The Cudahy Packing Co.

National Labor Relations Board - Board Decisions

Sep 26, 1939

15 N.L.R.B. 676 (N.L.R.B. 1939)

In the Matter of THE CUDAHY PACKING COMPANY and UNITED PACK-
ING HOUSE WORKERS LOCAL INDUSTRIAL UNION No. 389
In the Matter of THE CUDAHY PACKING COMPANY and U . P. H. W.,
L. I. U. No. 873 , AFFILIATED WITH P . W . 0. C. AND C. I. 0.
Cases Nos. C-901 and R-1134, respectively .Decided September
26,1939
Meat Packing ' Industry-Interference, Restraint, and Coercion-Company-
Dominated Union: domination of and interference with formation and admin-
istration ; support ; solicitation of membership for, during working hours, with
aid and acquiescence of foremen ; discrimination in favor of ; disestablished,
as agency for collective bargaining-Discrimination: charges of, sustained as
to six employees, dismissed as to one employee-Reinstatement Ordered: em-
ployees discriminated against-Back Pay: awarded to employees discriminated
against ; monies received by employees for work performed upon Federal, State,
county, municipal, or other work-relief projects to be deducted and paid over
to agency supplying funds for projects-Investigation of Representatives: con-
troversy concerning representation of employees: employer's refusal to grant
recognition of Union-Unit Appropriate for Collective Bargaining: all hourly
paid and piece-work production and maintenance employees, exclusive of super-
intendents, assistant superintendents, foremen, subforemen, clerical and office
workers, scalers, watchmen, tinmekeepers, truck drivers, employees in the
salvage department, and all supervisory employees ; stipulation as to-Repre-
sentatives: proof of choice: elimination of disagreement between company and
union to insure satisfactory negotiations requires an election-Election Ordered:
company-dominated union excluded from ballot; employees discriminatorily
laid off, discharged or refused reinstatement included among those eligible to
vote ; election to be held at such time in future as Board shall direct-Evidence:
affidavits of respondent's supervisors, filed as part of answer, not entitled to
evidentiary weight in absence of showing or claim of unavailability of affiants.
Mr. Thurlow Smoot and Mr. Lee Loevinger, for the Board.
Mr. Thomas Creigh of Chicago, Illinois , Mr. Harry S. Snyder and
Mr. John S. Sears, of Sioux City, Iowa , for the respondent.
Mr. John J. Brownlee of Chicago, Ill., for the Union.
Mr. L. B. Fog-sling of Sioux City, Iowa, for P. H. W. U.
Miss Margaret Holmes, of counsel to the Board.
15 N. L. R. B., No. 71.
676
THE CUDAHY PACKING COMPANY
DECISION
ORDER
AND
DIRECTION OF ELECTION
677
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by. United Packing
House Workers Local Industrial Union No. 389, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota), issued its complaint, dated June 22, 1938, against The
Cudahy Packing Company, Sioux City, Iowa, herein called the re-
spondent, alleging that the respondent had engaged in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act.
In respect to the unfair labor practices, the complaint, as amended,
alleged in substance (1) that the respondent had dominated and
interfered with the formation and administration of a labor organi-
zation at the Sioux City plant known as Packing House Workers
Union of Sioux City and had contributed support to it; (2) that the
respondent discharged Alex Gongliewski on January 19, 1938; dis-
charged Harry R. Washburn on June 24, 1938; laid off. Glenn Stark
on July 19, 1937; laid off Mike Misliska on December 30, 1937; laid
off Otto Boyd on December 20, 1937; laid off Lester Nelson on
December 4, 1937, all of whom were production employees at the
Sioux City plant, because of their membership in and activities on
behalf of the Union; and that on or about December 7, 1937, the
respondent laid off Lester Sindt, and on or about December 10, 1937,
refused said Sindt reinstatement to its employ; that on or about
July 31, 1937, the respondent laid off Einar Myklegard, and on or
about October 31, 1937, refused. said Myklegard reinstatement to
its employ; and that on or about December 21, 1937, laid off Preston
Daniels, and on or about December 24, 1937, refused said Daniels
reinstatement to its employ, all of whom were production workers at
the Sioux City. plant, because of their membership in and activities
on behalf of the Union. .
Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent and the Union. On July 6, 1938,
the respondent filed an answer in which it denied the unfair labor
practices alleged in the complaint. Attached to the answer and
expressly made a part thereof were affidavits signed and sworn to by
11)9,549-39-vol. 15--44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain of the respondent's supervisory officials, setting forth affirma-
tive defenses to the allegations of discrimination against the nine
individuals named in the complaint.
Pursuant to notice, a hearing was held in Sioux City, Iowa, on
July 7, 8, 9, 11, 12, 13, 14, and 15, 1938, before James J. Fitz-
patrick, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and par-
ticipated in the hearing. At the commencement of the hearing Pack-
ing House Workers Union of Sioux City, herein called P. H. W. U.,
filed with the Trial Examiner a motion and petition for leave to
intervene. The Trial Examiner granted such motion, limiting the
intervention, over the objections of P. H. W. U., to matters related
to the allegations in the complaint that the respondent had domi-
nated and interfered with the formation and administration of P. H.
W. U. P. H. W. U. thereupon requested permission to file an answer
denying such allegations of the complaint, which request the Trial
Examiner granted. Thereafter P. H. W. U. filed an answer, was
represented by counsel, and participated in the hearing within the
limitations noted. The rulings of the Trial Examiner regarding the
intervention of P. H. W. U. are hereby affirmed. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence hearing on the issues was afforded all parties.
During the hearing the counsel for the Board moved to dismiss
the complaint in so far as it alleged that the respondent had dis-
criminated with regard to the hire and tenure of employment of
Lester Sindt and Glenn Stark. Counsel for the Board also moved
that the complaint be conformed to the proof. The Trial Examiner
granted these motions and his rulings are Hereby affirmed. Through-
out the hearing the Trial Examiner made other rulings on motions
and on objections to the admission of evidence. The Board has
reviewed all the rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On August 31, 1938, the Trial Examiner filed an Intermediate
Report. He found that the respondent had dominated and inter-
fered with the formation and administration of P. H. W. U. and
contributed support to it; that the respondent had discriminated
with regard to the hire and tenure of the employment of Harry R.
Washburn and Michael Misliska because of their membership in
and activities on behalf of the Union; and that by virtue of such
acts 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. With
regard to the charges of discrimination in the cases of Gongliewski,
THE CUDAHY PACKING COMPANY 679
Myklegard, Nelson, Daniels, and Boyd, the Trial Examiner found
that the respondent had not engaged in unfair labor practices.
On September 9, 1938, United Packing House Workers Local
Industrial Union No. 873, affiliated with the Packing House Work-
ers Organizing Committee and the Committee for Industrial
Organization, herein also called the Union, filed with the said
Regional Director a petition alleging that a question affecting com-
mnerce had arisen concerning employees of the respondent at its
Sioux City plant and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the Act. On Sep-
tember 20, 1938, the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered an
investigation and authorized the Regional 'Director to conduct it
and to provide for an appropriate hearing upon due notice. On
October 14, 1938, the Board, acting pursuant to Article III, Sec-
tion 10 (c) (2), and Article IT, Section 37 (b), of said Rules and
Regulations, consolidated the case involving the petition, being
Case No. R-1134, with the prior case involving the alleged unfair
labor practices, being Case No. C-901, for the purpose of hearing
and all other purposes, and ordered that one record of the hearing
be made. On November 5, 1938, the Regional Director issued
notice of hearing, copies of which were duly served on the re-
spondent, the Union, and the P. H. W. U.
Pursuant to notice, a hearing was held in Sioux City, Iowa, on
November 21, 22, and 23, 1938, before Webster Powell, the Trial
Examiner duly designated by the Board. The Board, the re-
spondent, the Union, and P. H. W. U. were represented and par-
ticipated 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. At the commencement of the
hearing, the Union petitioned the Board to change the caption of
Case No. C-901, by substituting the words "Local 873" for the words
"Local 389." The respondent objected on the ground that such
notion involved a substitution of parties. The Trial Examiner
did not rule on the motion at the hearing. We hereby deny the
motion. At the beginning of the hearing the respondent objected
to the order of the Board consolidating Cases Nos. C-901 and R-1134
and to the proceedings in connection with such order. The Trial
Examiner overruled such objection and his ruling is hereby affirmed.
During the hearing the Trial Examiner made other rulings on mo-
tions and 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.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a . hearing was held before the Board at
Washington, D. C., on May 11, 1939, for the purpose of oral argu-
ment in the consolidated. cases. The respondent and the Union were
represented and participated in the argument. In its exceptions
and during oral argument the respondent asserted that Trial Ex-
aminer Fitzpatrick had been biased and prejudiced against it during
the hearing in Case C-901 and had arbitrarily limited its cross-
examination of witnesses. This assertion is without merit. The
Trial Examiner's fairness and impartiality throughout the hearing
are manifest in the record; and 'the respondent was permitted great
latitude in cross-examination, being limited only as to matters imma-
terial to the issues and improperly gone into on cross-examination.
The Board has considered the exceptions filed by the respondent,
P. H. W. U., and the Union to the Intermediate Report of the Trial
Examiner in Case No. 0-901, and, except in so far as the exceptions
are consistent with the findings of fact, conclusions of law, and order
set forth below, finds them to be without merit..
Upon the entire record in the case, the Board makes the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Cudahy Packing Company is a Maine corporation having its
principal executive offices in Chicago, Illinois. It is chiefly engaged
in the purchase and slaughter of livestock and the processing and
marketing of the products therefrom. In addition, the respondent.
is engaged in the business of refining vegetable oils; manufacturing
soap and other cleansing materials; pulling, scouring, and combing
wool; mining, producing, and distributing salt. It owns, maintains
and operates refrigerator and tank cars for the transportation of
its products. The respondent transacts business throughout the
United States and foreign countries.
