Armour and Co.

In the Matter of ARMOUR AND COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL No. 43, AFFILIATED WITH THE C. I. O. Case No. C-1367.-Decided July 27, 1940, Jurisdiction : meat packing industry. Unfair Labor Practices Interference, Restraint, and Coercion: specific allegations of, dismissed. Discrimination: discharge for union activities. Where one of the admitted reasons for discharging an employee was his union activity the discharge was discriminatory even if other reasons did play a part in the decision to discharge him. Remedial Orders : reinstatement and back pay awarded. Mr. Walter B. Chelf and Mr. Robert D. Malarney, for the Board. Mr. Walter C. Kirk, of Chicago, Ill., for the respondent. Mr. Langdon West, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Packinghouse Workers of America, Local No. 43;1 affiliated with Packinghouse Workers Organ- izing Committee and the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated June 16, 1939, against Armour and Company, Indianapolis, Indiana, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint accompanied by notice of hearing was duly served upon the respondent and upon the Union. Concerning the unfair labor practices, the complaint, as amended; alleged in substance that the respondent discharged Marcelus Tyler 'The Union was incorrectly designated Packinghouse Workers Organizing Committee, Local No. 43 , in the charge, thelcomplaint, and the other formal papers in this proceeding. 25 N. L. R. B., No. 105. 989 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD _- on or about March 17, 1939,2 and at all times thereafter refused to reinstate him because he assisted the Union and engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection; and that the respondent, by the aforesaid acts, by urging, persuading, and warning its employees at its Indianapolis, Indiana, plant, to refrain from becoming or remaining members of the Union, by threatening the aforesaid employees with discharge and other reprisals if they became or remained members of the Union, and by other acts, in= terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 30, 1939, the respondent filed a motion, thereafter granted by the Trial Examiner at the hearing, to require the Board to specify more precisely the facts constituting the respondent's alleged violations of Section 8 (1) of the Act.3 Pursuant to an extension of time granted by the Regional Director in which to answer the com- plaint, the respondent, on July 8, 1939, filed' its answer, admitting cer- tain allegations but denying the allegations of unfair labor practices. Pursuant to notice,4 a hearing was duly held on July 24,-25, and 26, 1939, at Indianapolis, Indiana, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The respondent and the Board were represented by counsel and participated in the hear- ing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of the hearing the Trial Examiner granted without objection the motion of counsel for the Board to conform the pleadings to the proof, concerning such matters as names, places, and dates. During the course of the hearing the Trial Examiner made various rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 28, 1939, the Trial Examiner filed his Intermediate Report, a copy of which was duly served upon the respondent and upon the Union. The Trial Examiner found that the respondent, by discriminatorily discharging and thereafter refusing to reinstate Tyler, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of 2 By typographical error , the complaint, as issued , read "on or about March 7, 1939" but it Vi as amended at the hearing by agreement of the parties to read as shown above 3 Counsel for the Board stated orally at the hearing that the respondent's alleged viola- tions of this section of the Act consisted of threats made by Robert E Kramer, superin- tendent of the respondent 's Indianapolis plant, against Francis weber and vern9 Rippy, -two employees , because of their activities in behalf of the Union , in addition to the discharge of Marcelus Tyler. 4 The bearing, originally scheduled for June 29, was postponed at the request of the respondent. ARMOUR AND COMPANY 991 the, Act, and accordingly recommended that the respondent cease and desist frQm its unfair labor practices ; offer to Tyler immediate and full reinstatement to his former position; make him whole for any loss of pay sustained by reason of his discriminatory discharge; and take certain other affirmative action to remedy the situation brought about by its unfair labor practices. The Trial Examiner further recommended that the complaint be dismissed for insuffi- cient proof in so far as it alleged that the respondent had engaged in unfair labor practices, within the meaning of Section 8 ( 1) of the Act, by urging, persuading, and warning its employees at the In- dianapolis Plant to refrain from becoming or remaining members of the Union and by threatening said employees