F. M. Stamper Co.

In the Matter of F. M. STAMPER COMPANY and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKDIEN OED NORTH AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. 17-C-908.-Decided January 5, 1944 Mr. Eugene R. Melson and Mrs. Margaret L. Fassig, for the Board. Cobb, Logan, Ross, and Armstrong, of St: Louis, Mo., by Mr. George B. Logan and Mr. Wallace Cooper, and Mr. Lawrence Holonan, of Moberly, Mo., for the respondent. Mr. J. L . Wilson, of Kansas City, Kans., for the Union. Langsdale, Langsdale eC Langsdale, of Kansas City, Mo., by Mr. John J. Manning, for the International Brotherhood of Teamsters. Mr. Gerard J. Manack, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed on May 4,1943, by Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the American Federation of Labor, herein called the Union , the Na- tional Labor Relations, Board, herein called the Board, by its Re- gional Director for the Seventeenth Region (Kansas City,'Missouri), issued its complaint dated May 6, 1943 , against F. M. Stamper Corn- pany, Moberly, Missouri , herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor prac- tices 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. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices , the complaint alleged that the respondent : ( 1) on or about January 20 , 1942, and con- tinuously thereafter , failed and refused to reemploy Mrs. Ora June Archer, a former employee, because of her membership in and activities on behalf of the Union ; (2) on or about October 13, 1942, terminated the employment of Roy H. Asbury, and continuously thereafter failed 54 N. I. R. B., No. 39. 297 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and refused to reinstate him, in order to discourage membership in and activities on behalf of the Union; (3) on various dates between January 31 and February 21, 1942, laid off 99 named employees, sub- stantially reduced operations at its Moberly, Missouri, plant, and di- verted production therefrom, in order to discourage membership in and activities on behalf of the Union; and (4) by the foregoing acts and by (a) statements and speeches prejudicial to and disparaging of the Union, and defamatory of the members and leaders thereof, (b) causing its employees to be quizzed, watched, and spied upon to obtain information as to Union affiliation and activity, (c) threatening to discharge those employees affiliated, or seeking affiliation, with the Union, (d) threatening to close its Moberly, Missouri, plant if the em- ployees.affiliated with the Union, (e) discriminating in the allotment of work against those employees affiliated, or seeking affiliation, with the Union, (f) requesting employees to refrain from becoming or remaining members in the Union, (g) instigating or permitting the solicitation of its employees for signatures to petitions and statements disparaging and prejudicial to the Union, (h) granting blanket pay increases to its employees at times and under conditions calculated to interfere with, thwart, and obstruct the organizational efforts of its employees, and (i) informing employees to disregard a notice posted in settlement of prior unfair labor practice charges filed with the Board, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent thereafter filed an answer admitting certain allegations of the complaint as to its business, but denying the unfair labor practices alleged. Pursuant to notice, a hearing was held on August 2, 3, 4, and 5, 1943, at Moberly, Missouri, before Walter Wilbur, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, the Union, and the International Brotherhood of Teamsters, herein called the Teamsters,) were represented and participated in the hear- ing. 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 conclusion of the Board's case and again at the close of the hearing, the respondent moved to strike all testimony tending to prove that the respondent had engaged in unfair labor practices antedating November 27, 1941, the effective date of a settlement agreement between the respondent and the Board. The motions were denied. During the course of the hearing, rulings were made by the Trial Examiner on various other motions and on objec- 1 The Teamsters appeared at and participated in the hearing , filed exceptions to the Intermediate Report and a supporting brief, and participated in the oral argument before the Board at Washington, D. C, all without objection from the parties hereto. The record,, honever, does not disclose its interest in the proceeding. F. M. STAMPER COMPANY 299 tions to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner made during the course of the hearing, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 13, 1943, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found 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 Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. He further recommended that the complaint be dismissed insofar as it alleged that the respond- ent violated Section 8 (1) and (3) of the Act by the discharge of Roy H. Asbury, the lay-offs between January 31, 1942, and February 21, 1942, and the granting of wage increases to its employees. On September 27 and 30, 1943, the Teamsters and the Union, re- spectively, filed exceptions to the Intermediate Report, and briefs in support of the exceptions. Pursuant to notice, a hearing for the pur- pose of oral argument was held on October 19, 1943, before the Board at Washington, D. C. The respondent and the Teamsters were rep- resented by counsel and participated in the hearing. The Board has considered the exceptions and briefs filed by the Union and the Teamsters and, insofar as the exceptions are inconsistent 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 a 1. THE BUSINESS OF THE RESPONDENT The respondent, a Missouri corporation, with its principal office at Moberly, Missouri, is engaged in the business of processing, dis- tributing, and selling poultry, eggs, and related products. In the course of its business, the respondent operates approximately 16 proc- essing plants in the States of Missouri, Arkansas, Kentucky, and Tennessee, including the plant at Moberly, Missouri, which is in- volved in this proceeding. Approximately 90 percent of the respond- ent's products are sold, transported, and delivered into and through States outside the State of Missouri. During 1942, the respondent processed at its Moberly plant products valued in excess of $100,000. 'Unless other ise indicated , all findings of fact herein are based upon undisputed evidence. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - II. THE ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America is a labor organization affiliated with the American Fed- eration of Labor, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. - Operations of the Moberly Plant Prior to 1941, the plant at -Moberly was typical of the plants in the respondent's system. It was engaged in the business of buying and selling, in wholesale quantities, poultry, eggs and dairy products. Its supplies were drawn from a specific area which was serviced by a fleet of trucks operated from the plant on regular routes to dealers within the area. Both the poultry and egg business were seasonal, with corresponding fluctuations in the need for labor. Egg produc- tion was heaviest from March to May; poultry marketing from Au- gust to December, with a special turkey season in November and December. Live pojiltry was brought to the plant, weighed, fed for a day or two in "batteries" or holding coops, killed, dressed, pre- cooled for shipment, and shipped in boxes or barrels to the respond- ent's concentration plant at St. Louis. Eggs were brought to the plant in cases, inspected by candling, and either graded for marketing as shell eggs, or broken, the whites and yolks separated, packed in 30- pound cans, and frozen. Prior to May 1941, the market for liquid eggs 3 was seasonal and limited to bakeries and a few other trades. During 1940 and the early part of 1941, the Government had been exporting shell eggs, under lend-lease arrangements, with unsatis- factory results because of lack of special equipment. Beginning in May 1941, an attempt was made for about 3 months to export liquid eggs. During this period, the respondent broke and froze a large quantity of eggs for the Government to export. Liquid eggs required less cargo space but the shortage of freezer space made the effort equally unsuccessful. The Federal Security Corporation Commis- sion, herein called FSCC, which