Iowa Packing Co.

National Labor Relations Board - Board Decisions

Mar 8, 1939

11 N.L.R.B. 986 (N.L.R.B. 1939)

In the Matter of IOWA PACKING COMPANY and UNITED PACKING HOUSE
WORKERS LOCAL INDUSTRIAL UNION No. 144
Case No. C-583.-Decided March 8, 1939
Meat Packing Industry-Interference, Restraint , and Coercion-Company-
Dominated Union: domination of and interference with formation and adminis-
tration ; support, through transfer of canteen business on company property at
nominal rental , including prior profits thereof ; suggestion that employees repre-
sentation plan be continued ; supervisory activities sponsoring and forming; dis-
established , as agency for collective bargaining.
Mr. Stephan M. Reynolds, for the Board.
Carr, Cox, Evans & Riley, by Mr. Don Evans, and Mr. W. F. Riley,
of Des Moines, Iowa, for the respondent.
Mr. Francis Hoague, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
7
Upon charges and amended charges duly filed by United Packing
House Workers Local Industrial Union No. 144,1 herein called the
Union, the National Labor Relations Board, herein called the Board,
by Leonard C. Bajork, Regional Director for the Thirteenth Region
(Chicago, Illinois), issued a complaint, dated February 15, 1938,
against The Iowa Packing Company,2 Des Moines, Iowa, 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) and (2), and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint alleged, in substance, so far as here material, that
the respondent, by and through its officers and agents, dominated
and interfered with the formation and administration of a certain
1 The charge and first amended charge was filed by Packing House Workers ' National
Federation ( Des Moines Local ) which was the predecessor to the above -named organiza-
tion. The second and third amended charges were filed by the above -named organization.
2 Throughout these proceedings the name "Iowa Packing Company " was incorrectly used
to designate the respondent.
11 N. L. R. B., No. 83.
986
IOWA PACKING COMPANY ET AL . 987
labor organization of its employees, known as the Association of
Packing House Workers, hereinafter called the Association, that it
permitted the Association and its officers to engage in various union
activities both on the respondent's property and during working
hours, and that it contributed financial and other support to the As-
sociation in that it permitted the Association to operate and main-
tain for profit a commissary in the plant.
On February 15, 1938, a copy of the complaint, accompanied by
a notice of hearing, was duly served on the respondent, the Associa-
tion, and the Union.
Pursuant to notice a hearing was held in Des Moines, Iowa, on
February 25, 26, and 28, and on March 1 and 2, 1938, before Peter
F. Ward, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence was afforded both parties. At the commence-
ment of the hearing the respondent filed an answer in which it de-
nied all of the material allegations of the complaint. During the
course of the hearing the Trial Examiner made numerous rulings
on objections to the admission of evidence and on motions of the
parties. The Board has reviewed these rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. At the close of the hearing the Trial
Examiner afforded the parties opportunity for oral argument and
to file briefs.
Thereafter the Trial Examiner filed his Intermediate Report, a
copy of which was duly served on all parties, finding that the re-
spondent had engaged in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and '(2) and Section 2 (6) and
(7) of the Act, and recommending that the respondent cease and
desist from its unfair labor practices, withdraw all recognition from
the Association as representative of its employees for collective bar-
gaining, and take certain other action to remedy the situation brought
about by the unfair labor practices. On May 10, 1938, the re-
spondent filed exceptions to the Intermediate Report and requested
oral argument before the Board. On October 6, 1938, pursuant to
notice and amended notice duly served upon the respondent and the
Union, a hearing was had before the Board in Washington, D. C.,
for the purpose of oral argument. The respondent appeared by
counsel and presented oral argument to the Board.
