Tovrea Packing Company, a Corporation

National Labor Relations Board - Board Decisions

May 18, 1939

12 N.L.R.B. 1063 (N.L.R.B. 1939)

In the Matter of TOVREA PACKING COMPANY , A CORPORATION and
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, LOCAL No. 313
Case No. C-622.-Decided May 18, 1939
Meat Packing Industry-Interference, Restraint, and Coercion: anti-union
statements and activity by supervisory employees-Company-Dominated Union:
reorganization of admittedly company-dominated union coinciding with drive
of outside union ; supervisory officials resign from office in inside union but
select successor ; continued interest of supervisors in inside union; promise to
recognize inside union as exclusive bargaining agent by company prior to its
complete reorganization ; reorganization of inside union a subterfuge to forestall
organization of outside union ; favoritism of inside union as contrasted with
expressed opposition to outside anion ; disestablishment of and abrogation of
contract with company-dominated union-Employee Status: agricultural la-
borer ; individuals employed by meat-packing company to feed and care for
cattle held in feed lots adjacent to packing plant, where majority of cattle so
cared for are processed by company, held not agricultural laborers-Labor
Organization : defined ; committee chosen by employees for purpose of dealing
with employer concerning rates of pay as-Discrimination : discharge of em-
ployee for acting on employee committee to obtain increase in wages, discourag-
ing membership in a labor organization ; discharge and lay-off of employees for
joining and acting on behalf of outside union; charges of, dismissed as to some
employees-Reinstatement-Back Pay: awarded-Collective Bargaining: charges
of refusal to, dismissed ; unit consisting of only part of plant unit held inappro-
priate, plant functioned as integrated unit, drive for membership on plant-wide
basis, no showing of craft or functional differences in unit claimed appropriate.
Mr. David Persinger, for the Board.
Ellimwood c Ross, by Mr. Denison Kitcltel and Mr. William A.
Evans, of Phoenix, Ariz., for the respondent.
Mr. Jesse Palmer, of Phoenix, Ariz., for the Union.
Mr. Harold L. Divelbess, of Phoenix, Ariz., for the Association.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No.
12 N. L. It. B., No. 106.
1063
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
313,1 herein called Local 313, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Twenty-
first Region (Los Angeles, California), issued its complaint dated
February 24, 1938, against Tovrea Packing Company, Phoenix,
Arizona, herein called the respondent, alleging that the respondent had
engaged 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 National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and the accom-
panying notice of hearing were duly served upon the respondent,
upon Local 313, and upon the Tovrea Employees' Association, herein
called the Association, a labor organization. On March 4, 1938, the
Association filed a motion to intervene in this proceeding, and on
March 9 the motion was granted by the Regional Director.
The complaint alleged, in substance, (1) that the respondent did
discharge and refuse to reinstate 27 named individuals for the reason
that each of them joined and assisted Local 313 or Local 448 and
engaged in concerted activities with other employees for the purpose
of collective bargaining and other mutual aid and protection; (2)
that by such acts respondent discriminated against each of the named
individuals in regard to their hire and tenure of employment, and by
so doing the respondent was and is discouraging membership in a
labor organization; (3) that the respondent, subsequent to January 1,
1938, did dominate and interfere with the formation and adminis-
tration of the Association; (4) that the respondent on January 24,
1938, and thereafter did refuse to bargain with Local 448 which had
been duly designated as the bargaining agent of a majority of the
respondent's employees in an appropriate unit; and (5) that the fore-
going activities of the respondent constituted unfair labor practices
within the meaning of Section 8 (1), (2), (3), and (5) of the Act.
The respondent in its verified answer, dated March 10, 1938, denied
that it had engaged in any unfair labor practices, and further alleged
that all but 4 of the 27 named individuals were employed as "agri-
cultural laborers" at the time of their severance from the respondent's
pay roll, within the meaning of Section 2 (3) of the Act and are,
therefore, exempt from the jurisdiction of the Board.
Pursuant to an amended notice, a hearing was held in Phoenix,
Arizona, on March 14, 15, 16, 17, and 18, 1938, before Jesse E. Jacob-
son, the Trial Examiner duly designated by the Board. The Board,
the respondent, and the Association were represented by counsel.
Local 313 and Local 448 appeared by its representative. Full oppor-
1 At the hearing the complaint was amended without objection to show that Local No.
448 of the Amalgamated Meat Cutters and Butcher Workmen of North America , herein
called Local 448, was also a party to the proceeding.
TOVREA PACKING COMPANY 1065
tunity to be heard, to examine and to cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing counsel for the Board moved to
amend the complaint so as to include the names of Clyde Williams
and Afton Wilson as having been discharged on December 1, 1937,
and to include the name of D. B. McCarty as having been discharged
on November 30, 1937, and to further amend the complaint to change
the date of the discharge of Woodrow Wilson from November 15 to
November 29, 1937. The Board's counsel also moved to dismiss the
complaint without prejudice as to N. Gregson, Columbus Still, Her-
man Schindler, Henry T. Romo, and Tom Overly. There being no
objections, the motions were granted by the Trial Examiner. These
rulings are hereby affirmed.
At the conclusion of the Board's case and at the conclusion of the
entire proceeding, counsel for the respondent moved to dismiss the
complaint as to all the remaining named individuals, except James
Allred and Fred Bledsoe, on the grounds, that such individuals were
"agricultural laborers"; that there was no evidence to show that the
alleged unfair labor practices have led or tend to lead to a labor
dispute burdening or obstructing commerce; and that any jurisdic-
tion attempted to be exercised by the Board in this proceeding would
be in contravention of the Tenth Amendment of the Constitution of
the United States of America. These motions were denied by the Trial
Examiner. These rulings are hereby affirmed. During the course of
the hearing other rulings were made by the Trial Examiner on mo-
tions and on objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
On May 11, 1938, the Trial Examiner filed his Intermediate Report
finding that the respondent had engaged in and was engaging in un-
fair labor practices within the meaning of Section 8 (1), (2), and (3)
and Section 2 (6) and (7) of the Act, and recommending that the
Board, issue a cease and desist order restraining the respondent from
certain unfair labor practices; order the respondent to reinstate 23
named individuals; and order the respondent to disestablish the Asso-
ciation as a bargaining agent for its employees. With regard to the
alleged violation of Section 8 (5) of the Act, the Trial Examiner
found the unit stated in the complaint as amended at the hearing to
be inappropriate for the purposes of collective bargaining and, there-
fore, recommended the dismissal of the charge.
Exceptions to the Intermediate Report and a brief were thereafter
filed by the respondent. On August 9, 1938, pursuant to a request by
the respondent, oral argument was had before the Board, at Wash-
ington, D. C. The respondent and Locals 313 and 448 were repre-
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented at the oral argument. Thereafter the representative of the
unions submitted a brief in support of the Trial Examiner's findings.