The respondent maintains slaughtering and meat-packing plants
in Omaha, Nebraska, Kansas City, Kansas, Sioux City, Iowa, Los
Angeles, California, Wichita, Kansas, North Salt Lake, Utah, Jersey
City, New Jersey, Newport, Minnesota, San Diego, California, Den-
ver, Colorado, Detroit, Michigan, and Albany, Georgia. It owns and
operates soap and Old Dutch Cleanser factories at East Chicago,
Indiana, and Toronto, Ontario, Canada; maintains shops for -the
construction and repair of refrigerator cars at East Chicago, Illinois ;
maintains a shop for refining vegetable oils near Memphis, Tennessee ;
operates a wool scouring, combing, and storage plant at Providence.
Rhode Island; and owns and operates a salt mine and -refinery at
Lyons, Kansas. The respondent maintains 80 branch produce-col-
THE CI DAHY PACKING COMPANY 681
lecting and processing plants scattered throughout the United States.
In addition, it owns and operates 1,496 refrigerator cars and 44 tank
ears.
At the close of the 1936 fiscal year the respondent's total assets
amounted to $82,000,000.00 and its sales during such year netted
$201,605,000.00. The annual pay roll of the respondent amounts
to $7,873,727.
We are concerned in this case with the respondent's Sioux City,
Iowa, plant, at which the respondent slaughters and processes live-
stock. A substantial portion of the livestock slaughtered at the
Sioux City plant originates outside the State of Iowa, and over 75
per cent of the products of such plant are shipped outside the State
of Iowa. The operations of the Sioux City plant require the services
of at least 650 production workers.
H. THE ORGANIZATIONS INVOLVED
United Packing House Workers Local Industrial Union No. 389
is a labor organization affiliated with the Committee for Industrial
Organization. It was organized in June 1937 to embrace the re-
spondent's employees and the employees of other packing houses in
Sioux City, Iowa.'
United Packing House Workers Local Industrial Union No. 873
is a, labor organization affiliated with Packing House Workers Or-
ganizing Committee and the Committee for Industrial Organization.
Under the auspices of said Packing House Workers Organizing
Committee, which is the branch of the Committee for Industrial
Organization delegated to supervise the organization of packing-
house workers in all parts of the United States, United Packing
House Workers Local Industrial Union No. 873 was formed in
August 1938 and was granted a charter. Its membership is drawn
from the respondent's employees, and such employees of the respond-
ent as were affiliated with United Packing House Workers Local
Industrial Union No. 389 prior to August 1938 were transferred on
or about that date to United Packing House Workers Local Indus-
trial Union No. 873.
Packing House Workers Union of Sioux City is a labor organi-
zation limited to the Sioux City employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Packing House Workers Union of Sioux City; interference,
restraint, and coercion
Prior to the passage of the Act and for about 2 years subsequent to
its effective date the respondent maintained an employer-employee
i The employees of the respondent , of Armour &. Company and of Swift & Company at
their Sioux City . plants were embraced in Local No. 389.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conference board in its Sioux City plant. The Sioux City board was
similar to conference boards maintained in other plants of the re-
spondent throughout the United States. The members of the board
met at regular intervals to discuss problems that arose in the plant,
such meetings being held in a special room on the respondent's
property.
On or about April 19, 1937, the Sioux City employees received by
mail from the respondent's Chicago office a bulletin signed by E. A.
Cudahy, Jr., the respondent's president, discussing the Act and the
decisions of the Supreme Court of the United States establishing the
constitutionality of the Act: The concluding remarks of the bulletin
were as follows :
May I suggest, too, that in these times of change in the general
conception of the relations between worker and employer we,
of the Cudahy organization, will do well to keep to our chartered
course of industrial relations by which we have progressed so
steadily for so many years.
Further, it seems to me that until the rules and regulations
embodied in the Wagner Labor Relations Act are known and
understood thoroughly, it is the part of good judgment to main-
tain our accustomed way and not be unduly influenced by de-
velopments of the moment!
At approximately the same time as the bulletin was circulated the
respondent disestablished the conference board in the Sioux City
plant with the explanation that such action was necessitated by the
recently established constitutionality of the Act. The disbanding of
the board took place in the regular conference board room in the re-
spondent's plant and was announced by Carney, the respondent's
plant superintendent. On the day that the conference board was
disestablished certain of the employee members made plans for a
"secret" meeting for the purpose of forming a union to take the
place of the conference board. The record does not disclose what
occurred at such meeting. A few days later a group of 14 employees,
including 3 former conference-board members, approached an at-
torney with whose assistance Articles of Association and Bylaws for
the Packing House Workers Union of Sioux City were written. The
Articles outline the structure and functions of P. H. W. U. and
contain the provision that any amendments made thereto shall be
2 National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U. S. 1;
The Associated Press v. National Labor Relations Board , 301 U. S. 103 ; Washington, Va.
& Md. Coach Company v. National Labor Relations Board, 301 U. S. 142; National Labor
Relations Board v. Fruehauf Trailer Co., 301 U. S. 49; National Labor Relations Board v.
Friedmam.-Harry- Marks Clothing-.Company; 301 U. S. 58.
8 Italics ours.
THE CUDAHY PACKING COMPANY 683
forwarded to the respondent.4 The record does not reveal the manner
.in which the committee which drafted these documents was selected
nor at whose suggestion the attorney was approached. The Articles
and Bylaws were adopted at a meeting of P. H. W. U. held outside
the plant on April 26. At such meeting correspondence from in-
dependent unions which were being formed in other Cudahy plants
was read to the employees in attendance.
In the approximately 2 weeks intervening between the disbanding
of the conference board and the April 26 meeting of P. H. W. U.
an intense organizational drive was conducted in the plant. Mem-
bership was solicited mainly by former employee conference-board
members during working hours and in the presence of foremen.
During the membership drive Perry, a clean-up foreman, urged an
employee. under his supervision to join P. H. W. U. and "cause him-
self a whole lot less trouble." Solicitation in the hog-casing depart-
ment was initiated by Foreman Blevens who provided a former con-
ference-board member with a sheet of paper and instructed him to
sign up his department.5
At the hearing a series of letters between P. H. W. U. and the
respondent was introduced in evidence. The first of this series was
written on May 1 and signed by the committee of 14 which organized
P. H. W. U. The letter stated that P. H. W. U. represented over
51 per cent of the respondent's employees, that such employees had
tentatively designated the committee to act as their representative, for
the purposes of collective bargaining, that the designation of
P. H. W. U. and the committee by the employees as such representa-
tive was in the possession of P. H. W. U.'s attorney and was avail-
able for inspection by the respondent. The respondent on May 4
wrote a letter to the attorney for P. H. W. U. in which it recog-
nized the committee as the exclusive representative of its employees
for the purposes of collective bargaining. No inspection of the desig-
nation of P. H. W. U. or the committee was made by the respondent
prior to May 4. On May 28, after officers and trustees had been
elected, the names of the trustees and a copy of the Articles of Asso-
ciation were forwarded to the respondent.a The original Articles
4 The Articles provided that the employees signatory thereto designate P. H. W.. U.
as the exclusive representative of all the respondent ' s employees for the purposes of
collective bargaining . The Articles also provided that a copy thereof together with
the names of the trustees of P. H. W. U. should be forwarded to the respondent immedi-
ately upon the election of officers . The Bylaws provided for the election of trustees
in whom is vested the power to bargain with the respondent on all matters pertaining
to employment . The Bylaws limit membership in P. H. W. U. to the respondent's
employees.
5 The testimony concerning the activities of the respondent 's supervisory employees,
which are recited in this section , was unrefuted at the hearing . In the absence of any
denials, and upon 'the basis of the entire record, we accept 'the testimony'regarding such
activities as true.
9 The record does not reveal the precise date on which officers were elected but such
election apparently occurred in May 1937.
,684 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
had been signed by 350 employees, these signatures apparently having
been obtained at the April 26 meeting.' The record does not dis-
close whether or not these signatures were attached to the copy of
the Articles which was sent to the respondent on May 28.
About May 15 Shaeffer, a production employee who had been
elected president of P. H. W. U., attended a convention in Omaha,
Nebraska, of independent unions from Cudahy plants throughout
the United States. In addition to the employee delegates, the con-
vention was attended by E. A. Cudahy, Jr., and two other officials
from the respondent's Chicago office. Shaeffer testified that the con-
vention had been discussed at a P. H. W. U. meeting early in
May and that it was generally understood at such meeting that
independent unions similar to P. H. W. U. were being formed in all
the respondent's plants and were to convene in Omaha. As the
result of conferences between the employee delegates to the Omaha
convention and the respondent's officials, a blanket contract was
drawn up covering conditions of employment for all the respondent's
plants throughout the United States. Neither the contract nor any
of its provisions had been discussed by P. H. W. U. before Shaeffer
attended the Omaha convention. The contract provided that the
respondent should compensate employees for the time spent attend-
ing these conventions at their regular rate of pay." Shaeffer re-
turned to Sioux City with a copy of this contract which was adopted
as read at a meeting of P. H. W. U. in the latter part of May.
Near the end of May a meeting of the employees who had been
elected stewards of P. H. W. U. was held during working hours on
the respondent's property. The stewards were informed of the meet-
ing by their foremen and were paid for the time spent at the meeting.
Carney presided and read the contract to the stewards, explaining
the grievance procedure in detail. During the course of the meeting
Carney stated, "I can't tell anybody to belong to a union or not to
belong but I know what I would say to them if I were a steward .. .
I don't want to spend a couple of years in Leavenworth." Although
Shaeffer attended the meeting, he did not participate in the discus-
sion nor had he talked with Carney before the meeting to ascertain
whether their interpretations of the contract provisions were the-
same.
