Field Packing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1943

48 N.L.R.B. 850 (N.L.R.B. 1943)

In the Matter of FIELD PACKING COI\'IPANY' and INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN' & HELPERS' OF
AMERICA, LOCAL #215
In the Matter of FIELD PACKING COMPANY and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 227,
AFFILIATED WITH THE A. F. OF L.
Cases Nos. C-2506 and C-2507 respectively.Decided March 31, 1943
Jurisdiction : meat packing industry.
Unfair Labor Practices -
Interference, Restraint, and Coercion: questioning employees concerning, union
membership and activities ; proposing' execution of individual contracts with
employees and utilizing apparent shift in employer status to escape collective
bargaining by adopting so-called independent contractor system in the operation
of Company delivery routes.
Company-Dominated Union: employee representation plan suggested by Company
president and formed under Company aegis. I _
Discrimination: unfair labor practice strikers refused reinstatement because their
jobs had been filled. ,
Collective Bargaining: majority established by union membership-refusal to
bargain by insisting upon dealing with employees individually and refusing to
deal with union on their behalf.
Remedial Orders : disestablishment of company-dominated union; employer
ordered to reinstate strikers with back pay and establish preferential list, if
necessary ; employer ordered to bargain with union, upon request.
Unit Appropriate for Collective Bargaining : truck drivers.
DECISION
AND
ORDER
On January 14, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action as set out in the copy of the Intermediate Report
attached hereto. Exceptions to the Intermediate Report. and a brief
in support thereof were thereafter filed by the respondent. Oral
argument was not requested and none was held. The Board has
reviewed the rulings of the Trial Examiner at the hearing and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
48 N. L. R B, No. 100.
850 '
r , : `' FIELD- PACKING' COMPANY, 851;
exceptions' and brief, and- the, entire record; and, hereby, ,adopts the.,
findings; conclusions, and recommendations of the- Trial ; Examine r,,
except as noted below. - ; -
We agree with the Trial Examiner that the respondent, by stating
that it would bargain with its truck,drivers individually but not with,-
the-Teamsters on their behalf, as set forth in the Intermediate Report,
refused to'bargain collectively with the Teamsters, within the meaning,
of, Section 8 (5) of the Act,' and by -such refusal interfered with,,
restrained,' and coerced its employees in the exercise of the rights.,
guaranteed in Section 7 of the Act. The Trial Examiner also found,
inter alia, "that the respondent by endeavoring to execute individual ,
contracts with its .truck drivers, thereby placing them in- the category ,
of independent contractors and thus relieving itself- of the duty to .
bargain with the Teamsters as the sole representative of these em=
ployees, interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act." We adopt
this finding subject to the following statement. While the respondent
intended by the proposed individual contracts with its truck drivers
to sever the employment relationship theretofore existing and to create'
an 'independent contractor status, the proposed arrangement, con- -
sidered objectively, did not in fact involve an, essential modification
of the employer-employee relationship. Pursuant to the plan an-
nounced to its truck drivers on November 26, 1'941, the respondent
adopted for use in connection with the operation of its delivery routes
a uniform sample contract, varying only as to amount of compensation.
A typical contract entered into between the respondent and Joseph S.
Stallings, one of its truck drivers, as a so-called carrier was introduced
in evidence. The contract, dated December 3, 1941, and running for a
term ending March 3, 1942, subject to cancelation by either party on
30 days' written notice, provided in substance (1) that the carrier
furnish a truck; operate it at his own expense (including payment of
all motor vehicle taxes and license fees) ; and transport the company's
goods along a specified route in accordance with an outlined schedule
of delivery; (2) that payment of compensation to the carrier shall be a
specified'fixed sum "per week"; 1 (3) that the carrier "will personally
drive and operate the truck," except in the case of illness or other event
necessitating the employment by the carrier of -a driver and, in 'such
case, the carrier shall assume "full and exclusive liability for the pay
ment of any and all taxes for Unemployment Insurance or Old Age
Benefit or annuities now or hereinafter imposed by the Federal and/or
State Government which are measured 'by the wage or salaries or com-
' Stallings' contract, provided for the payment -of $61 per week. Prior thereto, the
respondent paid its truck drivers 30 cents an hour ; with overtime at the rate of time and
a half, their average weekly earnings were not in excess of $ 20. The respondent assured
Stallings that he would net $25 a week under the contract.
521247-43-vol 48-55
852; DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
missions paid to the person or persons in-his employ and the carrier,
will furnish Workmen's Compensation and Occupational Disease In-
surance as required by law to cover carrier or employee or employees";
(4)' that the contract shall not be assignable by the carrier except on
written consent of the company; and (5) that "the carrier shall be con-
sidered an independent contractor and not an employee of the company
for any purpose whatsoever." 8 In the operation of the so-called inde-
pendent contractor system, the owner-drivers appeared at the •respond-
ent's plant for loading operations in accordance with instructions given
by the respondent's shipping foreman and, so far as appears, the work
of the owner-drivers proceeded, in this as well as in all other respects,
substantially in the fashion followed by the truck drivers on the re-
spondent's pay roll prior to November 26, 1941. It does not appear
that the owner-drivers hauled for anyone other than the respondent.
On the basis of the foregoing it is our opinion that the employment
status of a trucker who owned only one truck and drove it regularly
for the respondent under an individual contract did not essentially
differ from that of a trucker on the respondent's pay roll who had
operated a company-owned truck. The ownership of the truck is
merely an incident of the employment of the trucker; ,it does not
establish him as an independent entrepreneur engaged in the trans-
portation business. Such ownership is similar to• ownership by any
employee of the tools requisite to the performance of his duties, and
does not of necessity carry with it the responsibility of managing and
maintaining a business. Moreover, the essential control over the
fundamental incidents of the usual employer-employee relationship,
such as tenure of employment and terms and conditions of employ-
ment, remained, in large degree, solely in the respondent. We do not
regard the lack of detailed supervision by the respondent over the
trucking work as significant, inasmuch as the work is not readily
susceptible of, or normally subjected to, detailed supervision, even
when performed by a person conceded to be an employee. Under the
circumstances we conclude that the relationship between the respondent
and the truckers under the so-called independent contractor system
has not been shown to have been essentially different from the em-
ployer-employee relationship which had theretofore existed. We find
that the respondent did not divest itself of status as an employer under
2 Such employment by the so-called carrier does not affect his own relationship with the
respondent Cf , for example, Matter of Seattle Post -Intelliryeneer Department of Hearst
Publications , Inc and Seattle Newspaper Guild , Local No . 82, 9 N L. R B. 1262.
