 Green told the employees that he thought it better, for them "to play ball with the
company and organize an independent union rather than to affiliate . . . with any
outside union . . . Swift has always treated you boys pretty nice, and if you have no
objection at this time to the way you' are treated . ... give them the benefit of the
doubt"
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25, .1937, to sign the petition for membership in the Association.
The solicitor, Art Ziehl, took this witness, Eugene Corcoran, into
the foreman's office and talked to him there about signing the peti-
tion. Present in the foreman's office at the time was Elmer Johnson,,
an assistant foreman. Corcoran also testified that sometime later,,
A. R. Sedarstrom; the foreman of his department, brought to his.
office a weekly paid employee a named Beedle, who talked to the
icing-department employees in favor of the Association during the
lunch hour. Although Sedarstrom denies that he brought Beedle.
in, he admits that he was present when the speech was made in his,
office, where the employees were accustomed to gather at the noon
hour. From an examination of all the testimony we do not believe
that Sedarstrom brought Beedle in, but we find that he allowed his;
office to be used for the speech urging membership in the Association:
and remained to listen to it. Peter Dame, an employee in the beef-
kill department, testified that just after the Assembly Plan was:
disestablished, Art Stice, a strawboss and relief man, called him
off the floor to meet an employee, Roy Olson, who was signing-up,
members for the Association. The witness says he was off the floor
for about 15 minutes without loss of pay. Dame states that nearly
every employee on the floor was called out in the same manner and
his work taken over by Art Stice while he was gone. We find that
Dame and other employees were called off the floor of the beef-kill
department during working hours for the purpose of being solicited
.for membership in the Association. Several other witnesses told of
solicitation in the plant during working hours by the representa-
tives interested in organizing the Association.
Not only did the foremen and supervisory employees tolerate the
solicitation of memberships for the Association in their departments
during working hours, but in various ways they took a more active
part. About the time the Assembly Plan was dissolved and the
campaign for organizing an unaffiliated Association was launched,
the United, a C. I. O. affiliate, began a drive for members among the
employees of the respondent's South St. Paul plant. During June
1937, John Ketter, an inspector, acted as assistant foreman in the
beef-casing department while the regular assistant foreman was on
vacation. Ketter questioned the employees under him about what
they would gain by belonging to the C. I. 0., and encouraged them
to join the Association. In July 1937 he is quoted as saying to
employees in the beef-casing department, and we find that he said,
that the respondent would hire women in their places "if they didn't
come down to earth and not be so radical.". Objections to the
United increased during the summer of 1937. On September 27,
9In the Assembly Plan; representatives of the management had been chosen from the
weekly paid employees.
SWIFT & COMPANY 1001
1937, occurred one of the major incidents involving such objections.
It is described in a memorandum by Casper Merle and William P.
;Sebert, employees of the respondent, made the day of the occurrence
and placed in the record at the hearing, and also testified to by
Merle at the hearing. On the day in question Casper Merle and
William P. Sebert were working in the beef-offal department.
About 2 p. in. Superintendent McDonald and the superintendent of
the casing department came into the beef-offal 'department, stood
for a time in front of the bench where Merle and Sebert were
working, and then went into the foreman's office. About 20 minutes
later Richard Deering, foreman of the beef-offal department, came
over to Merle and Sebert and said : "I hear you've got C. I. O.
buttons in your caps, and someone has told McDonald that you're
cornering all the new men that come up here and talking C. I. O.
to them. You fellows better take it easy because if I get orders I'll
have to lay you off." In October or November 1937, E. M. Bedore,
general foreman in charge -of several departments, visited the beef-
offal department.' Afterward, according to Merle, Foreman Deering
came over and said : "He told me this morning to put some heat on
you fellows." Thereafter, Bedore and others watched his work
much more frequently. Deering denied making any of these state-
ments. However, in view of the fact that a memorandum was made
of the first incident on the day it occurred we are inclined to doubt
the accuracy of Deering's denial a year later when the incident was
called to his attention. Also, the fact that Superintendent McDon-
ald told Deering 15 or 20 times not to have any arguments about
unions, but to "just keep still," indicates that Deering talked about
unions to employees in his department to the knowledge of the re-
spondent: Therefore, despite Deering's denial, we find that the inci-
dents related by Merle and Sebert in their memorandum and by
Merle on the witness stand occurred as set forth above.
