The Cudahy Packing Co.

In the Matter of THE CUDAHY- PACKINd COMPANY and LOCAL` No. 55, UNITED PACKINGHOUSE WORKERS OF AMERICA, OF PACKINGHOUSE WORKERS ORGANIZING COMMITTEEj AFFILIATED WITH C. I. O. Case No. C-1375.-Decided September 7, 1940 Jurisdiction : meat packing industry Unfair Labor Practices In General: employer responsible for anti-union statements of assistant foreman. Interference, Restraint, and Coercion, Employer by encouraging membership of its employees in an organization which Board had found in earlier case to be illegally dominated held to have violated Section 8 (1). Discrimination,: discharge and lay-offs of employees because of their union mem- bership and activity. Refusal to reinstate an employee following his illness because of his union membership and activity constitutes a violation of Section 8 (3). Remedial Orders : reinstatement and back pay awarded. Dlr. Lester Asher, for the Board. Mr. E. S. Stringer, of St. Paul, Minn., and Mr. Thomas Creiglt, of Chicago, Ill., for the respondent. Elizabeth W. Weston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Local No. 55, United Packinghouse Workers of America, of Packinghouse Workers Organizing Committee, affiliated with C. I. 0., herein called Local No. 55,E the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region (Minneapolis, Min- nesota), issued and duly served its complaint dated April 7, 1939, I Local No . 55 was designated in the original charge , filed December 3, 1938, as United Packinghouse Workers Union, Local 756, and in the amended charge filed February 17, 1939 , as United Packinghouse Workeis Local Industrial Union #756 through Packing- house Workers Organizing Committee affiliated with the Congress of Industrial Organiza- tions Its local number was changed from 756 to 55 at some time between January 3, 1939, and March 24, 1939 27 N. L R. B., No. 31. 118 THE CUDAHY PACKING COMPANY 119 against The Cudahy Packing Company, Newport, Minnesota, herein called the respondent, and, on April 19, 1939, issued and duly served its amended complaint against the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Concerning the unfair labor practices, the amended complaint alleged it substance that the respondent (1) dis- couraged membership in Local No. 55 by discriminating with respect to the hire and tenure of employment of eight named employees" be- cause they joined and assisted Local No. 55 and engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining and other mutual aid and-protection; and (2) by suggesting, advising, urging, and warning its einployees'not to become or remain members of Local No. 55, by the above acts of discrimina- tion, and by other acts, interfered with, restrained, 'and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 12, 1939, the respondent filed its answer to the complaint and on April 24, 1939, its answer to-the amended complaint, admitting certain allegations as to the nature of its business but denying that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant to notice duly served upon the parties, a hearing was held in St. Paul, Minnesota, from April 24 to May 1, 1939, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the opening of the hearing, the Trial Examiner denied a motion by the respondent to make the complaint more definite and certain, ruling that if any evidence introduced by the Board should take the respondent by surprise, it might, at the close of the Board's case, have a reasonable length of time to meet the issues raised by such evidence.2 The Trial Examiner granted, over the respondent's objection, a motion by counsel for the Board to strike paragraph 8 of the answer." The Trial Examiner also granted, over the respondent's objection, a motion by counsel for the Board to amend the amended complaint by adding thereto the allegation that the respondent on March 15, 1939, dis- charged Arthur Robinson because of his membership and activities in- 2 At the close of the Board's case, the respondent waived the piivilege of a continuance and proceeded with its defense 8 This paragraph contained general statements apparently intended as allegations of a conspiracy between Local No 55 and the Board's officers and agents in the Eighteenth Region. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 55, thereby discouraging membership in a labor organiza- tion. The Trial Examiner granted the respondent 5 days within which to amend its answer with respect to the alleged discrimination against Robinson, and ruled that no evidence relating to this issue would be received until the expiration of said 5-day period.4 During the hearing, the Trial Examiner granted without objection a motion by counsel for the Board to dismiss the amended complaint in so far as it alleges that the respondent discriminated with respect to the hire and tenure of employment of Fred Shortreed, Thomas Frauen- shuh, and Ted Huston. At the close of the hearing the Board moved to conform the complaint, as amended, to the proof with respect to the dates of certain alleged acts of discrimination, and the respondent moved that the allegations of the amended complaint with respect to Robinson's discharge be deemed denied by the respondent. Both these motions were granted by the Trial Examiner. The respondent also moved, at the close of the hearing, that the complaint be dismissed on the ground that the evidence showed that the respondent had not engaged in the alleged unfair labor practices. The Trial Examiner reserved ruling on this motion. During the course of the hearing the Trial Examiner made numerous other rulings on motions, on ob- jections to the admission of evidence, and on a demand by counsel for the respondent that the Board produce a certain affidavit executed prior to the hearing by one of the witnesses. The Bbard has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The Trial Examiner's rulings, with one exception,-5 are hereby affirmed. Pursuant to leave granted to all parties by the Trial Examiner, the respondent filed a brief with the Trial Examiner after the close of the hearing. On September 27, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he denied the respondent's motion to dismiss the complaint; found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1)' and (3) and Section 2 (6) and (7) of the Act; and recommended that the respondent cease and desist therefrom and reinstate six employees found by him to have been discriminated against to their former posi- tions with compensation from the respective dates of the respondent's discriminations against them. On October 18, 1939, the respondent * On April 27, 1939, the third day of the hearing, the respondent waived any objection on the ground of insufficient notice to the introduction by the Board of evidence with respect to Robinson's discharge. 5 See Section III B, infra In this instance , where the Trial Examiner erred in rejecting evidence offered by the respondent , the respondent made an offer of proof. Since we accept the offer of proof and find the fact to be as claimed by the respondent, the respond- ent was not prejudiced by the Trial Examiner's ruling. THE CUDAHY PACKING COMPANY 121 filed exceptions to the Intermediate Report. The Board has consid- ered the exceptions filed and, save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 6 The respondent, The Cudahy Packing Company is a Maine cor- poration having its principal executive office at Chicago, Illinois. It is chiefly engaged in the purchase and slaughter of livestock and the processing and marketing of the products therefrom.7 The respond- ent transacts business throughout the United States and in many foreign countries 8 The respondent's slaughtering and meat-packing plants are located in Omaha, Nebraska ; Kansas City, Kansas; Sioux City, Iowa ; Los Angeles, California; Wichita, Kansas; North Salt Lake, Utah; Jersey City, New Jersey; Newport, Minnesota; 9 San Diego, California; Denver, Colorado; Detroit, Michigan; and Albany, Georgia. It owns and operates a soap and Old Dutch Cleanser factory and shops for the construction and repair of refrigerator cars in East Chicago, Indiana; a plant for the refining of vegetable oils near Memphis, Tennessee; an Old Dutch Cleanser and soap factory in Toronto, Ontario, Canada; a wool scouring, combing, and storage plant in, Providence, Rhode Island ; and a salt mine and refinery in Lyons, Kansas. The respondent also owns and operates produce collecting and processing plants in many States and operates 80 branch houses ' located in the principal cities of the United States. In addition, it owns and operates 1,496 refrigerator cars and 44 tank cars. The ° See Matter of The Cudahy Packing Company and Packinghouse Workers Local 1fl4u8- trial Union No 62, affiliated with the Committee for Industrial Organv'ations, 5 N. L R. B. 472, enf'd as mod 102 F. (2d) 745 (C. C. A. 8), rehearing denied April 25, 1939, cert den. 308 U. S 565 7In addition, the respondent is engaged either directly or through its subsidiaries in the following lines of business : Refining vegetable oils and the production and sale of shortening and cooking and salad oils ; manufacturing and marketing of soaps and cleans- ing powders, pulling, scouring, and combing wool and the marketing of wool and tanned sheep skins ; purchasing, packing, and selling eggs, poultry, and cheese ; purchasing cream and butter, and manufacturing and selling butter, margarine and ice cream ; mining rock salt, operating brine wells, and producing, refining, packing, and selling all kinds of salt ; and owning, maintaining, and operating refrigerator and tank cars for the transportation of its products 8 The respondent owns all, or substantially all, the stock of the following subsidiaries : The Cudahy Packing Co of Alabama ; the Cudahy Packing Co. of Louisiana, Ltd. ; Barry Machinery Co ; The Dow Cheese Co ; Bissell Leather Co.; Olneyville Wool Combing Co.; The Cudahy Packing Co , Ltd. (foreign) ; Cudahy and Company, Ltd. ( foreign) ; and American Salt Corporation. ° This plant is located just outside of St. Paul and is often referred to as the St. Paul plant. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's securities are registered on the New York and Chicago Stock Exchanges. The respondent has total assets of approximately 82 million dollars. During the fiscal year ending October 31, 1938, the gross sales of the respondent and its subsidiaries amounted to approximately $200,000,- 000. The respondent's annual pay roll amounts to approximately $7,500,000. The only plant of the respondent involved in this proceeding is the one located at Newport, Minnesota, -herein called the Newport plant. Approximately 650 production workers are employed in the Newport plant which has an annual pay roll of approximately $1,000,000. A substantial proportion of the livestock slaughtered at the New- port plant originates outside the State of Minnesota. Approximately 75 per cent of the products of such plant are shipped by 'the respond- ent to points outside Minnesota. The fiscal affairs of the Newport plant are handled as a part of the general accounting system of the respondent rather than as a separate entity and its operations are governed by the Chicago office. The labor policies of the plant are determined in Chicago. The Newport plant is registered for inspection with the United States Department of Agriculture. Approximately 18 Federal in- spectors are present at the plant during manufacturing operations. H. THE ORGANIZATIONS INVOLVED Local No. 55, United Packinghouse Workers of America, of Pack- inghouse Workers Organizing Committee, affiliated with C. I. 0., is a' labor organization admitting to membership employees of the re- spondent at the Newport plant. Packinghouse Workers Union of St. Paul, Minnesota, herein called the Independent Union is a labor organization admitting to its mem- bership employees of the respondent at the Newport plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On February 18, 1938, the Board issued a Decision and Order against the respondent in Case No. C-26710 in which we found that the respondent had engaged in unfair labor practices within the meaning of Section 8 ( 1), (2), and (3) of the Act. In particular we 10 Matter of The Cudahy Packing Company and Packinghouse Workers Local Industrial Union No. 62 , affiliated with the Committee for Industrial Organization, 5 N. L. R. B 472, enf'd as mod 102 F. ( 2d) 745 (C. C A. 8), rehearing denied April 25, 1939, cert den. 308 U S 565. THE CUDAHY PACKING COMPANY 123 found that the respondent had dominated and interfered with the formation and administration of the Independent Union; that on July 6, 1937, the respondent had discouraged membership in a labor organization" by the discriminatory lay-off of Arthur Maurer; and that by the aforesaid acts the respondent had interfered with, re- strained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. During the period with which we are concerned in the instant case, our Order in Case No. C-267, directing the respondent, inter alia, to cease recognizing the Independent Union as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, was pending in, proceedings for review in the United States Circuit Court of Appeals for the Eighth Circuit.12 Meanwhile, the Independent Union re- mained unaltered and the respondent continued to recognize and deal with it as the -exclusive representative of its employees for the pur- poses of collective bargaining. On May 3, 1938, the respondent re- newed for an indefinite term a contract it had entered into with the Independent Union on June 7, 1937,13 wherein such exclusive recogni- tion had been granted. On November 5, 1938, the contract was amended with respect to certain provisions concerning hours of work, and it was still in effect at the time of the hearing herein in April 1939. The respondent also engaged in other conduct having the neces- sary effect of fostering and supporting the illegally dominated Inde- pendent Union and discouraging membership in Local No. 55. In September or October 1938, at a meeting between the grievance com- mittee of Local No. 55 and Grover Foster, the respondent's plant manager, Francis Raehsler, acting president of Local No. 55,14 asked Foster if Local No. 55 might have the privilege of collecting dues in the respondent's plant as the Independent Union was doing. Fos- ter denied this request, disclaiming knowledge that the Independent Union was collecting dues in the plant. However, from the evi- dence set forth below it is clear that the privilege thus denied to Local No. 55 was exercised by the Independent Union both before and after the conference in which the matter was brought to the "The organization involved was Packinghouse Workers Local Industrial Union No 62, affiliated with the C. I. 0 , a predecessor of Local No. 55. i2 On March 27, 1939, subsequent to the filing of the charge in this proceeding, our Order in Case No. C-267 was enforced , as modified , by the United States Circuit Court of Appeals for the Eighth Circuit, 102 F ( 2d) 745 (C. C. A 8). The respondent's application for rehearing was denied by the Circuit Court of Appeals on April 25, 1939. The re- spondent's petition to the Supreme Court of the United States for a writ of certiorari was denied on October 9, 1939 , 308 U. S 565. 13 Our ' Order in Case No C-267 directed the respondent to cease and desist from giving effect to this contract. 14 The president of Local No . 55 was Arthur Maurer, whom we found in Case No. C-267 to have been discriminatorily laid off by the respondent on July 6, 1937. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's attention. That the respondent was aware of this activ- ity and acquiesced in it likewise cannot be doubted. Raehsler testified that during 1939 he saw employees William Cal- lahan and Glenn Phillips leave their work in the hog cut department, where Raehsler was employed, collect dues, and distribute Inde- pendent Union books to employees during working hours when John Dozer, foreman of the department, was present. Arthur Robinson, another member of Local No. 55 employed in the hog cut department, also testified that he had seen Callahan, Phillips, and one Don Jones, an officer in the Independent Union employed in another depart- ment, collecting dues for the Independent Union and distributing buttons and cards in the hog cut department. Robinson further testified that on one occasion during January or February 1939, when Phillips was engaged in this activity during working hours, Dozer was present and in a position to observe Phillips. • Ray Ptacek, a member of Local No. 55 who had also been a member of the Independent Union from May -1937 to October 1938, testified that while he was employed in the sweet-pickle department during the spring of 1938 and in September and October of that year, he frequently observed William Douville, a director of the Independent Union whose regular work was the branding of hams, engaged in collecting dues from employees in the sweet-pickle department and sending men to the cafeteria during working hours 15 Ptacek testi- fied that Henry Steinfeld land Andrew Sirbascu,16 assistant foremen in the department, were present on these occasions and close enough, to observe Douville's activities. Joan LaMotte, another member of Local No. 55 who was also en- rolled in the Independent Union, testified that George French, an- officer of the Independent Union,17 had solicited her membership in* the Independent Union at a time when she was employed in the sausage department during August or September 1938, and had again ' Cf the testimony of LaMotte , another witness, indicating that the Independent Union made use of the cafeteria as a headquarters . In Case No . C-267, we found that the articles of association of the Independent Union were signed in the plant cafeteria, during working hours on 3 consecutive working days , by approximately 600 of the respondent's employees. The employees were sent to the cafeteria for this purpose in relays by their foremen , 5 N. L. R. B.•472, 477. 11 Sometimes referred to in the record as Andy Sebasti 17 At p. 233, Raehsler testified as follows with respect to French's employment with the respondent: Well, he used to be the scale man and now he has got fi man to take care of the scale and so forth , and I see French helping him carrying the scales and taking care of the scales, . . Q. (By counsel for the Board.) Do you know what he does at the plant? , A. Well, be Is all over the plant. Q. Do you know what he does all over the plant? A. Well, I have seen him sitting a lot and talking and smoking and drinking pop during working hours. Mr. Stringer. In other words , he doesn't work very much. THE CUDAHY PACKING COMPANY 125 solicited her in the lard department subsequent to September 19, 1938. On that occasion, LaMotte had a 10-minute conversation with French during working hours, paid Independent Union dues to him, and received her membership button from him in the presence of her foreman, Gus Stoderl. LaMotte further testified that about a week after this occurrence Stoderl told her, during working hours, that she "was wanted up in the cafeteria"; that she went to the cafe- teria and there received her Independent Union book from French, who was sitting in the cafeteria with Don Jones and other persons; that no meals were being served in the cafeteria at that time; and that when she returned to her work, 15 minutes later, Stoderl sent another employee to the cafeteria. Raymond Foster, a former employee of the respondent who had been a member of the Independent Union, testified that while he was employed by the respondent on the loading dock, in 1939, he had seen Gunnar Thompson, a loading-dock employee and Independent Union shop steward, collecting dues and passing out Independent Union books to employees in the loading department on occasions when Earl O'Reilly,"' the assistant foreman of the department, was present. O'Reilly, Stoderl, Steinfeld, and Sirbascu, called as witnesses by the respondent, denied that they had ever seen anyone collecting dues for the Independent Union during working hours. Stoderl further denied that lie had sent LaMotte to the cafeteria for the Independent Union. Dozer, however, did not testify in refutation of the testimony of Raehsler and Robinson as to the activities of the Independent Union in the hog cut department; nor was it denied by any witness that the Independent Union's officers and shop stewards actually did collect dues and transact other Independent Union busi- ness in the cafeteria and the departments above mentioned, during working hours, and in the presence of the respondent's supervisory employees. Activity as widespread as this cannot have escaped the notice of the respondent's foremen. We do not credit the denials of Stoderl, O'Reilly, Sirbascu, and Steinfeld, and find, as did the Trial Examiner, that the Independent Union enjoyed the privilege, denied to Local No. 55, of soliciting members and collecting dues during working hours on the respondent's premises. Prior to October 22, 1938, Foster had met with the grievance com- mittee of Local No. 55 on several occasions and had entertained grievances presented by it. On October 22, however, he called the three members of the committee individually to his office and informed them, according to his office memorandum of the conversations, that the employees should present their own grievance unless they desired the Independent Union to handle for them, who had 11 Sometimes referred to in the record as Earl Riley. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the right to collective bargaining. The undersigned [Foster] advised the committee to tell individual employees that they did not desire to handle their grievances and that at any time an employee wished to present a grievance he could go direct to the Superintendent's Office and state his grievance for con- sideration. Foster told Raehsler , one of the members of the grievance committee; that there would be no more meetings between Foster and the com- mittee. The respondent did not thereafter entertain any griev- ances presented by Local No . 55, but continued to deal with the In- dependent Union with respect to grievances down to the time of the hearing. The respondent thus effectively discouraged its employees from adhering to Local No. 55 or otherwise seeking to act collectively through it or through any organization other than the one con- trolled by the respondent. On or about April 15, 1939, Harry Donovan, the respondent's as- sistant foreman in the pork trim department , told Mary Kamen- chuck, who had been laid off by the respondent on October 21; 1938,1° that she was known as a leader in Local No . 55, and that "You should always stick with the company , you should never join with the CA. 0.; if you are working for the company stick with them . . . What are the C. 1. O. They are just nothing but a bunch of Reds. The respondent seeks to avoid responsibility for Donovan 's conduct on the ground that "the making of such statements were not within Donovan's authority ."' This position is untenable . Inasmuch as Donovan is a supervisory employee , the respondent is responsible for his conduct tending to intimidate employees in the exercise of their right of self-organization.20 iB We find in Section III, B , infra, that her lay-off was discriminatory n in Consumers Poawei Company v National Labor Relations Board, decided June 27, 1940 (C C. A. 6) enforcing Matter of Consumers' Power Coinpany and Local No. 740, United Electrical, Radio and Machine Workers of America, 9 N. L. R. B 701, the United ,States Circuit Court of Appeals commented as follows upon a similar situation : The contention that the several anti-union acts of . . . supervisors amounting to intimidation, were not authorized and were beyond the scope of the authority en- tiusted to these men, must be rejected, not necessarily upon a strict application of the doctuue of icspondent superior as it has been applied in private controversies arising out of tort and contract. It has repeatedly been noted that the National Labor Relations Act contemplates the protection of the public rights vchicli it cieales and defines . . . It seems to us, in view of the public rights involved and the remedial nature of the proceeding designed for their preservation and protection, that acts of coercion and intimidation by supervisory employees may be restrained and their resumption inter- dicted by appiopnate action of the Board, even in the absence of clear demonstration of prior authorization of subsequent ratification, at least where the circumstances are such as to induce in subordinate employees a reasonable apprehension that the acts condemned reflect the policy of the employer. See also Matter of Swift if Company, a Corporation and Amalgamated Meat Cutters and Butcher Woe!men of Noitla America, Local No. 641, and United Packing House Workers Local Industi ial Union No 300, 7 N. L R B. 269, enf'd as mod, 106 F. (2d) 87- (C C. A. THE CUDAHY PACKING COMPANY 127 From the foregoing, it is clear that the respondent encouraged the membership of its employees in the Independent Union, an or- ganization we have found to be illegally dominated by the respondent, and discouraged membership in Local No. 55. We find that by this conduct the respondent interfered with, restrained, and coerced its employees in exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination with respect to hire and tenure of employment The complaint, as amended, alleges that the 'respondent discrimina- torily laid off Mary Kamenchuck on October 21, 1938, laid off Joan LaMotte on October 26, 1938, laid off Ray Ptacek on December 15, 1938, demoted George Agner on March 2, 1939, discharged Arthur Robinson on March 15, 1939, and refused to reinstate Francis Raehs- ler after an illness, on March 21, 1939, and thereafter refused to rein- state said employees, for the reason that each of diem had joined and assisted Local No. 55. The respondent admits the lay-offs, discharge, demotion, and refusal of reinstatement, but denies that by these acts the respondent discriminated against the employees named on account of their affiliation with Local No. 55. At the hearing, as part of its defense to the charges of discrimina- tion, the respondent offered to prove that a substantial number of the respondent's employees are members of Local No. 55. The Trial Examiner excluded evidence to this effect and rejected the respond- ent's offer of proof. We believe that this ruling of the Trial Ex- aniiner was erroneous. We therefore accept the respondent's offer of proof and find that a substantial number of the respondent's employees are iueuibers of Local No. 55. This, as well as the respond- ent's conduct described in Section III A, supra, has been duly con- sidered by us in connection with the individual cases of alleged discrimination discussed below. 1. Mary Kavwnchvck and Joan LaMotte Mary Kamencliuck was employed by the respondent as a trimmer in the pork-trine department for a few clays in December 1928, and was next employed front April to December 1936. After a 10 months' lay-off she was recalled to work and was employed in the same position from October 1937 to February 1938, except for a short lay-off in November. She was rehired in the pork trim department on July 22, 1938, and worked until October 21. On that date her 10), reh. den. 106 F. (2d) 94, Matter of H J Heinz Company and Canning and Pickle Worker's, Local Union No 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North _Lneiica, American Federation of Labor, 10 N L R B 963, enf'd 110 P (2d) 843 (C. C A. 6) ; Matter of Em4co Derrick and Equipment Company (D & B Dtii,ision ) and Steel Workers Organizing Committee, 11 Ni L It B 79. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistant foreman, Harry Donovan, laid her off, telling her that the force was being reduced. Donovan gave Kamenchuck no explana- tion when she protested that there were inexperienced girls still working in the department, junior to her in point of service. She then complained to Edward Prochaska, the department superintend- ent, who remarked that she did not have "six months' rights." 21 About a week after her lay-off Kamenchuck asked Foster, the plant super- intendent, why she had been laid off, stating that in the past she had always been laid-off "according to seniority rights," and that this practice had not been followed with respect to her October 21 lay-off. Foster replied that she did not have "six months' rights" and that her lay-off was not due to bad work. She asked to be placed in another department and Foster replied that this was impossible be- cause the work was slack. E. M. Anderson, the respondent's em- ployment manager, who was present at this interview, took Kamenchuck's telephone number and promised to call her if there was work for her. She has not since been recalled to work, nor, up to the time of the hearing, had she obtained any employment elsewhere. Kamenchuck joined the Independent Union in July 1938 but she stopped paying dues to that organization when she joined local No. 55, late in September 1938. She attended meetings of Local No. 55 during the month of October. As set forth in Section III A, above, Donovan told her, in April 1939, that she was known as a leader in Local No. 55. Whether or not she was a "leader," Donovan's state- ment shows not only the respondent's hostility to Local No. 55 but also its knowledge of Kamenchuck's membership and activities therein. Joan LaMotte was first employed by the respondent in the pork trim department in November 1928. She worked in the pork-trim and sausage departments until February 1929, when she left work because of illness. Her next employment was in the hog offal depart- ment, from October 1929 to January 1930. In October 1935 she was recalled to work in the pork trim department and shortly thereafter she was transferred to the lard department where she worked, except for brief lay-offs, until December 1936. LaMotte was next employed in the sausage department from August 12 to September 10, 1938. She was 'absent on account of illness from September 10 to 19 and then was reemployed in the lard department. On October 26, about an hour after she had gone to work, her foreman, Gus Stoderl, handed her a lay-off slip which stated that she was being released on account of "reducing force." LaMotte asked Stoderl why she was being laid u This referred to the fact that Kamenchuck did not have the 6 months ' continuous service requisite to acquiring seniority status under the rules pertaining to seniority in effect at the respondent's plant The respondent 's seniority rules are discussed below. THE CUDAHY PACKING COMPANY 129 off when girls junior to her in point of service in the department were being retained. Stoderl said he did not know and suggested that she see Foster . Foster told LaMotte that the force was being reduced and that she did not have "six months' rights." About 2 weeks later, LaMotte left her telephone