Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1938

7 N.L.R.B. 986 (N.L.R.B. 1938)

In the Matter Of WILSON & CO., INC. and INDEPENDENT UNION OF ALL
WORKERS OR ITS SUCCESSOR UNITED PACKING HOUSE WORKERS
Case No. C-483-Decided June 930, 1938
Meat Packing Industry-Interference , Restraint , and Coercion : removing
union officials from pay roll and warning others about participating in union
activities-Company -Dominated Union: domination of and interference with for-
mation and administration ; support ; disestablished , as agency for collective
bargaining-Discrimination : discharge-Reinstatement Ordered: discharged em-
ployee-Back Pay: awarded to discharged employee.
Mr. Thurlow Smoot, for the Board.
Mr. James D. Cooney, of Chicago, Ill., Mr. Marshal Wiedel, of
Chicago, Ill., and Mr. John F. D. Meighen, of Albert Lea, Minn., for
the respondent.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Independent
Union of All Workers, Albert Lea and Austin, Minnesota, herein
called the Independent, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Eighteenth Region
(Minneapolis, Minnesota) issued a complaint, dated March 14, 1936,
against Wilson & Co. Inc., Albert Lea, Minnesota, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by a notice of a hearing
to be held on March 26, 1936, were duly served. upon the respondent
and the Independent. Thereafter the respondent sought to restrain
further proceedings under the Act by filing a bill in equity with the
District Court of the United States for the District of Minnesota,
Second Division, praying for a temporary restraining order, a pre-
986
DECISIONS AND ORDERS 987
liminary injunction after notice and hearing; a permanent injunction
on final hearing, and a declaratory judgment. The hearing on the
Board's complaint was postponed indefinitely. The District Court
dismissed the respondent's bill in equity and the respondent appealed
to the United States Circuit Court of Appeals for the Eighth Circuit.
On May 5, 1937, the latter court affirmed the decree of the District
Court 1 and on May 26, 1937, issued its mandate. The District Court
entered its decree on the mandate on June 10, 1937, affirming its
former decree in all respects.
Thereafter the Independent filed with the Regional Director for
the Eighteenth Region a second amended charge, dated June 16,
1937, upon which the Board, by the Acting Regional Director for
the Eighteenth Region, issued an amended complaint, dated -June
30, 1937, against the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (2), and (3), and
Section 2 (6) and (7) of the Act. Copies of the amended com-
plaint, accompanied by notice of hearing, were duly served upon
the respondent and the Independent.
The amended complaint alleged in substance that the -respondent
dominated and interfered with the formation and administration
of a labor organization of its employees, known as Wilson Employes'
Representation Plan, herein called the E. R. P., and contributed
financial and other support to it; that the respondent discriminated
in regard to the tenure of employment of Elmer Wenzel to dis-
courage membership in the Independent; and that by these acts
the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of their right to self-organization and to
engage in concerted activities for their i Zutual aid and protection
as guaranteed in Section 7 of the Act. On July 10, 1937, the re-
spondent filed an answer to the amended complaint, denying that
its business affected commerce within the meaning of the Act, deny-
ing the alleged unfair labor practices, and setting forth a number
.of affirmative defenses in regard to the discharge of Wenzel.
Pursuant to notice, a hearing was held in Albert Lea, Minnesota,
on July 19, 20, 21, 22, 23, 24, 26, and 27, 1937, before Patrick H.
McNally, the Trial Examiner duly designated by the Board. The
respondent appeared, was represented by counsel, and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. At the close of the Board's case and again
at 'the conclusion of the hearing, the respondent moved to dismiss
the complaint for lack of jurisdiction and also on the ground that
190 F. (2d) 247.
988 NATIONAL LABOR RELATIONS BOARD
the evidence failed to show any violation of the Act by the respond-
ent. The motions were denied. by the Trial, Examiner. The rulings
are hereby affirmed.
At the conclusion of the hearing, counsel for the respondent stated
for the record that on July 16, 1937, he had filed an application in
the Regional Office for the Eighteenth Region (Minneapolis, Min-
nesota) for the issuance of subpenas, but that they had never been
issued or delivered to him. He offered a copy of the application for
inclusion in the record and the Trial Examiner permitted it to be
made part of the record. Subpenas had in fact been issued and were
available to respondent at the hearing, but respondent made no
request for them at any time after it had filed its application in
the Regional Office or at the hearing. We do not feel that the
respondent has been prejudiced in any manner by the failure to re-
ceive subpenas, and in fact the respondent made no such claim.
