The Fairmont Creamery Co.

In the Matter of Mam FAIRMONT CREAMERY COMPANY and CHAUFFEuBs, TEAMSTERS AND HELPERS LOCAL #795, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-2674.-Decided August 23, 1943 DECISION AND ORDER On July 15, 1943, the Trial Examiner issued his Intermediate Re- port 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 that it take certain affirmative action, as set forth in the copy of the Inter- mediate Report annexed hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. No request for oral argument before the Board.was made by any of the parties. The Board has considered the rulings made by 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 respond- ent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below. The Trial Examiner found that the respondent discharged Victor McDaniel, an employee, because of his affiliation with, and activities in behalf of, the Union, and thus discriminated against him in regard to the hire and tenure of his employment. While we agree with this finding of the Trial Examiner, we base our conclusion upon the grounds that on May 8, 1943, and such previous times when McDaniel was not at work, he was absent with the respondent's express permission; that McDaniel was an active supporter of the Union; that McDaniel's foreman had stated to another employee that he had heard that Mc- Daniel was "pushing" the Union; that the respondent strongly opposed the formation of the Union at its,place of business; that the asserted reasons for discharging McDaniel were merely pretexts; and that the respondent desired to rid itself of McDaniel because of his activ- ities in behalf of the Union. 52 N. L. R. B., No. 16. 75 76 DE'CISSONS OF NATIONAL LABOR RELATIONS BOARD - 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, The Fairmont Creamery Company, Dodge` City, Kansas, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Chauffeurs, Teamsters and Help- ers Local #795 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employ- ment or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise&of the, right 1to;^seH-organization, to.form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activ- ities 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) Offer to Victor McDaniel, Ardis Dye, and Lawrence Black immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; (b) Make whole Victor McDaniel, Ardis Dye, and Lawrence Black for any loss of pay they have suffered by reason of the respondent's discrimination against them,- by,, payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post immediately in conspicuous places throughout its Dodge City, Kansas, plant, and maintain for a period of at least sixty (60) 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) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in,. paragraphs, 2 (a) ; and, ^(b) of:,this : Order,;, (3)` -that the r respondent's employees are free to become and remain members of Chauffeurs, Teamsters and Helpers Local #795 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of THE FAIRMONT CREAMERY COMPANY 77 his membership or activity in that organization; and (4) that the respondent's employees are free to discuss matters of self-organization upon the respondent's property so long as such discussion does- not take place during actual working time; " (d) -Notify the- Regional Director for the,. Seventeenth_.Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Order. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Robert S. Fousek, for the Board. Mr. Leonard A. Flensburg, of Lincoln, Neb., and Mr. C. B. Evinger, of Omaha, Neb., for the respondent. STATEMENT OF THE CASE Upon a charge duly filed on May 25, 1943, by Chauffeurs, Teamsters and Helpers, Local #795, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated June 5, 1943, against the Fairmont Creamery Com- pany, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices 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. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) from about July 1, 1942, among other things, vilified and disparaged the Union, questioned its employees about and warned them against affiliation with the Union or assistance thereto, kept meetings and activi- ties of the Union under surveillance, threatened employees with discharge if they joined the Union or continued their activities therein, held meetings on its time and property to persuade employees to refrain from joining or continuing to assist the Union, promised wage increases to employees for abstaining from Union affiliation, published notices to employees prohibiting discussion of the Union or concerted activities on the respondent's time or property, and used vile and obscene language in threatening employees with bodily injury if they affiliated with the Union or continued to engage in Union activities; (2) dis- charged Victor McDaniel about May 8, 1943, Ardis Dye about May 10, 1943, and Lawrence Black about May 17, 1943, and thereafter refused to reinstate them because they joined or assisted the Union; and (3) by the foregoing activi- ties interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 15, 1943, the respondent filed its answer which denied: (1) that it had engaged in the unfair labor practices alleged in the complaint; and (2) that it discharged McDaniel, Dye, or Black because they had joined or assisted the Union.' Pursuant to notice, a hearing was held at Dodge City, Kansas, on June 17, 18, and 19, 1943, before Earl S. Bellman, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. 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 on the issues was afforded all parties. At the opening of the hearing a motion by the respondent for a bill of particulars was granted in part. At the close of the Board's case a motion by the respondent to dismiss the complaint because of insufficiency of evidence was denied. At the close of its case, the 1 At the hearing the respondent amended its answer, setting forth its reasons for' the discharges Those reasons are discussed hereinbelow. THE FAIRMONT CREAMERY COMPANY 79 respondent again moved to dismiss the complaint. Ruling was reserved on said motion which is hereby denied. A motion was granted without objection to conform the complaint and the answer to the proof as to formal matters. Counsel for the Board and for the respondent argued orally before the under- signed. All parties were afforded the opportunity thereafter to file briefs with the undersigned. The respondent has filed a brief. 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 The respondfent, The Fairmont Creamery Company, a Delaware corporation having its principal office and place of business in Omaha, Nebraska, operates plants in several States. At one of these plants at Dodge City, Kansas, the only plant involved herein, the respondent is engaged in the manufacture and processing of butter, eggs, poultry, milk, cream, ice cream, mixed feeds, and similar products. The value of such products purchased, delivered, and trans- ported annually from and through States of the United States other than the State of Kansas is in excess of $50,000.2 The respondent's principal customer is the armed forces of the United States to which it sells approximately 67 percent of its products. The plant now has from 230 to 245 employees. The respondent admits that it is engaged to a substantial degree in interstate commerce. H. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers, Local #795, of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the Ameri- can Federation of Labor, is a labor organization admitting to membership em- ployees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events; interference, restraint, and coercion 1. Union activities in September 1942 About September 12, 1942, one of the respondent's truck drivers, Leroy Black,' who had recently joined the Union, went to the respondent 's garage with some literature of the Union. Within a few minutes the respondent's manager, Frank C. Evert,' entered the garage. At that time one of the garage employees, Leonard 2 At the hearing the respondent and the Board stipulated as to the annual value of the products, but the word "annually" was inadvertently omitted from the transcript. Accord- ingly, the undersigned hereby corrects the transcript in the instant matter at line 23, page 18, thereof by inserting the word "annually" between the words "stipulated that" and the words "the respondent." 3 Black drove a truck between Dodge City and Omaha. He is a brother of Lawrence Black, whose discharge on May 17, 1943, is discussed below. 