The contract was executed by the respondent and the trustees
for P. H. W. U. on June 14, 1937. Although it was testified at
the hearing that subsequent to May 28 the respondent and the
' The president of P. H. W. U. testified that the respondent employed 550 production
workers in May 1937 ; however , counsel for the respondent stated, during the course
of oral argument , that the respondent employed 918 production workers in May 1937.
s Shaeffer testified , however , that his convention expenses and salary were paid by.
P. H. W. U. It is to be noted that the contract was subsequently amended to omit
this provision.
THE CUDAHY PACKING COMPANY 685
trustees had conferred regarding its provisions, these conferences
produced no alterations in the contract which had been drawn up in
Omaha. The contract was by its terms to run until June 14, 1938,
as amended from time to time according to a procedure expressly
set.forth.° On May 4, 1938, the contract was extended indefinitely,
with a provision for termination by either party upon notice. The
contract was still in effect at the date of the hearing.
. The cooperation extended P. H. W. U. by-the respondent- during
the April membership drive was continued until the date of the
hearing. Although P. H. W. U. maintained a dues office at a filling
station a few blocks from the plant, its stewards freely collected
dues inside the plant during working hours. It was the usual prac-
tice throughout the year 1937 for the respondent's foremen and
strawbosses to excuse P. H. W. U. members from work and to assign
other employees to their jobs while they were transacting P. H. W. U.
business. The transaction of such business often involved several
hours' absence from work for which time the P. H. W. U. stewards
were not docked. The evidence further reveals that P. H. W. U.
customarily used the respondent's bulletin boards for the posting of
notices. As late as June 1938 King, foreman of the hog-kill and
cutting departments, urged an employee to join P. H. W. U. "with
the rest of the boys."
The Union was organized in June 1937 at a meeting of employees
from several packing houses in Sioux City. After the June meet-
ing Blevens, foreman of the beef and hog-casing and offal depart-
ments,10 ridiculed the union button worn by an employee in his de-
partment and asserted that the Union was composed of communists
and I. W. W.'s. Mills, an assistant superintendent, told another
employee who attended the June meeting that "we have a union here
already and it is functioning quite nicely and we don't wish to have
another organization come in at this time." Perry, the clean-up
foreman, visited an employee under his supervision at his home a.
few days after the June meeting relating a conversation he had
engaged in with Assistant Superintendent English concerning the
employee's union activities and instructions received from English
"to find out all about such employee." Perry's advice to the em-
9 The contract was amended several times between June 14, 1937, and May 4, 1938. Tfie
majority of the amendments involved changes in the wage and hour provisions of the
contract whereby the original 8-hour day and 40 -hour week with time and one-half for
overtime were altered to allow a longer working day and week. Prior to one such
amendment a petition was signed by certain employees in December 1937 requesting the
amendment.. The signatures were obtained by a P. H. W. U. trustee who requested the
employees to sign the petition during working hours in the presence of Mills, the assistant
superintendent , and Johnson , the beef-kill foreman.
to Blevens is also foreman of the sheep casing , sheep heads and offal, pork-kill casings,
outside casings , and tripe departments.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee, who denied being a union member, was "to lie low for a few
days and keep his mouth shut." 11
Washburn, a machinist in the beef-casing department under
Foreman Blevens, immediately became the leader of the Union
among the respondent's employees. During the months following
its organization, Blevens frequently called Washburn away from
work to discuss the Union. Blevens' remarks during the course of
these discussions were invariably derogatory of the Union. Blevens
often questioned Washburn in an attempt to ascertain the names of
other employees who belonged to the Union and endeavored to per-
suade him to repudiate the Union and "string along with us." In
the spring of 1938 Blevens handed Washburn a clipping from a Fort
Dodge, Iowa, newspaper, containing remarks disparaging the Union.
Such remarks were underlined when Washburn saw the clipping.
Carney, the plant superintendent, also attempted to induce Wash-
burn to give up his union membership, stating in May 1938 that
"it is always the fellow that is the head of the unions that gets it
in the neck; the unions come in, cycles and when they are over, why,
it is the leaders that gets it."
Union buttons commenced appearing in the plant in the late fall
of 1937. It was testified at the hearing that several union mem-
bers in various departments in the plant refrained from wearing
their buttons because of fear of reprisals. When three beef-kill
employees appeared at work wearing union buttons in December
1937, Johnson, the beef-kill foreman, forbade one of such employees
to converse with other workers under the penalty of losing his job,
a restriction never before imposed on anyone in the department.
Mills and Carney commenced spending an unusual amount of time
in the beef-kill department, devoting their attention exclusively to
the three employees displaying union buttons and walking up and
down beside them watching them as they worked. On several oc-
casions after Mills left the department Johnson told these employees
to "watch out or they would put someone else on the job." The
record discloses that these employees were producing satisfactory
work at the time of this surveillance. Shortly before the hearing
every employee in' the beef-kill department who belonged to the
u This finding is based on the testimony of employee Curley which was unrefuted at
the hearing . During oral argument counsel for the respondent objected to this finding
in the Trial Examiner's Intermediate Report on the ground that it was based on hearsay
evidence. Curley's testimony that Perry, an agent of the respondent, had related to him
certain statements and instructions made by English , the respondent's assistant superin-
tendent, regarding union activities of the respondent' s employees , is probative of the
fact that the respondent , through its assistant superintendent , did make such statements
and did so instruct Perry, under the substantive doctrine of the law of agency that the
declarations of an agent to a third person, uttered in the course of his employment, are
admissible in evidence to prove the truth of the facts asserted in them and are binding
on the principal as though made by the principal . See Restatement of the Late of Agency,
Section 286 ; Wigmore on Evidence, (2nd Ed.) Sections 1078, 1769.
THE CUDAHY PACKING COMPANY 687
Union wore his button to work. On that day Johnson peremptorily
ordered Washburn out of the department, calling him a "C. I. 0.
son-of-a-bitch." 12
When Curley, who had become the most active union member in
the clean-up gang, commenced wearing his button in December 1937;
Foreman Perry told him to take it off and "save himself a lot of
trouble." Curley was Mill wearing his button a few days later when
English, an assistant superintendent, visited a department in which
Curley was working. After English left, Perry said to Curley, "For
God's sake take that button off or you will get fired and I will get
fired." In May 1938 English talked to Curley, stating that Curley
had been talking too much and that "Cudahy's wasn't going to stand
for anyone running around the plant talking." English warned
Curley to "keep quiet" if he desired to continue working for the
respondent. The "talking" of which Curley was accused consisted
of the solicitation of union membership in the dressing room during
his lunch hour and after work.
In February 1938 a number of employees in the sheep-kill de-
partment wore their union buttons to work. Three P. H. W. U.
trustees from other departments took over the sheep-kill dressing
room during working hours one morning in February. The em-
ployees in the sheep-kill department who were wearing union buttons
were individually taken from their work into the dressing room by
the trustees and came out without their buttons. The sheep-kill
foreman and strawboss undoubtedly observed and acquiesced in the
removal of union buttons since they, were present in the department
during this activity, which consumed an entire forenoon, and made
no attempt to interrupt. That afternoon one of the trustees showed
two union members a handful of union buttons, stating "That is how
far your C. I. O. is going."
The record reveals only one instance where the Union attempted
to use the respondent's bulletin boards. This occurred in May 1938
when a union notice was posted on the beef-kill bulletin board. The
notice remained posted only 15 minutes and was removed shortly
after Mills visited the department. When Mills departed, Foreman
Johnson asked an active union member if he had posted the notice,
stating that Mills was "madder than hell about it." The record also
reveals that the respondent's open hostility toward the Union led
union members to confine their activities to their lunch periods and
before and after work. On several occasions Washburn complained
to Carney that P. H. W. U. members were being allowed to transact
business and solicit membership during working hours, demanding
similar privileges for the Union. Carney's reply invariably was
19 This incident is more fully discussed in Section B.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent was not required to recognize the Union since it
had signed a contract with P. H. W. U.13
The record further discloses that the respondent at no time al-
lowed the Union to represent its members in regard to grievances.
Washburn had been selected to handle union grievances in the plant
at a July 1937 meeting of the Union. He immediately informed
Carney of his selection and- newspaper accounts of it appeared iii
two Sioux City publications. Carney, however, consistently refused
to discuss the grievances of union members with Washburn, stating
that they would have to be presented through P. H. W. U.
Conclusion
The foregoing facts point unmistakably to the respondent's par-
ticipation in the formation and administration of P. H. W. U. It
arose in the plant within 2 weeks of the day on which the respondent
dissolved the management-employee conference board as a gesture
of conformance with the Act, at the same time suggesting to its
employees. the keeping of "our accustomed way" in preference to
being influenced by "developments of the moment." The course of
conduct in which the respondent, through its officials and super-
visors, engaged subsequent to the disbanding of the conference board
leaves no doubt of its determination to continue in its plant through
P. H. W. U. a method of employee representation consistent with
that which existed prior to the Supreme Court decisions establishing
the constitutionality of the Act.
That P. H. W. U. had the respondent's active support from its
inception is made clear by the open encouragement and assistance
afforded the new organization. It was introduced in one department
by a foreman, in others by former employee-members of the confer-
ence board, who solicited membership in the presence of foremen
and in one instance with a foreman's active cooperation. The re-
spondent aided its expansion and growth by permitting solicitation
of membership during working hours, even paying employees for the
time thus spent. Within 3 weeks of the dissolution of the conference
board, P. H. W. U. had completed its organization and had been
readily granted exclusive recognition without any check by the re-
spondent of the validity of its membership claims. P. H. W. U.
continued to enjoy the respondent's cooperation until the date of
the hearing, its members freely pursuing organizational activities
during working hours, with the permission of foremen and the use
of plant facilities, and with pay. As late as June 1938 a foreman
18.There,was , introduced in evidence . a.letter written by Carney to P. H. W. U. in August
1937 requesting that solicitation of membership and other activities be pursued outside
the plant . Our previous findings reveal that the policy expressed in this letter was
never put into effect.
