Fairmont Creamery Co.

National Labor Relations Board - Board Decisions

Jun 4, 1947

73 N.L.R.B. 1380 (N.L.R.B. 1947)

In the Matter of FAIRMONT CREAMERY COMPANY and AMALGAMATED
MEAT CUTTERS AND BUTCHER 1V0RKMEN OF NORTH AMERICA, AFL,
LOCAL 214
Case No. 16-C-1285.Decided June 4. 191'7
Mr. Raney Donovan, for the Board.
Flansburg cC Flansburg, of Lincoln, Nebr., by Mr. Leonard A. Flans-
burg; Messrs. C. B. Evinger and Ed. 1Vegin, of Omaha, Nebr.; and
Mr. E. O. Gibb, of Lawton, Okla.; for the respondent.
Messrs. Walter Gieseke and K. M. Sinus, of Oklahoma City, Okla.,
and Mr. David Dolnick, of Chicago, Ill., for the Union.
Mr. Seymour Cohen , of counsel to the Board.
DECISION
AND
ORDER
On September 26, 1946, Trial Examiner Isadore Greenberg issued
his Intermediate Report in the above -entitled proceeding , finding that
the respondent had engaged in and was engaging in certain unfair
labor practies and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the respondent had not engaged in certain other alleged unfair
labor practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter , the respondent and counsel
for the Board filed exceptions to the Intermediate Report and sup-
porting briefs. On April 8, 1947, and April 17, 1947, the Board, at
Washington, D. C., heard oral argument in which the respondent
and the union participated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs filed by the respondent and by
counsel for the Board, the oral arguments, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions , modifications, and
additions hereinafter set forth.
73 N. L. R. B., No 244.
1380
FAIRMONT CREAMERY COMPANY 13811
1. We agree with the Trial Examiner that the respondent violated
Section 8 (1) of the Act by its course of conduct which consisted of
(a) its use of an employment application form requiring the dis-
closure by prospective employees of their union affiliation; 1 (b) its
interrogation of employees concerning their union activities; (c) the-
anti-union statements and threats of its supervisory employees, as,
set forth in the Intermediate Report; and (d) its activities in induc=
ing employees who were members of the Union to resign from it. The-
respondent contends that the statements herein found to be unlawful
were made by the supervisors in a "kidding and joking" fashion and-
that the employees did not take the statements seriously or interpret
them as intended to'interfere with or restrain union activities among;
them. The respondent further contends that, in any event, the state-
ments were mere expressions of opinion and thus protected by the con-
stitutional guaranty of free speech.
There is no merit in these contentions. We find, as did the Trial
Examiner, that the statements were threatening and coercive by their-
own terms. Thus, for example, as related in the Intermediate Report,
Personnel Director Thorpe told McCracken and two other employees
that "You might get a union in here and get more wages , but your
hours will be cut * * * Won't your wife think a lot of you when
you come in with checks for twelve or fifteen dollars?" Sales Man-
ager Leach remarked to Willis and another employee that "there may-
be a hundred Union members, but. there will be a hundred new faces,
and told Maib, another of the respondent's employees, that "[I don't]:
think that anyone who belonged to the Union would stand much
chance for advancement with the Company." And, as further found
by the Trial Examiner, Personnel Director Thorpe informed several
employees, including White, that "beginning [now] they (the re-
spondent) were going to fight [the Union] to a finish." Although-
relations between the respondent's supervisors and its employees may
have been cordial, as the respondent contends, we are convinced that
the above statements and others referred to in the Intermediate Re-
port were not uttered iii a jocular vein. They were not of a humor-
ous character. Indeed, we are of the opinion, and find, under all the
circumstances, particularly the other unfair labor practices within.
the meaning of Section 8 (1) and Section 8 (3) of the Act, found
herein, and the respondent's generally hostile attitude toward the-
I The employment application form instructs the applicant to "Name the social clubs,"
lodges, business organizations, union or labor organizations , etc., of which you are a mem-
ber (underline those you attend regularly )." The record does not disclose that this inquiry
was stricken from the form which the respondent used at its Lawton plant or that it In-
formed applicants for employment that the question need not be answered . We find, there-
fore, that the respondent ' required applicants to disclose their union affiliation . We find'
also that the respondent's use of the application form interfered with, restrained, and
coerced employees within the meaning of Section 8 ( 1) of this Act, in that it called for the
disclosure of attendance at union meetings.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, that the statements were intended to coerce the employees in
the selection of representatives for the purpose of collective bargain-
ing and that the employees could reasonably have regarded them as
having such a purpose.'
2. The Trial Examiner found that the respondent discharged three
of its employees, namely, Floyd Gower, Ruth Arlington, and Homer
Pressley Shelton, because of their union activities. By such conduct,
the respondent discriminated with respect to their hire and tenure
of employment to discourage membership in the Union, and thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
As found by the Trial Examiner, Gower was one of the founders of
the Union in the respondent's plant; he served as an officer of the
Union and was otherwise active in its behalf. In addition, the re-
spondent knew of Gower's union activities. Just a day before his
discharge, Manager Gibb rebuked Gower for "spreading poison around
the plant," the reference being to his union activity among the respond-
ent's employees. The respondent contends that it discharged Gower
because he violated Gibb's instruction to leave company vehicles at
the plant at night. Such instruction, which Gibb admittedly gave
Gower on or about January 6, 1946, was based on a general order from
the respondent's home office, effective on or about January 1, 1946,
requiring that company vehicles be left at the plant at night. The
general order was thereafter supplemented by an instruction from the
home office that enforcement of the restriction be postponed 30 days,
until February 1, 1946. Gower obeyed Gibb's instruction to leave the
truck at the plant at night until on or about January 7, 1946, when lie
was informed by Territory Manager Easley, who was then driving a
company vehicle under circumstances which reasonably conveyed the
impression to Gower that Easley had not left the vehicle at the plant
the night before, that enforcement of the general order had been
suspended for 30 days. Gibb did not notify Gower that the general
order had been suspended. Relying on the information received from
Easley, on or about January 7, 1946, Gower resumed his previous
practice of driving a company truck to and from work and continued
such practice until January 16,1946, when he was summoned to Gibb's
9 Moreover , the respondent ' s conduct in this regard was violative of Section 8 (1) of
the Act irrespective of the respondent ' s motive. "The test is whether the employer engaged
in conduct which , it may reasonably be said , tends to interfere with the free exercise
of employees under the Act N. L. R B V. Illinois Tool Works , 153 F ( 2d) 811 (C. C A 7).
See also N L R. B. v Aintree Corporation , 132 F. ( 2d) 469 , 472 (C C. A. 7), cert denied
318 U S. 774 , in which the Court stated • "From this record there can be no question but
that the employees had just cause to believe that the respondent disapproved of an outside
union . . it is clear that the words and deeds of the supervisory employees . . were
reasonably likely to have restrained the employees ' choice " So here, we find that the
statements in question were of a character which were reasonably likely to have coerced
the employees in the exercise of their right of self -organization
FAIRMONT CREAMERY COMPANY 1383
office and summarily discharged by Gibb assertedly for driving the
truck home at night.'
Although Gower was discharged on January 16, the home office order
was not enforced as to any employee until February 1, 1946, as Gibb
admitted at the hearing. During the period from January 7 to Janu-
ary 16, neither Gibb nor any other management representative had
notifid Gower that he was acting contrary to the respondent's wishes
in taking the company truck hone at night, although it was obvious
to the respondent that Gower had resumed his previous practice in view
of the fact that the truck, when not driven home at night, was cus-
tomarily parked in an open parking lot near the plant office. The re-
spondent urges us to believe that it discharged Gower because Gibb
regarded Gower's conduct in disregarding Gibb's personal instruction
not to drive the company truck home as insubordination. We are not
persuaded that the respondent discharged Gower for that reason. The
respondent could reasonably have expected that word concerning post-
ponement of the effective date of the general order had spread among
the employees, as in fact it did reach Gower through his conversation
with Territory Manager Easley. If the respondent had felt that
Gower's conduct was insubordinate, it is likely that it would have rep-
rimanded him for continuing to drive the truck home or would have
discussed the matter with him before deciding to discharge him, espe-
cially in view of Gower's many years of satisfactory service with the
respondent. This, the respondent did not do. On the contrary, as the
Trial Examiner found, Manager Gibb had already determined to dis-
charge Gower when he was summoned to Gibb's office and handed a pre-
pared release. Although Gower technically violated Gibb's order to
leave the truck at the plant at night, under the circumstances, we find,
as did the Trial Examiner, that the respondent in discharging Gower
was not motivated by such violation, but that it discharged him because
of his membership in and activities on behalf of the Union.
Ruth Arlington also was one of the founders of the Union in the
plant. She had served as secretary-treasurer of the Union for a period
of time, and was active in soliciting new members. The respondent
knew of Arlington's connection with the Union at the time that it dis-
charged her. The respondent contends, however, that it terminated
Arlington's employment because work which she could perform was
'We reject the respondent ' s contention that Gower ' s failure to inform Gibb at the
time of discharge of Gower's conversation with Territory Manager Easley in which Easley,
according to Gower's testimony , informed Gower of the 30-day extension with respect to
enforcement of the rule , and the fact that Easley was not called by the Board's attorney to
corroborate Gower, discredits Gower ' s testimony that he resumed taking the truck home at
night only after he learned of the extension . Gower's account of his conversation with
Easley, which the Trial Examiner credited , stands undenied on' the record , inasmuch as
the respondent likewise did not call Easley as a witness, although he was in its employ at
the time of the hearing. Moreover , Gibb knew of the extension at the time of Gower's
discharge , and at least one other employee , Easley, continued to drive a company vehicle
home during the extension period with the respondent 's approval , so far as appears.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unavailable. We reject this contention, as did the Trial Examiner.
Arlington became an employee of the Lawton plant in 1923 when it was
operated by a previous owner, and remained there as an employee when
the respondent purchased the plant in 1930. She continued to work for
the respondent until October 29, 1945, the date of her discharge. Dur-
ing this long period of employment, Arlington acquired experience in
many fields of the respondent's work, and, although there were ap-
parently no published seniority rules in effect in the plant, she and
other employees having long service records had always been given
preference in employment. Arlington had never been laid off, even
during slack periods. The extent, if any, to which the respondent's
business was slack at the time that it discharged Arlington, does not ap-
pear in the record, but there is no showing that the respondent laid off
anyone else for lack of work at that time. Although Arlington was
candling eggs at the time that her employment was terminated, Strong,
an employee with at least 5 years less seniority in the plant than
Arlington, was retained by the respondent in the performance of a
similar task. Significantly, Strong withdrew from the Union on the
day following Arlington's discharge 4
From these circumstances, and upon the entire record, we conclude,
as did the Trial Examiner, that the respondent had work available in
its plant, which Arlington was qualified to perform despite her physi-
cal infirmity, at the time that it discharged her. Moreover, the illegal
purpose motivating the respondent in making the discharge becomes
further evident when we consider that, although Arlington was told by
the respondent on October 29 merely to "lay off a month and a half or
two months," and although she again asked for work in January 1946,
the respondent at no time up to the date of the hearing offered to
reemploy her. It has refused to reinstate her despite the fact that egg-
candling and egg-breaking activities, work which Arlington could
perform, were resumed by it in the spring of 1946, and although the
record shows, as the Trial Examiner found, that it hired approxi-
mately 19 egg breakers and egg 'candlers during the months of Feb-
ruary, March, and April 1946. We are of the opinion and find that,
absent Arlington's union activities, the respondent would have con-
tinued her in its employ on and after October 29, 1945, and that it
discharged her on that date, and thereafter refused to reinstate her,
because of her union activities.