The Board has duly considered the exceptions to the Intermediate
Report, the briefs filed by the respondent and the unions, and the
oral arguments made before it.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE RESPONDENT
Tovrea Packing Company is an Arizona corporation engaged chiefly
in the purchase, feeding, and slaughtering of livestock, and the proc-
essing and marketing of the products therefrom. During the years
1936 and 1937, the respondent purchased raw materials , other than
livestock, valued at $1,423,668.10, of which 18 per cent were shipped
from points outside the State of Arizona. During the same years,
the respondent purchased 239,997 head of livestock from the ranges
and feed lots of Arizona, New Mexico, Texas, and Oklahoma at a
cost of $6,098,459.17, of which 38 per cent were shipped from States
other than the State of Arizona. Also for 1936 and 1937 the respond-
ent sold, processed, and manufactured products valued at $9,587,-
019.259 of which 28 per cent were shipped to points outside the State
of Arizona.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, Local Nos. 313 and 448, are labor organizations affiliated with the
American Federation of Labor. Local No. 313 is known as the stock-
handlers division of the union, admitting to its membership the feed
lot and feed mill employees of the respondent. Local No. 448 admits
to membership all packing-house employees of the respondent, ex-
cluding supervisory employees, clerical help, and truck drivers.
Tovrea Employees' Association is an unaffiliated labor organization,
admitting to membership the respondent's employees, excluding feed
lot and feed mill employees, and supervisory employees having the
authority to hire and discharge.
III. "AGRICULTURAL LABORER"
The present controversy concerns the respondent's employees
engaged in the feeding of cattle and in the preparation of feed at the
respondent's feed lots and feed mill. The respondent contends that
these workers are agricultural laborers and therefore not "employees"
within the meaning of Section 2 (3) of the Act. With reference to
this contention we shall briefly describe the work of the employees
and the operations of the respondent.
TOVREA PACKING COMPANY 1067
Eight or nine of the employees herein involved were working at
the respondent's feed mill located on the respondent's property next
to its packing plant. The feed-mill employees were engaged in the
grinding of hay and grain, and the mixing of hegira ensilage,
chopped hay, grain, cottonseed meal, and molasses, by machines or
by hand. When the feed is mixed it is loaded on trucks or wagons
and distributed by the feed lot employees to the cattle.
The chief task of the feed lot employees is the hauling and dis-
tribution of feed by wagon or motor truck to the cattle held in the
feed lot pens. In some sections the wagons are pulled by tractors
instead of teams. The feed lot employees also clean out the feed and
water troughs, gather up the manure, stack hay, repair fences, and
doctor sick cattle. The respondent employs from 12 to 30 feed lot
employees.
The evidence which was submitted by the respondent at the hearing
shows that the cattle fed by the feed lot employees are obtained full
grown from ranches and ranges in Arizona, New Mexico, Texas, and
Oklahoma. They are held for fattening in the respondent's feed
pens for periods from 30 days to 6 months, depending upon their
condition when received. After the fattening process, most of the
cattle are transferred to the respondent's retaining pens ready for
the slaughtering process at the respondent's plant. In 1936 approxi-
mately 60 per cent of the cattle fattened in the respondent's feed lots
adjacent to its plant were slaughtered and processed at its packing
plant, while 40 per cent were shipped to the market for sale. In 1937
approximately 54 per cent of the cattle slaughtered and processed at
the respondent's plant came from its feed lots, while 46 per cent
came from outside sources.
The respondent contended that the feed lots were maintained
independently from its packing plant. In view of the evidence
above and in view of the fact that both the feed lots and packing-
plant operations are controlled and directed by W. L. Bainbridge,,
respondent's general manager and vice president, it is hardly con-
ceivable that such is the case. A more logical conclusion is that
the feed lots and feed mill are maintained as an incident to and as a
part of the packing-house operations of the respondent, and we so.
find.
In support of its contention that the feed mill and lot employees
are agricultural laborers, the respondent produced as witnesses a
number of ranchers who testified, substantially, that the work done
by laborers on their ranches was identical to the work done by the
feed lot and feed mill employees of the respondent. The respondent
also proffered the opinion of Dr. E. L. Scott, livestock manager for
Western Managed Farms Company, and a duly qualified expert in
agricultural matters, to the effect that the respondent's employees in
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the feed lots and feed mill are engaged in the feeding and mainte-
nance of livestock and should be classified as agricultural laborers.
While the raising, feeding, and management of livestock is nor-
mally agricultural in nature, the determination of whether or not
the feed lot and feed mill employees of the.respondent are engaged
as "agricultural laborers" within the meaning of the Act is not
easy. Under modern conditions, industry and agriculture so shade
into each other that it is often difficult to draw the line dividing
them. We are aided somewhat in this decision by considering the
decisions of other Federal agencies.
The term "agricultural labor" as used in the Social Security Act z
has been defined by the Treasury Department, Bureau of Internal
Revenue, and the Social Security Board. We have already had occa-
sion to examine those rulings in two of our previous decisions.3 Such
rulings may be summarized in the proposition that employees are
not "agricultural laborers" unless (1) they are employed by the owner
or a tenant of a farm on which the products in their raw or natural
state are produced, and (2) unless such employees are engaged in
work that is carried on as an incident to or in connection with ordi-
nary farming operations as distinguished from manufacturing or
commercial operations.
The fact that part of the respondent's operations are similar to
certain of those which are performed on ranches' does not make the
respondent a rancher in the ordinary sense of that word. Since the
respondent performs only the final step in the whole process of
raising cattle, it is not to be classified as the owner or tenant of a
ranch on which the products in their raw or natural state are pro-
duced. Furthermore, the work done by the feed lot and feed mill
employees is, on the whole, incidental to the commercial activities
of the respondent carried on at its packing plant, rather than inci-
dental to ranching operations.
Under all the circumstances of the case we conclude that the
persons employed by the respondent in its feed lots and feed mill
adjacent to its packing house are not employed as "agricultural
laborers" within the meaning of Section 2 (3) of the Act.
9 It is significant to note that both the respondent and its feed lot and feed mill employees
contribute to the payment of the Social Security tax.
S See Matter of North Whittier Heights Citrus Association and Citrus Packing House
Workers Union, Local No t1091, 10 N L R B 1269; Matter of American Fruit Grow-
ers, Inc., et at. and Fruit & Vegetable Workers Sub-Local of #191, UCAPAWA , C. 1. 0.,
10 N. L . R. B 316.
' The term "farm," as used in the regulations of the Treasury Department, embraces the
farm in the ordinary accepted sense, and includes ranches.