number with Anderson, who said that he would call her if there was any work for her. She has not since been recalled by the respondent, nor had she obtained any other employ- ment up to the time of the hearing. LaMotte had joined the Independent Union in September 1938. On October-12 she joined Local No. 55. She attended two open meetings of Local No. 55, one on October 12 and the second on October 25, the evening before she was laid off. Kamenchuck's and LaMotte's lack of "six months' rights" is ad- duced by the respondent to 'refute the charge that they were selected for lay-off on account of their membership in Local No. 55. By the seniority rule which had been in effect at the respondent's plant for many years, an employee who has been continuously employed in one department of the plant for a period of 6 months is deemed to have "seniority." Upon being laid off such employee's name is placed upon "rehire list," entitling him to be reemployed in the department where his seniority is established, in preference to persons having no senior- ity. If the employee is laid off for a period exceeding 60 days,22 however, his seniority is lost.23 The same loss results from the em- ployee's transfer from one department at the plant to another, except where such transfer is made at the respondent's direction or request.24 Kamenchuck, owing to her 10 months' lay-off in 1937, did not have seniority in October 1938, under the terms of the respondent's seniority policy. Similarly, LaMotte had never acquired seniority because she had never been employed by the respondent continuously for 6 months. Foster testified, however, that the respondent attempts, so far as pos- sible, "to reemploy former employees that have been laid off either the same day or as soon as possible thereafter, for more reasons than one, maintaining the same employees and result in a considerable saving in our employment insurance by working the same employees con- tinuously." Again, he testified that the respondent's employment manager customarily makes a note of an employee's address and tele- phone number on the day when the employee is laid off, a practice 22 Foster testified that this period , prior to the contract of June 1937 between the respond- ent and the Independent Union , was 1 day The June 1937 contract specified a period of 90 days, while the May 1938 contract between the respondent and the Independent Union specifies 60 days 23 It is not clear from the record whether or not his name is removed from the "rehire Lst" at the end of 60 days Foster testified that an employee recalled to work after a lay-off of 61 days would have lost all seniority, group insurance , and vacation' rights 24 Under the respondent 's transfer policy, all transfers are presumed to be at the employee's request, tuts involving forfeiture of seniority rights after 60 days , unless the respondent's records affirmatively show the contrary 323428-42-vol 27-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which is apparently not confined to employees with seniority. It is obvious that this record is kept for the purpose of recalling former employees to work. Moreover, it appears that employees without sen- iority are frequently rehired. It is thus apparent that plant service Short of the term requisite to attain seniority status is not ignored by the respondent in selecting persons for employment. The circum- stances under which Kamenchuck and LaMotte had been laid off in ,the past also indicate that the normal industrial practice of laying off inexperienced employees first, when reducing force, is observed by the respondent. However, be that as it may, a comparison of the employ- ment records of Kamenchuck and LaMotte with those of other em- ployees in their respective departments who similarly lacked seniority, reveals that the two employees in question fared badly as compared with fellow employees in a comparable position. There were about 32 women employed in the pork-trim department at the time of Kamenchuck's lay-off. Fifteen or sixteen of these em- ployees had seniority in the department. Of 16 who lacked seniority, Kamenchuck was the only one who belonged to Local No. 55. Kamen- chuck and three other employees in the group of 16 who lacked sen- iority had been employed by the respondent in the pork-trim and other departments prior to 1938, but at least 9 of the remaining 12 had no previous plant experience. All 16 employees in the group lacking seniority, except Kamenchuck, were hired 25 in the pork trim depart- anent during the first 2 weeks of October 1938, 3 months after Kamen- chuck was last hired in the department; 8 of them were hired on Octo- ber 13 and 14, but 1 week before Kamenchuck's lay-off. On October 21, the day when Kamenchuck was laid off, and on the following clay, eight of the women hired in the department in October were also laid off. Four employees hired in the department in October, who had no previous plant experience, were retained in the pork trim department until November 23, 1938, a month after Kamenchuck's lay-off, and, after being laid off on that date, these same four were reemployed in the same department from November 28 to December 5 The three employees who, like Kamenchuck, had previously been employed in the plant, were retained in the department until December 19, 1938, and after being laid off on that date were rehired in the same depart. relent. Five employees without previous plant experience, who were hired in the pork trim department in October and laid off with Kamen- chuck on October 21 and 22, were reemployed by the respondent in November, three in the pork trim department and two in other departments. 25 Two of these, employees with previous plant exper ence, were transferred from the lard department to the pork trim department on October 1 and October 5, 1938, respectively. =G The record does not show whether or not these employees were reemployed subsequent to December 5, 1938 THE CUDAHY PACKING COMPANY 131 The situation in the lard department'at the time of LaMotte's lay-off -was similar. There were from 15 to 18 women employed in the de- partment when LaMotte was laid off on October 26. Seven or eight of them had been hired after September 19,1938, the date when LaMotte was placed in the lard department, and none of these seven or eight employees was a member of Local No. 55. Four employees having no previous plant experience and one whose previous experience was practically negligible 27 were hired in the lard department between October 4 and 18, 1938. LaMotte, an experienced employee, had been required to teach some of the new employees how to do the work. Notwithstanding her superior experience, however, LaMotte was the only employee in the department who was laid off during either the week ending October 29 or the 3 succeeding weeks. The four em- ployees with no previous plant experience who were hired in October, were retained in the lard department until November 22 and 23. One of these was rehired in the cafeteria a few days after being laid off from the lard department, and was later rehired in the lard depart- ment. Leyden, whose previous plant experience had been negligible, -was retained, after LaMotte's lay-off, until December 21, 1938, and, after being laid off on that date, was twice rehired in the same depart- ment. LaMotte's work had never been criticized, and the respondent makes no contention that she was an unsatisfactory employee. In summary, both Kamenchuck and LaMotte were competent em- ployees. Compared with their respective groups of fellow employees who also lacked seniority, Kamenchuck and LaMotte each had,con- siderably more experience in her respective department and in the respondent's plant than a majority of the others, and had each been employed for the longest continuous period in her respective depart- ment when the reductions of force occurred in October 1938. Yet, in selecting 9 out of a group of 16 employees to be laid off in the pork-trim department, the respondent selected Kamenchuck ahead of 4 new employees and 3 others whose plant experience does not appear to be better than hers, all 7 of these employees being 3 months junior to Kamenchuck, so far as their last continuous employment in the pork-trim department is concerned. In selecting one employee to be laid off in the lard department, the respondent chose LaMotte ahead of five others who were then junior to her in the department, four of whom had no previous plant experience. The fact that Kamenchuck and LaMotte°lacked seniority as defined under the respondent's senior- ity system cannot and does not explain this more favorable treatment accorded to other employees who not only lacked seniority but also lacked experience in the work. 2' Dorothy Leyden who had been employed by the respondent once previously, for 1 week in 1937 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An additional explanation of these lay-offs offered by the respondent is that both Kamenchuck and LaMotte have husbands who are em- ployed. The respondent asserts that it is its policy to discriminate against married women employees under these circumstances. To prove this assertion the respondent offered in evidence a memorandum directed to Foster and others from one of the respondent's Chicago officials, dated April 14, 1933. This memorandum reads, in part, as follows : What we want you to do is to see that on all future employ- ment of female help that no married woman is hired unless there should be some very good reason for so doing in that she probably is the sole support of the family but under no consider- ation are they to be employed where their husbands are working. . .. it might be well from time to time in making changes to see that those that are married and have husbands employed are the ones to be laid off, if and when occasions for laying off occur. In a memorandum dated April 18, 1933, Foster instructed his depart- ment superintendents to keep these instructions in mind "in adjust- ing gangs" in the future. Foster testified that this policy, promul- gated in 1933, was still in effect at the time of the hearing, but the respondent produced no documentary evidence of the existence of the policy more recent than the memoranda above described. The em- ployment records of Kamenchuck and LaMotte themselves demon- strate that the asserted policy