with discharge and other reprisals if they became or remained members of the Union. On October 3, 1939, the Board issued its order transferring the proceeding to the Board. On October 21, 1939, the respondent filed exceptions to the Intermediate Report and a request for permission to file a brief in support of its exceptions , which was thereafter granted by the Board. On November 20, 1939, the respondent filed its brief. On January 5 and 8, 1940 , respectively , the respondent and the Union filed letters with the Board which were in the nature of briefs and were considered by the,Board. No request for oral argument before the Board was made by any party. The Board has considered the exceptions to the Intermediate Report, and the brief filed by the respondent and, save as the exceptions are consistent with the findings, conclusions , and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 5 Armour and Company, an Illinois corporation , directly and through subsidiaries , operates approximately thirty meat-packing plants located in 23 States of the United States. It also operates , directly and through subsidiaries, approximately 300 wholesale meat-distribut- ing houses known as branch houses located at various points through- out the United States. This proceeding is concerned solely with the respondent's packing plant located at Indianapolis, Indiana, herein- after referred to as the Indianapolis plant, where the respondent pur- chased and slaughtered during the fiscal year ending October 31, 1937, in excess of 168,000 animals, having a total value of about $6,572,000. The animals slaughtered in the Indianapolis plant are purchased prin- The facts found in this section are based on a stipulation entered into by the respond- ent and counsel for the Board. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cipally from commission men doing business in the public stockyards at Indianapolis, Indiana. Approximately 85 per cent of the livestock purchased and slaughtered at the Indianapolis plant originate in the State of Indiana; the balance originate in other States... The meat products and byproducts derived from the slaughter of livestock at the Indianapolis plant are distributed throughout the United States, and approximately 43 per cent of these products are shipped beyond the boundaries of the State of Indiana. During the fiscal year ending October 31, 1937, the respondent shipped about 71; 500,000 pounds of such products having a total value of approximately $10,400,000. It was stipulated by the parties that the figures given above con- cerning the livestock slaughtered at and the products shipped from the Indianapolis plant during the fiscal year ending October 31, 1937, are substantially the same as the corresponding figures for the fiscal. year ending October 31, 1938. II. THE ORGANIZATION INVOLVED United Packinghouse Workers of America, Local No. 43,- is a labor organization affiliated with Packinghouse Workers Organizing Com- mittee which is in turn affiliated with the Congress of Industrial Or- ganizations. It admits to membership employees of the respondent employed in the Indianapolis plant. III. THE UNFAIR LABOR PRACTICES A. Background The respondent's employees at the Indianapolis plant were organ- ized during April or May 1937 and on April 15, 1938, the Union was certified by the Board as the exclusive representative of such employees for the purpose of collective bargaining.6 In August 1938, according to the Union, it made an oral agreement with Kramer, the superin- tendent of the Indianapolis plant, that a killing gang 7 of 35 employees was to slaughter only 185 cattle in a 5-hour work period. Kramer, in his testimony, denied this, however, and claimed that in August 1937 he had told the Union's grievance committee that he would expect a killing gang comprising 34 men to slaughter 190 cattle in 5 hours, and See Matter of Armour and Company and United Meat Packing Workers, Local No. 117, 6 N L. R. B 613. The proceeding referred to in the foregoing citation was initiated by the Union 's filing a petition for investigation and certification of representatives . In this petition the Union designated itself "United Meat Packing Workers , Local No 117." In accordance with an amendment to the aforesaid petition , the Union was certified by the Board under the name, United Packinghouse Workers, Industrial Union, Local No 566. Its name was thereafter changed to the one under which it appears in this proceeding ° This case is concerned with the activities of a group of the respondent 's employees engaged in the slaughter of cattle , known as the killing gang. ARMOUR AND COMPANY 993 that, thereafter, to avoid trade complaints, he had added a 35th man to wash meat, a function not previously performed by the killing gang." There is a similar conflict in the evidence concerning the actual production schedule in effect during 1937 and 1938 .' We do not deem it necessary to resolve the conflict in the