F. M. Stamper Co.

National Labor Relations Board - Board Decisions

Jan 5, 1944

54 N.L.R.B. 297 (N.L.R.B. 1944)

In the Matter of F. M. STAMPER COMPANY and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKDIEN OED NORTH AMERICA, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
Case No. 17-C-908.-Decided January 5, 1944
Mr. Eugene R. Melson and Mrs. Margaret L. Fassig, for the Board.
Cobb, Logan, Ross, and Armstrong, of St: Louis, Mo., by Mr. George
B. Logan and Mr. Wallace Cooper, and Mr. Lawrence Holonan, of
Moberly, Mo., for the respondent.
Mr. J. L . Wilson, of Kansas City , Kans., for the Union.
Langsdale, Langsdale eC Langsdale, of Kansas City, Mo., by Mr.
John J. Manning , for the International Brotherhood of Teamsters.
Mr. Gerard J. Manack, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 4,1943, by Amalgamated
Meat Cutters and Butcher Workmen of North America, affiliated with
the American Federation of Labor, herein called the Union , the Na-
tional Labor Relations , Board, herein called the Board, by its Re-
gional Director for the Seventeenth Region ( Kansas City , 'Missouri),
issued its complaint dated May 6, 1943 , against F. M. Stamper Corn-
pany, Moberly, Missouri , herein called the respondent , alleging that
the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint , accompanied by
notice of hearing, were duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged
that the respondent : ( 1) on or about January 20 , 1942, and con-
tinuously thereafter , failed and refused to reemploy Mrs. Ora June
Archer, a former employee, because of her membership in and activities
on behalf of the Union ; ( 2) on or about October 13, 1942, terminated
the employment of Roy H. Asbury, and continuously thereafter failed
54 N. I . R. B., No. 39.
297
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and refused to reinstate him, in order to discourage membership in
and activities on behalf of the Union; (3) on various dates between
January 31 and February 21, 1942, laid off 99 named employees, sub-
stantially reduced operations at its Moberly, Missouri, plant, and di-
verted production therefrom, in order to discourage membership in
and activities on behalf of the Union; and (4) by the foregoing acts
and by (a) statements and speeches prejudicial to and disparaging of
the Union, and defamatory of the members and leaders thereof, (b)
causing its employees to be quizzed, watched, and spied upon to obtain
information as to Union affiliation and activity, (c) threatening to
discharge those employees affiliated, or seeking affiliation, with the
Union, (d) threatening to close its Moberly, Missouri, plant if the em-
ployees.affiliated with the Union, (e) discriminating in the allotment
of work against those employees affiliated, or seeking affiliation, with
the Union, (f) requesting employees to refrain from becoming or
remaining members in the Union, (g) instigating or permitting the
solicitation of its employees for signatures to petitions and statements
disparaging and prejudicial to the Union, (h) granting blanket pay
increases to its employees at times and under conditions calculated to
interfere with, thwart, and obstruct the organizational efforts of its
employees, and (i) informing employees to disregard a notice posted
in settlement of prior unfair labor practice charges filed with the
Board, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. The respondent thereafter filed an answer admitting certain
allegations of the complaint as to its business, but denying the unfair
labor practices alleged.
Pursuant to notice, a hearing was held on August 2, 3, 4, and 5, 1943,
at Moberly, Missouri, before Walter Wilbur, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
the Union, and the International Brotherhood of Teamsters, herein
called the Teamsters,) were represented and participated in the hear-
ing. 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 conclusion of the Board's case and again
at the close of the hearing, the respondent moved to strike all testimony
tending to prove that the respondent had engaged in unfair
labor practices antedating November 27, 1941, the effective date of
a settlement agreement between the respondent and the Board. The
motions were denied. During the course of the hearing, rulings were
made by the Trial Examiner on various other motions and on objec-
1 The Teamsters appeared at and participated in the hearing , filed exceptions to the
Intermediate Report and a supporting brief, and participated in the oral argument before
the Board at Washington, D. C, all without objection from the parties hereto. The
record ,, honever, does not disclose its interest in the proceeding.
