William Davies Co., Inc.

In the Matter of WILLIAM DAVIES Co., INC. and UNITED PACKING- ,HOUSE WORKERS OF AMERICA, THROUGH PACKINGHOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE CONGRESS OF INDUS- TRIAL ORGANIZATIONS Case No. C-1898.-De6ided December 15, 1941 Jurisdiction : meat processing industry. Unfair Labor Practices Interference, Restraint,'and Coercion: anti-union statements; promulgation and enforcement of a rule which singled out union solicitation for prohibition. Discrimination: discharges for union membership and activity; alleged violation of no-solicitation rule which Board finds to be ;discriminatory in character, held not, to justify discharges ; refusal to reinstate laid-off employee because of his union membership and activity ; charges alleging lay-off of one em- ployee and discharges of two employees to constitute discriminations, dismissed. Remedial Orders : reinstatement and back pay awarded. M. Stephen M. Reynolds, for the Board. Jacobson, Merrick, Nierman c6 Silbert, by Mr. Robert B. Shapiro and Mr. .David Silbert, of Chicago, Ill., for the respondent. Mr. Herbert N. Shenkin, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Packing- house Workers of America, through Packinghouse Workers Organiz- ing Committee, affiliated with the Congress of Industrial Organiza- tions, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated February 26, -1941, against William Davies Co., Inc., Chicago, Illi- nois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 37 N L R B., No 105. 631 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint, in sub- stance, alleged that the respondent (1) discouraged membership in the Union by discharging, on certain stated dates, James McNally, James Allen, Michael Moriarty, John Canning, Clarence Balda, Paul Ahern, and John Boland, employees in the respondent's Chicago plant, and thereafter failing and refusing to employ them, for the reason that they had joined and assisted the Union and had engaged in concerted activities for the purposes of collective bargaining or other mutual aid and protection; (2) since December 1, 1939, warned and discouraged its employees from affiliating with the Union, ques- tioned them about their union affiliation and activities, made deroga- tory and disparaging statements about the Union and its leaders, and promulgated a rule prohibiting solicitation in the respondent's plant for membership in or for the collection of dues for any labor organization; and (3) by the foregoing and other acts interfered with, restrained, and-coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 13, 1941, the re- spondent filed its answer denying that it had engaged in and was engaging in the alleged unfair labor practices. Pursuant to notice a hearing was held from March 17 to April 1, 1941, inclusive, at Chicago, Illinois, before Martin Raphael, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and partici- pated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the hearing the Trial Exami- ner made rulings on numerous 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 May 29, 1941, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the respondent and the Union, wherein he 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. He recommended that the respondent- cease and desist from such practices, and that it take certain remedial action. The Trial Examiner further recommended that the complaint be dismissed as to Paul Ahern and John Boland. WILLIAM DAVIES CO.. INC. 633 The respondent filed exceptions to the Intermediate Report and to the record, and a brief in support thereof, on July 21, 1941.1 Pursuant to notice, a hearing was held before the, Board at Wash- ington, D. C., on September 11, 1941, for the purposes of oral argu- ment. The respondent was represented by counsel and presented oral argument. The Board has considered the respondent's exceptions and brief and, in so far as the exceptions are inconsistent with the findings of fact, conclusions of law, 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 William Davies Co., Inc., is an Illinois corporation with its prin- cipal office and place of business in Chicago, Illinois. It operates plants in Chicago, Illinois, and Toronto, Canada, where it is engaged in the processing, sale, and distribution of meat products. This proceeding involves only the Chicago plant. In the fiscal year end- ing April 1, 1940,2 the respondent purchased 25,903,000 pounds of fresh meat, of which approximately 75 per cent represented pur- chases for the Chicago plant from points outside the State of Illinois. During the same period it processed and sold approximately 24,511,000 pounds of finished products, consisting of smoked and cooked meats and sausage, of which approximately 70 per cent was sold and trans- ported from its Chicago plant to points outside the State of Illinois. II. THE ORGANIZATION INVOLVED United Packinghouse Workers of America, through Packinghouse Workers Organizing Committee, affiliated with the Congress of In- dustrial Organizations, is a labor organization admitting, to member- ship employees of the respondent. ' The respondent contends that the case should be dismissed in its entirety because of laches . This contention is without merit Matter of Colorado Milling & Elevator Com- pany and Denver Trades and Labor Assembly, 11 N. L. R. B. 66. 