evidence concerning the existence of the alleged oral agreement between the respondent and the Union or the actual production schedule in effect during the latter part of 1937 and 193'8 in order to decide the issues presented by the discharge of Marcelus Tyler. B. The discharge of M1larcelus Tyler Tyler at the time of his discharge on March 17, 1939, had been in the respondent's employ for about 14 years, and was experienced in all but 2 of the numerous skilled operations performed by the kill- ing gang in the slaughter of cattle and hogs. The respondent's at- torney admitted on the record that Tyler was an experienced and 8 The Trial Examiner found that the respondent and the Union had made an oral agree- ment, as alleged by the Union, under which the killing gang when numbering only 35 men was to slaughter only 185 cattle in 5 hours 9 Kramer testified that his alleged statement to the Union's grievance committee in August 1937 that a killing gang of 34 men should slaughter 190 cattle in 5 hours was based on the gang's practice over a period of time theretofore ; that thereafter until the 35th man, the ilashei, was added about 6 weeks later, the gang, numbering 34 men, slaughtered an average of 38 cattle per hour (190 cattle for the 5-hour work period) ; that after the addition of the washer the gang continued with 35 men until it was tem- porarily reduced in late December 1937 or early January 1938 owing to a seasonal cur- tailment in the respondent's operations, and that following this temporary reduction the gang and its production increased gradually until the gang numbered 35 men and its production reached 38 cattle per hour (190 cattle for 5 hours). Ile also testified that during 1938 the numerical strength of the gang fluctuated and that its production fluctuated proportionately. In addition, he testified that the numerical strength and the production of the gang in 1939 (35 men slaughtering 38 cattle per hour) was the same as its numerical strength and production poor to the seasonal slack in December 1938. Leonidas P. Barnes, foreman over the killing gang, testified that the gang, when number- ing 34 or 35 men, had always maintained a production of 38 cattle per hour and that the gang had never contained more than 35 men Present and former members of the Union's grievance committee, on the other hand, testified that when the killing gang numbered 35 men its average slaughter per hour was never more than '37 cattle ; that in the fall of 1938 a 36th man was sometimes added to the gang and on those occasions the gang slaughtered 38 cattle per hour. Kramer did not testify concerning the alleged presence of this additional man other than his state- ment that the only change he made in the set-up of the killing gang was the addition of the washer in the fall of 1937 This testimony, hoiuever, is confusing because, as noted above, Kiamer also testified that the numerical strength and production of the gang fluctuated throughout 1938. The respondent, in its brief, stated "It was very apparent from the evidence that the union's claim of a 36th man on the killing floor came from the fact that Verny Clark, a 'cold' calf skinner was sometimes brought into the cattle killing department to work when he did not have enough 'cold' calves to skin to make up .32 hours a week-the employees being guaranteed 32 hours per week whether they actu- ally worked that number of hours of not. Finch, a Board's lutness, so testified" The Trial Examiner found, "Duiing 1938, and until the last of December of that year, the number of cattle to be killed was 190 during the five-hour period from 7 a in until 12 noon The number of men on the kill floor for the killing of that number of cattle was 36 ", and, "From August 1938 until the plant experienced the seasonal lay-off late in December of that year, the request of the Union [that a gang of 35 men should not be required to kill more than 185 cattle in 5 hours] had been recognized." 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good workman. Tyler joined the Union in August 1938, and was instrumental-in getting 10 or 12 other negro employees in the killing gang to join. In February 1939 he was chosen as one of the Union's two shop stewards in the killing gang and thereafter took an active part in the Union's activities affecting this group of employees. Twice during February 1939 he acted as a substitute member of the grievance committee at regular weekly conferences with Kramer. On or about Thursday, February 16, 1939, the latter of these occasions, Tyler complained on behalf of the Union that the killing gang's pro- duction schedule was too fast and that the gang was short one or two workers.1° Kramer agreed to investigate the situation. The fol- lowing Monday Kramer came to the killing floor and Tyler reminded him that he had been up on the killing floor the previous Friday but had not told Tyler how many cattle the gang should kill. Kramer's answer to Tyler was the