TOV"IEA PACKING COIIPAN Y
IV. THE 'UNFAIR LABOR PRACTICES
A. The discharges
1. Bond B. Henry
1069
In October 1937 the rates of wages in force in the feed lots and
feed mill were 25 cents per hour for the first 6 months of employ-
ment and 30 cents per hour thereafter. The hours were 9 a day and
•63 a week. The employees were becoming dissatisfied with these
-conditions and there is some indication in the record that a strike
was being contemplated.
On October 24, 1937, Bond B. Henry, an employee in the feed lots,
was asked by Walter LeBarron, foreman of the feed lots and mill,
if the men were talking of striking. Henry denied any knowledge
of a strike, but did state to LeBarron that the men were dissatisfied
with the rate of pay they were receiving. LeBarron then suggested
that Henry call a meeting of all the employees in the feed lot to
select a committee to meet with W. L. Bainbridge, general manager,
or Phillip Tovrea, president of the respondent, for the purpose of
securing better pay. On October 25, pursuant to the suggestion, a
group of employees met and nominated Henry, Cline, another em-
ployee in the feed lot, and LeBarron as a committee of three to meet
with the management. LeBarron, on being notified of his selection,
stated that he would go up to the office and get an appointment with
the management.
Later in the afternoon on the same day, Cline came to Henry and
stated that he had talked with LeBarron and both of them had
thought that while it would be all right to ask the management for
an advance in pay for the employees who drove the teams and had
charge of the cattle, it would not be advisable to ask for a general
wage increase . Henry stated his conviction that such a proposal
would not be fair to the other employees in the feed lots and made
a counter suggestion to the effect that the committee should ask for
a 10 cents an, hour raise for all the employees in the feed lots. Noth-
ing more was said at that time.
The following day at noon time, Cline approached Henry and
stated that he had heard that there was a report up in the office that
"we were going to have a strike and if we went up to the office we
would all get canned," and that, therefore, he was withdrawing from
the committee. At the end of the day, Henry was discharged by
LeBarron. The reason given for the discharge was that he was not
giving the cattle enough feed. Henry denied that he had failed to
give the cattle enough feed and told LeBarron that he did not think
that that was the reason. LeBarron refused to state any other reason,
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saying, "I'll tell you, Bond. I am on the spot. I cannot talk. I have
got to make a go of this."
The reason advanced by LeBarron for Henry's discharge does not
seem plausible in view of the following facts. Henry had been em-
ployed by the respondent for more than a year prior to his discharge
while the average length of employment in the respondent's feed lot
was but 3 months. During Henry's employment no complaints had
been made of his work. From these two facts we conclude that he
had proved to be a satisfactory employee.
From the testimony showing that Cline, who apparently was in
close contact with LeBarron, had resigned as a member of the com-
mittee for fear of being discharged; the implausible reason for
Henry's discharge given by LeBarron; the language used by Le-
Barron when pressed by Henry for a more logical reason for his
discharge, we conclude that Henry's activities on behalf of the em-
ployees for a raise in wages were the real reason for his discharge.
We therefore find that Bond Henry was discharged because of his
active leadership of the employees in their demands for higher wages.
Section 2 (5) of the Act defines the term "labor organization" as
meaning "any organization of any kind, or any agency or any
employee representation committee or plan in which employees par-
ticipate and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work." [Italics
ours.] In view of the fact that Henry was a member of a committee
chosen by the employees for the purpose of dealing with the respond-
ent concerning their rates of pay, we conclude that he was acting
on behalf of a labor organization. We find, therefore, that the
respondent has discriminated against Bond Henry with regard to
the hire and tenure of his employment, thereby discouraging mem-
bership in a labor organization. We further find that by the acts set
forth above the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Woodrow Wilson, Wilford Henry, Claude Wayne Berry, and
De Ward McCarty
During the latter part of November 1937, Local 313 of the union
began an organizational drive among the feed lot and feed mill
employees of the respondent . On November 26 the union had its
first meeting, at which a large number of the feed lot employees
joined Local 313 . - On November 29 the union had its second meeting,
at which officers were elected . We deem it pertinent to note that
the discharges and the so -called lay-offs occurred immediately after
TOVREA PACKING COMPANY 1071
the organizational drive of Local 313 began and effectively prevented
its completion.
Woodrow Wilson started to work for the respondent on May 25,
1935. He worked until November 1935, returned again to work
for the respondent on August 15, 1936, and worked continuously until
he was discharged on November 29, 1937. He joined Local 313 on
November 26, 1937, and was elected its president on the 29th. Prior
to his discharge, he had been made "strawboss" of the feed mill by
the respondent. When he was discharged, LeBarron, his foreman,
informed him that he was being discharged because he had allowed
some wagons or trucks to be parked in a driveway between the mill
and the manger in such a manner that the cattle being driven along
the lane were forced to jump over the feed lot troughs and as a
consequence some of the cattle fell and others were knocked down.
Wilson denied that he was the cause of the trucks or wagons being
parked where they were and informed LeBarron of that fact. Wilson
testified that LeBarron then told him that he was not being discharged
for that cause but it was because he had gone to the union meeting on
the 26th. Wilson further testified that LeBarron "told me to go
home and say nothing about the union or to go to any of the meet-
ings, and I would be back to work in a few days." Joe Wilson, who
was present during the conversation, corroborated the testimony of
his brother.
LeBarron denied the above statements attributed to him by the
Wilsons and testified to the effect that Woodrow Wilson had been
discharged for the wagon-parking incident and because he had failed
to attend to his duties properly at the feed mill after being repeatedly
warned about the matter. Wilson denied that he had been negligent
in his duties and also denied responsibility for the parking of the
wagons. The Trial Examiner, who had an opportunity to observe
the demeanor of the witnesses, resolved the above conflicting evidence
by finding that Woodrow Wilson was discriminatorily discharged.
We find in accordance with the Trial Examiner upon the following
analysis of the evidence. Wilson had been employed by the respond-
ent for several years and his services were of such a nature that he
had been promoted to the position of strawboss in the feed mill. It
seems unlikely that such a person would be discharged for the reasons
alleged by LeBarron. We are convinced by the above analysis and
by Wilson's testimony, to which we grant credence, that his union
activity was the motivating cause for his discharge, and we so find.
Wilford Henry started to work for the respondent at the feed lots
on June 12, 1937. He was first given a job shoveling manure, and
after a few days he was put on a feed wagon as a helper. Later he
was given a team and wagon of which he had complete charge.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ten days prior to his discharge he was transferred to driving a truck
for the respondent. These successive advances indicate quite clearly
that Henry was considered a good worker by the respondent. He
joined Local 313 on November 26 and was elected its vice president
on the 29th. He was discharged on November 30, 1937. Prior to
his discharge, he had been "talking organization," and LeBarron had
told him that if he did not stop talking with the new hands, although
he was a pretty good feeder, he would be obliged to lay him off.