On March 14, 1938, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon all the parties, finding
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 Act, and recommending that the respond-
ent cease and desist therefrom and, affirmatively, withdraw recog-
nition from and disestablish the E. R. P. and offer full reinstatement
with back pay to Wenzel. Exceptions to the Intermediate Report
were filed by the respondent on March 28, 1938.
Pursuant to notice, a hearing was held before the Board on May
3, 1938, in Washington, D. C., for the purpose of oral argument on
the Exceptions to the Intermediate Report and on the record. The
respondent and the Independent were represented by counsel and
participated in the oral argument.
During the course of the hearing, the Trial Examiner made a number
of rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. The Board has also reviewed the respondent's Exceptions
to the Intermediate Report and finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Albert Lea Packing Company, Inc., was incorporated under
the laws of the State of Virginia on August 24, 1914. Its name was
changed to Wilson & Company, Inc., of Minnesota-on August 26,
1932. This company, a subsidiary of the respondent, operated a
plant at Albert Lea, Minnesota, until August 25, 1935, at which time
DECISIONS AND ORDERS 989
it leased the plant to the parent company, Wilson'and Company, Inc.,
a Delaware corporation, the respondent herein.
The respondent through some 50 subsidiaries is engaged in the
purchase and slaughter of livestock, the -processing of meat products
and byproducts, and their sale and distribution. It operates seven
or eight slaughter houses 'and packing plants; one of which is the
plant at Albert Lea, Minnesota. At theFAlbert Lea plant livestock is
slaughtered, meat processed, and sales conducted. During the period
from July 1, 1935, to July 1, 1937, the sale of the products of this
plant outside the State of Minnesota amounted to $24,614,853.78, or
81 per cent of all sales, while the sales within the State amounted to
$5,758,236.34, or 19 'per cent of all sales. During the same period,
purchases of livestock outside the State of Minnesota amounted to 13
per cent of all cattle purchased, 1 per cent of all veal purchased, 32
per cent of all sheep purchased, and 17 per cent of all hogs purchased.
Livestock purchased outside Minnesota is shipped to the plant by
rail and truck. The plant employs 70 salesmen covering Minnesota,
part of North Dakota, the upper part of Iowa, the northern part of
Wisconsin, and small portions of Michigan and New York. There is
a continuous flow of livestock into the Albert Lea plant of the re-
spondent and of meat products and byproducts out and into
interstate commerce.
II. THE ORGANIZATIONS INVOLVED
Independent Union of All Workers is a labor organization incor-
porated under the laws of Minnesota on October 4, 1933, admitting
to membership all wage earners, who are 16 years of age or over,
exclusive of superintendents, foremen, timekeepers, and managers of
wholesale houses. Local unions of the Independent were set up in
communities and units for particular industries were set up within
the locals. On October 13, 1933, a charter was issued by the Inde-
pendent to Local Union No. II, Unit No. 1, to cover the employees
of the respondent's Albert Lea plant. On April 26, 1937, in order
to conform to industrial organization, Unit No. 1 applied to and
received from the Central Body of the Independent a charter desig-
nating it as United Packing House Workers, Local No. 2.
About June 15, 1937, the Committee for Industrial Organization,
herein called the C. I. 0., granted a charter to United Packing House
Workers, Local No. 2. It then became designated as United Packing
House Workers Local Industrial Union No. 122 and severed its
connection with the Independent. It is now an affiliate of the
C. I. 0., admitting to membership all workers employed in the
meat. production industry. '
990 NATIONAL LABOR RELATIONS BOARD
Wilson Employes' Representation Plan is a labor organization, ad-
mitting to its membership all employees of the respondent , except
supervisors.