F. M. STAMPER COMPANY 299
tions to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner made during the course of the hearing,
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On September 13, 1943, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the' respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act, and recommended that the
respondent cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act. He further recommended
that the complaint be dismissed insofar as it alleged that the respond-
ent violated Section 8 (1) and (3) of the Act by the discharge of Roy
H. Asbury, the lay-offs between January 31, 1942, and February 21,
1942, and the granting of wage increases to its employees.
On September 27 and 30, 1943, the Teamsters and the Union, re-
spectively, filed exceptions to the Intermediate Report, and briefs in
support of the exceptions. Pursuant to notice, a hearing for the pur-
pose of oral argument was held on October 19, 1943, before the Board
at Washington, D. C. The respondent and the Teamsters were rep-
resented by counsel and participated in the hearing. The Board has
considered the exceptions and briefs filed by the Union and the
Teamsters and, insofar 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 a
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Missouri corporation, with its principal office
at Moberly, Missouri, is engaged in the business of processing, dis-
tributing, and selling poultry, eggs, and related products. In the
course of its business, the respondent operates approximately 16 proc-
essing plants in the States of Missouri, Arkansas, Kentucky, and
Tennessee, including the plant at Moberly, Missouri, which is in-
volved in this proceeding. Approximately 90 percent of the respond-
ent's products are sold, transported, and delivered into and through
States outside the State of Missouri. During 1942, the respondent
processed at its Moberly plant products valued in excess of $100,000.
'Unless other ise indicated , all findings of fact herein are based upon undisputed
evidence.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America is a labor organization affiliated with the American Fed-
eration of Labor, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. - Operations of the Moberly Plant
Prior to 1941, the plant at -Moberly was typical of the plants in
the respondent's system. It was engaged in the business of buying
and selling, in wholesale quantities, poultry, eggs and dairy products.
Its supplies were drawn from a specific area which was serviced by a
fleet of trucks operated from the plant on regular routes to dealers
within the area. Both the poultry and egg business were seasonal,
with corresponding fluctuations in the need for labor. Egg produc-
tion was heaviest from March to May; poultry marketing from Au-
gust to December, with a special turkey season in November and
December. Live pojiltry was brought to the plant, weighed, fed for
a day or two in "batteries" or holding coops, killed, dressed, pre-
cooled for shipment, and shipped in boxes or barrels to the respond-
ent's concentration plant at St. Louis. Eggs were brought to the plant
in cases, inspected by candling, and either graded for marketing as
shell eggs, or broken, the whites and yolks separated, packed in 30-
pound cans, and frozen. Prior to May 1941, the market for liquid
eggs 3 was seasonal and limited to bakeries and a few other trades.
During 1940 and the early part of 1941, the Government had been
exporting shell eggs, under lend-lease arrangements, with unsatis-
factory results because of lack of special equipment. Beginning in
May 1941, an attempt was made for about 3 months to export liquid
eggs. During this period, the respondent broke and froze a large
quantity of eggs for the Government to export. Liquid eggs required
less cargo space but the shortage of freezer space made the effort
equally unsuccessful. The Federal Security Corporation Commis-
sion, herein called FSCC, which handled shipments of food products
under lend-lease, then decided to try exporting dehydrated eggs.
There were then only four or five plants in the United States pro-
ducing dried eggs and these supplied only seasonal demands. The
FSCC therefore appealed to the industry generally to install egg-
drying equipment.
In response to the appeal, the respondent obtained the use of a
milk-drying plant at Marshall, Missouri, where the respondent oper-
ated a poultry plant, and there, on August 14, 1941, began experi-
8
By liquid eggs is meant eggs removed from shells.