3 Such a stipulation, of course, is not controlling. As we stated in Matter of Seattle Post-
Intelligencer Department of Hearst Publications, Inc and Seattle Newspaper Guild, Local
No 82, 9 N. L R B 1262, 1275 :
The matter is not conclusively determined by a contract which adverts to and pur-
ports to establish the status of such person other than as an employee Public interest
in the adnumsti ation of the Act permits an inquiry into the material facts and substance
of the relationship.
FIELD PACKING ' COMPANY 853
the Act -by its proposal -to execute -individual contracts with Its truck-
drivers or +y the adoption of the so-called independent ' contractor`
system in the operation of its delivery =routes,. and that the respondent,"
by utilizing the resultant ostensible shift of employer status to escape'
collective bargaining , interfered -with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of'-
the Act .4
ORDER
Upon.the•entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Field Packing Company,
Owensboro, Kentucky, and its officers, agents, successors, and assigns
shall:
1. Cease and ,desist from :
(a) In any manner dominating or interfering with the formation
or administration of, or contributing financial or other support to, the
Plan, or -any other labor organization of its employees;
(b) Recognizing the Plan as the representative of any of its em,
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment ;
(c) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
#215, and Amalgamated Meat Cutters and Butcher Workmen of
North America, Local No. 227, both affiliated with'the American Fed-
eration of Labor, or any other labor organization of -its employees, by
discharging or -refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire and tenure of
employment or any term or condition of their employment ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the'Plan as the
representative of any 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 employment, and
completely disestablish the Plan as such representative;
4 Cf. Matter of Butler Bros., a corp ., et al and Elevator Operators and Starters Union
Local No . 66, AFL, 41 N L. R. B. 843.
854; DECISIONS OF NATIONAL, LABOR, RELATIONS BOARD
(b) Upon request,. bargain. collectively,, with the - International
Brotherhood of Teamsters, Chauffeurs; Warehousemen & Helpers of.
America, Local #215, affiliated. with,, the - American Federation of,
Labor, as the exclusive representative of all truck drivers employed,
by the respondent at its Owensboro, Kentucky, plant; in respect to rates,
of pay, wages, hours of employment,, .,and..; other conditions of,
employment;
(c) Offer to Lawrence Moore, Denver Wade, Ed Basinger, and H.
D. Basham, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without ;prejudice-to their seniority
and other rights and privileges in the manner set forth in the Section
'of the Intermediate Report entitled "The remedy," placing those .
employees for whom employment is not immediately available upon a
preferential list in the manner set forth in said Section, and thereafter,
in said manner, offer them employment as it becomes available for
any or all of them; ,
(d) Make whole Lawrence Moore, Denver Wade, Ed Basinger, and
H. D. Basham :for any loss of pay they may, have suffered by. reason
of the respondent's discrimination against them in respect to their hire
and tenure of employment on December 10, 1941, by payment to each
of them respectively of a sum of money equal to the amount which he
normally would have earned as wages during the period from Decem-
ber 10, 1941, to the date of offer of reinstatement or placement upon a
preferential list, less his net earnings during such period;
(e) Post immediately in conspicuous places throughout its plant
at Owensboro, Kentucky, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its employees
stating' (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and
(d) of this.Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order;
and (3) that the respondent's employees are free to become or remain
members of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local #215, and Amalgamated" '
Meat Cutters and Butcher Workmen of North America, Local No. 227,
both affiliated with the American Federation of Labor, and that
the respondent will not discriminate against any employee because of
membership in or activity in behalf of those organizations;
. (f) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
'IELrID iadElN& C&IPANY' - 855
' INTERMEDIATE ' REPORT
Cases Nos . XI-C-988 and X-C-104x7 3 3
Mr. Benjamin E. Cook, for the Board
Mr. Thomas E. Sandidge, of Owensboro , Ky., for the respondent.
Mr. C B. Birdsong , of 'Evansville , Ind., Mr. McKinley Ralston and Mr. Irvin
Ralph, of Owensboro , Ky., for the Unions.
STATEMENT OF THE CASE
Upon amended charges 2 duly filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local #215, affiliated with
the American Federation of Labor, herein called the Teamsters, and Ainalga-
mated Meat Cutters and Butcher Workmen of North America, Local No. 227,
affiliated with the American Federation of Labor, herein called the Meat Cutters,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Eleventh Region (Indianapolis, Indiana);/ issued its amended
complaint' dated December 10, 1942, ag iinst Field Packing Company, Owensboro,
Kentucky, 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), (2),x(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
amended complaint accompanied by notice of hearing thereon were duly served
upon the respondent, the Teamsters, and the Meat Cutters.
With respect to the unfair labor practices, the amended complaint alleged in
substance: (1) that from November, 1, 1941, to the.(late of the amended com-
plaint, the respondent urged, warned, and persuaded its employees to refrain
from joining-or retainiifg membership in the Teamsters; that the respondent
engaged in a preconceived 'plan and course of action to interfere with the
self-organization of its employees, and that in furtherance of this plan, the
respondent, by C. E Field, its president, discouraged membership in the Team-
sters by various acts and conduct, such 'as advising its employees that it would
close the plant before it would sign a contract with the Teamsters, and that it
would never deal with a union; attempting to persuade -its employees to abandon
the Teamsters and to -enter into independent contracts with the respondent;
and inquiring as to their 'union ''affiliation ; (2) that on or about November 25,
1941, and, thereafter, the respondent refused to bargain collectively with the
-Teamsters, the exclusive representative of its employees in an appropriate unit,
(3) that on or about December 7, 1941, because of the respondent's unfair labor
-practices set forth above which occurred prior to December 7, 1941, the respond-
ent's employees went on strike, and that the strike was prolonged by the
respondent's other unfair labor practices alleged in the amended complaint;
(4) that on or about Decernber'8'or'10,1941, the respondent refused to reinstate
four named employees' because they joined and assisted the Teamsters, and
participated in the strike; (5) and that on or about December 8, 1941,, the
-respondent initiated, formed and sponsored a'labor organization of its employees
' Case No. XI-C-988 and Case ' No' XI-C-1047 were consolidated by order of the Board,
dated September 29, 1942.