2 It was stipulated at the hearing that the volume and interstate nature of the respond- ent's business was approximately the same for the fiscal year ending April 1, 1941, as it was for the previn'is year. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion (1) Coercive statements During the summer of 1939, the respondent's employees began to talk about labor organizations. In October of that year, Michael Moriarty, an employee, attempted to interest his fellow employees in the Union. However, steps to form an organization at the respond- ent's plant were not taken until December. On December 15, 1939, Moriarty joined the Union and for the next month endeavored by discussion and distribution of buttons, application cards, and leaflets, to obtain members therein. About Christmas of the same year, Frank McCarty, District Director of the Union, was assigned to lead the Union's organizational drive in -the respondent's plant. He called and conducted meetings and supervised the distribution of leaflets to the respondent's employees. These activities soon came to the notice of they respondent's officials, and encountered the respondent's opposition. John Canning, an employee in the vein-pumping department, tes- tified that about December 16, 1939, Henry Wichmann, the respond- ent's superintendent, approached him at his work bench and, after asking him how long he had been in the respondent's employ and whether he could obtain a job elsewhere if the respondent discharged -him, stated that there were "men walking the streets today that are laid off on account of trying to organize the Union. . . . You have your rights and I have my rights and . . . this is no warning against your job ... this is just a little friendly talk." Wichmann denied having this conversation with Canning, but we find, as did the Trial Examiner, that Wichmann made the remarks substantially as related by Canning. Canning joined the Union on December 23, 1939, and about four days later began wearing his union button in the plant. Canning was selected as the union steward in the vein-pumping department. He testified, in this connection, that on the first day he wore his steward's button at the plant, James McMahon, his fore- man, asked him whom he "was stewarding it over"; and that upon the following pay day McMahon said to him : "Here is your check, pin it on your button so you won't lose it because you seem to know all the answers." Although McMahon denied that he made the statements attributed to him by Canning, the Trial Examiner found him to be an evasive and unconvincing witness. Upon the entire rec- ord, we find, as did the Trial Examiner, that McMahon made the above-quoted statements to Canning. WILLIAM DAVIES Co., INC. 635 Ahern, an employee, testified without contradiction, and we find, ,that shortly after December 28, when: he returned to work following a brief lay-off, McMahon said to him : "I hear you are organizing a union again." About the same time, McMahon reasserted his previ- ously expressed concern about the Union by inquiring of Boland, an- other employee, how strong the Union was and chiding him when he replied that he•did not know. On or about January 9, 1940, James McNally and other employees received an increase in pay. McNally testified that Michael Brennan, the plant manager, in giving him the increase, stated: "You are get- ting more pay now than fellows across the street, although they have a contract there." Although Brennan denied mentioning unions in this conversation, we find, as did thie Trial Examiner, that he made the statements attributed to him by McNally. The record shows that Brennan was referring to employees at the Agar Packing Company plant located across the street. That company had a collective bar- gaining agreement with the Packinghouse Workers Organizing Committee. On January 14, 1940, Moriarty spoke to his fellow employee, Kirby, about the Union. Kirby reported the incident to Wichmann, where- upon Wichmann summoned Moriarty to the respondent's office. In addition to Moriarty, Wichmann, and Brennan, Perry, the respond- ent's vice president, and McLeod,3 the respondent's Canadian general superintendent, were also present. Moriarty testified that the follow- ing conversation ensued : McLeod stated that he was surprised that there were disturbances in the plant,, and that "we never have any trouble in any of our houses about union activities." Moriarty replied "Well, this house is different, here you have unions in all of the houses around you." Perry thereupon remarked, "I don't think the fellows would go for a union here ... on account of the dues." Later in the same conversation, Perry accused Moriarty of being the head organizer in the plant and Wichmann stated that Moriarty, had been distributing leaflets. Moriarty denied both statements. When Wich- mann asked Moriarty who had been distributing the leaflets he refused to reply, stating"I am not a stool pigeon." Perry testified that he did not make the statements attributed to him by Moriarty and that he did not remember saying anything to Moriarty about unions other than supplementing a statement by McLeod about workers' rights. Wichmann testified that he did not remember any discussions about union leaflets. Brennan, when asked whether McLeod said "We never have any trouble in any of our houses about union activities,"' testified "I don't think he (McLeod) put it that way." Brennan testified, how- ever, that McLeod did say "We don't have any serious