with respect to the employment of married women was repeatedly disregarded by Foster and his subordi- nates. Kamenchuck's husband had been employed since April 1936. She was rehired by the respondent in that month, in October 1937, in December 1937, and in July 1938. Her personnel record reveals her marital status, and the respondent presumably could have ascer- tained by inquiry at any time the fact that her husband was employed. LaMotte was married in June 1935. She was rehired by the respond- ent thereafter in October 1935, at which time she notified the respond- ent's employment office of her change of name, and in April 1936 she applied, through the respondent, for group insurance naming her husband as beneficiary. She was rehired by the respondent on seven occasions subsequent to December 1935. Under these circumstances we cannot credit Foster's testimony respecting the currency of the married women policy in 1938, nor accept this alleged policy as the explanation for the lay-offs of Kamenchuck and LaMotte. In the absence of any other satisfactory explanation for the selec- tion of Kamenchuck and LaMotte to be laid off, and in view of all the foregoing facts, particularly the unfavorable treatment received THE CUDAHY PACKING COMPANY 133 by Kamenchuck and LaMotte as compared with that accorded to; fellow employees who, though similarly situated with respect to lack of 6 months' seniority rights, were-actually junior in point of service to Kamenchuck and LaMotte and less experienced than they, the fact, that Kamenchuck and LaMotte were the only members of Local No. 55 in their respective groups, and the respondent's hostility to Local No. 55 found by us in Section III A, above, we conclude, as did the Trial Examiner, that Kamenchuck and LaMotte were selected for lay- off on account of their affiliation with Local No. 55. 2. Ray Ptacek Ray Ptacek had been employed by the respondent since May 1936 in the sausage, hog-kill, sweet-pickle, and dry salt departments and in the hide cellar. He had seniority in the sweet-pickle department in 1938 but lost it by working in other departments for more than 60 days. From May 19 to September 12, 1938, he was employed in the sausage department earning from $23 to $27 per week. On the latter date he was transferred to the sweet-pickle department, where he worked until October 21, earning the same wage. Ptacek had been a member of the Independent Union since May 1937. In August 1937 he joined Local No. 55, but he did not become an active member until about October 1, 1938. At that time he started paying his dues to Local No. 55 regularly and attending meetings, including shop stewards' meetings. On October 21, while Ptacek was working in the sweet-pickle de- partment, Freddie Charles, the Independent Union shop steward, sought to collect from Ptacek Independent Union dues for the month of October. Ptacek refused to pay for the asserted reason that he was being paid less than he was entitled to for the work that he was then doing and that the Independent Union was doing nothing on his behalf. About 2 hours later Ptacek's foreman sent him to the de- partment superintendent, who laid him off. His release slip stated that a reduction of the force was the reason for the lay-off. Ptacek testified, however, that he was the only hourly paid employee in the sweet-pickle department who was laid off on that day, that he was working in a gang of approximately 50 men, and that he had more .`rights" than from 25 to 40 of the others. This testimony was not controverted. Moreover, the average number of employees in the sweet-pickle department, according to Foster's testimony, remained unchanged at 43 during the weeps ending October 15, October 22, and October 29. There was a drop to 38 during the week ending Novem- ber 5, and to 28 during the following week, but thereafter, through- out December and January, the average number of employees in the 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department each week was not less than 34. It thus appears that the reason asserted by the respondent for Ptacek's lay-off on October 21, 1938, was false. Nor does the respondent offer to explain why, even assuming that it was necessary to lay off one employee on October 21, it selected an employee of Ptacek's experience. On or about October 28 Ptacek had an interview with Foster, Andeison, the employment manager, and Assistant Superintendent A. D. Challberg. Foster told Ptacek that he had "plant rights" 28 but no "department rights." Ptacek stated that he was referring his case to the Union and Foster replied, "If you are, Mr. Anderson can probably do something for you in t day or so." On October 31 Anderson rehired Ptacek to work in the sausage department at $22 per week. Ptacek complained to Anderson that it was unfair to place him in the sausage department inasmuch as work in that de- partment was always slack in November, and the sweet-pickle depart- ment, where he believed he was entitled to work, was "going strong." Anderson replied, "Well, it is a job and that is what you are down here for . . ." On November 23 Ptacek, together with four other em- ployees, was laid off from the sausage department. The release slip which he received that day assigned as the reason for the lay-off, "Reducing Force-slack business." On December 1, 1938, Ptacek was rehired in the loading depart- ment. At about 11: 45 a. in. on December 15, while working in this position, he put several buttons of Local No. 55, including a shop steward's button, on his overalls and cap. Ptacek testified without contradiction that he was the only employee in the plant wearing Local No. 55 buttons that day. About an hour after he had put on his buttons a company police officer, one McCarthy, came to the loading dock and remained there all afternoon. Shortly before 3 o'clock Ptacek's foreman, Earl O'Reilly, took him to the depart- ment superintendent, who laid him off. McCarthy, the policeman, followed Ptacek to the time clock, but walked away when Ptacek asked him why he was following him around "like a dog." Ptacek then got his check and went to the locker room. There another company policeman, Jack Whelan, told Ptacek to be sure to take his clothes out. Meanwhile, according to the testimony of Raymond Foster, who had also been employed on the loading dock that day, Foreman O'Reilly remarked to a group of employees in the depart- ment that Ptacek "was probably going out of the plant for good." Although O'Reilly, at the hearing, denied that he had made this remark, we credit the testimony of Foster, who appears to be a dis- 28 This apparently referred to=the fact that-Ptacek was entitled to group-Insurance benefits and to vacation rights by virtue of having worked steadily in the plant without any lay-off of 60 days or more. THE OCUDAHY PACKING COMPANY 135. interested .21 Ptacek applied at the plant for work daily for 2 or 3 weeks after December 15, and from time to time thereafter, but in vain. Anderson had taken his telephone number and had told -Ptacek he would be called back to work. Five new employees,30' however, who had worked in the loading department with Ptacek and who were not members of Local No. 55 were more successful in obtaining reemployment by the respondent after being laid off in December from the loading department. Two df these new employees were rehired on January 7, one in the loading department, the other in the hog-offal d epartnment; 31 the three others were reemployed in the loading department in February. Raymond Foster, who also was not a member of Local No. 55, was laid off from the loading department with Ptacek on December 15 but was twice thereafter reemployed in the same department, on December 31 and January 3. In summary, the evidence shows that Ptacek was -inexplicably laid off from the sweet-pickle department on October 21; 32 that when he protested to the respondent and threatened action by Local No. 55, he was placed consecutively in two less busy departments; and that subsequent to December 15 he was refused reemployment although non-lnembers of Local No. 55 with less plant experience were being hired. On the clay of his last lay-off, when he was prom- inently displaying buttons of Local No. 55, lie was watched by the respondent's policemen and his foreman remarked to his fellow employees that Ptacek was 'probably leaving the plant "for good." Under these circumstances it seems clear that, although there appears to have been a genuine reduction of force in the loading department on or about December 15, 1938, the respondent singled out Ptacek to be laid off in order to discourage membership in Local No. 55. 2' Foster was working for another company at the time of the healing He had been a member of the Independent Union while employed by the respondent , and has' never been member of Local No 55 so Sommers, IIolzeniar, Hughes, St Sauver, and Watson , who were first employed by the respondent in October 1938 These five, together with Ptacek, Raymond Foster, and nine others, were laid off from the loading depaitinent for causes other than illness, between Decemhpr 12 and 27. 31 Ptacek had worked in this department in the spring of 1938 The respondent claims that the e,,idence with respect to Ptacek's lay -offs prior to the one on December 15 is irrelevant , contending that the complaint and answer restrict the issue to the December 15 lay -off This contention is without merit Ptneek's employment history during the period immediately preceding his last lay-off bears significantly upon and is niaterial and relevant to the question whether the respondent discriminated against Ptacek on December 15, when it finally terminated his employment. Furthermore, the respondent's counsel , in cross-examining Ptacek , sought to elicit an admission fiom him to the effect that his only complaint against the respondent concerned his October 21 lay-off from the sweet-pickle department . The respondent also moved to strike the testimony of Raymond Foster, on the theoiy that Ptacek was not claiming any discrimination as to the December 15 lay-off about which Foster had testified . The Board 's counsel, in opposing this motion, explained that Ptacek 's past relations with the respondent should be regarded as the back- ground .ofthe December 15 lay-off, and the Trial- Examiner denied the respondent's motion to strike Poster's testimony 136 DECISIONS OF NATIONAL LABOR RELXTIONS BOARD We find, as did the Trail Examiner, that the respondent laid off Ptacek on December 15, 1938, and thereafter refused to reinstate him because of his membership and activity in Local No. 55. 