Armour and Co.

National Labor Relations Board - Board Decisions

Jun 10, 1941

32 N.L.R.B. 536 (N.L.R.B. 1941)

In the Matter of ARMOUR AND COMPANY dnd LOCAL UNION No.' 15,
UNITED PACKINGHOUSE WORKERS OF AMERICA, PACKINGHOUSE WORK-
ERS ORGANIZING COMMITTEE, AFFILIATED WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. 0=1741.Decided June 10, 1911
Jurisdiction : meat packing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: warning and threatening individual em-
ployees because of their union activities.
Discrimination: discharge of three employees, charges of, dismissed ; refusal
to reinstate an'employee after a non-discriminatory lay-off held discriminatory-
alleged physical disability and filing of questionable accident claim as justifica-
tion for,, without merit.
Remedial Orders : reinstatement and back pay awarded.
Mr. Paul Nac/itman , for the Board.
Mr. TPalter C. Kirk, of Chicago , Ill., for the respondent.
Mr. John J. Brownlee, of Chicago, Ill., for the Union.
Mr. Raymond J. -Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges- duly filed by Local Union
No. 15, United Packinghouse Workers of America, Packinghouse
Workers Organizing Committee, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the
Seventeenth Region (Kansas City, Missouri), issued its complaint
dated June 4, 1940, against Armour and Company, Kansas City,
Kansas, 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) (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondent and the Union. On
32 N. L. R. B, No. 104.
536
ARMOUR & COMPANY 537
June 19, 1940, the Board issued an amended complaint. ^ Copies of
the amended complaint, accompanied by notice of hearing, were duly
served upon all parties.
With respect to the unfair labor practices, ,the amended. complaint
alleged in substance: (1) that the respondent terminated the employ-
ment of Matt Lambie on or about January 13,1939, of Albert C., Hazel
and Ward Campbell on or about January 24, 1939, and, of .George,F.
O'Blak on or about April 19, 1939, because of their membership; in
and activities on behalf of the Union, and at.all times since has re.
fused to reinstate them; (2) that the respondent, through its 'officers,
agents and employees, has since on or about January 1, 1938, uttered
coercive, intimidative and threatening statements regarding the Union,
and sought to, bait, ensnare, and entrap members. of the Union into
conduct violative of company rules;, and,, (3), that by, the foregoing
and other acts and conduct, the respondent interfered with, restrained,
and coerced its employees in the• exercise of the rights, guaranteed; in
Section.7 of the Act. ;
On June 14, 1940, the respondent filed its, answer to the--comp] aint,
and on June 24, 1940, its answer to the amended, complaint, in, which,
in substance, it admitted some of the jurisdictional facts alleged in,the
complaint, but denied that it had engaged in„or, was engaging in the
alleged unfair labor practices. • _ , ,
Pursuant to notice, a hearing was held at Kansas City, Missouri,
from August 8 to 15„ 1940, inclusive, before Mortimer Riemer, ,the
Trial Examiner duly, designated by the Acting Chief Trial Exam-
iner. The Board and the respondent were represented by counsel,; the
Union by its representative, and all parties participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded, all
parties.
At the outset of the hearing, the respondent moved .for, a more
specific statement with respect to paragraphs 6 (a) and (b) and 7 of
the amended complaint." This motion was denied without prejudice
' On June 13, 1940, the respondent had filed a similar motion with the Regional Director
addressed to the same paragraphs of the original complaint This motion was not acted
upon The Board alleged in paragraph 6 (a) and (b), in both the complaint and the
amended complaint, that the respondent "uttered coercive, intimidative,, and'threatening
statements regarding the Union" and "sought to bait,, ensnare,, and entrap, members of
the Union into conduct violative of company rules" ; and in paragraph 7 that "By all the
acts described in paragraphs Four. (4) and Six (6), above, and, by other acts and conduct,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of said Act." The respondent sought in its motion to have the
amended complaint "set out in haec verba the coercive, intimidate and threatening
statements regarding the Union" ; "set out in detail the manner in which the, Respondent
has sought to bait, ensnare and entrap members of the Union into conduct violative of
company rules" ; and "set out in detail the 'other acts ' and' conduct ' of the Respondent'
which constituted unfair labor practices. , ,, • - • ,
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to an application at the conclusion of the Board's case for a reasonable
adjournment if necessary to enable the respondent to prepare its de-
fense and meet all issues . No such application was made. At the
completion of the Board 's case, the respondent moved to dismiss the
allegations of the amended complaint that it had discriminatorily
discharged certain employees and that it had sought to bait, ensnare,
and entrap members of the Union into conduct violative of company
rules. This motion was denied . On the last day of the hearing,
Board's counsel offered in evidence the testimony of Doctors L. G.
Allen, Fred E. Angle, and C. C. Nesselrode, contained in the trans-
cript of a hearing in the matter of Matt Lambie v. Armour & Com-
pany, held before a Commission of Workmen 's Compensation for the
State of Kansas on October 31 , 1938. The Trial Examiner reserved
ruling on the motion which he later granted in his Intermediate Report.
The ruling is hereby reversed . The Trial Examiner also reserved
ruling on a motion by the respondent to dismiss the complaint, which
he granted in part in his Intermediate Report. At the conclusion of
the hearing , counsel for the Board moved to amend the amended com-
plaint to conform to the _ proof with respect ' to names and dates. The
motion was granted by the Trial Examiner . During the course of
the hearing , the Trial Examiner iuled upon other motions and upon
objections to the admission of evidence . The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed . Except as noted above , the rulings are hereby
affirmed. After the close of the hearing , the respondent presented oral
argument and filed a brief with the Trial Examiner.
The Trial Examiner thereafter filed his Intermediate Report, dated,
November 23, 1940 , copies of which were duly served' upon the parties,
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the Act. He accordingly recommended that the
respondent cease and desist from engaging in the unfair labor prac-
tices and that it reinstate with back pay Matt Lambie and George
O'Blak. He further found that the respondent had not sought to
bait , ensnare, and entrap members of the Union into conduct violative
of company -rules, and that it had not discriminated with regard to
the hire and tenure of employment of Albert C. Hazel and Ward
Campbell . He accordingly recommended that the complaint be dis-
missed in so far as it alleged that the respondent had committed un-
fair labor practices with respect to the foregoing . Thereafter the
respondent and the Union filed exceptions to the Intermediate Report,
and the respondent a brief in support of its exceptions . - The Board
has considered the brief and the exceptions to the Intermediate Report
ARMOUR & ;COMPANY 539
and, in so far as the exceptions are inconsistent 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
Armour and Company, an Illinois corporation, directly and
through subsidiaries operates 30 meat packing plants in 23 States;
approximately 300 branch houses located in nearly every State of the
Union; a number of establishments engaged in the preparation and
sale of products closely allied to the meat-packing business, such as
fertilizer, soap, and leather; several creameries; and a number of es-
tablishments where poultry is slaughtered and dressed and eggs are
purchased, packed, and sold.
The instant proceeding is concerned only with the respondent's
plant at Kansas City, Kansas, one of the 30 operated by the com-
pany, where it is now and has been continuously engaged in the
slaughtering, processing, and packing of livestock products. The total
production of products of livestock slaughtered .at Kansas City for.
the year October 30, 1938, to October 28, 1939, was approximately
333,056,000 pounds, having a total value of $42,126,970. Substantially
all the animals slaughtered in the Kansas City plant are purchased
in the Kansas City Stock Yards. During the calendar year 1939, a
substantial percentage of the livestock so purchased originated in
States of the United States other than the State of Kansas. More
than 75 per cent of the products at the Kansas City plant are shipped
from the plant to points outside the State of Kansas. A considerable
portion of the output of said plant is shipped to wholesale branch
distributing houses of the respondent in the several States of the
United States.