handled shipments of food products under lend-lease, then decided to try exporting dehydrated eggs. There were then only four or five plants in the United States pro- ducing dried eggs and these supplied only seasonal demands. The FSCC therefore appealed to the industry generally to install egg- drying equipment. In response to the appeal, the respondent obtained the use of a milk-drying plant at Marshall, Missouri, where the respondent oper- ated a poultry plant, and there, on August 14, 1941, began experi- 8 By liquid eggs is meant eggs removed from shells. F. M. STAMPER COMPANY 301 mentally to dehydrate eggs. When the experiment proved to be suc- cessful, the respondent arranged for the part-time use of the milk plant until November, 1941, and thereafter for its full-time use, and commenced the dehydration of eggs for the Government . During the experimental period, the eggs were broken at the Moberly plant and hauled to Marshall in liquid form. In the latter part of Octo- ber 1941, however; the respondent opened and equipped a breaking room in the milk plant at Marshall, and thereafter all eggs dried at the Marshall plant were purchased in the Marshall territory and broken at the Marshall plant. In addition , eggs were occasionally brought in from the respondent's Carrolton and Boonville ter- ritories.4 At about the same time , the respondent contracted for the instal, lation of drying equipment in its Moberly plant , to be ready for operation by December 20, 1941. In anticipation of this operation, the respondent , on October 24, 1941, discontinued the breaking of eggs at Moberly and temporarily laid off the employees in the egg- breaking room. It then began to accumulate eggs for the dryer, using its own and other Moberly refrigerating facilities to store the eggs, and contracted to deliver to the Government 120,000 pounds of egg powder by January 31, 1942. The contract contained a penalty clause for failure to fulfill delivery on time. B. The February lay-offs; interference, coercion, and restraint 1. Chronology of events So far as the record discloses, the Union first began its organiza- tional activities on October 27, 1941 , by distributing to the Moberly employees handbills announcing a meeting for that evening . During the day, copies of the handbill came to the attention of H. H. Stamper and Will Fleming , president and treasurer , respectively, of the respondent, and Henderson D. Wilcox, manager of the poultry and egg department at the Moberly plant . According to the testi- mony of Stamper and Wilcox, they construed the handbill to con- tain misrepresentations as to the wages which the respondent was paying in its St. Louis plant .5 They further testified that one of the union organizers at Moberly had participated in the organiza- tion of the St. Louis plant , and that the organization of that plant had been effected by misrepresentation on the part of the organizers.6 They therefore decided to secure direct information as to the hap- ' The record does not reveal whether the Carrolton and Boonville eggs were transported to Marshall in shell of in liquid form. 5 The handbill was not reasonably susceptible to such an interpretation. 6The respondent also had a specific giievance against the Union arising out of charges of unfair labor practices filed against the respondent relative to the organizational activi- ties at the St Louis plant-. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD penings at the organizational meeting, and accordingly instructed Clyde Miller, foreman of the poultry and egg departments, to select two or three men to attend the meeting to observe what occurred there. Miller, after first ascertaining their attitude toward the Union,,selected employees Roy Asbury and Bill Riggs. Asbury and Riggs voluntarily invited employee Russell Hicks to join them, and the three attended the meeting. After the meeting, they met Miller in the vicinity of the meeting place, and he drove them in his car back to the plant for a prearranged meeting with Stamper, Wilcox, and Fleming. Asbury, Riggs, and Hicks then made a full report, in answer to inquiries, is to what had transpired at the meeting, who had attended, and who had signed application cards. Following the report received from the three employees mentioned above, Stamper and Wilcox decided "to have each employee informed correctly of the wages paid and the conditions under which they could work" and to do this by means of personal interviews. Wilcox was designated to state the respondent's position.' Beginning the following morning, Wilcox caused the employees to be sent to his office, two at a time, and in the course of a brief interview made sub- stantially the same statement to each couple. ' According to Wilcox's testimony, he told the employees, in sub- stance, that the handbill's wage statement was untrue; that the respond- ent had always paid as much at Moberly as at the St. Louis plant or as was paid in any competitor's plants in the area, and that the respond- ent would continue to do so; that they "did not have to belong to a union to work in the [Moberly] plant," or, on the other hand, that the respondent would not discharge or discriminate against any employee who did join; that it had always been the respondent's "policy never to fire anyone where it was at all possible to avoid it," and the respond- ent "wanted to continue to have the same feeling between the manage- ment and the employees"; that the employees "knew of the troubles they had had at the shoe factory . . . and at the Wabash in times past, and . . . in other industries where they had unions"; and that it was his "opinion that where they had a union, it built up a wall between the management and the employees." A number of employee witnesses substantially corroborated Wilcox to the extent of his ad- initted statements, as above set forth. A few, however,' whose testi- mony we credit, testified that Wilcox also said in substance : (1) that he did not want the Union and had always been and always would be ' Stamper testified : "Ile (Wilcox] was to tell them that we were paying the same prices at Moberly that we were paying at St' Louis . . . and not the prices that Mr. Blassie [organizer] had put on the handbill and to tell the employees, further, that they did not have to belong to a union to work at the Stamper Company plant, and never would ; that we had always paid and always would pay as high wages as plants paid in our territory or section of the country for the same kind of work . . . He was to tell them that they had a perfect right to join a union if they wished . . . that they would not be fired, if they joined the Union , and there would be no discrimination in case of joining the Union." F. M. STAMPER COMPANY 303 "against it"; 8 (2) that he would see that the Moberly employees would receive 'union wages without the necessity of joining the Union and paying dues; 9 (3) that if the Union succeeded in organizing the em- ployees, the respondent would shut down the plant, and in that event, he [Wilcox]. had a' farm to make a living on, whereas the employees ,had nothing.10 At the same time, Wilcox admittedly instructed Blanch M. Palmer, floorlady in the breaking room, to convey the "same message" to the employees of the egg-breaking room, who had been laid off in October, since the respondent intended to reemploy them when it commenced egg-breaking operations for the dryer. Palmer called at the homes of such employees as were not working, inquired of them relative to their attitude toward the Union, and relayed to all but four or five the substance of Wilcox's statement. Employee Roy H. Asbury testified that "probably the next day" after the Union meeting of October 27 he had a conversation with Foreman Clyde Miller in the picking room about the Union, in which Miller "said we were going to have to do something about it, to stop it, if we could, and he asked me to go around and talk to all the boys work- ing; and I told him I would, and I did." Asbury further testified that Miller said in the course of the conversation that if the Union 8 Mae Walker testified to this statement , without contradiction Employee Ruth Asbury testified that Wilcox stated to her and employee Anna Solimon that Wilcox "didn't want the union in the plant and wasn 't going to have a Union ." Solimon, however , a witness for the respondent , testified that Wilcox did not say anything to that effect Wilcox did not deny having made the statement Although the Trial Examiner found that Asbury's testimony fairly reflected Wilcox's attitude, lie was not convinced that Wilcox made the "literal statement" thus attributed to him . We, like the Trial Examiner , find that Asbury's testimony fairly reflected Wilcox's attitude, but further find, under all the circumstances, that Wilcox, in substance , made the statement attributed to him by Asbury 0 Mae Walker and Ruth Asbury testified to this statement , without contradiction. 