3. George Agner Prior to March 2, 1939, George Agner had been employed by the respondent for several years as a ham trimmer in the hog-cut depart- ment. He had seniority in that department dating from October 3, 1936. He had been a member of Local No. 55 since March 1938 and since January 1939 had attended its shop stewards' meetings. He wore a union button for a few days in 1937, but did not wear a button again until March 3, 1939. On March 2, 1939, Agner was demoted from the job of ham trimming, which paid 831/2 cents per hour, to that of ham finishing, which paid 691/2 cents. Agner was replaced at the ham-trimming job by George Haley, another member of Local No. 55 who had formerly worked in the hog-offal department. Haley had seniority in the hog-offal depart- ment dating from 1926.33 Since March 15, 1937, Haley had been earning 84 cents per hour, a rate which Haley, according to the re- spondent's schedule of "exception rates above schedule," was entitled to receive regardless of the type of work to which he was assigned. The respondent contends that the hog cut and hog offal are sections of the same department; that Haley therefore had seniority over Agner; and that the former's replacement of the latter was incidental to a program of reducing the respondent's operating costs. Haley had had considerable experience in the past in the ham-trimming job. The evidence as to whether Haley or Agner had more departmental seniority is inconclusive, but we find it unnecessary to decide this issue since the respondent proved that in an instance such as this, where it was reorganizing its operations in order to reduce its overhead costs, Haley's competence, versatility, and long experience would in any event prevail even over Agner's asserted superior departmental seniority rights. Agner also claims to have been laid off out of turn for 4 days in February 1939 and some evidence tending to substantiate this conten- tion was introduced. However, the evidence is insufficient to support a conclusion that the respondent discriminated against Agner by lay- ing him off in February. We find that the evidence is insufficient to establish that the respondent demoted or laid off Agner because of his membership in Local No. 55. We find that the respondent did not ' Although Haley was laid off for several months in 1933, his seniority was thereafter restored to him His employment in the hog-offal department was uninterrupted since August 8, 1933. THE CUDAHY PACKING COMPANY 137 discriminate in.regard to the hire or tenure of employment of Agner to discourage membership in Local No. 55. 4. Arthur Robinson Arthur Robinson, who was discharged on March 15, 1939, had been employed by the respondent' in the hog-cut and beef-kill departments since 1928. He was continuously employed in the hog-cut department from October 1937 to the date of his discharge and had seniority in that department. Robinson joined Local No. 55 in September 1937, serving as its financial secretary and shop steward in 1938. He had met with Superintendent Foster on several occasions in connection with grievances, as a representative of Local No., 55. . On Saturday, March 11, 1939, Robinson was at work in his regular position in the hog-cut department. He had a headache and told his foreman , John Dozer, that he felt ill. Robinson remained at home on Sunday, a holiday, and on'Monday, a working day, because he was ill. On Tuesday, pursuant to a notice which had been posted in the plant on the preceding Saturday, the respondent's plant was closed. On Wednesday morning, March 15, Robinson reported for work. He went to the superintendent's office to. get his time card and saw A. D. Challberg, the assistant plant superintendent, who told him to wait until Foster arrived. When Foster appeared, Challberg pro- duced Robinson's card and conferred briefly with Foster, who then indicated to Robinson that he was discharged. Robinson attempted to explain his absence but Foster cut him short, saying, "Well, that is why you are fired." At that time there were four or five other employees in the superintendent's office. Robinson testified without contradiction that Foster asked each of them why he had been absent and, upon receiving their explanations, gave them their cards and sent, them to work. The respondent does not deny the facts above stated, but contends that it discharged Robinson because of his violation of an asserted plant rule against "laying off without permission and without notify- ing anybody of the fact." The respondent proved that during the "year or so" preceding his discharge Robinson had absented him- self from work at various times for a total of about 12 or 15 days, without obtaining the respondent's permission or notifying it. Robinson admitted this, but testified that during his 11 years em- ployment by the respondent' he had never heard of a rule requiring employees to report their absences in advance. The respondent failed to produce convincing evidence of the exist- ence of any such rule. It introduced in evidence a memorandum from- Foster to the department superintendents which indicates the 138 = DECISIONS OF NATIONAL LABOR RELATIONS BOARD existence of a rule requiring employees to report to the superin- tendent's office upon returning to work after being absent, but-this, obviously, is not the rule which Robinson is alleged to have violated. Foster's testimony is hardly more relevant. He testified, on direct examination by the respondent's counsel, that the respondent has a rule "with respect to- layoffs and what, shall be done in the event that a man does absent himself from work," but the purported regu- lation, as he described it, would not have resulted in Robinson's dis- charge. . Foster's testimony about this "rule" was as follows: To discuss with them on their return to work and encourage them to notify us before they absent themselves from `work to get in touch with us the morning that they are absent and advise us regarding their being absent, as to whys and wherefores, and then on return of the employee, in case the employee does'not advise us during his or her absence, we encourage them again by explaining to them the importance of advising us, as I just stated, and after the employees have been there for a period of time we know them to be regular employees and they, should understand our rule,'we. generally put a little more pressure on them by advising them that we will have to give them time off or we may, have -to fire them if they don't take up with-us when they want to absent themselves from work, and after a period of tine we take'action'in the way of penalizing them by giving them time off or discharging them. - [Italics added.] On cross-examination Foster admitted that this "rule" had never been posted at the plant or announced to the respondent's employees gen- erally. It is not embodied in the contract between the respondent and the Independent Union, which deals with similar matters. At the most the evidence shows that it is the respondent's policy to dis- courage employees from laying off without the respondent's permis- sion or notice to it, by requiring them to report to the superintendent's office upon returning to work and by taking disciplinary action against frequent offenders after requesting them to report their ab- sences and warning them that they may be penalized for failing to do so. The respondent attempted to show, by the testimony of Foster, that Robinson had been repeatedly warned of impending discliplinary action for his assertedly frequent absences. However, the only warning to which Foster testified with any particularity was one which he claimed to have given Robinson on his return to work after a single day's absence on November 30, 1938. Robinson denied hav- ing received any warnings prior to that occasion, and denied further that Foster had either reprimanded him or warned him of any dis- ciplinary action in connection with his November 30 absence. As to THE CUDAHY PACKING COMPANY 139 this occurrence, Robinson testified that the plant physician sent him home on November 30, owing to the fact that he had had no sleep the previous night because of his wife's illness; that he reported to Foster on the next working day and explained his absence; that -Foster asked him whether he had "called in" and said, merely, "All right," when Robinson replied in the negative; and that Foster permitted him to return to work without further remark. Foster corroborated" Robinson's testimony as to the date of the absence and his explanation for it, but testified that he had told Robinson on that occasion that he would be discharged if he absented himself in the future without "taking it up" with his foreman, the superintendent's office, or the employment office. The Trial Examiner credited Robin- son's testimony as to this, rather than Foster's. A consideration of all the testimony leads us to concur with the Trial Examiner. We find that Robinson, prior to his discharge, had not been warned about absenting himself from work without permissions. The respondent introduced -in evidence discharge notices showing that during Febru- ary and March 1939 it discharged five employees,34 not including Robinson, for" "laying off too much," "laying off without permission or notifying anyone," or similar reasons. The respondent did not offer to show that these employees were discharged under circum- stances substantially similar to those surrounding Robinson's dis- charge. The evidence offered is therefore probative only of the fact, which we have already found, that the respondent does, en occasion, and under the circumstances stated by Foster, discipline employees for laying off without permission or notice. Thus, it appears that Robinson, an employee of long standing and seniority who was a leader in Local No. 55, was discharged pur- portedly for violation of a plant regulation, without having received the prior warning required by the regulation itself and without any investigation by the respondent of the truth of Robinson's explana- tion that his absence was occasioned by illness. In fact, the respond- ent did not even afford Robinson an opportunity to explain facts, undenied in the record, showing that it would have been impossible for him to notify the respondent, on March 13, 1939, that he was staying away from work.35 For the respondent, without so much as a previous warning, to have discharged or even, disciplined Robinson on March 15 for his absence on the previous work day without permission appears to a' The discharge notice of a sixth employee was rejected by the Trial Examiner because it was marked "duplicate " For the pus poses of this discussion we will assume that this sixth employee was discharged, in February 1939, for the ieason assigned on said duplicate discharge notice • "Lays off too much." 115 The telephone nearest Robinson's house was a mile and a half distant His wife was unable to drive a car, was in poor health, and had to Pare for five children under the age of seven Robinson himself was ill. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD us excessively severe. Even though the punishment was excessive and not required by the respondent's rules, if, in fact, the punishment was the actual reason for his discharge, it would, of course, be with- out the purview of the Act. But we are satisfied that it was not the actual cause of, Robinson's discharge. In the light of the respond- ent's attitude generally toward Local No. 55, and ' the prominent position which Robinson held in Local No. 55, we believe that Robin- son's membership and activities in Local No. 55 furnish the more plausible explanation of his discharge, and find, as did the Trial Examiner, that he was discharged because of such membership and activities. 5. Francis Raehsler Francis Raehsler had been employed by the respondent since 1926 or 1927. Since 1933 or 1935 he had had seniority in the hog-cut depart- ment, where he was a loin puller. He joined Local No. 55 in July 1937 and served as its vice president beginning in November of that year. During the summer of 1938 Raehsler acted as chairman of Local No. 55's grievance committee, and at the time of the hearing he was acting president of Local No. 55 in the absence of Arthur Maurer, whom the respondent had discriminatorily laid off on July 6, 1937.36 On Wednesday, March 15, 1939, while at work for the respondent Raehsler suffered from a pain in his hip. That evening he consulted his physician, who told him to remain off his feet for several days. On the following morning Raehsler reported to the plant and told his foreman, Dozer, that he was unable to work. Raehsler then reported to the respondent's plant nurse, Irene Johnson, who told him to go home. On his way out of the plant, Raehsler was told by the watch- man at the gate that the nurse wanted to see him again. He returned to her office and Johnson, after leaving the room for a minute while Raehsler waited, told him to report to her for his card when he was ready to return to work. On the following Monday, March 20, Raehsler had three teeth extracted. He reported to Nurse Johnson on Tuesday, Wednesday, and Friday of that week and was refused per- mission to work on account of a swollen jaw. Johnson instructed Raehsler to bring in letters from his physician and dentist. Within the next few days Raehsler submitted to the respondent the letters thus requested. The physician's letter stated that Raehsler had been suffer- ing from muscular pain in the left hip and that the pain had dis- appeared after tooth extractions advised by the writer. The dentist's letter reported the removal of three of Raehsler's teeth, one having 88 See Matter of The Cudahy Packing Company and Packinghouse Workers Local Indus- trial Union No 62, affiliated with the Committee for Industrial Organization, 5 N L R. B. 472. Raehsler testified on behalf of the predecessor union of Local No 55 at the hearing in this earlier proceeding THE CUDAHY PACKING COMPANY 141 been impacted and another badly infected. On Wednesday, March 29, Anderson, the respondent's employment manager, sent Raehsler to Dr. Carl C. Chatterton, an orthopedic surgeon practicing in St. Paul. ,Chatterton examined Raehsler and reported to the respondent by a letter dated March 30, 1939. Referring to the fact that he had previ- ously examined Raehsler in 1936,37 Chatterton stated his findings on- the second examination in some detail, including the facts that Raehs- ler's hips, knees, and spine moved normally and that x-ray pictures of the pelvis were negative. Chatterton's conclusion was as follows : On going over this man very carefully and actually questioning him and after considering the case with him, I find his pain is not of any character as to even inconvenience him to any extent. He still complains of pain just as he did in 1936, just posterior to the left trochanter, almost over the sciatic notch. In fact, at the present time there are no objective signs of trouble. His findings are purely subjective, with evidence of stubs of tonsils which do look red and inflamed. It is my belief that this man has no indus- trial disability from his condition. On April 1 Superintendent Foster addressed a letter to Reynolds McLeod, attorneys who have represented the respondent in work- men's compensation cases since 1937, enclosing Raehsler's medical find employment records, including the above-described correspond- ence, and requesting advice as to whether Raehsler was "a satisfactory risk as an employee from a medical standpoint." In this letter, stat- ing that, Raehsler was anxious to return to work, Foster asked-For a prompt reply in order that the respondent might inform Raehsler if his application was to be rejected. On April 3, P. C. Reynolds replied to Foster's letter, reviewing Raehsler's medical history at some length and stating as the writer's conclusion that "his hip con- dition is in the nature of an infectious neuritis or an arthritis." Reynolds advised Foster that persons suffering from conditions of this kind are often the claimants in "protracted and expensive types .of litigation before the Commission" 38 owing to their tendency to associate disability resulting from the infectious condition with the occurrence of some slight injury which did not actually cause the condition itself or the ensuing disability. In view of these considera- tions, Reynolds concluded, in his letter, that this individual presents a potential liability definitely trace- able through his medical history, and one which may readily 87 The letter which Chatterton wrote to the respondent on this prior occasion, dated January 10, 1936, reports that Raehsler was then suffering from a painful left hip, that x-ray pictures showed normal hip joints , and that the difficulty was probably attributable to an acute upper respiratory infection from which the patient would soon entirely recover 88A reference to the State Industrial Commission 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD become the subject of disability and consequent litigation. In line with our foregoing remarks therefore, ... I feel that re- employment or continued employment carries with it this very definite hazard. Meanwhile, Raehsler had reported to the plant nurse on March 30 and 31 and April 1. The nurse told him that Dr. Chatterton's re- port would not be received until April 3 or 4 and that Foster woi ld want to examine the report before permitting Raehsler to return to work. On April 5 ' Raehsler' sa'w Foster, who told him that he had receiver Chatterton's report and that he wanted to submit it to Dr. W. Hartfiel, the plant physician, who would probably take about a week "to make up his mind what he was going to say." Raehsler next reported at the plant on April 10, at which time Anderson told him that Foster would announce his final decision as to reemploying Raehsler on April 12. On April 12 Foster told Raehsler that the respondent's medical advisers and insurance attorneys had ruled against his reemployment, owing to his physical condition. The respondent contends, not that Raehsler is unable to work, but that he is a bad workmen's compensation risk,39 for the reasons pointed out in Reynolds' letter, quoted above. Dr. Chatterton testi- fied that an individual such as Raehsler, whose body tissue in some localized area has been once injured by a systemic infection, may suffer a recurrence of infection in the same area and "is very apt to have an injury that is trivial and still suffer dreadfully in the in- fected area." This testimony indicates some merit in the respondent's contention. The question remains, however, whether the respondent's decision not to reinstate Raehsler was induced not by his physical condition but by his membership and activities in Local No. 5540 We note certain suspicious circumstances surrounding Raehsler's final rejection. Foster waited a week after receiving Reynolds' ad- vice 41 before he notified Raehsler of his decision, notwithstanding the fact that he had asked Reynolds to act promptly in order that Raehsler might have prompt notification of the disposal of his case. Although Chatterton's letter of March 30 was received by the respondent by April 1, when Foster forwarded it to Reynolds, Nurse Johnson told Raehsler on March 31 and April 1 that Chatterton's report had not yet been received and was not expected for several days. At the hear- ing, the respondent offered no explanation of this delay and deception. 