At the time of his discharge, Henry was told that he was being dis-
charged because he had left a feed lot gate open and allowed some
cows to get out. Henry denied that he had left the gate open and
told LeBarron that that was not the reason for his discharge.
The respondent did not offer any witnesses to corroborate LeBar-
ron's charge. In view of this fact and LeBarron's previous threat to-
discharge Henry for "talking" to new employees, we find that the
respondent discharged Wilford Henry on November 30, 1937, because
of his union affiliation and activities, thereby discriminating against
him in regard to hire and tenure of employment.
Claude Wayne Berry was employed by the respondent from Octo-
ber 3. 1936, to December 1, 1937, at which time he was discharged.
He had joined Local 313 on November 26, 1937, and was elected to the
position of gdide. He testified that the day after he had joined Local
313, LeBarron asked him whether he had joined the union, to which
he replied that he had. Berry further testified that on the day of
his discharge he saw LeBarron coming toward him together with an
employee who was to replace Berry. Berry looked up upon their
arrival and realizing LeBarron's purpose said, "I guess I'm next."
LeBarron replied, "Yes, I hate to say so, but I have a man here to
take your place." LeBarron then asked Berry to show the other
employee his duties, while LeBarron went to the office to get Berry's
time slip. The reason written on Berry's time slip for his discharge
was that his work was unsatisfactory. Upon reading this Berry
exclaimed, "Evidently it is, but if anybody in the world could work
for Mr. Tovrea and please him, that is an impossibility."
LeBarron denied that Berry had been discharged for his union
activities or membership and stated that his discharge came about
under the following circumstances. Berry had been in charge of the
watering troughs, and it was his duty to see that they were properly
taken care of. Several days prior to his discharge the watering
trough in "Section All of the feed lot overflowed and caused an
unhealthy condition for the cattle in that section. LeBarron investi-
gated the flood and discovered that it was due to Berry's failure to
attend to his duties. Berry told LeBarron that he had not had time
tc make the necessary adjustments. LeBarron instructed Berry that
TOVREA PACKING COMPANY 1073
the condition would have to be remedied. On the day before Berry's
discharge the corral in "Section C" was flooded under similar circum-
stances. This led to Berry's replacement. While Berry denied that
he had been lax in his duties and claimed that he was not responsible
for the overflows, he admitted that the troughs of which he had charge
had overflowed on numerous occasions. Under all the circumstances
we are not persuaded by Berry's denial of responsibility.
While the case is not free from doubt we are not convinced by the
record that Berry was discharged because of his union affiliation.
We shall therefore dismiss the complaint as to him.
De Ward McCarty started to work for the respondent in October
1937. At the time of his discharge he was employed as a night watch-
man for the respondent. McCarty testified that on Sunday night,
the 28th of November, while he was on duty, he became ill; feeling
he could not continue working he turned over his night watchman's
clock to the other night watchman, who promised to turn in his clock
for him and take care of McCarty's watch area for the night.
Although McCarty attended the union meeting on Monday night and
joined Local 313, he felt he was not well enough to return to work
then and he did not do so. McCarty failed to report to any super-
visory official that he was sick. When he returned to work on the
30th, he was told by LeBarron that, because of his failure to report
his sickness, another man had been put in his place. LeBarron and
McCarty then went to the respondent's office to see if the matter could
be straightened out. It was decided by the management that since
LeBarron had already placed another man in McCarty's place that
McCarty should be discharged.
In view of the above facts we conclude that McCarty was not dis-
charged because of his union affiliation.
B. The so-called lay-offs
1. Feed lot employees
The remaining named individuals 5 were, according to the com-
plaint, discharged because of their union affiliation or activity. The
respondent contends that they were not "discharged" but "laid off"
due to changes in operations. The word "lay-off" as distinguished
from "discharge" usually implies that the employee may be reem-
ployed at some future date. For our purposes it is immaterial which
word is used to designate the termination of employment. The issue
for our determination is whether or not the respondent discouraged
5 Coleman Pettit, Sebarne Spriggs, William Derendor , Sherman Moss, Earl Taylor, Jodie
Yowell , William Oldham, Winfield French, Afton Wilson , Ernest Robinson , Robert Harris,
Otis Crabtree , Hubert Thomas, Clyde Williams , Joe Wilson , Jess Williams , Forrest Pul-
liam, John Smith , James Allred , and Fred Bledsoe.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in the union, either by discharging or by laying off the
above-named employees. For the sake of the following discussion we
shall use the term "lay-off," preferred by the respondent.
The respondent contends that the so-called lay-offs in the feed lot
were necessitated by changes in operation, having nothing to do with
the union affiliation of the employees. Reasons advanced for the lay-
offs are, briefly, as follows : Sometime during the month of November
the respondent determined to reduce what it termed the exceptionally
high number of employees in the feed lots and to lower the cost of
production. In carrying out this twofold determination the re-
spondent proceeded to (1) hire leased trucks to replace teams and
wagons; (2) change the feed rations fed the cattle; and (3) reduce
the number of cattle held in the feed lots.
One of the first steps taken to reduce costs, according to Bain-
bridge, was the hiring of. leased trucks for the purpose of transport-
ing feed to the cattle. This step involved the hiring of independent
contractors to load and haul the feed to the mangers or feed troughs.
These contractors used their own trucks, hired their own help, and
were paid by the respondent on the basis of tonnage hauled. Bain-
bridge testified that by the hiring of leased trucks the respondent was
able to reduce its hauling cost from 33 cents to 30 cents a ton, and
that this change in operation naturally necessitated the lay-off of a
number of employees.
The respondent also points to the fact that the number of cattle
held in the feed lots was reduced from 20,000 head in November 1937,
to 10,000 in March 1938, and to 5,800 head on May 19, 1938.
Bainbridge stated at the hearing, that in making the reduction in
force LeBarron, foreman of the feed lot and feed mills, was given
complete power to determine who should be laid off, but was told that
because of the Act he was not to discriminate against any of the men
because of their union affiliation. LeBarron testified that in making
the lay-offs he retained the ones who, he thought, would be the best
hands and that he had no way of knowing which of the employees
belonged to the union.