4 The respondent stipulated that Evert, and also Elmer Schooley, Ray Speck, Floyd ("Bucky") Harris, Ed Tborp, Deb Wilkes, Guy Salyers, Bill Carey, Don Crilley, and Homer Lake, some of whose activities are hereafter discussed, are foremen and supervisors in the Dodge City plant with power to hire and fire. 80 DECISIONS OF NATIONAL LABOR RELATfIONS BOARD Perley, had the Union literature in his hand . Evert asked Perley, in the presence among others of employees W. H. Richardson and Cecil Crane, where he had got it and Perley said that Black had given it to him. During an argument which followed, Evert characterized Black and Perley as "nothing but, Bolsheviks" andtold the garage crew that if they, could not kick them out; he could. In the course of the argument, Black stated that he was not satisfied, with his rate on the Omaha run and Perley agreed that the pay on that run was too low. Perley also said that he did not think he was getting enough pay for his work in the garage . Evert said that if Perley was not satisfied he could get his "time" whenever he wanted it. Perley, who previously had had no intention of quitting, finished out the day and left the respondent 's employ the next morning. Black ceased to work for the respondent after the above argument' Black's activities that day, according to Crane, who was in charge of the garage, did not unduly interrupt work. During the argument Manager Evert did not say anything about Black's taking up the time of,employees during working hours.' On the morning of September 13, Evert returned to the garage and discussed wages with Crane and Richardson. He increased their rate of pay and agreed to give them a bonus. Following the above events, no further attempt to organ- ize the respondent's employees was made by the Union until the spring of 1943.° 2. Resumption of activities by the Union in 1943 Shortly before the first of May 1943, some of the respondent's truck drivers began to discuss organizing. Richardson thereupon secured some applications of the Union through Ivan Hibbard,' a,clerk at the Pay Day Market in Dodge City which his father owns and operates. After securing the applications, Richardson himself signed up employees of the respondent ; he also gave' a number of blanks to some other employees to use in soliciting members. Among the employees who signed union applications early in this solicitation were Lawrence Black and Victor McDaniel, both of whom„signed about April 23. Among employees who secured supplies of, applications from Richardson to,use in soliciting members were Ardis Dye, Lawrence Black, and Roy Barnes. About May 1, on the front docks of the plant, employee Ralph Stapleton heard Homer Lake, foreman of the maintenance and power department, tell Cecil Crane that he could stop all union activities by "just shutting the burners off on the boilers." ° Sometime about May 1, William Carey, the foreman of the creamery depart- ment, accused employee Louis Schaapvold of having told some employees that if they did not join the Union they would lose their jobs. Schaapvold denied having done so and asked Carey to prove his statement. Carey then told Schaapvold what the respondent had done for him, pointed out how he had been advanced over others, and asked him if he had joined the Union. Schaapvold " 5 Black did not testify . Evert testified that Black quit. ° The above findings are made upon an analysis of testimony of Richardson . Crane, and Perley, all credible 'iitnesses , and various admissions in the testimony of Evert, whose explanation that his role in the above incident was an attempt to avoid any interruption of production, was not convincing. 7It should be noted that on a trucking route from Dodge City to Los Angeles , California, the drivers were members of the Union and the run was covered by a contract between the respondent and the Union from 1940 until the California run was discontinued about the end of 1942. B Hibbard was not connected with the Union but had formerly served as the financial secretary of a union supplying construction workers on a nearby project. ° The above finding is made upon testimony of Stapleton . Lake did not testify at the hearing nor was his absence explained . Crane was not questioned about the incident when he testified. THE FAIRMONT CREAMERY COMPANY 81 admitted that he had. Carey then told him not to come down the next day to sign up the girls and asked where the Union had started. Schaapvold replied that he thought that the truck drivers had sarted it. Carey said that he waig thankful that it had not started-in the creamery. 3. The events of May 8 to 10 About May 8, which was Saturday, Manager Evert sent for Crane and asked him if the boys "ever talked union." Crane said they used to talk quite a lot but that it had been quiet for the last week or 10 days. Evert said that it had been "too damned quiet" and asked Crane to find out how the boys felt ; Crane understood that he had reference to the Union. About May 8, Evert invited one of the truck drivers, Hubert Smalley, into his office' and asked him what he knew about the Union and if he had joined. Smalley said that he had not and did not know anything about the Union. Evert told Smalley that he was glad that he had not joined and that he had not thought that he would because he was "a good boy." 10 On May 8, Manager Evert had a conversation in his office with Roy Barnes. He asked Barnes how he liked his job and how he was getting along. Barnes said he liked his job and was getting along fine." Evert asked Barnes what he thought of the Union and if he had joined. Barnes replied that he had. Evert asked him if he would withdraw and Barnes said that if the others decided to "back out" he would too. Evert said that most of the boys he had talked with who had joined were ready to withdraw. Evert asked Barnes what he hoped to get out of the Union. Barnes replied that be hoped to get $50 or $60 a week without working 80 or 90 hours for it. Evert said that he would like to pay more but that wages were frozen. He also said that if the Union continued, it would tend to cut hours and would result in the men having to pay their truck expenses personally. That same day Virgil Mayfield, whose regular work was driving the city delivery truck, was called into Evert's office. Evert asked Mayfield if he had joined the Union ; Mayfield admitted that he had. When asked what he thought he would gain, Mayfield indicated that he hoped to get more wages. Evert said iO Unless otherwise stated, the above findings and other findings made herein as to con- versations held by Manager Evert and various foremen with various employees are made upon uncontradicted testimony of the employees which the undersigned credits Evert admitted that in a conversation with one employee, George Hermann, he had asked Hermann how the Union "was getting along" and if he had joined , and that Hermann had admitted that he had and had showed him his membership slip. Evert testified that he did not remember having asked other employees about their union affiliations and that he had called employees into his office "only in an advisory capacity" to caution them "not to use company time" to discuss the Union Evert also testified that in May when he had learned of the Union's activities, he had orally instructed his department heads to be neutral; that they had, in turn, orally informed the employees of the respondent's neu- trality; and that he had never told any employee that he had any objection to his joining the Union. However, eecept as indicated herein, when they were called to testify, neither Evert nor the various foremen were questioned about the several specific conversations held with various employees On the whole, the testimony adduced by the respondent as to its alleged neutrality was not convincing. " The day before, Barnes had started to drive a truck on the run to Springfield, Colorado. For about 2 months previous to that he had been driving a wholesale milk truck in Dodge City. Barnes had desired a country run because it paid more and he liked that type of work, so he had asked Elmer Schooley, the foreman of the fruit and vegetable department, for a country truck. About May 5, Schooley had told Barnes that he had a job open and had given him the Springfield run In taking that run, Barnes had said that while it was considered the respondent's toughest and hardest run, he would take it and hope for an easier run later. 