2 The Teamsters .filed its , original charge on , December 12, 1941, and amended charges on
December 1, 1942: The Meat Cutters filed its original charge on April- 27_1942, and
amended charge on July 27, 1942. ' ' -
2 The original complaint was dated December 1, 1942, and related only to Case No.
XI-C-988
1 Lawrence Moore, Denver C. Wade. Ed Basinger and H. D. Basbam.
-856 DECISIONS OF.,NATIONAL LABOR RELATIONS BOARD
known'as Employees Representation, Plan, herein called the Plan, for the purpose
of dealing with its employees concerning grievances, labor disputes or other
conditions of employment, and thereafter. dominated'hnd interfered with the
administration of the Plan and contributed support thereto ; that from December
8, 1941, to the date of the amended complaint, the respondent urged and per-
suaded. its employees to become and,.remain members of the Plan, and' not to
become members of the Meat. Cutters and that the respondent, Accorded"privi-
leges to members of the Plan that were denied- to members' of the. Meat Cutters.
On December 21, 1942, the respondent filed its answer admitting certain allega-
tions of the amended complaint in respect to its business, but denying all material
averments relating to the unfair labor practices.
Pursuant to notice, a hearing was held at Owensboro, Kentucky, on December
'21, 22' and'23; 1942, before-the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner The Board and the respondent were represented-
by' counsel, the Teamsters by its President and the local organizer; and the
Meat Cutters by its international representative.
The motion of'the Board's counsel, at the conclusion of the hearing, to conform
the pleadings to the proof in respect to minor inaccuracies such as dates and the
spelling of names was granted by the undersigned without objection.
The parties whived,.the%opportunity afforded;thenl,to file, briefsrwith,_and to
argue orally before, the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
0
The respondent , a Kentucky corporation having its principal office and place of
business in Owensboro , Kentucky , is engaged in the business of meat packing,
which includes the purchasing , slaughtering , processing and selling of live stock,
such , as cattle„ hogs , and sheep During the year 1941 , the respondent purchased
livestock of the approximate value of $724 ,281.36, and other raw and processed
materials to the approximate value of $356 , 155.78. About 15 percent of the total
,purchases were made outside Kentucky and',delivered'to the plant
The respondent 's total sales during that period amounted to- approximately
$1,452 ,135 53 in value, about 8 percent . of which was made to points outside
,Kentucky. During the first 10 months of 1942, the respondent 's gross sales
amounted to approximately ,$1;876 ;649 79+, i value ' of which, , approximately
$326,869 .52 in value , were sold, and distributed outside Kentucky During that
period , the respondent ' s purchases. from outside Kentucky amounted to approxi-
mately $224 ,912.41 in, value.
11 THE ORGANIZATIONS INVOLVFD
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local #215, and Amalgamated Meat Cutters and Butcher Workmen
of North America, Local No. 227, both affiliated with the American Federation
of Labor„ are labor organizations, admitting, to membership employees of the
respondent.
The, Plan, is an unaffiliated, labor, organization representing all,-non-supervisory -
employees'of the respondent.
FIELD ' PACKING COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion ; formation of the Plan
857
Prior to the Fall of 1941, the employees of the respondent were not organized,
and there was no union activity in the plant On November 5, 1941, Irvin Ralph,
\,assistant business representative of the Teamsters, was contacted, by Lawrence
Moore, ,one. of the .respondent's truck drivers, and was told by him that the
respondent's truck drivers were being paid only 30 cents an hour, while the local
wage scale for truck drivers was 50 cents an hour, and that they wished to join
• the Teamsters. On that day Parvin Greer G and all of the respondent's regular
truck drivers, namely Lawrence Moore, Denver Wade, Ed. Basinger, H D.
' Basham, C. Troutman and Joe Boone joined the Teamsters. A short time there-
after they were furnished with union buetons, which they wore during working
hours. Soon after the truck drivers joined the Teamsters, Ralph made several
unsuccessful attempts to see C E. Field, the respondent's president.
On or about November 21. M M Rhoades, the respondent's sales manager said
to Moore, the respondent's oldest truck driver, in point of service, "Moore, I want
you to tell me the truth. I want to know if you boys joined the -union. Have
you paid your dues?" Moore replied in the affirmative to both questions.
.Rhoades then said, ."That is all I want to know." It L,Mitchell was present and
heard what was said. Immediately after the conversation Rhoades and Mitchell
joined Field and Neubauer, the respondent's vice president, who were standing
nearby, and all of them went into the plant office-°
The undersigned finds that by the foregoing activity of Rhoades in questioning
employee Moore in respect to his union affiliation, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On November 23, the respondent caused the following advertisement to be
published in the local newspaper, the Owensboro Messenger :
Wanted-10 Truck Owners that drive and operate their own trucks to haul
and deliver meat products on regular routes. Liberal and profitable contract
basis of a fixed sum per trip: Regular and steady employment open to sober
and high class men only. Must furnish three references and make application
by letter, giving age, experience and address. If you don't now own a truck
we can arrange to finance one if you are the right man. Address-Field
Packing Company, Incorporated, Owensboro, Ky
This advertisement was published prior to any notice by- the respondent to its
truck drivers that a change was going to be made at that time; in the operation
of the trucks delivering meat The respondent received ai number of replies to
this advertisement
Formation of the plan
On Monday, November 24, Field called a meeting of all the employees. The
meeting was held in the plant, on the respondent's time,. and Field presided.
There were about 75 employees present.' Field testified that.: ,
° Greer was employed as a truck driver by IV L Mitchell, a teller in a local bank, who
operated his own truck over one of the respondent's' meat delivery routes under contract,
with•the respondent
° This finding is based upon the credible and undenied testimony' of Moore and Mitchell.
Rhoades (lid not testify at the hearing
7 Field testified that he did not know wlietlier aiiy truck drivers were present or not; and
that it was quite probable chat they were out on their trucks, and did not attend the meeting.
858 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
The purpose of the meeting was to arrive or present to the employees a plan
we had of recommending to them of formiifg a meeting or committee to set
classification on Jobs and relating to wages, conditions 'or -efficiency in the
plant or just generally act for the company and the employees
In respect to this meeting; Neubauer, the respondent's vice president, testified
that the^Plan as outlined by Field at the meeting definitely included "presentation
of requests by the workers to the management for wages, ,hours and working
1 conditions."
Field recommended at this meeting that a committee consisting of 10 employees
,,and 2 executives be formed. At Field's suggestion, a secret ballot was taken and
. all of those present, except one, voted ,iii favor of the establishment of the Plan,
as recommended by him. Field then named Neubauer, the respondent's vice
president, and Kunau, secretary and treasurer of,the respondent, as the two mem-
;bers of-the Plan to represent the respondent. The next day elections were held in
each department 8 of the plant and 10 committeemen were elected. The ballots
;were counted by the respective foremen. The truck drivers did not participate in
the elections.