The above statements made by LeBarron are controverted by the
testimony of Lee Leonard, an employee of the respondent, who was
subpenaed as a witness by the Board. He testified that during the
time of the discharges or lay-offs he had several conversations with
LeBarron relating to the union affiliation of the feed lot and feed mill
employees. In one conversation LeBarron asked him whether he had
gone to the union meeting and whether he knew of "any of the
boys that had been to the meeting." LeBarron inquired particularly
about "Jodie Yowell, Bill Oldham, Spriggs, Pete Henry, Johnny
Smith, Jim Derendor" and several others whose names the witness
could not remember. Leonard told him that Spriggs and Derendor
TOVREA PACKING COMPANY 1075
had been at the union meeting, but that he did not know about Smith,
Oldham, and Yowell. Leonard asked LeBarron whether he was
going to discharge all the union employees, to -which LeBarron re-
plied, "Everyone that I can find." Leonard expressed regret that they
were to be discharged and LeBarron replied that while he hated to
discharge them he had orders to do so and "you know, I have got to
hold my job." LeBarron also informed Leonard that if he went to
the union meeting "it would be too bad." At some later conversation
Leonard advised LeBarron to let "all the boys join the Union," but
LeBarron said, "No, you had better stay away from that meeting.
We're going to get you out, all the boys that join."
Aaron Lee Armstrong, who was still in the employ of the respond-
ent at the time of the hearing, testified that he asked LeBarron why
the men were being discharged. LeBarron replied, according to
Armstrong, that they were being laid off because of their union
affiliation. At a later conversation Armstrong asked LeBarron what
he thought of the union. LeBarron replied, that "it was no good,
and if I wanted to put my name on there I would get my time."
Early in January, Armstrong joined Local 313 but later threw his
pin away when he discovered that he was not getting as much work
as before. He testified that by throwing his pin away LeBarron
told him "he had fallen in line with the company."
The testimony of Glenn Kohl, a witness for the respondent, who
accompanied LeBarron while lay-offs were being made, sheds some
light upon the motives of the respondent in ordering the lay-offs.
Kohl's admitted purpose in riding around with LeBarron was as
follows :
Mr. Tovrea himself had asked me to go out and find out what
I could about the boys in regard to the union, I rode with Mr.
LeBarron to find out what I could about the thing. It was
something new and we wanted to know what it was about.
The following testimony of employees who were laid off serves
further to clarify the real motives of the respondent.
Coleman Pettit had been employed as a feeder in the feed lots. He
started to work on November 16, 1937, and his employment terminated
on November 29, 1937. Although he had not joined Local 313, Pettit
had been helping to organize the employees prior to the time of his
lay-off. He was dismissed by LeBarron, who gave as his reason
that they were cutting down on the help and, therefore, did not need
Pettit any longer. Pettit told LeBarron, "I don't think that's it,
Walter." LeBarron replied by saying, "Well, you are helping to
organize. You belong to the Union. We are going to get rid of all
them that do that."
169134-39-vol 12-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sebarne P. Spriggs was employed as a cattle feeder in the feed
pens and started to work on October 21, 1937. He joined Local 313
on November 26 and his employment ceased on November 29. Spriggs
had been working with Grant I. Scott and they were both laid off
at the same time. Scott started work on November 11, 1937, and
was still working for the respondent at the date of the hearing.
Scott was called as a witness for the Board and testified that while
he was laid off with Spriggs on November 29, he was immediately
put back to work after, he had assured LeBarron that he did not
belong to the union. At the time of his lay-off and before he was
reemployed he had a conversation with LeBarron in which he said,
"Walter, there is some misunderstanding. I have not joined the
Union." LeBarron said, "You haven't? You did not go to the
meeting the other night?" Upon receiving a negative reply, LeBar-
ron asked, "Can you prove that?" Scott replied that he could not
prove it unless LeBarron asked all the men who had been at the
meeting on the 26th. LeBarron then said, according to Scott, "Well,
I will take a chance on you if you will promise me that you will stay
out of this Union, keep your nose out of it, and not go back." Scott
was then allowed to go back to work.
William H. Derendor began work for the respondent on June 18,
1937, and filled various positions at the feed lot and feed mill. When
he was laid off on November 29, 1937, he was driving a dump truck.
His testimony was as follows : On November 29, at noontime, while
Derendor was on his way to lunch, he heard Robert Callis, who was in
charge of the livestock at the respondent's plant and ranches, tell
LeBarron that he would have to fire the men belonging to the union,
and that if he did not the Company would get someone who would.
Derendor started to cross the street and heard Callis tell LeBarron,
"There goes one of them now. Get him." LeBarron then approached
Derendor and said, "Jim, I will have to let you go. The work is com-
pleted." Derendor told LeBarron at the time that he did not think
he was being laid off because the work was being completed', but that
it was because of his union activities. LeBarron failed to reply.
Derendor further testified that immediately preceding his lay-off he
had been employed hauling dirt by truck and that after his lay-off
he saw some other employee take his truck and drive off for more
dirt. LeBarron admitted that the truck might have hauled more dirt
but stated that it was no longer under his jurisdiction having been
transferred to some other department in the plant.
Sherman Moss started to work for the respondent about Novem-
ber 1, 1936, arid was laid off on December 1, 1937, with the mill crew.
He joined Local 313 on November 26 and was elected sergeant-at-arms
on November 29. On December 8,.1937, Moss obtained a position
TOVREA PACKING COMPANY 1077
with one of the independent contractors whom the respondent had
hired to feed the cattle. Moss testified that he worked for this in-
dependent contractor for 11/2 days, that on the first day he did not
see LeBarron, but that on the second day when LeBarron saw him
working he informed the contractor that he would no longer need his
services. A few weeks later the independent contractor was rehired
by the respondent, but Moss was replaced by another helper.
Earl Taylor started working for the respondent in October 1936.
He was employed in a number of different capacities, hauling manure,
loading freight cars, cutting bales, and stacking hay. He was straw-
boss over five hay stackers and received more pay than any of the
other stackers. At the time of his lay-off on December 1, 1937, he
asked LeBarron for a written statement of the reason and was told
"You know where the bunch went the other night."
Jodie Yowell and William Oldham were dismissed on the same
date, December 3, 1937. Both were old feed lot employees of the re-
spondent, Yowell having started working for the respondent on June
4, 1936, while Oldham had worked with respondent since November
1934. Both joined the union on November 29, 1937. Oldham had
been elected secretary-treasurer of the union. At the time of their
lay-off, LeBarron came to them and said, "I want to see you boys-I
have got to make my speech." Yowell replied, "There is no use in
making your speech, Mr. LeBarron. We know what. it is all about
anyway." LeBarron then said, "Well, I have got to make my speech
anyway. We are going to motorize this. place around here, and we
won't need you boys any more." The two men then got into the
pick-up truck that LeBarron was driving and on their way to the
office Yowell asked if there would be any chance of getting back to
work, to which LeBarron replied, "Well, I am not in a position to talk,
but my personal advice would be for you boys not to go to any meet-
ings that is being held down town. Just go on and keep your mouth
shut."