82 DECISIONS OF NIATIONAL LABOR RELATIONS BOARD that wages were frozen ; that the Union would just take part of what he was already getting; and that if the Union was successful in organizing, he would have to take a country route permanently. Mayfield, who did not like country routes because his wife did not like to have him away from home, replied that he would quit first. Evert said that his job was frozen ; that he could not quit ; and that the Union had not tried to organize during hard times but was around getting money when there was plenty of it. Mayfield admitted that he did not know much about the Union and Evert told him that he was "smarter than that" and ought not to have joined the Union. At one point during their conversation, Evert told Mayfield that the others had promised to withdraw and asked Mayfield to let him tell them that he would withdraw also. Mayfield would not agree to do so.' Shortly after 10 o'clock on the morning of May 8, Floyd Harris, foreman of the hatchery and feed department, asked one of the employees in his department, Charles Simmons, if be had heard anything about the Union. Simmons admitted that he had. Foreman Harris then asked him if he knew whether Victor McDaniel was "pushing" the Union." Simmons replied that McDaniel was not, so far as he knew. Harris then said that he had heard "in a round about way" that McDaniel was, and that he "just wondered." Harris then asked what Sim- mons thought of the Union ; Simmons replied that he had worked "a little under it" and that it "seemed to work all right." 1` On the evening of May 8, Evert met Carl Matthews 16 on the dock at the plant and asked him how things were going and if he had joined the Union yet. Mat- thews said that his work was going well and that he had not joined. Evert asked if the other boys had joined. Matthews replied that they had not, so far as he knew. Evert then asked what Matthews thought about the Union. Matthews replied that he had not given it much thought ; that he knew only what he read in the papers ; and that if the Union went through he would have to go the way the rest of the boys went. Evert stated that he did not have to do that ; that the Union was not going through; and that the boys were turning in their resignations. During the conversation Evert asked Matthews if he had ever had to look to the Union to get him his money and Matthews said that he had not. Evert then pointed out by his questions that during the dust storms in 1934 and 1935 the Union had not come out to organize, but that since the boys had a little money and wages were good the Union was out to "pick the grapes." On Monday, May 10, Foreman Carey talked near his desk with two of the women employees in the creamery, Pearl Bennett and Marie Springer.10 Carey 12 Shortly thereafter Mayfield was told that be would have to take the Springfield run (which, as discussed above, had been given to Barnes who wanted it), or work in the plant at 5 cents less an hour. After vigorously protesting at first, Mayfield consulted his wife and agreed to try the Springfield run. That run required some 80 miles of driving on rough dirt and gravel roads and shook Mayfield's back so much that his doctor advised him against that work. Mayfield was thereafter transferred to night work feeding chickens at 5 cents an hour less than he had previously received. While there is no allegation in the complaint that Mayfield's transfer to the Springfield run was a violation of Section 8 (3), it is evident from the entire record and the undersigned finds that the respondent during this period was using shifts in work assignments of union members as a part of its campaign against the Union 13 McDaniel's discharge shortly after noon on that same day is discussed below. 14 The above findings are made upon credited testimony of Simmons. Harris admitted that he had a conversation with Simmons in which Simmons' previous work on a union job had been discussed, and also that he might have asked Simmons if be knew whether "McDaniel belonged to a union." 15 Matthews is a brother-in-law of Ardis Dye and had assisted her in securing her position with the respondent in November 1942. 1e That same day, as is discussed below, Carey discharged another woman employee, Ardis Dye. THE FAIRMONT CREAMERY COMPANY 83 complimented Bennett and Springer on their work and said that he wished that he had more employees like them. He asked if they had been treated fairly and they replied that they had. Carey then said that he supposed they had heard something about the Union ; the women replied that they had. Carey stated that both of them were soldier's wives and might not work very long at the plant. He said that they would not want to give away $10 and not get any' good out of it and that if the Union came in they could not transfer to other parts of the creamery in order to get in a full week if work in the butter room was slack. In discussing unions and the war, Carey pointed to the strikes in coal mines and asked the women if they wanted to have a strike at the plant and slow up pro- duction of war materials and food going to the soldiers. The women said that they did nQt. Carey then asked if he could depend on them not joining the Union ; Bennett did not say anything, but Springer said that there were some good things as well as bad things about the Union. Carey said that he could tell that they were sold on the idea of the Union.''` About May 10, which was Monday, Manager Evert called Richardson to his office. He asked Richardson how he had got along at the union meeting Friday night. Richardson said that he had not attended a union meeting Friday night. Evert said that it was Saturday night then. Richardson thereupon said that it was Doe Briggs, the assistant foreman of the creamery, who had accused them of having a union meeting Saturday night, as Briggs had met several employees that night at the Pay Day Market.18 Evert asked Richardson if he belonged to the Union, but Richardson did not reply. Evert asked Richardson what he thought of the Union and Richardson said that he would "go which ever way the bunch" went. Evert said that he did not think the Union would do any good. On May 10, Evert called Donald Grey, a truck driver, into his office and asked him if he had joined the Union. Grey said that he had. Evert asked him why he did not go and get his money back and Grey said that he would if the rest would. Evert 'then said that during the depression the Union had not tried to organize but that since times were better and the grapes were on the vine, the Union was ready to do its harvesting with its money making scheme. On Monday morning, May 10, after having been told by Foreman Schooley on Sunday who his helper on the Springfield run would be, Barnes whose interro- gation by Evert concerning the Union is set out above, found a note in his drawer telling him that he was not going on that run but would be used in the plant. Barnes saw Schooley to find out why he was being shifted and was told to see, Manager Evert. Later that morning, when Barnes saw Evert, he criticized his work of a year before on an ice-cream truck and said that Barnes had not had enough experience. Schooley, who was also present, asked Barnes if he thought he had cooperated with the respondent 100 percent and Barnes said that he thought that he had. At one point Evert said to Barnes that they had had no trouble with his being absent so they could not get him on that 19 Finally, Evert told Barnes that the only work they had for him was in the poultry department, where he had never worked before ; that there he could show in a short time that he wanted "to do what was right" and not grumble ; and that then they might find a job on a truck sometime for him. Barnes left the office without say- 11 The above findings are made upon uncontradicted and corroborative testimony of Bennett and Springer, both credible witnesses '8 Among the employees whom Briggs had seen Saturday night at the Pay Day Market were Ardis Dye and Carl Matthews Briggs had asked them if they were going on a party and Richardson had replied that they were not going on a party but on a charivari. 19 Concerning this 'incident, Evert testified that he had criticized Barnes but was not questioned about the above remark. It should be noted that absenteeism was the reason given both McDaniel for his discharge 2 days before and Dye for her discharge that morning. 