Swift & Co.

National Labor Relations Board - Board Decisions

Mar 25, 1941

30 N.L.R.B. 550 (N.L.R.B. 1941)

I
In the Matter of SWIFT & COMPANY and AMALGAMATED MEAT CUT-
TERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 172,.
AFFILIATED- WITI-I THE AMERICAN FEDERATION OF LABOR
Cases Nos. 0-1643 and R-1700.-Decided March 25, 1941
Jurisdiction : butter and cheese manufacturing, poultry processing, grading and
sorting eggs and wool industry.
Unfair Labor Practices -
In General: employer responsible for activities of its supervisory employees not-
withstanding their eligibility to membership in outside organization.
Company-Dominated Union: formation of following appearance of outside organ-
Ization-participation by representatives of management in initiation and for-
mation : promoting and assisting in the establishment of ; soliciting member-
ship in, on employer's time and property ; arranging and soliciting attendance at
meetings-interference constituting acts of domination : anti-union statements ;
refusing to employ former employee and discharging another employee because-
of,their failure and refusal to join inside organization ; interrogating employees
about their activities in outside organization ; disparaging outside organization
and its activities; declarations of union preference : threatening employees with
-termination of employment because of membership or activity, in outside or-
ganization : fostering a belief that collective bargaining was being conducted
with inside organization and that a closed-shop contract would be granted it
while,threatening to close plant.in the event outside organization was selected'
as the statutory representative.
Discrimination: refusal to employ a former employee and discharging and refus-
ing to reinstate another employee because of their failure and refusal to join
inside organization ; charges of, dismissed as to four employees.
Collective Bargaining: charges of, dismissed. -
Remedial Orders : disestablishment of company-dominated union : reinstatement
and back pay : as to employee whom Trial Examiner failed to find that her dis-
charge was discriminatory back pay order not to include period between Inter-
mediate Report and date of Order
Investigation and Certification of Representatives: existence of question: re-
fusal to accord union recognition ; election necessary, to be held at such time as
the Board shall in the future direct.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees, excluding foremen, supervisory employees, office and clerical em-
ployees, and truck drivers who drive trucks more than 50 per cent of the time.
Practice and Procedure
Petition of employer to reopen the record to take evidence relating to rein-
statement subsequent to hearing of employee discriminated against denied,
foi•-the Board-cannot,;-as a matter of sound practice, reopen the record to
receive further evidence upon the constantly changing details relating to.
compliance with the Trial Examiner's reecmmendations or to compliance-
with or performance of the Board's order.
30 N. L R B, No 86.
550
SWIFT & COMPANY 551
Mr. Joseph A. Hoskins, for the Board.
Mr. William N. Strack and Mr. J. W. Blades, both of Chicago, Ill..
-for the respondent.
Mr, Lester Pettigrew, of Springfield, Mo., for the Independent.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 10, 1939, Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 172, herein called the Amalgamated,
filed a charge with the Regional Director for the Seventeenth Region
(Kansas City, Missouri), and on August 11, October 6, and- December
18, 1939, filed amended charges,' alleging that Swift & Company,,
Springfield, Missouri, herein called the respondent, had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.
On dune 6, 1939, the Amalgamated filed with the Regional Director
a petition, and on December 18, 1939, an amended petition, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of the respondent and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c)
of the Act. On October 14, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, Article III, Section 10 (c) (2), and Article
IT, Section 36 (b), of National Labor Relations Board- Rules and
Regulations-Series'2, ordered an investigation and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and further ordered that for the purposes
of hearing the two cases be consolidated and that one record of the
hearing be made.
Thereafter, upon the charge and amended charges filed, the Board,
by the Regional Director, issued its'complaint, dated December 22,
1939, against the respondent, alleging that the respondent had en-
gaged "in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), (3), and (5) and
Section 2 (6) and (7) of the Act. A copy of the complaint and the
amended petition, accompanied by notice of hearing and the third
1 This is the correct name of the respondent . It is at times referred to in the record as
"Swift and Company "
'552 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD '
amended charge, was duly served upon the respondent, upon the
Amalgamated, and upon Dairy and Produce Handlers' Union, herein
called the Independent, a labor organization in respect of whom
charges were filed. On January 6, 1940, the respondent filed its
answer to the complaint. At the hearing the complaint and4 the
answer were duly amended.
The complaint, as amended, alleged in substance (1) that on-or
about April 29, 1939, -and thereafter, the respondent formed, dom-
inated, and interfered with the formation and administration of, and
.contributed financial and other support to,, the Independent; (2) that
the respondent dismissed Ruth Hamman on or about July 26, 1939,
Elnora Tippitt on or about June 12, 1939, Glen B. Smith on or about,
June 17, 1939, Everett Painter on or about November 8, 1939, and
H. Owen Searles on or about October 13, 1939, because of their mem-
bership in and activities in behalf of the Amalgamated and because
they refused to join the Independent, and refused and refuses to
reinstate them in its employ, thereby discrimin"ling in regard to
their hire and tenure of employment; (3) that tha respondent on or,
about May 5, 1939, offered to reinstate Rosemary Rogers, a laid-off
employee, but withdrew said offer before she began to work and there-
after refused to reinstate her because of her membership in the Amal-
gamated and because she failed and refused to join the Independent,
thereby discriminating in regard to her hire and tenure of employ-
ment; (4) that on or about June 3, 1939, and thereafter, the respond-
ent refused to bargain collectively with the Amalgamated, although
prior to said date and thereafter, the Amalgamated was the exclusive
collective bargaining representative of the respondent's employees,
within an appropriate collective bargaining unit composed of all
production and maintenance employees at the Springfield, plant, ex-
cluding foremen, supervisory employees, office and clerical employees,
and truck drivers; and (5) that by the foregoing acts, and by other
acts the respondent interfered with, restrained, and coerced, and is
now interfering with, restraining, and coercing its employees in the
exercise. of the rights guaranteed in Section 7 of the Act. In its
answer, as amended, the respondent denied that it had engaged in
unfair labor, practices as alleged in the complaint and raised certain
affirmative defenses. '
Pursuant to notice, a hearing was held at Springfield, Missouri, on
January 11, 12, 13, 18, 19, 20, 22, 23, 24, and 26, 1940, before William
P. Webb, the Trial Examiner duly designated by the Board. The
Board, the respondent,, and the Independent were represented by
counsel or by a representative and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and,
to introduce evidence bearing on the issues was afforded all,parties.
SWIFT & COMPANY 553 ,
The Trial Examiner granted motions by the Board's counsel to dis-
miss without prejudice the allegations of the complaint in so far as
they related to Smith,2 and to conform the pleadings to the proof in
respect to formal matters . He reserved ruling on the respondent's,
motions, as renewed, to dismiss the complaint , as amended , and va-
iious portions thereof for want of sufficient proof to sustain the alle-
gations , and denied these motions in his Intermediate Report, men-
tioned below . The Trial Examiner made various rulings on other
motions and on objections to the admission of evidence . The Board
has reviewed the rulings of the Trial Examiner and finds that no,
prejudicial errors were committed. The rulings are hereby affirmed.
On July 20, 1940, the Trial Examiner filed. an Intermediate Re-
port and on July 23 an amendment to the Intermediate Report, copies,
of which were duly served upon all parties. In the Intermediate
Report, as amended, the Trial Examiner found that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 ( 1), (2), and (3) and
Section 2 ( 6) and (7) of the Act. He recommended that the respond-
ent cease and desist from such practices and that it take appropriate
affirmative action. He further recommended that the complaint be
dismissed in so far `as it alleged that the respondent had discriminated
against Hamman, Tippitt, Painter, and Searles, within the meaning-
of Section 8 (3) of the Act, and that the respondent refused to
bargain collectively with the Amalgamated, within the meaning of'
Section 8 (5)- of the Act.
Thereafter the respondent filed exceptions to the Intermediate-
Report and the record , submitted a brief in support of its excep-
tions, and requested oral argument before the Board. The Amal-
gamated also filed exceptions to the Intermediate Report and the-
record, in which it objected solely to the Trial Examiner 's finding
that the ,respondent had not.discriniinated in regard to the hire and
tenure of employment of Hamman , Tippitt, Painter , and Searles,.
as alleged in the complaint.
Pursuant to notice , a hearing for the purpose of presenting oral
argument was held before the Board at Washington, D. C., on No-
vember 26 , 1940. The respondent was represented by counsel and'
participated in.the argument.
On December 28, 1940, the respondent lodged with the Board a.
document entitled "Petition for Reopening and Rehearing," 'which
the Board hereby directs be filed instanter as part of the record'
herein. Therein the respondent ' represented in substance that on,
August 8, 1940 , subsequent to the hearing , it employed Rosemary
Rogers in the position which it had open for her on May 4 and 5,,
2 No evidence relating to Smith was introduced at-the hearing
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1939, and that it discharged Rogers for cause on September 12, 1940;
and requested that the Board reopen the record in so far as it relates
to Rogers and receive further evidence regarding the foregoing rep-
resentations. The Board cannot, as a matter of sound practice, re-
'open the record to receive further evidence upon the constantly
changing details relating to compliance with the Trial Examiner's
recommendations or to compliance with or - performance of the
Board's order.3 Accordingly, we hereby deny the request to reopen
the record and receive further evidence. However, our order shall
not be construed to require the respondent to take any affirmative
action which it has already taken and which is in compliance with
the terms of our order.
The Board has considered the exceptions and brief and, save in so
far as the exceptions are consistent with the findings, conclusions of
law, and order below, finds-them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Swift & Company, an Illinois corporation with its main executive
offices at Chicago, Illinois, is engaged, on a Nation-wide basis, in the
business of purchasing and slaughtering livestock, marketing the
products and byproducts thereof,'- and purchasing, processing, and
marketing of poultry, dairy, and other food products. Its operating
facilities in the United States include approximately 25 packing
plants and 110 produce plants. The respondent employs over 60,000
persons in the United States and foreign countries. During the
fiscal year ending October 28, 1939, the respondent's gross sales ex-
ceeded $750,000,000.