The Board has considered the exceptions of the respondent and,
in so far as they are inconsistent with the findings, conclusions, and
order set forth below, finds no merit in them.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Iowa Packing Company is an Iowa corporation engaged at
Des Moines, Iowa, in the general business of purchasing, slaughter-
ing and processing hogs, cattle, calves, sheep, and lambs. All its
capital stock is owned by Swift & Company, a Nation-wide meat-
packing and processing organization. Almost all of the meat pur-
chased by the respondent is shipped to it from points within the
State of Iowa. During the fiscal year ending October 31, 1937, the
respondent shipped products of the value of $3,724,289 to points
within the State of Iowa. During the same period it shipped prod-
ucts of the value of $13,928,958 to points outside the State of Iowa.
The respondent has approximately 470 production employees not in
supervisory positions.
II. THE LABOR ORGANIZATIONS INVOLVED
United Packing House Workers Local Industrial Union No. 144
is a labor organization affiliated with the Committee for Industrial
Organization, admitting to membership all production employees in
the respondent's plant, excluding supervisory employees.
Association of Packing House Workers is an unaffiliated labor
organization, admitting to membership all production employees of
the respondent's plant, excluding some supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Plan
About the middle of October 1935 the respondent at the suggestion
of some of its employees instituted the "Swift & Company Employees
Representation Plan." The Representation Plan had been originated
by Swift & Company in 1921 and since then had been adopted in many
of the plants of its subsidiaries. The governing body of the Repre-
sentation Plan, known as the Plant Assembly, consisted of nine em-
ployee representatives elected by secret ballot, one from each of the
divisions of the plant, together with an equal number of representatives
chosen by the management. Under the Representation Plan, an em-
ployee might present a grievance to his employee representative, who
would confer with the corresponding management representative. If
the paired representatives could not dispose of the matter it was then
referred to the Plant Assembly or to a committee thereof. A decision
of the Plant Assembly was binding on the management only if passed
by a two-thirds vote. Even then the respondent's board of directors
IOWA PACItING COMPANY ET AL. 989
could reopen the matter within 14 days of the vote. Meetings of the
Plant Assembly, elections, and other activities were carried on during
working hours in the respondent's plant and with its permission. The
respondent paid the employee representatives for the time they spent
on the work of the Representation Plan. It furnished the necessary
materials and paid all the expenses of the Plan. These practices con-
tinued until April 20,1937, when the Representation Plan was officially
dissolved. It is clear that for a year and a half the respondent domi-
nated and interfered with the formation and administration of a labor
organization, and contributed financial and other support thereto, in
violation of Section 8 (2) of the Act.8 The participation of the man-
agement in the administration of such an organization necessarily has
the effect of interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act .4
B. Dissolution of the Plan and formation of the Association
At a meeting of the Plant Assembly on April 20, 1937, H. J. Nelson,
the respondent's president and manager, read to the assembled repre-
sentatives the following statement, which was posted in the plant soon
afterwards :
STATEMENT TO EMPLOYES AND THEIR REPRESENTATIVES
On Monday, April 12, the United States Supreme Court made
public its decisions on several cases under the National Labor Re-
lations Act (The Wagner bill) and held the Act valid.
It is Swift & Company's intention to comply with the law as
the court has now construed it and it is not possible to continue
the present Representation Plan.
Whether you wish to establish an employes' representation plan
for collective bargaining, that will comply with terms of the law,
is a matter for you to decide. If you wish to adopt a plan for
negotiating with the company on wages, hours, and working con-
ditions, it should not include management participation in
elections of employe representatives, the furnishing of printed
material by the company, nor company compensation to employe
representatives for time spent away from their work, except when
conferring with management, as this latter is not prohibited by
law.
It shall be the policy of the company to continue to consult with
its employes on all matters of mutual interest in an honest effort
to find the proper solution to problems. Finally, the company
8 The identical plan was involved in Matter of Swift d Company and United Automobile
Workers of America, Local 265, 7 N. L. R. B. 287.
4 See Matter of International Harvester Company and Local Union No. 57, International
Union, United Automobile Workers of America, 2 N. L. R. B 310.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnestly desires that the understanding growing out of our re-
lationships during these past many years will be the basis upon
which the continued good relations between employes and the
company will be maintained.