Employee Pate testified, in regard to this meeting as follows :
Well, he [Field]' started off by talking about the war, that is the first thing
he started talking about and everything being so high Then he got around
arguing about the truck drivers being misled It seemed as though they
had made a mistake of some kind, being misled and then he came around to
talking about the union. He said before he would join the union that he
would close the ' doors ; that he didn't have to depend on that -plant for a
living. He said he had a reliable wife and two reliable children; that he
didn't have to depend on that plant for a living at all .. . Well, he 'talked
about that for a while and then he told us about this plan that he had and
asked us all to vote on it whether we wanted it or didn't want it. So we took
a secret vote on it and I think everyone but one voted for it .. . Well; he told
us that we would elect two committee men out of each department and let
those committee men represent us and then he would appoint Mr. Kunau
and Mr. Neubauer as the representatives for the company and they would
rate all labor semi-skilled, common labor and -skilled labor and get .together
and see what they could do.
r•
'Field denied having said to Pate that he did not have to depend on the plant
for a living. Pate testified that Field's statement was made to all those present at
the meeting and not to him individually. In view of the testimony of other
witnesses and the entire record, the undersigned credits the testimony of Pate.
The, first meeting of the Plan was held in the plant on December 1. Bryan
Clark, an employee in the shipping and delivery department, was chosen as
chairman and Kunau, the respondent's secretary and treasurer, was chosen as
secretary. The Plan had no constitution, by-laws, initiation fees, or dues. Meet-
'ings were held monthly in the plant, and the Plan members were paid for the
time spent at the meetings. All matters brought up at these meetings, relating
to conditions of employment, were dealt with by secret ballot, with the majority
ruling. At the first meeting of the Plan a general wage increase affecting all
(employees was agreed upon. The minutes of , the. December 1 meeting disclose
the following :
Ei L. Neubauer was asked to explain , the object and duties of this com-
mittee. He explained that each member was a representative of their respec-
o i, •
8 The 'plant consisted of the following departments : Killing, Sausage, Cellar, Shipping
and Delivery, Firemen, Garage and Repair, and Bacon Slicing and Wrapping.
FIELD PACKING -*. COMPANY 859,
tive ' departments and-it was their duty, to bring before this committee any
grievances or suggestions that their department might have to make in order,
,to have ' a better understanding . between the departments and -the , company.
:These` grievances or suggestions that were presented would 'be discussed in
this' committee meeting and a policy would then be agreed upon just ,how
they were to be handled . Each committee member would then report back
to',th'eii represehtative departments the decision of the committee and the
suggestion or grievance would be handled accordingly . It was thought that
in this manner a lot of things could be ' straightened out and more harmony
would be had between departments and company ...'
After the committee understood their duties , one member said that he was
'instructed by his department to bring up the subject of an increase in pay.
This was discussed at some length and on account of the increased cost in'
living conditions it was decided that not only this one department should
have an increase in pay but that all departments were entitled to an
increase ..."
The truck drivers were not supposed to be included in the plant classifica=
tion. As was explained , they had been offered a contract to do the hauling
for the company on a contract basis, owning and operating their own
trucks.
Since there was'a lot of details to be worked out and - the drivers undecided
at, the ,present time , it :was , put-up to the , Committee to decide if they should
be'represented by the Shipping Department and included in the classification
and rate' of the. other departments until they had decided to accept the
contracts offered them . A secret vote was taken and all members voted
that they should be represented by shipping department and included in
classification and rate until they could make up their mind in regard to
contract hauling .. .
From ' the testimnoy of Field, Neubauer , other witnesses , the minutes of the
first meeting of the Plan , 'and the entire record, it is clear ' and the undersigned
finds that the respondent initiated , formed, and sponsored the Plan as a labor
organization for the purpose of dealing with the respondent in respect to wages;
rates "of' pay, hours of employment or other conditions of employment ; and that
the respondent dominated and interfered with the administration of the Plan
and rendered financial and other support to it, and that the respondent thereby
interfered with, restrained ; and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The refusal-to bargain - collectively .
1. The appropriate unit
The amended )complaint alleges and the Teamsters claim that all of the
respondent 's truck drivers at its Owensboro , Kentucky , plant, constitute a unit
appropriate for the purposes of -collective bargaining with respect to rates of
pay, wages , hours of employment , or other conditions of employment. In its
answer the respondent makes a general denial of this allegation , of the amended
complaint . However, it offered, no proof at the instant hearing in support of
this, denial , 'and madd no claim in respect to any other appropriate unit. The
Teamsters made no effort to organize any of the respondent 's employees ; except the
truck drivers .°
The Meat Cutters had no members - in the respondent 's plant in - November or December
1941, although certain employees of the respondent, 'other than the truck 'dT,ers, were
ehgi'ble for membership in the ' Meat Cutters.
860 DECISIONS OF'NATIDNAL 'LABOR RELATIONS BOARD
Theundersigned finds that the aforesaid truck drivers ^have, at all times material
herein constituted, and that such employees now constitute,'a -unit appropriate
for the purposes of,collective bargaining, -and that,said iunit insures to.employees
of the respondent the -full ,benefit of their right to self-organization and to
-collective bargaining, and otherwise effectuates the polices of the Act.
2. Representation by-the Teamsters of a majority in ,the appropriate unit
The evidence discloses, as related above, that on November 5, 1941, all of the
respondent's truck drivers joined the ,Teamsters This fact was not disputed by
the respondent. ' Therefore, the undersigned finds that on November 5, 1941, and
at all times thereafter, the Teamsters was and now is the duly designated repre-
sentative of a majority of the employees in the aforesaid appropriate unit, and
that by virtue,of Section.9 (a) of the Act the Teamsters was at all such times
and now is the exclusive representative of all the employees in the appropriate
unit for the purposes of collective bargaining in respect to rates of ,pay,, wages,
hours,of employment, or other conditions of employment.
3 The 'refusal to bargain ; sequence of events
On November 25, Ralph, together with C B Birdsong, president and business
manager of Teamsters Local #215," and, Bill Work, his assistant, met Field
and Neubauer at the plant. -Birdsong anformed Field that all the truck,
drivers had joined the Teamsters, and Ralph stated their names. Birdsong then
told Field that he wanted an increase in wages -for the truck 'drivers. Field
said that.helwanted a few,days to- think it over. The meeting 'then adjourned to
reconvene on' November 27, :but this meeting was not -held because the respond-
ent's,office notified Ralph that Field ,was too busy ;to meet them on that date."