F. M. STAMPER COMPANY 301
mentally to dehydrate eggs. When the experiment proved to be suc-
cessful , the respondent arranged for the part -time use of the milk
plant until November, 1941 , and thereafter for its full -time use, and
commenced the dehydration of eggs for the Government . During
the experimental period, the eggs were broken at the Moberly plant
and hauled to Marshall in liquid form. In the latter part of Octo-
ber 1941 , however ; the respondent opened and equipped a breaking
room in the milk plant at Marshall , and thereafter all eggs dried
at the Marshall plant were purchased in the Marshall territory and
broken at the Marshall plant. In addition , eggs were occasionally
brought in from the respondent 's Carrolton and Boonville ter-
ritories.4
At about the same time , the respondent contracted for the instal,
lation of drying equipment in its Moberly plant , to be ready for
operation by December 20, 1941. In anticipation of this operation,
the respondent , on October 24, 1941, discontinued the breaking of
eggs at Moberly and temporarily laid off the employees in the egg-
breaking room. It then began to accumulate eggs for the dryer,
using its own and other Moberly refrigerating facilities to store the
eggs, and contracted to deliver to the Government 120,000 pounds of
egg powder by January 31, 1942. The contract contained a penalty
clause for failure to fulfill delivery on time.
B. The February lay-offs; interference, coercion, and restraint
1. Chronology of events
So far as the record discloses , the Union first began its organiza-
tional activities on October 27, 1941 , by distributing to the Moberly
employees handbills announcing a meeting for that evening . During
the day, copies of the handbill came to the attention of H. H.
Stamper and Will Fleming , president and treasurer , respectively, of
the respondent , and Henderson D. Wilcox, manager of the poultry
and egg department at the Moberly plant . According to the testi-
mony of Stamper and Wilcox , they construed the handbill to con-
tain misrepresentations as to the wages which the respondent was
paying in its St. Louis plant .5 They further testified that one of
the union organizers at Moberly had participated in the organiza-
tion of the St. Louis plant , and that the organization of that plant
had been effected by misrepresentation on the part of the organizers.6
They therefore decided to secure direct information as to the hap-
' The record does not reveal whether the Carrolton and Boonville eggs were transported
to Marshall in shell of in liquid form.
5 The handbill was not reasonably susceptible to such an interpretation.
6The respondent also had a specific giievance against the Union arising out of charges
of unfair labor practices filed against the respondent relative to the organizational activi-
ties at the St Louis plant-.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penings at the organizational meeting, and accordingly instructed
Clyde Miller, foreman of the poultry and egg departments, to select
two or three men to attend the meeting to observe what occurred
there. Miller, after first ascertaining their attitude toward the
Union,,selected employees Roy Asbury and Bill Riggs. Asbury and
Riggs voluntarily invited employee Russell Hicks to join them, and
the three attended the meeting. After the meeting, they met Miller
in the vicinity of the meeting place, and he drove them in his car
back to the plant for a prearranged meeting with Stamper, Wilcox,
and Fleming. Asbury, Riggs, and Hicks then made a full report,
in answer to inquiries, is to what had transpired at the meeting, who
had attended, and who had signed application cards.
Following the report received from the three employees mentioned
above, Stamper and Wilcox decided "to have each employee informed
correctly of the wages paid and the conditions under which they
could work" and to do this by means of personal interviews. Wilcox
was designated to state the respondent's position.' Beginning the
following morning, Wilcox caused the employees to be sent to his
office, two at a time, and in the course of a brief interview made sub-
stantially the same statement to each couple. '
According to Wilcox's testimony, he told the employees, in sub-
stance, that the handbill's wage statement was untrue; that the respond-
ent had always paid as much at Moberly as at the St. Louis plant or as
was paid in any competitor's plants in the area, and that the respond-
ent would continue to do so; that they "did not have to belong to a
union to work in the [Moberly] plant," or, on the other hand, that the
respondent would not discharge or discriminate against any employee
who did join; that it had always been the respondent's "policy never
to fire anyone where it was at all possible to avoid it," and the respond-
ent "wanted to continue to have the same feeling between the manage-
ment and the employees"; that the employees "knew of the troubles
they had had at the shoe factory . . . and at the Wabash in times
past, and . . . in other industries where they had unions"; and
that it was his "opinion that where they had a union, it built up a wall
between the management and the employees." A number of employee
witnesses substantially corroborated Wilcox to the extent of his ad-
initted statements, as above set forth. A few, however,' whose testi-
mony we credit, testified that Wilcox also said in substance : (1) that he
did not want the Union and had always been and always would be
' Stamper testified : "Ile (Wilcox] was to tell them that we were paying the same prices
at Moberly that we were paying at St' Louis . . . and not the prices that Mr. Blassie
[organizer] had put on the handbill and to tell the employees, further, that they did not
have to belong to a union to work at the Stamper Company plant, and never would ; that
we had always paid and always would pay as high wages as plants paid in our territory
or section of the country for the same kind of work . . . He was to tell them that they
had a perfect right to join a union if they wished . . . that they would not be fired, if
they joined the Union , and there would be no discrimination in case of joining the Union."