This proceeding is concerned only with the plant of the respond-
ent located at Springfield, Missouri, herein- called.,the Springfield
plant. ,, There the respondent processes poultry, grades and sorts eggs
and wool, and manufactures butter and cheese. In connection with
the purchase and delivery to the Springfield plant of poultry, eggs,
cream, and wool from dealers and farmers, the respondent owns and
operates trucks, two of which are assigned to regular routes in Ar-
kansas, where the respondent maintains two supply depots.
During the fiscal year ending October 31, 1939, the respondent
purchased $850,495 worth of materials and supplies for use at the
3 Cf. Matter of Republic Steel Corporation and Steel Workers Organizing Coinmittee, 9
N. L. R. B. 219, enf' d as mod. Republic Steel Corpo, ation et at v. National Labor Relations
Board , et at., 107 F. (2d) 472 (C. C A 3), mod. 311 U. S 7, Matter of Viking Puonp Com-
pany and Lodge 1683, Amalgamated Association of Iron, Steel, and Tin Workers of North
America , etc, 13 N. L R B. 576, enf 'd National Labor Relations Boa,d v. Viking Pump
Company, 113 F (2d) 759 (C. C. A. 8).
SWIFT & COMPANY 555
Springfield 1^lant, of which approximately $196,137 worth, repre-
senting 23 per cent of the total, were purchased outside of Missouri
and shipped to the Springfield plant. During the same period the
total sales of the respondent 's finished products at the Springfield
plant amounted to $931,974, of which $833,761 worth, representing
89 per cent of the total , were shipped to points outside the State of
Missouri . The average number of employees in the Springfield plant
during 1939 was 66.
II. THE ORGA\IZATIONS IN}•'OLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 172, is a labor organization affiliated with American
Federation of Labor, a labor organization, admitting toy membership
production and maintenance employees of the respondent at its
Springfield plant. Its nielpbership is not confined to employees of
the- respondent, but includes employees in plants similar to the re-
spondent's plant in Springfield, Missouri.
Dairy and Produce Handlers' Union is a labor organization un-
affiliated with any national or other labor organization, admitting to
membership production and maintenance employees of the respond-
ent at its Springfield plant.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with, the formation and admin-
istration of, and snnpport to the Independent; and attendant inter-
ference, restraint, and coercion
On about January 20, 1939, certain - employees of the respondent
requested one Wilson, an organizer for the Amalgamated, to "explain
the organization to them." Wilson_complied with the request and
arranged with these employees for a meeting to be held on February
3, 1939, for the purpose of organizing employees of the respondent
as members of the Amalgamated for collective bargaining purposes.
At this meeting and at weekly meetings held thereafter, a substantial
number of the respondent's employees were enrolled as members of
the Amalgamated.
The organizational efforts of the Amalgamated soon came to the
.attention of Mason Evans, general foreman of production operations,
who is in charge of hiring and dismissing employees at the Spring-
field plant,,and Sam Black, Howell Fesperman, Gene Ramsey, and
Jini Sawyer, each of whole exercises supervisory authority over em-
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees at the respondent's plant in connection with the duties he
performs and is regarded by these employees as a supervisor.4
In February- 1939 Evans told Riddle; an employee, that he "didn't
see why the boys needed a union" since wages were "about as good
/as (they) could get anywhere" and they were granted vacations.
- Evans further stated that at the respondent's plant at Evansville,
-Indiana, where he was employed 'immediately prior to assuming his
duties at the Springfield plant, the C. I. 0. requested a closed shop,
that the respondent refused this request and closed down the Evans-
ville plant. At the hearing Evans denidd that he made these state-
ments or that the respondent's Evansville plant was closed for the
above-stated reason. We are satisfied, and find, as did the Trial
Examiner, who observed the demeanor of the witnesses, that Evans
-made the above statements.
About the same time Fesperman told Riddle that certain women
,employees who joined the Amalgamated "wouldn't be there 30 days
after they signed up." In response to Riddle's assertion` that "they
could not fire them for joining the union," Fesperman replied, "they
could fire them for something else." Shortly thereafter Riddle
s The respondent contends that Black , 'Fesperman , 'Rarnsey , and Sawyer were ordinary
-and not supervisory employees , and therefore that they did not represent the respondent in -
any conduct which would have constituted unfair labor practices had they, and each of
them, as supervisory employees represented the respondent . The record discloses the fol-
lowing among other pertinent facts concerning the position and authority of these persons
as contrasted with that of other employees at the Springfield plant . Manufacturing and
processing operations , and operations incidental thereto , are performed principally in seven
•operating departments , viz, receiving , feeding, picking, packing , butter , cheese , and power,
all comprising the jurisdiction of General Foreman Evans. In each of these departments
(with the qualification noted in footnote 15, infra ) there is one employee considered by
Evans as an "inspector over that department ," through whom Evans "handles" the opera-
tions performed therein and whom Evans "holds" for such work . In this category are
Black, employed in the picking department where personnel varies from 14 to 37 in number;
Ramsey, employed in the packing department, where personnel varies from 2 to 8 in num-
ber ; Fesperman , employed in the butter department where personnel varies from 9 to 15 in
number; and Sawyer , employed in the power department , where personnel varies from 1 to
4 in number . Black has been employed without lay -off at the Springfield plant for 16 to 18
years ; Ramsey for about 12 years ; Fesperman for about 12 years , excepting a 2 or 3
months' lay -off in 1932 ; and Sawyer for about 18 years All but Fesperman have greater
seniority than each of the other employees in their respective departments and each receives
-the highest remuneration paid therein . They assign employees to various tasks within
their departments, instruct employees in the performance of their duties , transmit and give
-orders to employees , and upon occasion , when the volume of work fluctuates in their depart-
ments , inform employees as to when to report for work or to quit work The record shows
that Black , Ramsey, and Fesperman keep daily records for transmittal to Evans of the
hours and volume of work performed by employees in their departments ; that Black and
Fesperman have reproved employees for failing properly to perform their work and for
improper use of plant property ; that Black inspects the poultry cleaned by employees in his
-department and returns poultry not properly cleaned to employees for further cleaning;
that Black and Fesperman lay off or transfer employees under instructions from Evans ;
and that Black , Fesperman , Ramsey, and Sawyer have been consulted by Evans regarding
the-transfer or assignment of employees to work in their departments Fesperman admit-
ted that he recommends " to some extent" to Evans the employees to be retained or dis-
missed in his department. Employees referred to and regarded these persons as " foremen,"
"boss ," or "department head," or , as regards Sawyer, as "chief engineer," and followed their
-orders without questioning their authority
SWIFT & COMPANY
I
557
Advised Fesperman of his intention to attend an organizational meet-
ing of the Amalgamated to be held that night. At the meeting Rid-
dle joined the Amalgamated. On the following morning, Fesper-
man asked Riddle whether he attended, and who attended, the
meeting. Riddle replied that he attended the meeting, but refused
-to divulge the names of other employees who attended. Fesper-
man then stated that he thought Riddle was "broaderminded than
that, to join" and asked Riddle what he "was going to do when they
•cut [him] down to union time." In his testimony Fesperman ad-
mitted that he asked Riddle whether he attended the meeting of the
Amalgamated, testified that he did, not recall saying anything else,
and denied that the remainder of these conversations occurred. The
Trial Examiner did not credit Fesperman's denials and we are satis-
fied that the Trial Examiner was right, and find in accord with
Riddle's testimony.
Roy Hansen testified ,that in March and thereafter, while tem-
porarily, employed at a restaurant frequented by members of the
-Amalgamated during a lay-off at the respondent's plant, Black ques-
tioned Hansen 5 and the, proprietor of the restaurant about the prog-
ress of the Amalgamated's organizational drive, and on one occasion
remarked that "it looked like an awful poor time of the year to
start a union with all the boys laid off like 'they are." Black ad-
mitted that he' had been in' the restaurant but denied that he had
discussed the Amalgamated. The Trial Examiner considered Black
generally an unsatisfactory and untruthful witness, and upon the
record we are satisfied that the Trial Examiner was right. We do
not accept his denial and find that he made the statements attributed
to him.
In about the middle of April 1939, Wilson called at the respond-
ent's plant for the purpose of requesting of Plant Manager Wood-
mansee that "the foremen" cease "intimidating" employees and "give
them an opportunity" to join the Amalgamated. Inasmuch as Wood-
mansee was then out of town, Wilson made this request of Assistant
Manager McCurdy, who said that he would see that such activity
was stopped until Woodmansee returned, when "he would report it
to him."
On April 14, 1939, the respondent posted, and thereafter main-
tained, on the time clock and in other places in its plant, the notice
set forth in the margin.6
5 Hansen at this time had an "understanding " with Evans that he would be available for
recall to k ork at any time and that he would not lose his seniority by reason of taking
this job.
e NoTice TO EaiPLoyces
Several questions have been asked the management regarding the labor policy at this
plant. It is therefore appropriate to state that policy.