II. THE ORGANIZATION INVOLVED
Local Union No. 15, United Packinghouse Workers of America,
Packinghouse Workers Organizing Committee, affiliated- with the
Congress of Industrial Organizations, is, a labor organization ad-
mitting to membership employees of,the respondent.
III. THE UNFAIR LABOR PRACTICES -
A. Interference, -restraint, and coercion-
The Union commenced its organizing activities at the respondent's
Kansas City plant in March 1937. At a consent election held on
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August,8, 1937, among the respondent's employees , the Union received
a' majority of votes cast. Thereafter the respondent met weekly with
the Union as the exclusive bargaining " agent. Committee members
were paid for the time spent in these conferences.2
George O'Blak, an employee of'the respondent, joined the Union
in June 1937. Shortly thereafter he was elected steward of the
respondent's auto repair shop and sergeant-at-arms of the union local.
Before O'Blak joined the Union, he asked William F. Bradbury, the
foreman of the auto repair shop, for his opinion concerning member-
ship therein. O'Blak testified that Bradbury replied : "Well, George,
you old man. If you know what's good for you, you better stick with
the,company." Although'Bradbury was called as a witness to testify,
he was. not asked nor did he deny, giving this advice to O'Blak. We
find, as did,the Trial Examiner, that Bradbury did in fact warn
O'Blak not to join the Union.
,O'Blak testified that sometime in the fall of 1937 A. E. Gregg,
the respondent's employment manager, expressed dissatisfaction over
O'Blak's membership in the Union. This Gregg denied. The Trial
Examiner observed that O'Blak was a talkative and excitable witness,
that he was apparently foreign-born and found it difficult to express
himself in English, and that his choice of language was not always
apt or easy to follow. From all the testimony, however,' we find, as
did the Trial Examiner, that on this occasion Gregg did indicate
his disappointment over O'Blak's membership in the Union.
In June_ 1938; O'Blak was confined to his home convalescing from
the.effects of it hernia operation.', He was visited there by Dr. L. M.
Johnson, the respondent's plant physician. O'Blak testified that Dr.
Johnson warned him to look- for another job because McElroy, the
plant superintendent, August L. Cockrum, the master mechanic, and
Gregg- were "awful hot" for' the reason that O'Blak had joined the
Union. Dr. Johnson was not called as a witness by the respondent.
Neither McElroy, Gregg, nor -Cockrum, all of whom testified for the
respondent, denied expressing any such opinion or attitude concerning
O'Blak 'to Dr. Johnson. Under all the' circumstances, we find, as did
th4 Trial Examiner, that these three officials expressed to Dr. Johnson
their disapproval of O'Blak's membership in the Union, and that Dr.
Johnson conveyed their disapproval to O'Blak. '
Upon returning to work in June 1938, after his operation, O'Blak
was given a job as'a truck washer. Prior to his operation, O'Blak
had been working as-a greaser ,and oiler in, the garage at a wage of
60 cents an hour. He received the same wage as a truck washer. -
2 .The Union's bargaining, committee consisted,of 9 members It was also known as the
grievance committee. '
ARMOUR & COMPANY 541
However, he complained to Bradbury of the fact- that, he had, been
transferred from the job of greaser and oiler to that of truck washer.
Bradbury told him to see,Cockrum. . Cockrum told O'Blak nothing
could be done about this, that the transfer was necessary to, reduce
expense. O'Blak reported his conversation with Cockrum,,to Brad-
bury, who, according to O'Blak's uncontradicted testimony replied,
"Nov, you see what C. I. O.'s do." We find, as did the Trial Examiner,
that Bradbury made, the statement substantially as testified .to by
O'Blak. We find, however, as contended by the respondent, in. its
brief, and contrary to the finding of the Trial Examiner, that O'Blak
was not transferred because of his membership in,the Union. ., „
There is further evidence about the respondent's attitude .toward
active union members. Matt Lambie, an employee ,of the, respondent.
also joined the. Union in June 1937. , He became chief steward of the
mechanical division, recording secretary of the local,; and served as
a member of the plant ,wide grievance committee. As a member of
this committee, he helped to negotiate and settle grievances, of union
members with the respondent.
On or about February 11, 1938, Lambie, as a•member,of the Union's
grievance committee, presented to Gregg the grievance„ of Albert
Gibson, a laid-off employee. 'Lambie testified that Gregg 'fol'd him4he
was "damn tired" of Lambie's activity as a member of the grievance
committee. Gregg warned Lambie that if he continued this activity
he would lose his job. This conversation took place during the noon
recess. Gibson corroborated Lambie's testimony.- Gregg -testified
that he could not recall. the incident and denied holding any such
conversation. The Trial Examiner` credited the testimony of Lambie
and Gibson in connection with this incident. Lambie further testis
fled that in March 1938 he went to Gregg's office to elicit information
about a grievance, and was again told by Gregg that he would he
discharged if he continued to take up union matters on company time.
Lambie replied that an oral agreement or'understanding between the
respondent and the Union gave him the right, as a member of the
Union's grievance committee, to do so. Gregg admitted that on this
occasion he had told Lambie that continued violation of his warnings
would get him "into trouble." We find, as did the Trial Examiner,
that on both occasions Gregg did, in fact, warn Lambie that he would
lose his job if he continued his grievance activities.
Orville Ussery, the Union's field representative, testified that as a
result of negotiations between the. Union and the respondent, an
agreement was reached covering the respondent's policy with respect
to seniority and the settlement of grievances, the 'provisions 'of which
allegedly were set forth in a proposed contract submitted to the' re-
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponden t by the `Union.' Ussery stated that the policy covering griev-
ances and seniority was in effect from October 1937 to January 1940.
The Trial Examiner found that Lambie was acting pursuant'to the
foregoing agreement in conferring with Gregg during working hours,
and consequently that Gregg's statements to Lambie were intended as
a warning to Lambie to desist from legitimate union activity. The
respondent contends in its brief that although under the recognized
grievance procedure Lambie was permitted to attend regularly sched-
uled meetings with representatives of the company during working
hours without loss of pay, he was not privileged otherwise to spend
his working time in grievance activity. While it is not clear that
the grievance procedure agreed upon by the respondent and the Union
was as broad as indicated by the provisions contained in the proposed
contract, the respondent by indicating its approval of such provisions
at the time they were discussed recognized the common practice of
committee members to engage in grievance activity necessarily arising
at other than the regular times fixed for grievance committee meetings.
Moreover, with respect to the first of the two incidents related above,
Lambie was warned by Gregg concerning such grievance activity
despite the fact that on that occasion it occurred outside working
hours. We find, as did the Trial Examiner, that Gregg's warnings to
Lambie were intended to discourage him from engaging in legitimate
activity incident to his membership on the grievance committee.
On or about April 1, 1938, while Lambie was engaged on his rounds
as an elevator inspector, two employees, Ray Powell and James Col-
ston, approached one of the elevators with a load of beef. While
Colston rang for the elevator, Powell asked Lambie if the elevator
was in safe condition.` William B. McElroy, the plant superintend-
ent, came up the stairs from the floor below, and saw Lambie and
Powell conversing. Lambie testified that McElroy walked over to
him and struck him in the face, and said that Lambie was going. to
get into trouble "for ganging up and talking unionism." Lambie
BA copy of the-proposed contract was introduced in evidence . it appears that although
the section pertaining to grievances met with its approval, the respondent refused to sign
because of a disagreement as to certain other provisions contained therein. The section
pertaining to grievances reads as follows :
Section 3 . The Grievance Committee shall consist of not less than five ( 5) and not
more than nine (9). Such employees designated by the Union who will be compensated
for such time by the Company while meeting with the management in handling grievances.