F. M. STAMPER COMPANY 303
"against it"; 8 (2) that he would see that the Moberly employees would
receive 'union wages without the necessity of joining the Union and
paying dues; 9 (3) that if the Union succeeded in organizing the em-
ployees, the respondent would shut down the plant, and in that event,
he [Wilcox]. had a' farm to make a living on, whereas the employees
,had nothing.10
At the same time, Wilcox admittedly instructed Blanch M. Palmer,
floorlady in the breaking room, to convey the "same message" to the
employees of the egg-breaking room, who had been laid off in October,
since the respondent intended to reemploy them when it commenced
egg-breaking operations for the dryer. Palmer called at the homes
of such employees as were not working, inquired of them relative to
their attitude toward the Union, and relayed to all but four or five the
substance of Wilcox's statement.
Employee Roy H. Asbury testified that "probably the next day"
after the Union meeting of October 27 he had a conversation with
Foreman Clyde Miller in the picking room about the Union, in which
Miller "said we were going to have to do something about it, to stop it,
if we could, and he asked me to go around and talk to all the boys work-
ing; and I told him I would, and I did." Asbury further testified
that Miller said in the course of the conversation that if the Union
8 Mae Walker testified to this statement , without contradiction Employee Ruth Asbury
testified that Wilcox stated to her and employee Anna Solimon that Wilcox "didn't want
the union in the plant and wasn ' t going to have a Union ." Solimon, however , a witness
for the respondent , testified that Wilcox did not say anything to that effect Wilcox did
not deny having made the statement Although the Trial Examiner found that Asbury's
testimony fairly reflected Wilcox's attitude , lie was not convinced that Wilcox made the
"literal statement" thus attributed to him . We, like the Trial Examiner , find that Asbury's
testimony fairly reflected Wilcox' s attitude , but further find, under all the circumstances,
that Wilcox , in substance , made the statement attributed to him by Asbury
0 Mae Walker and Ruth Asbury testified to this statement , without contradiction.
10 Employees Ora J Ascher and Mrs Henry Freeman testified as to the statement about
shutting down the plant and the farm. Freeman testified that Mary Craigg had accom-
panied her to the office on this occasion ; Archer testified that she had accompanied Mrs'
,Freeman. Wilcox denied having made the threat to close down the plant or of having
referred to his farm, although admitting that he owned a farm . Mary Craigg , a witness
for the respondent, testified that she accompanied Mrs Freeman into Wilcox 's office, but
that she did not hear Wilcox say anything about shutting down the plant or about his
farm . In view of the discrepancies in Archer' s and Freeman 's testimony as to whq
accompanied Freeman to the office , the Trial Examiner credited Wilcox's denial. We
disagree . The Trial Examiner found , however, that Wilcox did mention his farm to
Archer and Freeman in emphasizing the plight the employees would find themselves in
if the Union should close the plant by strike action . We can find no basis in the record
for this finding of the Trial Examiner . The only testimony relative to the farm is that
of Archer and Freeman , as related in the text . Furthermore , since Wilcox subsequently
in November again summoned the employees in groups of two to his office, as hereinafter
set forth , and since Freeman testified that Archer accompanied her on the second occasion,
it appeals more plausible that Freeman became confused as to the time when Archer
accompanied her, and that actually they accompanied each other to the office on the
first occasion and that Freeman and Craigg accompanied each other on the second occa-
sion . This position is supported by the fact that the testimony of Archer and Freeman
was similar and the further fact that Craigg did not indicate in her testimony whether
she had accompanied Archer to the first or the second conference . Upon the basis of the
foregoing considerations , the fact that these statements are in substantial accord with
Wilcox s admitted statement, and upon the entire record , we find that Wilcox made the
statements attributed to him by Archer and Freeman.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not stopped , "the plant would close down ; they would just lock
the doors and move it some place else." Miller denied stating to
Asbury that if the Union were not stopped the plant would be shut
down and moved.
