The Cudahy Packing Company And Local No. 55, I~nited Packinghouse Workers Of Aimerica, Of Packinghouse Workers Organizing Committee, Affiliated With C. I. 0., 118 (1940)

In the Matter of THE CUDAHY PACKING COMPANY and LOCAL No. 55,

I~NITED PACKINGHOUSE WORKERS OF AIMERICA, OF PACKINGHOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH C. I. 0.

Case No. C-1375.--Decided September 7, 1940 Jurisdiction: meat packing industry.

Unfair Labor Practices In General: employer responsible for anti-union statements of assistant foreman.

Interference, Restraint, and Coercion Employer by encouraging membership of its employees in an organization which Board had found in earlier case to be illegally dominated held to have violated Section 8 (1).

Discrimination: discharge and lay-offs of employees because of their union membership and activity.

Refusal to reinstate an employee following his illness because of his union membership and activity constitutes a violation of Section 8 (3).

Remedial Orders: reinstatement and back pay awarded.

Mr. Lester Asher, for the Board.

Mr. E. S. Stringer, of St. Paul, Minn., and Mr. Thomas Creigh, of Chicago, Ill., for the respondent.

Elizabeth V. Weston, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Local No. 55,

United Packinghouse Workers of America, of Packinghouse Workers Organizing Committee, affiliated with C. I. O., herein called Local No.

55,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued and duly served its complaint dated April 7, 1939, 1Local No. 55 was designated in the original charge, filed December 3, 1938, as United Packinghouse Workers Union, Local 756; and in the amended charge filed February 17, 1939, as United Packinghouse Workers Local Industrial Union #756 through Packinghouse Workers Organizing Committee affiliated with the Congress of Industrial Organizations. Its local number was changed from 756 to 55 at some time between January 3, 1939, and March 24, 1939.

118 against The Cudahy Packing Company, Newport, Minnesota, herein called the respondent, and, on April 19, 1939, issued and duly served its amended complaint against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.

449, herein called the Act. Concerning the unfair labor practices, the amended complaint alleged in substance that the respondent (1) discouraged membership in Local No. 55 by discriminating with respect to the hire and tenure of employment of eight named employees because they joined and assisted Local No. 55 and engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining and other mutual aid and protection; and (2) by suggesting, advising, urging, and warning its employees not to become or remain members of Local No. 55, by the above acts of discrimination, and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.

On April 12, 1939, the respondent filed its answer to the complaint and on April 24, 1939, its answer to the amended complaint, admitting certain allegations as to the nature of its business but denying that it had engaged in or was engaging in the alleged unfair labor practices.

Pursuant to notice duly served upon the parties, a hearing was held in St. Paul, Minnesota, from April 24 to May 1, 1939, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties.

At the opening of the hearing, the Trial Examiner denied a motion by the respondent to make the complaint more definite and certain, ruling that if any evidence introduced by the Board should take the respondent by surprise, it might, at the close of the Board's case, have a reasonable length of time to meet the issues raised by such evidence.2 The Trial Examiner granted, over the respondent's objection, a motion by counsel for the Board to strike paragraph 8 of the answer.3 The Trial Examiner also granted, over the respondent's objection, a motion by counsel for the Board to amend the amended complaint by adding thereto the allegation that the respondent on March 15, 1939, discharged Arthur Robinson because of his membership and activities in At the close of the Board's case, the respondent waived the privilege of a continuance and proceeded with its defense.

sThis paragraph contained general statements apparently intended as allegations of a conspiracy between Local No. 55 and the Board's officers and agents in the Eighteenth Region.

Local No. 55, thereby discouraging membership in a labor organization. The Trial Examiner granted the respondent 5 days within which to amend its answer with respect to the alleged discrimination against Robinson, and ruled that no evidence relating to this issue would be received until the expiration of said 5-day period.4 During the hearing, the Trial Examiner granted without objection a motion by counsel for the Board to dismiss the amended complaint in so far as it alleges that the respondent discriminated with respect to the hire and tenure of employment of Fred Shortreed, Thomas Frauenshuh, and Ted Huston. At the close of the hearing the Board moved to conform the complaint, as amended, to the proof with respect to the dates of certain alleged acts of discrimination, and the respondent moved that the allegations of the amended complaint with respect to Robinson's discharge be deemed denied by the respondent. Both these motions were granted by the Trial Examiner. The respondent also moved, at the close of the hearing, that the complaint be dismissed on the ground that the evidence showed that the respondent had not engaged in the alleged unfair labor practices. The Trial Examiner reserved ruling on this motion. During the course of the hearing the Trial Examiner made numerous other rulings on motions, on objections to the admission of evidence, and on a demand by counsel for the respondent that the Board produce a certain affidavit executed prior to the hearing by one of the witnesses. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The Trial Examiner's rulings, with one exception,' are hereby affirmed.

Pursuant to leave granted to all parties by the Trial Examiner, the respondent filed a brief with the Trial Examiner after the close of the hearing.

On September 27, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he denied the respondent's motion to dismiss the complaint; found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act; and recommended that the respondent cease and desist therefrom and reinstate six employees found by him to have been discriminated against to their former positions with compensation from the respective dates of the respondent's discriminations against them. On October 18, 1939, the respondent SOn April 27, 1939, the third day of the hearing, the respondent waived any objection on the ground of insufficient notice to the introduction by the Board of evidence with respect to Robinson's discharge.

6 See Section III B, infra. In this instance, where the Trial Examiner erred in rejecting evidence offered by the respondent, the respondent made an offer of proof. Since we accept the offer of proof and find the fact to be as claimed by the respondent, the respondent was not prejudiced by the Trial Examiner's ruling.

filed exceptions to the Intermediate Report. The Board has considered the exceptions filed and, save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 6 The respondent, The Cudahy Packing Company is a Maine corporation having its principal executive office at Chicago, Illinois. It is chiefly engaged in the purchase and slaughter of livestock and the processing and marketing of the products therefrom.7 The respondent transacts business throughout the United States and in many foreign countries.8 The respondent's slaughtering and meat-packing plants are located in Omaha, Nebraska; Kansas City, Kansas; Sioux City, Iowa; Los Angeles, California; Wichita, Kansas; North Salt Lake, Utah; Jersey City, New Jersey; Newport, Minnesota; San Diego, California;

Denver, Colorado; Detroit, Michigan; and Albany, Georgia. It owns and operates a soap and Old Dutch Cleanser factory and shops for the construction and repair of refrigerator cars in East Chicago,

Indiana; a plant for the refining of vegetable oils near Memphis,

Tennessee; an Old Dutch Cleanser and soap factory in Toronto,

Ontario, Canada; a wool scouring, combing, and storage plant in Providence, Rhode Island; and a salt mine and refinery in Lyons,

Kansas. The respondent also owns and operates produce collecting and processing plants in many States and operates 80 branch houses located in the principal cities of the United States. In addition, it owns and operates 1,496 refrigerator cars and 44 tank cars. The 0 See Matter of The Cudahy Packing Company and Packinghouse Workers Local Industrial Union No. 62, affiliated with the Committee for Industrial Organizations, 472, enf'd as mod. 102 F. (2d) 745 (C. C. A. 8), rehearing denied April 25, 1939, cert, den.

308 U. S. 565.

SIn addition, the respondent is engaged either directly or through its subsidiaries in the following lines of business: Refining vegetable oils and the...

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