question, "Didn't Barnes tell you what I said?" to which Tyler replied, "No, he didn't tell me." Kramer then called Barnes and asked him if he had, told Tyler what he, Kramer, had said when he had been up there on the previous Friday. Barnes stated that he had given Tyler Kramer's message. Tyler replied, "Maybe you intended to tell me but you didn't." Kramer then said, "Well, Marcelus, it will have to be 38 cattle an hour and we will have to maintain 38 cattle an hour regardless of what men we have. I think we can make that number all right. I think we can do that all right because you fellows, have been taking care of the cattle like this and I think you can do that all right." Following this incident the union grievance committee and Kramer conferred a number of times but were unable to settle their disagreement over the "killing" schedule. The Union insisted that Kramer's adherence to a schedule of 190 cattle in a 5-hour work period breached the alleged oral agreement of August 1938, referred to above. Kramer, on the other hand, insisted that the killing gang with only 35 men had maintained a schedule of 190 cattle over a long period prior to the December lay-off and that a 35-man gang continue this schedule. On March 15, 1939, at a meeting of the employees in the killing gang,' all of whom were union members, the men reaffirmed the posi- tion theretofore taken by the Union concerning the alleged agreement with the respondent. On March 16 the grievance committee informed Kramer that the Union intended to instruct the killing gang to maintain a production schedule of only 185 cattle until the dispute, concerning the schedule was, settled. At a meeting of its members 10 In December 1938 the respondent , because of a seasonal curtailment in its opera- tions, reduced the number of its employees in the killing gang. In late January or early February 1939 , the killing gang was restored to 35 men and Kramer scheduled the killing gang to slaughter 190 cattle in a 5 -hour work period The killing gang considered this schedule a violation of the alleged oral agreement of August 1938, and Tyler, as a repre- sentative of the killing gang, was the first to voice the Union's objection to this schedule. ARMOUR AND COMPANY 995 that same night, the Union decided that beginning the next day, March 17, the killing gang was to slaughter only 185 cattle in a 5-hour work period. On March 17, just prior to the beginning of work, the Union's officers met informally with the killing gang in the gang's dressing room at the plant and instructed Marcelus Tyler to signal the "cattle knocker" 11 to stop work after killing 185 cattle. Thereafter, shortly before noon of the same day Tyler, pur- suant to his instructions from the Union's officers, and after conferring with Wacker Thomas, the senior steward in the killing gang, raised 3 fingers as a signal to Turner, the "cattle knocker," to stop work after killing 3 more cattle. After killing the 3 additional cattle, Turner left the "knocking box," informed either Thomas or Tyler 12 of his action, and went to the wash basin, where a few minutes later he was approached by Leonidas Barnes, foreman over the killing gang, who, ordered him to kill 5 more cattle. Turner complied with Barnes' instructions. In the meantime the other men in the killing gang, including Tyler, continued working and stopped only after they had finished slaughtering 190 cattle. Barnes immediately informed Kramer of the foregoing incident and Kramer promptly reprimanded Tyler for signaling Turner to stop work. Tyler told Kramer that his actions were in accordance with the instructions given to him by the Union's officers. At the close of work that day, March 17., Kramer discharged Tyler for "interfering with production." At a conference with Kramer the next day, March 18, the Union's grievance committee requested Tyler's reinstatement which the respondent refused. There is no dispute that Tyler's participation in the concerted Union action of his group on March 17 was the immediate operative cause of his discharge1 although the respondent alleges a number of con- tributory causes hereinafter considered. The essential issue is whether or not his discharge for that reason is within the prohibition of Section 8 (3) of the Act against discrimination in regard to tenure of employ- ment to discourage membership in a labor organization. Under all the circumstances of this case we think that it is. The Union and the respondent after repeated discussions over a period of several weeks had been unable to adjust their differences 11 Each member of the killing gang performs a specialized operation in a production line. The "cattle knocker," working at the head of this line, initiates the slaughtering process by hitting the cattle on the head with a sledge hammer 11 Turner testified that he had spoken to Tyler and that Tyler had replied, "Go to lunch and if the boss says anything to you, why , tell him to see me " Tyler denied having any conversation with Turner on March 17 and claimed that Turner spoke to Thomas who told him to go to lunch . Thomas did not testify For the reasons that appear hereinafter, we are of the opinion that it is immaterial whether Tyler or Thomas instructed Turner to go to lunch. "Kramer testified that the immediate cause of Tyler 's discharge was his stopping the "cattle knocker." 