III. THE UNFAIR LABOR PRACTICES
A. The background of the unfair labor practices
The Independent filed articles of incorporation under the laws
of the State of Minnesota on July 15 , 1923. It was organized in
Austin, Minnesota , and in a few weeks spread to Albert Lea. On
'October 13, 1933, the Independent granted a charter establishing a
local union in Albert Lea. A substantial number of the respondent's
employees had become members by the fall of 1934 . From the time
of the formation of the Independent until April or May of 1937,
there was considerable industrial strife in Albert Lea and Faribault,
Minnesota . In January 1934 , operations were halted by employees
in the respondent's plant at Albert Lea as a protest against the Joint
Representation Plan , then functioning in the plant ,` and on July 31,
1934, there was a 7-hour sit-down strike in the plant in sympathy
with striking employees in the respondent's plant at Faribault, Min-
nesota. Again , on February 23, 1935, the calf-killing gang in the
Albert Lea plant walked out, refusing to work overtime.
The respondent met this situation by removing some ranking union
officials from its pay roll and warning others about participating in
union activities . Hemenway , who was in charge of the sit-down strike
of July 31 , 1934, was laid off the following month on the basis of sen-
iority with 35 or 40 other employees . All the other steady employees
were subsequently rehired, but Hemenway was not rehired although
he was classed as a steady employee and was the oldest in seniority
of those laid off. Jones , who negotiated with the respondent in re-
spect to reinstatement of the calf-killing gang, was told by James
Cooney, a vice president of the respondent, that he could not make
speeches hostile to the respondent at union meetings and yet try
to "keep peace in the family" at the plant . Drier, a former employee,
was told by the superintendent of the plant, when he applied for
work in 1936 , that he would never be rehired because he was too
good a union organizer. Sanders, who had become involved in a
fracas during a labor dispute in a neighboring plant and had failed
to report to work for 4 days, was discharged, although other em-
ployees who had at times been absent from work for 3 or 4 days
had not been discharged. When Sanders subsequently applied for
work, he was told that his work had always been satisfactory, but
that he had become involved in the Union, and had been -led astray.
Wolden, who had been vice president and acting president of the
Packing House Unit of the Independent , herein called the Unit, was
DECISIONS AND ORDERS 991
informed that if he got into trouble over a strike in another com-
pany's plant, he was not to return to the respondent for work, and
that some other union members would never return to work.
Knutson, who was president of the Unit at the time of the hear-
ing, testified that Williams, general superintendent of the, plant, told
him that the respondent knew what was going on at their meetings
and everything that was taking place and that the telephone wires
into their office were tapped. At .the hearing Williams denied that
he made these statements to Knutson. However, lie admitted warn-
ing Knutson that any union member who failed to report. to work as
a result of becoming involved in a labor dispute at another com-
pany's plant would be discharged. Wenzel, who was discharged
in 1935 for alleged unsatisfactory workmanship, was president of
the Unit at the time of his discharge. Hemenway, who was on the
Executive Board of the Central Body of the Independent and who
stated that he was familiar with the membership records of the Unit
through his official position, testified that there was a substantial
decrease in the membership of the Unit due to the discharge of
Wenzel.
B. Domination of and interference with the formation and adminis-
tration of the E. R. P.
There had been an employee-representation plan, called the Joint
Representative Committee Plan, at the Albert Lea plant since 1921,
composed of an equal number of management and employee repre-
sentatives. As previously stated, during 1934 and the spring of
1935 there was a considerable amount of turmoil and controversy
among the employees concerning the Independent and also concern-
ing industrial conditions in Albert Lea and vicinity. According to
the testimony of Eastwood, manager of the plant, the E. R. P. was
formed in the following manner : A large number of employees, who
were interested in their jobs and in preserving peace and harmony
about the plant, asked from time to time during this period if some-
thing could not be done to eliminate the causes of disturbance in
the plant. The employees were dissatisfied with the Joint Repre-
sentative Committee Plan because of the management representation.
A group of employees asked Eastwood if some bargaining agency
could be established whereby grievances could be settled in a more
peaceful manner. Several discussions were held between Eastwood
and the group and between Cooney, a vice president of the re-
spondent, and the group. Information as to what had occurred at
the meetings was sent to the Chicago office of the respondent and
a constitution was requested. The Chicago office formulated the in-
formation it had received into a plan and sent it to the Albert Lea
992 NATIONAL LABOR RELATIONS BOARD
plant. Copies of the form of the plan, known as the E. R. P., were
given to the employees to study.