10 Employees Ora J Ascher and Mrs Henry Freeman testified as to the statement about shutting down the plant and the farm. Freeman testified that Mary Craigg had accom- panied her to the office on this occasion ; Archer testified that she had accompanied Mrs' ,Freeman. Wilcox denied having made the threat to close down the plant or of having referred to his farm, although admitting that he owned a farm . Mary Craigg, a witness for the respondent, testified that she accompanied Mrs Freeman into Wilcox's office, but that she did not hear Wilcox say anything about shutting down the plant or about his farm. In view of the discrepancies in Archer' s and Freeman's testimony as to whq accompanied Freeman to the office , the Trial Examiner credited Wilcox's denial. We disagree . The Trial Examiner found , however, that Wilcox did mention his farm to Archer and Freeman in emphasizing the plight the employees would find themselves in if the Union should close the plant by strike action . We can find no basis in the record for this finding of the Trial Examiner . The only testimony relative to the farm is that of Archer and Freeman , as related in the text. Furthermore, since Wilcox subsequently in November again summoned the employees in groups of two to his office, as hereinafter set forth , and since Freeman testified that Archer accompanied her on the second occasion, it appeals more plausible that Freeman became confused as to the time when Archer accompanied her, and that actually they accompanied each other to the office on the first occasion and that Freeman and Craigg accompanied each other on the second occa- sion. This position is supported by the fact that the testimony of Archer and Freeman was similar and the further fact that Craigg did not indicate in her testimony whether she had accompanied Archer to the first or the second conference . Upon the basis of the foregoing considerations , the fact that these statements are in substantial accord with Wilcox s admitted statement, and upon the entire record , we find that Wilcox made the statements attributed to him by Archer and Freeman. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not stopped , "the plant would close down ; they would just lock the doors and move it some place else." Miller denied stating to Asbury that if the Union were not stopped the plant would be shut down and moved. The Trial Examiner credited Asbury's testimony except that portion relating to the closing and moving of the plant . Upon the, basis of the entire record, and particularly in view of Miller's failure to deny having made the other statements attributed to him by Asbury, the fact that Miller proved io be an incredible witness on other occasions, and the fact that the statements attributed to Miller by Asbury are consistent with the respondent 's conduct as found herein , we disagree with the Trial Examiner and find that Miller made the statements substantially as attributed to him by Asbury. On November 10, 1941 , the Union filed with the Seventeenth Re- gional Office of the Board a charge against the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices , within the meaning of Section 8 ( 1) of the Act, "in that on or about October 27, 1941, and at all times since that date, by threats, warnings , and espionage engaged in by its officers and agents, and by promise of a wage increase , it, by the said officers and agents interferes with, restrains , and coerces its employees in the exercise of the rights guaranteed in Section 7 of the said Act." 11 The respondent, the Union, and the Board, acting through its agents in the Seventeenth Regional Office,, thereafter entered into a settlement, agreement , effective November 27, 1941, by the terms of which the respondent agreed to observe the provisions of Section 8 (1) and (3) of the Act, and to post a notice to its employees in the form stipulated in said agreement, and the Union agreed, with certain reservations , to request permission to withdraw the charges thereto- fore preferred . The said agreement further provided as follows : 3. The company further agrees that, in the -event it hereafter engages in unfair labor practices similar to those alleged in the charge referred to above, then the execution of this settlement agreement ; and/or the posting of the notice, all as hereinabove provided, shall be without prejudice to the rights of any proper party to refile charges and the rights of the Board to issue a com- plaint thereon and predicated on acts or incidents heretofore done.12 1 11 This finding is made on the basis of the recitals of the charge filed in the Matter of F. If. Stamper Company and Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated wsth ' the American Federation of Labor, Case No. 17-C-852, of which we take notice 12 The agreement further stipulated that the execution thereof carried no prejudicial implications , and that it should be inadmissible "in evidence in any hearing that may be held based upon the above or any other charges by the Union against the Company " Not- withstanding the stipulation as to its inadmissibility in evidence , a copy of the agree- ment was tendered in evidence by the respondent and admitted without objection. F. M. STAMPER COMPANY 305 The respondent thereafter posted a notice to its employees in the form and manner provided for in the agreement. Wilcox, however, according to his testimony, "felt that the posting of that notice might be taken by" the employees " as meaning that they should join the union, or as an invitation urging them to join," and therefore "felt that they should be talked to again." Accordingly, about the time of the posting of the notice', he caused a number of the employees to be sent to his, office, two at a time, in order to explain the purpose of posting the notice. He testified that he told them of the charges filed against the respondent by the Union on account of what he had said to the em- ployees in his prior conferences with them; that the respondent was going to post a notice ; that the notice did not "mean that they had to join a union," but that "it was still their, privilege to do as they pleased"; and that, as far as he was concerned, he had not changed his "opinion about the benefits that might accrue from a union." Accord- ing to Mrs. Asbury, however, Wilcox also said that the notice did not mean what it said, and if there was anyone in the plant "dumb" enough to think that it did, he should be informed to the contrary. Mrs. Free- man testified that Wilcox said that it was unnecessary for her to read the notice because it "didn't mean anything." Employee Alberta Meeter testified that Wilcox told them to ignore the notice. Employee Corinne Hess testified that Wilcox said that the respondent had to post notices in the plant and was doing so only "to save trouble," but that he did not want anybody to misunderstand the respondent; that he was "against a union" and always would be. Wilcox denied stating that the notice did not mean anything, or that the employees should disregard it. Since these employees were interviewed by Wilcox at different times, and since it appears quite likely that Wilcox expressed himself in variable language at each interview, the discrepancies in their testi- mony do not detract from its accuracy. Moreover, despite Wilcox's specific denial, his admitted statements are not irreconcilable with the testimony of the above-named employees; nor does the meaning im- plicit in his statements substantially differ from that contained in the testimony hereinabove set forth. Under the circumstances, and upon the basis of the entire record, we find that Wilcox, in substance, made the statements above attributed to him by Mrs. Asbury, Mrs. Freeman, Alberta Meeker, and Corinne Hess.13 13 The Tiial Examiner, while not specifically discrediting the testimony of Mrs . Asbury, Mrs Freeman, and Alberta Meeker, found that the testimony of Corinne Hess most accu- rately reflected the language of the statement made by Wilcox. He further found, upon the basis of Wilcox's admitted statement and the testimony of Hess, that the inevitable and calculated effect of Wilcox's statement was to give the employees the impression that the notice was a mere formality and indicated no change in his attitude We agree with the ultimate finding, but can see no reason for disregarding the credible testimony of other witnesses, which express the same idea more graphically. 