(a) To attend meetings pertaining to discharges or other matters which cannot
reasonably be delayed until regular meetings.
(b) To attend regular scheduled meetings of Committee
(c) The Company recognizes the right of any one of the Grievance Committee to
be privileged to advise any employee as to his rights under this agreement , or any, other
advice pertaining to any grievance which may arise.
4 Powell testified that about 2 weeks prior thereto , he had been injured while riding
in the elevator. He testified also that the conduct of the elevator operator had been the
source of a complaint by the Union.
ARMOUR & COMPANY 543
denied that he was discussing union affairs and told'McElroy that lie
and Powell were talking about the elevator. Except for one previous
occasion when there had been a sit-down 'strike in the sheep-kill
department, this was the only time, according to Lambie, that McElroy
had ever reprimanded him. L- ambie's testimony concerning this in-
cident was corroborated by Powell and to some extent by Colston.
McElroy denied that he struck Lambie, and testified as follows :
I remember running across them when I was out in the plant
both standing together, and I made a remark to them, "Now, you
boys must cut this out. It isn't right." I knew they were talking
unionism. There was no guess work on my part, because both
of them were boiling over with it, and when I said that, they both
went on their way.
McElroy did not testify that he heard what Powell and Lambie were
saying or how he knew that they were "talking unionism." The Trial
Examiner found that McElroy's denial and his version of this in-
cident were unconvincing, and that in this respect Lambie was worthy
of belief. In view of the credible support which Lambie's testimony
receives in the testimony of Powell and Colston, we find, as did the
Trial Examiner, that on this occasion McElroy did strike Lambie.
Ward Campbell, an employee of the respondent, also joined the
Union in June 1937. In November 1938, he became a co-steward in the
margarine department. Sometime in the summer of 1937, after Camp-
bell had joined the Union, Leon J. Miller, foreman of the margarine
department, told him that if it were not for his union membership,
he, Miller, could secure advancement for him. Campbell testified that
in November 1938, Frank I. Clark, assistant plant superintendent, told
him, "We had hopes of making something out of you, but now that
you joined the Union there is nothing that we can do for you." This
testimony was not denied or contradicted by either Clark or Miller
and stands unrefuted in the record. The Trial Examiner found Camp-
bell to be a steady individual with a careful regard for the truth and
credited his testimony concerning the foregoing conversations. We
find that Clark and Miller made the statements attributed to them
by Campbell.
Albert C. Hazel, an employee of the respondent, likewise joined the
Union in June 1937. In December of that year he was elected steward
of the margarine department, and on January 20, 1939, was elected
financial secretary of the union local. As steward for the margarine
department, it was his responsibility to attempt to settle grievances
with Miller, his foreman. He also sought to obtain members for the
Union. Hazel was told in October 1938, by Miller that he could not
expect any future advancement with the respondent because of. his
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership; and, activities. Although Miller testified to and
denied other testimony of Hazel's, he was,not asked to nor did he deny
this. We have found, above that Miller made a similar statement to
Campbell., , We credit, as did the Trial Examiner, Hazel's, uncon,
tradicted testimony and find that on this occasion Miller, in, substance,
made the statements attributed to, him by Hazel. In ,December,1938,
Hazel was warned by Clark that his union activities made ,his con-
tinued employment precarious. He testified that Clark said, ,'If you
will 'quit your union activities, ,I will make a foreman out of you."
Hazel replied that he would take his chances with.the Union,' to which
he quoted Clark as 'saying,, "Well by God, unions, come Enid go and
you.will go, too." Clark admitted talking to Hazel in December 1938,
but denied making the statements attributed to him by Hazel. The
Trial Examiner found Hazel to be a credible witness and attached no
credence to Clark's denial.' In'view of Clark's similar 'remarks'to
Campbell, w'e find'that Clark made"tlie statements substantially, as
testified to by Hazel.
We find that by warning O'Blak not to join the Union, by expressing
dissatisfaction over' his membership therein; by 'warning Lambie to
'discontinue legitimate union activity ' as a member' of the grievance
committee, by McElroy's conduct in striking Lambie, by informing
Hazel and Campbell that they; could expect no future advancement
because of their membership and activity in! the 'Union, and by offering
a promotion to Hazel if he" would relinquish his union activities, as
described above, the respondent has interfered with, restrained; and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
Hazel also 'testified that in November or December 1938, a• co-worker,
Raymond Anderson, told him that Miller would ' no longer cash 'his
pay checks because Miller was "hot at" Anderson 'for joinin'g 'the
Union. 'Miller admitted' that he' used to cash checks' for Anderson- as
well as other workers, make' their Christmas Fund payments, and're-
turn'the balance. Miller discontinued this practice sometime,prior'to
Christmas 1938,'because he did not want'the responsibility for cashing
the checks, making the payments, and returning the remaining monies.
He denied that he discontinued cashing Anderson's checks' for any
other"reason. ' Anderson'did not testify. '*e find, in'accordance with
the conclusions of the Trial Examiner, that Miller did not' discontinue
cashing Anderson's 'pay checks because Anderson-joined the Union.,'. ''
'•' It was Hazel's further testimony that in November 1938, Miller said
to him that some workers had told him that Hazel had'questioned'them
about their obtaining "special privileges" from' Miller: ' Hazel; stated
that Miller then told him that if he wanted any "special privileges" or
to borrow some money, Miller would see that it: was 'done. ' Hazel's
ARMOUR & COMPANY 545
testimony in this respect was not clear or convincing. Miller admitted
having a conversation with Hazel concerning two girls whose work
usually ended early, and who were therefore granted the privilege
of washing up a few minutes before the whistle blew, whereas the
men on "gang work" had to remain on duty until 4: 30. According to
Miller, it was this practice that Hazel protested. Miller's testimony
in explanation of the so-called privileges is accepted as the truth, and
we accordingly find, as did the Trial Examiner, that in this respect
no act of discrimination was intended or committed by Miller.
It was also alleged in the amended complaint that the respondent
"sought to bait, ensnare, and entrap members of the Union into con-
duct violative of company rules." This the answer denied. Frank
Graham, a plant watchman' testified that during the summer of 1939,
Louis J. Kelley, foreman of the sausage department, or one of his
subordinates, would push a truck loaded with edible meat products
into an aisle through which employees were constantly passing. The
truck thus loaded stood all day long for a period of about 6 weeks
while Graham and other watchmen kept it under their surveillance.
Graham's testimony was that he had been instructed by John B.
Lofflin, chief of the respondent's police force, to apprehend any
union man caught taking "a piece of ham or a piece of meat that was
eatable." He testified that there had been reports of stealing in the
plant and that one of his jobs as a watchman was to prevent this.
Ray Powell testified that he observed the truck described by Gra-
ham; that he saw Kelley push one of the trucks and "put the best of
stuff on it"; and that the truck remained at one place all day long
for a period of 6 or 7 weeks. Powell admitted that the operations of
the respondent in this department necessitated loaded trucks being on
the floor all day, but asserted it was unusual for one to remain as long
as the truck in question. Kelley denied that any company official
had ever instructed him to load a truck with meat as a bait to catch
employees. Kelley gave a detailed description of the operations of
his department. According to Kelley, in the process of preparing the
products, trucks loaded with meat are moved constantly, in and out of
the sausage-packing room. At times it is necessary, due to lack of
space, to allow loaded trucks to remain in the space outside the
sausage room. It was customary and usual to station a watchman to
observe the loaded trucks to prevent theft. Charles J. Wacker, the
general superintendent who succeeded McElroy, Paul A. Dett, the
general manager, McElroy, and Gregg denied that they had ever
issued instructions to put out bait and traps to catch union members.