Stanzuk, who served as chairman of the E. R. P. for 2 years, testi-
fied, on the other hand, that he first learned of the E. R. P. when
Eastwood and Williams called him and 11 other employees from
different departments of the plant into Williams' office around April
15, 1935, and presented them with a typewritten copy of the E. R. P.
He stated that Eastwood told the 12 employees that he had some-
thing to "work up" harmony in the plant. The 12 employees re-
quested that they be allowed to study the E. R. P. and show it to
other employees. This request was granted and copies were placed
on the bulletin board in the plant to enable the employees to study
it: About 2 weeks later the 12 employees went through the plant to
determine the sentiment of the employees toward the E. R. P. Since
some of the employees were in favor of it, while others were opposed
to it, the group decided that an election would be the fairest way to
settle the issue. They, therefore, requested and received permission
from the management to hold an election.
Notices for the election were prepared in the office of Williams, gen-
eral superintendent of the plant. Ballots for a primary and a final
election were prepared by the respondent and theielections were held
in the plant during working hours. The election was merely for the'
purpose of electing representatives to the E. R. P., there being no
provision on the ballots whereby employees could signify either their
acceptance or rejection of the E. R. P. The plant was divided into
10 districts from which representatives were elected.
(1) Constitution and bylaws of the E. R. P. The constitution and
bylaws clearly reveal the respondent's participation in and domina-
tion of the formation and administration of the E. R. P. The con-
stitution and bylaws were printed in booklet form by the respondent
at no cost to the E. R. P., and every employee in the plant received a
booklet with his pay check. The constitution states in part that
"it is adopted by the employees of Wilson & Co., at Albert Lea and
Faribault, Minnesota, and approved by the management to provide
a means whereby employees through representatives of their own
choosing may deal collectively with management." 2 Eastwood
stated that the E. R. P. was designed to cover both the Albert Lea
and the Faribault plants, but stated that he did not know why the
only districts named from which representatives were to be chosen
were those of the Albert Lea plant. He also stated that he did not re-
member who conceived the idea of having the E. R. P. adopted
for both plants in identical form. Article 7 provides for the holding
of meetings during regular business hours without loss of pay for
2 Italics supplied.
DECISIONS AND ORDERS 993
the time spent by employee representatives in attendance at such
meetings. Article 10 provides that the constitution and bylaws, in-
cluding the sections covering organization and election procedure,
may be amended with the approval of the management.
(2) Operation of the E. R. P. The operation of the E. R. P.
further discloses the domination exercised over it by the respondent.
Meetings of representatives, not for the purpose of conferring with
the management, are held once a month in the respondent's office
and usually last about 3 hours. Representatives attending such
meetings suffer no deduction from their wages for time spent at
the meetings. Eastwood and Williams were generally called into
the meetings and. at times called special meetings themselves. Nie-
haus, who had been a representative in 1936, testified that on sev-
eral occasions he was notified of special meetings by his foreman.
Minutes of the meetings are turned into Williams' office where they
are typed and copies distributed throughout the plant.
Niehaus testified that practically every man working at the re-
spondent's plant is a member of the E. R. P. and that quite a number
are also members of the C. I. O. with which the Unit, formerly a
local of the Independent, is now affiliated. He further stated that
he did not know of any reason why an employee could not be a
member of both the E. R. P. and the C. I. O. at the same time.
The E. R. P. has no application cards or membership lists and
collects no dues. Stanzuk testified that he did not know how a
person became a member of the E. R. P.
(3) Expenses. The E. R. P. is absolutely dependent on the re-
spondent for financial support. It has never possessed any funds.
Ballots and notices of elections are printed by the respondent at no
cost to the E. R. P. There, is no deduction in the pay of employees
for time spent in arranging and conducting elections. We have
already referred to the fact that there is no deduction in the pay of
representatives for time spent in attending meetings of the E. R. P.
The respondent bears the expenses of picnics and dances which are
given by the E. R. P. Employees make arrangements for these
affairs during working hours and, as in the other instances cited,
there is no deduction in pay for time so spent.