LeBarron denied the anti-union remarks attributed to him by
Leonard, Armstrong, Pettit, Scott, Derendor, Taylor, Yowell, and
Oldham. Callis and Kohl corroborated LeBarron's denials with re-
spect to the testimony of Derendor and Leonard. However, LeBarron
admitted that Leonard volunteered information about the union, and
that Scott had told him that he did not belong to the union. Accord-
ing to LeBarron, Scott was rehired not because of his lack of union
affiliation but because an extra man was needed at that particular time
due to some misunderstanding. Unless it was known that LeBarron
was hostile to the union no reason appears why Scott should mention
his non-affiliation as a ground for being retained. Then too,
Leonard's volunteering of information about the `union becomes in-
explicable unless we assume that LeBarron was interested therein.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming, therefore, that LeBarron was interested in the union affilia-
tion of the employees we find that Scott and Leonard's testimony is to,
be given credence.
Moss ' testimony concerning the dismissal of the independent con-
tractor by whom Moss was employed and the subsequent rehiring of
the contractor when Moss was no longer his helper remained uncon-
tradicted in the record. This factor serves further to impel the con-
clusion that LeBarron was using the union affiliation or activity of the
employees as a basis for terminating their employment.
The Trial Examiner , who had an opportunity to observe the de-
meanor of the witnesses, resolved the conflict of evidence between
LeBarron and the employees by finding in accordance with the testi-
mony of the employees. We are in agreement with the Trial Ex-
aminer's resolution of this conflict.
The evidence submitted by the respondent that the lay-offs were
necessary because of the hiring of leased trucks and the reduction in
the number of cattle, while plausible, does not survive analysis. Two
of the leased trucks were hired on November 15 and 17, 1937, because
of a shortage of equipment. On November 29 three additional leased
trucks were hired. On November 30, December 2 and 4, three more
trucks were hired. The hiring of the last six trucks coincided with
the termination of employment of the eight feed lot employees alleged
by the complaint, to have been discharged for their union affiliation
or activity. On cross-examination, Bainbridge revealed that this
was the first time that the respondent had4 resorted to the use of
leased trucks, and furthermore that at the date of the hearing the
leased trucks were no longer being used. The reasons given by
Bainbridge for discontinuing the use of the leased trucks were that
with the reduction in the number of cattle it was unnecessary to use
both the leased trucks and the respondent's equipment and since it
would not pay to allow the respondent's equipment to stand idle the
leased trucks were dispensed with. The evidence shows that as late
as October 1, 1937, several new wagons were being constructed for
i he respondent. The fact that the respondent hired trucks for the
first time in November 1937, that it did not long retain such hire,
that it continued to build new wagons, and that its foreman displayed
an attitude of hostility toward the union leads us to conclude that
the hiring of leased trucks was but a temporary device designed to
replace employees laid off for their union affiliation.
The reduction in the number of cattle, taken care of by the re-
spondent, from 20,000 head in November 1937, to 5,800 head in May
1938, necessitated the lay-off of a number of the employees in the
feed lots, but there is no evidence that this reduction was the cause
of the lay-offs during the week between November 29 and December
6, 1937. No showing was made in the record that any great number
TOVREA PACKING COMPANY 1079
of cattle had been slaughtered or shipped before this week. In fact,
Bainbridge testified that the hiring of the leased trucks on November
29, December 1 and 3, 1937, was for the purpose of taking care of the
cattle during a peak period. This testimony militates against the
possibility that the reduction in the number of cattle occurred before
the time the lay-offs took place.
We find that Coleman Pettit, Sebarne Spriggs, William Derendor,
Earl Taylor, Jodie Yowell, and William Oldham, were laid off be-
cause they had joined or were suspected of having joined and assisted
Local 313. We further find that by so doing the respondent has dis-
criminated and is discriminating against the above-named employees
with respect to hire and tenure of their employment and thereby has
discouraged and is discouraging membership in a labor organization.
We also find that by the acts set forth above the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Feed mill employees
Winfield French, Alton Wilson, Ernest Robinson, Robert Harris,
Otis Crabtree, Hubert Thomas, Clyde Williams, Sherman Moss, Joe
Wilson, and Forrest Pulliam, were all employed in or about the re-
spondent's feed mill. Jess Williams was employed repairing fences.
All of the above-mentioned employees were laid off with the shut-down
of the feed mill on or about December 1, 1937. While all were
members of the Local 313 there is but slight evidence indicating the
extent of their union activity.
The respondent showed that the shut-down of the feed mill oc-
curred when it changed the rations fed the cattle from a mixture of
hay, meal, and molasses, to a combination of cottonseed meal and
hulls. The change resulted in a savings of $3.58 per ton fed. The
new feed was procured from the Agricultural Products Company
plant, located on the respondent's property, which had been completed
just prior to December 1, 1937. For reasons of economy the respond-
ent's feed mill was shut down and as a necessary result the employees
were laid off.
Although the record leaves us doubtful, we are of the opinion that
the evidence does not support the allegations of the complaint with
respect to the above-mentioned feed mill employees. We shall there-
fore dismiss the complaint as to them.
Although it appears that the respondent instigated the discharge
of Moss on December 8, 1937, we find that the respondent did not
itself discharge him, as alleged in the complaint, inasmuch as the
record indicates that Moss was not an employee of the respondent
at that time.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Smith was a feed lot employee and had been ill for several
days prior to his lay-off on December 6, 1937. When he returned
he was informed that his place had been filled during his absence and
that there were no available positions left open. While Smith was
a member of Local 313, he was not an active member. While his
case is not free from doubt we are of the opinion that the evidence
does not support the allegations of the complaint with respect to
Smith. We shall therefore dismiss the complaint as to him.
James Allred and Fred Bledsoe had been working for the respond-
ent for approximately a year. Allred was a plumber's helper, while
Bledsoe was a machine-shop helper. Both were laid off on or about
January 22, 1938. They were told that they were being laid off
because of the completion of the construction work at the respond-
ent's plant. This was substantiated by the record. Although both
had joined Local 448 on December 22, 1937, neither had been active
in union affairs . We conclude that these two individuals were not
laid off because of their union affiliation or activity. We shall there-
fore dismiss the complaint with respect to James Allred and Fred
Bledsoe.
C. Interference with, domination and support of the Association
Tovrea Employees' Association was organized in 1933 or 1934. It
functioned mainly as a social organization, the giving of dances, din-
ners, and Christmas parties being its chief activities. The record
is devoid of any showing that it functioned as a bargaining agent
prior to January 1938. Supervisory officials, as well as all other
classes of employees at the respondent's packing plant, were admitted
to membership. Prior to January 10, 1938, Byrne, the foreman of
the shipping department, was president of the Association; Roy
Davis, foreman of the Bull Gang, served as a committee representa-
tive from his department; Earl Lay, an employee on the killing floor,
had been appointed as a committeeman from his department by Elmer
Yarborough, his foreman; E. L. Morgan, a strawboss under Bridges,
the carpenter foreman, served at Bridges' request as a member on
the Association's committee; committee meetings were usually held
in some office of the respondent.