567900-44-vol. 54-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue of the St. Louis Globe-Democrat for December 22, 1941, carried a news story in which the two union organizers who were in charge of the organizational campaign at Moberly were named, together with four other persons, as having been arrested at St. Louis on charges of disturbing the peace in connection with a strike at the Medart Restaurant in St. Louis, and in which reference was made to police reports that the tires of cars parked on the restaurant lot had been punctured with ice picks. Subsequently, according to the undisputed testimony of Mrs. Roy Asbury and Corinne Hess, which we credit, as did the Trial Examiner, Foreman Miller came into the "picking room during working hours with a- copy of the paper on which the names of the two organizers were encircled in red pencil,,handed it to the girl at the head of the chicken-picking line, saying, "There, I will ask you to read this . . The sons-of-bitches that tried to organize you were gang- sters . . . That's what the damn union will do for you." During December 1941 and the greater part of January 1942, the record indicates that there was no union activity. In the latter part of December, the busy poultry season ended, and the respondent laid off a number of employees from the poultry department." The egg drier, which had been scheduled for operation by December 20, was not ready for operation until January 20, 1942. By this time the respond- ent had in storage several months accumulation of shell eggs and 11 days within which to fulfill a penalty contract for which it had antici- pated having 1 month and 11 days. The respondent recalled all of its employees who had had previous, experience in breaking eggs, and also employed a number of workers who were without any previous experience and had to be trained on the job. During this period the egg breakers worked on two shifts, the second shift sup- plementing the work of the first shift to the extent needed to keep the drier supplied on a 24-hour basis. In addition to the eggs used in the drier, the respondent during this period sold to the Government for export a considerable quantity of shell eggs which had to be specially graded. During the same period it was carrying on its seasonal business of feeding, dressing, and packing poultry. During the week ending January 23, the number of employees in the poultry and egg departments increased from 75 to 147, and for the week ending January 30, to 176. Due to the fact that the respondent's heating system proved inadequate to operate the whole plant simultaneously, the respondent, on January 28, discontinued its poultry operations until a new boiler, which it had already ordered, would be installed ; it thereafter devoted its entire facilities at Moberly to the production of egg powder for the Government. 11 It is not charged that any lay-offs prior to February 1942 were discriminatory. F. M. STAMPER COMPANY 307 In the meantime, the Union, which had been inactive since November 1941, apparently decided to take advantage of the increase in employ- ment by resuming activity during this period. On January 29 a meeting was held, at which an undisclosed number of employees signed application for membership cards. Other meetings were held there- after. On January 30 the respondent had completed deliveries of egg powder under its contract commitments , and had practically exhausted its supply of eggs in storage. The Government at the same time with- drew its premium price offer for graded shell eggs, and the respondent discontinued selling eggs in this form. " At about the same time, Asbury, according to his testimony , had the following conversation with Wilcox in his office. Wilcox asked Asbury what he thought about the Union and if there was anything Asbury could do to help the respondent with respect to the Union: Asbury informed Wilcox that he had not joined the Union , and promised to do his best for the respondent by talking to the employees . Asbury, according to his testimony , fulfilled his promise. He further testified that Wilcox requested him to persuade his wife to cease her union activities. Wilcox did not deny having had this conversation with Asbury. We And, as did the Trial Examiner , that Wilcox made the statements, in substance , attributed to him by Asbury. On February 2, 1942, the respondent laid off 51 employees, as fol- lows: 9 from the poultry picking room ; 3 from the candling room; 33 from the egg-breaking room; and 6 from the transfer room. Shortly thereafter, the employees were solicited to sign a document , referred to by some of the witnesses as a "petition ," which consisted of several loose sheets of foolscap paper, each headed with the words , "We want to cooperate with F. M. Stamper Co. How about you?" This docu- ment had its genesis in a discussion held in Manager Wilcox's office,, in which Wilcox and employees Asbury, Riggs, Payne, Duvall, and Phipps participated , on how interest in the Union could be stopped. Wilcox declined to follow the initial suggestion that he make a personal talk to the employees . One of the employees then suggested that they get up a "petition" to be signed by the employees, expressing their willingness to "cooperate" with the Company. Wilcox told them that he could not have anything to do with circulating such a "petition" and overruled the suggestion that one of the girls in the office prepare type- written copies, but did not direct them to refrain from such a course. The employees left Wilcox's office with the understanding that they were going ahead with the idea, knowing that Wilcox was in open sympathy with their objective. They proceeded to Foreman Clyde Miller's office. On their way they met Miller and told him what they were proposing ;- whereupon Miller told them where they could find 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some paper.',' Duvall supplied the wording and prepared a number of facsimile copies for circulation. Asbury, Duvall, and Riggs then left The plant in one car ; Gene Payne and Olin Phipps, in another. They spent several hours in canvassing for signatures by visiting the homes of the employees. On the afternoon of the first day on which the "petition" was circulated, the solicitors left the plant between 1 and 2 o'clock, and returned between 5:30 and 6 o'clock. Although the respondent was chargeable with notice of their absence from the plant and the nature of their activities during this period, they were paid for the time so spent .16 \ Solicitations continued for several days, al- though on a less extensive scale. ' The completed document, bearing a total of 184 signatures, was finally left on Wilcox's desk . 17 During the 2 weeks following the February 2 lay-offs, Wilcox had a number of conversations with the laid-off employees and those still working, relative to the lay-offs and union activities. Zella Crutch- field testified that during the week of February 5, Wilcox summoned her and her sister Gladys Cleeton, into the office and told them that "he was going to have to lay a bunch off until he seen what the Union was going to do," and that he might take Crutchfield back to work, but that he did not think that employees Corinne Hess and Daisy Bell Goff would ever "get back on." Wilcox admitted telling them that there had been a lay-off and that there would be another one "the way it looked," but denied stating that he was laying off the employees until he saw what the Union was going to do. He further denied telling them that Corinne Hess and Daisy Bell Goff would never get back to work, and added, "I didn't feel that bad toward those girls." The Trial Examiner was unable to credit Crutchfield's version of the in- terview, relying, in part, upon the fact that "she was the only witness who testified that Wilcox made any statements connecting the lay-offs in any way with the Union." In this, the Trial Examiner was clearly in error since the testimony of Corinne Hess, whom he credited, di- rectly connected the lay-offs with,the Union. Upon the basis of the entire record, and particularly in view of the incidents which occurred during this period involving Wilcox, we disagree with the Trial Ex- aminer, and find that Wilcox made the statements 'substantially as attributed to him by Crutchfield. 