549875-44-vol. 52-7 84 DECTS1ONS OF NATIONAL LABOR RELA(PIONS BOARD ing whether or not he-would take the job in the poultry department. Shortly after the above interview he was returned to the wholesale milk truck which he had been driving when Schooley had given him the Springfield run 2° 4. Surveillance of the union meeting of May 11 and events thereafter On the evening of May 11, the Union held a meeting in a hall in the business district of Dodge City. While employees of the respondent were entering the hall, Manager Evert went past the entrance to the hall at least four times in an automobile which was being driven slowly by a woman. Also, for at least 45 minutes while the employees were entering the hall, Foreman Schooley, R. L. Speck, the respondent's office manager, and Ed Thorp, foreman of the poultry and egg department, sat in Schooley's automobile which was parked across the street from the hall. It was still light at the time that the employees were assembling. When Richardson reached the hall, Lawrence Black, who was standing at the door, asked him if he knew that they were being checked, pointing out the car across the street. Richardson went over to the car and asked Schooley and Speck if they were checking on the employees. Schooley replied that they were just sitting there but Office Manager Speck said, " «;e are checking theiu." The foregoing facts, based upon an analysis of the testimony of many wit- nesses,21 are not in substantial dispute. Evert testified that he had not known that a union meeting was taking place; that he did not remember what he was doing on the evening of May 11 ; that the meeting place was located between the plant and his home ; that one of the ways to go from his home to the plant was past the hall ; that his wife sometimes drove the car ; and that he sometimes would go from his home to the plant as many as four times in one evening. The explana- tion of Schooley, Speck, and Thorp for their admitted presence across from the hall that evening was that upon leaving the plant together after finishing some evening work, they had stopped for it "coke," parking the car across from' the hall which was about a block from the drug store, and that upon returning to the car after getting their cokes, they had just sat there from 30 to 45 minutes be- cause they had seen a number of the respondent's employees across the street and had thought that they might be missing something.22 Speck explained his admission to Richardson that they were checking as just a friendly "wisecrack" the meaning of which he did not know. While Schooley, Speck, and Thorp de- nied that they had known that a union meeting was being held and also denied that they had made any reports of their observations, Thorp did not deny having the conversation, set out below, with Dorothy Williams on the following day in which he told her that he had seen her at the meeting and had questioned her about the Union. On the whole, the explanations of the respondent's witnesses were not convinc- ing. The place of the meeting was some 4 or 5 blocks from the plant, and the business district of Dodge City, a city of some 10,000 population, is about 4 blocks long and 3 blocks wide. Under all of the circumstances, mere coinci- dence is not a reasonable explanation of what transpired on the evening of May 11. Viewed in the light of the respondent's above set forth inquiries about and 20 Schooley testified that Barnes had asked him for a country run and that he had put him on the Springfield run. Schooley's explanation for not returning Barnes to the Spring- field run was that they had decided they "would just leave Mayfield on this truck." Mayfield's dislike of that work is discussed above. 21 The witnesses who testified concerning the above matter were Evert, Schooley, Speck, Thorp , Richardson, Black, Bennett, Springer , Dorothy Williams and Olive Owston. 22 Thorp testified : "The boys ... had seen some of the employees on the other side of the street . . . so they decided to sit and watch and see what was going on over there." THE FAIRMONT CREAMERY COMPANY 85 expressed opposition to the Union , the undersigned is convinced and finds that on the evening of May 11, the respondent , by the above activities of Evert, Schooley, Speck, and Thorp, kept the union meeting under surveillance. The next morning, Foreman Thorp told Dorothy Williams that he had seen, her at the above meeting and asked if she had joined the Union . Williams said that she had only attended the meeting . Thorp said that if she had not joined she should give him her "little receipt" which she was supposed to have received. Williams said that she had not received any receipt and that they had just had people sign a paper at the meeting . Thorp then asked Williams if she did not know that unions were "all a fake" and made erroneous promises as to working hours. Two days later, Thorp again asked Williams if she had joined the Union. Later that same day Thorp talked with Williams and told her that he wanted her to keep , the Union quiet as there was too much going on around there. On the morning following the above union meeting, Foreman Carey told Betty Winsor in a conversation at the plant that the Union was just a racket to get her money ; that Al Capone's racket had been illegal but that now someone had figured out how they could carry on the same thing legally. About May 14, or 15, Foreman Carey called a meeting in the butter room of all of the girls working in the creamery. Carey told the approximately 20 girls thus assembled that Evert had told him to inform them that they would not lose their jobs if they did not join the Union ; that after all, the war was being fought for freedom and not to have someone come in and tell them what to do ; that usually employees working for a company , rather than going to "some- one outside" when there were things they did not like, would go to the man- agement which would try to "better things" ; and that the Union was not patriotic and was not helping the boys in service. 24 On the morning of May 15, Barnes was sent to Evert's office where he found Evert and seven "department heads." 25 After some questioning about the time at which Barnes came on and went off duty, Evert said that he had learned that Barnes had been doing quite a bit of talking about the Union while on duty. Barnes admitted that he had discussed the Union during working hours.' Evert asked Barnes what he was "trying to pull" and Barnes said that he did not know that he was trying to pull anything . Evert then called Barnes obscene names 29 Evidently the reference was to a union application blank 24 The above findings are made upon the testimony of Bennett ; Springer ; Winsor; and Owston, considered in the light of the statements set out hereinabove which Carey had made shortly before to Bennett, Springer , and Winsor . As to , the calling of the meeting, Carey testified that three employees had asked him if they would lose their jobs if they did not join the Union as they had been informed would happen ; that he had asked Evert's advice about the matter; and that Evert had told him, to call the meeting and assure the employees that they could have their jobs whether or not they joined the Union. Carey testified that he also told the girls that it made no difference to the respondent what they did about joining the Union ; that the respondent was interested only in keeping up war production, and that since the war was to protect freedom he did not think they should have to do anything they did not want to do. In view of the respondent's attitude toward the Union as revealed throughout this report and Carey's own previous statements about the Union, the undersigned does not believe that Carey's version reflects accurately or fully what transpired at the meeting. 2. They were Schooley, Carey, Speck, Peterson, Guy Salyers, Don Crilly, and Homer Lake. 20 At the hearing, Evert testified that Carey had reported Barnes for engaging in union activities on the respondent 's time and property and that he had called Barnes in because such activity was interfering with work in the milk department where the volume of work was heavy In his testimony , Barnes admitted that he had been discussing union matters and doing some soliciting during working hours for a period of about 2 weeks prior to the above occasion Only Barnes and Evert testified about the above incident The remarks which Evert is found in the above paragraph subsequently to have made are based on uncontradicted testimony of Barnes which the undersigned credits. 86 DECISION'S OF NATIONAL LABOR RELATIONS BOARD which he said applied to the rest of them ; said that he ought to knock Barnes' "block off" if he was seen talking to anyone while on duty ; that the others present ought to do likewise ; that Barnes should get out and go back to work before he took a swing at him; and that "the next time" he would be fired. 