differences 8 Also spelled McCloud in the record: 636 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD between management and workers in any of our plants." Wichmann testified that McLeod said, "We never have any trouble in our houses, with any of our houses, with our employees." Wichmann testified further as to this conversation that he did not "know whether the word `union' was used or not in there." McLeod did not testify. The Trial Examiner credited Moriarty's testimony as to this conversation,, and upon the entire record we find, as he did, that McLeod, Perry, and Wichmann made, in substance, the statements attributed to them by Moriarty at the January 14 meeting. We find that the respondent, by the acts and conduct of Wichmann, McMahon, Brennan, Perry, and McLeod, described above, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (2) The notice forbidding solicitation On January 6, 1940, during the Union's membership campaign and contemporaneously with the respondent's unlawful attempts to thwart it by the coercive conduct set forth above, the respondent posted in its plant a notice prohibiting "the solicitation on company premises for membership in or for the purposes of collecting duds for any labor organization" and warning employees that "violators will be subject to dismissal." The sole issue to be determined in this connection is whether the respondent promulgated and enforced this rule in order to frustrate employee, self-organization,4 as the complaint in substance alleges, or whether the respondent's only purpose was to maintain production and proper discipline,,, as the respondent contends. The testimony of the respondent's witnesses concerning the posting of the notice and the respondent's reason therefor is somewhat vague and in part contradictory. Although Perry testified that he discussed the posting of the notice with Bi nnan and Wichmann, he could not remember how many times "we discussed it before taking action." He testified further : "I imagine it was given careful thought." When asked whether he discussed it more than once, Perry replied, "I would think so." Wichmann, on the other hand, testified that lie did not participate in any discussion relative to the posting of the notice, and that his advice in this matter was not solicited by either Perry or Brennan. s Cf Matter of Botany Worsted Mills and Tecttile Workers Organizing Commh ittee, 4 N L_ R B 292, enf'd as mod, National Labor Relations Board v Botany Worsted Mills, 106 F. (2d) 263,(C C. A 3) ; Matter, of Paragon Die Casting Company and National Association of Die Casting Workers, 27 N. L R B , No 147 ; Matter of The Letz Manufacturing Com- pany and Federal Labor Union No . 22226, 32 N L R B , No 105, holding that such con- duct, constitutes unfair labor practices 6 Cf Marshall Field & Company and Department Store Employees Union, Local 291 of United Retail, Wholesale and Department Store Employees of America, C. 1 0, 34 N L_ R. B , No . 1, holding that such conduct does not constitute unfair labor practices WILLIAM DAVIES Co., INC. 637 As to the reasons for formulating the rule and posting the notice, the proof adduced by the respondent is as follows : Wichmann testi- fied that shortly after January 1 , 1940, he told Perry that Moriarty had solicited an employee named Kirby to join the Union; that when he walked into the "cellar" (one of the divisions of the plant) he noticed employees congregating and that, when he asked them why they were doing so they walked away without replying ; that through- out the plant there was "quite a bit of running around "; that produc- tion was falling off; and that "something had to be done." Brennan testified that Wichmann had complained to him and Perry about the "disorder" in the plant , and had complained further that production was falling off. Brennan testified that he had "observed numerous instances of the same thing." When asked what he meant by the "same thing" Brennan testified that he "noticed a few men standing around, and noticed talking loudly (sic), and from the ex- pressions on their faces it would appear they were arguing over some- thing"; that when he passed by them the men would stop talking ; that on one occasion he saw a "couple" of men engaged in an "argument" on the elevator at the third floor, and that when he asked the elevator operator what the trouble was the latter shrugged his shoulders; and that later when he walked about on the third floor he saw several employees away from their stations. Perry testified that the notice was posted "as a measure of allaying the disputes and arguments which I understood were taking place in the plant, and in order to help restore production which was below normal at that time." Perry also testified that Wichmann told him that the discussions and the debate over the Union were the main reasons for the "slowing down." Moriarty, McNally, and Canning, witnesses for the Board , testified, in substance , that during the period in question there was no unusual amount of talking ; that the discussions about the Union were similar to discussions that often took place in the plant about politics , religion, and sporting events ; that the talking that did take place did not inter- fere with production ; and that there was no unusual congregating of employees during the period in question. The record does not show that the decline in productive efficiency which took place prior