Employees shall have the right to self-organization , to form, join, or assist labor organi-
zations , to bargain collectively through representatives of their own choosing and to engage
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In April 1939 Supervisors Fesperman and Ramsey took steps to,
form a union unaffiliated with any national or other labor organiza-
tion for the purpose of combating the organizational efforts of the
Amalgamated. Previous thereto certain employees of the respondent
approached Ramsey, called his attention to the solicitation by -rep-
Iresentatives of the Amalgamated at their homes, stated that they
were "getting disgusted with that," and asked him what he "thought
about it." Ramsey told them that the formation of an unaffiliated
labor organization, provided the means to "stop that." - Ramsey then
--discussed-the matter with Fesperman, who procured the services of
one Carr, an attorney, to draft a constitution and bylaws for an or-
ganization to be named Dairy and Produce Handlers' Union. Fes-
-perman, Ramsey, and other employees arranged for the holding of
a meeting on April 24 at a tavern in Springfield, and solicited the
attendance of Springfield plant employees. This meeting was at-
tended by 20 to 25 employees, including Supervisors Ramsey, Fes-
perman, Black, Sawyer, and Lehman.7 A constitution and bylaws
were approved by the signing thereof by employees assembled; of-
ficers and a bargaining committee were elected ; and a collection was
taken, which was turned over to Carr as part payment for his serv-
ices. Thus the Independent had its genesis. At the hearing Fes-
perman and Pettigrew, president of the Independent, admitted that
the Independent was formed "to keep out the A. F. of L." 8
On April 27, 1939, Carr and the bargaining committee of the In-
dependent asserted to Plant Manager Woodmansee that the Inde-
pendent had been designated by a majority of the respondent's em-
In concerted activities , for. the purpose of collective bargaining or other mutual aid or
protection
No employee is required to join or to refrain from joining any labor organization in order
to obtain employment or to continue in the employment of this company
whether an employee shall join or refrain from joining any labor organization is a matter
for his own decision
There will be no discrimination against any employee because of his membership or non-
membership in any labor organization.
Employees may present grievances to their foreman who will make every reasonable effort
to adjust such grievances . An appeal may be taken from the foreman to the manager.
It is our endeavor at all times to treat our employees fairly and consideiably [ sic] and
we desire every real grievance to be speedily adjusted to the end that our relafions with
our employees shall continue to be harmonious and satisfactory
'Lehman is a supervisory employee whose position and authority in the cheese depart-
ment is similar to that of Black, Ramsey , Fesperman , and Sawyer, in their respective de-
partments - See footnote 4,.supra -
8 There was introduced in evidence at the hearing a statement signed on May 26 , 1939, by
Pettigrew , pi esident of the Independent , winch states
Our activities in organizing and assisting in the organization of the Dairy and
Produce Handlers ' Union [the Independent ], was not for the purpose of bettering our
working conditions , not for increased wages ; but to counteract the activities of the
A F of L [Amalgamated ] group in the Swift & Company plant in Springfield, Mo,
Our primary purpose was , to break up the A. F. of L. [Amalgamated ] Union.
At the hearing Pettigrew testified that the contents thereof were true to his knowledge,
SWIFT & COMPANY 559,
ployees as their representative for the purpose of collective bargain-
ing and presented to Woodmansee a "rough draft" of a collective,
-labor contract as a basis for - negotiation. Woodmansee refused to
recognize or otherwise bargain collectively with the Indepen'den`t until
it was certified by the Board on the ground that the Amalgamated
likewise claimed that it was the statutory representative of the
respondent's employees 5
Following the advent of the Independent, General Foreman Evans
and Supervisors Black, Ramsey, Fesperman, and Sawyer plainly and
continuously manifested to the respondent's employees, by various
acts and statements set forth below, that the respondent desired the'
Independent to be the representative of its employees for the purposes
of collective bargaining; that the respondent would not accept the
Amalgamated as bargaining representative; and that membership in
the Amalgamated or refusal or failure to become a member of the
Independent would and did result in discrimination in, or loss of,
employment.
About the time the Independent was formed Evans told, an--em-
ployee that at the respondent's plant where Evans was employed prior
to about April 1938, when he assumed his duties at the Springfield
plant, the employees organized "a union of their own," i. e., an un-
affiliated union ; and that he did not see why the Springfield plant em-
ployees could not follow this example and, as a result, "not be inter-
fered with by others," i. e., a national union. As more particularly set
forth hereinafter. Evans played a leading role in the respondent's re-
fusal to employ Rosemary Rogers, a member of the Amalgamated, on
May 5, 1939, and the dismissal of Elnora Tippitt, a member of the
Amalgamated, on June 8, 1939, because each refused to join the Inde-
pendent. A-ftin in October 1939 Evans manifested- his antipathy .to
the Amalgamated. An employee who was a member of the Amalga-
mated complained to Evans -that other employees with less seniority
were given preference in work at the plant. Evans took the position
that the work was apportioned on the basis of seniority. He went on
to point out that he had given this employee less arduous duties while
sick, and that despite this he had "double-crossed" him. When asked
if lie had reference to membership in the Amalgamated, Evans re-
plied, "Yes, they got you down there, got, you drunk, got you to sign
up with them." Evans added, `-There doesn't anything happen either
place but what I know about it that night or next day, -at- either meet-
ing." Although Evans denied that he engaged in the foregoing activi-
ties, we are satisfied upon the entire record, as was the Trial Examiner,
9 Thereafter, the Independent filed with.the Board a petition for investigation and certi-
fication of representatives and a charge alleging that the' respondent refused to bargain
collects els, within the meaning of the Act The Board dismissed the petition ; the Regional
Dnector refused to issue a complaint upon the charge
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Evans thus manifested his opposition to the Amalgamated, and,
we so find. -
The acts and statements of Black in opposition to the Amalgamated
and in behalf of the Independent are noteworthy. His conduct in con-
nection -with the respondent's refusal to employ Rogers. tnd the re-
spondent's dismissal of Tippitt is described below. At various times-
from June through October 1939-Black, during working hours in the-
Springfield plant, urged employees to join the Independent; ques-
tioned employees who were members of the Amalgamated about the
activities of that organization; and told employees that the initiation,
fee,and dues in the Amalgamated were not worth the benefits received;
that members of the Independent were "getting better work around
here than the other boys"; that if they joined the Independent they.
"would probably work steady"; that membership in the Amalgamated
would result in dismissal or other discrimination in regard to terms;
conditions, and tenure of employment; that "if the A. F. L. [the
Amalgamated] gets in I (Black) would still be boss and Evans would-
still be-boss"; that the respondent was "for our union [the Independ-
ent]"; that the respondent was bargaining collectively with the Inde-
pendent ; that the respondent would grant a closed shop to the Inde-
pendent, and that the respondent in none of its various plants through-
out the country had agreed to grant a closed shop to the Amalgamated.
Black confided to an employee that the "reason we are getting this
union, is to break up the A. F. of L. [the Amalgamated]." At the
hearing Black denied the foregoing acts and statements, further de-
nied that he ever mentioned the Independent or the Amalgamated to
any person within the Springfield plant, and did not recall that he
mentioned the-Amalgamated to any person at any place. On the other
hand, the statements and activities of Black set forth above were the
subject of clear and convincing testimony by several employees. In
view of this testimony and the fact that the Independent was organized
for the purpose of combating the Amalgamated, we 'cannot, nor did
the Trial Examiner, credit the denials and other testimony of Black,
one of the-founders of the Independent. We are satisfied that Black
engaged in the above acts and made the above statements, and we so
find.
Many of the above acts and statements of Black occurred in
the presence of Ramsey. On certain of these occasions and on other
occasions Ramsey engaged in similar acts and made similar state-
ments on behalf of the Independent and in opposition to the Amal-
gamated. Ramsey 'told an employee that Evans thought he had
"done him pretty dirty" by joining the Amalgamated "after he tak-
ing care of you while you were sick," stated to employees that the
respondent would close the Springfield plant "if the A. F. L. [the
SWIFT & COMPANY 561
Amalgamated] got in," and advised an employee not to pay dues to..
the Amalgamated since the respondent would not execute a contract.
with this, organization and that the respondent "was getting that
kind of a union like theirs [the Independent] all over the whole
United States to break up the A. F. of L. [the Amalgamated]."
Ramsey 'denied that he engaged in the above acts or made the above
statements. Like Black, he denied , that he ever mentioned the
Independent or the Amalgamated to any person within the Spring-
field plant 10 As mentioned above, Ramsey played a leading role
in the formation of the Independent. We are satisfied, and we find,
as did the Trial Examiner, that Ramsey made the foregoing state-
ments 11 and manifested to employees that the respondent was hostile
to the Amalgamated. - -
Fesperman similarly solicited membership for the Independent and
engaged in intimidatory conduct in connection therewith. Early in
May, Fesperman, accompanied by Hemme, secretary-treasurer of the
Independent, approached an employee while at work in the Spring-
field plant and asked him to join, the Independent. In response to
this employee's question as to "how the management regarded this
if they knew about it," Fesperman and Hemme nodded their
heads and smiled. Thereupon this employee, signed the list of names
appended to the constitution and bylaws of the Independent and on
the following day paid Fesperman the initiation fee in the Inde-
pendent. While Fesperman admitted soliciting this employee's mem-
bership, he denied that such solicitation occurred in the plant, that
the employee signed or agreed to sign the constitution and bylaws,
and that -this employee paid him the initiation fee. This employee's
signature appears on said constitution and bylaws. No explanation'
was offered to contradict the aforesaid explanation -of the manner in
which it was procured, a matter obviously within the knowledge of
the Independent. The Trial Examiner found that Fesperman solic-
ited this employee's membership in the Independent on plant premises
and that he received payment of his initiation fee. Under these cir-
10 As regards one of the occasions on which Ramsey allegedly stated that - the respondent
would close the Springfield plant if the Amalgamated "got in ," Ramsey testified that he had
been sent by Evans to the warehouse of the Springfield Ice and Refrigerating Company to
obtain poultry stored there by the respondent ; that two of the respondent 's employees. who
were not then at work, "kept hollowing ( sic) at me, telling me I ought to come up to loin
the A. F. of L. [the Amalgamated ], that if I didn ' t it «ould cost me $50 or a hundred
dollars to join if I didn ' t come on" ; and that lie, Ramsey , merely requested that he be
"let alone" inasmuch as he was checking poultry We do not believe that the fact that
members of the Amalgamated thus spoke to Ramsey on this occasion tends to support
Ramsey's denial
n The Trial Examiner did not specifically advert to Ramsey 's statement advising an em-
ployee not to pay dues to the Amalgamated , although he did advert to the remainder of the
conversation wherein Ramsey stated that the respondent was forming unions like the Inde-
pendent to break up the Amalgamated . Inasmuch as the Trial Examiner found that the
"incidents testified to" by said employee are "true" it appears that the omission was inad-
"ertent We are satisfied that Ramsey made the foregoing statement'
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances, and in view of his leading role in the promotion of the
Independent, we cannot credit Fesperman's denial. We are satisfied,
and we find, that Fesperman manifested to employees that the re-
spondent favored the Independent as a bargaining agency for
employees.