27 Barnes was not discharged but returned to work. Assuming that Barnes was in error in engaging in union activities during working time and conceding that the respondent was within its rights in reprimanding him for such activity, the undersigned is convinced and finds from the surrounding circumstances and the vigor of Evert's language, that the incident constituted not only a reprimand of Barnes but a demonstration of the intensity of the respondent's antipathy toward the Union. - About the middle of May or shortly thereafter, Manager Evert went to the Pay Day Market to see Ivan Hibbard, mentioned above. Evert accused Hibbard of having stopped one of the respondent's trucks at the market, tying it up while he signed up the driver in the Union ze After some argument, during which Hibbard denied signing up the driver, Evert asked Hibbard to call his father. Evert then told the older Hibbard that he would have to do something to stop his son's union activity. Hibbard replied that his son was not inter- ested in the Pay Day Market except as -an employee, and that, while he would prefer that his son not have anything to do with the Union, there was nothing that he could do about it. Evert said that if Hibbard did-not get his son to stop his union activities and his interference with the respondent' s business that the Pay Day Market and the respondent, which were then each customers of the other, would have to sever their business relationship. Hibbard did not give the desired assurances. Thereafter, the respondent ceased to sell its prod- ucts to and to purchase produce from the Pay Day Market. About May 17, the respondent discontinued its practice of permitting its employees to leave its property during the 10-minute rest periods in mid-morning and mid-afternoon. For several months prior thereto, it had been the custom for some of the employees to go for refreshments to two cafes less than a block from the plant. Thereafter, the employees were not permitted to leave the dock during their rest periods, the respondent furnishing them with chocolate milk at the plant. Evert testified that he considered the two 10-minute rest periods "company time," and that the practice had been changed not because of the Union but because some employees had been returning late from the cafes which had not been able to take care of the employees during the 10-minute periods. Under the date of May 20, 1343, and over his signature as "Manager" of the respondent, Evert posted a notice addressed, "To all Fairmont Employees :" which read as follows : Conversations or Activities on Company time or property, except those necessary to perform our regular work, interfere with production. Our contribution to the war effort necessitates full production of the vital foods we process. 21 It was the afternoon of that same day that Lawrence Black was discharged under con- ditions discussed in the succeeding division of this report. 21 Evert testified that he had seen Hibbard's name on a membership blank which employee Hermann had handed him when he had asked Hermann if he had Joined the Union, and that Hermann had told him that Hibbard had signed him up on a trip back Evert also testified that he had not asked Hermann how long it had taken to sign him up and that Hermann bad not told him where the truck was when he had signed. Evert also testified that his purpose in going to Hibbard was to get him to stop interfering with the respondent's trucks. THE FAIRMONT CREAMERY COMPANY 87 You are requested to assist in enforcing our standing rule, which prohibits such interruption of production. As to the respondent's "standing rule," Evert testified that about 2% years previously a notice forbidding solicitation had been posted ; that under it such solicitors as insurance agents and magazine salesmen had been prohibited from going about the plant ; that solicitation for such worthy causes as the Red Cross had been officially handled by the respondent ; that employees were not permitted to be called from their work except for such important matters as sickness ; that there were no objections to employees talking while they worked if it did not interfere with production ; but that he did not see how a lot of people talking could do other than interfere. The undersigned was convinced by the general testimony of witnesses for the respondent that a substantial amount of union activity had been taking place during working hours. However, assuming that the respondent was justified in promulgating a rule restricting conversations and activities taking place on working time, it is clear that the notice posted exceeded such limits. Further, the respondent's change in the rest period prac- tice confined its employees to company property during the rest periods which periods themselves were treated as company time The Board has held in Peyton Packing Company m that the Act does not pre- vent an employer from making and enforcing reasonable rules concerning the conduct of employees on company time, if such rules are not adopted for a dis- criminatory purpose. However, the Board also held in that case that, in the absence of special circumstances, "time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on com- pany property." On its face, the respondent's notice of May 20 exceeded the limitations laid down by the Board. Further, the undersigned is convinced and finds from all of the evidence that the respondent changed its rest period prac- tice in order to confine its employees to its property as a part of its plan to limit their discussions as to union affairs in order to thwart the Union's cam- paign to organize them. However, in spite of the surrounding circumstances which raise doubt as to the respondent's motive for posting its notice, since there is some evidence that union activity has taken place during working hours and that such activity interfered to some extent with production, the undersigned does not find that the notice of May 20 violated the Act insofar as it pertained to actual working time. On the other hand, insofar as it went beyond actual working time in its restrictions, the undersigned finds that the notice exceeded the limitation of reasonableness and necessity, and accordingly constituted inter- ference with the rights guaranteed the respondent's employees by the Act. About May 26, Foreman Carey took Olive Owston off her work as operator of the bottler, 'o one of the key positions in the creamery, and put her to work washing cans. Owston protested her transfer and told Carey that he was not treating her right ; that he had said himself that she was capable ; and that if the Union got in it would see that the oldest employee got his rightful job. Carey asked Owston if she thought that she had been treating him right and if she did not know that the Union would not get her anywhere. Carey said that all the Union wanted was money and that the respondent had got along up to then without someone coming in and running its business and could get along thereafter. After showing Owston some clippings about coal strikes, Carey told her that if she changed her mind and wanted to do like she was supposed to and " Matter of Peyton Packing Company, Inc., 49 N. L. R. B. 828. 80 Owston had been given that position on May 8 when Dye had been discharged. 