THE CUDAHY PACKING COMPANY 689
assisted in the solicitation' of membership. Although subsequent to
June 1937 the Union frequently protested the privileges P. H. W. U.
received in the plant, the evidence is conclusive that no effective
steps were ever taken by the respondent to curb the full exercise of
such privileges 14
There can be no doubt that the collective bargaining leading to
P. H. W. U.'s contract with the respondent was both initiated and
dominated by the respondent. In the absence of any showing of
initiative on the.part of P. H. W. U., we infer from the proximity
of the Omaha convention . to -the: creation. of P. H:: W. U. and from
the attendance at this`cOu velition of delegates from siiniiar organiza-
tions apparently formed simultaneously with P. H. W. U. in other
of the respondent's plants, that the convention was arranged by the
respondent and was participated in by P. H. W. U. upon the invita-
tion of the respondent. The terms of the blanket contract drawn at
the Omaha convention had not been previously discussed by the
membership of P. H. W. U.; and prior to the signing of this con-
tract without alteration in the terms drawn up in Omaha the plant
superintendent instructed.the P. H. W. U. stewards 'as to- their- duties
under the contract.16
The respondent's sponsorship of P. H. W. U. as an employee
organization designed to maintain the system of employer-controlled
employee representation which the respondent had fostered prior
to the establishment of the constitutionality of the Act is .,further
revealed by the, hostility- of its officials and supervisors toward the
Union."' Its supervisors freely indulged in statements disparaging
the Union, attempted to persuade the leader of the Union to abandon
it, acquiesced in the conduct of P. H. W. U. trustees in calling union
members away from their work for the purpose of removing their
union buttons, 17 and themselves intimidated union members by ques-
tioning them about union activities and by subjecting those wearing
union buttons to discrimination, coercive warnings, and unusual
surveillance while at work. A specific instance of this course of
conduct in which the respondent interfered with the employees'
right to self-organization was the exclusion of Washburn from the
beef-kill department when the union members therein appeared at
1' See Matter of Swift and Company , a corporation and Amalgamated Meat Cutters
and Butcher Workmen of North America, Local No. 61,1 and United Packing House
Workers Local Industrial Union No. 300, 7 N . L. R. B. 269 ; order enforced , as modified,
in Swift & Company v. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10; 1939).
15 Compare Matter of The Cudahy Packing Company and Packinghouse Workers Local
Industrial Union No. 62. 5 N. L. R. B. 472; order enforced, as modified , in The Cudahy
Packing .Company Y. National Labor Relations Board , 102 F. (2d) 745 (C. C. A. 8th, 1939).
16 See National - Labor Relations Board v. - Stackpole Carbon Company, 105 F. (2d) 167
(C. C. A. 3d, 1939).
17 See Matter of General Shoe Corporation and Georgia Federation of Labor, 5 N. L.
R. B. 1005.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work wearing their buttons, which exclusion we have found in Sec-
tion B to have been based on Washburn's union activities.,
The respondent's persistent opposition to the Union intimidated
its employees to the extent that union members refrained from
invoking privileges freely exercised in the plant by P. H. W. U.,
such as the use of bulletin boards and the transaction of business
and solicitation of membership during working hours. The respond-
ent's refusal to remedy this situation of inequality in answer to the
repeated requests of the Union for impartial treatment indicated
that it intended the resultant discouragement of the exercise by the
Union of privileges abundantly accorded to P. H. W. U. and amounts
to. a denial to the Union of such privileges.
We find that, by the above acts, the respondent has dominated
and interfered with the formation and administration of P. H. W. U.
and has contributed support to it, and has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
B. The lay-offs, discharges, and refusals to reinstate
The complaint alleged, and the answer denied, that the respondent
discriminated with regard to the hire and tenure of employment of
nine named employees because of their union activities 18 Attached
to the respondent's answer, and expressly made a part thereof, were
affidavits signed by certain of the respondent's supervisory officials,
setting, forth affirmative defenses to the charges of discrimination
contained in the complaint. The Trial Examiner, relying on such
affidavits, dismissed the cases of five of the employees allegedly dis-
criminated against for union activities. The Union excepted to the
Trial Examiner's findings in so far as they gave evidentiary weight
to the affidavits which were filed as a part. of the answer. We find this
exception to be well taken. The affiants did not testify at the hear-
ing and no showing was made that they were unavailable for the
purpose of testifying or being cross-examined concerning the matters
contained in their affidavits. Nor did the respondent at any time
during the hearing or subsequent thereto contend that these affi-
davits were entitled to evidentiary weight 19 Consequently, we can
afford the affidavits no evidentiary weight.
is At the hearing the charges of discrimination as to two employees were dismissed
upon motion by counsel for the Board.
19 During the course of the oral argument before the Board , the Board inquired of the
respondent 's counsel if he knew of any judicial or quasi -judicial procedure which would
justify the substitution of affidavits for the testimony of witnesses who were available.
Counsel replied that be did not, and that he made no point about it. Counsel also stated
during the oral argument that "the respondent introduced little if any rebuttal testi-
mony, for the reason that under the record as it stands there was nothing to rebut ..."
THE CUDAHY PACKING COMPANY 691
1. The beef-kill department
The complaint alleged that during the month of December 1937
three union members in the beef-kill department were laid off and/or
refused reinstatement because of their union activities. We shall
consider these cases collectively.
Lester Nelson worked in the beef-kill department continuously
from October 29, 1929, until December 4, 1937, with the exception
of a 5-month absence from work in 1936 and a 9-month lay-off in
1937. He was employed in the capacity of laborer. Nelson was
laid off on December 4, 1937, the day he first wore his union button
to work. He applied for reinstatement on December 15 but was
not rehired. Although he received several days of temporary
employment in other departments in which he possessed no seniority
subsequent'to December 4, Nelson has never been reinstated to the
beef-kill department.
The respondent in its answer alleged that Nelson's lay-off on
December 4 and its failure to reinstate him thereafter were occasioned
by light livestock receipts. The respondent, however, introduced no
evidence to support this allegation. The record affirmatively shows
that Nelson was the only employee laid off on December 4, and that
there was an increase in livestock receipts on December 15 20 Upon
the evidence, therefore, we find no merit to the respondent's con-
tention that light livestock receipts required Nelson's lay-off on
December 4 and explained his failure to. secure reinstatement
thereafter.
The respondent's answer further alleged that Nelson possessed
no seniority rights in the beef-kill department on December 4.
Since the record does not sustain the respondent's contention that
light livestock receipts required Nelson's lay-off on December 4, and his
failure to secure reinstatement thereafter, the contention that he
possessed no seniority rights on the date of his lay-off is no defense
to the alleged discrimination. However, an examination of the
evidence adduced at the hearing regarding Nelson's seniority renders
the respondent's allegation that he possessed no seniority rights on
December 4 untenable.
Although no testimonial evidence concerning the respondent's
seniority policies was introduced at the hearing, the respondent stip-
ulated that the contract then existing between it and P. H. W. U.
correctly stated the general rules of seniority prevalent in the plant.
The contract provides for a system of departmental seniority, rights
accruing after 6 months of consecutive employment in a department.
Dismissal or voluntary quitting terminates seniority; absence due to
'° The record reveals that the number of cattle killed per hour in the beef-kill depart-
ment on December 15 was 100, as compared with the 80 head an hour killed on
December 4.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
illness, however, does not cause seniority rights to be lost. It is
provided that temporary lay-offs not exceeding 90 days do not affect
seniority.
Prior to his lay-off, Nelson had worked in the beef-kill department
for approximately 8 consecutive years with the exception of the 5-
month period in 1936 and the 9-month lay-off in 1937. His absence
from work in 1936 did not operate to terminate his seniority since such
absence was due to illness. Whether the 9-month lay-off in 1937 oper-
ated to terminate the seniority rights Nelson earned during his pre-
vious 7 years of employment depends on the construction to be placed
on the provision in the contract dealing with temporary lay-offs.
Although the pertinent provision implies that a lay-off exceeding 90
days affects seniority, the contract does not state, nor did the evidence
adduced at the hearing show, whether such a lay-off terminates, or
merely suspends until reinstatement, seniority earned prior thereto.
The contract definitely states that voluntary severance of employment
or dismissal terminates seniority rights, as contrasted with a tem-
porary lay-off. exceeding, 90 days which merely affects seniority.,
Another provision recites that failure to return to work within a
given time after recall, in the event of a temporary lay-off, forfeits
seniority rights. This latter provision apparently includes tempo-
rary lay-offs exceeding 90 days giving rise to the inference that lay-
offs exceeding 90 days do not cause seniority rights to be forfeited.
In addition to the patent ambiguity in the wording of the contract,
the respondent's answer did not allege that this 9-month lay-off in
1937 terminated Nelson's seniority rights but rather based the allega-
tion that he. possessed no such rights on his 5-month absence from
work in 1936, which was alleged to have been a voluntary quitting.
As noted above, the record does not sustain this latter allegation.
Furthermore, after his 9-month lay-off Nelson was apparently per-
mitted to work in accordance with the seniority he had previously
earned in. the beef-kill department.21 The facts (1) that the contract
provision itself is ambiguous; (2) that the respondent failed to allege
in its answer; or introduce evidence to show, that this 9-month lay-off
terminated Nelson's seniority; and (3) that despite such lay-off Nel-
son was apparently allowed to work in accordance with his previously
established seniority, lead us to conclude that his 9-month lay-off in
1937 did not operate to terminate his seniority rights, and we so find.
Furthermore, Nelson testified that his seniority rights entitled him
to work on both December 4, and December 15, on which latter day
21 The evidence disclosed that experienced employees are able to ascertain the exact rate
of. kill at which the plant must operate before their seniority entitles them to work.
Nelson testified that he was always allowed to work when the kill was 25 or more.bead
of cattle an hour. Since this testimony was unrefuted , and in view of out- finding. that
Nelson had seniority rights in the beef-kill department , we accept it as-trite.