(4) Relations between the respondent and the E. R. P. The'rela-
tions between the respondent and the E. R. P. illustrate the incapa-
bility of the E. R. P. to function as a collective bargaining agency
and its dependence on the respondent. The respondent has never
entered into any contract with the E. R. P. In October of 1936, the
E. R. P. requested a 10-per cent increase in the wages of employees
at the Albert Lea plant. Eastwood and Williams agreed to recom-
mend to the Chicago office of the, respondent that a 5-per cent increase
994 NATIONAL LABOR RELATIONS BOARD
in wages be granted. On October 27, 1936, at a special meeting of the
E. R. P. representatives, Williams read a letter from the respondent's
Chicago office. The letter stated that the respondent had received
requests from the representative committees of all its major packing
plants except one and that a wage increase of 7 per cent was granted
effective at all such plants on November 2, 1936. The E. R. P. did
not ask for a signed agreement relative to this wage increase. Stanzuk
testified that Williams merely announced that the respondent -would
grant a wage increase and that the length of time the raise was to be
in effect, was never stated. It is clear that the wage increase cannot
be credited to the functioning of the E. R. P. as a collective bargaining
agency. It was not confined to the employees of the Albert Lea plant,
but was granted to employees in all the respondent's plants. More-
over, it was terminable at the pleasure of the respondent, its continu-
ance not being safeguarded by any contract.
Some doubt as to the legality of the E. R. P. under the Act was
expressed by different employees in April 1937, and the E. R. P.
representatives requested the respondent for an opinion on the validity
of the E. R. P. A special meeting of the E. R. P. representatives was
held on April 19, 1937, to discuss the matter. A letter was read by
Eastwood stating, in substance, that the E. R. P. was not illegal under
the Act, and that the respondent would continue to deal with it as in
the past. It is significant that in this situation the E. R. P. deemed
it proper to seek the advice of the respondent, to whom it owed its
formation and continued existence.
We find that the respondent has dominated and interfered with
the formation and administration of the E. R. P. and has contributed
financial and other support to it and thereby has interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
C. The discharge of, Elmer Wenzel
The complaint alleged that on August 17, 1935, the respondent
discharged and thereafter refused to reinstate Elmer Wenzel because
he joined and assisted the Independent and engaged in concerted ac-
tivities with other employees in the Albert Lea plant for the purpose
of collective bargaining and other mutual aid and protection. The
respondent's answer alleged that Wenzel was discharged for cause,
that he was sabotaging at the instigation of the Independent, and
that on his application for reemployment the respondent had offered
him reinstatement with a subsequent restoration of his seniority
rights if he performed his work in a capable manner.
Wenzel had been employed by the respondent and its predecessor
since 1913 and had worked at the Albert Lea plant during practi-
DECISIONS AND ORDERS 995
tally the entire period up to his discharge on August 17, 1935. From
the fall of 1917 to the date of his discharge, he was engaged in "loin
pulling," which is one of the operations involved in cutting up hogs
and is classed as skilled work. The loin puller removes the loin at
the point where the side is "scribed," that is, where the ribs are cut
through. He must remove the loin without cutting into the lean meat
of the loin or leaving too thick a layer of fat on it. A loin that is
pulled improperly in either of these respects is considered scored.
Usually a loin puller is skilled in pulling either the right or left loin,.
but Wenzel was exceptional in that he could pull both sides. From
February 1935, to the date of his discharge, Wenzel was pulling
right loins. During this period, there was considerable trouble in
the plant over scored loins. In the period from February 18, 1935,
to June 4, 1935, three letters were received from the Chicago office
,of the respondent concerning the scoring. The letters, however, were
not confined to criticisms of the scoring, but also complained of poor
workmanship in scribing, packing, splitting on the kill, and ribbing
of spareribs.
During this period an employee named Torgerson pulled loins
with Wenzel. Torgerson pulled on the left side. His fellow em-
ployees characterized him as a rough butcher and a poor loin trim-
mer. Wenzel testified that Torgerson told him many times that he
did not like the work and did not care how he performed it. Wen-
zel further testified that it appeared to him that Torgerson did a lot
of scoring intentionally. Jones, a former loin puller at the plant,
stated that he had pulled loins with Torgerson and that Torgerson
intentionally scored loins. He also stated that Torgerson had told
hint that he did not like the work. Wenzel, on the other hand, was
considered by his fellow employees to be a very good loin puller.