3° Reynolds testified that the respondent does not carry woikmen's compensation insurance but, under a piovision in the Minnesota workmen 's compensation statute, acts as a "self- insurer " 40 See Matter of The Kelly-Springfeid Tire Coinpamj and United Rubber Workers of America. Local No 26, et al, 6 N L R B 325. enf'd 97 F (2d) 1007 (C C A 4) "Reynolds ' letter was mailed to the respondent on or about April 3 , 1939 Moreover, Reynolds gave Foster an oral report of his conclusions in a telephone conversation, after reviewing Raehsler's file. THE CUDAHY PACKING COMPANY 143 Foster's explanation to Raehsler, on April 5, that there would be a delay of a week while Hartfiel studied Chatterton's report, was false, as Hartfiel's testimony reveals. Hartfiel had talked to Chatterton on March 30, and had then been informed that Chatterton "could find nothing wrong with this man either by x-ray or examination." Hart- fief testified, on April 27, 1939, that he had talked to Foster about Raehsler "within the past month or two" but he could remember noth- ing about the conversation except that he understood that Foster was sending Raehsler to Chatterton. Foster did not turn over the Chatter- ton report to Hartfiel for study and recommendation, but Hartfiel merely looked over the report and told Foster in a brief conversation that Raehsler's trouble looked like "some infectious thing." Hartfiel testified that he reached no conclusion and made no recommendation whatsoever as a result of reading the Chatterton report. Nor did he personally examine Raehsler at, any time in 1939. In view of the fore- going, Foster's testimony that he refused to reemploy Raehsler "in view of his physical condition in 1936 and 1939 and the advice of Dr. Ilartfcel and Attorney Reynolds" [italics added], appears to'be false. Again, Reynolds testified that during the year or more that he had handled compensation cases for the respondent he had never been asked by the respondent to render an opinion as to the advisability of reemploying an employee. The opinions which he had furnished to the respondent in the past, he testified, had related to "the advisability of further proceedings, either before the Industrial Commission or advice as to what should be clone concerning settlement of cases, . . . the ordinary line of opinions that would likely be asked in liability work or similar work." [Italics added.] Thus, it ap- pears that the respondent upon being advised by Chatterton, the physician to whom it had referred Raehsler's case, that Raehsler'had "no industrial disability from his condition," adopted an unusual procedure in asking its insurance attorney for advice. If it were cus- tomary for the respondent to take such elaborate precautions before reinstating a temporarily disabled employee it would seem that Reyn- olds would have been consulted as to the advisability of reinstating others of the respondent's 700 or more employees during the period that he had represented the respondent in workmen's compensation matters. In view of the circumstances noted in the preceding paragraph, the tenor of Foster's letter to Reynolds becomes significant. This letter exaggeratedly stated that Raehsler had had "considerable difficulty over the past few years with ailments." Raehsler, according to Chat- tertoii's report of his 1936 examination, had "always been strong and healthy except he had mastoid in 1931, and an injury to his right leg fifteen years ago ..." Records maintained in the respondent's medical office show that Raehsler had not reported any ailments be- 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween January 13, 1936, and March 16, 1939. This medical history does not justify Foster's characterization. Reynolds' reply to Foster suggests that his opinion was, perhaps unconsciously, colored by Fos- ter's attitude. Reynolds, also, after reciting that Raehsler's medical history appeared "rather negative" prior to January 1936, exaggerated the number and nature of his ailments. One other passage of Foster's letter to Reynolds' firm merits examination : You gentlemen have been connected with the State Industrial Commission as attorneys for that Commission, for several years, as well as Referee, and are now specializing in industrial cases, and from your experience you have given us excellent advice in connection with handling of medical cases in connection with the Industrial Commission. Reynolds, presumably, knew his own qualifications as an expert. He had been retained by the respondent for some time and hardly needed any explanation of why the respondent saw fit to request his opin- ion. Under the circumstances, we can only conclude that the para- graph above. quoted was designed for our inspection. Foster's and Reynolds' letters together, with their self-conscious qualifications of Reynolds as an expert and their exaggerated characterizations of Raehsler's medical history, bear the earmarks of evidence prepared in anticipation of a judicial inquiry into the respondent's motives for terminating Raehsler's employment. That the documents offered by the respondent are self-serving does not necessarily mean that they are false, but it does impair their evidentiary value. The circumstances, viewed in their entirety, lead us to the con- clusion that the respondent's real reason for refusing to reinstate Raehsler was not the reason advanced by it. Raehsler, as Chatterton found, was able to work. By consulting Reynolds after receiving Chatterton's report, in a letter which suggested the respondent's inclination to act adversely on Raehsler's application, the respond- ent, we are convinced, was manufacturing an excuse for its action already determined upon. Raehsler's prominence in Local No. 55 and the respondent's hostile attitude toward Local No. 55, as de- scribed above, indicate to us, as they did to the Trial Examiner, that the factors motivating the respondent's refusal to reinstate Raehsler were his membership and activity in Local No. 55. The date of this discrimination, we believe, was not later than April 1, 1939, when Foster received Chatterton's report. We find that the respondent, on October 21, 1938, October 26, - 1938, and December 15, 1938, respectively, laid off and subsequently refused to reinstate Marv Kamenchuck, Joan LaMotte, and Ray :Ptacek; that on March 15, 1939, it discharged Arthur Robinson; THE CUDAHY PACKING COMPANY 145 and that on or about April 1, 1939, it refused to reinstate Francis Raehsler, because of these employees' membership and activity in Local No. 55, thereby discriminating in regard to the hire and ten- ure of employment of the said employees to discourage membership in a ,labor organization; and we further find that by these acts of discrimination the respondent interfered with, restrained, and co- erced its employees in the exercise of,the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above; occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found-that the respondent discriminated with regard to the hire and tenure of employment of Kamenchuck, LaMotte, Ptacek, Robinson, and Raehsler, thereby discouraging membership in a labor organization. In order to effectuate the policies of the Act, we shall order the respondent to offer to these employees immediate rem- statement to their former or substantially equivalent positions with- out prejudice to their seniority and other rights and privileges, and to make each of them whole for any loss of pay lie has suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of the offer of reinstatement, less his net earnings 42 during said period. 42By 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, whichr would not have been incurred but for the unlawful disciimmation against him and the consequent necessity of his seeking employment else- where See Matter of Crossett Lambe Company and United Biotlierhood of Carpenters rind Joiners of'Amerion, Lumber and Sawmill Workers Union, Local 2.590, 8 N L R B 440 Monies received for work performed upon Federal, State, county, municipal or other work- relief projects are not considered as earings, but as piovided below, in the Order shall he deducted from the sum-duo the employee, and the amount thereof shall be paid over to the ,rppiopiiate fiscal agency of the h'edeial, State, county. municipal, or other government or governments which supplied the funds for said work-relief projects 323428-42-vol 27-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the respondent did not discriminate with respect to the hire or tenure of employment of Agner to discourage member- ship in a labor organization, we shall order that the complaint, in so far as it alleges such discrimination, be dismissed. Upon tho basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONS of LAW 1. Local No. 55, United Packinghouse Workers of America, of Packinghouse Workers Organizing Committee, affiliated with C. I. 0., and Packinghouse Workers Union of St. Paul, Minnesota, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The respondent, by discriminating in regard to the hire and tenure of employment of Mary Kamenchuck, Joan LaMotte, Ray Ptacek, Arthur Robinson, and Francis Raehsler, thereby discour- aging membership in a labor organization, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) 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 discriminated in regard to the hire and tenure of employment of George Agner within the meaning of Section 8 (3) of the Act. 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, The Cudahy Packing Company, Newport, Minnesota, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local No. 55, United Packinghouse Workers of America, of Packinghouse Workers Organizing Commit- tee, affiliated with C. I. 0., or in any other labor organization of its employees by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employ- ment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, ,THE CUDAHY PACKING COMPANY 147 join, or assist labor organizations to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Mary Kamenchuck, Joan LaMotte, Ray Ptacek, Arthur Robinson, and Francis Raehsler immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; fib) Make whole the said Mary Kamenchuck, Joan LaMotte, Ray Ptacek, Arthur Robinson, and Francis Raehsler for any losses of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to each of them, respectively, of a sum of money equal to that which said em- ployee would normally have earned as wages during the period from the date of such discrimination to the date of the respondent's offer of reinstatement, less his net earnings 43 during said period; deduct- ing, however, from the amount otherwise due to each of said employees monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (c) Immediately post in. conspicuous places in and about its plant at Newport, Minnesota, 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) 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 Local No. 55, United Packinghouse Workers of America, of Packinghouse Workers Organizing Committee, affiliated with C. I. 0., 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 Eighteenth 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 FURTI-IER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent discriminated with respect to the hire and tenure of employment of George Agner. 41 See footnote 41, supra.