Field testified that prior to the meeting with Birdsong and Ralph on'November
25, lie did not know that the truck,drivers had joined the Teamsters. However,
he further testified, that prior to that meeting, V. W. Brown, manager of the
Creamery Department of the plant, had informed him that he had seen Ralph
near the creamery on two or three days ; that Rhoades, the respondent's sales
manager, had informed him (Field) that some of the employees had joined a
union, but he could not recall whether he, received this information from
Rhoades before or, after the meeting on November 25,; and that he might have
had some ca conversation with his employees concerning unions over a
period of time, but that he could not recall any specific conversation. However,
as related above, Moore had already informed Sales Manager Rhoades on
November 21, that the truck drivers had joined the Teamsters. The under-
signed believes and finds that the respondent knew, at the time it advertised for
contract truck drivers on November 23, that its truck drivers had joined the
Teamsters.
The truck 'dr'ivers' meeting ; individual contracts
On November '26, the day following the 'meeting with Birdsong and Ralph;
the respondent called a meeting 1^_ of the 'truck drivers and certain other em-
ployees. The meeting was held in the 'plant and is herein referred to as the
truck drivers' meeting. Field, Neubauer, .the respondent's vice president, Kunau,
10 Local x'$ 215 was located at Evansville , Indiana, about 30 mules from the respondents
plant.
11 This finding is based upon the credible and undenied testimony of both Field and Ralph.
Birdsong did not testify , at the instant hearing
12 It was customary in the plant to hold monthly 'safety" meetings.
- FIELD -PACKING 'COMPANY
secretary .and treasurer ,of the respondent, all the truck drivers, and approxi-
mately 50 other employees were present After a general discussion,of matters
pertaining.to the operation,of\the.plant, in general,,and the_,trucks, in-particular,
at •.the request of Field, ,all of the 'nonsiiperyisory employees except the truck
drivers left the meeting. Field then told the truck drivers that]-the respondent
had,been .consideri.ng,-for, some, time, - operatingi all of its ^ meat --trucking, routes '
,under contract.; that it had now definitely decided to d o -so ; and that an oppor-
tunity would now be given to the regular truck drivers to purchase ,the re-
spondent's trucks and to operate them as independent contractors. Field out-
lined,to them in detail the costs and conditions respecting the various routes
,and probable profits.,
At that time, the respondent's meat delivery routes were served by its own
trucks is operated -by .its own truck drivers. According to Field, all the ,truck
drivers tentatively agreed. at that meeting, to accept his proposition ; on the next
day, preparations were begun to put the trucks into condition, and the names of
two or three truck drivers were painted on the trucks ; but later Basham noti-
fied,him,not to prepare a truck for him or to put his name on one because he did
not think that the arrangement would be satisfacory to him or to the Teamsters;
and Moore, after talking to Ralph, also declined to enter into such it contract.
Moore testified that lie attended ,the truck -drivers' meeting; that ,some of
the truck drivers were in favor of accepting the contracts and some were not';
that ;the truck drivers„were willing to operate the trucks under contract, as
outlined by' Field, povided that tbee Teamsters made the contract-with the re-
spondent, otherwise they would not accept the 'proposition.', Wade testified that
he-a-Iso attended the truck drivers' meeting and that the truck drivers did not agree
to accept the contracts. Employee Joseph Stallings 14 testified that he attended
the truck drivers' meeting; that the question of the truck drivers having joined
the Teamsters was raised in respect to accepting the individual contracts; that
Field said lie had no objection to the truck drivers belonging to the Teamsters;
that he (,Stallings) ,was the only truck driver who definitely, decided at that
meeting to accept the individual contract and that he did it because'lie thought
he could earn more money. Stallings was not a member of the 'Teamsters.
Stallings signed one of,.the-individual-contcacts on December. 3.and•,operated.one.
of the respondent's trucks for 6 months under this contract and then gave it up.
Basham 'testified that he attended the truck drivers' meeting and that he re-
fused to accept the individual contract until the -Teamsters had agreed to it.
Basinger testified that he attended the truck drivers' meeting; that he did not
say definitely at that meeting that he would accept the individual contract ;
and that prior -to that 'meeting lie had heard nothing about 'the respondent's
contracting the meat routes. The undersigned credits the testimony of Moore;
Wade, Stallings, Basham and Basinger, and finds that the truck drivers who
were members of the Teamsters, did not accept Field's-proposition atithis meeting.
As related above, on November 21, Moore had informed 'Rhoades, ,the .re-
spondent's sales manager, that all the truck drivers had joined the Teamsters.
Also, this information had been conveyed to Field by Birdsong and Ralph prior
to the truck drivers' meeting Therefore at the time of the meeting, the re-
spondent knew that the%Teamstersccrepresented=stheiti-uck driverss,and-was their
sole representative for, the purposes of collective bargaining. Notwithstanding
this fact, the -respondent endeavored to negotiate with the truck drivers in-
At that time one route was covered by Mitchell with his own truck under contract with
the respondent.
i' Stallings was made a tiuck driver about 2 weeks before that meeting. , Be had previously
been employed in other departments of the plant.
862--- : DECISIONS OF NATIONAI•,JoABOR;RELATIONS 'BOARD
dividually. by having them enter into individual' contracts -for 'the -operation of
.the, respondent's., meat routes which- would have-'had- the effect of making the
truck .drivers. independent 'contractors and' not employees of the,,.respondent.
Field stated at that meeting that it was perfectly all'right for the truck drivers
to belong to the Teamsters, so far as the-respondent was concerned. He knew,
that. after signing these individual contracts, the truck drivers would be in-
dividual contractors and, not employees- of the `respondent; thereby 'eliminating,
I-the Teamsters. - . '
While' it is true that, at that time, the respondent operated one of its meat
routes under contract, and had contemplated operating other routes under con-
tract, still it is significant that the respondent did not definitely inaugurate
this system until just after the truck drivers had joined the Teamsters. This
action of the respondent can hardly- be considered a coincidence.