B Graham was discharged on August 3, 1939 , for conduct "unbecoming an officer of
:armour & Co. ; also for fighting on the premises." He was reemployed on January 13,
1940, in another capacity.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They likewise denied any knowledge that such instructions had ever
been given. Lofin denied instructing Kelley to load a truck with
edibles to bait union members. He also testified about the company
practice of keeping loaded trucks in and around the sausage depart-
ment, and that a watchman was regularly stationed there to observe
the trucks. According to Lofflin, Kelley had complained of thefts
and requested Lofflin's aid. He admitted that Graham, among others,
had been assigned to this task, and-that he may have remained on this
particular assignment from 2 to 3 weeks. The Trial Examiner found
that Graham was not so convincing a witness as Kelley, and credited
the latter's testimony. Moreover, Kelley's narration concerning the
respondent's practices in this regard is the more reasonable one.
Upon all the testimony pertaining to this matter, we find, as did the
Trial Examiner, that the respondent did not seek to "bait, ensnare,
and entrap members of the Union into conduct violative of company
rules." We shall accordingly dismiss this allegation of the complaint.
B. The discharges
Matt Lambie was first employed by the respondent in 1922. There-
after he worked at various times for the respondent. His last continu-
ous employment began in December 1935. Lambie joined the Union in
June 1937. He was an outstanding member and active in its affairs.
He was chief steward of the mechanical division, recording secretary of
the Union, and served as a, member of its plant-wide grievance commit-
tee. As a member of this committee, he helped to negotiate and settle
grievances of union members with the respondent's supervisory offi-
cials. As we have seen in Section III A above, officials of the re-
spondent had expressed to Lambie their dislike of his union activities.
On April 6, 1938, a few days after he had been struck by McElroy,
Lambie was laid off. He claimed that his lay-off was in violation
of established seniority rules, and filed a grievance. His contention
was sustained, and the respondent agreed on April 8, 1938, to restore
him to work with seniority preference in the machine shop, where he
had been hired in December 1935. When Lambie reported for work
on April 9, 1938, he was asked by Gregg whether he had ever had a
physical examination. Lambie replied that he had. Gregg told him
he would have to submit to a strict physical examination by Dr.
Johnson. It appears from the evidence that" this examination as in
conformity with the respondent's 'policy, adopted in 1936, of giving
new employees or employees returning to work after a lay-off 'a com-
plete physical examination. After Dr. Johnson's examination,
Lambie was pronounced fit to -go to work, which he did. Lambie
did not return to work as an assistant elevator inspector, the job he
held prior to his lay-off on April 6, but was given a job overhauling
ARMOUR & COMPANY 547
blood driers in the tank house. This was a much less desirable job.
He was paid 69 cents an hour, however, the same wage he had re-
ceived as an elevator inspector. He remained on this job from April
9, 1938, to April 23, 1938, when he was again laid off. Lambie filed
another grievance. The respondent's answer was that Lambie had
been laid off in accordance with departmental seniority. Thereafter
Lambie returned to the plant daily seeking work. Oil May 24, 1938,
he was given a job in the sheep-kill department, where he was paid
only 60 cents an hour.
Lambie testified that on the afternoon of June 14, 1938, as he was
pulling a rack of sheep to the elevator, his foot slipped, throwing
him to the floor. Lambie went to see -Dr. Johnson, who strapped
his back and gave him a note for his foreman to the effect that
Lambie would be unable to work for some time. Lambie presented
this note to his foreman.° A few minutes later the foreman told
Lambie that he was laid off. The foreman is not identified and was
not called as a witness. Gregg testified that there were 12 to 15 men
laid off in that department because the speed-"of the kill was reduced."
According to Gregg, Lambie had no seniority in the sheep-kill
department.
On June 15, Gregg investigated Lambie's claim that he had sustained
an injury. As a result thereof, Lambie was subjected to another
physical examination on or about July 19, 1938, by Dr. C. C. Nesselrode,
a company physician. Nesselrode sent Lambie on the same day to Dr.
L. G. Allen "for some X-rays." Neither Doctors Nesselrode nor Allen
testified at the hearing. Dr. Allen's report of his findings concerning
the X-rays was introduced in evidence. Therein Dr. Allen reported
that the X-ray examination of Lambie's chest disclosed "at least pre-
sumptive evidence" of tuberculosis. With reference to the accident
Lambie alleged he-sustained on June 14, 1938, Dr. Allen's report found
no evidence of physical injury.
According to Lambie's undisputed testimony, Dr. Nesselrode in-
formed him for the first time in the latter part of August 1938 that he
had tuberculosis. It was his testimony that Nesselrode prescribed a
diet and ordered him to stay away from work for 6 months. Lambie
asked Nesselrode for a written copy of his diagnosis, which was there-
after given to him by Gregg. In his diagnosis Dr. Nesselrode expressed
the judgment that Dr. Allen's report, previously mentioned, was cor-
rect. On the basis of the reports of Doctors- Allen and Nesselrode,
the respondent had ascertained at the end of_ August 1938 that there
was no medical evidence of an injury to Lambie's back; that X-rays
disclosed an earlier tubercular condition but with only "a very slight"
present activity; an absence of tubercle bacilli; and that the pulmonary
Dr. Johnson 's note was not produced at the heaung.
448092-42-vol 32--30
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings such as they were bore no relationship to the alleged-accident
of June 14, 1938.
On August 25, 1938, Lambie executed an employee's claim for work-
men's compensation against-the respondent wherein he alleged that he
had sustained an accident on June 14, 1938, "Injuring spine and liga-
ments and tendons connected therewith, causing lessening power of
resistance, causing or aggravating tuberculosis." Lambie's claim for
compensation came on for hearing before a Commissioner of Work-
men's Compensation for the State of Kansas on October 31, 1938, at
which time it was denied. Thus the respondent was successful, in its
contention. that Lambie did not sustain a compensable injury which
aggravated or caused the tubercular condition disclosed by the prior
examinations of Doctors Allen and Nesselrode. Lambie, however,,took
tin appeal from this decision to the District Court. , On January..10;
1939, while the appeal was still pending, the matter was settled ,by pay,
ment by the respondent to Lambie of the sum of $350. • , , .
On either January 11 or 12, 1939, the end of the 6-month rest period
previously prescribed by Dr. Nesselrode, Lambie returned to the plant
to report for work. He saw Gregg at the employment office..' Gregg
told Lambie he had no work for him. Lambie said that he would see
"the Union about that." He testified that Gregg replied, "Well, maybe
that's the reason why you haven't got a job any more." When Lambie
asserted that he -would consult the Regional Office of the -Board, he
quoted Gregg as replying : "Well, I don't care whether you go to the
Labor Board or not." Lambie testified that neither at this time nor at
any subsequent time during discussions' with the respondent concerning
his reinstatement did, anyone charge him with having made a; false
accident claim. Gregg denied Lambie's version of the conversation,
but admitted that he saw him on either January 11 or 12,1939.. -, Gregg
testified that Lambie stated that he was ready to go to work, but he
told him that'he would not be reinstated because : "He, [Lambie] filed
a claim for a questionable accident against us; abd also, he,was claim-
ing disability and that we had no place for him." 7 Upon all the evi-
dence; we find, as did the Trial -Examiner, that Gregg made the
statements substantially as above attributed to him by Lambie. -t
Subsequent to July 12, 1939,'the Union's grievance* committee, dis-
cussed with the respondent the question of Lalnbie's reinstatement.
The respondent told the Union that Lambie Was refused reinstatement
because he had filed a questionable accident claim, because he had tuber;
culosis; and because he was "totally disabled" and unable to 'perform his
duties. The Union demanded that Lambie be subjected to another
physcial examination by one of the respondent's physicians: -When
T Lambie's action at law wherein he alleged total dhsabilily was not ftled'until May 20.