THE IOWA PACKING COMPANY,
H. J. NELSON, Manager.5
In answer to an inquiry from one of the employee representatives
"as to whether the company would be willing to continue negotiations
should they form an organization," Nelson stated that if it was
within the scope of the law, the respondent would be glad to. There-
upon all the employer representatives withdrew from the meeting,
leaving the employee representatives remaining in the room. The
employee representatives decided to organize an "inside" or un-
affiliated organization to take the place of the Representation Plan.
At this meeting the main points of the "Rules and By-Laws" of the
Association were drafted. A rough outline of the Association was
then posted on the respondent's bulletin board with an announce-
ment that on April 26 there would be a balloting on the question :
"Shall the Plan of Representation as posted on the bulletin board be
adopted?" At this time the organization was named "Employees'
Representation Committee." Arrangements were made with the re-
spondent to use the respondent's voting booths for the election. On
April 26 the balloting was held during working hours on the re-
spondent's property. A member of the committee appointed to
handle the election went to the different departments during the day
and arranged for the particular employees to be released, one or two
at a time, in order to vote. A system was worked out with the fore-
men for relieving each employee as he came to vote, so that there
would be no interruption in the work of his department. A copy of
the pay roll, obtained from the respondent's time office, was used as a
tally of the eligibility of voters. Of 488 employees at the plant on
that day 335 voted in the affirmative and 117 in the negative. In the
same manner elections were held on April 29 and May 4 to nominate
and elect representatives to the Executive Committee. Although the
employees were paid on an hourly basis no evidence was introduced
to show that there had been deductions from the wages of those
participating in the election, for the time spent away from their
work.
I In two previous Board decisions concerning employees of two plants of Swift & Com-
pany identical statements were read on this same day to the Plant Assembly of each of
the two plants : Matter of Swift & Company, a corporation and Amalgamated Meat Cut-
ters and Butcher Workmen of North America, Local No. 641, and United Packing House
Workers Local Industrial Union No. 300, 7 N. L. R. B. 269; and Matter of Swift & Com-
pany and United Automobile Workers of America, Local No. 265, 7 N. L. R. B. 287.
IOWA PACKING COMPANY ET AL. 991
At some time after the first balloting, the Association drafted the,
Rules and By-Laws into a more complete form and had them printed
in booklets. The Rules and By-Laws set up an Executive Committee
composed of representatives, each elected by one of the divisions in
the plant, to deal with the respondent on behalf of the employees.
Just as under the Representation Plan there had been nine employee
representatives, there now were nine representatives on the Executive
Committee. No provision was made for membership meetings.
Among other things the Rules and By-Laws provided :
(c) The employes and their representative on the payroll shall
receive their regular pay from the employer for such time as is
necessary to adjust grievances.
It is obvious that this provision, which imposes duties on the re-
spondent, has no place in the constitution of a labor organization
organized independently of the employer.
On June 1, 1937, the Association sent a letter to the management,
stating the results of the balloting for the Association, and request-
ing "exclusive bargaining rights for the hourly paid employees of
this plant." On June 3, 1937, the respondent replied-that it would
recognize the Association "as the sole bargaining agency for all em-
ployes of The Iowa Packing Company as long as the Association of
Packing House Workers has the majority of employees in its mem-
bership." Thereafter until the date of the hearing the Association
representatives dealt with the respondent regarding grievances of
the employees. The Association took no steps to negotiate a collec-
tive contract with the respondent dealing with wages, hours, and
working conditions.
Three of the moving spirits in the formation of the Association,
Griffiths, Quinn, and Sample, were gang leaders at the respondent's
plant. All three had been employee representatives under the Plan
and all three were elected to the Executive Committee of the Associa-
tion. At the hearing there was considerable testimony as to the
status of a gang leader. The respondent's superintendent testified
that "a gang leader is someone who takes a group of men and sees
that the work is followed out in the sequence of the operation, as in-
structed by either the foreman or the division superintendent."