to the posting of the notice was caused by the union activity in the plant . There were many other factors which, likewise could have contributed to such a decline . The period in question was one of seasonal slack and Perry testified that during such periods productive efficiency usually dropped ; that efficiency declined as the volume 'of production declined., Perry also testified that there were a number of other causes which could have contributed to a diminished efficiency , namely, the necessity to defrost large quan- 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tities of frozen meats; the need for trimming fat; delay in placing cars on railroad sidings; break-down of equipment; variation in the size of the slabs of bacon to be sliced; fluctuation in the volume of business during the week; and the rate of smoking meats due to variations in steam pressure. Any or all of these factors might very well have contributed to a lower productivity at this time. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, found that, although there was union activity in the plant, it was not of such character as to interfere R ith production or discipline. In view of the vague and partially contra- dictory testimony of the respondent's witnesses, the mutually corrobo- rative character of the Board witnesses' testimony, the multiplicity of factors other than union activity or discussion involved in the asserted decline in efficiency, and the other circumstances disclosed, we find, in accordance with the Trial Examiner's finding, that the union dis- cussion and organizing efforts which occurred in the plant did not, as distinguished from other types of activity, materially impair plant production or discipline. It will be noted that the posted rule forbids only union solicitation. The respondent, has in fact permitted other forms of solicitation at the plant. Thus, the respondent has not objected to solicitation for members in a Good Fellowship Club, and has consented to solicitation of,employees in behalf of an insurance company, on the respondent's premises. ' 'The rule does not purpot to be, and in practice was not, limited to working hours or to the places in the plant in which the respondent's work and business are performed. The company rule even prohibited union solicitation during the lunch period or in the dressing or rest rooms; in contrast, the respondent permitted other types of solicita- tion among employees even while they were at work. The respondent had customarily permitted the nien to talk during working hours, provided that such. talk did not interfere with plant production or discipline, and the posted rule did not in terms forbid discussion about labor organizations, as distinguished from solicita- tion. Nevertheless, as found below in further detail, the respondent warned McNally not to talk about the Union at the plant and subset quently discharged him, allegedly pursuant to the rule against solici- tation, for engaging in •a brief conversation which was orderly, did not impair production, and which, while dealing with the wearing of a union button, did not ' involve solictaton of union dues or membership. In sum, the Union was the only labor organization in the field. When the Union sought to organize the respondent's employees, the respondent undertook to defeat 'its campaign by the coercive state- WILLIAM DAVIES CO., INC. 639 ments hereinabove set forth. At the same time, the respondent pro- mulgated and enforced a rule which singled out union solicitation for prohibition, while not forbidding any other kind of solicitation or discussion, and which was not confined to working hours or to the places in which men were engaged in production or other work. In addition, although the rule did not so provide, the respondent applied it to a case of orderly union discussion other than solicitation for dues or membership. Finally, the record does not disclose that union dis- cussion and activity, as distinguished from other types of conversation and conduct of the employees, warranted the imposition of a restric- tive rule in the interest of maintaining efficiency, safety, and order. Under these circumstances and upon the entire record. we find, as did the Trial Examiner, that the respondent posted the notice on January 6, 1940, and enforced the rule therein contained, in order to defeat the union membership drive. We find that the respondent, by this conduct, interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. B. Discrimination The complaint alleges and the answer denies that the respondent discriminated in regard to the hire and tenure of employment of sevenbpamed employees. The Trial Examiner found for the re- spondent with respect to two, employees, Paul Ahern and John Boland, and no exception has been taken thereto. Having examined the record with respect to Ahern and Boland, we agree with the Trial Examiner. Accordingly, we shall dismiss this part of the complaint. The Trial Examiner sustained the allegations of the complaint as to the other five employees, and the respondent has excepted to these findings. James McNally was first employed by the respondent in 1933 and worked continuously from 1938 until January 22, 1940, when he was discharged. The respondent assigned as the reason for McNally's discharge his alleged violation of the no-solicitation rule referred to above. McNally joined the Union on January 1, 1940, and began