The Trial Examiner credited Asbury's testimony except that portion
relating to the closing and moving of the plant . Upon the, basis of
the entire record, and particularly in view of Miller 's failure to deny
having made the other statements attributed to him by Asbury, the
fact that Miller proved io be an incredible witness on other occasions,
and the fact that the statements attributed to Miller by Asbury are
consistent with the respondent 's conduct as found herein , we disagree
with the Trial Examiner and find that Miller made the statements
substantially as attributed to him by Asbury.
On November 10, 1941 , the Union filed with the Seventeenth Re-
gional Office of the Board a charge against the respondent , alleging
that the respondent had engaged in and was engaging in unfair labor
practices , within the meaning of Section 8 ( 1) of the Act, "in that on
or about October 27 , 1941, and at all times since that date , by threats,
warnings , and espionage engaged in by its officers and agents, and by
promise of a wage increase , it, by the said officers and agents interferes
with, restrains , and coerces its employees in the exercise of the rights
guaranteed in Section 7 of the said Act." 11
The respondent , the Union, and the Board , acting through its agents
in the Seventeenth Regional Office,, thereafter entered into a settlement,
agreement , effective November 27 , 1941, by the terms of which the
respondent agreed to observe the provisions of Section 8 (1) and
(3) of the Act , and to post a notice to its employees in the form
stipulated in said agreement , and the Union agreed , with certain
reservations , to request permission to withdraw the charges thereto-
fore preferred . The said agreement further provided as follows :
3. The company further agrees that, in the - event it hereafter
engages in unfair labor practices similar to those alleged in the
charge referred to above, then the execution of this settlement
agreement ; and/or the posting of the notice , all as hereinabove
provided , shall be without prejudice to the rights of any proper
party to refile charges and the rights of the Board to issue a com-
plaint thereon and predicated on acts or incidents heretofore
done.12
1
11 This finding is made on the basis of the recitals of the charge filed in the Matter of
F. If. Stamper Company and Amalgamated Meat Cutters and Butcher Workmen of North
America, affiliated wsth ' the American Federation of Labor, Case No. 17-C-852, of which
we take notice
12 The agreement further stipulated that the execution thereof carried no prejudicial
implications , and that it should be inadmissible " in evidence in any hearing that may be
held based upon the above or any other charges by the Union against the Company " Not-
withstanding the stipulation as to its inadmissibility in evidence , a copy of the agree-
ment was tendered in evidence by the respondent and admitted without objection.
F. M. STAMPER COMPANY 305
The respondent thereafter posted a notice to its employees in the
form and manner provided for in the agreement. Wilcox, however,
according to his testimony, "felt that the posting of that notice might
be taken by" the employees " as meaning that they should join the union,
or as an invitation urging them to join," and therefore "felt that they
should be talked to again." Accordingly, about the time of the posting
of the notice', he caused a number of the employees to be sent to his,
office, two at a time, in order to explain the purpose of posting the
notice. He testified that he told them of the charges filed against the
respondent by the Union on account of what he had said to the em-
ployees in his prior conferences with them; that the respondent was
going to post a notice ; that the notice did not "mean that they had to
join a union," but that "it was still their, privilege to do as they
pleased"; and that, as far as he was concerned, he had not changed his
"opinion about the benefits that might accrue from a union." Accord-
ing to Mrs. Asbury, however, Wilcox also said that the notice did not
mean what it said, and if there was anyone in the plant "dumb" enough
to think that it did, he should be informed to the contrary. Mrs. Free-
man testified that Wilcox said that it was unnecessary for her to read
the notice because it "didn't mean anything." Employee Alberta
Meeter testified that Wilcox told them to ignore the notice. Employee
Corinne Hess testified that Wilcox said that the respondent had to post
notices in the plant and was doing so only "to save trouble," but that he
did not want anybody to misunderstand the respondent; that he was
"against a union" and always would be. Wilcox denied stating that the
notice did not mean anything, or that the employees should disregard
it. Since these employees were interviewed by Wilcox at different
times, and since it appears quite likely that Wilcox expressed himself
in variable language at each interview, the discrepancies in their testi-
mony do not detract from its accuracy. Moreover, despite Wilcox's
specific denial, his admitted statements are not irreconcilable with the
testimony of the above-named employees; nor does the meaning im-
plicit in his statements substantially differ from that contained in
the testimony hereinabove set forth. Under the circumstances, and
upon the basis of the entire record, we find that Wilcox, in substance,
made the statements above attributed to him by Mrs. Asbury, Mrs.