Sawyer similarly engaged in pro-Independent and anti-Amalga-
- mated activities. He told employees that the Amalgamated would
"never amount to anything , we are going to get you," that
they "had made a mistake" by joining the Amalgamated in that they
would be denied more desirable employment or would be dismissed
by reason thereof. Sawyers conduct was entirely consistent with his
admitted partisanship for the Independent, the purpose of which
was to "keep out" the Amalgamated. We do not, nor did the Trial
Examiner, credit his denials of the aforesaid statements.
The record shows that General-Foreman Evans and Plant Manager
Woodmansee,were apprised of certain of the acts and statements of
Black, Ramsey, Fesperman, and Sawyer. As set forth below, on
the:mor-ning of May 5, 1939, Evans was informed that-Rogers left
the Springfield plant after Black told her that she must join the In-
dependent as a condition of employment with the respondent. In
about June 1939 Evans told Hansen that lie understood that "some-
body has been talking union in the plant," and requested Hansen to
inform him "if anyone talks union to you." Within 2 clays Hansen
reported to Evans that Black solicited his membership in the Inde-
pendent. While Evans denied that Hansen disclosed the name of
the solicitors we are satisfied upon the record , that Evans was thus
informed of Black's activity . On June 3, 1939 , Wilson called Wood-
mansee's attention to the refusal to employ Rogers. Woodmansee
stated that he would investigate the matter . On the same day,,Mc-
Alpin, a Field Examiner for the Board , again called Woodmansee's
attention to the same matter and to the alleged conduct of Black in
this connection.
The respondent contends that the acts and statements of Black,
Ramsey, Fesperman ,`and Sawyer were not coercive and not attribu-
table to it since they were not supervisory employees - nor were they
regarded as such by the Springfield -plant employees . 12 We have
set forth facts concerning the position and authority of these em-
ployees above .13 We are satisfied , and we find , upon the entire record
that these persons are supervisory employees , that they are regarded
'as such by employees, and that 'under the circumstances herein, ' their
acts and statements , as well as those of Evans, are attributable to
the respondent.'
12 The respondent admits that Evans is a supervisory employee
' See footnote 4, supra.
liInternational Association of Machinists v. N L R. B, 311 U S. 72, aff'g 110 lip (2d)
29 (App. D. C.), enf'g Matter of The Serriel, Oorpo,atiovi and International Union, United
SWIFT & COMPANY 563
We are also of the opinion that the respondent • took no action
sufficient to disavow or otherwise dispel the effect of these activities.
The notice of April 14, 1939, especially in the light of subsequent
activity, could not serve to convince employees that the respondent
maintained a neutral position. Nor do we believe that Evans' ad-
monition to employees on May 5, set forth below, following the dis-
criminatory refusal to employ Rogers satisfied employees of the re-
spondent's neutrality in view of subsequent activity, and in view of
Evans' and Woodmansee's failure to recall Rogers, the only reason-
able action that would manifest to Rogers and other employees that
she was not in fact refused employment because she failed to join
the Independent. Despite the continued and intensive activity of
,the adherents of the Independent, the only showing in the record
that any employee was disciplined pursuant to Evans'- admonition
of May 5 was that an employee who was a member of the Amalgam-
ated was laid off for 1 week allegedly for soliciting membership
within the Springfield plant.
Nor is there merit to the respondent's contention that Black, Ram-
sey, Fesperman, and Sawyer were not regarded by other employees
as representatives of the respondent in their above-mentioned activity,
because they were members of the, Independent and eligible to
membership in the Amalgamated, because certain of them were asked
to join the Amalgamated, and because two employees, Conkright and
Lee,15 who perform supervisory functions, were members of the
Amalgamated. In Matter of Tennessee Copper Company - we
answered a similar contention as follows :
Membership of supervisory employees in a labor organization
involved in a controversy over representation cannot confer on
Automobile Workers of America, Local No. 459, 8 N L R B 621; H. J. Heinz Company v.
N. L. R. B ., 311 U. S. 514, aff'g 110 F. ( 2d) 843 (C. C. A. 6), enf'g Matter of H. J. Heinz
Company and Canning and Pickle Workers, Local Union No 325, affiliated with Amalgam-
ated Meat Cutters and Butcher Workmen of North America, American Federation of Labor,
10 N. L R B 963; N. L . R B v. Link-Belt Company-et al,, 311 U. S. 584, rev'g 110 F. (2d)
506 (C C A. 7) and enf'g Matter of Ltink-Belt Company and Lodge 1,601, of Amalgamated
Association of Iron; Steel 'and Tin Workers of North America, through the Steel Workers
Organizing Committee affiliated with the Committee for Industrial Organization, 12 N. L.
R. B 854
m Conkright and Lee are poultry receiving clerks in the receiving department, who work
on separate shifts, although at times their working periods overlap. They assist the truck
drivers to unload poultry at the plant , remove the poultry from coops in which it is deliv-
ered, to weigh , sort and grade poultry, record its receipt , and send it to the feeding depart-
ment. On occasion they are assisted in their work by one or two employees. Conkright
has the greatest seniority of any person in this department and he receive: the highest
hourly wage therein. Lee receives slightly less. The record shows that Lee and Conkright
instruct employees in the performance of their duties Although, as set forth in footnote 4,
supra, Evans testified generally with regard to the seven operating departments that there
was a so-called " inspector" in each department through whom he "handles " the operations
performed therein and whom he "holds" for the work performed therein, when examined
specifically regarding the receiving department , he stated that "I am mostly in direct charge
of that myself."
36 Matter of Tennessee Copper Company and A. F. of L Federal Union No. 21, 8 N L.
It. B. 575; 9 N. L . R. B. 117.
440135-42-Vol. 30-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such employees a privilege to interfere. nor can the immunity
guaranteed employees by the Act be impaired or diminished by
the membership rules of any labor organization. The employees'
right to a choice free from employer interference is absolute.
Supervisory employees, although eligible for membership in
competing labor organizations, are forbidden by the Act, in their
capacity as the ' employer's agents to interfere in the selection
of employee bargaining representatives, yet there need be no
conflict by reason of their dual status. It is perfectly consistent
for supervisory employees to belong to labor organizations and
yet be prohibited from conduct permitted non-supervisory
employees.''
There is no showing that Conkright and Lee sought to influence em-
ployees in the selection of a bargaining representative.
The respondent also contends in substance that there is no ' evi-
dence that any person was interfered with, restrained, or coerced by
the conduct of Evans, Black, Ramsey, Fesperman, and Sawyer, since
all the` persons who testified in regard thereto were members of the
Amalgamated and none testified that they were in fact interfered
with, restrained, and coerced, and since there is no'showing that any
member of the Amalgamated changed his affiliation or joined the
Independent, except the employee who, as mentioned above, acceded
to Fesperman's solicitation, but who later became a member of the
Amalgamated. This contention is untenable. Not all the employees
who were directly or indirectly subjected to the respondent's anti-
union conduct were called as witnesses at the hearing. The record
shows that Fesperman, Ramsey, and Black, successfully solicited the
membership of various other employees in the Independent. Further,
we are not constrained to give much weight to the failure of em-
ployees to testify in the language of legal conclusion to the effect of
employer conduct which,must be ascertained by. an evaluation of the
normal consequences of the employer's activity. That particular em-
ployees disclose a continuing interest in a labor organization follow-
ing anti-union conduct by.an employer does'not establish that they
or that other employees were not interfered with, restrained, or
coerced. It is impossible to estimate what might have been the size
17 Cf. International Association of Machinists, etc. v N. L. R. B , 311 U S . 72, aff'g 110
P. (2d) 29 (App. D. C.), enf'g Matter of The Serrick Corporation and International Union
United Automobile Workers of America, Local No. 4(59, 8 N L. R. B. 621; New Idea, Inc.,
v N. L. R . B, 117 F ( 2d) 517 ( C C. A 7 ), enf'g Matter of New Idea, Inc and Interna-
tional Association of Machinists , et al, 21 N L R B 776; N . L. R B v. Christian
Board of Publication, 113 F. ( 2d) 678 (C. C. A. 8), enf'g Matter of Christian Board of
Publication and Allied Printing Trades Council of St. Louis, Missouri, 13 N. L. R. B. 534;
Matter of E. T. Fraim Lock Company et al. and Amalgamated Association of Iron, Steel
and Tin Workers of North America , Lodge 1732, 24 N L R B 1190; Matter of West
Oregon Lumber Company and Lumber and Sawmill Workers Local Union No. 3 , Interna-
tional Woodworkers of America et al., 20 N. L. R. B. 1. _
SWIFT & COMPANY 565
of the Amalgamated's membership or the scope and nature of its ac-
tivities had it not been for these anti-union activities of the respond-
ent. The reasonable inference is that anti-union conduct of an em-
ployer does have an adverse effect on self-organization and collective
bargaining'18 else the Congress would not have passed the Act. The
precise issue for determination is whether the acts of the respondent
constituted interference with, restraint, or coercion of its employees-
in the exercise of rights guaranteed in Section 7 of the Act. Evidence
concerning the effect or lack of effect of the respondent's acts on par-
ticular individuals is clearly not decisive of this issue. Having con-
sidered the evidence relied upon by the respondent in this connection,
we find that it does not warrant a finding that the respondent has not
interfered with, restrained, or coerced its employees.