1939
ARMOUR. & COMPANY 549
this had been done, however, the Union was told by McElroy that re=
gardless of the doctor's report, the respondent; would not consider
taking Lambie back.. - ' r „ , ,
Upon all the evidence, we conclude, as did the Trial Examiner, that
the ,respondent avoided telling Lambie the true reason for refusing to
reinstate him -on January 11 or 12, 1939. That the respondent did not
deal in good faith with Lambie is evident from its subsequent assertion
that Lambie's "total disability" was responsible for his not,being rein-
stated, although the reports of Doctors Allen and Nesselrode, upon
which the respondent- alleges to have placed reliance in refusing rein-
statement to Lambie, indicate no such disability. Furthermore, the
respondent, refused to consider the report of a subsequent physical
examination of Lambie by one of its own physicians. This lack of
good faith casts doubt upon the respondent's asserted reasons for re-
fusing to, reemploy Lambie, and in view of Lambie's persistent union
activity and the expressed hostility of the respondent's officials thereto,
we, find, as did the Trial Examiner, that the respondent discrimina-
torily, refused, to reinstate Lambie because of his membership in, and
activities on behalf of the Union.
We find that Matt Lambie was refused reinstatement on or, about
January 12,19,39, because of his membership and activitiy in the Union,
and that,by refusing to reinstate him the respondent has discriminated
in regard to the hire and tenure of his employment, thereby discour-
aging membership in a labor organization and interfering with, coerc-
ing, and restraining its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
;Albert C. Hazel and Ward Campbell were both discharged for their
joint participation in an event which occurred on January 24, 1939.
Hazel had been employed by the respondent as a butter shoveler in
the margarine department since October 6, 1936. Prior thereto he had
1ield, part-time employment with the respondent., Campbell also had
worked, for the respondent in the margarine department since October
6, 1936, • Both 'Hazel, and Campbell joined the Union in June 1937.
They were costewards in the margarine department. Their activity on
behalf of the Union has been discussed in Section III A above.
Sometime prior to January 24, 1939,$ Hazel ejected Ora Ernest
Walton, an electrician, from the margarine department. Walton
testified that upon reporting to the margarine department to perform
some work,, he was stopped by Hazel, who told him that he could
not work'there because he did not belong to the Union. Hazel denied
that he had thrown Walton out of the margarine department because
..e'Hazel fixed 'the, time of this incident as October 1938 ; Walton fixed it' as lJanuary
1939 ; Aikins fixed it sometime prior to January 24, 1939; and , McElroy fixed it as occurring
7 or 8 weeks prior to January 24, 1939.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walton did not. belong to the Union, but stated that he told the
electrician to leave the department for the reason that Walton had
no work to perform therein. Although according to the Trial Exam-
iner, Walton proved to be a rather testy and petulant witness, his
testimony was corroborated by that of Glenn A. Aikins, assistant
foreman of the margarine department, McElroy, and Clark. Aikins
testified that he saw Hazel talking to Walton and that he observed
Hazel push Walton out of the margarine department. According to
McElroy's testimony, he told Hazel that he had no right to prevent
Walton from working in the department. McElroy testified that
Hazel's attitude was uncooperative and that he refused to listen to
him. 'Clark likewise testified that he had cautioned Hazel concern-
ing this matter. Hazel was not recalled to refute or explain the
testimony of Walton, Aikins, and McElroy concerning the above
incident. His explanation of the event is not a reasonable excuse
for his apparent refusal to permit Walton to complete his work.
It seems clear from all the testimony concerning this event that if
Hazel did not forcibly eject Walton, he at least interfered with the
operations of the department by preventing or making it difficult to
perform the duties that had called him there.
Clark testified without contradiction that on another occasion, the
time of which was not fixed, he went to the margarine department
and saw a group of employees gathered about Earl Hornback and
Hazel. He testified that Hazel told Hornback that the latter could
not work on that floor until he joined the Union. Clark cautioned
Hazel to attend to his duties and not to interfere with the operations
of the department or he would be discharged. His uncontradicted
testimony was that Hazel replied, "Well, if these fellows stay here
they are going to have to pay up their dues." We find, as did the
Trial Examiner, that on this occasion Hazel attempted to force
Hornback into joining the Union; that his activities in connection
therewith necessarily interfered with the operations of the margarine
department; and that the respondent was justified in cautioning and
warning Hazel against future conduct of this nature.
On January 24, 1939, occurred the incident which terminated in
the discharge of Hazel and Campbell. Hazel was at work when
Charles Burns, a tinsmith, and his helper, Ernest Sebel, came to 'the
margarine department to perform some necessary repairs. Immedi-
ately upon their appearance, Burns and Hazel became engaged in an
altercation concerning' the Union. Hazel sought to prevent Burns
from working in the department because he was a delinquent union
member and refused to pay his dues. Burns ridiculed the Union.
chided Hazel about the union buttons he wore on his cap, and used
profane language . Hazel complained- to Aikins, the assistant fore-
ARMOUR & COMPANY 551
man" and asked him to remove Burns from the department and to
replace,him with another worker who was a member of the Union.
This Aikins refused to do but stated that he would speak-to Miller.
Shortly thereafter Miller came into the department and Hazel asked
him to remove Burns because he was causing a disturbance. To this
Miller replied that he could not, but that he would call McElroy.
Thereupon Miller left the department. Burns in the meantime con-
tinued his annoyance of 'Hazel, whereupon Hazel started after Burns,
who retreated into the steam room-.9 Hazel testified that as he'entered
the steam room in pursuit of Burns, the latter shouted, "You keel)
away from-'me or I'll knock you cold," and moved to strike Hazel.
As he did so, Campbell, who was in the steam room , together with
Hazel, grabbed Burns and ejected him from the floor. Campbell
testified that 'he heard Burns say that he would knock Hazel "cold"
and that Burns attempted to strike Hazel .- He admitted assisting
Hazel in ejecting Burns from the floor. After Hazel and Campbell
had ejected Burns; they returned to their work. A few moments
later McElroy and Clark appeared on the scene. Hazel and Campbell
were asked to report to McElroy. Alter inquiring into the events
that had just occurred, McElroy instructed Miller to discharge the
two men. '
At the 'hearing HIazel' denied that he had said anything to Burns
about his union dues. He denied also that he told Burns that he
would not be permitted 'to work because he was a delinquent union
member. However, at a meeting held on January 25, attended by
the union grievance committee and the management representatives,
he admitted' that he and Burns had passed some comments 'about
union dues. He also stated at that meeting that Burns had made
the remark that he would not- pay his ' dues in the Union. This
confirms the fact that Hazel had discussed the question of Burns'
dues payments on January 24, despite his denial to the contrary at
the hearing.
Sebel, who'accompanied Burns, denied that Burns cursed Hazel or
the Union, that he, in fact, said anything about the Union, or that
he attempted to strike Hazel . Burns did not testify.1° Hornback,
called as a witness by the respondent, testified that he heard Hazel
i ell 'Burns and Sebel that they could not work in the margarine
department unless they belonged to the C. I. 0. He saw Hazel'ai d
Campbell go into the steam room and emerge thereafter with Burns.
Miller testified that as Burns was ejected, Hazel remarked, "Get the
'The steam room is an enclosed area located at the east end of the third - floor of the
margarine department
au It appears from the testimony that at the time of the hearing, Burns had not worked
for the respondent for over a year.