wearing his union button in the plant on the following day. He participated actively in the organization of the Union among the respondent's employees and, among other things, passed out union leaflets and application blanks. He was the union steward in the smokehouse. - On January 8, 1940, Wichmann told McNally that he had received complaints that McNally had "talked union" to two different men during working hours. McNally denied this and asked to be con- fronted by his accusers. Wichmann replied, that he -could not do that because they would not like it. Wichmann warned McNally 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "you are not supposed to talk unionism through working hours here on the company's time." McNally told Wichmann that he was not foolish enough to do that but that he could engage in such activity before work started, after work, and at noon, whereupon Wishmann replied, "this is company property, you are not supposed to do it anyway." There is no dispute about these facts. It will be noted that on or about January 9, Brennan stated to McNally, in conection with a recently awarded raise, that he was "getting more pay now than fellows across the street, although they have a contract there," and that Brennan was referring to employees of the Agar Packing Company and that company's collective bar- gaining agreement with the Packinghouse Workers Organizing Committee. On the morning of January 22, 1940, McNally was putting a truck on the elevator when he passed Stevens, a fellow employee who was also a member of the Union. McNally asked Stevens where his union button was. Stevens replied that he had it in his pocket, whereupon McNally remarked "Well, that is a hell of a place to have it." Mc- Nally testified that the entire conversation did not take more than 10 or 15 seconds, and that his talking to Stevens did not interrupt or interfere with either Stevens' work or his own. Wichmann and Brennan saw McNally talking to Stevens, although they did not hear what was said. Wichmand testified that he did not know how long McNally and Stevens " talked ; Brennan testified that they talked "eight to ten minutes." There is no evidence that McNally and Stevens discussed anything other than the question, of Stevens' wear- ing his button. We find, as did the Trial Examiner, that this inci- dent took place -as described in McNally's testimony. After Wich- mann and Brennan asked Stevens what McNally had been talking to him about, Wichmann told McNally that he had learned from Stevens what McNally had said, that McNally had been warned once before, and that there was nothing for the respondent to do but discharge him. McNally, an active member of the Union, was discharged for allegedly violating the no-solicitation rule. We have found the rule and its application to be discriminatory; its invocation to justify McNally's discharge does not alter or excuse the fact that his dis- charge was for his advocacy of she Union. Upon the entire record we find that the respondent discharged James McNally on January 22, 1940, and thereafter refused to reinstate him, because of his union membership and activity, and thereby discriminated in regard to his hire and tenure of employmehc, discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. -" - -WILLIAM DAVIES CO., INC. 641 James Allen was employed by the respondent for about 2 years. He was also discharged on January 22, 1940, allegedly because of his violation of the no-solicitation rule. Allen. joined the Union about the first week of January- 1940 and wore his union button at the plant thereafter.6 On January 22, Allen, who was a night janitor at the time, came to the plant at 3:30 p. m., about one-half hour before the commencement of his shift, and went into a dressing room to change into his work clothes. There he met his foreman, Kaiser.7 Kaiser told Allen to see Wichmann be- fore punching in. Wichmann referred Allen to Brennan, saying "No wonder your work isn't satisfactory when you come out here a half hour ahead of time and talk union to the other employees." Allen denied talking about unions. Allen and Wichmann then met Brennan. Brennan told Allen that tl ree employees had complained to him that morning because Allen a few days theretofore, in the plant, had endeavored to persuade theiii to join the Union; and one of these employees had reported that Allen had said to him that if he did not join then, he would have to pay'the Union $25.00 later in order to become a member 8 Wichmann interjected by accusing Al- len of having failed to remove a piece of wood from the hanging room the previous evening. Allen asserted, • and this was the fact, that he had removed the piece of wood. He denied intimidating anyone into joining the Union. Brennan said: "as long as you can't obey our rules, you will just have to be discharged." At the termin- ation of this discussion Wichmann discharged Allen. The respondent's witnesses, Harrel, Clancy. and Stanley, testified in substance that on January 20. 