The foregoing facts establish that the respondent, through its
agents, promoted and assisted in the establishment of the Independent
as a labor organization for employees at the Springfield plant, in
order to prevent unionization of these employees by a labor organi-
zation to which it was opposed. The advent of the Amalgamated-in
the Springfield plant aroused the hostility of the respondent 's super-
visory employees to the Amalgamated as a bargaining representative
for the respondent's, employees. Evans asserted that collective bar-
gaining with the respondent could result in no benefit to employees,
and held out as an example of the result of organization for bar-
gaining purposes action by the respondent resulting in loss of work.
Other supervisory employees of the respondent interrogated em-
ployees about activities of the Amalgamated, disparaged the cus-
tomary ends of collective bargaining, and told employees that such
membership would result in loss of employment or other discrim-
inatory treatment. We find that the respondent thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. In this hostility and these
's See N L. R. B v. Link-Belt Company et at, 311 U. S 584 , rev'g 110 F ( 2d) 506
(C. C. A. 7) and enf 'g Matter of Link-Belt Company and Lodge 1604 of Amalgamated Asso-
ciation of Iron, Steel and Tin Workers of North America, through the Steel Worker s Organ-
izing Committee affiliated with the Committee for Industrial Organization , 12 N. L. R. B.
854, where" the Supreme Court of the United States said • "It would indeed be a rare case
where the finders of fact could probe the precise factors of motivation which underlay each
employee ' s choice Normally , the conclusion that their choice was restrained by the em.
ployer ' s interference must of necessity be based on the existence of conditions or circum-
stances which the employer created or for which he was fairly responsible 'and as a result
.of which it may reasonably be inferred that the employees did not have that 'complete and
unfettered freedom of choice which the Act contemplates ." See also Montgomery Ward
A Co, Inc. v. N. L. It. B, 115 F. ( 2d) 700 (C. C. A. 8), enf'g Matter of Montgomery Ward
and Company and Warehouse Employees ' Union No. 20 ,297 affiliated with the A . F. of L.,
17 N L. R. B . 181 ; Matter of Schult Trailers , Inc and International Union, United Auto-
mobile Worleis of America, affiliated with the C. I 0, 28 N. L R. B 975; Matter of
The Ohio Fuel Gas Company, a Corporation and District #50, United Mine Workers of
America, affiliated with the Congress of Industrial Organizations , 28 N L. R. B. 667,
and cases therein cited in footnote 6.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threats the Independent had its genesis. The respondent's super-
visory employees, whose acts carried the responsibility of the re-
spondent, suggested, and were instrumental in, the formation of the
Independent as the means by which employees would be and were
denied the freedom of choice of a bargaining representative guar-
anteed by the Act. Thereby, the respondent dominated and in-
terfered with the formation and administration of the Independent
Thereafter, through the solicitation by these supervisors of mem-
bership in the Independent on the respondent's time and property,
the respondent contributed assistance and support to that organi- -
zation.19 At the time of and after the formation of the Independent,
the respondent, through its supervisory employees, by refusing to
hire Rogers and by discharging Tippitt because of their failure and
refusal to join the Independent as found infra, by expressing to
employees its opposition to their affiliating with the Amalgamated,
by urging its employees to form and join an unaffiliated labor or-
ganization, by interrogating employees about their activities in the
Amalgamated, by disparaging the Amalgamated and its activities,
by urging employees not to pay dues to the Amalgamated, 'by ad-
vising employees that,the respondent favored the Independent over
the Amalgamated, by telling employees that members of the In-
dependent were and would be preferred in hire and tenure of em-
ployment and in the cases of Rogers and Tippitt by so determining,
by threatening employees with termination of employment because
of membership or activity in the Amalgamated, by fostering a be-
lief that the respondent was bargaining collectively with the In-
dependent and would grant it a closed shop and, on the other hand,
that the respondent would close the Springfield plant if the Amal-
gamated were selected as statutory representative by employees, and
by. other of the aforesaid acts and statements, interfered with, re-
strained, and coerced its employees in the exercise of the right to
self-organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bar-
gaining annd other mutual aid and protection as guaranteed in Sec-
Ill Cf H J Heinz Company v. N. L. R. B, 311 U S. 514, aff'g 110 F (2d) 843 (C C A 6),
enf'g Matter of H J. Heinz Company and Canning and Pickle Workers, Local Union No. 325,
affiliated with Amalgamated Meat Cutteis and Butchers Workmen of North America, Ameri-
can Federation of Labor, 10 N. L R. B. 963; N' L. R B. v. Link-Belt Company et al.,
-311 U S, 584, rev'g 110 F (2d) 506 (C C A 7) and enf'g Matter of Link-Belt Company
and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North
America, through the Steel Workers Organizing Committee affiliated with the Committee
for Industrial Organization, 12 N. L. R. B. 854; Valley Mould and Iron Corporation v.
N. L. R B, 116 F. (2d) 760 (C. C A 7), enf'g as mod. Matter of Valley Mould and Iron
Corporation and Steel Workers Organizing Committee for Amalgamated Association of Iron,
Steel and -Tin Workers of North! America, Lodge No. 1029, affiliated with the Congress of
Industrial Organizations, 20 N L R B 211
SWIFT & COMPANY 567
tion 7 of the Act. Such acts and statements constitute material
employer assistance and support to a labor organization. Forma-
tion and administration of the Independent were thus dominated
and interfered with by the employer ; they did not result from free
and unfettered employee action.
We find that the respondent dominated and interfered with the
-formation and administration of the Independent, and contributed
support to it; and that it thereby, and by other acts, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The discriminatory refusal to employ Rogers, the discriminatory
discharge of Tippitt, and the alleged discriminatory discharges of
Painter, Hammzan and Searles
Rosemary Rogers began to work for the respondent on July 27,,
1938, and worked intermittently until March 9, 1939, when she quit.
Substantially all her work was performed in the picking department
under Black. On February 10, 1939, Rogers joined the Amalgam-
ated. She was among the first of the respondent's employees to
designate this labor organization as bargaining representative.
On May 4, 1939, Evans gave Black the names of three or four girls, -
including Rogers, and told Black to offer them employment in-the
,picking department. That evening Black, accompanied by his brother-
in-law, one Brinkman, found Rogers at the home of her brother-in-
law: Rogers testified that Black offered her employment at her
former job; told her that she would be required to join the Inde-
pendent as a condition of employment; further stated that she had
until the next morning to decide whether to join the Independent;
and closed the conversation with the admonition "to go straight to
the office . . . sign the papers and go to work but not to talk
to anybody." Black testified that he merely told Rogers to report
to Evans on the following morning and denied that he referred to
joining the Independent as a condition of employment. His testi-
mony is corroborated by that of Brinkman.
On the following morning Rogers went directly to the plant office.
Neither Black nor Evans had arrived. She then went upstairs to
the picking room and waited for Black. Rogers testified that when
Black arrived she stated that she did not wish to join the Independ-
ent, whereupon Black replied that "he could not use [her] unless
[she] joined the company union";,that she related what had hap-
pened to an employee while Evans stood nearby watching her; and
that she then left the plant.
Black denied that he said anything to Rogers on the morning
of May 5 other than "good morning and how are you, or something,"
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and testified that he ascertained she left the plant when Evans ques-
tioned him as to whether she had reported and stated he desired to
see her. Evans denied that he saw Rogers on May 5. He testified
that he questioned Black as to whether Rogers had reported for work
and that Black informed him that she had left the plant. Evans
admitted that he was informed by an employee that Black told
Rogers "that she would have to join the Independent or she could
not work in the plant." Thereupon, Evans called all employees to`
gether and "told them I understood there was two labor factions
wanting to come in there, and they had been causing a lot of
trouble, a lot of dissatisfaction among the help, and I wanted it
understood distinctly we would not tolerate any union talk or union
soliciting on the premises or during working hours and the first case
that came to my attention to that effect, that I would discharge
them."
We are satisfied, and we find, as did the Trial Examiner, that
Black told Rogers that her employment was conditioned upon join-
ing the Independent, and that Evans knew that Rogers left the plant
for this reason. The respondent contends, however, that it is not
responsible for Black's acts or statements since Rogers was aware
that Evans alone had authority to hire her, inasmuch as he had hired
her upon a previous occasion and, accordingly, it was incumbent
upon her to ascertain from Evans the truth of Black's assertions.
This contention is without merit. We have found above that Black
was customarily invested with the duty of conveying the respondent's
orders to employees regarding employment. In this instance the
respondent authorized Black to offer employment to Rogers. Having
thus committed to Black the responsibility for this transaction, the
respondent must be held liable for acts or statements incidental there-
to if Rogers reasonably believed that Black's conduct was authorized
by the respondent. We are satisfied, and we find, that under the
circumstances and in view of Black's position and duties in the
respondent's plant that Rogers reasonably believed Black was thus
authorized. Further, assuming that Black's acts and statements were
unauthorized, it is plain that the respondent affirmed the transaction
by failing to repudiate it to Rogers. Although the record shows
that Evans learned of Black's acts immediately after Rogers left
the plant, that Woodmansee was informed of the transaction shortly
thereafter, and that it was the respondent's practice to communicate
with applicants for employment, there is no showing that the re-
spondent took steps to 'recall Rogers, or in any other manner cor-
rect Rogers' understanding that membership in the Independent was
a condition of her employment at the respondent's plant.