11 996 DECISIONS OF NATIONAL LABOR REI,ATIONS BOARD concerning the working schedule of the killing gang. On March 16 the Union grievance committee notified the respondent that the killing gang intended to take concerted action on the next day to secure an adjustment of the grievance which negotiation had failed to effect. On March 17, in accordance with this notice and pursuant to the pre- arranged plan, Turner, the cattle knocker, upon Tyler's signal, ceased work when 185 cattle had been killed, but within a few minutes re- sumed his 'work, upon the intervention of the respondent's officials. None of the other killing-gang employees, including Tyler, actually 'stopped their work- until the day's production prescribed by the re- spondent-190 cattle-had been completed. We find that Turner ceased work,as a result of a current labor dispute and that the other employees by reason of their participation in the prearranged plan engaged in a concerted protest against a working condition which the inen deemed unf air although no stoppage occurred in their work. The respondent contends'that Tyler's action on March 17 constituted an unwarranted interference with production for which it was privileged to discharge, hini_without-violation of the Act. We do not agree with that contention.,- ,What we said in Hatter of Harnisch f eger Corpora- tion and Amalgamated Association of Iron, Steel & Tin Workers of North:Ame^iea; Lodge 111414 where we considered an analogous situ- atioli;has equal application here, namely : `...' Section 7 of the Act expressly guarantees employees the right to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. We do not interpret this to mean that it is unlawful for an employer to dis- charge an employee for any activity sanctioned by a union or otherwise in the nature of collective activity. The question before us is, we think, whether this particular activity was so indefensible, under the circumstances, as to warrant the respondent, under the Act, in discharging the stewards for this type of union activity. We do not think it was. The respondent contends that Tyler's discharge was induced not only by his action on March 17, but also by his insubordination and other misconduct. In support of this contention, evidence was adduced con- cerning a series of incidents in which Tyler had figured after his affiliation with the Union in August 1938. We shall discuss these incidents separately. -' Barnes, after testifying that Tyler was a good workman,15 stated, "Well, I don't know just what got the matter with him [Tyler] but It 9 N L R B 676, 686. Barnes replied in the affirmative to the question, " Generally speaking, Mr Barnes, would you say that he [Tyler] was a good workman1", put by the respondent's attorney. Barnes later stated on cross-examination, ". that Tyler was able to hold his own in that little place" [the killing gang] ARMOUR AND, COMPANY , 997 he fell off pretty bad the last week he was at our place. Of course, there was some little difficulty with him before that." 16 In support of this general statement Barnes testified about several alleged in- cidents. First; Barnes claimed that on March 14-3 days prior to Tyler's discharge-he heard Tyler tell two other employees to "take their time shortage down," 17 whereupon he [Barnes] immediately ordered Tyler to cease molesting the other workmen and to attend to his own work; and that Tyler complied with this order without replying. Tyler denied generally ever having told other workmen what to do but did not specifically deny this particular testimony of Barnes. While neither of the employees whom Tyler allegedly cautioned was called to testify, we find that the incident occurred as Barnes testified. Second, Barnes testified that later the same day, March 14, he asked Joe Douglas, a member of the killing gang, why he was late in returning from lunch, and was informed by Douglas that Tyler had told him not to return to work on time. Tyler specifically denied telling Douglas or any other employee to return to work late from lunch. Douglas was not called to testify. Barnes admitted not hav- ing questioned or cautioned Tyler about this incident. We find that Tyler did not tell Douglas to return to work late from lunch. Barnes testified that a day or so later during the week of Tyler's discharge on an occasion when Tyler and Douglas were working on the same carcass, he [Barnes] cautioned Douglas about his work, whereupon Douglas replied ".. . that his work was all right, as far as he was concerned"; that thereupon, Tyler told Douglas "to go ahead and get me [Barnes] told"; and that he [Barnes] imme- diately reprimanded them both. Tyler failed to deny Barnes' testi- mony concerning this incident. While Douglas did not testify, we find that the incident occurred as Barnes related it. Barnes also testified that during the week of March 17, 1939, he had instructed Sims, regularly employed as a "leg breaker," to assist the "floorsmen" in their work; that thereafter he observed Tyler talking to Sims and immediately ordered Tyler to attend to his own work and to cease discussing matters he was not entitled to talk about while at work; and that Tyler replied by calling him "a God damned liar.". Tyler, on the other hand, testified that this incident occurred not during his last week of employment but about 2 weeks prior to his discharge; that Barnes, after instructing Sims 18 to assist the "floorsmen," left the killing floor and went to his office; that when 11 The incident refeiled to here' and discussed , infra, occurred in the fall of 1938 , several months prior to Tyler's discharge 17 The only explanation of the meaning, of this expression provided by the record is :Kramer's -testimony tlhat Barnes re ported to him that Tyler had told these same em- ployees to "slow down and not work so fast" 18 Sims corroborated that part of Tyler's testimony which related to Sims 283030-42-vol 2v 64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sims began to help the "floorsmen" as instructed, Wacker Thomas, who was 15 or 20 feet away, shouted to Sims, "Get out of there"; is that as Sims was partially deaf, he did not hear Thomas, and Tyler, who was working near by said to Sims, ". . . Wacker is calling you" ; that Thomas then repeated his command and that Barnes, appar- ently having observed the foregoing episode, came out of his office and engaged Thomas in conversation; that Tyler became aware that 'Thomas was speaking in a loud voice but did not hear precisely what was being said by either Thomas or Barnes; that Barnes then accused him [Tyler] of telling Sims not to assist the floorsmen", which he [Tyler] denied; 20 that Barnes then said, "You wait until I am in the office then you tell the men what to do and what not to do," to which Tyler replied "... you are a damn liar." Barnes. thereupon left without reprimanding Tyler and returned about 5 minutes later in a pleasant mood. Tyler testified that Barnes habitually used strong language in the usual course of his work. While Barnes denied ever having cursed the members of the killing gang,21 he admitted that, at least on one occasion, the manner in which he treated the men in the killing gang was discussed at a conference between the respondent's officials and the Union's grievance com- mittee. We find that Tyler did not tell Sims not to assist the floors- men and that neither Barnes nor Tyler attached particular signifi- cance to the ensuing altercation between them. Barnes testified that on the afternoon of Thursday, March 16, ^i day prior to Tyler's discharge; Tyler called Barnes to him and told him that he [Tyler] would like to know the number of calves avail- able for slaughter that afternoon so that he [Tyler] could determine the proper quota for the killing gang to fill; that Barnes replied that he did not know the number of calves on hand, but that on obtaining such information, he would be able to determine, without Tyler's assistance, the number of calves to be slaughtered. Tyler testified that the incident occurred on the afternoon of the day of his discharge rather than on the preceding day; that at that time one of the other members- of the killing gang approached him just before returning to work following the lunch period and asked him to find out whether the killing gang was scheduled to slaughter calves that afternoon, so that the gang could prepare the proper tools; that with that in mind Tyler approached Barnes and said, "Barnes, have you got any calves?"; that Barnes walked away from Tyler without repl^ing but a few minutes later returned and, on being asked the 1° It appears that the' Union had some objections to Sims' doing the relatively higher skilled work of the °floorsmen" without receiving the usual wages for such work 20 Thomas did not testify, and Barnes, who admitted having talked to Thomas first, claims that he learned from Thomas that Tyler and not Thomas had told Sims not to assist the "floorsmen." 