When the foreman is absent a gang leader takes his place and sees
that the work is carried out according to the plan left with him by
the foreman or given him by the division superintendent. From the
specific examples given of the duties of a gang leader it is apparent
that he has authority to give directions and orders to the men in his
gang. The fact that these orders are specific and not general, and
that the gang leaders have no authority to hire and discharge, does
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not eliminate the fact that in giving orders they act on behalf of the
management and are, therefore, in a supervisory capacity. The
activities of these three gang leaders in sponsoring and developing
the Association are attributable to the respondent.
C. Financial support
Max D. Griffiths, the Association chairman, testified that he spends
approximately 40 per cent of his working time handling grievances
of the employees. The employee or his representative either comes to
him or sends for him. Griffiths discusses the grievance with the em-
ployee and -then takes it up with the foreman. Griffiths testified as
follows :
Q. Well, do you talk to the men about grievances?
A. Yes; I talk to the men about grievances all day long. I
go around all day long talking to them about grievances, working
conditions, and so on.
Q. Don't you talk with them on the job while you are working,
Mr. Griffiths?
A. Yes; I have. I have run over and talked with the foreman
on the job, then gone over and talked to the man, then go back
and talk to the foreman, then go back and talk to the man, doing
it in that way many times. Many times the foreman might be
busy at one thing and the man working twenty feet from there
busy doing something else.
For this work the respondent paid Griffiths his usual hourly wage.
Another Association representative, Don Mahon, testified that he
spends 5 to 6 hours a week on grievances, for which time he is paid
by the respondent.
Article III of the Association's Rules and By-Laws provides :
No dues for the maintenance of this Association will be charged
its members ...
The affairs of the Association shall be financed from the profit
of such activity that may be undertaken by the Committee.
The expenses of the Association have been defrayed by the profits of
a canteen located in the Recreation Room, which the respondent main-
tains for its employees. The canteen--is a booth measuring 9 by 15
feet, at which are sold candies, milk, -ice cream, gloves, clocks and
other articles. The canteen was started in December 1936 under the
supervision of the Plant Assembly for the purpose of raising money
for social and athletic activities of the employees. M. M. Wolf,
superintendent of the division of standards, was the secretary and
general manager of the canteen. The net profit from the canteen
IOWA PACKING COMPANY ET AL . 993
runs from $50 to over $100 per month. After the creation of the
Association, some of the employees asked the respondent's manage-
ment if the Association could take over the canteen. After consul-
tation, the respondent replied they could take it over but that they
would have to pay rent for it figured on "a floor space basis." There-
upon the Association took over the management of the canteen and
also took over the sum of over $400 which had accumulated from the
prior profits of the canteen. The rent charged by the respondent
was $4.75 per month, a figure reached by taking a proportion of the
expenses of maintenance of the building, commensurate with the
floor space occupied by the canteen. In reaching this rental figure,
the respondent did not take into consideration the size or the value
of the canteen's business.
Wolf, because of his supervisory status, resigned as secretary of the
canteen. However he continued to assist the Association first by
teaching the new management how to run the canteen and thereafter
by helping in selling goods at various times during the morning and
lunch hours. It is significant that when one employee was laid off
during the summer of 1937 the respondent's cashier sent him to see
Wolf in regard to settling his bill with the canteen.
Griffiths was permitted by the respondent to spend some of his
working time in canteen work. It was maintained, however, that
his pay stopped for time so spent and that he was reimbursed from
canteen funds for wages thus lost. Although the canteen did pay
him for time so spent from November 29, 1937, on, no such payments
were made prior to that date. William Pratt, the division superin-
tendent, was aware of this activity on Griffiths' part, and "never paid
a great deal of attention to it." We find that prior to the week of
November 29, 1937, Griffiths spent a part of his working hours on
the work of the canteen and was knowingly paid by the respondent
for time so spent.
After 4: 30 p. m. the girl in charge of the canteen customarily
closes the canteen and leaves for the day. Thereafter Harvey Masi-
more, the night superintendent of the plant, opens up the canteen
at times and sells canteen merchandise to employees. There is no
evidence that his pay was in any way decreased by time so spent.