The activities of George Karnstadt, a general foreman, were testi-
fied to at some length. George Hornerbrink, an employee in the
beef-cutting department, testified that on one occasion - in 1937 he
was displaying a C. I. O. button on his work cap. Karnstadt came
up while he was working and told him to take off his cap and get a
new one, and that when he got a new one to put a brown button on it.
Hornerbrink explained that the C. I. O. buttons were white and the
Association's buttons brown at that time. On another occasion, prob-
ably in September 1937, the witness stated that Karnstadt referred
to his C. I. O. button and said : "Better take it off . . . You are a
pretty good sticker, a pretty good sticker for the C. I. 0." In the
spring of 1938 Karnstadt again remarked to Hornerbrink, who was.
wearing his C. I. O. button, "I see you are still sticking to them."
Sam Reyer also testified that when he went into Karnstadt's office in
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 1937 wearing a C. I. O. button Karnstadt said : ". . . take off
that button and put on a brown one." The witness stated the button
of the Association was brown at the time. Karnstadt explained at
the hearing that he told Hornerbrink to put on a new cap because his
old one was dirty, and denied the other statements attributed to him.
However, the testimony of Hornerbrink and Reyer bears striking
similarity and Hornerbrink remembers three distinct occasions on
which more or less veiled references and objections were made to the
fact that he was wearing his C. I. O. button. In view of these factors
we do not believe Karnstadt's denial is entitled to great weight, and
we therefore find the above testimony of Hornerbrink and Reyer to
be true.
One other instance will serve to indicate the character of the op-
position to the C. I. O. expressed by the supervisory employees of
the respondent. William Portz, an employee in the pork-cutting de-
partment, testified.- that he first displayed his C. I. O. button on
April 27, 1938. Portz says that Al LaHue, his foreman, said to him
on that occasion: "Since when are you fighting me, Bill?" Portz
replied : "I don't think I am fighting you." To which LaHue said :
"You are by putting that button on." Portz says LaHue earlier had
warned him that he could get himself in trouble by signing a C. I. O.
pledge card. LaHue denies that he made the statements Portz at-
tributes to him. However, he admits giving Portz some advice about
unions approximately 5 years ago, but says he had not talked about
unions to anyone since the Wagner Act was held constitutional and
the Assembly Plan dissolved. While the testimony of Portz and
LaHue is in direct conflict, the fact that LaHue admitted having
previously advised Portz concerning unions coupled with the fact
that the Trial Examiner, who had opportunity to hear and observe
the witnesses, found that LaHue made -the statements attribued to
him by Portz lead us to the same conclusion. We find that LaHue
made the statements as set forth.
The evidence shows that solicitation of memberships in the Associa-
tion continued on the property of the respondent during working
hours in the spring of 1938. News sheets published by the Associa-
tion were distributed on the floors of the various departments during
working hours. Memberships were solicited and dues collected for
the Association in the dressing rooms of the plant up to the time of-its
dissolution.
The respondent contended that it should not be found to have com-
mitted unfair labor practices within the meaning of Section 8 (1) and
(2) because it had instructed its foremen and other supervisory em-
ployees neither to encourage nor discourage the employees in the
matter of joining any labor organization, and that there was to be no
soliciting of memberships by union representatives at the plant dur-
SWIFT &. COMPANY 1003
ing working hours. However, no effective means were adopted by
the 'respondent to check the activities in. the plant on behalf. of the
Association. There is no evidence that any official of the respondent
made any effort to halt the solicitation which went on in the plant
during working hours. In fact, the weight of the evidence points
to its encouragement by the management. No effort was made by the
respondent to disavow any of the acts of its supervisory employees
expressing favor of the Association and disfavor of the United.