About the middle of December 1937, Local 448 began a drive
for membership among the respondent's packing-house employees.
Shortly thereafter the Association proceeded to take steps to reor-
ganize as a labor organization. On January 10, 1938, the Associa-
tion called a committee meeting for the purpose of adopting a new
set of bylaws. Prior to the opening of the meeting, Byrne resigned
as president of the Association on the ground that under the Wagner
Act no supervisor could be a member of the organization. However,
TOVREA PACKING COMPANY 1081
Byrne had already perpetuated his interest in the Association by hav-
ing suggested to Morgan the nomination of "Tex" Kilgore as presi-
dent of the Association. In accordance with this suggestion. Morgan
nominated Kilgore, and he was elected. At the meeting a new set
of bylaws were proposed by "Frenchie" Laurent, the assistant audi-
tor of the respondent. On or about January 14, 1938, the member-
ship voted to accept the new bylaws by secret ballot.
Just before the opening of the January 10 meeting, Bainbridge
notified the Association that they could no longer meet on the
respondent's property. However, Bainbridge also informed the com-
mittee that Phillip Tovrea, respondent's president, would cooperate
with the Association and would recognize it as the sole collective bar-
gaining agent for its employees.
Encouraged by this support the Association at its next meeting
passed out newly printed membership cards to the committee mem-
bers, who were instructed to circulate them among the employees
in their department. Byrne continued to be interested in the welfare
of the Association and encouraged Morgan in his efforts to sign up
the employees in his department. He told Morgan that they should
"get Tovrea's Association strong enough that they could keep out
all outside organizations." The record shows that Davis and Morgan
continued to act in their capacity as committeemen from their respec-
tive departments. Lay resigned after practically all of the employees
in his department joined Local 448.
After approximately 185 plant employees had renewed their alle-
giance to the Association by signing the cards circulated by the com-
mittee members, the respondent, on January 27, 1938, entered into a
collective bargaining agreement with the Association, which specifi-
cally provided that it could be terminated on 10 days' notice by
either party.
In direct contrast to the attitude of the respondent toward the
Association is its attitude, as expressed by supervisory officials, toward
Local 448. Morgan testified that he had talked with Bridges, the
carpenters' foreman, for a few moments prior to the January 10
meeting regarding the union. His testimony is as follows :
Q. What did Mr. Bridges say?
A. Well, he asked me-he said, "What do you think of the
union ?"
"Well," I said, "I don't know what to think." I said, "I have
not heard much about it."
"Well," he says, "I can tell you one thing about it," he says,
"There are some of them going to be' looking for jobs that's in
it."
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He asked me at that time-he said-lie told me, he didn't ask
me-he said, "I believe in union labor but I don't believe in
organizing at a time like this when times are so hard."
He said, "Phil Tovrea told me that he would run his plant
to suit himself and always would. He would close it up before
he would let it go Union."
The above testimony was uncontroverted.
Allan Williams, a former employee of the respondent and acting
business agent for Local 448, testified that while employed by the
respondent he had a conversation with Bob Dodt, the assistant super-
visor for the respondent's plant, on or about' December 20, 1937. His
testimony is as follows:
Q. What was the conversation?
A. . . . he asked me what I thought the chance was for the
union to get started and get a foothold in the plant. I told him
that due to the fact that several of the boys in the feed lot got
laid off, that I didn't think there would be much of a chance.
He said, "Well, there might not be very many of them who
would join the union, probably as many as four or five, and then
we'll fire them."
Q. Was there any further conversation?
A. . . . he said ... "If we'll just stick together we can whip
that damn union."
We shall briefly summarize the evidence as revealed above. The
influence of the respondent over the Association prior to its reorgani-
zation is undisputed. The reorganization of the Association imme-
diately after the drive of Local 448 had begun indicates that the
respondent was attempting to forestall that drive by giving the
Association a new cloak of respectability. The respondent's hostility
toward Local 448 as contrasted with the favoritism shown the Asso-
ciation could not but aid the latter organization. Bainbridge's state-
ment to the Association committee that it would be recognized as
the exclusive bargaining agent shows the respondent's support. A
statement of this kind made before the employees had an opportunity
to ratify the reorganization could not but have its desired effect upon
the employees. The continued interest of the respondent's super-
visory employees in the Association, as exemplified by the actions of
Byrne, shipping-department foreman, and Bridges, carpenter fore-
man, coupled with the continued participation in its activities by
such employees as Davis, foreman, and Morgan, strawboss, shows that
the respondent has not relinquished its control over the Association.
We find that the respondent has dominated and interfered with
the formation, reorganization, and administration of the Association
TOVREA PACKING COMPANY 1083
and has contributed support to it, and has thereby interfered with,
restrained, and coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
D. The refusal to bargain
The complaint, as amended, alleges that the respondent has, since
January 24, 1938, refused to bargain with Local 448. The ground
for the respondent's refusal was its contention that Local 448 did not
represent a majority of employees in an appropriate unit. At the
hearing the complaint was amended as to the appropriate unit, Local
448 contending that the appropriate unit should consist of employees
in the following departments : Killing and cutting, dry rendering,
offal, hides, and night clean-up gang. In addition to the above, the
plant contains the following departments : Sweet pickle, smoked
meats, lard and compound, cottonseed oil refinery, sausage, ice manu-
facturing, machine shop, disposal plant, laundry, bull gang, and sev-
eral other smaller departments. The evidence indicated that all of
the above-mentioned departments functioned as an integrated unit.
Local 448 has jurisdiction over, and admits to its membership, em-
ployees in all of the above-mentioned departments. It was admitted
by the union representative that Local 448 had conducted its drive
for membership on a plant-wide basis and that if a majority of the
employees in the plant designated it as their representative it would
claim to represent a unit consisting of the entire plant. The only
reason advanced by Local 448 that the unit it set forth was appro-
priate was based on its claim to represent a majority of employees in
a unit composed of these four or five departments.