The respondent further contends that the Board is without juris-
diction in the matter since Rogers was not an employee, within the
SWIFT & COMPANY 569
meaning of the Act, when the discriminatory act took place. We
have previously held that "it is immaterial whether the individual
discriminated against is already an employee or merely an applicant
for employment." 20
We find that the respondent refused to employ Rosemary Rogers
because she failed and refused to join the Independent, thereby dis-
criminating against Rosemary Rogers in regard to the terms and con-
ditions of her employment and her hire and tenure of employment,
and encouraging membership in the Independent and discouraging
membership in the Amalgamated, that by such discrimination the re-
spondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
During her last period of employment with the respondent Rogers
worked in the picking room, where she was paid an hourly wage of
271/2 Cents, the minimum hourly rate required by the Fair Labor
Standards Act.21 On 'October 14, 1939, the minimum wage under
this Act was raised to 30 cents per hour. Since May 5, 1939, Rogers
earned approximately $40.50 in domestic service. Such service re-
quired the purchase of four uniforms at a cost of about $7.00. Rogers
has also received $27 in "unemployment compensation." Rogers de-
sires employment at the respondent's plant in her former position.
Elnora Tippitt. The complaint alleges the respondent dismissed
Tippitt on or about June 12, 1939, because of her membership and
activities in behalf of the Amalgamated and because she refused
to join the Independent. In its answer the respondent- avers that
Tippitt was hired for temporary work, upon the completion of which
she was'given other work which she'quit after a trial of about 1 day.
Tippitt was employed by the respondent on May 15, 1939. Evans
testified that he hired Tippitt for temporary work during the wool
season and that he so advised her. Tippitt denied -that she was
thus advised, and testified that on the occasion of her hiring, in re-
sponse to Evans' questions, she assured him she was not married and
did not intend to marry "because they didn't hire married women.
He didn't want to take girls in there and train them and then have
them leave them." Evans testified that he questioned Tippitt regard-
ing her marital status because "my policy is to try to hire single girls
or married women that are widowed or something, the way times are
and as many people destitute, I don't like too many in the family to
be working." The record shows that during her employment, which
terminated on June 8, 1939, Tippitt worked for the most part in the
20 Matter of TVaumbec Mt.iis, Inc. and United Textile Workers of America, 15 N. L. R. B.
37, enf ' d as mod . N. L R B. v. TVaumbec Mills , Inc., 114 F ( 2d) 226 (C. C. A. 1). Com-
pare N. L R B v. Nattionai,Casket Co., Inc., 107 F. (2d) 992 (C. C. A. 2).
21 52 Stat. 1060. .
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
egg department and packing room, and that the only work performed
by her in regard to wool consisted of sewing sacks in which wool was
packed for "about an hour one morning." Upon the foregoing and
for reasons appearing hereinafter, we are satisfied, and we find, that
Evans had no fixed intention to employ Tippitt upon a temporary
basis.
On or about May 19, Black called Tippitt aside in the plant; told
her that "there were two unions there"; asked her to join the Inde-
pendent, "the side he was on"; advised her that affiliation with the
Independent would cost $1, whereas "the A. F. of L. [the Amalgam-
ated] would stick' [her] $20.00 to join it"; and further stated that
if she "wanted to work there all summer and would join the com-
pany union ^ [the Independent], he would guarantee [her] a job."
On two subsequent occasions, on or about May 24 and June 1, when
Evans sent Tippitt to the picking room to "see if Sam [Black] had
something for [her] to do," Black again asked Tippitt to join the
Independent. On all of the foregoing occasions Tippitt told Black
that she was undecided as to whether she would join. On the last
occasion, one Williams, who was employed about 1 week after Tippitt
to perform the same type of work, was also sent by Evans to Black's
department. Black also asked, Williams to join the Independent.
Williams then 'stated "she didn't know what she was going to do,"
although she became a member of the Independent while employed
by the respondent. On about May 29 Tippitt joined the
Amalgamated.
On June 8 work was slack in the department in which Tippitt was
working. Evans needed additional help in the picking room since
he was "short a rougher." 22 He offered her employment there and
sent her to the picking room to perform this work. On her arrival
Black assigned her to this work, and asked her to attend a meeting
of the Independent that night. Tippitt,refused the invitation and
told Black that she had decided not to join the Independent. At
the close of the working day Black told Tippitt "I won't need you
any more." At the hearing Black denied that he had any conver-
sation with Tippitt at any time and testified that he had no recollec-
tion - of her. We believe Tippitt's testimony, as did the Trial
Examiner.
Tippitt further testified that she approached Evans on the follow-
ing morning, June 9; -that Evans told her there was no work for
her and further "said if he knew Sam [Black] hadn't told me, that
he would have told me himself"; that she again approached Evans on
the following day, June 10; that he then advised her not to return
21 By the term "rougher" Evans had reference to employees engaged in roughing poultry,
a process by which feathers are removed therefrom.
SWIFT & COMPANY 571
to the plant inasmuch as he would communicate with her if work
was available; and that she has not since been recalled by the re-
spondent. Evans testified that he observed Tippitt at work on several
occasions, on June 8 and that "she just left 'and never came, back."
The respondent's record of Tippitt's employment, which was intro-
duced in evidence, contains the notation "L.O. [laid off] End of Wool
Season." We find, as did the Trial Examiner, that Tippitt returned
to the plant following Black's statement that he would need her no
longer and that Evans advised her that there was no work for her
and that he would call her when work was available. Evans further
testified that he considered her work candling eggs unsatisfactory,
but that other work performed by her was satisfactory, and that he
considered her a sufficiently satisfactory employee to warrant an
offer of reinstatement in the picking room. The record shows that
several women employees were hired for work in the picking room-
between June 8 and the date of the hearing.
We are satisfied from the foregoing, and upon the entire record,
that the respondent discharged Tippitt and that her discharge was
the result of her failure and refusal to join the Independent. As set
forth above, Black advised Tippitt in the course of his solicitation
that he would guarantee her a job if she would join the Independent.
Nevertheless, on the same day that, she told Black that she would
not join the Independent, Black stated that he would need her in
his department no longer. Although Evans admittedly needed ad-
ditional help in the- picking room and considered Tippitt a suf-'
ficiently satisfactory employee for such work, and despite the fact
that several persons were hired to perform such work after Tippitt
was dismissed, Evans told Tippitt on June 9 and 10 that he had no
work for her, nor did he ever recall her to work. Further, although
the' respondent followed seniority 'in the plant in laying off em-
ployees, Williams, who was employed about 1 week. after Tippitt to
perform the same type of work, and- who also was assigned to work
in the picking room on June 8, was retained in the employ of the
respondent thereafter. ' As stated above, Williams became a mem-
ber of the Independent during her employment with the respondent.
We deem it immaterial whether Evans determined that Tippitt be-
discharged because he knew that she refused to join the Independent,
or whether his determination was based upon Black's advice or sug-
gestion, since the respondent is bound by Black's acts.
We find that the respondent discharged Elnora Tippitt on June 8,
1939, and thereafter refused to -reinstate her, because she failed and
refused to join the Independent, thereby discriminating in regard
to her hire and tenure of employment, and discouraging membership
in the Amalgamated and encouraging membership in the Independ-
572 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
ent; and that by said acts the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
During the first week of her employment with the respondent
Tippitt was paid an hourly wage ' of 271/2 cents and thereafter 30.
cents. Since her discharge on June 8, 1939, Tippitt earned, approxi-
mately $25. Tippitt desires reinstatement at the Springfield plant.
Everett Painter started to work for the respondent in 1913. He
was one of the first of the respondent 's employees to join the Amalgam-
ated, becoming a member on February , 3, 1939. In about 1933
Painter began to work as a poultry killer in the picking department,
and continued to perform this work until September 1938, when
Evans, who had been at the Springfield plant for about 5 months,
removed Painter from this job because he found his work unsatis-
factory. Painter was transferred to other work in the plant and
was given several more trials at poultry killing , the last in March
or April 1939 . Painter's work at poultry killing continued' to be
unsatisfactory . On or about June 18 or 20, 1939 , Black, while in
the presence of Ramsey , said to Painter , "Everett, why don't you
come on over and join our side, be one of the boys like you used to
be . . . it used to be I could leave you here - in the picking room and
be perfectly satisfied that things would go as they would if I was
here ... 23 You are [now] on the wrong side of the fence, and I
can't trust you. If you will come on our side, I will go to the front
for you and see that you go back where you used to be." Ramsey
told Painter that Evans thought he had "done him dirty" by joining
the Amalgamated after the respondent paid wages to Painter while
he was not working because of illness . Later in the day Black again
advised Painter to consider joining the Independent and said, "If
you don't, we are liable to be working and you walking the streets."
Although Black and Ramsey denied that they made the foregoing
statements , we are _ satisfied , as was the Trial Examiner , that their
denials are untrue and we find that Black and Ramsey made the
statements attributed to them.
After working for a time in the paraffin room of the cheese depart-
ment, where his work was unsatisfactory , in July or August 1939
Painter was given a position as clean -up man in the manufacturing
room of the cheese department . In about the middle of September
1939 Painter .was laid off by Evans for 4 days as a disciplinary meas-
ure for failing to perform his work properly. Upon his return to
work Plant Manager Woodmansee , in the presence of Evans, con-
ferred with Painter regarding his work. Painter admitted that his
21 The record shows that Painter had been placed in charge of the picking room I n Black's
absence on several occasions.
SWIFT & COMPANY 573
work had been poor and stated that he had been "brooding" over the
removal from his position as poultry killer. Woodmansee informed
him that he would be given a "last chance." On November 8, 1939,
Painter again failed to clean the cheese room properly. Evans ascer-
tained this fact on the following morning before Painter reported
to work and called the matter to Woodmansee's attention. Wood-
mansee and Evans discussed the matter and decided that because of
Painter's long service, the disposition of Painter's case was to be
referred to the respondent's main office at Chicago, Illinois, which
subsequently approved Woodmansee's recommendation that Painter
be discharged. When Painter arrived at the plant Evans told him
that he had failed to clean the cheese room and advised him that
he was suspended.' At the hearing Painter did not deny'that he had
failed to perform his work properly or that he was so informed by
the respondent, but as regards certain delinquencies sought to excuse
his performance.