Even though the respondent did instruct its foremen and supervisors
not to interfere in any way with the employees' choice of labor
organizations, the employees were not notified of this attitude, at
least not prior to July 1938. Even then there was no express dis-
avowal by the respondent of responsibility for such conduct on the
part of supervisory employees. Under these circumstances, the acts
of foremen. and other supervisory employees are the acts of the
respondent.'°
Upon all the evidence we are satisfied that the respondent embarked
on a course of action designed to produce an unaffiliated organization
of its employees as amenable to its will as the old Assembly Plan
which it had been compelled to abandon. The tenor of the notice
read to the Assembly and posted on the bulletin boards, dissolving
the Assembly Plan, is well calculated to inspire an "inside" organiza-
tion.,, The remarks of Cushman and McDonald revealed the pref-
erence of the respondent. Then the management representatives
withdrew, leaving the hourly paid representatives with the impres-
sion that they were entitled to and were expected to take at once
some action with respect to a successor organization. That the
invitation to form an inside union was clear and that the suggestions
made by representatives of the respondent at the dissolution meeting
were forcefully presented is evidenced by the quick response. The
management representatives withdrew from the Assembly at 11
o'clock or soon thereafter. By early afternoon the employee repre-
sentatives had conferred with Attorney Green, selected upon the
advice of Superintendent McDonald'12 and were making ready to se-
cure signatures for support of all unaffiliated organization. Thus, the
10 See Matter of Swift d 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, 284.
11 See Matter of Swift d 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 Matter of Swift d Company and United
Automobile Workers of America, Local No. 265, 7 N. L. R. B. 287; Matter of Swift and
Company, a corporation and Local No. 5.40, United Packing House Workers Industrial
Union, affiliated with the Committee for Industrial Organization, 11 N. L. R. B. 809. In
all of these cases the same statement was read to employee representatives.
12 See Matter of Swift and Company, Iowa Packing Company, and Newton Packing
Company, eorporatiQns and Local 630, Amalgamated Meat Cutters and Butcher Workmen
of North America and Detroit and Wayne County Federation of Labor, 10 N. L. R. B.
991, 1003.
c
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign was launched at once before the whole body of employees
had opportunity to deliberate and to choose their own course of
action. Between Thursday, April 22, and Monday, April 26, more
than 51 per cent of the 2;500 employees were recruited to the As-
sociation. There was widespread solicitation of the memberships to
the Association in the plant during working hours in the presence of
supervisory employees of the respondent. Employees were relieved
from their work by a strawboss to give Association representatives
opportunity to interview them. Certain foremen and other super-
visors talked to the employees in favor of the Association and
expressed their opposition to the United. At least one foreman's
office was used for solicitation of members and for a speech in behalf
of the Association.
In our opinion the facts just recited show that the respondent
assisted in the formation and administration of the Association.
This-view is corroborated by several additional incidents. One of
the most significant is the haste of the respondent to recognize the
Association as the representative of the employees. On April 27,
1937, just 6 days after the dissolution of the Assembly Plan, the letter
from the respondent agreding to negotiate was read to the first mass
meeting of employees-even before the Association had actually been
organized. The letter stated that. more than 51 per cent of the
eligible employees had signified their intention of joining the pro-
posed Association and closed by declaring : "We agree that we will
be very glad to negotiate with your properly appointed committees
in accordance with the terms of the National Labor Relations Act."
A statement of this character read to the first gathering of employees
after abandonment of the Assembly Plan undoubtedly lent strong
support to the formation of the Association and correspondingly
discouraged any movement of employees to signify affiliation with an
outside organization. Another . incident of peculiar significance is
the statement of John Larkin, president of the Association, that sup-
port for the Association came from "Swift and Company and none
other." 13 It may be noted, also, that the same pattern of procedure
was followed by the respondent at its plants in Denver, Colorado,
Evansville, Indiana, and National City, Illinois, where employee
representation plans were dissolved with like results.14 It seems to
us more than a coincidence that from several of such meetings came
the organization of "inside" unions which received the quick
recognition of the respondent.
18 See Cudahy Packing Co . v. National Labor Relations Board, 102 F. (2d) 745 (C. C. A.
8th, 1939 ), modifying and affirming Matter of The Cudahy Packing Co . and Packinghouse
Workers Local Industrial Union No. 62, affiliated with the Committee for Industrial Organ-
ization, 5 N. L. R. B. 472, where the evidence showed that an officer of the union alleged
to be company dominated made similar admissions.
11 See cases cited supra, footnote 11.
SWIFT & COMPANY 1005
We, find that the respondent has dominated and interfered with
the formation and administration of the Association , and has con-
tributed support to it; that by its aforesaid acts, the respondent has
interfered with, restrained , and coerced its employees in the exercise
of their rights guaranteed by Section 7 of the Act.