Freeman, Alberta Meeker, and Corinne Hess.13
13 The Tiial Examiner , while not specifically discrediting the testimony of Mrs . Asbury,
Mrs Freeman, and Alberta Meeker, found that the testimony of Corinne Hess most accu-
rately reflected the language of the statement made by Wilcox. He further found, upon
the basis of Wilcox's admitted statement and the testimony of Hess, that the inevitable
and calculated effect of Wilcox's statement was to give the employees the impression that
the notice was a mere formality and indicated no change in his attitude We agree with
the ultimate finding, but can see no reason for disregarding the credible testimony of other
witnesses, which express the same idea more graphically.
567900-44-vol. 54-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue of the St. Louis Globe-Democrat for December 22, 1941,
carried a news story in which the two union organizers who were
in charge of the organizational campaign at Moberly were named,
together with four other persons, as having been arrested at St.
Louis on charges of disturbing the peace in connection with a
strike at the Medart Restaurant in St. Louis, and in which reference
was made to police reports that the tires of cars parked on the
restaurant lot had been punctured with ice picks. Subsequently,
according to the undisputed testimony of Mrs. Roy Asbury and
Corinne Hess, which we credit, as did the Trial Examiner, Foreman
Miller came into the "picking room during working hours with a-
copy of the paper on which the names of the two organizers were
encircled in red pencil,,handed it to the girl at the head of the
chicken-picking line, saying, "There, I will ask you to read this
. . The sons-of-bitches that tried to organize you were gang-
sters . . . That's what the damn union will do for you."
During December 1941 and the greater part of January 1942, the
record indicates that there was no union activity. In the latter part
of December, the busy poultry season ended, and the respondent laid
off a number of employees from the poultry department." The egg
drier, which had been scheduled for operation by December 20, was not
ready for operation until January 20, 1942. By this time the respond-
ent had in storage several months accumulation of shell eggs and 11
days within which to fulfill a penalty contract for which it had antici-
pated having 1 month and 11 days. The respondent recalled all
of its employees who had had previous, experience in breaking eggs,
and also employed a number of workers who were without any
previous experience and had to be trained on the job. During this
period the egg breakers worked on two shifts, the second shift sup-
plementing the work of the first shift to the extent needed to keep the
drier supplied on a 24-hour basis. In addition to the eggs used in the
drier, the respondent during this period sold to the Government for
export a considerable quantity of shell eggs which had to be specially
graded. During the same period it was carrying on its seasonal
business of feeding, dressing, and packing poultry. During the week
ending January 23, the number of employees in the poultry and egg
departments increased from 75 to 147, and for the week ending January
30, to 176. Due to the fact that the respondent's heating system proved
inadequate to operate the whole plant simultaneously, the respondent,
on January 28, discontinued its poultry operations until a new boiler,
which it had already ordered, would be installed ; it thereafter devoted
its entire facilities at Moberly to the production of egg powder for
the Government.
11 It is not charged that any lay -offs prior to February 1942 were discriminatory.
F. M. STAMPER COMPANY 307
In the meantime , the Union , which had been inactive since November
1941, apparently decided to take advantage of the increase in employ-
ment by resuming activity during this period. On January 29 a
meeting was held, at which an undisclosed number of employees signed
application for membership cards. Other meetings were held there-
after.