THE CUDAHY PACKING COMPANY 693
15 men with less seniority were hired."' We must accept this testi-
mony as true since the respondent, in whose possession resided the
best evidence on these matters, including departmental seniority lists,
did not refute it at the hearing.
Preston Daniels worked for the respondent in the beef-kill depart-
inent continuously from the summer of 1934 until December 22, 1937,
with the exception of periodic lay-offs due to shortages in livestock
receipts. He worked in the capacity of legger. He joined the Union
in October 1937 and commenced wearing his union button to work in
December. Daniels was laid off on December 22, 1937. He applied
for reinstatement on December 24, first by telephoning Johnson who
hung up the receiver when he learned who was calling. He then
applied to the respondent's employment manager who refused to do
anything about his case. Although subsequent to December 22 Dan-
iels received several days of temporary employment in other depart-
ments in the plant in which he possessed no seniority, he has never
been reinstated to the beef-kill. department.
The respondent in its answer alleged that Daniels' lay-off on
December 22 was occasioned by light livestock. receipts. This allega-
tion is supported by the evidence adduced at the hearing and we
accordingly find that Daniels' lay-off on that day was not an unfair
labor practice :23 Although the complaint alleged that Daniels was
refused reinstatement on December 24, the respondent did not, either
by allegation in its answer or by' submitting evidence at the hearing,
offer any explanation for its refusal to reinstate him on that day.
It is true that the respondent alleged generally that Daniels possessed
no seniority rights in the beef-kill department but this allegation
finds no support whatever in the record, which reveals that Daniels'
established seniority entitled him to work on December 24.'-4
The record is silent as to whether or not the respondent requires
its employees to apply for reinstatement in order to secure work after
a lay-off. 't'here is evidence that on occasions departmental foremen
sent for employees when work became available, and the respondent's
practice as revealed by the language used in the contract between
it and P. H. W. U. seems to contemplate recall.25 However, the ma-
jority of employees who testified at the hearing followed the practice
The respondent was killing 80 head of cattle an hour on December 4 and 100 head
on December 15. Nelson's seniority entitled him to work when the kill was 25 or more
head of cattle an hour.
23 The record discloses that the number of cattle killed per hour on December 22 was
reduced from an unknown higher figure to 60 head an hour . As noted infra, Daniels'
seniority entitled him to work when the kill was 70 or more head of cattle an hour.
21 Daniels testified that he always worked when the kill was 70 or more head of cattle
an hour . In the absence of any evidence to refute such testimony, we accept it as true.
Inasmuch as the kill on December 24 was' 80 head of cattle an hour, Daniels ' seniority
entitled him to reinstatement on that day.
2s The contract provides that a failure to report to work within a given time after recall
forfeits seniority.
190549-39-vol. 15--45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of applying for reinstatement, the usual manner being to apply at
the gates of the plant where the respondent's employment manager
hires men on mornings when there is work available in the plant.
Although Daniels did not apply at the plant gates for reinstatement
on December 24, he telephoned Johnson and the employment man-
ager. In the absence of a showing by the respondent of what was
the acceptable mode of application, we find that Daniels' application
for reinstatement on December 24 was adequate.
Otto Boyd commenced working for the respondent in 1926 and
with the exception of periodic lay-offs caused by light livestock
receipts, worked continuously until December 20, 1937. On the latter
date he was employed as a shackler in the beef-kill department under
Foreman Johnson. Boyd joined the Union around December 1, 1937,
and commenced wearing his union button in the plant on December
5. He immediately began to solicit membership among his fellow
workers before and after work.
Boyd was absent from work on Saturday, December 18, because
of illness. He sent a message to Johnson reporting his inability to
work. When he returned to the beef-kill department on Monday,
December 20, Johnson refused to allow him to work, stating "You
have taken Saturday off on yourself, take today off on me." Boyd
returned to the plant, on December 21, but was again sent home by.
Johnson with the direction to stay there until recalled. On January
19 Boyd returned to the beef-kill department , and. asked Johnson,
when he could report to work. Johnson sent him into the dressing
room to wait until he. discussed the matter with Assistant- Superin-
tendent Mills. Boyd had been waiting in the dressing room but a
few minutes when the respondent's chief of police entered and told
him "to get your damn clothes and come on," and then escorted Boyd
out of the plant. Although in January 1938 Boyd worked about 11
days in the hog-kill department where he had no seniority rights, he
has never been reinstated to the beef-kill department.
The respondent in its answer alleged that Boyd had been laid off
on December 20, 1937, and not subsequently reinstated to the beef-
kill department, because of unsatisfactory work and repeated tardi-
ness and absence from work. The respondent submitted no evidence
to support these allegations. The record itself discloses no instance
of unsatisfactory services rendered by Boyd during his approxi-
mately 11 years of employment nor does it contain evidence that
Boyd had repeatedly been tardy and absent from work. On the one
day on which the record reveals that Boyd was absent from work
he sent a message to Johnson explaining such absence.. We must
assume that Johnson received the message in the absence of any
denial by him. . Under these circumstances, we cannot accept the
THE CUDAHY PACKING COMPANY 695
respondent's contention that Boyd was laid off and refused rein-
statement because of the reasons alleged in its answer.
In weighing the evidence relative to the cases of Nelson, Daniels,
and Boyd, it is important to consider the open hostility that Johnson,
the beef-kill foreman, displayed toward the Union. Although none
of these employees was outstandingly active in union affairs, the fact
that their alleged discriminations occurred coincident with the wear-
ing of their union buttons becomes significant in the light of John-
son's anti-union activities. Nelson was laid off on the very day that
he appeared at work wearing his union button; the record contains
no valid reason for the lay-off which occurred on a day when his
seniority entitled him to work. Nelson failed to secure reinstatement
when he applied on December 15, although 15•men younger than he
in seniority were hired. Daniels was refused reinstatement on De-
cember 24, shortly after he commenced wearing his union button to
work. The record reveals no valid reason for the respondent's action
in refusing him reinstatement on a day when his seniority entitled
him to work, nor did Johnson testify to explain his 'curt refusal to
speak with Daniels when he telephoned to apply for reinstatement on
December 24. Boyd was laid off on December 20, shortly after he
appeared in the plant wearing his union button and at a time when
he had begun to solicit membership for the Union in the plant. His
lay-off occurred the next working day after an excusable absence
from work, and the circumstances surrounding his lay-off and his
failure thereafter to secure reinstatement demonstrate Johnson's an-
tipathy toward him.
It is true that these employees were given, temporary employ-
ment in other departments in which they possessed no seniority after
being laid off and/or refused reinstatement in the beef-kill depart-
ment, but such employment was not equivalent to their former posi-
tions in the beef-kill department under the respondent's seniority
system whereby a man must work in a particular department at least
6 months to establish seniority.
Upon the evidence, we are satisfied, and we find, that the respond-
ent laid Nelson off from the beef-kill department on December 4,
1937, and refused him reinstatement to that department on December
15, 1937; refused Daniels reinstatement in the beef-kill department
on December 24, 1937; and laid Boyd off from the beef-kill depart-
ment on December 20, 1937, and at all times thereafter refused Boyd
reinstatement to the beef-kill department, because of their member-
ship in the Union.
Nelson earned 60 cents an hour on the date of his lay-off, averaging
35 hours of work a week; he earned $183.08 between December 4,
1937, and the date of the hearing. Daniels earned about 82 cents an
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour prior to December 24, 1937, averaging 32 hours of work a .week.
Boyd earned about $28 a week prior to his lay-off; he earned $192
between December 20, 1937, and the date of the hearing.
2. Einar Myklegard
The complaint alleged that Myklegard was laid off on J lily 31, 1937,
and refused reinstatement on October 31, 1937, because of his union
activities. The respondent's answer denied such allegations, alleg-
ing that Myklegard's lay-off and subsequent failure to secure rein-
statement were occasioned by light. livestock receipts.
Myklegard commenced working for the respondent in March 1934,
as a laborer in the mechanical department. He was laid off from
November 1935 until March 1936. Returning to work on the latter
date, he worked continuously until July 31, 1937. Myklegard was
tenth from the top on the mechanical-department seniority list, which
contained 19 or 20 names.
The evidence adduced at the hearing shows that Myklegard's lay-
off on July 31, 1937, was in accordance with his seniority, 11 , men
being laid off on that day due to,a reduction in -livestock -receipts.
We therefore find that Myklegard's lay-off on July 31, 1937, was not
based on his union activities.
Although three employees were hired in the mechanical depart-
inent oil October 31, 1937, all of them possessing less seniority than
Myklegard, Myklegard did not apply for reinstatement either on that
day or at any other time subsequent to his lay-off. As noted above,
the weight of the evidence seems to indicate that some form of ap-
plication was usual in order to secure reinstatement. Myklegard's
failure to apply for reinstatement, coupled with an inactive union
record, leads us to find that the respondent's failure to reinstate Mykle-
gard on October 31, 1937, was not based on his union activities. .
3. Alex Gongliewski
The complaint alleged that Gongliewski had been discharged on
January 19, 1938, because of his union activities. The respondent in
its answer alleged that Gongliewski's discharge. was occasioned by
an argument in which he had engaged with Agnes Bernick, a fellow
employee, on January 19.
Gongliewski had been employed in the capacity of small-gut puller
in the hog-casing department under Foreman Blevens for about 8
years prior to his discharge. He joined the Union in December
1937, and immediately commenced wearing his button and soliciting
membership in the plant during his lunch hour and after work.
A few minutes before work commenced on the morning of January
19, Bernick met Gongliewski on the hog-casing floor and accused him
THE CUDAHY PACKING COMPANY 697
of shirking his work on the preceding day, whereupon an argument
ensued between the two. The argument was. interrupted by the hog-
casing strawboss, who sent Gongliewski to Blevens' office. Blevens
then discharged Gongliewski. Later in the morning Blevens also
discharged Bernick, presumably as a result of the argument. Ber-
nick, however, was reinstated to the hog-casing department a few
days after her discharge.