While the above-mentioned conduct and statements of Ramsey and
Black constituted interference, restraint, and coercion, within the
meaning of the Act, and we so find, we are satisfied that the respond-
ent regarded Painter as an unsatisfactory employee and that he was
discharged for this reason. We shall dismiss the allegations of the
complaint relating to the discharge of Painter.
Ruth Hamman entered the employ of the respondent on August 19,
1936, and thereafter worked intermittently for the respondent in the
picking department until she was discharged on July 24, 1939.
Hamman joined the Amalgamated on about April 1, 1939, during
a lay-off. In the latter part of April, while still laid off, Hamman
visited the plant and, during a conversation with another employee,
Evans approached her and stated that he understood she had been
soliciting membership on behalf of the Amalgamated. Hamman
stated she knew nothing about the Amalgamated, whereupon Evans
replied that he had been informed that she was soliciting and warned
that he "didn't want anything like that going on in the plant."
Shortly thereafter, on May 6, Hamman was reinstated by the
respondent to peel chickens.
The respondent pays chicken peelers at the piece rate of 90 cents
for 100 chickens peeled. At the time Hamman was reinstated, em-
ployees engaged in this work were expected by the respondent to peel
a minimum average of 31 chickens per hour, which would net them
271/2 cents an hour, the minimum pay required by the terms of the
Fair Labor Standards Act. It was unprofitable for the respondent
to retain employees who failed to maintain this average. An analysis
of Hamman's production made by the respondent shows that she
failed to maintain the average of 31 chickens picked per hour on
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21 of the 50 days comprising her final period of employment.
Weekly earnings of peelers are computed by dividing.the number of
chickens picked per week by the number of hours worked per week.
Upon this basis, Hamman maintained the fixed average for the last
2 weeks of her employment.
During July Evans repeatedly reprimanded Hamman for failing
to maintain the fixed average and warned her that failure to do so
would result in dismissal. On July 24 Hamman• failed to maintain
her average. On 'the next working day in her department, as Ham-
man entered the plant, Evans approached her, told her that she failed
to maintain her average on the previous working day, and discharged
her.
Although some doubt is cast upon the respondent's claim that
Hamman was discharged for failing to maintain the fixed average
by the fact that she maintained such average during the last 2 weeks
of her employment, we agree with the Trial Examiner's finding that
the record does not support the allegations of the complaint that
Hamman's discharge was discriminatory within the meaning of the
Act. Accordingly, we shall dismiss such allegations.
H. Owen Searles began to work for the respondent on May 25, 1939.
Following a lay-off from work within the plant, Searles was employed
by the respondent as a truck driver on August 28, 1939, and worked
in this capacity until his discharge on October 13, 1939. Searles
joined the Amalgamated on September 29, 1939, but was not active
in union affairs. The respondent contends that Searles was dis-
charged for negligence in the operation of his truck: The record
shows that during the month and one-half that Searles was employed
as a truck driver two tires blew out on his truck, and the motor was
considerably damaged as the result of Searles' driving the truck while
the fan belt was broken. Searles' own testimony establishes his
negligence with regard to the latter occurrence, and the record shows
that Evans and Woodmansee entertained a reasonable belief, based
upon information from the mechanic in charge of the trucks, that
Searles' negligence was responsible for the last blow-out, which im-
mediately preceded his,discharge. We are satisfied, and we find,
that Searles was not discharged because of union membership or
activity. We shall dismiss the allegations of the complaint in respect
to the discharge of Searles.
C. The alleged, refusal to bargain collectively
The complaint, as amended, alleges that prior to June 3, 1939, and
at all times thereafter, the Amalgamated was the exclusive repre-
sentative of a. majority of the employees in the unit alleged to be-
appropriate and that on or about June 3, 1939, and thereafter, the
respondent refused to bargain collectively with the Amalgamated.
SWIFT & COMPANY 575
On June 3, 1939, the Amalgamated requested the respondent to
recognize and otherwise bargain collectively with it as statutory
-representative. The respondent refused the request on the ground
that it had received a like request from the Independent, and ad-
vised the Amalgamated that it would not bargain collectively until
the Board resolved the issue of majority designation. No further
request for collective bargaining was made by the Amalgamated.
The Trial Examiner found that the evidence was insufficient to
establish that the Amalgamated was at any time material herein
the statutory representative of employees of the respondent, and,
accordingly recommended that the aforesaid allegations of the com-
plaint be dismissed. We have considered the evidence offered in sup-
port of the allegations of majority designation by the Amalgamated,
and we are satisfied, and we find, that the evidence is insufficient, to
substantiate said allegations.- Since the Amalgamated took no excep-
tions to the finding and recommendation of the Trial Examiner, we
shall not review the evidence in detail. We shall dismiss the allega-
tions of the' complaint that the respondent has refused to bargain
collectively with the Amalgamated, within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON ` COMMERCE
We find that the activities of, the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and between the States and foreign countries, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It is essential to an effectuation of the purposes and policies of the
Act that the respondent be ordered to cease and desist from the unfair
labor practices in which we have found it to have engaged, and, in
.aid of such order and as a means of removing and avoiding the
consequences of such practices, that the respondent be ordered to
take certain action more particularly described below.
We have found that the respondent dominated and interfered with
the formation and administration of, and supported the Independent.
The continued existence of the Independent constitutes an obstacle
to the exercise by the respondent's employees of the rights guaranteed
in the Act. To' remove the impediments thus established, we shall
.'direct the respondent to withhold recognition from the Independent
as a representative of its employees and to disestablish that organiza-
tion as such representative. - '
576 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have also found that the respondent refused to hire Rosemary
Rogers because she failed and refused to join the Independent. To
effectuate the purpose and policy of the Act, we shall order the re-
spondent to offer immediate employment to Rosemary Rogers at the
same or a substantially equivalent position at which she would have
been employed on May 5, 1939, had not the respondent unlawfully
refused to hire her, and to make.her whole for any loss of pay she
may have suffered by reason of, the respondent's unlawful refusal to
hire her by payment to her of a sum of money equal to that which
she normally would have earned as wages from M,-y 5, 1939, the
date of the refusal to hire, to the date employment is offered to her,
less her net earnings 24 during said period.25
Finally, we have found that the respondent discharged Ehiora Tip-
pitt because she failed to refused to join the Independent. We shall
order the respondent to offer Tippitt immediate and full reinstate-
ment to her former or a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and to
make her whole for any loss of pay, she may have suffered by reason
of her unlawful discharge, by payment to her of a sum of money
equal to that which she normally would have earned as wages from
the date of her discharge to the date of the offer of reinstatement,
less her net earnings during said period.26. Inasmuch as the Trial
Examiner failed to find that said discharge was discriminatory, with-
in the meaning of the Act, the respondent, in accordance with our
usual rule ,27 will be relieved from paying her back pay 'with respect
to the period from the date of issuance of the Intermediate Report,
July 20, 1940, to the date of our order.
VI. THE QUESTION CONCERNING REPRESENTATION
As stated in Section III, D, supra, the respondent refused to recog-
nize or otherwise bargain collectively with the Amalgamated as
statutory representative until so certified by the Board. In its an-
swer the respondent denies that the Amalgamated has been designated
as statutory representative. Evidence was introduced at the hear-
24 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 respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R . B. 440. Monies received
for work performed upon Federal , State, county , municipal, or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela-
tions Board, 311 U. S. 7.
25
Matter of Waumbeo Mills, Inc and United Textile Workers of America, 15 N. L. R. B.
37, enf'd as mod., N. L. R B. v . Waumbeo Mills, Inc} 114 F. (2d) 226 (C. C. A 1).
N See footnote 24, supra.
27 Matter of E. R. Haffelfinger Company, Inc . and United Wallpaper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760, 767.
SWIFT & COMPANY 577'
ing showing that a substantial number of employees within the unit
hereinafter found to be appropriate designated the Amalgamated
as their, representative for the purposes of collective, bargaining.
We find that a question has arisen concerning the representation
of employees of the respondent.
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 Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
At the hearing the Amalgamated contended that all production and
maintenance employees at the Springfield plant, excluding foremen,
supervisory employees, office and clerical employees, and truck drivers
who drive trucks more than 50 per cent of the time, constitute a unit
appropriate for the purposes of collective bargaining. The respond-
ent objected to the exclusion from the unit of truck drivers, and
contended that the general foreman, the manager, and assistant
manager were the only supervisory employees at the Springfield
plant.