11 Barnes also stated that he very seldom cursed while on the "killing floor." ARMOUR AND COMPANY 999 same question again by.Tyler, said that there were 35 calves to be slaughtered. We find that Tyler was attempting to ascertain whether there were any calves to be slaughtered on the afternoon of March 17, but even if, contrary to our finding, Barnes' version of the in- cident is correct, Barnes admitted that Tyler's action was not of such a character as to induce his discharge.22 Barnes also testified that in the fall of 1938 23 Tyler refused to carry out Barnes' instructions to "pull snoots" until Kramer had spoken to him.24 Tyler failed to deny, and we find, that he did refuse to "pull snoots" on this occasion. Kramer stated, in answer to a question as to why Tyler was not discharged at the time he refused to "pull snoots," "We have been tolerant with our employees." In a further explanation of Tyler's discharge, Kramer stated that he had noticed a difference in Tyler's attitude after Tyler became shop steward in the first week of February 1939. In describing this difference in Tyler's attitude, Kramer stated, "He [Tyler] wasn't as interested in his work as he had been. He had more cut hides than he had had; and he also continuously talked, upon being brought in a number of times to the committee meetings, that we were short a man." Kramer stated further that he was notified for the first time that Tyler had been "cutting hides" by the foreman of the "hide cellar" during the week of Tyler's discharge,25 and that he [Kramer] thereupon spoke to Barnes about it. Barnes, however, made no reference in his testimony to such complaints about Tyler's work. Furthermore, no one appears to have complained to Tyler about the "cut hides," although Kramer stated that ordinarily mis- takes in work are' called to the attention of the employees. We do not credit Kramer's testimony concerning the "cut hides" and we find that Tyler was not responsible for them and that the respondent did not believe him to be responsible for them. We have found above that Tyler was responsible for some of the acts attributed to him by the respondent and was not responsible for others. But even if the respondent believed that Tyler was responsible for all of them, upon this ,record we are satisfied and find that they played no material part in the respondent's decision to discharge Tyler on March 17. None of the incidents were regarded by the respondent in themselves as causes for discharge when they ' Barnes admitted at the hearing that at the time of this incident, he had no intention of discharging Tyler because of it 21 Kramer testified that lie thought that the incident occurred sometime after January 1, 1939 Barnes stated definitely that it occurred in the fall of 1938. In view of this, we find that the incident occurred in the fall of 1938. 21 The record does not disclose any other circumstance suriounding this incident 21 Kramer testified that he received such information in the daily report of the foreman of the "hide cellar' and that although Tyler as not specifically named in any such report, Kramer was able to determine that Tvler had been responsible for the "cut hides" complained of by the location ou the hide of the "nick " 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred, and all of them were either adjusted as they arose or were ignored by the respondent at the time of their occurance. We find that the incidents discussed were not operative causes of Tyler's discharge on March 17 but were attempted justifications for his dis- charge for union activity.2G However, even if, contrary to our find- ing, the incidents cited did play a part,in the respondent's decision to discharge Tyler, nevertheless, since one of the, admitted causes was his union activity, as such, the discharge was discriminatory 2T We find that the respondent on March 17, 1939, discriminated in regard to the tenure of employment of Marcelus Tyler, thereby dis- couraging membership in the Union, and has thereby engaged in un- fair labor practices within the meaning of Section 8 (3) of the Act. We also find that by such action, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. C. Other alleged interference, restraint, and coercion As we have stated above, the Trail Examiner, in his Intermediate Report, found that the evidence adduced was insufficient to sustain the allegations of the complaint that the respondent threatened, urged, persuaded, and warned its employees at the Indianapolis plant to refrain from becoming or remaining members of the Union and threatened said employees with discharge and other reprisals if they became or remained members of the Union, thereby engaging in un- fair labor practices within the meaning of Section 8 (1) of the Act. The Union filed no exceptions to this finding. We have reviewed the evidence and agree with the Trial Examiner's conclusion. Accord- ingly, we shall dismiss these allegations of the complaint. 