Immediately after his discharge Gongliewski reported the incident
to Carney, the plant superintendent, who suggested that he file a
grievance with P. H. W. U. He also told Washburn about his dis-
charge. Washburn talked to Blevens about Gongliewski during the
morning of January 19, and Blevens told Washburn that he had
discharged Gongliewski because of the belief that Gongliewski had
been attempting to persuade Bernick to join the Union.
About a week after his discharge Blevens sent for Gongliewski
and asked him if he desired to return to work. Gongliewski re=
plied in the affirmative, whereupon Blevens stated that he intended
to put Gongliewski to work in the beef-casing department "so I can
keep an eye on you and see that you don't get into any trouble." 26
Gongliewski went to work in the beef-casing department on January
26. He possessed no seniority in the beef-casing department. One
morning during his employment in the beef-casing department,
Blevens urged Gongliewski to file a grievance with P. H. W. U. if
he desired to secure his old job, stating that Bernick had obtained
reinstatement in that way. Gongliewski refused to file such a griev
a.nce. After working 2 or 3 days in the beef-casing department,
Gongliewski was laid off because of a reduction in forces. On or
about March 22, 1938, Blevens again sent for Gongliewski and rein
stated him to the hog-casing department.
.With regard to the argument on January 19, the evidence is con-
clusive that Bernick started the dispute. It further appears that'
Bernick habitually provoked arguments with other employees, by
using obscene language and by complaining that the employees she
worked with failed to perform their duties properly. Although
Gongliewski had argued with Bernick on occasions prior to January
19, others had also frequently done so and had never been discharged
for that reason. Blevens' admission that he had discharged Gon-
gliewski because he thought Gongliewski was attempting to induce
Bernick. to join the Union satisfies us that the argument was not the
real reason for Gongliewski's discharge. This conclusion is
strengthened by the fact that Bernick secured immediate reinstate-
'The hog -casing and beef-casing departments are on the same floor of one of the
plant buildingi3 . Although Blevens is foreman of both departments , he spends most of
his time in the beef-casing department.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meat whereas Gongliewski did not secure reinstatement until March
22, although he was allegedly discharged for the same offense as
Bernick. Although it is true that subsequent to January 19 Gon-
gliewski received employment in the beef-casing department, such
employment was temporary and was in a department in which he
possessed no seniority rights. Under all the evidence, we find that
the respondent discharged Gongliewski from the hog-casing depart-
ment on January 19, 1938, and denied him reinstatement to that
department until March 22, 1938, because of his union activities:
Gongliewski earned about 67 cents an hour prior to his discharge,
averaging 35 or 40 hours of work a week.
4. Michael Misliska
The complaint alleged that Misliska had been laid off on Decem-
ber 29, 1937, because of his membership in the Union. The respond-
ent in its answer denied such allegation and alleged that Misliska
had been laid off because of unsatisfactory work and nervousness.
Misliska had been employed about 8 years prior to his lay-off as
a butcher in the beef-cutting department. He joined the Union in
the fall of 1937 and thereafter disclosed his union membership to
a P. H. W, U. steward in his department and refused to pay
P. H. W. U. dues. On December 29, Foreman Hammerston sent
Misliska home from work after accusing him of being drunk. The
evidence reveals that Misliska was not drunk on December 29.
Although, subsequent to his lay-off, Misliska received about 6 weeks'
employment in the hog-kill department in which he possessed no
seniority, he has not been reinstated to the beef-cutting department.
The respondent introduced no evidence"at the hearing in support
of its allegation concerning Misliska's lay-off, nor does the record
show that Misliska's work at any time during his 8 years of employ-
ment had been unsatisfactory, or that he had exhibited any nervous-
ness in connection with his work. Nor did Foreman Hammerston
take the witness stand to explain his conduct in sending Misliska
home on December 29 with the remark that he was drunk, when
the record reveals that he was not drunk. The employment received
by Misliska subsequent to December 29 was temporary and was in a
department in which he possessed no seniority rights. Although the
evidence is meager concerning Misliska's union activities, the record
contains no explanation for his summary lay-off and the respondent's
failure thereafter to reinstate him, apart from his union member-
ship. We find that the respondent laid Misliska off from the beef-
cutting department on December 29, 1937, and failed thereafter to
reinstate him to the beef-cutting department, because of his
membership in the Union.
THE CUDAHY PACKING COMPANY 699
5. Harry R. Washburn
The complaint alleged that Washburn was discharged on June 24,
1938, because of his union activities. The respondent in its answer
denied such allegation, alleging that Washburn's discharge was pro-
voked by insubordination.
Washburn had been employed by the respondent about 5 years prior
to his. discharge, during which time he worked as a machinist in the
beef-casing and offal departments under Foreman Blevens. Wash-
burn was active in the formation of the Union, was elected recording
secretary in June 1937, and was elected president in January 1938,
which position he still occupied at the date of the hearing. His union
activities have been discussed in the preceding sections.
On June 22, 1938, about 35 employees in the beef-kill department
wore their union buttons to work. Prior to that day, only a few
union buttons had been worn in the department. Washburn visited
the beef-kill department during his lunch period on June 22 on union
business. ^ He had just arrived in the department and was walking
toward the dressing room when Johnson, the beef-kill foreman, ap-
proached him and said, "Get out of here, you C. I. O: son-of-a-bitch.
We will take care. of this situation up here." Washburn departed,
reporting the incident to Carney, the plant superintendent, that after-
noon. During his discussion with Carney, Washburn asserted that
the Wagner Act gave employees the right to pursue union activities
• during their lunch hours and after work and that it was his intention
to visit the beef-kill dressing room on his own time. Washburn
understood Carney to grant him permission to. visit the beef-kill de-
partment on his own time as long as he did not interfere with any-
one's work.
On June 23 Washburn visited the beef-kill dressing room during
his lunch period. He did not pause on the beef-kill floor where the
gang was working. About 5 minutes after Washburn entered the
dressing room, Johnson came in and told him "to get the hell out if
he didn't want to get hurt." Washburn replied that he had Carney's
permission to be there, suggesting that Johnson telephone Carney to
verify such permission. Johnson called Carney's office and again told
Washburn to leave the department. Washburn departed as requested
and upon returning to his own department was told by Blevens that
Carney was waiting to see him in the dressing room. Carney insisted
that Washburn had disobeyed his instructions by returning to the beef-
kill department. Washburn denied that he had been instructed to
keep out of the beef-kill depaitment, telling Carney that it was his
understanding from the June 22 conversation that he had permission
to visit the beef-kill dressing room if he did not interfere with any-
one's work. Carney thereupon forbade Washburn to return to the
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beef-kill department at any time in the future under penalty of dis-
charge and Washburn promised that he would stay out of the beef-
kill department. After Carney left, Blevens, who had been present
during the conversation, told Washburn that "he was going to get it."
During the morning of June 24, Washburn was informed that the
beef-cooler gang was being reduced at noon. The beef-cooler depart-
ment is located in a building adjacent to the one which houses the beef-
casing and offal departments and the beef-kill department. It is con-
nected to the beef-offal department by means of a ramp leading from
building to building, and is also connected to the beef-kill department
by an enclosed runway. The beef-casing and offal departments and
the beef-cooler department are on the fourth floor of their respective
buildings, and the beef-kill department occupies part of the fifth floor
of the same building in which the beef-casing and offal departments
occupy the fourth floor. During his lunch hour on June 24, Wash-
burn walked over to the beef-cooler department to ascertain if the
men being laid off were union members. When he arrived in the beef-
cooler department, he saw two men standing about half-way up the
runway leading to the beef-kill department. He walked along the
runway to where the men were standing, but upon discovering that
they were not union members he returned to his own department via
the beef-cooler department. Upon reaching his department Blevens
discharged him saying, "you finally got what you asked for."
The respondent maintains that Washburn was discharged for.
violating Carney's instructions by returning to the beef-kill depart-
ment on June 24. This contention is based on the assertion that the
runway between the beef coolers and the fifth floor of the adjacent
building is a part of the beef-kill department. The beef-kill, the
sheep-kill, and the calf-kill departments are located on the fifth floor
of the building in question.. After the animals are killed, skinned,
and processed in their respective departments on the fifth floor, they
are moved by means of overhead rails to the point where the runway,
which is designated by the respondent as the "killing floor hot line,"
connects with the fifth floor. All carcasses are shrouded, stamped,
weighed, anc' inspected as, they move down the runway toward the
coolers. The final operation consists in transferring the carcasses
from the moving rails which carry them down the runway to sta-
tionary rails inside the beef and sheep coolers.27 Only beef-kill
employees work in the runway, and the respondent considers it a
part of the beef-kill department for accounting purposes. There can
be no doubt that Washburn entered the beef-kill department when
he commenced walking along the runway. Washburn testified, how-
21 The sheep coolers are apparently located in the same building as the beef coolers.
THE CUDAHY PACKING COMPANY 701
ever, that he did not know that the respondent considered the runway
a part of the beef-kill department. Inasmuch as the final processing
of the carcasses of sheep and calves, as well as beef, is performed in
the runway, there appears to be some basis for Washburn's view.
However, we are persuaded that Washburn's conduct on June 24
was not the actual reason for his discharge. His exclusion from the
beef-kill department was clearly discriminatory. The record is
replete with evidence that other employees, including P. H. W. U.
members who transacted P. H. W. U. business, freely visited that
department both before and after Washburn was refused admittance.