552 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
hell out of here and stay out of here," and slammed the door. At
this moment, Miller testified, he was standing behind Hazel . There-
upon Miller opened the door and said, "Hazel, we are still doing
business here, and this door is going to stay open." Since Miller's
testimony was not denied and is consistent with the events as they
occurred on that day, we credit, as did the Trial Examiner, Miller's
version of the incident.
Clark testified that Hazel insisted that non-union men could not
work in the margarine department. He testified that McElroy said,
"We are still running this department," to which Hazel responded :
"You think you are, but you are not. We are not going to work with
these damn scabs." This testimony was not refuted by Hazel or
Campbell. Clark gave the following reason for the discharge of the
two men : "For throwing these mechanics out of the butterene depart-
ment,; and then, they wouldn't go back to work. After they were
asked to go back to work, they stood and argued about it, and said
they would not go back to work until we took those tinners out of
there, and we were not going to take the tinners out." McElroy
testified that he felt justified in ordering the discharge of the two
men because he recalled Hazel's attitude at the time of the Walton
and Hornback incidents previously referred to. McElroy admitted
that throughout Campbell said nothing. He was discharged, how-
ever, according to McElroy, "because they were both together, and
they were both the boys that took the tinner [Burns] out of the
department."
At the meeting held on January 25 between the union grievance
committee and the respondent's representatives, the Union attempted
to ascertain why Hazel and Campbell were discharged. Dett, the
plant manager, stated that they were "discharged for insubordina-
tion and stopping of work." Both Hazel and Campbell were per-
mitted to tell their story, which was substantially as related above.
In addition, Campbell stated at the meeting that he heard Burns
"cuss him [Hazel] and cuss the Union and everybody that belonged
to the Union, the officers and all; said he wasn't going to pay his
dues any more." McElroy asserted that nothing that was laid
would cause him to change his position in discharging the two men
"for insubordination and interfering with the operations of the de-
partment." Dett supported McElroy and stated the Union had its
"recourse to the Labor Board" and the respondent would justify it'.
position before the Board. The respondent denied that the men
were discharged for union activities.
The testimony concerning the discharge of Hazel and Campbell
discloses many facts in conflict, but it seems reasonably clear that
(1) Burns entered the department on a legitimate errand, ( 2) Hazel
ARMOUR & COMPANY 553
argued with Burns over his non-payment of dues, ( 3) Burns indulged
in some union baiting, (4) Hazel asked Aikins and Miller to remove
Burns from the department and replace him with a member of the
Union, which they refused to do, and ( 5) Burns was forcibly - ejected
by Hazel and Campbell . Although it appears from the evidence that
the respondent knew of the union membership and activity of both
Hazel and Campbell, it had shown no disposition to discharge them
for that reason . On the other hand, it clearly appears that Hazel
and Campbell committed an act without any right or authority to do
so. Moreover , Hazel had been warned on two previous occasions
that he was exceeding his authority in attempting to prevent a non-
union man from working in the margarine department . Such acts
were in derogation of the respondent 's right to conduct and manage
its plant in its own way. Consequently , it must be inferred that
the discharge which immediately followed the ejection of Burns
was for that reason and not because of protected - union activities.
Upon all the evidence , we conclude, as did the Trial Examiner, that
Hazel and Campbell were discharged for ejecting Burns from the
margarine department.
We fund that the respondent has- not discriminated in regard to the
hire and tenure of employment of Albert Hazel and Ward Campbell,
thereby discouraging membership in a labor organization.
George O'Blak was, first employed by the respondent in February
1928 as a steamfitter 's helper. From June 1928 until his discharge
on April 19 , 1939, he was employed in the , respondent 's garage in
various capacities . At the time of his discharge he was working
as a truck washer. O'Blak joined the Union in June 1937 and shortly
thereafter became steward of the respondent's auto repair shop and
sergeant -at-arms of the Union.
On April 19 , 1939, O'Blak was washing trucks in the respondent's
garage. About 6 p. m . that day, John Parks, a truck driver, drove
his truck into the garage and remarked to O'Blak that there was
something wrong with the truck , that it was either low on gas or
that the carburetor needed adjustment . O'Blak testified that, after
Parks left he checked the carburetor and found nothing wrong, but
that upon examining the gasoline tank discovered that it was almost
empty; that he then siphoned 3 gallons of gasoline from the tank
of a tractor undergoing repairs and was just emerging from the repair
shop when he was stopped by Martin Davis, a watchman ; that Davis
shouted, "I gotcha. You tried to steal , gas" ; and that Davis drew
his revolver and shouted for Arthur Robinson , his cowatchman:
When Robinson appeared, Davis told him to guard O'Blak while he
went after W. R. Rhodus , the night superintendent . Davis returned
shortly with Rhodus who questioned -O'Blak ' as to what had• hap-
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pened. O'Blak told him that he was stopped by Davis as he was
about to put some gasoline in Parks' truck, and that he had done
nothing wrong. Rhodus told O'Blak to punch out his time card and
report in the morning to Wacker, the general superintendent. When
O'Blak returned to the plant the following morning, he repeated his
version of the incident to Wacker. Wacker summoned Davis who
confronted O'Blak and accused- him of stealing, gasoline. Wacker
thereupon discharged O'Blak.h1
To refute any imputation that on April 19 he was appropriating
gasoline to his own use, O'Blak testified that on his way to work that
morning he had stopped at a filling station near the plant, purchased
5 gallons of gasoline which filled his tank to overflowing, and then
drove to the plant where he parked his car on the second floor of
the garage for the remainder of the day. In support of his testimony,
David Schwartzman, the filling-station attendant, testified that on
the morning of April 19 he sold O'Blak 5 gallons of gasoline which
completely filled the tank. On April 28, 1939, Schwartzman also
executed a statement to the same effect at the request of the Union.
Schwartzman's testimony that he sold gasoline to O'Blak on April
19 loses considerable probative value, however, when viewed in the
light of his further testimony on cross-examination that he had kept
no record of the sale, that he remembered the date only because the
"union boys" calve to see him the day after O'Blak was discharged
which he testified was on "the 20th . . . if I recall the day," and
that when he executed the • statement for the Union 8• days later he
did not "believe that question was brought up, about what day I put
the gas in."
'Concerning the apprehending of O'Blak, Davis testified that on
April 19, pursuant to an investigation ordered by the respondent
in connection with the suspected theft of gasoline from trucks and
tractors in the garage, he and Robinson stationed themselves out-
side the garage at about 5: 30 p. in.; that about 6: 30 O'Blak, whose
work usually ended about 7 or 7: 30 p. in., was left alone in the garage;
that he could observe O'Blak through a hole in the garage door and
that when O'Blak went upstairs to the second floor he slipped inside
the garage and hid under a ramp; that a few minutes later O'Blak
drove his automobile down into the garage and parked it in a_ spot
west of the repair shop door; that O'Blak then went to the repair
"Wacker, who succeeded McElroy as general superintendent in February 1939 , testified
without contradiction that at a meeting with the union grievance committee in March
1939-he outlined the respondent 's employment policy so that there would be no misunder-
standing with respect to future discharges , specifically stating that an employee would
be immediately discharged for premediated stealing Wacker distinguished premeditating
stealing from cases where an employee might eat a small piece , of edible , meat , for which
lie stated the penalty at most would be suspension without pay followed by reinstatement
ARMOUR & COMPANY 555
shop and came back with a funnel and a five-gallon can containing
gasoline, which he started to pour into his automobile; and that
when he went up behind O'Blak and said, "What you doing, George?",
O'Blak replied that he "just meant to take a gallon," and that he
was "going, to put the rest of it in the truck." Davis denied that he
drew his gun on O'Blak. ' Robinson testified that when Davis called
him, into the garage the funnel was still in O'Blak's car, gasoline
was spilled on the tank, and the 5-gallon can was sitting on the floor;
that while Davis went to summon Rhodus, O'Blak told Robinson
that he was "only going to take a little bit" because he was "broke,"
and begged Robinson not to say anything about it; and that there-
after he stopped O'Blak when he attempted to take the gasoline can
towards the sewer. Rhodus testified that when he arrived at the
garage, the funnel was still in the car; that after he had ordered
O'Blak"to punch his time card he took the funnel and the gasoline
can to the office "so they could see it"; and that he then made a written
report of the incident.