With respect to Homer Pressley Shelton the respondent does not
seriously deny that it had knowledge of his union activities, but it
4 On the day of Arlington's discharge, Stiong spoke to Arlington of having told Manager
Gibb "everything," and Arlington was told by Stiong that she was out of the Union and
did not want to go into it anymore . Shortly before , on October 12, according to Arlington's
andemed testimony which we regard as reliable , Strong had told Arlington that Personnel
Director Thorpe had "got onto her about the old hands belonging to the Union ," and said
"if her and I belonged . . to the Union, «e were all the same as unemployed "
FAIRMONT CREAMERY COMPANY 1385
contends that there is no evidence in the record showing that there
was any causal relationship between his union activity and his dis-
charge. It contends that it terminated Shelton's employment solely
because of his unwillingness to change his working hours. We believe
that Shelton was discharged by the respondent, at least in part, be-
cause of his union activities. Thus, the respondent knew that Shelton
lived on a farm some distance front Lawton when it employed him on
January 1, 1945. At the outset of his employment, the respondent
allowed him to work hours which began and ended later than those
normally required of its employees. In May 1945, it permitted Shelton
to leave its employ in order to harvest a crop on his farm and, on or
about August 1, 1945, it again gave him steady employment at the later
hours. About the end of August 1945, Sales Manager Leach asked
Shelton whether lie could change his hours so as to come to work 1 hour
earlier; Shelton explained that he was still living on the farm and
rode to and from town with a neighbor whose employment hours were
the same as his ; Leach agreed that Shelton could continue to work
the hours that he was then working. It was only after Shelton had
joined the Union, early in September 1945, that a. change of hours was
made a condition of Shelton's retention in the respondent's employ.
We are of the opinion that the respondent used the requirement as
to earlier hours as a pretext for discharging Shelton. In a statement
to Byrd, more fully set forth in the Intermediate Report, Sales
Manager Leach assigned Shelton's union activities as one of the
reasons for his discharge. Also, although on October 9, 1945, Per-
sonnel Director Thorpe told Shelton that lie was being "laid off" be-
cause of his unwillingness to change his hours, the respondent has at
all tines since that date ref used to reemploy Shelton, notwithstanding
that, on December 3, 1945, Shelton moved his residence to Lawton;
on December 7, 1945, he informed the respondent of that fact in
requesting reinstatement; and the respondent, since learning of Shel-
ton's availability, has, as set forth in the Intermediate Report, filled
a number of jobs which Shelton was qualified by experience to per-
form and was willing to take.5 Shelton was refused reinstatement
despite Thorpe's assurance to Shelton in July 1945 of a permanent
job when he should moire into town, and although Leach was informed
by Shelton in September that, upon Shelton's moving into town, he
would work "the hours [Leach] wanted [him] to work." Moreover,
the record shows that Shelton was a satisfactory employee; the
respondent does not contend otherwise. Under all these circumstances,
6 The respondent contends that the Trial Examiner's statement that Shelton on applying
for reinstatement infoimed it that he was able to work any requited hours is wholly un-
supported by the recoi d The record shows, however, and we find, that Shelton did tell Gibb
on that occasion that he had moved into town and had, during the previous September,
told Sales Manager Leach , his foreman , that when he, Shelton, moved into town , lie would
work the hours which Leach desired that Shelton work
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
and particularly in the light of the respondent's hostility to the Union
and in view of the other discharges herein found to be discriminatory,
as well as upon the entire record, we agree with the Trial Examiner
that the respondent discharged Shelton in substantial part because
of his activity on behalf of the Union.6
3. The Trial Examiner found that the respondent violated the
Act by discriminatorily discharging Joe White and W. Z. Willis. We
find that the record does not support the Trial Examiner's conclusions
with respect to these two employees. Accordingly, we shall dismiss
the allegations of the complaint as to them.
While we agree with the Trial Examiner that the respondent knew
of White's affiliation with the Union at the time that he was discharged,
we cannot agree that the record establishes that such affiliation
motivated the discharge. White's discharge on February 2, 1946,
occurred almost 4 months after White was informed by Personnel
Director Thorpe that he knew that White was a member of the
Union, and an equal period of time after Thorpe had remarked to
McCracken that the first man to mention anything about the Union
would be discharged, "especially Joe White and Roy House." Al-
though these statements were made, as set forth in the Intermediate
Report, we find under the particular facts of the case that they were
too remote, with respect to the date of White's discharge, to support
a finding of unlawful motivation. The record shows that White
had for a period from the fall of 1945 until the date of his discharge
on February 2, 1946, regularly relieved the operator on the night
shift approximately once every 2 weeks, except during a period of a
month and a half or 2 months in which he was training new men.
Thus, the assignment of White on the date of his discharge as
relief man for the night operator was merely a continuation of a
previous practice and was not a new shift assignment or transfer.
While White had on several occasions before his discharge expressed to
the respondent unwillingness to work oll the night shift, nevertheless,
the respondent did not acquiesce with respect to White's choice of
hours, and, in the interim between such expressions of choice and
White's discharge, he had accepted assignments as relief man for the
night operator. We concluded, therefore, that White was discharged
because of his refusal to obey the foreman's order to relieve the night
shift, and not because of his union activities.
6 The respondent urged in its brief and in argument before the Board that certain of the
discharged employees testified at the hearing that they were discharged for the reasons
alleged by the respondent As we have recently had occasion to note, the testimony of a
dischargee as to the reason for his discharge is not controlling tinder circumstances,
present here , which otherwise reasonably lead to a contrary conclusion . Matter of Ford
Brothers, 73 N. L . R. B. 49.
FAIRMONT CREAMERY COMPANY 1387
We also disagree with the Trial Examiner's conclusion that the re-
spondent's discharge of Willis on January 3, 1946, was motivated by
Willis' affiliation with the Union and his refusal to disavow it, and not,
as the respondent, claims, because of Garage Foreman Cowell's com-
plaints that Willis was a loafer and an employee with whom Cowell
could not get along. It is true that the respondent knew of Willis'
membership in the Union at least as early as October 18, 1945, when
Personnel Director Thorpe asked Willis to sign a letter withdrawing
from the Union, as found by the Trial Examiner. Also, as the Trial
Examiner points out, it is difficult to believe that the respondent would
have retained Willis in its employ from the date of his reemployment
in September 1945 until his discharge in January 1946, if, as the re-
spondent alleges, Willis began to loaf 2 weeks after his return to work
and if he were otherwise as unsatisfactory as it claims. However,
there is no evidence in the record as to whether or not, or to what extent,
the respondent's decision to rehire Willis or retain him in its employ
as long aS it did was affected by the condition of the labor market. The
record shows, and the Trial Examiner found, that the respondent had
been dissatisfied with Willis' performance of his duties both during his
first period of employment with the respondent and also just before
his discharge after he had been hired for a second time, as evidenced by
Cowell's criticism of Willis' work. Moreover, Willis admitted that
discord existed in his relations with Cowell. Under all the circum-
stances, we conclude that the record does not establish that the respond-
ent was motivated by anti-union considerations in effecting the
discharge of Willis.
4. The Trial Examiner found that the respondent did not discrim-
inatorily discharge William H. Whitfield and Frank H. French within
the meaning of Section 8 (3) of the Act, and that it did not discriminate
in its discharge of Carl- Red within the meaning of Sections 8 (3) and
(4) of the Act. For the reasons stated in the Intermediate Report,
we agree with the Trial Examiner that the allegations in the complaint
have not been sustained with respect to these three employees.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Fairmont Creamery Com-
pany, Lawton, Oklahoma, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, A. F. of L., Local 214, or any
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 or tenure of employment or any
term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Amalgamated Meat Cutters and
Butcher Workmen of North America, A. F. of L., Local 214, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Floyd Gower, Ruth Arlington, and Homer Pressley
Shelton immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
or other rights and privileges;
(b) Make whole Floyd Gower, Ruth Arlington, and Homer Pres-
ley Shelton for any loss of pay they may have suffered by reason of
the respondent's discrimination against them, in the manner set forth
in Section V of the Intermediate Report, entitled "The remedy";
(c) Post at its plant at Lawton, Oklahoma, copies of the notice
attached hereto, marked "Appendix A." ' Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
in its plant, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by any
other material ;
(d) Notify the Regional Director for the Sixteenth Region (Fort
Worth, Texas), 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 and amended complaint,
insofar as they allege that the respondent discriminated against Joe
White, W. Z. Willis, William H. Whitfield, and Frank H. French
within the meaning of Section 8 (3) of the Act, and against Carl Red
within the meaning of Sections 8 (3) and 8 (4) of the Act, be, and
they hereby are, dismissed.
7 In the event that this Order Is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice , before the words • "A DECISION AND ORDER," the words.-
"A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING "
FAIRMONT CREAMERY COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
1389
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL, Local
214, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Floyd Gower
Ruth Arlington
Homer Pressley Shelton
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
FAIRMONT CREAMERY COMPANY,
Employer.
Dated---------------- By ------------------------------------
(Representative) (Title)
Non:: Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Rainey Donovan. for the Board
Flansburg cC Flansbnig. of Lincoln, Nebr, by Mr. Leonard A. Flansbu?g:
Messrs. C. B Evinger ct Ed Wergrn. of Omaha, Nebr.; and Dtr. E 0. Gibb, of
Lawton, Okla. ; for the respondent.
Dtessi s. Walter Gieseke and K. M. Sims. of Oklahoma City, Okla, for the Union.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge filed on February 28, 1946, by Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL, Local 214, herein called
the Union, the National Labor Relations Board, herein called the Board, by
its Regional Director for the Sixteenth Region, (Fort Worth, Texas), issued its
complaint dated May 15, 1946, against Fairmont Creamery Company, Lawton,
Oklahoma, herein called the respondent. The complaint alleged 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. Copies
of the complaint, the amended cjiaige, and the notice of hearing were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that in violation of Section 8 (1) and (3) of the Act the respondent dis-
charged seven named employees on or about certain specified dates,' and has since
refused to reinstate them, for the reason that they joined the Union and engaged
in activities on its behalf; and (2) that since August 1945, the respondent has,
in violation of Section 8 (1) of the Act, vilified, disparaged, and expressed
disapproval of the Union to its employees, interrogated its employees concerning
their union activities, urged and threatened its employees to refrain from joining
or assisting the Union, and urged, encouraged, and assisted its employees to
withdraw from the Union.
The respondent filed an answer which in substance denied the allegations of
the complaint concerning the unfair labor practices, and asserted that each of
the employees alleged in the complaint to have been discriminatorily discharged,
was either discharged for good cause or voluntarily terminated his or her em-
ployment with the respondent.
Pursuant to notice, a hearing was held in Lawton, Oklahoma, on June 4 and
5, 1946, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The Board and the respondent, appearing by counsel, and the
Union, appearing by lay representatives, participated in the hearing, and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues Opportunity was afforded the
parties at the conclusion of the hearing to argue orally before the undersigned.
Counsel for the respondent did so argue. Bi iefs were received by the undersigned
from counsel for the respondent and the Board
On June 17, 1946, the Union filed a Second Amended Charge. On June 24,
1946, counsel for the Board served upon all parties a written motion to reopen
the record to admit evidence upon an amended complaint. On July 3, 1946, the
Chief Trial Examiner overruled the objections of the respondent to the granting
of said motion, and ordered the record herein reopened for the purpose of receiv-
ing evidence upon the allegations of the amended complaint. In the said order,
the Chief Trial Examiner continued the designation of the undersigned as Trial
Examiner in the case.
The complaint as amended additionally alleged that the respondent had en-
gaged in and was engaging in unfair labor practices within the meaning of
' Their names, and the dates of their respective discharges, as alleged in the complaint,
are :
H. P. Shelton---------- October 9, 1945 Flovd Gower___________ January 16, 1946
W. H Whitfield-------- October 23, 1945, Joseph White ---------- February 2. 1946
Ruth Arlington--------- October 25. 1945 Frank Fiench---------- March 18, 1946
W. Z Willis----------- Jauuaiy 3, 1946
FAIRMONT CREAMERY COMPANY 1391
Section 8 (1), (3), and (4) of the Act, in that on or about June 7, 1946, it dis-
charged and thereafter refused to reinstate Carl Red for the reason that he
gave testimony under the Act at the former hearing herein, and because he re-
fused to assist the respondent in discriminating against another employee because
of the latter's affiliation with the Union.
Pursuant to notice, a further hearing was held at Lawton, Oklahoma, on July
25, 1946, before the undersigned Trial Examiner. All parties were represented
as at the prior bearing, and participated fully therein. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues raised by the amended complaint was afforded all parties At the
close of the hearing the respondent's counsel renewed his motion to dismiss the
complaint in its entirety, and moved to dismiss the additional allegations of the
amended complaint. Ruling on said motions was reserved. Such ruling is dis-
posed of as hereinafter set forth. Counsel for the Board filed a supplement to his
brief, covering the Board's contentions with respect to the discharge of Carl
Red. Though afforded an opportunity to do so, the respondent did not file any
additional brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Fairmont Creamery Company, a Delaware corporation, oper-
ates a plant at Lawton, Oklahoma, where it is engaged in the purchase and
processing of poultry, eggs, milk, and milk products, and in marketing the finished
products. During the 6-month period preceding the hearing, the respondent made
substantially all of the purchases for its Lawton plant within the State of Okla-
homa. During.the same period the Lawton plant sold products in excess of the
value of $25,000, of which about 25 percent was shipped to points outside the
State of Oklahoma. The respondent admits that it is engaged in commerce within
the meaning of the Act.
II THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
Local 214, is a labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LALOR PRACTICES
A. Interference, restmaint, and cocicion
Union activities among the employees of the respondent's Lawton plant be-
gan about April 1945 when two of the employees got in touch with a representa-
tive of the Union and requested aid in oiganizing Thereafter, the Union con-
ducted several meetings at the homes of some of the respondents employeees.
On September 24, 1045, the Union held its first public meeting at a union hall
in Lawton. During the organizational period, the union adherents among the
respondent's employees were actively soliciting the affiliation of their co-workers.
During the period herein discussed, the respondent admittedly regularly used
at its Lawton plant a printed form of application for employment which re-
quires an answer to the following question • "Name the social clubs, lodges, busi-
ness organizations, union of labor organizations, etc., of which you are a member
(Underline those you attend regularly)." The respondent contends that it in-
cludes the question as to union affiliations on its application form because it has
739926-47-vol 73-89
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closed shop contracts in some of its plants, and therefore wishes to know an,
applicant's union affiliations so as to avoid "jurisdictional difficulties." Since,
so far as appears , there was no union contract in existence at the Lawton plant,
this explanation for including the question on its application form has no force
insofar as its use at Lawton is concerned. In any event, the existence of a
union contract would not justify the requirement that applicants for employ-
ment reveal their union affiliations In order to conform to the requirements of
a closed shop or union shop clause in a contract, an employer need only inform
a prospective employee that as a condition precedent to employment, or within
a given period after employment, he would have to be a member in good stand-
ing of the contracting union. Moreover, as hereafter appears, the respondent's
officials and supervisors orally questioned several employees as to their union
affiliations and activities, under circumstances clearly indicating that such ques-
tioning was motivated, not by the aforesaid reason, but by the respondent's efforts
to combat the Union. The undersigned can perceive no reasonable basis, there-
fore, for applying to the instant case an exception to the Board's oft-reiterated
rule that the use of such a question on an application for employment interferes
with, restrains, and coerced employees in the exercise of their rights under the
Act.'
It appears from the record, and the undersigned finds, that the two employees
who took the initiative in forming a local of the Union in the respondent's Lawton
plant were Ruth Arlington and Floyd Gower? Both these employees were active
in soliciting membership for the Union, and served as officers of the local. Some
time in October 1945, George Thorpe, personnel director of the respondent's
Lawton plant, approached Gower in the plant and remarked that he had heard
,that the employees were organizing a union. When Gower confirmed this, Thorpe
stated that he did not see why "you need one here," and asked what good the
Union would do. Thorpe then added that he knew who most of the union mem-
bers were.' About a week later, Manager E. L. Gibb of the Lawton plant told
Gower that he (Gibb) understood that the employees were organizing a union,
and suggested that they organize a "local" union. On January 15, 1946, Gower,
who was secretary of the Union, received a telegram from its national officers
addressed to him at the plant.' Later the same day, Gower was summoned to
the office by Manager Gibb, who accused him of doing his work inefficiently, and
of "spreading poison around the plant " Gibb asked him several times whether
he understood what Gibb meant by "spreading poison," and then asked , "Are you
going to quit it?" When Gower answered, "Well, I guess I will have to quit it,"
Gibb said, "0: K., if you are going to quit it, we will try to get along." '
' Matter of D W. Onan d Sons , 50 N L R B 195 , 199; Matter of Valley Fruit Co , 59
N. L R B 896, 899, Matter of Peter Freund Knitting Mills, 61 N L R B. 118, 123-124.
'As is hereinafter discussed , both Arlington and Gower were subsequently discharged
4 The above finding is based on Gower 's undenied testimony , which the undersigned
credits Unless otherwise indicated , the findings hereinafter made are also based on
undenied and credited testimony.
Gower testified that he received the above -mentioned telegram on January 6, but the
telegram itself, which was introduced in evidence , bears the date of transmission as January
14, and is marked as having been delivered on January 15. The undersigned therefore finds
that Gower was mistaken as to the date of delivery, and that the telegram was delivered to
him on January 15, 1946.
"The finding as to the above conversation is based on the testimony of Gower Gibb did
not specifically deny having made the aforesaid statements to Gower, but lie denied generally
that in any conversations he might have had with employees about the Union lie had ever
"used any terms that were coercive or intimidating ," and be testified further that he "always
made it very clear to them that so far as the Company was concerned, it mattered not
whether they weer members of the Union, or were not members of the Union." Under
cross-examination by the respondent 's counsel , Gower was asked whether it was not true
that Gibb and Thorpe had always made it clear that "whether [employees] joined [the
FAIRMONT CREAMERY COMPANY 1393
On or about October 9, 1945, Personnel Director Thorpe telephoned to Arlington
in the plant, and disguising his voice, asked her whether she had a union card.
Arlington answered that she did not have a card with her, but would get one
for him. Thorpe said, "You get it and I will sign it." Thereupon Thorpe
laughed, and revealed his identity.? In the latter part of September 1945, Thorpe
asked employee H. P. Shelton and another employee whether they were attending
the union meeting that night, and about October 10, 1945, during a conversation
with two employees including Joseph White, Thorpe stated that although he
had not up to that date fought the Union, "beginning then they were going to
fight it to a finish ..."
Also in the early part of October 1945, Thorpe approached employee N. T.'
McCracken and two other employees and asked "How are you boys getting along
with the Union?" In the course of the ensuing conversation, Thorpe told the
employees, "You might get a union in here and get more wages, but your hours
will be cut," and asked, "Won't your wife think a lot of you when you come in
with checks for twelve or fifteen dollars?" Thorpe then added, "You boys go
ahead and get them in the Union and we have a way of getting them out." About
3 days later Thorpe stopped McCracken in the plant and told him:
Mac, I gave you boys two months to get the Union up. I am damned
tired of it. The first man I hear of mentioning anything about a union, I
am going to can him if I have to run the plant myself, especially Joe White
and Roy House . . . I had ten or twelve employees to come to me today,
making kicks about them disturbing them in their work, about trying to
get them to join the Union. I am getting tired of it You can tell Joe in
the morning, after eight o'clock, if I hear of any of them making cracks
about joining the Union, I am going to can him, if I have to run it myself.
The foregoing quotations of Thorpe's statements to McCracken on the two
occasions above described are from the undenied testimony of McCracken.
Thorpe testified generally that he "might have made some remarks [to employees
about the Unions in a joking sort of way." In its brief the respondent points
to some testimony given by McCracken under cross-examination to the effect
that Thorpe laughed and walked away after making the statement that if the
Union succeeded in getting wages raised, the respondent would cut the employees'
hours and thus decrease their pay checks, and that he (McCracken) had "an
idea he was kidding about those checks." It contends that Thorp's statements
must therefore be regarded, not as coercive in their effect, but merely as joking,
friendly remarks not taken seriously by the employees. The respondent further
Union] or not" was "purely a matter of freedom of choice" He answered, "Well, I don't
know. They got pretty rough with me once or twice-Mr Gibb did" When piessed
further by counsel to admit that the employees' freedom of choice with respect to the
Union was made clear by the respondent, Gower testified, "They fought the Union all of the
time I was down there * * * They didn't say that to me " The undersigned does
not credit Gibb' s general testimony that he had always made clear to employees their light
to join or refrain from joining the Union, and, being impressed by Gower as a truthful
witness , credits his above-quoted testimony as to the statements made to him by Gihb In
view of the timing of this conversation, Gibb's significant reiteration of his question whether
Gower knew what he meant by "spreading poison," and Thorpe and Gibbs previous state-
ments to Gower with respect to the Union, the undersigned finds that Gibb's remarks to
Gower about "spreading poison around the plant" referred to Gower's activities on behalf
of the Union, and that Gower so understood them
° While, standing alone, Thorpe's above-described telephone call to Arlington might
appear to be nothing more than an innocuous joke, the undersigned is convinced and finds
that, in view of the respondent's practice of questioning applicants for employment as to
their union affiliations, and of its interrogation of other employees with respect to the
Union, as well as the respondent's anti-union animus as revealed by the record, it consti-
tuted an effort to ascertain whether Arlington was active on behalf of the Union.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that Thorpe's threat to discharge the first man mentioning anything
about a union, referred only to any employee soliciting for the Union during
working hours, thus disturbing other employees in their work. As to this,
McCracken testified under cross-examination that "that was what he [Thorpe]
was complaining about." These contentions, however, are rebutted by Mc-
Cracken's further testimony during re-direct and re-cross examination, that when
Thorpe spoke to him he believed what Thorpe said and "figured that he meant
to can the guys that continued getting the Union up"; that Thorpe did not "say
it that way [if the Union adherents did not quit disturbing other employees]"
... but said "if he heard a man make that statement the next morning, he
was going to can him-any kind of statement about the Union"; and that Thorpe
had stated, "You might get a union in here and get more wages, but your hours
will be cut."
Considering the whole of McCracken's testimony, and the circumstances
surrounding the making of the aforesaid statements, the undersigned concludes
that Thorpe's remarks had a coercive effect on the employees. Even assuming
that Thorpe's prediction regarding the effects on the employees' pay checks of
the unionization of the plant was accompanied by a laugh, such a threat of
economic reprisal by the respondent could not help but deter employees from
exercising their right to self-organization. So also, Thorpe's sweeping state-
ment that he was "damn tired" of the Union, and that lie would "can" the
first man he heard mentioning anything about a union, was necessarily coercive
in effect, even though followed by a complaint that employees were being dis-
turbed at work. The respondent at no time formulated any rule prohibiting
discussions during working hours, nor in any other way made it clear to the
employees that its animadversions against union activities were directed only
against the carrying on of such activities during working hours. Indeed,
Thorpe's remark, "You boys go ahead and get them in the Union, and we have
got a way of getting them out," indicates that the respondent was determined
to prevent the organization of the plant, not merely to put a stop to solicitation
that interfered with work Moreover, as the record shows, Thorpe and other
company officials, both before and after the conversations above set forth, were
carrying on a broad anti-union campaign, marked by interrogation of employees
regarding their union activities, threats of reprisal against those who persisted
in such activities, and actual discharges of employees because of their union
affiliations The undersigned finds that Thorpe's aforesaid statements were, and
would reasonably be regarded by the employees as, an integral part of the
respondent's coercive campaign to crush the Union
About a week or 10 clays after the Union was organized, Sales :Manager A. K.
Leach asked employee W. Z. Willis and another employee whether they had
joined it. Both employees admitted that they had, whereupon Leach stated,
"Well, there may be a hundred Union members, but there will be a hundred
new faces." a In November 1945, Leach told another employee, Ernest _llaib,
that "he didn't think that anyone who belonged to the Union would stand much
chance for advancement with the Company "
a Leach admitted having threatened that these would be a "hundred new faee^," but
testified that lie was "strictly kidding " There is nothing in Willis' testimony , which the
undersigned credits, to indicate that the conversation in question was in a joking vein
Moreover, in view of the other anti -union communications addressed to employees by the
respondent' s officials, and of the discriminatory discharges heiewafter found , the under-
signed is convinced and finds that Leach's statements on the occasion in question were not
regarded by the employees to whom they were addressed as jocular remarks , but were
reasonably taken as being a serious threat of reprisal on the part of the respondent against
those employees who joined the Union.
FAIRMONT CREAMERY COMPANY 1395
On or about October 18 , 1945, Willis noticed his foreman, Ferd Cowell, who
had previously joined the Union, leave the plant in company with Personnel
Director Thorpe and another employee . Upon Cowell 's return to the plant,
Willis accused him of having gone out to sign a letter of withdrawal from the
Union.' A short time later , Cowell offered to get Willis a letter of withdrawal
from the Union to sign. Willis refused the offer. Later the same day, Per-
sonnel Director Thorpe approached Willis and asked him to sign a withdrawal
letter. Willis refused. Thorpe thereupon accused Willis of "double-crossing"
him, and walked off .'° Some time in December 1945, Sales Manager Leach asked
his subordinate employee, Frank French , whether the latter knew the way
"the boys overseas feel about unions," and then told him that if he [French]
belonged to the Union , the respondent "had a way for him to get out of" it.