Washburn himself had never been restricted until the day the union
members in the beef-kill department wore their buttons to work
en masse. The language used by Johnson on June 22 amply demon-
strates that the reason for Washburn's exclusion from the beef-kill
department was his union membership and activities. Having sub-
jected Washburn to a discriminatory ruling, the respondent then
grasped the infraction of .such ruling as an occasion for his dis-
charge. There can be no doubt that, the respondent seized upon the
June 24, 1938, incident as a pretext for discharging the Union's
president and leader, and we so find. -
Washburn earned about 68 cents an hour prior to his discharge,
averaging 33-hours of work a week.
During the oral argument before the Board the respondent asserted
that Washburn's discharge was the result of a conspiracy between the
Union and Smoot, the attorney who prepared and tried the case for
the Board. The respondent contended that such conspiracy was
brought out in the record by its cross-examination of Washburn.28
'The respondent offered certain documentary evidence as a part of its cross -examina-
tion of washburn , some of which was excluded by the Trial Examiner . Two such
excluded documents , which were filed as rejected exhibits ,. were issues of The Packing-
house News , a weekly news bulletin mimeographed and circulated by the Union among
the respondent 's employees . These issues contained articles either written by Washburn
or based upon information furnished the editorial staff of the Union by Washburn, and
were offered to impeach the credibility of his testimony concerning the circumstances
surrounding his discharge . The respondent was not prejudiced by the exclusion of these
bulletins since the information contained therein did not impeach Washburn 's sworn
testimony . A third issue of The Packinghouse News which the Trial Examiner excluded
contained an article reviewing a visit to Sioux City by Wiener , the Regional Director of
the Board for the Eighteenth Region. The respondent did not state wherein such
evidence was material to the issues in the case and we do not find that it was material.
The Trial Examiner admitted in evidence a fourth issue of The Packinghouse News con-
taining a section which had been blotted out before the issue was circulated , but ex-
cluded from evidence an exhibit setting forth the respondent 's version of the blotted-out
section. This latter exhibit , which was filed with the other rejected exhibits , consisted
of an article purporting to relate certain statements made by Vogt, a Field Examinei
for the Board , sometime in February 1938. This exhibit was at no time identified as
being the correct version of the statements which had appeared in the blotted -out section
nor was it otherwise authenticated . We therefore find that the exclusion of these two
latter exhibits was not prejudicial to the respondent . We have heretofore affirmed the
Trial Examiner 's rulings on these and other matters which arose during the cross-
examination of Washburn in the Statement of the Case supra.
702 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
The respondent claimed that Washburn had discussed with Smoot
and a union organizer in a saloon on June 22 the question of whether
a violation of the respondent's instructions to keep away from the
beef-kill department was sufficient . reason for discharge and that
Smoot told Washburn on that day that he had a constitutional right
to disobey Carney's instructions and visit the beef -kill department.
The record reveals that Washburn did relate the June 22 incident to
Smoot and Ballard, the regional director of the Union, in the tap
room of the West Hotel where Smoot was registered . However,
there was no discussion of Washburn 's constitutional rights nor of the
question of whether the beef-kill incident was sufficient to provoke
Washburn 's discharge . Both Smoot and Ballard expressed the
opinion that Washburn 's exclusion from the beef -kill department was
in violation of the Act , at the same time advising him to strictly obey
all the respondent 's rules and any instructions Carney should give
him. The respondent asserted that Washburn again discussed the
matter with Smoot on June 23, after. having returned to the beef-kill
department and after having again been asked to leave by Johnson
and forbidden to return by Carney , and that it was decided that
Washburn had not yet given the respondent sufficient provocation for
discharging him. The record , however, shows that Smoot was not in
Sioux City on June 23 , but that he had returned to Minneapolis on
June 22. The respondent maintained that "the frame-up on our
superintendent" was completed when Washburn wired Smoot about
his discharge on June 24 pursuant to a prearranged plan. Although
Washburn did wire Smoot the details of the June 24 incident, the
record conclusively shows that the wire was not sent pursuant to an
agreement between Smoot and Washburn and that the possibility of
Washburn 's discharge had never . been discussed or contemplated by
the parties . Before Smoot left Sioux City, Washburn inquired as to
what action he should take if additional evidence were 'discovered,
specifically mentioning the possibility of ,Louie Novak, a beef-kill
employee, being discriminated against for union activities. Smoot
told him that the Board 's complaint would issue after he returned to
Minneapolis and that the respondent had 5 days in which to answer.
Equipped with this knowledge, when Washburn himself was dis-
charged, he wired Smoot to insure the inclusion of his case in the
complaint . We find the charge of conspiracy between the Union and
Smoot to be entirely without foundation in the record and without
merit.
We find that the respondent discriminated with regard to the hire
and tenure of employment of Lester Nelson, Otto Boyd, Preston
Daniels, Alex Gongliewski , Michael Misliska , and Harry R. Wash-
burn, thereby discouraging membership in the Union and thereby
THE CUDAHY PACKING COMPANY 703
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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 com-
lnerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in unfair labor practices, we will order it to cease and desist there-
from and to take certain affirmative action designed to effectuate
the policies of the Act.29
We have found that the respondent dominated and interfered with
the formation and administration of, and contributed support to,
P. H. W. U. Its continued existence is a consequence of violation
of the Act, thwarting the purpose of the Act and rendering ineffec-
tive an order to cease the unfair labor practices. In order to effec-
tuate the policies of the Act and free the employees of the respondent
from such. domination and interference, and the effects thereof, which
constitute a continuing obstacle to the exercise by the employees of
the rights guaranteed them in the Act, we will order the respondent
to withdraw all recognition from P. H. W. U. as representative of
the respondent's employees for the purposes of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, and conditions of work, and to disestablish
it as such representative. The contract between the respondent and
P. H. W. U. embodying recognition of P. H. W. U. as such representa-
tive, is a result of and tends to perpetuate the effects of the respond-
ent's unfair labor practices. We will order the respondent to cease
T^ As pointed out in Section II, supra, United Packing House Workers Local Industrial
Union No. 389 , the Union filing the charges in Case C-901, was divided into three separate
groups on or about August 1938, and the respondent ' s employees who were members
of Local 389 transferred to United Packing House Workers Local Industrial Union No.
873, affiliated with the Packing House Workers Organizing Committee and the Com-
mittee for Industrial Organization , the Union filing the petition for investigation and
certification in Case R-1134 . All the respondent's employees who are affiliated with the
Committee for Industrial Organization are now represented by Local No . 873. In order
to effectuate the policies of the Act , it is necessary that the respondent be ordered to
cease and desist from discouraging membership in, United Packing House Workers Local
Industrial Union No. 873 . This will be accomplished in our Order that the respondent
cease . and .desist from discouraging membersbip in United Packing House Workers Local
Industrial Union No . 389, or any other labor organization of its employees.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist from giving effect to the contract heretofore described or
any other contract or agreement it may have entered into with
P. H. W. U. in regard to rates of pay, wages, hours of employment,
or other conditions of employment.-
We have found that the respondent discriminated with regard to
the hire and tenure of employment of Nelson, Boyd, Daniels,
Gongliewski, Misliska, and Washburn, because of their union ac-
tivities. In order to effectuate the policies of the Act, we shall order
the respondent to offer to these employees, with the exception of
Gongliewski, reinstatement to their former positions without
prejudice to their seniority and other rights and privileges. In the
case of Gongliewski, we have found that the respondent reinstated
him to his former position on March 22, 1938. Accordingly, we
shall not order the respondent to reinstate Gongliewski but will re-
quire that the respondent fully restore to Gongliewski any seniority
right's or other rights or privileges he may have lost by reason of
his discharge on..January 1.9, 1938. The respondent will be required
to make Nelson, Daniels, Boyd, Misliska, and Washburn whole for
any loss of pay they may have suffered by reason of this discrimina-
tion with regard to their hire and tenure of employment by payment
to each of them, respectively, a sum of money equal to the amount
which they each normally would have earned as wages from the date
of such discrimination to the date of the offers of reinstatement,
less their net earnings 31 during said period. With regard to
Gongliewski, the respondent will be required to make him whole for
any loss of pay he may have suffered- between January 19, 1938, the
date of his discharge, and March 22, 1938, the date of his reinstate-
ment, less his net earnings as aforesaid.
However, in view of the Trial Examiner's finding that the re-
spondent did not discriminate against Nelson, Daniels, and Boyd we
will not require the respondent to give back pay to those men for
the period from the date of the respondent's receipt of the Inter-
mediate Report to the date of this Decisioll.32
30See National Labor Relations Board v. Stackpole Carbon Company, 105 F. (2d) ]G7
(C. C. A. 3d, 1939).
31 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 America, 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 are not considered as earnings , but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county , municipal, or other govern-
ment or governments which supplied the funds for said work -relief projects.
32See Matter of E. R . Haffelfanger Company, Inc. and United Wall Paper Crafts of
North America , Local No . 6, 1 N. L. R . B. 760.
THE CUDAHY PACKING COMPANY
17I. THE QUESTION CONCERNING REPRESENTATION
705
As pointed out in Section II, supra, the respondent's employees
who had been affiliated with United Packing House Workers Local
Industrial Union No. 389, were transferred to United Packing House
Workers Local Industrial Union No. 873 pursuant to a reorganiza-
tion effected by the Packing House Workers Organizing Commit-
tee, affiliated with the Committee for Industrial Organization, in
August 1938. Thereafter Local No. 873 received a charter and
elected its officers. Prior to the transfer, Harry R.. Washburn, the
president of Local No. 389, resigned his office. He was elected presi-
dent:of Local No. 873 in August 1938.
On August 26, 1938, Washburn wrote a letter to English, the re-
spondent's assistant superintendent, stating that the Union repre-
sented a. majority of the respondent's employees and requesting a
bargaining conference. The respondent did not reply to such letter.
Also in August 1938 a union committee met several of the respond-
ent's Sioux City officials and Thomas Creigh, its Chicago, Illinois,
counsel, at the Warrior Hotel in Sioux City. The Union at that
time requested recognition from the respondent and compliance with
the recommendations of the Trial Examiner's Intermediate Report
in Case No. C-901. Creigh. stated that the respondent would not
recognize the Union, adding that "they would .have to let the law
take its course and.carry this thing through the Courts."