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 its operations 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 dis- 2i It may be noted that all the situations to which the respondent has adverted, with the exception of the charges that Tyler "cut hides" and refused to "pull snoots," had their origins in his union activities In our opinion the basic character of the respondent's objection to Tyler is revealed in Superintendent I{ramer's statement, heretofore set forth, that Tyler " continually talked, upon being brought in a number of times to the com- mittee meetings, that Nye were short a man . " n See Matter of The Kelly-epringfleld Tire Company and United Rubber Workers of America, Local No 26, etc, 6 N L R. B. 325, enf'd in Kelly-Springfield Tire Company v. N L R B, 97 F (2d) 1007 (C C. A 4) ; Matter of The Louisville Refining Company and International Association, Oil Field, Gas Well and Refining Workers of' America, 4 N L R B 844, enf'd as mod in N. L R B v, Louisville Refining Company, 102 F. (2d) 678 (C C A 6) cert, den 60 S Ct 81, and Matter of F S Frost and F. M Netzel, a partnership doing business as The Frost Rubber Works and Independent Union of Operating Engineers, 23 N L R B 1071 ARMOUR AND COMPANY 1001 putes burdening and obstructing commerce and- the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent discharged Tyler because of his union activities and we shall order the respondent to reinstate him to his former or substantially equivalent position,"' and to make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date, of his discharge to the date of reinstatement, less his net earning 29 during that period. - 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. United Packinghouse Workers of, America, Local No. 43, affili- ated with the Congress of Industrial Organizations, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Marcelus Tyler, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and ' is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and" (7) of the Act. 'a The respondent stated in its brief that upon the urgent request of the Union it had reinstated Tyler in its employ on October 11 , 1939 . However , the respondent failed to indicate whether Tyler was reinstated to his former or substantially equivalent position.' 29By "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 the unlawful termination of his employment and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Car- penters and Joiners of America, Lumber and Sawmill ik'orbers Union, Local No. 2590, 8 N. L. R. B 440. Monies receised for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work- relief projects. 1002 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act, by urging, persuading, and warning its employees at the Indianapolis plant to refrain from becoming or remaining members of United Packinghouse Workers of America, Local No. 43, affiliated with the Congress of Industrial Organizations, and by threatening said employees with discharge and other reprisals if they became or remained members' of United Packinghouse Workers of America, Local No. 43, affiliated with the Congress of Industrial Organizations. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Armour and Company, Indianapolis, Indiana, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Packinghouse Workers of America, Local No. 43, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging any of its employees or in any other planner discriminat- ing against its employees in regard to their hire or tenure of employment ; - - (b) In any other manner interfering with, restraining, or coercing its employees in -the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Marcelus Tyler immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Marcelus Tyler for any loss of pay which he may have suffered by reason of his discharge, by payment to him of a sum of money equal to the amount which he would normally have earned as wages during the period from the date of his discharge to the date of the offer of reinstatement, less his net earnings 30 during that period, deducting, however; from the amount otherwise due to the said Marcelus Tyler, monies received by him during said period for work performed upon Federal, State, county, municipal, 10 See footnote 29, supra ARMOUR AND COMPANY 1003 or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munic- ipal or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places throughout its plant at Indianapolis, Indiana, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating : (1) that the respondent will not engage in the con- duct from which its' 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; and (3) that the respondent's employees are free to become or remain members of United Packinghouse Workers of America, Local No. 43, affiliated with the Congress of Industrial Organiza- tions, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Eleventh 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 be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act, by urging, persuading, and warning its employees at the In- dianapolis plant to refrain from becoming or remaining members of United Packinghouse Workers of America, Local No. 43, affiliated with the Congress of Industrial Organizations, and by threatening said employees with discharge and other reprisals if they became or remained members of United Packinghouse Workers of America, Local No. 43, affiliated with the Congress of Industrial Organizations. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.