W. W. Godlove, an attorney practicing in Lawton , testified without contra-
diction, and the undersigned finds, that some time in October 1945, Thorpe and
Gibb came to his office and asked him whether he would be willing to write
letters for some of the respondent 's employees , and that he said that he would.
Thereafter , as is shown by the record, 15 of the respondent 's employees appeared
at Godlove 's office on dates ranging from October 18 through October 31, 1945,
and requested him to prepare letters of resignation from the Union for them.
In each case Godlove prepared such a letter , got the employee 's signature to it,
and mailed the letter by registered mail to the Union. Godlove testified that
he expected to bill the respondent for his aforesaid services.
Gibb and Thorpe did not deny Godlove's testimony , as set forth above, that
they had arranged with him to have the letters of resignation prepared for the
respondent 's employees . They both testified , however, that some employees
had come to them for advice as to how to "get out of" the Union , explaining that
they had joined it "without realizing what they were signing ," and that they
[Thorpe and Gibb] had simply suggested to the employees in question that they
consult an attorney . Both Gibb and Thorpe denied that they had in any way
encouraged or directed any employee to resign from the Union . The undersigned
does not credit the aforesaid denials. Thorpe 's remark to McCracken and two
other employees that the respondent "had a way of getting [Union members]
out of" the Union ; Cowell and Thorpe 's invitations to Willis to sign a letter of
withdrawal from the Union ; Leach's hint to French that if he had joined the
Union the respondent "had a way for him to get out of it"; and the fact that the
respondent permitted employees to leave their work for the purpose of going to
Attorney Godlove 's office to sign withdrawal letters from the Union ; " coupled
with Thorpe and Gibb's visit to Godlove to arrange the preparation of the let-
ters, reveal active efforts on the part of the respondent in inducing the employees
to repudiate the Union . Moreover , Thorpe and Gibb's protestations of neutrality
° Cowell's letter of resignation from the Union, dated October 18, 1945, is in evidence.
30 As hereafter appears, Willis was discharged on or about January 3, 1946. The above
findings are based on the credited testimony of Willis which was not specifically denied.
Thorpe denied generally that he had ever "in any instance encouraged or directed an
employee to resign from the Union " The undersigned does not credit this general denial.
11 Godlo e testified that at least some of the letters of resignation were signed in his
office by employees of the respondent during his regular office hours between S a in and
5 p in. This testimony, taken together with that of Willis, to the effect that he saw Cowell
leave the plant with Thorpe during working hours, on the day that Cowell signed his letter
of resignation, and that Cowell did not deny Willis' accusation that he had gone out to sign
a letter of withdrawal from the Union, convinces the undersigned, and he finds, that at
least some of the employees were permitted by the respondent to leave their work for the
purpose of going to Godlove's office to sign such letters.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to the Union are further rebutted by the respondent's coercive
campaign against the Union, in which they played an active role':
The record as a whole leads to the conclusion, and the undersigned finds, that
the respondent's use of an employment application form requiring the disclosure
by prospective employees of their union affiliations, its interrogations of employees
about their union activities, its anti-union statements and threats, and its
activities in inducing employees affiliated with the Union to resign therefrom,
constituted integral parts of a campaign carried on by the respondent to prevent
its employees from becoming or remaining members of the Union, and generally to
combat the employees' organizational efforts, and that the respondents, by such
statements and conduct, and by their totality, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. The discriminatory discharges
1. Floyd Gower
Gower was continuously in the respondent's employ from 1937 until on or
about January 16, 1946, the date of his discharge. From 1940 to the latter date,
he worked in the respondent's territory and hatchery departments. In both
these departments his duties occasioned the use of a light truck or passenger
car, one or the other of which was furnished him at all times since 1940, by the
respondent. In common with other employees who drove company cars, Gower
was permitted to take his truck or passenger car home at night and to drive in
it to work in the morning.
On or about January 6, 1946, Manager Gibb informed Gower that he had
received orders from the respondent's home office to have company vehicles
left at the plant at night, and that Gower was henceforth not to drive his truck
home.13 That night, Gower followed Gibb's instructions, and left his truck at
the plant. The next morning, as Gower was walking to work from his bus stop,
he was picked up by Territory Manager Easley who drove by in a company car.
Gower expressed surprise, saying, "I thought we were supposed to leave our
cars and trucks at the plant," whereupon Easley answered, "No, we got an exten-
12 This campaign was marked by discharges of employees because of their union affiliation,
instances of which are discussed below, and by the statements and threats of Thorpe,
Gibb, and Leach, which have been summarized above, e g., Thorpe's statement to White
and two other employees that the respondent henceforth was going to fight the Union to a
finish ; his threats to McCracken that he would "can" the first man he caught mentioning
the Union and that if the Union succeeded in obtaining a wage increase, the respondent
would see to it that the employees received smaller checks by cutting their hours ; Leach's
prophecy to Willis that "there may be a hundred new Union members, but there will be a
hundred new faces," and his statement to Maib that anyone who belonged to the Union
would thereby jeopardize their opportunities for advancement ; and Gibb's ominous remark
to Gower, after demanding that the latter "quit" his union activities, that "if you are
going to quit it, we will try to get along." [Italics supplied ]
n Gibb testified that when he gave the above-described instructions to Gower, he gave
as the reason therefor the fact that the hatchery season was over, and that "the truck
was used for [Gower's] transportation back and forth to home only during the time the
incubators were actually in operation. That was done because it was necessary that he
come back at night and check temperatures, see that his incubators were operating
properly." Gower's testimony that he had always, since 1940, been permitted to drive
between his home and the plant in a company vehicle, whether the hatchery •was operating
or not, seems the more plausible, in view of the fact that other employees, not connected
with the hatchery , were likewise permitted to use company cars in this fashion until, as
hereinafter appears, this practice was prohibited on February 1, 1946. The undersigned
therefore credits Gower on this point.
FAIRMONT CREAMERY COMPANY 1397
sion of thirty days."" Thereafter, Gower resumed his previous practice of
driving to and from home in the company truck he was using-a fact which he
did not attempt to conceal from the respondent."
On January 16, 1946, Gower was summoned to Gibb's office and discharged,
allegedly for having driven the truck home at night, in violation of Gibb's
instructions.16
The respondent contends that it discharged Gower solely because he had
admittedly violated Manager Gibb's instructions to cease driving a company truck
between his home and the plant. It asserts that Gower's union affiliations and
activities played no part in its decision to discharge him, and that, in fact, the
respondent had no knowledge of Gower's membership in the Union.
In assessing the respondent's explanation for discharging Gower, the following
factors have been considered by the undersigned : 1. Gower had been in the re-
spondent's employ for some 9 years previous to his discharge; 2. his services
were, during this period, considered satisfactory by the respondent; "' 3. in, view
of the fact that the respondent's general order against the use of company vehicles
for driving to and from work had admittedly not been put into effect until Febru-
ary 1, 1946, and the fact that one of the respondent's supervisors had informed
Gower that the execution of the aforesaid order had been postponed until that
date, Gower's resumption of the use of the truck constituted a technical, rather
than a wilful violation of Gibb's instructions ; 4. Gower was given no opportunity
to defend himself, or to offer any explanation, before the respondent decided
to impose the extreme penalty of discharge upon him'
It seems extremely unlikely to the undersigned that, absent other motives,
the respondent would summarily discharge an employee of long and satisfactory
service for such a technical infraction. The record contains, moreover, persuasive
evidence that the respondent was anxious to rid itself of Gower because it knew
of, and resented his leadership in the Union. Thus, shortly after Gower, together
with Arlington, took the initiative in forming a local of the Union in the plant,
he was approached by Personnel Director Thorpe and Manager Gibb, the former
14 The above findings are based on Gower's undenied testimony, which the undersigned
credits Easley, who was admittedly still in the respondent's employ, and available as a
witness, did not testify. Gibb admitted that use of company vehicles for driving to and
from work was forbidden to all employees (except Gibb himself) on and after February
1, 1946. This corroborates Gower's testimony : 1. That when Gibb originally told him in'
early January to discontinue using the truck, these instructions were actuated by a general
order to that effect applying to all employees, and 2. that he learned later that execution
of the aforesaid order had been suspended for a month
15 Since the truck, when not driven home at night, was customarily parked in an open
parking lot near the plant office, Gower's use or non-use of the truck at night was obvious.
Gibb testified that before Gower was discharged he had instructed him twice not to drive
home in the truck. Gower denied this, and testified that he had been given such insruc-
tions only once. Gower impressed the undersigned as the more credible witness, and it is
therefore found that Gibb gave Gower such instructions only on the occasion which has
been above described, namely, when he told him that an order had been issued from the
home office to that effect
11 Gower was informed of his discharge by Gibb by being handed a written statement
by the latter, with a request that Gower sign it. The statement set forth that he was
being discharged on account of having driven the company truck home at night. Gower
refused to sign it, got his check, and left the plant.
17 Gower testified that his work had been commended by his superior on a number of
occasions. This testimony being undenied, and the respondent having put forward no
claim that his work was not satisfactory, the undersigned concludes and finds that
Gower's work was at all times considered satisfactory by the respondent.
is As has been noted, the respondent's decision to discharge Gower was made before he
was summoned to Gibb's office on the date of the discharge, as was evidenced by the
prepared statement which Gower was asked to sign.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarking that he did not see why the employees needed a union," and the
latter suggesting that Gower organize a "local union." This plainly indicates,
and the undersigned finds, that both these company officials then knew of or
suspected Gower's affiliation with the Union. Only a day before Gower was
discharged, he was berated` by Gibb for "spreading poison around the plant"-
a metaphor, which, as has been above found, referred to Gower's activities on
behalf of the Union.20 There thus can be no doubt, not only as to the respondent's
knowledge of Gower's activities in the Union, but also as to its resentment
against him because of those activities. Previous to the date of Gower's dis-
charge, the respond'ent's supervisors had revealed their determination to stamp
out the Union by whatever means, including discharges of employees active
therein. Thus, Thorpe had announced that the respondent was "going to fight
[the Union] to a finish"; that he would discharge the first employee "mentioning
anything about a union"; and Sales Manager Leach had threatened that "there
may be a hundred Union members, but there will be a hundred new faces."
In addition, as appears below, the respondent, seizing upon one pretext or an-
other, discharged practically all of the leading members of the Union in the plant
within a few months after its organizational campaign was initiated.
Since the reason advanced by the respondent for discharging Gower is uncon-
vincing, and the record indicates that the respondent's resentment at Gower's
union activities motivated its decision to terminate his services, the undersigned
finds that the respondent discharged Gower because of his membership in and
activities on behalf of the Union, thereby discouraging membership in the Union,
and interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Ruth Arlington
Previous to her discharge on October 29, 1945,21 Arlington had been in the re-
spondent's continuous employ from the time in or about 1930 when the respond-
ent took over the Lawton plant from another company, for whom Arlington
had also worked. Her job at the beginning of her employment by the respondent
was picking poultry. About 12-14 years before the date of the hearing, Arling-
ton developed a severe skin rash which her physician advised her was caused
by a poisonous substance in the water used in this operation. Thereafter, hav-
ing reported this fact to her foreman, Arlington was assigned to work other than
poultry-picking. During the ensuing 12-14 years, she performed various opera-
tions in practically every department of the plant, including clerical work,
inspecting poultry," breaking and candling eggs, and creamery work. She
was not thereafter assigned to picking poultry except when, on about six occa-
39 On the same occasion Thorpe stated that he knew who most of the union members
were
20 It is to be noted that the respondent has come forward with no explanation other
than the above-stated one, as to what Gibb mean by his phrase "spreading poison around
the plant."
21 The complaint alleges, and Arlington at one point testified, that she was discharged
on October 25, 1945. However, her subsequent testimony, in which she traced the sequence
of events preceding her discharge, makes it appear that the discharge actually took place
on Monday, October 29. The undersigned therefore finds that Arlington was discharged
on October 29, 1945
22 The respondent sought to show that in inspecting poultry, Arlington's hands came in
contact with the same water used in picking poultry. However, Arlington testified that
after the picking operation and before they were inspected, the poultry came through a
second rinse water. The undersigned credits this undenied testimony, and finds that
when inspecting poultry, Arlington was not exposed to the water containing the poisonous
substance , at least not in the same concentration , as she was when picking poultry.