We find that a question has arisen concerting the representation
of the respondent's employees.
VII. 'THE EFFECT OF THE QUESTION CONCERNING
REPRESENTATION UPON COMMERCE
We :find that the question concerning representation which has
arisen, occuring in connection with the operations of the respondent
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 all parties stipulated that an appropriate unit for
the purposes of collective bargaining should consist of all hourly paid
and piece-work production and maintenance employees, exclusive of
superintendents, assistant superintendents, foremen, subforemen,
clerical .and office workers, scalers, watchmen, timekeepers, truck
drivers, employees in the salvage department, and all supervisory
employees. We shall adopt the unit agreed upon by the parties.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all hourly paid and piece-work production and main-
tenance employees, exclusive of superintendents, assistant superin-
tendents, foremen, subforemen, clerical and office workers, scalers,
watchmen, timekeepers, truck drivers, employees in the salvage de-
partment, and all supervisory employees, constitute a unit appro-
priate for the purposes of collective bargaining and that said unit
will insure to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
The record discloses that the respondent's pay roll of November
12, 1938, which was not introduced in evidence, contained the names
of 870 employees within the unit we have found to be appropriate.
The Union introduced in evidence 696 membership cards signed by
employees of the respondent between June 1937 and the date of the
hearing. The authenticity of such cards was established at the
hearing.33 The Union also introduced in evidence petitions signed
by 685 persons within 2 months of the hearing, designating the Union
as their bargaining agent. A comparison of the signatures on these
petitions with the signatures on the 696 membership cards which
were stipulated to be authentic reveals that 584 of the employees in
the appropriate unit designated the Union as their representative
for the purposes of collective bargaining during the months of Octo-
ber and November 1938.
The Union claims that it should be certified upon the proof offered.
The Company, however, strenuously objects to certification. As we
have recently stated, we are persuaded by our experience that, under
circumstances such as these, any negotiations entered into pursuant
to a determination of representatives by the Board will be more
satisfactory if all disagreement between the parties regarding the
wishes of the employees has been, as far as possible, eliminated."',
We shall therefore direct that an election by secret ballot be held
33 Although the respondent admitted the validity of the signatures on the cards and
the fact that the 696 employees who signed the cards were within the appropriate
unit, it objected to their admission on the grounds that there was no showing that
the cards were valid designations of the Union or that the employees signing such
cards were members of the Union at the date of the hearing. The fact that a majority
of employees signed membership cards is sufficient designation . See National Labor
Relations Board V. The Louisville Refining Company, 102 F. (2d) 678 (C. C. A. 6th).
Furthermore , a majority of employees in the appropriate unit signed petitions within
2 months of the hearing designating the Union as their representative. The respondent's
objections to the admission of these cards are without merit.
34 Matter of Armour and Company and United Packinghouse Workers Local Industrial
Union No. 13, Packinghouse Workers Organizing Committee, affiliated with C. 1. 0., 13 N. L.
R. B. 567; See also Matter of The Cudahy Packing Company and United Packinghouse
Workers of America, Local No. 21, of the Packinghouse Workers Organizing Committee,
13 N. L. R. B. 526.
THE CUDAHY PACKING COMPANY 707
but at such time in_th6 future ' as we shall hereafter direct when we
are satisfied that the respondent 's unfair labor practices do not pre-
vent a free expression of the employees ' choice of representatives.
. At the hearing the parties stipulated that the pay roll for the week
ending November 12, 1938 , should be used as a basis for determining
the question concerning representation . We shall defer the deter-
mination of the eligibility date until our further Direction. In-
cluded among those who shall have an opportunity to vote are Lester
Nelson, Otto Boyd , Preston Daniels , Michael Misliska , and Harry R..
Washburn, whom we have found were discriminatorily laid off, dis-
charged or refused reinstatement prior to November 12, 1938. Inas-
much as we are ordering that the respondent withdraw recognition
from P. H. W. U . and that P . H.. W...U. be disestablished as a col-
lective bargaining agency, no provision for P . H. W. U. shall be
made upon the ballots.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUsIONs OF LAW
1. United Packing House Workers Local Industrial Union No. 389,
United Packing House Workers Local Industrial Union No. 873,
affiliated with Packing House Workers Organizing Committee and the
Committee for Industrial Organization, and Packing House Workers
Union of Sioux City, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of the Packing House Workers Union of
Sioux City, and by contributing support to said organization, has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of Lester Nelson, Otto Boyd, Preston Daniels,
Alex Gongliewski, Michael Misliska, and Harry R. Washburn, there-
by discouraging membership in the Union, has engaged in and is
engaging in, unfair labor practices within the meaning of Section
8 (3) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of'the rights guaranteed in Section 7
of the Act, has engaged 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.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The respondent has not discriminated in regard to the hire
and tenure of employment of Einar Myklegard within the meaning
of Section 8 (3) of the Act.
7. A question affecting commerce has arisen concerning represen-
tation of employees of the respondent, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
8. All hourly paid and piece-work production and maintenance
employees of the respondent, exclusive of superintendents, assistant
superintendents, foremen, subforemen, clerical and office workers,
scalers, watchmen, timekeepers, truck drivers, employees in the
salvage department, and all supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Cudahy Packing Company, Sioux City, Iowa, and
it's officers, agents, successors, and assigns, shall
1'. Cease and desist from :
(a) Dominating or interfering 'with the administration of the
Packing House Workers Union of Sioux City, or with the formation
or administration of any other labor organization of its employees,
and from contributing support to the Packing House Workers Union
of Sioux City or any other labor organization of its employees;
(b) Recognizing the Packing House Workers Union -of Sioux
City as the representative of any of its employees for the purpose
of'dealiing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work;
' (c) Discouraging membership in the United Packing House
Workers Local Industrial Union No. 389, or any other labor or-
ganization of its employees, by discriminating in regard to hire or
tenure of employment or any term or condition of employment of
any of its employees because of their membership in, or activity on
behalf of, any such labor organization;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act;
THE CUDAHY PACKING COMPANY 709
(e) Giving effect to its contract with the Packing House Workers
Union of Sioux City.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from the Packing House Workers
Union of Sioux City as a representative of its employees for the
purposes of dealing with the respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or other condi-
tions of employment, and completely disestablish the Packing House
Workers T,nion of Sioux City as such representative;
(b) Offer to Lester Nelson, Otto Boyd, Preston Daniels, Michael
Misliska, and Harry R. Washburn, immediate and full reinstatement
to their former positions without prejudice to their seniority or
other rights and privileges, and restore to Alex Gongliewski any
seniority rights or other rights or privileges he may have lost by
reason of his discharge;
(c) Make whole Lester Nelson and Otto Boyd for any losses in
pay that they have suffered by reason of their discriminatory lay-offs,
and make whole Preston Daniels for any loss in pay he may have
suffered by reason of his discriminatory refusal of reinstatement,
by payment to each of them, respectively, a sum of money equal to
that which they each normally would have earned as wages during
the period from the date of their discriminatory lay-off or refusal
of reinstatement, to the date of the respondent's receipt of the Trial
Examiner's Intermediate Report, and from the date of this Order
to the date of their reinstatement or offer of reinstatement, less their
net earnings during said periods, deducting, however, from the
amount otherwise due to each of said employees, monies received
by said employees 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, comity, municipal, or other government or gover. n-
ments which supplied the funds for said work-relief projects;
(d) Make whole Alex Gongliewski for any loss of pay he may have
suffered by reason of his discharge, by payment to him of a sum
of money equal to that which he normally would have earned as
wages from January 19, 1938, to March 22, 1938, the date of his
reinstatement, less his net earnings, if any, during said period,
deducting, however, from the amount otherwise due him, monies
received by him during said period for work performed upon Fed-
eral, 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 govern-
ments which supplied the funds for said work-relief projects;
199549-39-vol. 15--46
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Make whole Michael Misliska and Harry. R. Washburn for any
losses in pay they may have suffiered by reason of their discrimina-
tory lay-off and discharge, respectively, by payment to each of them,
a sum of money equal to that which they each normally would have
earned as wages during the period from the date of their discrim-
inatory lay-off and discharge, respectively, to the date of their rein-
statement or offer of reinstatement, less their net earnings, if any,
during said periods, deducting, however, from the amount otherwise
due to each of said employees, monies received by said employees
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 sup-
plied the funds for said work-relief projects;
(f) Immediately post and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees in a conspicuous place in its plant at Sioux City, Iowa,
stating that the respondent (1) will cease and desist in the manner
set forth in paragraph 1 of this Order; and (2) will take the af-
firmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e)
of this Order;
(g) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent discriminated
against Einar Myklegard in regard to his hire and tenure of em-
ployment or any term or condition of employment.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, $ection 8, of
National Labor Relations Board Rules and Regulations-Series 2, it
is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purpose of collective
bargaining with The Cudahy Packing Company, Sioux City, Iowa,
an election by secret ballot shall be conducted at such time in
the future as the Board shall hereafter direct, under the direction
and supervision of the Regional Director for the Eighteenth Region,
acting in this matter as agent for the National Labor Relations
Board,' and subject to Article III, Section 9, of said Rules and
THE CUDAHY PACKING COMPANY 711
Regulations, among all hourly paid and piece-work production and
maintenance employees of The Cudahy Packing Company, Sioux
City, Iowa, exclusive of superintendents, assistant superintendents,
foremen, subforemen, clerical and office workers, scalers, watchmen,
timekeepers, truck drivers, employees in the salvage department,
and all supervisory employees, to determine whether or not such
employees desire to be represented -for the purposes of collective
bargaining by United Packing House Workers Local Industrial
Union No. 873, affiliated with Packing House Workers Organizing
Committee and the Committee.for Industrial Organization.
Mir. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision, Order, and Direction of Election.