1940, in the dressing room, while they Were changing their clothes after work, Allen, who was on duty at the time, asked them to join the Union, and that they told the respondent's officials about it. We find, as did the Trial Examiner, that Allen did'ask these three employees to join the Union under the circumstances described, and that such solicitation did not interfere with the work of Allen or of those to whom lie spoke. As discussed above, this was the type of discussion and activity that the respond- ent permitted in the plant when subjects other than unionism were involved. The respondent was searching for a colorable basis upon which to justify Allen's discharge. Wichmann's false accusation that Allen 0 Wichmann testified that on January 10 or 11 he warned Allen about soliciting union members on the r`espondent's premises . Allen denied having had such a , conversation with Wichmann . Since the Trial Examiner, who had an opportunity to observe the demeanor of the witnesses , credited Allen's denial, we concur therein. ' Also spelled Kayser in the record 8 We may note in passing that even if Allen made the statement thus attributed to him. he was not thereby engaging in unlawful conduct Cf. N. L. R B. v. Dahlstrom Metallic Door Company, 112 F (2d) 756 (C C. A. 2) 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had failed to remove a piece of wood reveals that intent. Not being able to rely on this pretext, the respondent resorted to Allen's viola- tion of the no-solicitation rule to justify his discharge. As we have found, that rule and its application were discriminatory. Upon the entire record, we find that the respondent discharged James Allen on January 22, 1940, and thereafter refused to reinstate him, be- cause of his' union membership and activity, and thereby discrim- inated in regard to his hire and tenure of employment, discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Michael Moriarty was employed by the respondent from May 1936 until January 24, 1940, when he was discharged. He was employed in a variety of jobs during this period, most of them of an unskilled nature, such as taking hams off trucks, packing, scaling, and checking meat. At the time of his discharge he was washing pans in the, boiled-ham- department. As indicated above, Moriarty was the first of the respondent's employees to become interested in the Union. He was the recognized leader of the Union in the plant. He joined the Union on December 13, 1939, thereafter solicited employees to join, called and attended union meetings between December 13, 1939, and the first part of 1940, and distributed leaflets, buttons, and membership cards\to his fellow employees. He was secretary of the local and was the union steward in his department. Following a 5-day absence from the plant,' Moriarty returned to work on December 28, 1940, and continued his organizational activities. On or about January 14, 1914, Moriarty was called into the respondent's office and, as related above, was interrogated con- cerning union activity by McLeod, Perry, and Wichmann. On January, 24, 1940, Wichmann laid Moriarty off. It is undis- puted that a lay-off for business reasons in the boiled-ham depart- ment was necessary on January 24. Moriarty at his own request had been recently transferred from a job in the sweet-pickle department to the lighter job of washing pans in the boiled-ham department because he had suffered a rupture.10 The pan job in the boiled-ham department was the only type of light work in the respondent's plant that Moriarty, because of his physical condition at the time, was qualified to do. We find, accordingly, that Moriarty's lay-off on January 24 was not discriminatory. ° The Trial Examiner found that this absence was due to the respondent's discrimination, ,but we are satisfied and find that such absence is not attributable to the respondent. 10 The record shows that the rupture Moriarty suffered was slight and temporary. All the work which Moriarty performed after the severance of his employment with the re- spondent was arduous in nature. At the time of the hearing he was employed by another company at manual labor. - WILLIAM DAVIES CO., INC. 1 643 However, Wichmann, upon laying Moriarty off, told him that he, would notify Moriarty to return to work when business improved. On prior occasions, when Moriarty had been laid off, the lay-off had lasted only a few days after which the respondent had found work for Moriarty, if necessary, in a department other than the one from which he had been laid off. But following the January 24 lay-off, Moriarty was not, and has not yet been, reinstated . Instead, when Moriarty's job, cleaning pans in the boiled-ham department, reopened, the respondent did not notify Moriarty, as Wichmann had promised to do, but hired a new employee." , Under these circumstances, and bearing in mind that Moriarty was the. acknowledged leader of the Union in the plant, that the re- spondent actively attempted to prevent the Union from gaining a foothold in the plant, that Moriarty was singled out by the respond- ent's officials and admonished for his union activities at the meeting of January 14, we find, upon the entire record, that the respondent refused to reinstate and employ Michael Moriarty on or about July 1,7,,,,1940,..because.,of„ his union, membership and activity, and thereby discriminated in regard to his hire and tenure of employment, dis- couraged membership in the Union' and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. John Canning was employed by' the respondent as a vein pumper from October 1938 until January 29, 1940, when he was discharged. The respondent contends that he was discharged because he failed to pump a ham properly and because he "joked around" in his department.12 Canning joined the Union on December 23, 1939, began wearing