FAIRMONT CREAMERY COMPANY 1399
0
sions, special local orders had to be filled. From about June to October 12,
1945, Arlington worked in the respondent's cream station. On the latter date,
Personnel Director Thorpe asked her to transfer to the poultry department tem-
porarily. When Arlington reported for work to this department, she was as-
signed to picking chickens. At the end of the day her skin had broken out in a
rash. As a result she was unable to return to work for the next 2 days, during
which time she treated the skin condition-a fact which she duly reported to
Personnel Director Thorpe. On her return to work, she was assigned to candling
eggs. After 2 days of this work, Arlington was told by her foreman that there
were no more eggs on hand, and that she was to be laid off for the time being.
Pursuant to her foreman's instructions, Arlington called Thorpe the following
Monday to inquire about resuming work, and was told the only work available
for her was chicken-picking. Arlington remonstrated, "You know I can't pick
chickens," whereupon Thorpe answered that he "knew that," but that there
was nothing else for her to do, and suggested that she "lay off a month and a
half or two months" after which time there would be "something open that
[she could] do." When Arlington went to the plant for her check the next
day, Thorpe had her sign an unemployment compensation form giving as the
reason for her discharge,` "unable to do the work that is available." In Jan-
uary 1946, having heard nothing further from the respondent, Arlington again
asked Thorpe for work, but was told that there "wasn't anything yet to do."
She has not since been given any work by the respondent.
The record shows that both at the time Arlington was discharged, and sub-
sequent thereto, the respondent, while refusing to give Arlington any other work
except poultry-picking, had a need for female employees to perform operations
other than poultry-picking. Thus, Employee Eva Strong, who had at least 5
years' less seniority than Arlington,24 continued to work as an egg-candler in the
Poultry and Egg Department after Arlington's employment was terminated.
At the time of Arlington's discharge, there were approximately 10 female em-
ployees in the Poultry and Egg Department, all with less seniority than Arling-
ton, some of whom were performing operations other than poultry picking.
Moreover, the respondent's records reveal that after Arlington's discharge, it
hired 18 female employees as egg-breakers and 1 as an egg-candler. Arlington
was a competent employee, her work never having been criticized, but on the
contrary, having been commended by her supervisors. She had had long years
of experience with the respondent in a great variety of operations in different
departments of the plant.
The respondent contends that it discharged Arlington, and has since failed to
reinstate her in its employ, solely because there has been no work available
which she is capable of performing. It denies that, prior to her discharge, it had
any knowledge of her membership in the Union. In support of its position, the
respondent asserts that the only work available for Arlington, namely poultry
picking, was offered to her, and that she refused to do this work; that while the
plant did some egg-candling subsequent to Arlington's discharge, this operation
was performed in a department other than the poultry department and was
"entirely unrelated to the egg-candling that is performed in the poultry depart-
23 At Thorpe's suggestion Arlington reported to the unemployment compensation authori-
ties that she was "totally unemployed."
24 Arlington testified without contradiction, and the undersigned finds, that she was the
employee with the greatest seniority in the department at the time of her discharge. It
will be remembered that she had been employed by the respondent from the beginning of
its operations in Lawton. Previous to Arlington's affiliation with the Union, she, in common
with other employees of great seniority, had always been given preference in employment,
had never been laid off, even during slack periods, and whatever work there was at such
times was divided among the older employees.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment" ; 26 and that while the operation of egg-breaking was also resumed in the
plant after Arlington was discharged, Arlington was not considered physically
capable of doing either egg-candling or egg-breaking '
While in the respondent's employ, Arlington had been incapacitated for about
6 months prior to June 10, 1914, while undergoing treatments for varicose veins,
had returned to work on the latter date, and in April 1945, had been assigned to
egg-candling. On this occasion she told Personnel Director Thorpe that her
doctor had advised her not to do any lifting "for the time being," but Thorpe
suggested that she "try it and if it got to hurting [her] to quit it." She then
continued this work without complaint from April to June 1945, and worked at
egg-candling again in October 1945 without any difficulty, although as has been
found, this work involved lifting cases of eggs. Arlington had done egg-breaking
for the respondent prior to the time she was treated for varicose veins and testified
at the hearing that she was both willing and able to accept steady work at this
operation.
Manager Gibb testified that he was aware of the fact that Arlington had under-
gone treatments for varicose veins, and that for that reason "certain types of work
[such as egg-breaking] were not available to her." The respondent bases its
contention that egg-breaking and egg-candling are not "available" to Arlington
on the allegation that, in view of her age, weight,' and medical history, it would
be subjected to undue risk of claims for injury if it were to employ her in such
"heavy work" and "her condition became aggravated."
The respondent's contention that it withheld work from Arlington as an egg-
breaker and egg-candler because such work might aggravate her alleged physical
defects, and thus subject the respondent to damage suits, is refuted by the
record. Thus, although Arlington had at least twice, to the respondent's knowl-
edge, been made ill by picking poultry, and was susceptible to further illness
if she resumed this work, the respondent offered her employment as a poultry-
picker, and, in fact, conditioned her continued employment upon her acceptance
of this work. This insistence that Arlington resume work which had, as a matter
of experience, physically incapacitated her, hardly squares with the respondent's
professed fear of claims for damages Further, Arlington had demonstrated her
capacity to perform the work of candling eggs without ill effect, even after her
treatment for varicose veins. Indeed, prior to the advent of the Union, the re-
spondent's asserted apprehension as to the ill effects upon her of such work,
was conspicuously absent. As has been found, when Arlington, in April 1944,
after being treated for varicose veins, requested a temporary assignment to
lighter work, Thorpe unconcernedly instructed her to continue candling eggs and
to quit only if this work proved to "hurt" her.
The Board's contention that the respondent discriminatorily transferred Ar-
lington to poultry-picking-which it knew she could not do-ih order to create
a pretext for discharging her, is supported by the following circumstances : 1.
The respondent knew of Arlington's activities in the Union prior to her dis-
26 The undersigned has set forth the above contention as it appears in the respondent's
brief (p. 11). It is not clear just what relevance is attached to the alleged fact that the
egg-candling in question was performed in a department other than the poultry department,
since Arlington had had experience in many different departments of the plant.
I" Both egg-breaking and egg-candling involve the lifting of containers of eggs weighing,
in the case of egg-breaking, about 30-35 pounds. These operations also necessitate that the
employee performing them stand on his or her feet continually while working, and at
times, if an egg is dropped on the floor, the floor may become slippery.
27 At the hearing Arlington appeared to be a somewhat stout, but a normally active,
middle aged woman
FAIRMONT CREAMERY COMPANY 1401
charge ; Z" 2. The respondent's demonstrated hostility to the Union and its threats
to rid itself of pro-union employees; 3. The patent falsity of the respondent's
explanation for refusing to give Arlington work which she could do, and which
it had available, despite her long years of satisfactory experience, and for in-
sisting that she perform an operation which it knew made her ill ; 4. The respond-
ent's use of-similar pretexts to discharge other employees who were active in
the Union, instances of which are discussed below.
The undersigned finds that the respondent discharged Arlington on or about
October 29, 1945, and has since refused to reinstate her, because of her member-
ship in and activities on behalf of the Union, thereby discouraging membership
in the Union, and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
3. Horner Pressley Shelton
At the time Shelton first entered the respondent's employ, namely January 1,
1945, he operated and lived on a rented farm located about 9 miles from Lawton.
His initial job for the respondent was that of laborer in the shipping depart-
ment. He kept this job until May 1945, at which time he voluntarily left in order
to harvest the crop of his farm. While harvesting, he worked in the respondent's
cream station on Saturdays. Sometime in July 1945, Shelton informed Personnel
Director Thorpe that he was thinking of leaving the farm and moving to Lawton,
and asked Thorpe "about a steady job." The latter replied, "Well, I think we
can fix you up." When Shelton pressed Thorpe for a commitment that the job
would be permanent, Thorpe gave him such assurance. About the first of August,
Shelton was put to work in the respondent's city sales department, first as a
helper loading trucks, and then as a driver of a delivery truck.
Shelton's hours while working for the respondent were from 8 a in. to 6 p. m.,
the same as they had been during the first period of his employment. About the
end of August, Sales Manager Leach asked Shelton whether he would change his
hours to 7 a. m.-5 p. m., but when Shelton explained that since he was still living on
the farm, he rode to and from town with a neighbor, whose hours of work were
the same as his, Leach agreeed to leave Shelton's work schedule unchanged.
Shelton joined the Union sometime between September 5-10, 1945, attended
the Union's meetings, and distributed a number of application cards among
fellow-employees. On one occasion, about the middle of September, while Shelton
was handing a union application card to employee Frank French, Sales Manager
Leach came into the room, to within a foot of where Shelton and French were
standing. Several times during the middle and latter part of September, on days
that union meetings were to be held, Personnel Director Thorpe asked Shelton
whether he planned to attend the meeting; on one of these occasions Shelton re-
plied that because he lived in the country he was not sure whether he could "make
it back or not." Shelton, in fact, attended the meeting that night, as he did all the
meetings of the Union which were held while he was in the respondent's employ.
23 As has been noted , Arlington was one of the initiators of the campaign to unionize
the respondent ' s plant . She served as the Union's secretary -treasurer during the organiza-
tional period , and §ecured the signatures of about 30-35 employees to union authorization
cards On October 9, 1945, 3 days before Arlington's transfer to poultry-picking, Thorpe
called Arlington on the telephone and in a disguised voice asked her for a union card ; she
promised to get one for him. In view of the foregoing , of the respondent ' s active efforts
to ascertain who among its employees belonged to the Union , and the fact that the plant
herein involved employs only about 100 workers, it is a fair inference , and the undersigned
finds, that the respondent knew of Arlington 's leading role in the Union prior to transferring
her, on October 12, to poultry -picking. Cf . N. L R. B. V. Abbott Worsted Mills, 127 F. (2d)
438, 440 (C. C A. 1) ; N. L. R. B. v. Link -Belt Co ., 311 U. S. 584, 602.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of Shelton's open activities on behalf of the Union; Leach's proximity
to Shelton when the latter handed French a union application card ; the respond-
ent's demonstrated interest in the union activities of its employees ; Thorpe's ques-
tions to Shelton as to whether or not he was attending union meetings ; Shelton's
answer, which was to the effect that he would attend if he were able ; and
the reasons given by Leach for Shelton's subsequent discharge, which are dis-
cussed below, the undersigned finds that the respondent was aware of Shelton's
membership in the Union before his employment was terminated.
About a week after Shelton joined the Union, Leach again asked him to change
his hours of work from 8-G to 7-5 29 Shelton told him that he was still riding to
work with his neighbor, and added that if the respondent could find someone to
take his place who would work from 7 to 5, he would be willing to transfer to
other work. Shelton also told Leach on this occasion that he was planning to
move to town, and that he would then work "the hours [Leach] wanted [him]
to work." Shelton then spoke to the foreman of the butter room about a transfer
to that department. The foreman indicated that he would discuss the matter with
Leach, and later told Shelton that Leach had refused to release Shelton because
he (Leach) needed him in the department where Shelton was then employed.
On or about October 9, 1945, Leach told Shelton that he was pleased with
his work, but that he had found a man who would come to work earlier than
Shelton, and that he was therefore turning the latter over to Personnel Director
Thorpe. Thorpe informed Shelton that he was being laid off due to his unwilling-
ness to change his hours. When Shelton asked about work in the cream station
(in which he had formerly been employed), or in the butter room (the foreman
of which had indicated a willingness to hire him), Thorpe stated that the respond-
ent did not need any help in those departments. Shelton reminded Thorpe of the
latter's promise that he would have permanent work, to which Thorpe answered,
"With your set-up, you would probably be better off out on the farm." Shelton's
employment was then terminated.
Shelton moved into Lawton on December 3, 1945, and on December 7 informed
the respondent of this fact, and applied to it for reemployment. Manager Gibb
informed him on this occasion that the respondent had "more men than [it] really
need[ed]." The respondent has not since called Shelton back to work 8°
The record shows, and the undersigned finds, that since Shelton's lay-off, and
up to May 20, 1946, the respondent has filled 12 jobs which Shelton was qualified
by experience to performs' The respondent has offered no explanation for its
failure to offer Shelton one of these jobs.