88 DECISIONS OF NIATIONAL' LABOR RELATIONS EGARD keep her mind on her work, he would give her a better jab. Owston continued washing cans for 1 day and was then put in charge of a mix-making crew in the ice-cream department. Carey testified that he had taken Owston off her work on the bottler because she was neglecting her work there and that he had put her in charge of a mix- making crew in the ice-cream department because he had planned that for her all along, since the respondent was having to replace men with girls in that department. Carey did not deny having the above conversation with Owston at the time he put her to washing cans, nor did he explain why a worker too unde- pendable to be left on the bottler was qualified to be placed in charge of a mix- making crew. From the circumstances surrounding the incident, the under- signed finds that Owston was put to washing cans for 1 day as a part of the respondent's campaign to convince its employees that the Union would not be beneficial to them .n 5. Conclusions as to the respondent's activities At the hearing, the respondent's witnesses did not contradict substantial parts of the evidence upon which in this section of the report findings as to conversations about the Union between supervisors and employees are based. In its oral argu- ment and its brief, the respondent had taken, in effect, the position, citing a number of cases in support thereof, that such conversations as took place were within the scope of the respondent's right to freedom of speech as interpreted by the courts ; that the testimony as a whole shows that the respondent was maintaining a neutral attitude; and that such unprintable vulgar language as was used by Evert was excusable because the respondent was attempting to maintain production in the face of activities by the Union which were interfering therewith. Upon due consideration, the undersigned rejects the above contentions. Such activity on behalf of the Union as was taking place cannot excuse the vigor of such language as Evert used in reprimanding Barnes. Evert's language on that occasion clearly revealed the respondent's antipathy to the Union. Nor does what actually transpired during the substantial number of conversations held' by the respondent's manager and foremen with employees establish a neutral attitude on the part of the respondent. On the contrary, those conversations show a design on the respondent's part to probe into the membership and activi- ties of the Union by initiating conversations and eliciting information. They also show a design to dissuade employees from union affiliation and activities by strong arguments against the Union and disparagement thereof. Further, the respondent reinforced its verbal campaign against the Union by assigning unde- sirable work to certain employees with whom it had discussed the Union. In addition, the respondent kept a meeting of the Union under surveillance and unreasonably interfered with the right of its employees to discuss the Union by changing its rest period practices and by forbidding all discussion on company property, not confining its notice to workmg time. Where conversations are so clearly a part of a pattern of vigorous activity against the Union as'the conver- sations herein are shown by the record to have been, such conversations cannot 31 Concerning the transfer of Owston to can washing , as was true of the above discussed changes in assignments of Barnes and Mayfield , there was no allegation in the complaint as to violation of Section 8 (3) of the Act. The treatment of those three employees was developed at the hearing as a part of the evidence as to the respondent 's interference. restraint, and coercion It is clear and the undersigned finds that from its treatment of Owston, Barnes, and Mayfield that the respondent was using actions to emphasize its words in, conveying to its employees Its disapproval of the Union. THE FAIRMONT CREAMERY COMPANY 89 be divorced from their setting and, in segmentation , justified on the grounds of freedom of speech. On the entire record, the undersigned finds that those allegations of the com- plaint set out above in the first part of the second paragraph of this report are sustained by the evidence. The undersigned further finds that, by the various activities set out above in this section of this report, the respondent has inter- fered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharges 1. Victor McDaniel In its amended answer, the respondent alleged that McDaniel was discharged on May 8, 1943, because he was an unsatisfactory workman, refused to accept work tendered him, did not apply himself while on duty, and had an outside interest which caused excessive absences . The only evidence which the respondent introduced concerned McDaniel's absences. McDaniel was employed in the hatchery and had a small acreage upon which he did some farming and kept livestock and chickens. From time to time, Mc- Daniel secured time off through his foreman, Floyd Harris, to take care of work on his acreage. He never took time off without first securing permission. The busy season at the hatchery begins about February of each year and runs through June. During this busy season the employees work 7 days a week. During the busy season of 1943, McDaniel had a half day off in February , a half day in March, 2 full days in April, and a half day in May . It was the fact that McDaniel took off Saturday, May 8, which was the occasion of his discharge. About May 6, McDaniel asked Foreman Harris if he could have a day off the last of that week to haul feed for his livestock. Harris said that either Friday or Saturday would be satisfactory. McDaniel said that he would take Saturday. Harris gave McDaniel the whole day Saturday, not asking him to return if he got through hauling feed. Saturday morning McDaniel went to a nearby town and secured a load of feed. He returned to Dodge City and went down town about noon to get some things. About 1 o'clock, he went to the respondent's plant to get some grain which he had purchased. In the meantime, Evert had learned from Foreman Harris that McDaniel had secured the day, off to haul feed. Evert had also received word that McDaniel had been seen uptown. Evert thought that McDaniel was not hauling feed but was just taking Saturday afternoon off, so he sent for him. When McDaniel arrived at Evert's office, Evert told McDaniel that he would not be able to use him anymore because he was not doing what he had asked for time off to do, and because he was taking too much time off." In its brief, the respondent contends that "absenteeism can only be cured by the discharge of the worse offenders." Yet Evert admitted that no comparative study of absences had been made to determine which employees had been the worse offenders. The respondent has discharged only three employees for ab- sences, McDaniel, Dye, and one other employee about whose discharge the record contains no details McDaniel and Dye were discharged on May 8 and 10, respec- tively, in the midst of the respondent's activities against the Union. Clearly McDaniel was absent very little during the preceding several months, especially for an employee working 7 days a week and attempting to take care of an acreage. 32 At one point in his testimony, McDaniel admitted that he was taking more time than was necessary to haul feed. Evert testified that McDaniel told him when he discharged him that he had finished hauling feed about 1 o'clock, but that he had some other unfinished business. 90 DECTSlON'S OF NATIONAL LABOR RELATIONS BOARD Foreman Harris testified that McDaniel had never taken time off without per- mission; that he had never recommended McDaniel's discharge to Evert; that he had never told McDaniel that he would have to discharge him for taking time off; and that he had retained McDaniel in spite of his requests for time off because a trained hatchery man was hard to replace. Evert testified that he had never personally warned McDaniel about taking time off during his last period of em- ployment, which began in August 1942. McDaniel had joined the Union about April 23, and had talked with other em- ployees about their joining the Union. Clearly at the time McDaniel was dis- charged, the respondent was actively probing the affairs of the Union. The morning of May 8, a few hours before he was discharged, McDaniel's foreman had asked another employee in the hatchery if McDaniel was "pushing" the Union and had stated that he had heard that he was. Two days later, on May 10, Manager Evert told employee Barnes that he had had no trouble with Barnes about being absent so that he could not "get" him on that. Under all the circumstances, the undersigned rejects the respondent's conten- tions that it discharged McDaniel because of his absences and was unaware of his union affiliation at the time of his discharge. On all the evidence, the under- signed infers and finds that the respondent was seeking pretexts upon which to discipline and discharge adherents of the Union and that it discharged McDaniel because it believed his absences afforded it a pretext for ridding itself of an em- ployee whom it had heard was "pushing" the Union. 