his union button in the plant about December 27, attended union ;meetings, solicited .employees to join the, Union, and was union steward in the vein-pumping department. As found above, about a week before Canning joined the Union, Wichmann warned him that employees "are laid off on account of trying to organize the Union"; and on the first day that Canning wore his steward's button, and shortly thereafter, McMahon made derogatory remarks to him about his being a steward in the Union. On the morning of January 29, 1941, Canning injected an insuffi- cient amount of pickle into the butt vein of a picnic ham. McMahon "The respondent was no doubt reminded of its promise by the charge of discrimination which Moiiarty filed and of which it learned as early as February 15, 1940, and by confer- ences thereon in April and May and on 'July 19, 1940 ii The respondent contends that Canning' s case should be dismissed because the Division of Unemployment Compensation of the State of Illinois decided, in passing upon his claim for unemployment insurance ,' that'he had been discharged for cause. • The decision of the Division of Unemployment Compensation of the State of Illinois is not binding upon the Board, which has paramount initial jurisdiction over the subject matter herein. Myers et al. v Bethlehem Shipbuilding Corp ., Ltd , 303 U S 41. 644 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD called his attention thereto, whereupon Calming attributed the mis- take to the respondent's desire for speed. McMahon then instructed Canning to cease work and wait for Brennan. When Canning saw Brennan he told Brennan.that„he had not "put the full requirements into that butt end vein for fear of rupturing the vein." Brennan asked Canning if he had ever failed to inject the required amount of pickle into "picnics" before, and Canning said that he had clone so "once or twice because of speed ups." Brennan told Canning to see Wichmann, who was then out of town. Brennan also told Canning that he was discharged but that he, Brennan, would like to have Wichmann hear Canning's story. Ciinning'saw' Wichmann on February 2, 1940. ' After discussing with Canning the occurrence of January '29, Wichmann took him into the shipping room to see how many spoiled "picnics" there were. There were- two or three "picnics" on the shipping floor which were spoiled on January 29 because insufficient pickle had been pumped into thein:• "Wichmann ' told' Canning ' that the "picnics" cost $1.50 apiece, that 'he was unable to calculate the full loss, and-that he would have to let the discharge stand: Although the respondent attempted to show 'that Canning was responsible for ^ spoiling the "picnics" which Wichmann pointed out to Canning on February 2, this atterinpt was not successful. There is sonic evidence that Canning-"joked around" in his depart- ment. ' However; the record is clear and we find, as did the Trial Examiner, that this did not interfere with Canning's work or with the work of others. 'Furthermore, nothing of this nature was men- tioned to Canning at the time of his discharge. The record discloses that Canning was a competent employee 'and the incident of January 29 was the first occasion on which any complaint had been made about his work. The failure of another employee to dwhis work properly had caused the shut-down of an entire department, and that employee, still employed by the respondent, was not disciplined at all. Under these circumstances, and in view of Canning's leadership in the Union, the respondent's hostility thereto and the anti-union remarks directed to Canning by both Wichmann and McMahon, we find that the re- spondent seized upon Canning's improper pumping of the "picnic" as a pretext for discharging him. We find that the respondent discharged John Canning on January 29, 1940, and thereafter refused to reinstate him, because of his union membership and activity, and thereby discriminated in regard to his hire and tenure of employment, discouraged membership in the Union, is The rupture of a "picnic" is an internal break in the vein, and cannot be anticipated. A rupture "picnic" is not spoiled , but is cured by a separate process. WILLIAM DAVIES Co., INC. 645 and interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed.in Section 7 of the Act. Clay°ence Balda was employed by the respondent from May 16, 1938,_ until February-2,1940, when.he was discharged. The respondent gave as its reason for Balda's discharge his failure to do his work properly. Balda joined the Union on January 8, 1940, and wore his union button at the plant for a period of about 2 weeks before his discharge. He worked as a vein pumper under McMahon. His job was to inject pickle into the veins of uncured hams. The amount of pickle to be pumped into an uncured ham, as distinguished from a picnic ham,. is measured exactly and for this purpose the respondent installed ap- propriate calculators. Balda and other employees doing similar work were under definite instructions to use the calculators when pumping, uncured hams. The record does not disclose that the respondent ever- relaxed this instruction. On the morning of February 2, McMahon noted, Balda pumping an uncured ham without the use,of the calculator. He saw Balda com- plete the pumping of the ham and throw it clown the chute. At that point_McMahon was called to the telephone and he asked another em- ployee, Nicholson, to watch Balda