The Trial Examiner raised a doubt as to the credibility of Davis
and Robinson because, of their testimony that they did not see Parks
drive, his truck into the garage despite the fact that they had the
garage under observation since 5: 30 p. m. Parks' testimony, how-
ever, is indefinite as to the time be entered the garage. He first
testified that he got the truck "around 5 o'clock" and used it "30 min-
utes; maybe- a little over" and, later testified that he took it to the
garage "in the neighborhood of 6 o'clock." The testimony of Davis
and Robinson as to the time they took their stations at the garage
likewise is only an approximation, and it appears entirely probable
that Parks drove his truck into the garage prior to their arrival, or
that they failed to notice him among the other drivers who normally
brought their trucks to the garage at about that' time. In any event,
we do not believe this apparent discrepancy in the testimony of Davis
and Robinson is sufficient to seriously affect their credibility.
The respondent introduced the following testimony in support
of its contention that there was reasonable cause to place the garage
under surveillance at the time O'Blak was apprehended. Tetlinski,
the respondent's filling-station attendant, testified that in January
1939 he started to keep monthly charts showing the amount of gaso-
line consumed by the various trucks, and tractors. Because of the
unusual gasoline consumption shown by the charts and because of
complaints received from some of the, drivers, Tetlinski reported to
August Cockrum, the master mechanic, and suggested the possibility.
that gasoline was being stolen. Although Cockrum made no refer-
ence to, the foregoing report by Tetlinski, he testified that at various
times early in. 1939 complaints of unusual gasoline consumption came
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his attention, and that he had requested Gregg, the employment
manager, to investigate the possibility of it being attributable to
theft. Loftin, chief of the respondent's police force, testified that
`Gregg instructed him some time in March 1939 to observe the garage
to ascertain the reason for high gasoline consumption, and that
pursuant to these instructions he directed Davis and Robinson to
keep the garage under surveillance. Davis testified that he chose
to watch the garage starting between 5 and 5 :30 p. in. because at 5 :30
all but a few of the garage employees and some of the office help, who
keep their cars on the second floor of the garage, had gone home,
and most of the trucks were already inside for the night.
The Trial Examiner found that since neither Cockrum nor Gregg
had complained to Bradbury, foreman of the garage, concerning
the theft of gasoline from the trucks and tractors, it confirmed his
doubt that the respondent had ever suspected that gasoline was
being stolen. Bradbury, whom the Trial Examiner found to be a
credible witness, did testify, however, that he had talked to Cock-
rum "about getting better mileage out of our gasoline," that he had
received complaints about gasoline consumption, and that he had
asked the mechanics to check certain trucks and tractors. Bradbury
further testified that he made no investigation after O'Blak was
discharged because he thought "our problem was cleared." Helmer
L. Wickstrom and George R. Oldham, the garage mechanics, testi-
fied that immediately prior to April 19, 1939, William C. Holt, a
tractor driver, complained to them that someone was taking gaso-
line from the tank of his tractor, and that this was reported to Brad-
bury, who instructed them to check the gasoline in Holt's tank at
night and again in the morning. Holt testified in corroboration of
this testimony. The Trial Examiner found that the testimony of
Wickstrom and Oldham, was not worthy of belief, since Bradbury
had testified that no one had told him that gasoline was missing or
that he suspected the theft of gasoline. However, in view of they
corroborative testimony of Holt, whom the Trial Examiner did not
discredit, and Bradbury's testimony that he had received complaints
concerning excessive gas consumption and had asked his mechanics
to check certain trucks and tractors, we credit the foregoing
testimony of Wickstrom and Oldham.
We are unable to agree with the conclusion reached by the Trial
Examiner that the surveillance of the garage was directed at O'Blak.
The evidence does not show that O'Blak was ever suspected of theft
or that he was the only employee in the garage placed under observa-
tion. The fact that O'Blak was the last to leave the garage and
thus had' the most favorable opportunity to steal gasoline negatives
rather than supports any inference that he had been singled-'out
ARMOUR & COMPANY 557
beforehand for surveillance, since it was only reasonable that Davis
and Robinson should watch.the garage at a time when, whoever was
taking gasoline could do so with little chance of -being observed.
Upon all the evidence pertaining to the excessive consumption of
gasoline, we find that the respondent initiated its investigation upon
a reasonable belief that gasoline was being stolen and not because
of any desire to secure a pretext for discharging O'Blak.
Otis Williams and Louis Peck, truck washers, and William Heard,
a truck driver formerly employed as a truck washer from January
to August 1938, testified that on numerous occasions they had
observed O'Blak transfer gasoline from the respondent's trucks to
his own automobile. Peck testified that only the week before O'Blak
was discharged, O'Blak had asked him to lock the garage doors and
stay in front of the building until he called him. According to
Peck, he complied with O'Blak's request to close -the doors, but
returned and found that O'Blak, "had his car up against the trucks
and was pouring 'gas out of a can into the car." Peck further
testified that approximately a year before that O'Blak had asked
him to go to the second floor to clean several small trucks and to
take his time about it. Peck stated that on that occasion he came
down unexpectedly and found O'Blak pouring gasoline out of a can
into his car, and that when he asked him what he was doing, O'Blak
replied, "It's none of your business what I'm doing. You just keep
your mouth shut and don't say anything. What I do is my own
business, and you don't want to know too much." Peck testified
that he did not report O'Blak because O'Blak had told him he had
"a couple of men discharged for knowing too much." Heard and
Williams likewise testified that they were afraid that O'Blak would
have them discharged. Heard testified that if O'Blak wanted to
"get a man canned, he could just about do it," and Williams testi-
fied that "other fellows that saw too much, they didn't keep their
jobs, -and I had to keep mine." Although the Trial Examiner found
that Williams was prone to exaggerate and that Peck, because of
alleged conflicts in his testimony, hereinafter discussed, was not
worthy of belief, he did not discredit the testimony of Heard.
Moreover, when O'Blak was recalled to testify in rebuttal he merely
reiterated his general denial that he had not at any time appro-
priated gasoline to his own use. We credit the testimony of
Williams, Peck, and Heard as set forth above.
Further to disprove O'Blak's testimony that he had siphoned the
gasoline for transfer to Parks' truck, the respondent introduced the
several witnesses to show that the practice of siphoning gasoline from
trucks and tractors in the garage was strictly prohibited. Bradbury
testified that it was an "ironclad rule" that garage employees were
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to transfer gasoline from one truck or tractor to another, and that
they had been instructed "not to touch gasoline tanks for anything
other than emergencies." Otis Williams, a truck washer, testified
that he had never seen any of the garage employees transfer gasoline
from one truck or tractor to another. William Heard, a truck driver
who, as stated above, formerly worked as a truck washer, also testified
that the only person he saw siphoning gasoline for use in the garage
was O'Blak, who would sprinkle it on sawdust for use in cleaning
grease off the floor. Heard further testified that at times O'Blak
would use a 5-gallon can in siphoning. more than he needed for that
purpose and would pour the remainder in his own automobile. Brad-
bury, Heard, and Oldham, the garage mechanic, all testified that coal
oil was generally used for cleaning purposes, Oldham further testify-
ing that the only time he used gasoline was in cleaning a carburetor
where coal oil was unsatisfactory because it left a film.