2. Ardis Dye The respondent's answer as amended alleged that Dye was discharged because her work was unsatisfactory ; she lacked interest in her work ; and she was absent excessively, a large part of the time without notice. The respondent introduced no evidence that there was anything unsatisfactory about Dye's work other than her absences. For several months prior to her discharge shortly before 9 o'clock on Monday morning, May 10, Dye had operated the bottler in the creamery. This was a responsible position, and in January Dye had received an increase from 37% to 42 cents an hour. A few days before her discharge, Assistant Foreman Briggs had praised Dye's work, telling her that she was one of the oldest girls in the department and the most highly paid and that he wanted her to help instruct new girls. At various times, Dye's foreman, Carey, told her that he wished the other girls would take as much interest and do their work as well as she did. Carey testified that Dye volunteered to work on Sundays ; that she was efficient ; that he got along well with her ; and that she was good at caring for incidental matters and getting other workers to keep the machines in operation. When the respondent hired Dye in November 1942, it knew that she had two small children who required her care,* and that arrangements would have to be made for her to go to Denver for about a week to settle business matters. The first part of December, Dye was given permission to go to Denver. While her business there took about 2 days longer than she had expected, she returned to work without reprimand. Later, about the middle of March 1943, Dye arranged with Foreman Carey to take 3 days off in order to take her baby to her mother, who lived in a city some distance away. Dye's sister with whom she then lived in Dodge City was at that time ill and unable longer to care for the baby. Again, on Saturday, April 24, Dye told Carey that her mother had written explaining that because of complications she could no longer take care of the as Dye, whose former husband has been in the armed services since the fall of 1942, has a daughter 3 i years old and a baby about a year and a half old. THE FAIRMONT CREAMERY COMPANY 91 baby. Dye said that she would have to have some time off to go to her mother's home and make other arrangements. Carey told her that she could take a few days, not specifying the time. Dye said that she would be back Wednesday or inform him of the situation. Tuesday Dye made a long distance call to her sister in Dodge City who in turn called Carey and informed him that Dye had been able to find a home for the baby but was staying a few days to be sure the new home was satisfactory. Dye returned to work Saturday, May 1, having been absent from work 5 days. The undersigned finds that the above absences were not considered by the respondent at the time they occurred to have been anything other than legitimate excused absences. On Saturday, May 8, Dye asked her room mate, Olive Owston, to tell Fore- man Carey that she would not be in to work that day until the 12: 45 p. in. train left, as she had a friend on military leave who was taking that train. Owston actually told Carey that Dye would not be in until noon , not mention- ing that her coming was conditioned upon when the train left. The train did not actually leave until about 2:30 p. in., and Dye did not go to work at all on May 8." About 1: 30 that afternoon, Owston asked Carey if Dye had come in to work yet. Carey replied that she had not and accused Owston of having known that she was not going to come. That Saturday night, Foreman Briggs saw Dye along with other employees at the Pay Day Market'' When Dye came to work Sunday morning, she tried to explain her absence to Carey who cut her off with the remark that it was getting so that he could not believe a word she said. Dye worked the rest of that day and about 45 minutes the next morning. However, shortly before 9 o'clock on May 10, Carey, who had been instructed by Evert to discharge her, told Dye that they were letting her go because she had been absent from work too much 8° Dye joined the Union on May 6. She started soliciting memberships on May 7; within a few days she had secured 15 applications for the Union. Before her discharge on May 10, Dye secured applications from some girls in a car before going into the plant and other applications upstairs in the plant before checking in that morning.' The same morning Dye was discharged, Evert told employee Barnes that they could not "get" him for being absent. About 2 weeks after Dye's discharge, Foreman Carey told employee Katherine Sharps that he would bet that Dye would not get her job back "after stirring up all that trouble." 's Assuming that Dye was in error in the way in which she laid off all day on May 8, the undersigned does not believe that this error was the real reason for her discharge, especially in view of her previous record of satisfactory services and the admitted labor shortage in Dodge City. From all the circumstances, the undersigned infers and finds that the respondent rather seized upon Dye's 1 day lay-off as a pretext to rid itself of an employee whom it had learned was an active solicitor for the Union. 34 If Dye had worked that Saturday, her hours would have been from 8 a. in. to 5 p. in. with such additional hours up to 8: 30 p. in. as she might have been needed. 3' As is related above, Manager Evert asked Richardson the following Monday about a union meeting which was supposed to have been held that Saturday night. 90 The reason given on Dye's "Termination of Employment" was : "Outside interest making her absent from work when needed." 87 Two of those whom Dye signed up that morning were Bennett and Springer, the two soldiers' wives with whom Foremen Carey had a talk that day about the Union, as is set out above. 38 This finding is made upon the testimony of Sharps , a witness called by the respondent. At one point in her testimony, Sharps explained the "trouble" as Dye's trying to "get every- body to sign up" with the Union and delaying work. Later she testified that the trouble lnvoived was the filing of charges with the Board against the respondent. Carey testified that he had told Sharps that Dye would'not be reemployed because of "the mess that she had stirred up," referring to the charges filed against the respondent. 92 DECPSIONS OF NATIONAL LABOR RE'LATIONIS BOARD 3. Lawrence Black The respondent's answer as amended alleged that Black was discharged for failure to perform his work satisfactorily, wasting time, and improperly devoting working time to matters other than the respondent's business. On May 14, Black secured about five union applications from Richardson. He put them in a billfold which had been furnished by the respondent. Black cus- tomarily kept his personal possessions as well as business papers in that billfold 8D Early the next morning, Black put his bills of lading in his billfold and drove his _ truck to a branch of the respondent in Liberal, Kansas. Around 6 o'clock the morning of May 15, Black reached the Liberal branch and gave the bills of lading to Dub Wilks, the branch manager. Wilks thereafter found the application 'blanks in the bills of lading and telephoned Manager Evert about them. Evert told Wilks to drive the truck back to Dodge City and bring Black with him. In the meantime Wilks had sent Black and another employee to, the air base in Liberal. When they returned Wilks asked Black about the applications. Black was surprised that Wilks had the blanks and said that they were personal property which he had had in his billfold. Wilks said that he thought that they were for him. Black replied that he could have them if he wanted them.40 Thereupon Wilks drove the truck to Dodge City, taking Black with him. During the afternoon of May 15, a conference was held in the respondent's Dodge City office. Since several representatives of management were present, Black secured two employees, one of whom was Roy Barnes,' to act as his wit- nesses. Evert, informed Black that he was being discharged and read from a "Termination of Employment" blank as the reason that Black had been transport- ing material other than company property.92 Black asked that what he was carrying be inserted on the blank. Evert said that that was not necessary and that it might have been liquor. He also said that those present knew what Black was carrying. Black said that it was the union application blanks which were then lying on top of his application for employment. Evert made no denial and 2° There is no evidence that the respondent objected to drivers keeping their personal possessions in such billfolds. 