On January 30 the respondent had completed deliveries of egg
powder under its contract commitments , and had practically exhausted
its supply of eggs in storage. The Government at the same time with-
drew its premium price offer for graded shell eggs, and the respondent
discontinued selling eggs in this form. "
At about the same time , Asbury, according to his testimony , had the
following conversation with Wilcox in his office. Wilcox asked Asbury
what he thought about the Union and if there was anything Asbury
could do to help the respondent with respect to the Union: Asbury
informed Wilcox that he had not joined the Union , and promised to
do his best for the respondent by talking to the employees . Asbury,
according to his testimony , fulfilled his promise. He further testified
that Wilcox requested him to persuade his wife to cease her union
activities . Wilcox did not deny having had this conversation with
Asbury. We And, as did the Trial Examiner , that Wilcox made the
statements , in substance , attributed to him by Asbury.
On February 2, 1942, the respondent laid off 51 employees , as fol-
lows: 9 from the poultry picking room ; 3 from the candling room; 33
from the egg-breaking room; and 6 from the transfer room. Shortly
thereafter , the employees were solicited to sign a document , referred
to by some of the witnesses as a "petition ," which consisted of several
loose sheets of foolscap paper, each headed with the words , "We want
to cooperate with F. M. Stamper Co . How about you?" This docu-
ment had its genesis in a discussion held in Manager Wilcox's office,,
in which Wilcox and employees Asbury, Riggs, Payne, Duvall, and
Phipps participated , on how interest in the Union could be stopped.
Wilcox declined to follow the initial suggestion that he make a personal
talk to the employees . One of the employees then suggested that they
get up a "petition" to be signed by the employees, expressing their
willingness to "cooperate" with the Company. Wilcox told them that
he could not have anything to do with circulating such a "petition" and
overruled the suggestion that one of the girls in the office prepare type-
written copies , but did not direct them to refrain from such a course.
The employees left Wilcox 's office with the understanding that they
were going ahead with the idea, knowing that Wilcox was in open
sympathy with their objective . They proceeded to Foreman Clyde
Miller's office. On their way they met Miller and told him what they
were proposing ;- whereupon Miller told them where they could find
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some paper.',' Duvall supplied the wording and prepared a number
of facsimile copies for circulation. Asbury, Duvall, and Riggs then
left The plant in one car ; Gene Payne and Olin Phipps, in another.
They spent several hours in canvassing for signatures by visiting the
homes of the employees. On the afternoon of the first day on which
the "petition" was circulated, the solicitors left the plant between 1 and
2 o'clock, and returned between 5:30 and 6 o'clock. Although the
respondent was chargeable with notice of their absence from the plant
and the nature of their activities during this period, they were paid
for the time so spent .16 \ Solicitations continued for several days, al-
though on a less extensive scale. ' The completed document, bearing
a total of 184 signatures, was finally left on Wilcox's desk . 17
During the 2 weeks following the February 2 lay-offs, Wilcox had a
number of conversations with the laid-off employees and those still
working, relative to the lay-offs and union activities. Zella Crutch-
field testified that during the week of February 5, Wilcox summoned
her and her sister Gladys Cleeton, into the office and told them that "he
was going to have to lay a bunch off until he seen what the Union was
going to do," and that he might take Crutchfield back to work, but
that he did not think that employees Corinne Hess and Daisy Bell Goff
would ever "get back on." Wilcox admitted telling them that there
had been a lay-off and that there would be another one "the way it
looked," but denied stating that he was laying off the employees until
he saw what the Union was going to do. He further denied telling
them that Corinne Hess and Daisy Bell Goff would never get back to
work, and added, "I didn't feel that bad toward those girls." The
Trial Examiner was unable to credit Crutchfield's version of the in-
terview, relying, in part, upon the fact that "she was the only witness
who testified that Wilcox made any statements connecting the lay-offs
in any way with the Union." In this, the Trial Examiner was clearly
in error since the testimony of Corinne Hess, whom he credited, di-
rectly connected the lay-offs with,the Union. Upon the basis of the
entire record, and particularly in view of the incidents which occurred
during this period involving Wilcox, we disagree with the Trial Ex-
aminer, and find that Wilcox made the statements 'substantially as
attributed to him by Crutchfield.
17, This finding is based upon the testimony of Asbury Miller denied knowledge of the
petition and of having supplied the' paper . We, like the Trial Examiner, do not credit
Miller's denial. k
16 Miller denied any knowledge that the employees , who circulated the petition, had
done so during working hours . The respondent ' s plant was not so spacious , nor was its
pay roll at the time so large, that five employees could absent themselves for several
hours without the practical certainty that their foreman would discover their absence.