The respondent contends that "there is no evidence whatever to show that
any union membership or activity had any relation to the termination of employ-
ment of Mr. Shelton" ; that he "could have continued with the Company" if he
had "been willing to work the regular hours", and that after his discharge,
90 Shelton ' s undenied testimony, which the undersigned credits, was that he joined the
Union between September 5-10, 1945, and that the conversation above referred to occurred
about 2 or 3 weeks after the end of August
80 Thorpe told Shelton on October 9 that he was not being discharged , but was merely
being laid off.
81 Thus , according to the respondent 's records , it has filled the following jobs on the
dates specified : general plant laborer ( December 27, 1945 ) ; sales helper ( October 30 , 1945)
wholesale route man ( December 17, 1945 ) ; general plant laborer ( December 12, 1945)
general plant laborer ( December 27 , 1945) ; route helper ( December 6, 1945) ; route
helper ( December 3, 1945) ; helper on truck ( May 4, 1946 ) ; retail route driver ( May 20,
1946 ) ; route helper ( May 6 , 1946 ). Shelton's experience in the respondent 's employ,
with an admittedly satisfactory record, as a general plant laborer and delivery truck
driver obviously qualified him by experience to fill the foregoing jobs-a fact which the
respondent has not denied.
FAIRMONT CREAMERY COMPANY 1403
Shelton returned "and suggested that he be given the cream station up town
[a position which] was filled [and for which] Shelton was not qualified."
The undersigned has above summarized the evidence pointing to the respond-
ent's hostility against the Union, its repeated threats to rid itself of union ad-
herents, and evidence from which its knowledge of Shelton's union activities may
reasonably be inferred. In addition, on the day Shelton was discharged, Leach
told his assistant, Byrd, who was Shelton's immediate supervisor, that Shelton
was not "with us any more-he can't come early or stay late, and he is a little
too active in the Union." u This remark by Leach, which the latter did not deny
having made, in itself reveals that at least one of the motivating reasons for the
respondent's discharge of Shelton was the latter's activity on behalf of the Union.
It follows that, even if the respondent had additional reasons, in themselves
valid, for terminating Shelton's employment, such termination, being tainted with
an illegal motivation, was in violation of the Act " But there are additional
factors which lead to the conclusion that the respondent terminated Shelton's
employment, not because of, his unwillingness to change his hours of work, but
because of his activities in the Union. Thus, before Shelton's affiliation with
the Union, the respondent was agreeable to his working from 8 a. in. to 5 p. in.,
and readily accepted his explanation that his arrangements with a neighbor
for transportation prevented his working on another schedule. It was only after
he had joined the Union that a change of hours was made a condition to Shelton's
retention in the respondent's employ Strangely enough, after permitting Shelton
for some time to work on his original schedule, the respondent chose a time
after Shelton had informed it that he was going to move into town, and would
thereafter be free to conform his working hours to the respondent's desires, to
raise the issue of hours to the status of a crucial matter which could no longer
be deferred. The only rational explanation offered by the record for this sudden
shift from complacency to impatience on the part of the respondent, just as the
issue was about to resolve itself, is that after Shelton's union affiliations became
known to the respondent it sought to avail itself of a pretext for discharging
him. This conclusion is buttressed by the fact that after Shelton had moved to
town, and had applied for reinstatement to the respondent's employ, informing
it that lie was then able to work any hours that the respondent might require,
such reinstatement was denied him, despite the fact that employment for which
32 In making the above finding, the undersigned is not unmindful of the fact that under
examination by the respondent's counsel, Byrd, in response to leading and suggestive
questions, testified that he did not believe that Shelton's union activities "had anything to
do with his being discharged" ; that the sole reason given for having terminated Shelton's
employment was "because we didn't have a job that would fit in with the way he wanted
to work" ; and that Leach's remark with respect to Shelton's activities in the Union
concerned itself with Shelton's talking to employees about the Union when he was supposed
to be working. However, a fair reading of Byrd's entire testimony leads to the conclusion
that Leach assigned as the reason for Shelton's discharge, the fact, not only that the
latter would not change his hours of work, but also that the respondent considered hint
"too active in the Union" and the latter without any regard to whether Shelton's afore-
said activities did or did not take place during working hours This conclusion is sup-
ported, not only by Byrd's testimony, but also by the corroborating testimony of witness
Maib who testified that shortly after Shelton was discharged, Byrd had told him (Dlaib)
that Leach had stated that "he discharged Shelton because he couldn't give him the hours
he wanted, that is, he couldn't be there early enough in the morning, or late enough in the
evening, and he was too active in the Union " The fact that Leach did not deny or
explain either Byrd or Maib's testimony to this effect, further supports the above con-
clusion, as does the fact that the respondent itself vigorously contends that Shelton's
activities on behalf of the Union had no relation to his discharge.
03 Butler Bros v N. L R. B., 134 F. (2d) 981, 985 (C C A. 7), cert denied 320
U S 789, Kansas City Power ii Light Co v N I R. B , 111 F (2d) 340, 349 (C C A 8)
Cupptes Co Mfrs v N L R B, 106 F (2d) 100, 117 (C C A 8).
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was qualified thereafter became available," despite Shelton's previous satis-
factory services, and in the face of the fact that Shelton had been told on
October 9 that he was not being discharged, but was merely being laid', off. In
view of this state of the record, the undersigned concludes and finds that the
respondent discharged Shelton on or about October 9, 1945, and has since refused
to reinstate him, because of his affiliation with the Union and his activity on
its behalf, thereby discouraging membership in the Union, and interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
4. Joe White
White first worked for the respondent from March 1943 until July 1944, at which
time he voluntarily left the respondent's employ. He started as a maintenance
mechanic, and later became an "operator" of various types of engines, pumps,
and boilers White re-entered the respondent's employ in July 1945, being hired
at this time as a maintenance mechanic, or floorman 35 At the time of his re-
employment, White told Chief Engineer Mallon, the supervisor who hired him,
that he was not willing to work the "midnight shift." 3e Mallon answered that he
had plenty of operators, and that while he would pay White an operator's salary,
he intended to use him as a floorman all the time. White then began to work as a
floorman, his working hours being 7 a. in. to 6 p. in. Between August and October
1945, four of the respondent's operators left its employ, necessitating the "break-
ing in" of four replacements. White was assigned the task of teaching these
new men the job of operating. During this period, also, White acted as a relief
operator, substituting for the operators on the various shifts on their respective
days off. White testified that he was willing to relieve the operator on the night
shift during this period because the respondent was "short of operators, and had
no one to do it." About the middle of January 1946, White heard that the opera-
tors had requested an advance in their shift hours, which would have changed
the starting hour of the morning shift from 7 a in. to 5 a. in. White, who had
not been consulted with respect to the proposed advance in hours, thereupon in-
formed Mallon that lie was opposed to the change, and that "furthermore, [he]
didn't want any more night work." Mallon said he "would see the other boys
.about it," and the plan was dropped.
White testified without contradiction, and the undersigned finds, that by this
time the respondent had four experienced, qualified operators. Later in January,
Mallon asked White to "take the evening shift" ; n White agreed to do so, but
again reminded Mallon that he was not willing to take "any more night work,
m In its brief ( p. 42), the respondent , in discussing its refusal to reinstate Shelton after
his application for reemployment on December 7, seeks to make it appear that Shelton, on
this occasion , conditioned his application for reinstatement on his being put in charge of a
cream station-a position for which it contends he was not qualified However, as
Shelton credibly testified, and the undersigned finds, he mentioned that he was "interested
in" working in the cream station , but also asked Manager Gibb on the occasion of his
application for reemployment , "how lie was fixed for help ," adding that he had moved to
town. Gibb ' s answer was , "well, we have more men than we really need." It is thus
clear that while Shelton suggested his employment in the cream station as one possibility,
he was making a general application foi ceeinploy ment, that Gibb so understood it, and
that the latter refused the application on the ground that the respondent had no openings
"The two terms are synonymous, and refer to an employee who works at maintaining
the mechanical equipment in the plant
"There are three shifts for operators • The morning shift (from 7 a. in. to 3 p. m)
the afternoon shift (from 3 p. in to 11 p in ) , and the night shift (from 11 p in. to 7 a in
37 In his testimony, White referred to the "evening shift" as distinguished from the
"night shift " The undersigned infers from this that by the term "evening shift," White
meant the one running from 3-11 p in., which has hereinbefore been termed the "afternoon
-shift."
FAIRMONT CREAMERY COMPANY 1405
after 12 o'clock." Thereafter, White worked as a floorman (or maintenance
mechanic), and relieved the morning and afternoon operators on their days off.
On February 2, 1946, White came to work at his usual hour, 7 a. m. After lie
had begun his work, Mallon informed him that he was to relieve the night opera-
tor for the next two nights. White said, "Fred, I am not working any more at
night. Is that all you have for me?", whereupon Mallon replied, "I will have
your check made out in the office."
At the time of White's discharge, the respondent had in its employ four opera-
tors, including Kaufman, the senior operator. According to White's undenied
testimony, which the undersigned credits, it had always been the respondent's
practice to have the senior operator act as floorman and relief operator. Like-
wise, the operator next in seniority to the senior operator was normally given his
choice of shifts. At the time of White's discharge, he was next in seniority to
Kaufman.38
White joined the Union on October 3, 1945, became its recording secretary, and
besides attending union meetings, actively recruited members for that organiza-
tion As has been heretofore found, Personnel Director Thorpe told White about
October 10 that the respondent was thereafter going to "fight [the Union] to a
finish " On the same occasion Thorpe told White that he knew that White was
a member of the Union. It has likewise been found that Thorpe told employee
McCracken during early October that he (Thorpe) was "damn tired" of the
Union, and that "the first man [Thorpe] hear[d] of mentioning anything about
a union" would be discharged, "especially Joe White and Roy House "
The respondent contends in its brief that the reason for White's discharge
was his refusal to accept further assignments to night work, and that his "union
relationship had no bearing whatever upon the termination of his employment."
The record shows, however, that when White was rehired in July 1945 (before
the Union entered the picture), it was upon the understanding that White would
not be required to work the midnight shift The respondent's previous practice
moreover, was to give preference as to choice of shifts on the basis of seniority,
and, as has been found, White was, next to Kaufman, the senior employee in his
department When the extraordinary dearth of operators during August-October
developed, White cooperated with the respondent by voluntarily acting as relief
operator, despite his reluctance to work after midnight. Thereafter, and when
the emergency no longer existed, White indicated to the respondent his unwill-
ingness to change the hours which he had been employed to work. Since the
newer operators were by that time experienced, there appears to be no reason
for the respondent's arbitrary insistence that White waive his seniority rights,
and depart from the understanding on which he was employed, except that it
was seeking to force White out of its employment.30 This is indicated not only
by the facts above noted, but also by the specific threats by Thorpe that White
would be discharged if lie continued active in the Union, and by the circumstance
that the respondent had, in the cases of Shelton and Arlington also, used as a
device for ridding itself of them, the expedient of requiring them to accept, as a
condition of continued employment, assignments which the respondent knew
- As has been found above, White had broken in the operators other than Kaufman
10 The undersigned is aware of the fact urged by the respondent's counsel, that absent
anti-union discrimination, an employer is free to act as arbitrarily as it desires with
respect to its employees so far as the Act is concerned However, as is discussed below,
the record herein convinces the undersigned that the respondent was motivated with respect
to White, by its desire to rid itself of a leading member of the Union. Discriminatory
conduct tow aids an employee on that basis, affecting the employee's hire or tenure of em-
ployment, contravenes the Act.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they could not or would not take .40 The undersigned - is persuaded , and therefore
finds, that the respondent discharged White on or about February 2, 1946, be-
cause of his membership in the Union , and his activities on its behalf,- thus
discouraging membership in the Union , and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
5. W. Z. Willis
Willis was in the respondent 's employ as an automobile mechanic from 1940
or 1941 for a period of about 3y_,, years, after which he voluntarily left. He
returned to the employ of the respondent about September of 1945. During both
these periods , Willis' immediate supervisor was Garage Foreman Cowell.
Willis joined the Union on or about September 24, 1945, on the occasion of that
Organization's first public meeting in Lawton. Before attending this meeting,
Willis discussed the Union with Foreman Cowell, who likewise attended the
meeting and there signed an application card for membership. On October 18,
1945, Cowell left the plant during working hours in the company of Personnel
Director Thorpe and employee Harkey.` On the said date both Cowell and
Harkey signed-letters of withdrawal from the Union in the offices of Attorney
Godlove. Upon Cowell's return to the garage, Willis chided him for having
withdrawn from the Union.42 Cowell did not deny having resigned from the
Union, and sometime later returned to Willis and offered to get the latter "a
withdrawal letter to sign." Willis refused to sign one, and again expressed
resentment against Cowell's having "slipped around to [Willis'] back and
[having withdrawn] from the Union." Later the same day, Thorpe asked Willis
to sign a letter withdrawing from the Union, which he again refused to do.