17, This finding is based upon the testimony of Asbury Miller denied knowledge of the petition and of having supplied the' paper. We, like the Trial Examiner, do not credit Miller's denial. k 16 Miller denied any knowledge that the employees , who circulated the petition, had done so during working hours . The respondent's plant was not so spacious , nor was its pay roll at the time so large, that five employees could absent themselves for several hours without the practical certainty that their foreman would discover their absence. We, like the Trial Examiner, do not credit Miller's denial. 17 The testimony is in dispute as to whether this occurred before or after the February 18 lay-offs. We do not deem it necessary to resolve this conflict since'the exact date is immaterial. F. M. STAMPER COMPANY 309 Lucille Ronimous testified that, after her lay-off, she and another employee went to Wilcox's office sometime in the week of February 9, and asked him why they were laid off while younger girls were still working there. She further testified that Wilcox promised that "if they would get those girls who started the Union to quit their jobs," Ronimous and her companion could have those jobs. Wilcox admitted that he had made the statement laughingly after Ronimous had told him "that she wasn't the cause of any trouble there . . . that Mrs. Walker and Edna Ruth Asbury were responsible for this organi- zation movement and she didn't think she ought to be laid off and them have their jobs." The Trial Examiner credited Wilcox's version of the conversation. In view of Wilcox's whole course of anti-union conduct during this period, particularly as herinafter set forth, and in view of the fact that Wilcox has proved himself on other occasions to be a witness unworthy of belief, we disagree and find that Wilcox made the statement substantially as attributed to him by Ronimous. Corinne Hess testified that she, together with her sister, Daisy Bell Goff, and Lena Hess, went to Wilcox's office on February 13; that she asked Wilcox when he was going to put them back to work and he said not for 2 weeks anyway, that they were putting in a new floor upstairs and they couldn't put us back until they got that in. I asked him what about the breaking room : He said "There are some people out of work who really want to do the right thing," and I said, "Mr. Wilcox I am sure I do," and he said "You have shown that." He said "Wilson and that other fellow ought to be taken out and treated like German spies, he and Less Daugherty should know that trying to organize this plant-would just knock a lot of people out of work." He said "They thought we had the drier here, and all of this work, and they just thought they could come in and make us do what they wanted us to do." He said, "Has he done anything yet he told you he could do?" speaking of Mr. Wilson. He said, "He told Vada and Lucille he would get their jobs back here, but they're not working here and they will never work here again.78 He said, "I'll see Wilson in h-e-1-1 first." ... My Sister said, "Mr. Wilcox, from the way you have acted, you must think I started this union, and if you do I want to know who told you." He said, "No, I don't think that. I think I know pretty well who started it, but it isn't "a question now of who started it but who's going to stop it." He said, "If that dozen of you who was at the union meeting Friday night would stop going up there and agitating it, you would be doing a lot toward bringing the work back here. . .. I told "Hess testified that Vada and Lucille were Vada Dunlap and Lucille Ronimous, two employees who had been laid off February 2. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him he had given me something to think about, because he had spoken so plainly and told me just point blank why I was laid off. He said we didn't need to work there to keep the drier run- ning, because they could break the eggs in their other houses and bring them here. . . . I said, "You have given me some- thing to think about. I am going to the union meeting tonight, and I am going to ask a lot of questions." And he smiled and said, "You girls come back and talk to me any time you want to-come back in the morning, if you want to." Corinne Hess attended the union meeting that night, and the next morning she and her sister went to see Wilcox at his office. When Hess asked Wilcox what he could do for them that morning, Wilcox replied, "From the way that meeting went last night, I'm afraid there is going to be less work around here." Hess further testified, "I said, `I asked some questions, as I told you I was going to do, at the meeting, and Mr. Wilson had an answer for all of them.' And he said, `If Mr. Wilson had an answer, you should know how soon you are going back to work.' . . . I said, `He didn't say anything about it.' And I just got up and walked out." Wilcox testified that Corinne Hess came to see him a number of times, mostly to repeat to him what she had heard somewhere else, "acid at the same time, to ask when she might get back to work"; that he told her the same thing I had to tell everyone'else that came during that period, that we had the matter of the boiler and the picking room floor-Of course, at that time we anticipated working again in the picking room . . . when the boiler was there .. . One morning she came in there . . . and she wanted to know, why she couldn't go back to work. So I explained to her that we might not be able to put anybody back right away . . . She said, "Well, that isn't what they tell us down there." I said, "What's down there? What do you mean?" And she said, "Well, they say down there it's the union, is the reason we haven't gotten work." And I said, "Well, that doesn't have anything to do with it; but if it did, Mr. Wilson and Mr. Daugherty should be sorry that they are beating you out of this work." Upon the basis of the entire record, we find, as did the Trial Ex- aminer, that Wilcox made the statements substantially as attributed to him by Hess, and thereby intimated to her that the union meet- ings were under surveillance by the respondent and that, if the em- ployees abandoned interest in the Union, work opportunities would increase, but otherwise they would fall off. F. M. STAMPER COMPANY 311 After the - supply of eggs in storage at Moberly had been ex- hausted, the drier was dependent on current intake. The capacity of the drier , however, was greater than could be supplied by the number of eggs available in the Moberly area. It was therefore necessary to increase the supply at Moberly by bringing in either shell eggs or eggs in liquid form from outside. The respondent decided to trans- port liquid eggs from its plant at Macon, Missouri , which already had its own candling equipment. A breaking room was thereupon opened and equipped at the Macon plant , and a refrigerator truck was repaired at the cost of $1,000 for transporting the liquid eggs to Moberly. On February 16, 1942, the respondent started breaking eggs at Macon. At the same time, the respondent discontinued its poultry operations at the Macon plant, transferred the 15 or, 20 poul- try workers to egg breaking, and hired a sufficient number of new employees to enable it to operate 9 tables. From then on, all eggs from the Macon territory were candled and broken at the Macon plant, and then transported in liquid form to the Moberly plant for drying. On February 18, 1942, the respondent laid off 46 additional em- ployees at the Moberly plant as follows : 18 from the egg-breaking room; 13 from the candling department ; 6 from the transfer room; and 9 from the poultry picking room. In April 1942 the Govern- ment changed its specifications for the processing of egg powder by requiring all eggs to be precooled before broken . Under the condi- tions existing at Moberly , the required precooling took 3 days. The quantity of eggs sufficient to run the breaking crew for 3 days filled all the coolers which theretofore had been used for poultry. Con- sequently, although a new boiler was installed in the Moberly plant and put into operation on July 10, 1942 , the respondent was unable to resume poultry operations until the early part of November when the eggs no longer required artificial refrigeration. At that time the respondent offered reemployment to all employees who had been laid off in February, and approximately 30 accepted. 