C. The discharge of Wallace Donovan
The complaint , as amended , alleges that the respondent had en-
gaged in unfair labor practices within the meaning of Section 8 (3)
by discharging Wallace Donovan on or. about November 27, 1937,
and by refusing at all times since that date to reinstate him to his
former position without loss of seniority and other rights, because
of his membership in and assistance to the United. The Trial
Examiner in his Intermediate Report found that the evidence did
not sustain the allegation and that Donovan was not discharged
for union activities ; but was laid off for other reasons . The United
has filed no exception to this finding and did not appear at the oral
argument . We have examined the evidence and we agree with the
Trial Examiner in his finding as to Donovan.
We find that the evidence does not sustain the allegation that the
respondent discharged and refused to reinstate Wallace Donovan
because of his membership in or assistance to any labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A and B above, occurring in connection with the operations of
the respondent described in Section I above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
The respondent contends that the issue concerning its domination
and support of the Association is moot for the reason that the As-
sociation was voluntarily dissolved by its members on July 29, 1938,
and upon notification of such dissolution the respondent on August
3, 1938, posted notices ' stating that it had withdrawn recognition
from the Association and that it was entirely disestablished as the
bargaining agent of the employees. The dissolution and disestab-
lishment occurred after the charges were filed and the complaint
issued in this proceeding , but before the hearing took place.
The voluntary dissolution of the Association has no effect upon
the'respondent 's commission of unfair labor practices by its domina-
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, interference, and support of the Association. The fact that the
Association is no longer in existence is relevant only to the question
of whether the respondent should . be ordered to disestablish the
organization.' To-effectuate the policies of the Act we shall, there-
fore, order the respondent to cease and desist from such unfair labor
practices, and to refuse to give the Association any recognition as
a collective bargaining agency, if it should ever return to active
existence.'5
We shall dismiss that portion of the amended complaint alleging
discrimination in the hire and tenure of employment of Wallace
Donovan, inasmuch as we have found the evidence does not support
the charge.
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. United Packing House Workers Local Industrial Union $814,
is a labor organization within the meaning of Section 2 (5) of the
Act.
2. Employees Security Association and its successor, Packing
House Employees' Union of South St. Paul, Local No. 1, are labor
organizations within the meaning of Section 2 (5) of the Act.
3. The respondent, by dominating and interfering with the
formation and administration of Employees Security Association
and its successor, Packing House Employees' Union of South St.
Paul, Local No. 1, and by contributing support to said organizations,
has engaged in unfair labor practices within the meaning of
Section 8 (2) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. By its lay-off of Wallace Donovan in November 1937 and failure
to rehire him prior to July 15, 1938, the respondent has not engaged
in unfair labor practices within the meaning of Section 8 (3) of
the Act.
"That the case is not moot and that the Board is entitled to enter its order under the
circumstances see Consolidated Edison Company of New York, Inc., and its affiliated
Companies V. National Labor Relations Board, 305 U. S. 197 ( 1938 ) ; Federal Trade Com-
mission v. Goodyear Tire & Rubber Co., 304 U. S. 257, 261 (1937 ) ; Guarantee Veterinary
Co. v. Federal Trade Commission , 285 Fed . 853, 859; Matter of Swift and Company, a
corporation and Local No. 530, United. Packing House Workers Industrial Union, affiliated
with the Committee for Industrial Organization, 11 N. L . R. B. 809.
SWIFT A,- COMPANY 1007'
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions 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 ad-
mninistration of Employees Security Association or its successor,
Packing House Employees ' Union of South St. Paul , Local No. 1, or
with the formation or administration of any other labor organization
of its employees , and from contributing support to Employees Se-
,curity Association or its successor , Packing House Employees' Union
of South St. Paul, Local No. 1, 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 Employees Security Association or
its successor , Packing House Employees ' Union of South St. Paul,
Local No. 1, if it should ever return to active existence , as a repre-
sentative of any of its employees for the purposes of dealing with it
with respect to grievances , labor disputes ; wages, rates of pay, hours
,of employment , or other conditions of employment;
(b) Post immediately , and keep posted for a period of at least
-sixty (60 ) consecutive days ' from the date of posting, notices stating
that the respondent 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 Eighteenth . Region, in
writing, within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith.
AcD IT is FIIRTHER ORDERED that the amended complaint, in so far
as it alleges the respondent has engaged in unfair labor practices,
within the meaning of Section 8 ( 3) of the Act, by discharging
Wallace Donovan and refusing to reinstate him to his former position
without loss of seniority and other rights, be, and the same hereby is,
dismissed.