Thorpe thereupon remarked that Willis was trying to "double-cross" him. On
another occasion, as has been hereinbefore discussed, shortly after the Union
commenced activities in the plant, Sales Manager Leaeh asked Willis and
another employee whether they had joined the Union, and upon being told that
they had, remarked, "Well, there may be a hundred Union members, but there
will be a hundred new faces."
On or about January 3, 1946, Cowell informed Willis that he was no longer
satisfied with the latter's work, and that he could not use him any more. Willis
then discussed the matter with Manager Gibb, who discharged him that
afternoon.
40 Compare , in this connection , Matter of Fairmont Creamery Co ., 64 N L R B. 824,
828, 829 , in which the Board stated . "The respondent's foreman discriminatorily trans-
ferred Ambrose to work which was injurious to her health , and hence intolerable. Under
these circumstances , we find that Ambrose was compelled by the nature of her work, which
was discriminatorily assigned to her, to terminate her employment ." See also , N. L. R. B.
v. Fairmont Creamery Co , 143 F (2d) 668, 669-671 (C C A 10), cert. denied 323 U S
752, enforcing 52 N. L. R. B , 75 , in which the Court pointed out that the respondent's
manager had threatened to assign a pro -union employee to work which the employee did
not desire , if the Union were successful in organizing the plant , and that this threat was
actually executed , thus forcing the employee in question to give up his job and accept one
at lower pay.
41 Harkey is referred to in Willis ' testimony as "Orkie," but the record is clear that the
correct way to spell his name is "Harkey "
42 Willis' undenied testimony , which the undersigned credits , was that he could not re-
member the exact words he said to Cowell on the above-mentioned occasion , but that he
"said something to him about [Willis] knew where he had been, and asked him why he
didn ' t say something to [Willis ] before he had done it." Read in its context, particularly
since Cowell did not otherwise explain or deny the conversation , and since Cowell's resigna-
tion from the Union, together with Harkey's are in evidence, it is clear that what Willis
was ieferring to was Cowell 's act of withdrawing from the Union . The undersigned so
finds
FAIRMONT CREAMERY COMPANY 1407
The respondent contends that Willis was discharged because he was given
to loafing on the job, and because he was unable to get along with Cowell, his
foreman. In support of this contention, the respondent adduced testimony from
Cowell that although during the first period of Willis' employment in the respond-
ent's garage, Willis had done "very good work," he had "got to lagging, loafing
on the job," and that Cowell had complained to Willis about it" Cowell further
testified that after Willis was reemployed by the respondent in September 1945,
he again "worked very good" for about the first two weeks but then "began to
lag again" and thereafter would do practically no work when he was not being
watched. Manager Gibb testified that before he discharged Willis in January
1946, Cowell had complained, to him that Willis had failed to carry out his
instructions, that Willis had admitted to hint that he could not get along with
Cowell, that he (Willis) had been loafing on the job for "the last couple of
weeks," and that he therefore discharged Willis "because of the fact that he
leased and failed to do his work to such an extent that the foreman just couldn't
pu$ up with it." Willis admitted that he had quit the respondent's employ in
1944 because he had "got tired of [Coww ell] complaining" about his work, and
that on the day of his discharge in January 1946, Cowell had criticized his
work It is thus plain from the record, and the undersigned finds, that during
the first period of Willis' employment, and at least just prior to the termination
of his second period of employment in the respondent's garage, Cowell had
criticized Willis' work.
The issue remaining for determination is whether, on the latter occasion, the
respondent was, as it claims, motivated solely by Cowell's complaints against
Willis, in discharging the latter, or whether as the Board contends, Willis'
affiliation with the Union, and his refusal to disavow it, led to his discharge. In
resolving this issue,*the undersigned has considered the following circumstances:
(1) Cowell testified that during Willis' first period of employment (which lasted
about 31/2 years), the latter, after initially doing good work, loafed on the job
to such an extent that Cowell was forced to criticize him "every day or two." Yet,
as the record shows, the respondent did not discharge him, and willingly reem-
ployed him in September 1945 One is forced to conclude, and the undersigned
finds, since Foreman Cowell was still in change of the garage and knew about
Willis' previous record, that either Cowell's previous criticisms of Willis were
not justified, or in any event, that Willis was a satisfactory enough employee
in the respondent's judgment to merit reemployment despite some shortcomings.
(2) Similarly, with respect to Willis' second period of employment, Cowell testi-
fied that after 2 weeks of "very good" work, Willis "began to lag again" to such an
extent that he did practically no work whenever Cowell left him alone in the
garage. The undersigned cannot believe that if Willis shirked his work to the
extent now claimed by the respondent, or was, in its judgment, as unsatisfactory
as it now seeks to paint him, it would have tolerated him in its employ from
September to January, especially in view of his alleged previous bad record
(3) It is significant that the respondent did nothing to discipline Willis for
his alleged derelictions until after his affiliation with the Union came to its
attention; after Sales Manager Leach's threat to him that the respondent would
replace all the union adherents among its employees ; after Cowell and Thorpe had
vainly attempted to have Willis repudiate the Union ; and after Thorpe had
expressed his resentment against Willis' refusal to do so.
The foregoing factors convince the undersigned, and he therefore finds : 1. That
the respondent's present criticisms of Willis' performance as an employee are
" No denial was made that Willis had voluntaiily left the respondent's employ the first
time
7 39926-47-vol 73-90
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exaggerated ; 2 that whatever complaints the respondent may have had against
Willis, prior to his refusal to withdraw from the Union , were not, in and of
themselves , sufficient to motivate the respondent to discharge him; and 3 that
the respondent discharged Willis on or about January 3 , 1946 , because of his
affiliation with, and refusal to withdraw from, the Union ,44 thereby discouraging
membership in the Union, and interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
C. Alleged discriminatory discharges
1. William H. Whitfield
Whitfield worked for the respondent from some time in 1928 to the date of his
discharge, October 23, 1945. During those years he filled a variety of jgbs, in
different departments During early July 1945, he was transferred to a job as
checker in the respondent's sales department, the duties of which consisted
primarily of checking merchandise being loaded on delivery trucks, and returned
merchandise taken off them. A copy of the check list made by the checker
is given to the driver of the truck, so that the latter is aware of the items of
merchandise with which he is charged Two weeks after Whitfield assumed
the job of checker, as Manager Gibb and Whitfield both testified, Gibb criticized
Whitfield's work, telling him that lie was not sufficiently vigilant in checking the
merchandise being loaded on trucks, and warning him that he would "have to
tighten up a little bit." Gibb testified without contradiction, and the under-
signed finds, that the respondent was concerned at this period about substantial
losses of merchandise from the respondent's inventory, which it could account
for only by inferring that unchecked merchandise was being loaded on trucks,
and being disposed of by the drivers without returning the proceeds to the
respondent. The record also indicates that the respondent's notice was called to
the fact that Whitfield had been remiss in tailing to check merchandise which
had been delivered to customers On the morning of October 23, 1945, the
respondent learned that a truck driver and his helper had sold two cases of
butter which had been put on their truck without being listed, and had kept
the proceeds of that sale. Whitfield had been assigned to checking that truck.
On the same day the respondent discharged the driver, his helper, and Whitfield,
assigning as the reason therefor the fact that the driver and helper had mis-
appropriated the butter, and that Whitfield had been careless in tailing to check
it onto the truck.
Whitfield joined the Union on October 3, 1945, and thereafter was active
on its behalf. The Board contends that the unchecked merchandise for which
the respondent criticized Whitfield alight have found its way onto the trucks
which the latter was charged with checking, at times when Whitfield's duties
took him off the loading dock, e g, when he had to go back into the coolers
to help carry out goods, that the loss of merchandise about which the respondent
was concerned was therefore not properly attributable to Whitfield : and that
in view of the respondent's demonstrated anti-union bias, Whitfield's discharge
should be inferred to be discriminatory
While it is true that the record discloses a pattern of discrimination by the
respondent against its pro-union employees, the undersigned is not persuaded
that in the case of Whitfield the Board has established the fact that his discharge
was illegal. Thus, while Whitfield is shown to have been active in the Union,
44 The undersigned finds that if not the sole, the above -stated reason was one of the moving
considerations which led the respondent to discharge Willis The discharge is, theretoie,
illegal even if it be assumed that the respondent was also partially motivated by dissatis-
factiton with Willis' work See authorities cited on p 1403, fn 33 supra
FAIRMONT CREAMERY COMPANY 1409
a fact which we may fairly infer was known to his employer, the record also
establishes that his work was criticized before he joined the Union .45 Moreover,
there is no evidence to rebut the respondent's contention that Whitfield's work
failed to improve after the first warning that it was necessary for him to
"tighten up." Finally, in view of the respondent's legitimate concern over the
loss of merchandise to which it was being subjected, and the uncontroverted
evidence that it had reason to believe that trucks which Whitfield was sup-
posed to check were going out with unlisted goods, the undersigned concludes
that the Board has failed either to refute the respondent's explanation for Whit-
field's discharge, or to show affirmatively that his union activities were the real
reason therefor. The undersigned finds, therefore, that the allegations of the
complaint with respect to Whitfield's discharge have not been sustained.
2. Frank H. French
French started to work for the respondent on or about October 2, 1945, as a
clerk in the city sales department. His work consisted of taking telephone
orders, selling items over the counter, writing sales tickets, and making the
necessary price computations. French testified that at the time he was hired,
lie was told that if his work proved to be satisfactory he would receive periodic
wage increases. During the 7 months lie was employed by the respondent, he
admittedly received no increase.
Manager Gibb testified that immediately after French started to write sales
invoices, the respondent learned that lie was making a "stupendous" number
of errors In support of this contention, the respondent introduced into evi-
dence a compilation of the number of errors discovered in French's work This
compilation, dating back to the period following the first two or three weeks
of French's employment, shows that in October French made 28 errors ; in No-
vember 25; in December 25; in January 43; February 37; and from March 1
to March 18, 32.48 Gibb admitted, however, that he had never complained to
French about these errors.
No criticism of French's work was voiced to him until some time in January
1946, when, as both French and Sales Manager Leach testified, the latter com-
plained to French that lie was making too many mistakes, and warned him that
he would have to "straighten it out." The Board contends that this criticism
was made on Monday, January 21, 1946, on which date the respondent is shown
to have received a letter from the Union, informing it, among other things, that
French was president of the Union In this connection, French testified that
while lie could not remember the exact date when Leach complained to him, it
was after the international representative of the Union had informed French
that the aforesaid letter had been sent to the respondent. Leach, on the other
hand, testified that he talked to French "definitely" before he knew French was
a member of the Union, and that the conversation took place the first week
in January. Since neither French nor Leach named the precise date of the
conversation, the undersigned does not rely on the testimony of either of these
witnesses to the effect that it took place before (as Leach testified) or after
"It will be remembered that Willis, who was found above to have been discriminatorily
discharged, was also criticized by his supervisor prior to his affiliation with the Union.
However, Willis' alleged shortcomings were thereafter condoned by the respondent when
it subsequently rehired him That element, which the undersigned took into consideration
in assessing the issues, is not present in the case above discussed.
'6 French did not deny having made the number of errors attributed to him, but testified
merely that they were not all called to his attention Since the evidence above referred
to stands undenied, the undersigned finds that the compilation introduced in evidence by
the respondent correctly lists the errors made by French, which were discovered by the
respondent.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(as French testified) the respondent learned of French's presidency of the Union.
It is fair to infer, however, in view of the undenied evidence that French com-
mitted a large number of errors in his work, ,which caused the respondent con-
siderable trouble, that the criticisms directed by Leach against French were jus-
tified, and would have been made even if the respondent had never learned of
French's connection with the Union. The undersigned so finds."
On or about March 18, 1946, Leach and Gibb spoke to French, told him that in
view of the errors he was making in his work they could not continue him in the
same job, and informed him that he was being transferred to a job as helper on a
wholesale delivery truck. Leach told French on this occasion that the job being
offered him would not involve as much clerical work as he was then required to do,
and that his rate of pay would remain the same as it had been. French refused
the job on the ground that he was not physically able to do the heavy work
involved." He was thereupon discharged.