Truck drivers. The respondent employs about six or seven truck
drivers who are engaged principally in purchasing farm products
from dealers and farmers, in delivering such products to the Spring-
field plant, and in delivering finished products from the Springfield
plant to-purchasers or to terminal points for further delivery. Evans
testified that "they are quite exclusively truck drivers." They gen-
erally spend from one and one-half to 3 hours each day loading
and unloading their trucks, and_ occasionally are assigned to pro-
duction work inside the plant in seasons when there is little pur-
chasing or delivery work to be performed. Truck drivers are paid
on an hourly basis, and although there is little difference in their
rate from that paid production employees, they generally work more
hours a week than production employees. Inasmuch as truck drivers
are authorized by the respondent to sign its checks in payment for
purchases, they are bonded. While the Amalgamated has enrolled
truck drivers of the respondent as members, it has done so in con-
formity with its practice of enrolling as members truck drivers who
are not members of the "truck drivers' union" and transferring mem-
bers who drive trucks "more than 50 per cent of the time" to mem-
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership in said truck drivers' union "at the proper time." Since
their duties differ from those of the plant production employees, in
view of the practice and intention of the Amalgamated to transfer
their membership-to another labor organization having appropriate
jurisdiction, and because the only lawful labor organization here
involved desires their exclusion, we shall exclude from the unit truck
drivers who drive trucks more than 50 per cent of the time.28
Supervisory employees. We have found above that Black, Ramsey,
Fesperman, and Sawyer, were supervisory employees. The record
also shows that Lehman, Durnell, Conkright, and Lee 29 are em-
ployees performing supervisory functions in the cheese, feeding, and-
receiving departments, respectively. The Amalgamated, which is
the only, lawful labor organization here involved, ' desires that these
employees be excluded. While the record shows that these persons
are eligible for membership in the Amalgamated, and that two such
employees, Conkright and Lee, are members of the Amalgamated,
we believe that the activities of certain of these employees, set forth
above, justify the position of the Amalgamated that all such em-
ployees be excluded from the unit.30 Accordingly, we shall exclude
Black, Ramsey, Fesperman, Sawyer, Lehman, Durnell, Conkright,
and Lee from the bargaining unit.
We find that all production and maintenance employees of the
respondent at its Springfield plant, excluding foremen, supervisory
employees, office and clerical employees, and truck drivers who drive
trucks more than 50 per cent of the time, constitute a unit appro-
priate for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment, and that said unit insures to the employees of the respond-
ent the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret
ballot among employees in the appropriate unit to determine their
desires with regard to representation. In accordance with our cus-
tomary procedure we shall select the pay-roll period next preceding
28 Cf. Matter of Swift & Co . et at. and Committee for Indust, cal organization on behalf
of the Employees of Swift & Co, at at., 11 N. L. It. B. 950.
z' See footnotes 4 and 15, supra.
so See Matter of Consumers Power Company and International Brotherhood of Electrical
Workers, Local 876, 10 N L. R B. 780; Matter of Jones Lumber Company, et at and
Lumber and Sawmill Workers Union, Local No. 2877, chartered by United Brotherhood of
Carpenters and Joiners of America , affiliated with the American Federation of Labor, at at,
12 N L. It. B. 209 ; Matter of Ford Motor Company and United Automobile Workers of
America, Local No. 325, 23 N L. R. B. 342
SWIFT & COMPANY 579
the date of the Direction of Election as determinative of eligibility
to vote. '
At the hearing the Amalgamated raised an objection to permitting
so-called "seasonal employees" to participate in the election, but did
not further define the persons falling within such classification. , The
record shows that there is considerable seasonal fluctuation in em-
ployee personnel in the various production departments at the Spring-
field plant. In this connection it is shown that the respondent's
employees fall roughly into three categories : (1) persons employed
continuously throughout the year; (2) persons hired for a "regular
job,"- but who are intermittently laid off and recalled to work in
accordance with seasonal volume; and (3) persons hired for tem-
porary work. As examples of those falling within the third category
Evans specified persons hired for a few, days to assist unloading a
carload of coal, lumber, or wool, and persons hired for as long as
2 or 3 weeks in the picking department during "rush periods" pre-
ceding Thanksgiving and Christmas. Evans testified that when cur-
tailment in operations requires the dismissal of persons in the second
category, their names are listed'and they are sought out for reemploy-
ment when needed. As regards persons in the third category, Evans
testified that no record is kept concerning them, and that he does
not customarily make any effort to reemploy them, although oil
occasion he sends for such persons if he needs them for temporary
work. We are satisfied, and we find, that employees in the first and
second categories are eligible to participate in the election. As re-
gards employees in the third category; i. e., employees hired for
temporary work, we are of the opinion that they do not have sufficient
expectancy-of continued employment to warrant their participation
in the selection of a bargaining representative. In the absence of a
clear definition of such employees, and since the longest period such
persons were shown to have served the respondent was estimated to
be about 3 weeks, we are of the opinion that this category of workers
may reasonably be defined to comprise all persons who worked during
15 or less days during 1 year preceding the pay-roll period used to
determine eligibility, and we shall direct accordingly.
The record also shows that the following regular employees re-
tain their seniority and are considered as employees in a laid-off
status by the respondent, unless they have accepted employment else-
where; employees with less than 5 years of service who have been
laid off for 30 or less working days; employees with 5 to 10 years
of service who have been laid' off for 60 or less working days; em-
ployees with 10 to 15 years of- service who have been laid off for
90 or less working days; employees with 15 to 20 years of service
who have been laid off -for 120 or less working days; and employees
440135-42-Vol. 30--38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with 20 or more years of service who have been laid off for 180 or
less working days. We are of the opinion that such laid-off em-
ployees are eligible to vote in the election, and we shall so direct.
We find that those eligible to, vote in the election shall be em-
ployees in the appropriate unit who were employed during the pay-
roll period next preceding the date of our Direction of Election,
including employees with less than 5 years of service who have been
laid off for 30 or less working days; employees with 5 to 10 years
of service who have been laid off for 60 or less working days; em-
ployeeswith 10 to 15 years of service who have been laid off for
90 or less working days; employees with 15 to 20 years of service
who have been laid off for 120 or less working days; employees with
20 or more years of service who have been laid off for 180 or less
working days ; and also including employees who are ill or on vaca-
tion and employees who were then or have since been temporarily
laid off or absent because called for military service; but excluding
employees who have worked during 15 or less days during 1 year
preceding such pay-roll period; and also excluding employees who
have since quit or been discharged for cause.
Since the respondent has, by engaging in various unfair labor
practices, interfered with the exercise by its employees of the rights
guaranteed them by the Act, we shall not now set the date for the
election: We shall direct the election, however, upon receipt of in-
formation from the Regional Director that the circumstances permit
a free choice of representatives unaffected by the respondent's
unlawful acts.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 172, and Dairy and Produce Handlers' Union, are
labor organizations, within the meaning of Section 2 (5) of the
Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By dominating and interfering with the formation and admin-
istration of, and contributing support to, Dairy and,Produce Han-
dlers' Union, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8, (2) of the Act.
4. By discriminating 'in regard to the hire and tenure of employ-
ment of its employees, and thereby encouraging membership in
SWIFT & COMPANY 581
Dairy and Produce Handlers' Union and discouraging membership
in Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 172, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act. -
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the, meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not refused to bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, Local 172, within the meaning of Section 8 (5) of the Act, as
alleged in the complaint.
7. The respondent has not discriminated in regard to the hire
and tenure of employment of Everett Painter, Ruth Hamman, H.
,Owen Searles, and Glen B. Smith, as alleged in the complaint.
8. A question affecting commerce has arisen concerning the rep-
resentation of the respondent's employees, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
9. All production and maintenance employees of the respondent
at its Springfield plant, excluding foremen, supervisory employees,
office and clerical employees, and truck drivers who drive trucks
more than 50 per cent of the time, 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 Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Swift & Company, Springfield, Missouri, and its
;officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the admin-
istration of Dairy and Produce Handlers' Union, or with the for-
mation or administration of any other labor organization of its
employees, and from contributing support to Dairy and, Produce
Handlers' Union, or to any other labor organization of its
employees;
(b) Discouraging membership in Amalgamated- Meat Cutters and
Butcher Workmen of North America, Local 172, or any other labor
organization of its employees, by refusing to employ, discharging
or by laying off any of its employees or in any other manner dis-
criminating" in regard to their hire and tenure of employment or
any term or condition of their employment;
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coerc-
ing 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
concerted activities, for the purposes of collective bargaining or other
mutual aid and 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) Offer to Rosemary Rogers immediate employment at the
same or substantially equivalent position at which she would 'have
been employed on May 5, 1939, had not the respondent unlawfully
refused to hire her;
(b) Make whole Rosemary Rogers for any loss of pay she may
have suffered by reason of the respondent's refusal to hire her by
payment to her of a sum of money equal to that which she normally
would have earned as wages from May 5, 1939, the date of said
refusal to hire, to the date employment is offered to her, less her
net earnings 31 during said period;
(c) Offer to Elnora Tippitt immediate and full reinstatement
to her former or a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges;
(d) Make whole Elnora Tippitt for any loss of pay she may have
suffered by reason of her discharge by payment to her of a sum of
money equal to that which she would normally have earned as wages
from June 8, 1939,-the date on which she was discharged, to July 20,
1940, the date of issuance of the Intermediate Report, and from the
date of this Order to the date of offer of reinstatement, less her net
earnings 32 during said periods;
(e) Withdraw all recognition from and refrain from recognizing
Dairy and Produce Handlers' Union as the representative of any of
its employees for the purpose of dealing with the respondent in any
manner concerning grievances, labor disputes, rates of pay, wages,
hours of employment, or other conditions of employment, and com-
pletely disestablish Dairy and' Produce Handlers' Union as such
representative;
(f) Post immediately in conspicuous places throughout its plant
in Springfield, Missouri, and maintain such notices for a period
of at least sixty (60) days from the ' date of posting, notices to its
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), and (c) of this Order; (2) that the respondent will take
m See footnote 24, supra.
12 See footnote 24, supJ a.
SWIFT & COMPANY 583
the affirmative action set forth in paragraphs (a), (b), (c), (d),
and (e) of this Order; (3) that the respondent's employees are free
to become and remain members of Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 172; and that the re-
spondent will -not discriminate against any employee because of
membership in or activity in or in behalf of said labor organization;
and -
(g) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, in
so far as it alleges that the respondent engaged in unfair labor prac-
tices with respect to the hire and tenure of employment of Everett
Painter, Ruth Hamman, H. Owen Searles, and Glen B. Smith; and
in so far as it alleges that the respondent engaged in unfair labor
practices by refusing-to bargain collectively with Amalgamated Meat
Cutters and Butcher Workmen of North America, Local 172, be, and
the. same hereby is, dismissed..
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Decision and Order.