Armour and Co.

National Labor Relations Board - Board Decisions

Jul 27, 1940

25 N.L.R.B. 989 (N.L.R.B. 1940)

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