Jackson, who was assistant foreman in the hog killing and cutting
department in 1934, testified that Wenzel was a good loin puller in
1934. The respondent admitted in its answer that Wenzel was a
satisfactory and desirable employee for many years prior to 1935.
From February 18, 1935, to the date of Wenzel's discharge, fre-
quent tests were made of the loin pulling. Several officials of the
plant testified that they had made examinations and observations of
the loin pulling, which disclosed that from 10 to 60 per cent or an
average of from 20 to 35 per cent of the loins were scored. How-
ever, none of these tests indicated whether the scored loins were
right or left loins, although it was stated that no appreciable dif-
ference in scoring between right and left loins was noticed at the
time of taking tests. Some written tests were made by checking 100
pork loins, alternating between right and left loins. These tests,
however, showed merely the number of loins scored out of 100 and
did not disclose whether the scores were on right or left loins. Al-
996 NATIONAL LABOR RELATIONS BOARD
though written tests were customarily destroyed after they had
served their purpose, the respondent introduced in evidence 11 written
tests which it had found. These tests, which are dated from July 9,
1935, to August 10, 1935, -disclose that from 13 to 50 per cent of the
tested loins were scored.
Inasmuch as all the complaints about scoring, except the first one,
were made during the time in which Torgerson was pulling loins, and
the poor work on loins continued until his discharge at the same time
as Wenzel, it is inexplicable why the respondent made no effort to
ascertain which loin puller was responsible for the poor workmanship.
Wenzel was a loin puller for 18 years and admittedly a good one. Tor-
gerson was pulling loins for only a short time and his workmanship
was criticized by his fellow employees. We have only the statements
of officials of the respondent, made 2 years after the events occurred,
that they noticed no difference between the number of loins scored
by each loin puller, although admittedly these statements were based
merely on personal observations and were not supported by any tests.
Jackson testified that he "assumed that the man who had been pulling
loins for 18 years was doing the same amount of scoring as the man
that was in there for a short while." This assumption seems to have
been followed by the other officials in their tests. All but two of the
written tests introduced in evidence by the respondent were made
either while Wenzel was breaking in a new man to take his place while
he was on his vacation, or while he was on his vacation. Wenzel was
pulling loins when the two remaining tests were made, but stated that
he did not know whether or not one of them was made on loins which
he was pulling. The other test made when Wenzel was pulling loins
disclosed that 13 per cent of the loins checked were scored. There is
no showing of how much of this scoring was attributable to Wenzel.
As has been noted above, the complaints from the respondent's
Chicago office were not confined to criticisms of the scoring. The re-
spondent's officials testified that checks were made of the other types
of poor cutting complained of, and that after the poor workmanship
was called to the attention of the employees doing such work, their
work improved. The work of the loin pullers also,improved, but the
respondent's officials testified that the improvement would last for only
a short'time and that then the loin pulling would again become poor.
Every complaint from the Chicago office, however, referred to other
types of poor workmanship as well as to the loin pulling. Thus a com-
plaint dated June 4, 1935, characterized the scribing as "frightful."
Eastwood stated that a loin must be pulled at the exact point where
the side is scribed, while Jackson admitted that the scribe mark helps
to'guide the loin puller in pulling the loin. The respondent's officials
seem to have more or less ignored the other complaints about faulty
DECISIONS AND ORDERS 997
workmanship and to have concentrated on the loin pulling without any
consideration of the ability of the individual pullers.
Various other factors tended to increase the difficulty of pulling
loins properly. At times the meat was either too hard, too dry, or
too soft. The respondent's officials, however, claimed that the loin
pullers could remove such loins properly by exercising more care and
that the speed of the cutting gang was reduced, but that the loin
pulling did not improve. This fact would not justify the respondent
in discharging Wenzel for poor workmanship. While the condition
of the meat might serve to increase the scoring, the reasonable con-
clusion is that the increase in scoring would be due to Torgerson,
the inexperienced and careless loin puller, rather than to Wenzel, the
skilled and careful loin puller.