2. Conclusions (a) As to interference, coercion, and restraint From the very outset of the Union 's organizational campaign in October 1941, the respondent manifested its opposition to the self- organization of its employees and its - determination to defeat the Union's efforts. The respondent arranged for informers to attend, on its behalf, the first organizational meeting of ' the Union and to report as to who was present and what transpired. By the statements of Manager Wilcox and Forelady Palmer, at Wilcox's direction, in November 1941, the respondent made clear to the employees its opposi- 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to the Union and represented to them that affiliation with the Union would bring no benefits commensurate with the disadvantages of having to pay dues and of risking involvement in strikes, that the Union was making false representations to them as to there being a difference in the wage scale between the St. Louis and Moberly plants, that the St. Louis plant had been organized through fraud, and that if the Union succeeded in organizing the employees the respondent would shut down its plant. At the same time Foreman Miller enlisted the services of employee Asbury in the respondent's campaign against the Union, warning that the plant would close down if the Union were not, stopped. When these activities led to charges of unfair labor prac- tices, the respondent posted notices specifically agreeing to "live up to the spirit as well as the letter" of the Act, but to all intents and purposes nullified any corrective effect which such action might have had, by Wilcox's statements to its employees that the posting of the notice "didn't mean anything," was a mere expedient formality, and repre- sented no change in the respondent's attitude. During the very period that the notices were being posted, the respondent, by Foreman Miller, brought to the attention of its employees the news story in the Globe- Democrat reporting the arrest of the union organizers on charges of disturbing the peace, and characterized them and the Union in deroga; tory terms. When, after a period of dormancy, there were indications of renewed interest in the Union in the latter part of January 1942, Wilcox also solicited Asbury's aid against the Union. Shortly after the first mass lay-off of February 2, the "respondent, by Wilcox and Miller, instigated a counter-campaign by employees known td be hostile to the Union, and encouraged, bonnived at, and assisted in the circulation among its employees, for their signatures, of a pledge of loyalty to the respondent that carried, and was intended to carry, the inference of disapproval of the Union. The respondent took further steps to check up on the extent of the interest shown in the Union by its employees. During the period between the lay-offs of February 2 and February 18, Wilcox told a number of laid-off employees, in substance, that the Union was responsible for the lay-offs, that abandonment of the Union would result in an increase of work at Moberly whereas less work would be available if union interest continued; disparaged the union organ- izers; made known to them that the union activities were under sur- veillance; and warned that it was not necessary for the respondent to employ them in order to keep the drier running because the respondent could break the eggs in its other houses and then bring them to Moberly. Upon the entire record, we find, as did the Trial Examiner, that the respondent engaged in a course of conduct which was designed to, and did in fact, interfere with, restrain, and coerce its employees in the F. M. STAMPER COMPANY 313 exercise of the rights guaranteed in Section 7 of the Act 19 The re- spondent contends that the Board is precluded from considering so much of the foregoing conduct as occurred prior to the settlement agreement of November 27, 1941. There is no merit to this contention since the respondent violated both the implied and express provision of the agreement requiring it to discontinue its unfair labor practices. (b) As to the February lay-offs The issue relative to the February lay-offs was limited by stipu- lation to the question of whether the lay-offs as a whole were effected for the purpose of discouraging organizational interest among the employees of the Moberly plant. No issue was raised as to whether these lay-offs were individually discriminatory. The lay-offs were due to the respondent's suspension of its poultry department caused by the failure of the boiler to supply sufficient steam for the poultry and egg-drying operations, and to a sharp reduction in the number of employees in the egg-drying operations. The occasion for the large pay roll from January 20 to 30, 1942, was the emergency created by the necessity of fulfilling a Government penalty contract within a period of 11 days. With the completion of the Government contract on January 30, there was clearly no longer any need for so large a pay roll. Upon the entire record, we are convinced and find that the lay-offs of February 2 were motivated solely by economic consider- ations, as counsel for the Teamsters in effect conceded in his oral argument before the Board at Washington, D. C. A more difficult question is presented by the February 18 lay-offs in the breaking department. The Union contended that the respond- ent opened a breaking room and commenced breaking operations at the Macon plant in order to limit the amount of work available at Moberly, thereby causing the February 18 lay-offs in the breaking de- partment. The respondent contended that its decision to break the eggs at Macon and transport them to Moberly in liquid form rather than to transport them in. shell form for breaking at Moberly, was grounded on economic factors. In support of this position, witnesses for the respondent testified, without contradiction, (1) that the Mo- berly facilities were inadequate to handle a larger number of egg- breaking employees; (2) that to transport shell eggs to Moberly would require a double candling operation, since the State law re- quired candling of eggs at the point of concentration (which was Macon) and FSCC required candling at the place of breaking; (3) 1° The complaint alleged that the respondent also violated the Act by granting pay increases to its employees calculated to interfere with, thwart , and obstruct the organiza- tional efforts of its employees. We find that there is no evidence in the record to support this allegation. ' 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that to use Moberly as a point of concentration would have imposed a hardship on the Macon employees, because there would have been no need for the 25 candlers employed at the Macon plant; (4) that the cost of transporting shell eggs, is slightly more than for liquid eggs; and (5) that the transportation of shell eggs directly to Moberly would have disrupted the territorial and management relationship existing at Macon. It is clear that during the period from January 20 to 30, 1942, the respondent operated at Moberly under emergency conditions. Will Fleming, the respondent's treasurer, testified that shortly after the commencement of egg-breaking operations at Moberly, the plant was visited by two Federal inspectors who told him orally that "the-break- ing room was entirely too crowded, there were too many breakers in there for the size and condition of the room" and that the toilet facilities were "inadequate." Although the written report submitted by the Federal inspectors made no mention of the crowded condition in the breaking room, it did recommend, among other things, that the respondent should provided "adequate toilet facilities," "adequate washing facilities, and an ample supply of hot water." Moreover, a report from the State Department of Agriculture, dated August 20, 1942, and made at a time when the egg-breaking personnel and oper- ations had already been reduced, stated that "the breaking room at Moberly . . . is crowded." With respect to the respondent's other contentions, the record shows the following : The Macon plant had been in operation since 1922, and the number of eggs purchased at Macon was about equal to that purchased at Moberly. The manager of the Macon plant had a contractual profit-sharing interest in main- taining the plant as a going concern. For many years the truck drivers had covered specified routes throughout the Macon territory, called upon their customers regularly and returned each day to the Macon plant where all records pertaining to the Macon business