:: The undersigned finds that the respondent by endeavoring to execute indi-
vidual contracts with its truck drivers,, thereby placing them in the category
of independent contractors and thus relieving itself of the duty to bargain
with the Teamsters as the -sole representative of' these' employees, interfered
with, restrained. and coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act. ' ' •
'
'
-. On December 4, Birdsong and Ralph met Field at the plant. According to
Fields, Birdsong told him` that the- truck drivers had reported to him that the
respondent had decided to operate the trucks-under individual contracts; that
he did not think it was a good-plan, but if the respondent, had definitely decided
to do so, and -the, truck drivers agreed to 'accept the contracts; it would be
agreeable to him; and that they "get-together with the truck drivers to work
out a uniform plan on the contract hauling." Ralph testified that lie was present
at the meeting and heard Birdsong say to Field : "Let's get down to business ;
we want to get an increase," and Field replied that he had no business to get
down to; ',that he did not have any business with the Union ; and that if the
truck drivers wanted to belong to the Teamsters; 'it' was perfectly all right with
him, but he'was not going to deal with them. Field denied that he ever stated
to Ralph that he would not deal with the Union, but he did not deny the
remainder of Ralph's testimony in regard to, the meeting., Field testified that
Ralph had practically nothing to say at the meetings when Birdsong was
present.- In view of all the evidence in, the case the undersigned credits the
testimony of Ralph and finds that Field made the. statements as 'testified to
-by Ralph.
In, connection, with that meeting, Neubauer,testified'that Birdsong said, "Well,
I wonder if.we could get together with the boys and work,, out, anythin g on these
contracts" ; and that Field said it would be difficult to. work out, anything'with.
them as, a group because it had to be on an: individual contract basis. , Field
knew, that Birdsong represented the Teamsters and that he was there to
bargain for the truck drivers, all of whom' were -members of the Teamsters.16
According to the credible and undenied testimony. of truck driver Wade,
Field called him and Basham into the office on or about December 4, and they
had a conversation in respect to the individual contracts ; that Field told them
that Saturday, December 6, was the "dead line," and if they did not tell him
what they were going to do by,that time, he had plenty -of other men to, take
their places The record shows that the respondent had received a number
of replies from its advertisement for truck contractors placed in the local paper
on November 23. Field' admitted that he told Wade and Basham that he wanted
"15 Birdsong was present during the'firstday of the hearing, but had to Ie ive for Evansville,
Indiana, and did not return He did not testify at the liearing.
FIELD PACKING ' COMPANTY 863
to know what the truck drivers were going to do by December 6. In connection
with this conversation, Basham testified that Field told him that he had' built.
up the plant little by little and that he was not going to see it run or interfered
with by someone else; and that he could deal with the truck drivers but he
could not deal with Birdsong. Field denied that he told Basham that he could
not deal with Birdsong and that he would deal with "the boys" individually.
However, in view of all the testimony, the undersigned credits the testimony of
Basham
Truck driver Basinger testified that on or about December 4, Field called him
and Troutman,16 another one of the respondent's truck drivers, into the 'office ;
that Field asked them if they had decided on what they were going to do; that
they told Field they had not decided ; that he asked Field why could not he
(Field), Birdsong,' and the truck drivers get together and settle the question ;
that Field replied : "If there is any question I will talk to the boys and I can
make an agreement with you but I can't come to any agreement with Birdsong.'
Pleat packing is my business and union is his business. I don't understand his
business and. he doesn't understand mine." Field denied that he told Basinger
that he would not deal with Birdsong or the. Teamsters. However, the under-'
signed credits the testimony of Basinger.
On or about'December'4, Basham told Field that he did not think the truck
drivers would accept the `individual contracts and that lie, himself, would not
accept unless the other truck drivers .accepted ; and that Field said he had a
stock of applications on his desk from people who wanted the routes.
Moore testified that on or about Saturday, December 6, Field called him into
his office during working hours and they had a conversation in regard to oper-
ating the trucks under individual contracts; that Field asked him what he was
going to do about it and 'whether he was going on strike and whether he would
cause the respondent any trouble; that he told Field that, if all the truck drivers
went on strike, he would go with them but that he was not looking for any
trouble ; that he 'then said : "Dir. Field, why is it that you can't meet Mr
Birdsong with us boys and make 'a contract?" ; -that Field replied : "I don't'
make no contract with Birdsong, no union contract I will meet you boys. I
don't want to meet Birdsong' with you boys I am capable of running my own
business'here and, I don't need Birdsong and no unions. I don't want any union
at all" ; that Field then asked 'him if 'he would' accept the proposed 'contract'
and if he wanted to strike; that he replied that he could not 'accept the contract
and that, if the other truck drivers struck, lie would do likewise but that other-'
wise he would not; that Field told''him'that he was going to operate the trucks
under contract and 'if"Moore' did' not want to contract for one, he would get
some one else to operate it; that Field ,then told him about the Plan and that
under the re-classification of the employees agreed upon at the meeting of the
Plan held on December I,' the truck drivers would be classified as semi-skilled-
workers and their weekly wages' would be about $28 Field denied having seen'
or talked to Moore on Saturday, 1Deceniber 6; but admitted that on Saturday,
November 29, Moore told' him that he would guarantee not to cause him any
trouble. The undersigned credits the testimony of Moore."
On Saturday, December 6, the' truck drivers informed Ralph that they had
been notified by 'Field"tliat if they did not accept the individual contracts by'
Saturday, December 6, he, (Field) would get someone else to operate the trucks.
Ralph immediately telephoned to Field and requested Field to' meet ,with the
truck drivers and himself Field' refused and said: "Ralph, I can't'meet a11,-
the boys This is individual routes'arid affects each one of them different.,, I
"Troutman did not testify'at the instant hearing.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will meet any of the drivers themselves but I won't meet them all as a group.
On, this matter I just don't have any business with the, union at all."" ,
Concluding findings with respect to the refusal to bargain
As related above, the record shows that on November 25, representatives of
the Teamsters informed the respondent that all of the respondent's truck
drivers had joined the Teamsters: that on December 4 the Teamsters requested
the respondent to bargain collectively with it in respect to the truck drivers;
that the respondent refused to do so, stating that it would bargain with the
truck drivers individually, but that it would not bargain with the Teamsters
in their behalf
The record is clear and the undersigned finds that the respondent on December
4, 1941, and at all times thereafter, refused to bargain collectively with the
Teamsters as the exclusive representative of its employees in, an appropriate unit,
in respect to rates of pay, wages, hours of employment, or other conditions of
employment, and by such refusal the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
C. The discriminatory discharges and refusal to reinstate
The strike
The record shows that Field informed the truck drivers that if they did not
decide to accept the individual contracts for operating the meat truck routes,
,by Saturday, December 6, he would let the contracts to outside persons, and
that he had a number of applications which had been received pursuant,to the
respondent's advertisement in the local paper on November 23. The record
further shows that the truck drivers informed Field that they would be willing
to enter into a contract, provided that it was negotiated by the Teamsters and
covered all of the meat routes, but they would not enter into individual
contracts.