Wenzel testified that during the period from February 1935, to
the date of his discharge he never scored over 15 per cent of the
loins he pulled. At times he would count as high as 150 loins before
scoring one. He stated that on the morning of the day he was dis-
charged he scored about 4 out of 50 loins. He further stated that
during this period the checking was much closer than it had ever been
before and that small scores on a loin that had never been considered
as such before were now counted as scores. Nevertheless, when he
was criticized for scoring, he attempted to do the best he could.
Jackson testified that he was severely criticized by his supervisors
for the poor loin pulling and feared that he would be removed from
his position. He stated that he talked to the loin pullers daily about
the scoring and told Wenzel that lie believed that he could do better
work, to which Wenzel would reply that he was doing the best he
could. In June of 1935, Jackson wanted to discharge the loin pullers,
but Chap, assistant superintendent, told him to give them another'
chance. Jackson testified that the loin pulling failed to improve
and that he was worried about his job. On August 17,-1935, he
found some scored loins and decided to discharge Wenzel and Tor-
gerson. Jackson stated that no one ordered him to discharge the
loin pullers, but that he acted on his own volition. Although Jack-
son may have been worried over the poor quality of the loin pulling,
he never endeavored to ascertain which loin puller was actually
guilty of the poor workmanship.
Wenzel testified that he was never severely criticized for his work-
manship in pulling loins until February of 1935. At that time he
was summoned to Eastwood's office and told by Eastwood that his
work had always been satisfactory, but that lately the Chicago office
had complained about scored loins which were received from the
Albert Lea plant. Wenzel replied that he I was doing' the best work
he could, but that the hogs were not in proper condition*for cutting:
998 NATIONAL LABOR RELATIONS BOARD
He further testified that Eastwood said that all he had on his mind
was union activities and that he had better get down to earth and do
his work properly. Eastwood,told him that he was getting mixed
up in rioting at a neighboring plant and that it was interfering with
his work. He also accused Wenzel of going from one department
of the plant to another telling employees not to vote in an E. R. P.
primary that was to be held in April. Wenzel denied this accusation,
but did inform Eastwood that he had told some employees in the
dressing room during the noon hour that he was not going to vote in
the E. R. P. primaries.
It is significant that Wenzel was summoned to Eastwood's office
a short while after he had been elected temporary president of the
Unit. He was a charter member of the Independent and was on the
grievance committee and vice president of the Unit from January 1934,
to February 1935. In February 1935, he was elected temporary presi-
dent and shortly thereafter was warned about indulging in union
activities. A close check was made of his work and he was daily
criticized by Jackson about poor. workmanship. In spite of the warn-
ing about indulging in union activities, Wenzel continued to do so, and
in July 1935, became president of the Unit. On August 17, 1935, he
was discharged for alleged poor workmanship.
The facts stated above clearly show that the respondent had no
actual knowledge of poor workmanship on Wenzel's part and made
no effort to inform itself of the quality of his workmanship. In all
the tests and checks of the loin pulling, there was no attempt made to
discover which loin puller was guilty of the poor workmanship. Fur-
thermore, Williams in March or April of 1937, expressed his hos-
tility to the Unit to Wolden, who became its acting president after
Wenzel's discharge, and told him that Wenzel and some others active
in the Independent would never return to work for the respondent.
At the hearing Knutson, who was then president of the Unit, testified
that Williams had asked him if he didn't realize that he was "put-
ting himself on the spot" by becoming president. Williams, however,
denied making this statement. Knutson also stated that Williams
cited Wenzel as an example and inquired if Knutson wanted to be in
Wenzel's position, and "how grey haired he had been getting walking
the streets." The inescapable conclusion is that Wenzel's discharge
was due to his union activities. The effectiveness of the discharge in
discouraging membership in the Independent is evidenced by a sub-
stantial decrease in its membership following his discharge.
The respondent contends that Wenzel was sabotaging at the insti-
gation of the Independent to force the respondent to discharge him
in order to enable him to bring his case before the Board. This con-
tention is without merit since the respondent claimed that Wenzel's
DECISIONS AND ORDERS 999
alleged poor work dated from February of 1935, while the Act did
not become effective until July 5, 1935.