40 The findings as to the conversation between Black and Wilks are made upon testimony of Black which the undersigned credits. According to Black, the union applications had apparently become mixed in with the bills of lading when he had put them in his billfold and be had not known that they were so intermingled when be gave the bills of lading to Wilks. Wilks testified that Black was surprised when he asked him about the applications after Black had returned from the trip to the airport Both Wilks and Evert testified that they had had only one telephone conversation about 7 o'clock that morning. The under- signed is convinced that the conversation on the telephone took place before Black returned from the airport and was questioned by Wilks about the blanks. Accordingly the under- signed does not credit the testimony of Evert that during their telephone conversation Wilks told him that Black had said that Wilks was supposed to get the applications signed and return them to Dodge City. According to Wilks, Black made such a remark but not until after Wilks and Evert had held their telephone conversation. 41 Evert's vigorous and obscene reprimand of Barnes earlier that day is set out above. 42 The respondent introduced in evidence an unsigned "Termination of Employment" blank which contains an X before the nord "Misconduct" and another X before the words "Work Unsatisfactory." The reason for the termination typed in the space provided therefor reads : Termination of Employment brought about on account of Employee Transporting other than company Material, Goods and or commodities. Performing other than company activities and or business while on duty and in the employ of the Company and receiving pay for the same. THE FAIRMO'NT CREAMERY COMPANY 93 said that they did not know whether they could "make it stick" but that they could try to. After Black had been reminded of a note which he owed the respondent, Evert said to him, "I can't see why we can't get along." Black replied that it looked as if they would thereafter." The respondent introduced evidence that at previous times Black had been reluctant to take certain assignments, had failed on one occasion to pick up milk bottles and equipment at a hotel as he should have done, and was found playing a pinball machine one day while on a truck route. Black admitted that he had played the pinball machine, gave a reasonable explanation for his not wanting certain assignments, and denied permitting bottles and materials to accumulate. None of the above matters was mentioned at the time of his discharge. The under- signed finds that none of them had any material bearing on Black's discharge. Black admittedly had spent some 15 minutes talking with another employee about the Union while loading a truck. The respondent had learned of that discussion. However, that incident was not mentioned at the time Black was discharged and Barnes, who admitted similar activity the morning of May 15, was not discharged for it. Further, the respondent's notice of May 20, above discussed, had not been posted at the time of Black's discharge. Black had joined the Union about April 23, and had been present in front of the union hall the evening of the meeting on May 11" The respondent had received at least one report of solicitation by Black and it knew that be had union applications in his possession when he arrived at Liberal. The fact that Black had carried those applications along with other personal property in the respond- ent's billfold on his trip to Liberal and had inadvertently given them along with the bills of lading to the Liberal branch manager, thus afforded the respondent a pretext but not a substantial reason for Black's discharge. From the'record as a whole, the undersigned finds that the respondent had no substantial reason for discharging Black but seized upon the above pretext to afford a means of ridding itself of a third employee whom it knew to be actively engaged in solicita- tion for the Union. 4. Conclusions as to the discharges The undersigned finds that the respondent discharged Victor McDaniel on May 3, 1943, Ardis Dye on May 10, 1943, and Lawrence Black on May 17, 1943, and has since refused to reinstate them, not because of the reasons alleged by the respondent, but because they joined and assisted the Union. The under- signed further finds that by its discharge and refusal to reinstate McDaniel, Dye, and Black, the respondent had discriminated in regard to their hire and tenure of employment, and has thereby discouraged membership in the Union, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Sec- tion III above, occurring in connection with the operations of the respondent 93 The above findings are made upon testimony of Black and Barnes which the undersigned credits. Only Evert testified for the respondent concerning the above conference and his testimony is not in substantial conflict with that of Black and Barnes. 44 Richardson had gone over to the car containing the three foremen as the result of Black's asking him if he knew they were being checked. ,94 DEICTSIONS OF NATIONAL LABOR RELATIONS BOAIRD 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 Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. Having found that the respondent discriminatorily discharged Victor Mc- Daniel, Ardis Dye, and Lawrence Black and refused to reinstate them, the undersigned will recommend that the respondent offer McDaniel, Dye, and Black, immediate and full reinstatement to their former or substantially equivalent employment, without prejudice to their seniority or other rights or privileges. The undersigned will also recommend that the respondent make whole each of them for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to each of a sum of money equal to that which he normally would have earned, as wages from the date of his dis- charge to the date of the respondent's offer of reinstatement, less his net earn- ings a during said period. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : - CONCLUSIONS OF LAW 1. Chauffeurs, Teamsters, and Helpers, Local #795, of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Victor McDaniel, Ardis Dye, and Lawrence Black, and thereby discouraging member- ship in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining and coercing its employees in the exer- cise 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. 4. 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, The Fairmont Creamery Company, its officers, agents, successors, and assigns shall : 4513y "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county , municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B. 311, U. S. 7. THE FAIRMONT CREAMERY COMPANY 95 1. Cease and desist from : (a) Discouraging membership in Chauffeurs, Teamsters and Helpers Local #795 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor or any other labor organization of its employees, by discriminating in regard to the hire and tenure of employment of its employees, or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their 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 purpose 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 undersigned finds will effectuate the policies of the Act: (a) Offer to Victor McDaniel, Ardis Dye, and Lawrence Black immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights or privileges ; (b) Make whole Victor McDaniel, Ardis Dye and Lawrence Black for any loss of pay each may have suffered by reason of the respondent's discrimina- tion against him by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings 06 during said period ; (c) Post immediately in conspicuous places throughout its plant at Dodge City, Kansas, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices stating that: (1) the respondent will not engage in the conduct from which it has been recommended that it cease and desist in para- graph 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recom- mendations; (3) that the respondent's employees are free to become or remain members of Chauffeurs, Teamsters and Helpers, Local #795, of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor, and that the respondent will not dis- criminate against any employee because of membership or activity in that organi- zation ; and (4) that the respondent's employes are free to discuss matters of self-organization upon the respondent's property so long as such discussion does not take place during actual working time ; (d) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. 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, 1924-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, Rochambeau Building, Washing- ton, D. C., an original and four copies of a statement in writing setting forth 40 See footnote 45, supra. 96 ' DEICIISJONS OF NATIONAL LABOR RMATIOMS BOARD 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 four copies of a brief in support thereof. As fur- ther 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. EARL S. Bnr.LMAN, Trial Examiner. Dated July 15, 1943.