while he answered the telephone. McMahon returned in a few moments and, standing beside Nicholson,, watched Balda pump two more uncured hams without using the cal- culator. McMahon asked Nicholson to remember the incident and, then told him to resume his usual duties. `In the meantime Balda had pumped a fourth ham without using the calculator. He was about to throw it down the chute when McMahon stopped him and asked him why he had not used the calculator. Balda replied that he had for- gotten to do so, but when McMahon called his attention to the fact that he had just pumped three other hams without using the calculator, Balda said that he could guess how much pickle the ham required. McMahon called Brennan and told him what had happened. Balda offered to pay for the last ham if an analysis proved that it had too, much pickle in it. Brennan told Balda that if the analysis showed that the ham had too much pickle in it he could not work for the re- spondent any more. An analysis subsequently made showed that the, ham had too much pickle it it, and Balda's discharge was confirmed. The record discloses that the respondent had received complaints about the quality of its uncured hams prior to the Balda incident. When an uncured ham was too much or too little '.pickle pumped into. it, its quality is adversely affected. It is clear that Balda had violated definite instructions in failing to use the calculator. Upon the entire record, we find that Balda was not discharged because of his membership in or activity in behalf of the Union. We shall, therefore dismiss the complaint as to him. 433257-42-VOL. 37-42 646 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic,,and commerce among the several States, and tend to lead to labor disputes burdening and obstructing coin- merce and the free flow of commerce. V. THE REMEDY Since we have found- that the respondent has engaged in unfair labor practices, we shall 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 in regard to the hire and tenure of employment of James McNally, James Allen, Michael Moriarty, and John Canning because of their union member- ship and activity. • We shall therefore order the respondent to offer them immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay each has suffered by reason of the discrimination against him from the date of the discrimination, as indicated earlier in this Decision, to the date of the respondent's offer of reinstatement, less the net earnings,'' of each during said period. Upon the basis of the above 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, through Packing- hous Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of James McNally, James Allen, Michael Moriarty, and John Canning, thereby discouraging membership in the above-mentioned labor organization, the respondent has engaged in and is engaging in 14 By "net earnings" is meant eainings ,less expenses , such as for transportation, room, and boas d , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica,,Lumber and Sawmill Workers Union , Local 2590, 8 N L. R. B . 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L R. B., 311 U. S. 7. WILLIAM DAVIES CO., INC. 647 unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed 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 labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act.' 5. The respondent has not engaged in unfair labor practices within the meaning of the Act by discharging Clarence Baltla, Paul Ahern, and John Boland. 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 respond- ent, William Davies Co., Inc., Chicago, Illinois,' its officers, agents, successors, and assigns shall: 1: Cease and desist from : (a) Discouraging membership in United Packinghouse Workers , of America, through Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to the hire and tenure of employment or any term or con- dition of employment of its employees; (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 activity for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to James McNally, James Allen, Michael Moriarty, and John Canning immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole said James McNally, James Allen, Michael Moriarty, and John Canning for any loss of pay which they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of the discharge or failure to reinstate, to the 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date of the respondent's offer of reinstatement, less his net earnings during said period ; (c) Post immediately in conspicuous places throughout the Chicago plant and maintain for a period of at least sixty (60) con- secutive 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) above; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) above; and (3) that the respond- ent's employees 'are free to become or to remain members of United Packinghouse Workers of America, through Packinghouse Workers Organizing Committee , affiliated with the Congress of Industrial Organizations , and that the respondent will not discriminate against any employee because of his membership in or activity in behalf of said labor organization; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent discriminating in regard to the hire and tenure of employment of Clarence Balda, Paul Ahern, and John Boland, be, and it hereby is, dismissed. MR. GERALD D. REILLY took no part in the consideration of the above Decision and Order.