A few days after the discharge of Wenzel and Torgerson, the
E. R. P. requested the respondent to reinstate them. The officials
of the respondent were willing to do so, but Jackson refused to take
them back,, claiming that he, felt that he would be responsible if
their work continued to be nsatisfactory. About a month later,
Wenzel again sought reinstatement, but was unsuccessful. In May
of 1937, Wenzel had several conferences with Eastwood and Cooney.
He testified that Cooney told him that he had let Bolsheviks talk
him into doing things that he should not have done and that, if he
broke away from them, he would get along fine. He also stated that
Cooney said that he did not care about the Board and that he had
been in "this racket too long." Eastwood, however, denied that
Cooney had made such a statement. Cooney and Eastwood offered
him employment with restoration of his seniority rights later, if his
work proved satisfactory, and also offered to give him a letter to
that effect. Wenzel, however, refused to return to work without
full restoration at once of his seniority rights, vacations, and insur-
ance. He feared that, if he returned to work under the respondent's
conditions, it would find an excuse to lay him off within a few weeks.
If he returned to work as a new man, he felt that he would be inj ur-
ing his fellow workers.
We find that Elmer Wenzel was discharged because of his mem-
bership in the Independent and his activities in its behalf. We
find that the respondent in discharging Wenzel discriminated in
regard to his tenure of employment, thereby discouraging member-
ship in the Independent and interfering with, restraining, and co-
ercing its employees in the exercise of rights guaranteed in Section
7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the sev-
eral States, and with foreign countries, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
V. TIIE REMEDY
We have found that the respondent has committed certain unfair
labor practices. We will, therefore, order it to cease and desist
therefrom. Since the respondent dominated and interfered with the
106791-38-vol. VII-64
1000 NATIONAL LABOR RELATIONS BOARD
formation and administration of the E. R. P. and contributed finan-
cial and other support to it, we will order it to withdraw recogni-
tion from the E. R. P. as a collective bargaining representative of
any of its employees and to disestablish it as such representative.
Since the respondent discriminated in, regard to the tenure of em-
ployment of Elmer Wenzel, we will order it to offer him full rein-
statement with back pay.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Independent Union of All Workers, United Packing House
Workers Local Industrial Union No. 122, and Wilson Employes' Rep-
resentation Plan are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Wilson Employes' Representation Plan and by con-
tributing financial and other support to it, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (2) of the Act.
3. By discriminating in regard to the tenure of employment of
Elmer Wenzel and thereby discouraging membership in a labor or-
ganization, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) 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 respond-
ent, Wilson & Co., Inc., its officers, agents, successors, and assigns
shall :
1. Cease and ' desist :
(a) From discouraging membership in Independent Union of
All Workers, United Packing House Workers Local Industrial Union
No. 122, or any other labor organization of its employees by dis-
criminating in regard to their hire or tenure of employment or any
term or condition of employment.
DECISIONS AND ORDERS 1001
(b) From dominating or interfering with the administration of
Wilson Employes' Representation Plan or with the formation or
administration of any other labor organization of its employees, and
from contributing financial or other support to Wilson Employes'
Representation Plan or to any other labor organization of its
employees ;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organi-
zation, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining and
other mutual aid and protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Elmer Wenzel immediate and full reinstatement to his
former position without prejudice to his seniority and other rights
and privileges;
(b) Make whole Elmer Wenzel for any loss of pay he may have
suffered by reason of his discharge, by the payment to him of a sum
of money equal to that which he would normally have earned as
wages from August 17, 1935, the date of his discharge, to the date
of such offer of reinstatement, less the amount which he has earned
during said period;
(c) Withdraw all recognition from Wilson Employes' Represen-
tation Plan as a representative of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
work, and completely disestablish Wilson Employes' Representation
Plan as such representative;
(d) Immediately post notices in conspicuous places throughout
its plant, and maintain such notices for a period of at least thirty
(30) consecutive days, stating (1) that the respondent will cease
and desist in the manner set forth in paragraphs 1 (a), (b), and
(c) of this order; and (2) that the respondent withdraws all recog-
nition of Wilson Employes' Representation Plan as a representative
of its employees and completely disestablishes it as such representa-
tive ;
(e) 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.