According to Ralph, he and the truck drivers went over to Evansville, Indiana,
on Sunday, December 7, and reported this situation to Birdsong; that-Birdsong
said "Boys, that fellow Field is a slicker; I don't know anything that you can
do to him. If you can get the jump on him and strike him, go ahead and
do it. That is the only way you can win. If (you take the contract, he will
get rid of you in two or three weeks. If you don't take them you are out of
a job, so it don't make much difference. My advice is to go out on- strike and
put all the pressure you can on him and try to stop him in other places,";" that
he and the truck drivers then returned to Owensboro; that he telephoned to
Field and said to him "Mr. Field, the boys, just can't accept that proposition and
as far as I am concerned it isn't no agreement' anyway,'they won't accept it;
they won't report for work, so you can just get some more drivers ; they are on
strike."; and that Field said that he could not meet with Ralph and the truck
drivers but that he would meet with the truck drivers individually 19
Moore testified that the truck drivers went on strike because the respondent
would not bargain with the drivers and because they wanted an increase in
17 This finding is based on the credible testimony of Ralph and Parvin Greer. Greer wasit
member of the Teamsters but not an employee of-the respondent. He was in the union
-hall and heard Ralph's telephone conversation with Field.
18 This testimony is corroborated by Moore and Basinger
19 The record shows that the truck drivers worked on Sundays if there was any work to
do; and that the Louisville and Lexington . delivery, routes, were out on Sundays.
FIELD PACKING. COMPANY " 865
wages: Wadei.testified that he went on strike because Birdsong said that Field
would not deal with the Teamsters ; that they would not accept the, respondent's
individual contracts ; and that Birdsong said there was nothing else to do except
strike.
The undersigned finds that the strike, which occuried on December 7, was
caused by the' respondent's unfair labor practices in interfering with, restrain-
ing, and coercing its, employees- and in refusing to bargain- collectively- with the
Teamsters, and that the, strike was prolonged on account of the,, respondent's
continuation of said unfair labor practices.
The record- shows•that on Monday, the next day after the strike, the respondent
made some local deliveries of meat by express; and Field also executed some
individual, contracts with outsiders for the meat routes; that- Stallings, who had,
signed an individual contract on' December 3, began- operating a route ; and
that Theodore Whittaker began operating a- route under contract on, December
8; M. 0: Fisher on December 9; Bryan Clark on December 13 and Edward
Jackson on December 29, 1941. ' ,
Subsequent to the strike some, of the routes were merged and their number
,was reduced to four. • The present status is that one route, is being operated
under contract with Fisher and all of the other routes by the, respondent with
salaried employees.
The refusal to reinstate
- The record 'shows and, the undersigned, finds that on December 10, 1941,, Bird-
song requested Field to. reinstate all the striking truck drivers unconditionally.
Field; however, refused to reinstate them or any one of them. Field claimed
that the respondent, had already entered into contracts with others to operate
the meat routes, and if such contracts were cancelled the respondent would be
liable to` suit for damages, therefore' he would not consider reinstating the
truck drivers 20 0
The striking truck drivers were thus discharged` on December,10, 1941. No
contention is made that the discharges or the refusal to reinstate were for any
reason other than that the employees' had refused, to execute individual contracts.
Under the provisions of the Act employees are guaranteed the right to engage
in concerted activities for their mutual aid and protection. The respondent may
not discriminate against them when they assert that right. The action of the
respondent in discharging the truck drivers on December 10, 1941, and thereafter
refusing to reinstate them, constituted an unlawful discrimination because of
their concerted activities"
The undersigned finds that the respondent by discharging Lawrence Moore,
Denver Wade, Ed Basinger, and H D Basham, and by refusing to reinstate
them, discriminated in regard to their hire and tenure of employment, thereby
discouraging membership in the Teamsters and interfering with, restraining, and
coercing its employees in the exercise 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( described in Section I above,
have a close, intimate and slibstantial relation to trade, traffic and commerce
20 This finding is based on the credible and undenied testimony of both Field and Neubauer.
n See, for example, N. L. R B. v. Mackay Radio & Telegraph Co, 304 U. S. 333; Phelps
Lodge Corp. y. N. L R. B, 313 U. S 177; Rapid Roller Co v N. L. R B. 126 F. (2d) 452
(C. C. A. 7), enforcing and remanding on another point, 33 N . L. R. B. 557.
866 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
Among the several States and'tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, within the meaning of the Act, it will be, recommended- that,it
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the respondent dominated and interfered with the
formation and administration of the Plan and contributed financial and other
support thereto. The undersigned finds that the effects and consequences of
such domination, interference and support renders the Plan incapable of serving
the respondent's employees as a genuine collective bargaining agency, and that
the recognition of the Plan as the bargaining representative for any of -the
respondent's employees constitutes a continuing obstacle to the free exercise
by the employees of their right to self-organization and to bargain collectively
through representatives of their own choosing. It will therefore be recommended
that the respondent withdraw all -recognition from said Plan as 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 it as such representative.
It has been found that the respondent's unfair labor practices caused and pro-
longed the strike which began on December 7, 1941, therefore in order to restore
the status quo, as it existed prior to the time the respondent engaged in the unfair
labor practices, it will-be recommended' that the respondent: (1) offer reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, to those employees who went on
strike on December 7, 1941, and who have applied for and have not been offered
'reinstatement, namely Lawrence Moore, Denver Wade, Ed ;Basigner and H. D.
Basham. -
The reinstatement shall be effected- in the following manner: all employees
hired as truck drivers after December 7, 1941, the date of the commencement of
the strike, shall, if -necessary to pi ovide employment for those to -be offered and
who shall accept reinstatement, be dismissed. If, however, by reason of a reduc-
tion in force there are not immediately available sufficient positions for the remain-
ing employees, including those who are to be reinstated, all available positions shall
be distributed among such remaining employees in accordance with the respond-
ent's usual method of reducing its force, without discrimination against any
employee because of his' union affiliation or activities, following such system of
seniority as has heretofore been applied by the respondent in the conduct of its
business.- Those employees remaining after such distribution for whom no em-
ployment is now available shall be placed on a preferential list, -with priority
determined among them in accordance with such system of seniority or other non-
discriminatory procedure as has Heretofore been applied by the respondent in the
22 The record discloses that C. Troutman and Joe Boone were also employed as truck
drivers by the respondent; that they joined the Teamsters; that they went on strike'on
December 7, 1941 ; and that, on December 10, 1941, the Teamsters, through its representa-
tive, requested the respondent to reinstate all of the striking truck drivers However, since
the names of these two employees do not appear in the Teamsters amended charge of in the
amended complaint : they did not appear at the •lieaiing ; and no testimony or edidddnce was
introduced in respect to them, other than the above, the undersigned makes no finding in
ieipect to them -
,FIELD -PACKING COMPANY 867
conduct of.its business, and, therefore, in accordance with such list, shall be offered
reinstatement-by the respondent to their former or substantially equivalent posi-
tions as such employment becomes available and before other persons are hired for
such work. It will further be recommended that the respondent make whole
Lawrence Moore, Denver Wade, Ed Basinger and H. D Basham for any loss of
pay they may, have suffered by-reason of the respondent's discrimination against
them by the payment to each of them of a sum of money equal to the amount
which he normally would have earned as wages from December 10,.1941, to the
date of offer of reinstatement or placement on a preferential list hereinabove
described, less his net earnings,` if uny, during such period.