The Association keeps its records in the respondent's office, and
uses the respondent's office equipment, mimeographing machine, and
typewriters. For the use of the equipment a nominal charge is made.
It is evident that the Association was materially benefited by this
arrangement, if one considers what they would have been compelled
to do, had they been forced to obtain these facilities from outside
the plant and at standard rates.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Conclusions
The foregoing facts show the Association to be an openly company-
inspired and supported labor organization. In two earlier cases 8 we
have held that the same statement as that read and posted on April
20, 1937, constituted an invitation to form an "inside" union. As in
those two instances, here the employee representatives responded to
the invitation in the expected manner. The form of the body set up
was as close a copy of the Representation Plan as could be made
without coming into open conflict with the Act. After its formation,
the Association functioned in the same manner as the former com-
pany-inspired Representation Plan. The fact that the Association
was considered as merely a continuation of the Representation Plan
with technical changes is shown by the provisions of the Rules and
By-Laws which impose obligations on the respondent, obligations
which the respondent had discharged under the Representation Plan.
The framers of the Rules and By-Laws did not presume to impose
these obligations in vain. The respondent not only paid the Asso-
ciation representatives for time spent in conferring with it, but also
for time spent in investigating grievances.
As to support of the Association through the canteen, the respond-
ent cannot have seriously felt that it did not confer a benefit on the
Association by turning over the canteen to it, despite the rent charge.
The canteen had proved to be a valuable business. A nominal rent
charge does not derogate from the essentially gratuitous nature of the
canteen privilege. Furthermore the respondent turned over more
than $400 that had been earned by the canteen under the respondent's
management. A high supervisory official devoted time and energy in
assisting the canteen. The fact that some of this time was not during
working hours does not make it any the less of an aid to the Associa-
tion. Wolf was a part of the management in his free time as well as
in working hours. His support was support from the respondent.
The canteen activity of Masimore and Griffiths during working hours
contributed to the profit of the canteen.
The respondent's contribution of time, property, and cooperation
to the Association's elections constituted further financial aid and
support.
We find that the respondent has dominated and interfered with
the formation and administration of the Association, and has con-
tributed financial and other support to it; that by its aforesaid acts,
6Matter o f Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No . 641, and United Packing House Workers Local Indus-
trial Union No. 800, 7 N. L. R. B. 269; and Matter of Swift 6 Company and United Auto-
mobile Workers of America , Local No. 265, 7 N L. R. B 287
IOWA PACKING COMPANY ET AL. 995
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of their right to self-organization, and to
form, join, and assist labor organizations.
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 respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. The Association, being the product of the
respondent's domination and support, does not offer to the respond-
ent's employees the free representation for collective bargaining
which is guaranteed by the Act. We shall, therefore, order the re-
spondent to withdraw all recognition of the Association as repre-
sentative of the respondent's employees for the purposes of collective
bargaining, and to disestablish it as such representative.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Packing House Workers Local Industrial Union No. 144,
and Association of Packing House Workers are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of Association of Packing House Workers
and by contributing financial and other support to said organization,
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of facts 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 re-
spondent, The Iowa Packing Company, and its officers , agents, suc-
cessors, and assigns shall :
1. Cease and desist :
(a) From in any manner dominating or interfering with the ad-
ministration of Association of Packing House Workers, or the forma-
tion or administration of any other labor organization of its employ-
ees, or from contributing financial or other support to Association of
Packing House Workers or to any other labor organization of its
employees ;
(b) From 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 by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Association of Packing House
Workers, as the 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 em-
ployment, and completely disestablish said Association of Packing
House Workers as such representative;
(b) Post immediately and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees in conspicuous places throughout its plant, stating that the
respondent will cease and desist in the manner set forth in 1 (a) and
(b), and that it will take the affirmative action set forth in 2 (a) of
this Order;
(c) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.