The Trial Examiner found that statements executed for the Union
by Parks and Louis Peck, previously referred to herein, confirmed
the practice of siphoning gasoline from trucks and tractors in, the
garage for whatever need arose., Parks' statement executed on May
2, 1939, reads as follows :
I also wish to state that it is a condition that when a truck
comes in-after the stations are closed, for the garage men to
transfer (sic) gasoline from the truck or tractors that are in
the repair shop to the trucks that are going to be in service the
following morning.
At the hearing, however, Parks testified that he was unable to say
whether he ever had observed garage men transferring gasoline from.
one truck to another.
Peck also executed on May, 2, 1939, the following statement :
That it is a condition in the garage and has been for the past
several years, that when any of the tractor drivers or mechanics
need gasoline to perform their duties, such as cleaning truck or
tractor parts, that they drain gasoline from the trucks or tractors
which are in the repair shop and are not going to be in service
the following day. The same condition remains true with the
night tractor driver.
At the hearing, Peck testified that at no time did he see anyone, other
than O'Blak, siphon gasoline from one truck or tractor and-transfer
it to another, and that they had been instructed never to do that.,
The only part of Peck's written statement which might be deemed
inconsistent with the foregoing testimony is that, pertaining 'to the
"night tractor driver," and in that regard Peck explained that the
statement was made with reference to Coffield, the night clean-up
ARMOUR & COMPANY 559
man, who about 3 or 4 years prior had gone to the garage once or
twice and obtained gasoline when he had run out. Peck's testimony
was corroborated by that of Coffield, a witness for the Board, who
testified that on occasions in the past when he ran out of gas at night
after the pump- was closed he obtained it from one of the trucks in
the garage. Coffield admitted, however, that he had not done this
for "maybe 2 or 3 years-maybe 3 or 4." Bradbury testified that if a
tractor ran out • of gasoline at night the driver was instructed to
obtain it through the watchman who had charge of the filling station
after the regular attendant had gone off duty.
In view of the foregoing, we conclude that while small amounts
of gasoline might be siphoned from trucks or tractors in the garage
for use in certain cleaning operations and in an emergency might be
transferred to another truck or tractor, it was not a practice generally
indulged in by garage employees under the respondent's rules per-
taining to the use of gasoline. Moreover, there was no such emer-
gency on April 19 as would require O'Blak to transfer gasoline, since
Parks' truck was in the garage for the night and could have been
refueled from the filling station upon going into service in the
morning.
Another important fact reflecting upon the truth of O'Blak's asser-
tion that when apprehended he was transferring gasoline to the re-
spondent's truck rather than to his own car appears from the above-
mentioned records kept by the filling-station attendant. These
records show that the truck driven by Parks on April 19, 1939, took
11 gallons of gasoline on April 18, was in service all that day, as well
as on April 19 and 20, and was not refueled until April 21. We find
it questionable, as did the Trial Examiner, that a truck that was
low on gasoline on April 19 could have been in full service the-next
day without additional fuel until April 21.
- In view of the foregoing, we are unable to conclude, as did the
Trial Examiner, that on the night of April 19 O'Blak was engaged in
the act of transferring gasoline to Parks' truck and not to his own
automobile. The evidence, we believe, is to the contrary. ' Upon all
the evidence, we are convinced that the respondent in discharging
O'Blak did so under a reasonable conviction that he had stolen gaso-
line, and not because of his membership and activity in the Union.
While it is true that on several occasions, the last of which was nearly
1 year prior to his discharge, the respondent had exhibited hostility
with respect to O'Blak's membership in the Union, there is no indica-
tion that thereafter it was inclined to pursue such a course of action
towards s him.
We find that the respondent has not discriminated in regard to
the hire or tenure of employment of George O'Blak, thereby discour-
aging membership in a labor organization.
560 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, A and B above, occurring in connection with the operations of
the respondent described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening .and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices. We will, therefore, order the respondent to cease and
desist therefrom and to take certain affirmative action which we ,find
will effectuate the policies of the Act.
We have found that respondent discriminatorily refused to rein-
state Matt Lambie because of - his' membership and activity in the
Union: We shall therefore order the respondent to offer Lambie imme-
diate reinstatement to his former or a substantially equivalent posit
tion, without prejudice to his seniority and other rights and. privileges.
We will also order the respondent to make him whole for any loss of
pay he has suffered by reason of the respondent's discrimination by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages from the date of the descrimination
to the date of the offer of reinstatement, less his net earnings 12 during
that period.
• The respondent contends that its employment policy prohibits the
employment of anyone who has a history of tuberculosis. However,
in view of the reports of Doctors Nesselrode and Allen, the.respond-
ent's own physicians, regarding Lambie's physical condition, and the
undenied testimony of• Lambie that he has not been ill since 'he ,re-
ported for work in January 1939, we do not believe that the foregoing
policy of the respondent should bar his reinstatement at this time.
The respondent is not required, however, to reinstate Lambie, to, a
position which would necessitate his handling meat or other food
products.
Upon the basis of the above findings of fact, and upon the, entire
record in the case, the Board makes the following:
32 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
elsewhere than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United r Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Unaon, Local 2590 , 8 N. L. R. B. 440. Monies
received for work performed upon Federal , State, county, municipal , or other work'-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N.• L. R' B.
311 U; S. 7.
,,r
ARMOUR & COMPANY 561
CONCLUSIONS OF LAW
1. Local Union No. 15, United Packinghouse Workers of America,
Packinghouse Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Matt Lambie, thereby discouraging membership in Local
Union No. 15;, United Packinghouse Workers of America, Packing-
house Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, the respondent has engaged in and is
engaging in unfair labor-practices within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights, guaranteed in Section 7 of the Act, the re-
spoident 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.
respondent has not sought to bait, ensnare, and entrap mem-6 ' T,
bers of' the Union into conduct violative of company rules, and has
not thereby ' engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act.
6. By discharging and refusing to reinstate Albert Hazel, Ward
Campbell, and George O'Blak, the respondent has not engaged in
unfair labor practices within the meaning of Section 8(r) of the Act.
ORDER
Upon: the , basis of the above findings-of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the ,National Labor Relations Board hereby orders that the re-
spondent, Armour and Company, Kansas City, Kansas, and its officers,
agents, successors, and assigns, shall:
•1. Cease and desist from:
(a) . Discouraging membership in Local Union No. 15, United Pack-
inghouse Workers of America, Packinghouse Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discriminating
in regard to their hire and tenure of employment or any terms or
conditions 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
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Board finds
will effectuate the policies,of the Act:
(a) Offer to Matt Lambie immediate and full reinstatement to his,
former or substantially equivalent position without prejudice to his
seniority and other rights and privileges ;
(b) Make whole said ' Matt Lambie for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which he
would normally have received as wages from the date of the respond-
ent's discrimination against him to the date of such offer 'of rein-
statement, less his net earnings, during said period;
(c) Immediately post notices to its employees in conspicuous places
throughout its Kansas City, Kansas, plant, and maintain such notices
for a period of at least sixty, (60) days from' the date of posting,
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that it will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order; and (3) that its employees,
are free to become or remain members of Local Union No. 15, United
Packinghouse Workers of America, Packinghouse Workers Organiz-
ing Committee, affiliated with the Congress of Industrial Organiza-
tions, and that it will not discriminate against any employee because
of membership or activity in said labor organization;
(d) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND rr is FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent, by seeking to bait, ensnare, and entrap members
of the Union into conduct violative of company rules, has engaged in
unfair labor practices within the meaning of Section 8 (1) of the Act,
and by discharging and refusing to reinstate Albert Hazel, Ward
Campbell, and George O'Blak, has engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act, be, and it hereby is,
dismissed.