were kept. The Macon plant had always been used as the point of con- centration for the Macon territory. To have transported the shell eggs to Moberly without changing this arrangement would have required that the eggs be candled at Macon and again at Moberly at an additional expense. To have transported the shell eggs directly from the Macon producers to Moberly would not only have resulted in the discharge of the Macon candlers but would have required each truck driver to make an additional daily round trip ranging from 23 to 46 miles. Moreover, the evidence shows that the respondent followed the same procedure at its other houses as it did at Macon. Thus, on those occasions when more eggs were required than both. the Macon and Moberly territories could furnish, the respondent supplied such eggs from its other houses at Chilicothe, Boonville, Kansas City, and F. M. STAMPER COMPANY 315 Omaha, where the eggs were broken and then transported in liquid form to Moberly. It would appear from the above-outlined facts that there is considerable merit to the respondent's position. On the other hand there is other evidence in the record which renders the respondent's asserted reasons open to grave suspicion . Thus, it is significant to note that there was no union at Macon; that the respond- ent had never broken eggs at Macon;.that it hired inexperienced egg breakers at Macon, while it laid off experienced egg breakers at Mo- berly without even giving them an opportunity to work at Macon, which was 23 miles away ; that the respondent was curiously uncon- cerned about the hardship imposed upon the Moberly egg breakers; and that in a letter dated January 31 , 1942, Treasurer Fleming told President Stamper that the cost of transporting liquid eggs would be about the same as that for shell . Moreover, whereas in 'the service letters given to the laid-off employees, insufficient steam was noted as the reason for the lay-offs of poultry pickers and egg breakers; at the hearing the respondent contended that lack of eggs in the Moberly territory was the chief reason for the lay-offs of the egg breakers. Finally, there is Manager Wilcox's warning to Corinne Hess shortly prior to the February 18 lay-offs that, if the employees continued their interest in the Union, the work at the Moberly plant would fall off and that the respondent would break the eggs in its other houses. This warning, however , loses a great deal of its significance in view of the fact that Wilcox also attributed to union activities the February 2 lay-offs, which we have found , and the Teamsters have conceded, to be based on economic considerations. While the matter is not entirely free from doubt , we feel, upon the basis of the record before us , that the evidence is insufficient to warrant a finding (1) that the curtailment of operations at Moberly and the opening of egg-breaking operations at Macon were not moti- vated by economic factors and (2) that they were prompted by a discriminatory purpose. Upon the entire record, we find that the allegations of the complaint that the respondent laid off the employees listed in Appendix "A" attached to the complaint , reduced its opera- tions at its Moberly plant, and diverted production therefrom to dis- courage membership in and activities on behalf of the Union, are not established by the evidence. C. The refusal to reemploy Mrs. Ora June Archer Mrs. Ora June Archer was first employed by the respondent on August 8, 1941. She worked in the poultry department, and was laid off on December 19, at the end of the Christmas poultry season. In January 1942, when the plant was hiring egg breakers, she applied for work in company with Mabel Perkins. Perkins was given em- 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment but Archer was not.20 Clyde Miller testified that, during the period of her previous employment, Archer had worked very irregularly, which either slowed up production on the line or made it necessary to transfer a worker from some other department, and he had made up his mind that he was not going to reemploy her. Wilcox testified : "The way I remember Mrs. Archer, she came sometime in the fall of 1941 and two or three times Clyde Miller, who was her foreman, mentioned to me that she wasn't there, that he couldn't depend on her being there, and I said, `Just put up with it and when this season is over, just forget that she ever worked here.' As I explained earlier, we had a policy that we never did fire anybody. We did have a policy that if we got someone in one of those seasons, and when the lay-off came, if they hadn't been entirely satisfactory we wouldn't put them back again:" The record indicates that Archer was sometimes absent from work, and that, on the days she reported for work, the number of hours that she worked was irregular. She admitted that it took a certain number of women to balance the chain line when poultry was being processed, and that the absence or premature departure of a worker threw the line out of balance. Referring to the period of her employment, Archer testified, "I was off about 3 or 4 days on a trip, but that was my fault ...' I took a trip back to Ohio." She further testified, however, that as soon as she returned to Moberly she went back to work and explained to the Company why she had been off, and that nothing was said to her about it. She testified also that the variations in the daily hours worked corresponded to the amount of work available each day, and that she did not recall ever leaving before the pickers were dismissed; that she had received no complaints about her being off from work; and that she had taken one afternoon off, with Miller's permission, to attend a funeral, but did not remember any other absences except the trip to Ohio. The respondent's time-card records established that she worked fewer hours on several occasions than other employees who were then working. But it is not at all clear from the record that, with the exception of the time she went to Ohio, Archer was ever absent from the plant without permission. The record further fails to show that she was ever warned, reprimanded, or otherwise dis- ciplined for doing so or for failing to report to work without per- mission. "Mrs. Archer testified that she talked to Foreman Miller personally , that he told her to go home and stay until he sent for her, and that at the same time he told Perkins to "get her apron on and go to work." Miller testified that, at the time in question , "every morning there would be a bunch" at the plant looking for work, that he saw Archer in the crowd and did not hire her, but had no direct conversation with her. Upon the basis of the entire record, we, like the Trial Examiner, credit Archer's testimony. F. M. STAMPER COMPANY 317 Archer had attended the union organizational meeting on October 27, 1941, and had signed an application for membership in the Union. Although Miller denied knowledge of Archer's union affiliations, we, like the Trial Examiner, do not credit his denial . He was present in the respondent's office on the evening of October 27 when a full report of the union meeting was given to the respondent 's officials, and Archer was specifically named as one of the employees who attended the meeting and signed an application for membership in the Union. On the basis of the record , we would not be persuaded of the dis- criminatory character of the respondent's refusal to reemploy Archer in January 1942, if the question had then been one of the selection of a permanent employee. The situation at the plant when she applied for work was, however, exceptional in that there was a temporary premium on workers to the extent that the respondent was hiring new and inexperienced help which had to be trained on the job. The record casts a doubt on Archer's dependability from the standpoint of attendance but is far from showing that she was an undesirable employee. Furthermore , the record affords no real basis for com- parison between Archer's attendance record for the season and that of other employees who were hired in January . We have given careful consideration to Wilcox 's testimony that Miller had discussed Archer's' case with him prior to the close of the 1941 season for picking poultry. But Miller's own testimony in support of his complaint against Archer is not convincing. His incredible denial that he had any knowledge of Archer's union affiliation tends seriously to impeach the credibility of other phases of his testimony . On the whole record herein, we find, as did the Trial Examiner, that the respondent refused reem- ployment to Archer in 'January 1942 because of her union membership and activities , thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The termination of employment of Roy H. Asbury Asbury worked for the respondent continuously from the fall of 1936 until his employment was terminated on or about October 10, 1942. Edna Ruth Asbury, his wife, joined the Union shortly after it started organizing at Moberly , and remained active until she was laid off on February 18, 1942. Asbury did not join. On the con- trary, he attended the first organizational meeting as an emissary of the respondent ; reported on the happenings at the meeting ; under- took, at the respondent's request, to dissuade his fellow employees from affiliating with, and to get his wife to quit, the Union; and was one of the group that originated and canvassed for signatures to the "loyalty pledge." 