Having found that the respondent refused to bargain collectively with the
Teamsters as the exclusive representative of its employees in an appropriate unit,
the undersigned will recommend that the respondent, upon request, bargain 'col-
lectlvely with the Teamsters as the exclusive representative of those employees
in the appropriate unit in respect to rates of pay, wages, hours of employment
or other conditions of employment.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local #215; Amalgamated Meat Cutters and Butcher Work-
men of North America, Local No 227; both affiliated with the American Federation
of Labor, and The Plan, are labor organizations within the meaning of Section 2
(5) of the Act.
2 By dominating and interfering with the formation and administration of the
Plan and contributing 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 All truck drivers employed by the respondent at its plant in Owensboro,
Kentucky, for the purpose of delivering its products have at all times material
herein constituted and now constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
4 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Local #215, affiliated with the American Federation of Labor, was
on November 5, 1941, and ,at all times thereafter had been, the exclusive repre-
sentative of all the employees in the aforesaid unit for the purposes-of collective
bargaining within the meaning of Section 9 (a) of the Act. - , 1
5. By refusing to bargain collectively with International Brotherhood of Team-
sters; Chauffeurs, Warehousemen & Helpers of,America, Local #215, affiliated
with the American Federation of Labor, as the exclusive representative of its
employees in the aforesaid unit, the respondent has engaged in and -is engaging
in unfair labor practices within the meaning of Section 8 (5) of the Act
6 By discriminating in regard to the hire and tenure of employment of
Lawrence Moore, Denver Wade, 'Ed Basinger and H. D. Basham thereby discour-
aging membership in the International Brotherhood of Teamsters, Chauffeurs,
"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'Amertica
Lumber, and Sawmill Workers Union, Local .2590, 8 N. L R. B. 440.,,- Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings See Republic Steel Corporation v N L R B., 311 U. S 7.
521247-43-vol. 48-56
868 DECISIONS OF -NATIONAL. LABOR RELATIONS BOARD
Warehousemen & Helpers- of America, Local #215 affiliated with- the American
Federation of Labor, the respondent has engaged in and, is, engaging in unfair
labor practices ' within the meaning of Section 8, (3) of the Act.
7. 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.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within-the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above-findings of fact and conclusions of law, the under-
signed recommends that the' respondent, Field Packing Company; Owensboro,
Kentucky, and-its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a)• In any manner dominating or interfering with the administration of,, and
contributing financial or other support to, the Plan or any other labor organization
of its employees;
(b) Recognizing the Plan as?the representative of any 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 employment ;
(c)' Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs,, Warehousemen & Helpers of America, Local #215; and Amalga-
mated Meat Cutters and Butcher Workmen of North America, Locals No. 227, both
affiliated with the American Federation of Labor, or any other labor organization
of its, employees, by discharging or refusing to reinstate any of its employees or
in any other manner discriminating in regard to their hire and tenure of
employment or any term or condition of their employment;
(d) In. any other manner interfering with, restraining, or coercing its em-
ployees; in the' exercise of the, right to self-organization, to form; join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to, engage' in concerted activities for the purposes of' collective
bargaining or other mutual aid or protection asi guaranteed in Section 7 of the
Act.
2. Take the following, affirmative action which the undersigned, finds will
effectuate the policies of'the Act :
(a) Withdraw and withhold all recognition from the Plan as the representative
,of any 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 employment and completely disestablish the Plan as such
representative';
(b) Upon request, bargain collectively withti the International Brotherhood of
Teamsters,, Chauffeurs, Warehousemen &, Helpers of America, Local, $ 215,
affiliated with the American Federation of Labor, as, the, exclusive' representative
of all truck drivers employed by the respondent at its Owensboro, Kentucky,
plant, in respect to rates of pay, wages, hours of employment and other conditions
of'employment ;
(c) Offer to Lawrence Moore, Denver Wade, Ed Basinger and. H. D. Basham,
employees who went, on strike on December 7, 1941, and who have not since been
reinstated, immediate and' full reinstatement to their' former or substantially
equivalent positions; without prejudice to- their seniority and other rights and
privileges, in the manner, set -forth' in the. Section entitled. "The remedy". above,
-placing those employees for whom employment is not immediately available upon
FIELD PACKING COMPANY 869
a preferential list in the manner set forth in said Section, and thereafter, in said
manner, offer them employment as it becomes available for any or all of them;
(d) Make whole Lawrence Moore, Denver Wade, Ed Basinger and H. D.
Basham for any loss of pay they may have suffered by reason of the respondent's`
-discrimination against them'in.'respect to their hire and tenure of employment
on December 10, 1941, and thereafter, by payment to each of them respectively of
a sum of money equal to the amount which he normally would have earned- as
wages during the period from December 10, 1941, to the date of offer of reinstate-
ment or placement upon a preferential list, less his net earnings during such
period; ZS
(e) Post immediately-in conspicuous places throughout its plant at Owensboro,
Kentucky, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating (1) that the respondent will
not engage in the conduct from which it is ordered to cease and desist in para-
graph 1 (a), (b), (c), and (d) of the aforesaid recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c),
and (d) of these recommendations; and (3) that the respondent's employees are
free to become or remain members of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local #215, and Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No. 227, both
affiliated with the American Federation of Labor, and that the respondent will
not discriminate against any employee because of membership in or activity in
behalf of those organizations ;
(f) Notify the Regional Director for the Eleventh Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith.
As provided in Section 33 of" Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942=any= party may within, fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shorehan Building, Washington,
D. C, an ' original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and fourcopies of'a brief in support thereof. As further
provided in said Section 33, should, any party desire permission' to argue orally
before the Board, request therefor must be'made in writing to the Board within
ten (10) days from the-date.of the order transferring, the case to the Board.
WILLIAM P. WEBB
Trial Examiner.
Dated January 14, 1943
24 See footnote 23, supra.