French suffered from stomach ulcers, a fact which he had not revealed to the
respondent at the time of his employment, but which he had disclosed to Leach
some two weeks prior to his discharge.
The Board contends that the respondent discriminatorily transferred French
to a job as helper on a wholesale truck, knowing that lie could not do such heavy
work, as a means whereby to rid itself of the president of the Union. It has been
fouhd that the respondent's dissatisfaction with French's clerical work was well
founded, and had no connection with his holding of office in the Union. Since its
conduct was not based on anti-union discrimination with respect to French, the
respondent was free to discharge him without offering him a transfer to another
job, and the fact that the respondent chose to offer him employment as helper
on a truck therefore has no significance insofar as the issues herein involved are
concerned. At any rate, French's own testimony casts considerable doubt on his
claim that the respondent must have known that the work of a helper on a whole-
sale truck was too heavy for him. Under cross-examination he testified that while
he was unable, because of his ulcers from which he had suffered for years, to
accept the job of helper on a truck when it was offered to him, he was not ill at
the time of the hearing (3 months later) and could "do most anything right
now"-that his capacity to work "would be unlimited."
The undersigned concludes and finds from the whole record that the allegations
of the complaint regarding the discharge of French have not been sustained.
3. Carl Red
Red was in the respondent 's employ as foreman of the loading crew at the time
of the initial hearing herein. On June 25, 1945, he was called as a Board witness
in the hearing and testified , inter aha, that around February 1, 1946, he had had a
conversation with Route Salesman Math in which he had informed Maib that an
extra case of butter was being placed on Maib's truck without the butter appearinz
on the check list, and that this was being done pursuant to the instructions of
Personnel Director Thorpe.
On June 7, 2 days after Red gave the aforesaid testimony, Manager Gibb, acting
on the advice of the respondent's attorney, discharged Red, giving as the reason
97 The Board points to the fact that no criticism was made to French about his work until
some 3 months after his employment , as a. suspicious circumstance indicating that the
respondent ' s present complaints with respect to French are exaggerated However, as the
respondent explained , Leach made his criticism to French only a week or two after French
began to handle his job independently-Fiench having previously been working with, aml
under the guidance of, his predecessor on the job . Under the circumstances, the under-
signed finds nothing suspicious in the timing of the respondent ' s criticism of French s work.
48 Ab helper on a wholesale delivery truck has to carry cases of 12 bottles of milk
FAIRMONT CREAMERY COMPANY 1411
• for the discharge the fact that Red had disclosed to Maib the loading of butter
on his truck which did not appear on the check list.
Red had admittedly been instructed by Thorpe around the first of February
to place a case of unchecked butter on Maib's truck, but Red testified that while
he had been instructed not to "put [the extra case of butter] on the check list",
he had not been told "not to tell Maib".
The respondent contends that at the time of the above-described events it was
suffering from continued and substantial shortages of butter," which it concluded
was being taken from the plant by truck drivers without being checked and
without thereafter being accounted for by the drivers. It contends further that
in an attempt to discover which drivers were misappropriating merchandise in
this manner, it instructed Red, who was then a checker, to place unchecked
merchandise on all the trucks without informing the drivers, thus testing
whether the driver would account for the unlisted items. It justifies Red's
discharge on the ground that by disclosing to Maib that he was so being tested,
Red violated his instructions, invalidated the test, and thereby committed an
act of disloyalty to the respondent.
The Board contends that Red's discharge was in violation of Section 8 (3)
and (4) of the Act for the following reasons: (1) he was discharged in violation
of Section 8 (4) because he had given testimony on behalf of the Board in the
first hearing herein ; (2) the respondent's instructions to Red to place unchecked
butter on Maib's truck was part of an attempt to create a pretext for discharging
Maib, who was an officer of the Union; (3) the instructions to Red with respect
to thus testing the reliability of drivers were not general, but were confined to
placing unchecked merchandise on Maib's truck alone; (4) Red's failure to co-
operate with the respondent in carrying out the aforesaid instructions thus con-
stituted a justified refusal to take part in creating a discriminatory basis for
Maib's discharge; (5) Red's discharge for his refusal to participate in the at-
tempted discrimination against Maib, was, consequently, in itself illegal.
On the basis of the testimony herein summarized, and for the reasons set
forth more fully above in the discussion of the discharge of Whitfield, the under-
signed is convinced, and therefore finds that during the period herein involved
the respondent was suffering shortages of merchandise, and in good faith con-
cluded that the source of these shortages was a piactice engaged in by some of its
truck drivers of misappropriating unchecked merchandise loaded on their trucks.
It is further found that instructions were given to Red by Thorpe to place un-
checked merchandise on all the trucks, in an attempt to discover which drivers
were engaging in this practice. Thorpe's testimony to this effect is corroborated by
that of Gillespie, who testified that she heard Thorpe tell Red to put some un-
checked merchandise "on all the drivers' trucks " Although Red denied this,
and testified that he had been told only to test Maib among the drivers, the under-
signed is persuaded that in view of the respondent's discharge of a driver and
helper who were not shown to have been union members, because they had mis-
appropriated butter," and because of the respondent's concern with the problem
of missing merchandise, it is reasonable to believe that it was seeking, not to pin
the,guilt on a member of the Union, but actually to protect itself by testing all
of its drivers. The undersigned therefore credits the testimony of Thorpe and
Gillespie on this point. It is also reasonable to infer, and the undersigned finds,
90 A compilation was introduced in evidence showing that from September 1945 through
February 1946, the respondent suffered the following shortages from its butter inventory :
September 1945 ( shortage of 2,458 lbs ) ; October 1945 ( shortage of 3,180 lbs) ; November
1945 ( 280 lbs surplus ) ; December 1945 (shortage of 384 lbs) ; January 1946 (shortage of
161 lbs ) ; February 1946 ( shortage of 30 lbs).
o° This incident is more fully described in the discussion of Whitfield's discharge , supra.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Red, who knew about the shortages of butter, understood the purpose of.
Thorpe's instructions, and therefore knew that the respondent did not wish
him to disclose to Maib the fact that unchecked merchandise was to be placed
on his truck.
In view of the foregoing, the undersigned finds that Red was not discharged
because he gave testimony under the Act, but because the respondent learned
from his testimony that he had violated Thorpe's instructions It is further
found that the respondent's instructions to Red to load unchecked butter on
Maib's truck were not motivated by anti-union considerations, but constituted
part of the respondent's attempts to discover which of its drivers were im-
properly taking merchandise out of the plant. Consequently, the undersigned
concludes and finds that the respondent's discharge of Red was not in violation
of Section 8 (3) or (4) of the Act, but was on account of his violation of the
respondent's legitimate instructions.
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 described in Section I above, have a close, inti-
mate 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
Inasmuch as it has been found that the respondent has engaged in certain
unfair labor practices it will be recommended that it cease and desist therefrom,
and take certain affirmative action designed to effectuate the policies of the
Act.
It has been found that the respondent discriminated in regard to the hire
and tenure of employment of Floyd Gower, Ruth Arlington, Homer Pressley
Shelton, Joe White, and W. Z Willis by discharging and refusing to reinstate
them because of their union membership and activities. The undersigned will
recommend, in order to effectuate the policies of the Act, that the respondent
offer to them immediate and full reinstatement to their former or substantially
equivalent positions," without prejudice to their rights and privileges, and
that the respondent make them whole for any loss of pay they may have
suffered by reason of the respondent's discrimination against them by payment
to them of a sum of money equal to the amount which they normally would
have earned as wages, from the date of their discharge to the date of the
respondent's offer of reinstatement, less their net earnings p2 during said period 6s
51 In accordance with our consistent interpretation of the term , the expression "former
or substantially equivalent position " Is intended to mean "former position wherever pos-
sible , but if such position is no longer in existence , then to a substantially equivalent posi-
tion." See Matter of The Chase National Bank of the City of New York, San Juan , Puerto
Rico, Branch, 65 N. L It. B 827
62 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking eniplovment elsewhere See Matter
of Crossett Lumber Company, 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 earn-
ings. See Republic Steel Corporation v. N. L. R. B , 311 U. S. 7.
54 With respect to Gower, the respondent adduced some testimony that even if he had not
been discharged on January 16, 1946, his work would have been terminated "in a couple
of weeks" in any event , since the respondent thereafter closed its hatchery , in which Gower
was employed . However, since Gower ' s testimony which the undersigned credits reveals
that when there was no work for him in the hatchery he was normally employed in other
FAIRMONT CREAMERY COMPANY 1413
The cease and desist order hereinafter recommended is based upon the following
findings : When the union activities among the respondent's employees came to its
attention it undertook to undermine such activities by making threats that it
would discharge all the union adherents among its employees ; by arranging to
have letters of withdrawal from the Union prepared for employees by an attorney,
and by various means inducing many of them to sign such letters, some of them
during working hours ; by discriminatorily discharging five employees because of
their union activities and refusal to disavow the Union ; and by generally evinc-
ing a determination to thwart the employees in the exercise of their rights under
the Act.
Because of the respondent's unlawful conduct and its underlying purpose, the
undersigned is of the opinion that the unfair labor practices heretofore found
are persuasively related to the other unfair labor practices proscribed by the Act
and that danger of their commission in the future is to be anticipated from
respondent's conduct in the past. Unless the order is coextensive with the threat,
the preventive purpose of the Act will be thwarted. In order, therefore, to make
more effective the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, and thus minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, the undersigned
will recommend that respondent cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, A. F.
of L., Local 214, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. 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.
3. By discriminating in regard to the hire and tenure of employment of Floyd
Gower, Ruth Arlington, Homer Pressley Shelton, Joe White, and W. Z. Willis,
the respondent has engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8 (1) and (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 or the
terms and conditions of employment of William H. Whitfield, Frank H. French,
or Carl Red.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
Fairmont Creamery Company, of Lawton, Oklahoma, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
work, and since he had experience on other jobs with the respondent, which as has been
found, followed the practice of giving preference to senior employees in allocating available
work, the undersigned is convinced, and finds that, absent discrimination against him,
Gower would have been retained in the respondent's employ even after the hatchery was
closed.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in Amalgamated Meat Cutters and Butcher
Workmen of North America, A. F. of L, Local 214, or any other labor organiza-
tion 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
or tenure of employment or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, and coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Amalgamated Meat Cutters and Butcher Workmen of
North America, A F. of L., Local 214, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer Floyd Gower, Ruth Arlington, Homer Pressley Shelton, Joe White,
and W. Z. Willis, immediate and full reinstatement to their former or substan-
tially equivalent positions 64 without prejudice to their seniority or other rights
and privileges ;
(b) Make whole Floyd Cower, Ruth Arlington, Homer Pressley Shelton, Joe
White and W. Z Willis, for any loss they may have suffered by reason of re-
spondent's discrimination against them in the manner set forth in the section
above, entitled "The remedy" ;
(c) Post immediately at its plant at Lawton, Oklahoma, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director of the Sixteenth Region, shall, after being duly
signed by respondent's representative, be. posted by respondent immediately
upon receipt 'thereof and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, in its plant and including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by respondent to insure that said notices are not altered, defaced, or covered by
any other material ;
(d) Notify the Regional Director for the Sixteenth Region (Fort Worth,
Texas), in writing, within ten (10) days from the date of the receipt of this
Intermediate Report what steps respondent has taken to comply herewith.
It is recommended that the allegations of the complaint and amended com-
plaint as to William H. Whitfield, Frank H. French, and Carl Red, be dismissed.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, respondent notifies said Re-
gional Director in writing that it has complied with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring respondent
to take the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203 38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an
original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof ; and any party or coun-
sel for the Board may, within the same period, file an original and four copies of
a brief in support of the Intermediate Report. Immediately upon the filing of
54 See footnote 51, supra.
FAIRMONT CREAMERY COMPANY 1415
such statement of exceptions and/or briefs, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.65.
As further provided in said Section 203 39, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring the
case to the Board.
ISADORE GREENBERG,
Trial Examiner.
Dated September 26, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Ekaminer of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL, Local 214, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Floyd Gower
Ruth Arlington
Homer Pressley Shelton
Joe White
W. Z. Willis
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
FAIRMONT CREAMERY COMPANY,
Employer.
Dated----------------------------- By -----------------------------------
(Representative) (Title)
NOTE -Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the-Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.