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • After the installation of the drier, Asbury was put in charge of operating it on his shift. About the time of the second lay-off in February, his shift was changed from the hours 11 p. m. to 7 a. in., to the hours 7 a. m. to 3 p. in. A few days after the change, he was summoned to Wilcox's office and reprimanded for being under the influence of liquor the last night that he had worked on the night shift. He thereafter continued to work on the day shift until August, when, on the complaint of the other operators, they were all put on rotating shifts. On or about October 10, Wilcox again sent for Asbury and told him that reports had reached him that he was drinking again. Wilcox further told him that work on the drier was slowing down for the season, and suggested that he look for another job. Asbury there- upon stated that he was quitting. He was paid off at once and never returned to the plant. Asbury's relation to the Union was consistently indifferent and, if not personally hostile to the Union, he was at least acquiescent in his role of informer and anti-union propagandist. His wife's affiliation with the Union was not shown to be a factor in terminating his em- ployment. , Mrs. Asbury had been laid off in February 1942, and she testified that she had since found permanent employment elsewhere. Whether or not the respondent was justified in discharging Asbury would, on the basis of anything appearing in the record herein, have no significance from the standpoint of its effect on encouraging or discouraging union membership. We find, as did the Trial Examiner, that there is no support in the record for so much of the complaint as alleges that the respondent discharged Asbury and thereafter refused to reinstate him in order to discourage membership 'in and activities on behalf of the Union. E. Statements attributed to Walker Duvall Mrs. Mae Walker testified that, for 3 or 4 days after the February 18 lay-offs, Walker Duvall exercised supervisory authority over the employees in the transfer room, during which time he made numerous derogatory remarks about her on account of her affiliation with the Union, accused her of being responsible for 190 women being laid off, and stated that "we've gotten rid of all the union girls but one, and I think I will soon get rid of her," referring to the witness. There is no evidence as to Duvall's supervisory authority other than Mrs. Walker's testimony that Duvall so claimed and that Hobart Wheeler, another employee in the transfer room, confirmed his claim., Mrs. Walker testified that she made no complaint against Duvall either to Clyde Miller or to Wilcox but did report Duvall's conduct to the Board.- Clyde Miller testified that Duvall had never had any super- F. M. STAMPER COMPANY 319 visory authority and that he had never heard of his claiming any. Wilcox testified that he had had a visit from a Field Agent of the Board who "kept wanting to know about this `foreman Walker Duvall;"' that he could not understand to whom he was referring until he learned from the employees in the transfer room that Duvall and Wheeler had been playing pranks on Mrs. Walker; and that he had ordered them to stop bothering her. We find, as did the Trial Examiner, that Duvall was never a supervisory employee of the re- spondent, that the respondent first learned of his claim of authority in the manner that Wilcox described, and that the respondent was not responsible for the acts and statements attributed to Duvall by Mrs. Walker. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion 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 and is engaging in unfair labor practices, we shall order it to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has discriminated with regard to the hire and tenure of employment of Ora June Archer, because of her membership in and activities on behalf of the Union. We shall order that the respondent make the said Ora June Archer whole for any loss of pay she has suffered by reason of the respondent's discrim- ination against her, by payment to her of a sum of money equal to the amount she normally would have earned as wages from the date of the discrimination to whichever of the dates, February 2, 1942, or February 18, 1942, she should have been subject to lay-off in the order of her seniority, less her net earnings 21 during that period. "By "net earnings " is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working' elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the subsequent 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. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, 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 employ- ment of Ora June Archer, and thereby discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed under 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. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Roy H. Asbury or the lay-offs between January 31 and February 21, 1942. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, by granting pay increases to its employees calculated to interfere with, thwart, and obstruct the organizational efforts of its employees. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, F. M. Stamper Company, Moberly, Missouri, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the American Federation of Labor, or any other labor organization of its employees, by refusing to reemploy any of its employees, or by discriminating in any other manner' in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any manner employing espionage for the purpose of ascer- taining, investigating, or interfering with the activities of its em- F. M. STAMPER COMPANY 321 ployees on behalf of Amalgamated Meat Cutters and Butcher Work- men of North America, affiliated with the American Federation of Labor, or any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 Board finds will effectuate the policies of the Act : (a) Make whole Ora June Archer for any loss of pay she has suf- fered by reason of the respondent's discrimination against her, by pay- ment to her of a sum of money equal to the amount which she normally would have earned as wages from the date of the respondent's dis- crimination against her to whichever of the dates, February 2, 1942, or February,18, 1942, she would have been subject to lay-off in the order of her seniority, less her net earnings during said period; (b) Post immediately in conspicuous places throughout its plant at Moberly, Missouri, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from ,which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set out in paragraph 2 (a) of this Order; and (3) that the respondent's employees are free to become and remain members of Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the American Federation of Labor, or any other labor organization, and that the respondent will not discriminate against any employee because of his membership or activity in such organization ; (c) 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. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (3) of the Act with respect to the lay-offs between January 31 and February 21, 1942, and the ter- mination of the employment of Roy H. Asbury, and that the respon- dent violated Section 8 (1) of the Act by granting pay increases to its employees calculated to interfere with, thwart, and obstruct the organ- izational efforts of its employees, be, and it hereby is, dismissed. MR. GERARD D. REILLY took no part in the consideration of the above Decision and, Order. 567900-44-vol. 54-22