In view of the facts indicating that the organizational activity of
Local 448 was on a plant-wide basis, that it admitted to membership
employees in nearly all-of the departments in the plant, and the fact
that there was no showing in the record that the unit claimed bN
Local 448 had any functional or craft characteristics which would
justify setting it apart as a separate unit, we conclude that the unit
claimed by Local 448 is not appropriate for the purposes of collective
bargaining. We shall therefore dismiss the charges alleging a refusal
to bargain with Local 448 as representative of a majority of the em-
ployees in an appropriate unit.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
We find that the activities of the respondent set forth in Section IV
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE REMEDY
We have found that the respondent dominated and interfered with
the formation , reorganization , and administration of the Association
and contributed support thereto. In order to remedy the situation
arising from this unlawful conduct we shall order the respondent to
withdraw all recognition from the Association and to disestablish it
as a collective bargaining representative of any of the respondent's
employees . Since the contract between the Association and the re-
spondent was made at a time when the respondent was actively sup-
porting the Association , contrary to Section 8 (2) of the Act, we find
it to be void and of no effect . We will , therefore , order the respondent
to cease giving effect to its contract with the Association as one made
with an organization not entitled to represent the respondent's
employees.6
We have also found that the respondent , by discharging Bond
Henry, Woodrow Wilson , and Wilford Henry, and by laying off Cole-
man Pettit , Sebarne Spriggs , Earl Taylor , William Oldham, Jodie
Yowell , and William Derendor , has discouraged membership in a
labor organization and has thereby interfered with , restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. In order to remedy the effects of these unlawful
acts we shall order the respondent to reinstate such employees in the
following manner :
All employees hired after the lay-offs and discharges herein in-
volved shall , if necessary to provide employment for those to be offered
reinstatement, be dismissed . If, thereupon , by reason of a reduction
in force there is not sufficient employment immediately available for
the remaining employees , including those to be offered reinstatement,
all available positions shall be distributed among such remaining em-
ployees in accordance with the respondent 's usual method of reducing
its force , without discrimination against any employee because of his
union affiliation or activities , following a system of seniority to such
extent as has heretofore been applied in the conduct of the respondent's
business . Those employees remaining after such distribution, for
whom no employment is immediately available, shall be placed upon
a preferential list prepared in accordance with the principles set forth
in the previous sentence , and shall thereafter , in accordance with such
list , be offered employment in their former or substantially equiva-
lent positions , as such employment becomes available and before other
persons are hired for such work.
We shall also order the respondent to make the discharged employees
whole for any loss of pay they have suffered by reason of their respec-
6 See Matter of Pennsylvania Greyhound Lines, Inc., eto , 1 N L R B 1. Order en-
forced in National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303
U. S. 261 ( 1938).
TOVREA PACKING COMPANY 1085
tive discharges by payment to each of them of a sum equal to the
amount which he normally would have earned as wages from the date
of his discharge to the date of the offer of reinstatement, less his net
earnings 7 during said period.
Since Local 448 failed to show that it represented a majority of
employees in an appropriate unit we shall order the dismissal of
that portion of the complaint which alleges a violation of Section
8 (5) of the Act.
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 Nos. 313 and 448, Tovrea Employees' Association,
and the group of employees who elected Bond B. Henry as a member
of a committee. to discuss wages with the respondent, are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Tovrea Employees' Association, the respondent has en-
gaged in and is engaging in an unfair labor practice within the
meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Bond Henry, Woodrow Wilson, Wilford Henry, Coleman
Pettit, Sebarne Spriggs, William Derendor, Earl Taylor, William
Oldham, and Jodie Yowell, and thereby discouraging membership in
a labor organization, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
4. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not engaged in and is not engaging in un-
fair labor practices within the meaning of Section 8 (5) of the Act.
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 wculd 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 on Federal , State, county, municipal , or other work-relief projects are
not deductible as "net earnings ," but as provided below in the Order, shall be deducted
and paid over to the appropriate fiscal agency of the Federal , State, county , municipal, or
other government or governments which supplied the funds for said work -relief projects.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. With regard to the termination of the employment of Claude
Wayne Berry, De Ward McCarty, Winfield French, Afton Wilson,
Ernest Robinson, Robert Harris, Otis Crabtree, Hubert Thomas,
Clyde Williams, Sherman Moss, Joe Wilson, Forrest Pulliam, Jess
Williams, John Smith, James Allred, and Fred Bledsoe, the respond-
ent has not engaged in unfair labor practices, within the meaning
of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Tovrea Packing Company, Phoenix, Arizona, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America or any other labor organization
of its employees, by discriminating against its employees in regard
to hire or tenure of employment or any term or condition of em-
ployment ;
(b) Dominating or interfering with the administration of Tovrea
Employees' Association, or dominating or interfering with the forma-
tion or administration of any other labor organization of its em-
ployees, or contributing support thereto;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection as guaranteed in Section 7 of the Act;
(d) Giving effect to its contract with Tovrea Employees'
Association.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Tovrea Employees' Associa-
tion as a representative of any of its employees for the purpose of
dealing with it concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work, and completely
disestablish said Association as such representative;
(b) Offer to Bond Henry, Woodrow Wilson, Wilford Henry,
Coleman Pettit, Sebarne Spriggs, William Derendor, Earl Taylor,
William Oldham, and Jodie Yowell, immediate and full reinstate-
ment, respectively, to their former positions without prejudice to any
rights and privileges previously enjoyed by them in the manner
TOVREA PACKING COMPANY 1087
set forth in the section entitled "The remedy" above; and place those
employees for whom employment is not immediately available upon
a preferential list in the manner set forth in said section, and there-
after, in said manner, offer them employment as it becomes available;
(c) Make whole the employees named in 2 (b) above for any loss
of pay they will have suffered by reason of the termination of their
employment by payment to each of them, respectively, of a sum of
money equal to that which each would normally have earned as wages
from the date of such termination to the date of the offer of rein-
statement .or placement on the preferential list as ordered in para-
graph..(b) :abnve, less his net earningq:dllripg skid period; deducting,
however, from the amount otherwise due to each of the said em-
ployees, monies received by said employee during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects; and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(d) Post immediately in conspicuous places throughout its plants
and other places of employment, and maintain for a period of at
least sixty (60) consecutive days, notices stating that the respondent
will cease and desist in the manner aforesaid;
(e) Notify the Regional Director for the Twenty-first Region
within ten, (10) days from,-the ,date, of, this. Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed in so far as it alleges that the respondent dis-
criminated in regard to the hire and tenure of employment of Claude
Wayne Berry, De Ward McCarty, Winfield French, Afton Wilson,
Ernest Robinson, Robert Harris, Otis Crabtree, Hubert Thomas,
Clyde Williams, Sherman Moss, Joe- Wilson, Forrest Pulliam, Jess
Williams, John Smith, James Allred, and Fred Bledsoe.
AND IT IS FURTHER ORDERED that the complaint, as amended, be, and
it hereby- is, dismissed in so far as it' alleges that the respondent
has refused to bargain with the duly authorized representative of a
majority of its packing-house employees in an appropriate unit within
the meaning of Section 8 (5) of the Act.