We, like the Trial Examiner, do not credit Miller 's denial.
17 The testimony is in dispute as to whether this occurred before or after the February
18 lay-offs. We do not deem it necessary to resolve this conflict since'the exact date is
immaterial.
F. M. STAMPER COMPANY 309
Lucille Ronimous testified that, after her lay-off, she and another
employee went to Wilcox's office sometime in the week of February 9,
and asked him why they were laid off while younger girls were still
working there. She further testified that Wilcox promised that "if
they would get those girls who started the Union to quit their jobs,"
Ronimous and her companion could have those jobs. Wilcox admitted
that he had made the statement laughingly after Ronimous had told
him "that she wasn't the cause of any trouble there . . . that
Mrs. Walker and Edna Ruth Asbury were responsible for this organi-
zation movement and she didn't think she ought to be laid off and them
have their jobs." The Trial Examiner credited Wilcox's version of
the conversation. In view of Wilcox's whole course of anti-union
conduct during this period, particularly as herinafter set forth, and in
view of the fact that Wilcox has proved himself on other occasions to
be a witness unworthy of belief, we disagree and find that Wilcox
made the statement substantially as attributed to him by Ronimous.
Corinne Hess testified that she, together with her sister, Daisy Bell
Goff, and Lena Hess, went to Wilcox's office on February 13; that she
asked Wilcox when he was going to put them back to work
and he said not for 2 weeks anyway, that they were putting in a
new floor upstairs and they couldn't put us back until they got that
in. I asked him what about the breaking room : He said "There
are some people out of work who really want to do the right
thing," and I said, "Mr. Wilcox I am sure I do," and he said "You
have shown that." He said "Wilson and that other fellow ought
to be taken out and treated like German spies, he and Less
Daugherty should know that trying to organize this plant-would
just knock a lot of people out of work." He said "They thought we
had the drier here, and all of this work, and they just thought
they could come in and make us do what they wanted us to do."
He said, "Has he done anything yet he told you he could do?"
speaking of Mr. Wilson. He said, "He told Vada and Lucille
he would get their jobs back here, but they're not working here
and they will never work here again.78 He said, "I'll see Wilson
in h-e-1-1 first." ... My Sister said, "Mr. Wilcox, from the
way you have acted, you must think I started this union, and if
you do I want to know who told you." He said, "No, I don't think
that. I think I know pretty well who started it, but it isn't "a
question now of who started it but who's going to stop it." He
said, "If that dozen of you who was at the union meeting Friday
night would stop going up there and agitating it, you would be
doing a lot toward bringing the work back here. . .. I told
"Hess testified that Vada and Lucille were Vada Dunlap and Lucille Ronimous, two
employees who had been laid off February 2.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him he had given me something to think about, because he had
spoken so plainly and told me just point blank why I was laid
off. He said we didn't need to work there to keep the drier run-
ning, because they could break the eggs in their other houses
and bring them here. . . . I said, "You have given me some-
thing to think about. I am going to the union meeting tonight,
and I am going to ask a lot of questions." And he smiled and
said, "You girls come back and talk to me any time you want
to-come back in the morning, if you want to."
Corinne Hess attended the union meeting that night, and the next
morning she and her sister went to see Wilcox at his office. When
Hess asked Wilcox what he could do for them that morning, Wilcox
replied, "From the way that meeting went last night, I'm afraid
there is going to be less work around here." Hess further testified,
"I said, `I asked some questions, as I told you I was going to do, at
the meeting, and Mr. Wilson had an answer for all of them.' And he
said, `If Mr. Wilson had an answer, you should know how soon you
are going back to work.' . . . I said, `He didn't say anything about
it.' And I just got up and walked out."
Wilcox testified that Corinne Hess came to see him a number of
times, mostly to repeat to him what she had heard somewhere else,
"acid at the same time, to ask when she might get back to work"; that
he told her
the same thing I had to tell everyone'else that came during that
period, that we had the matter of the boiler and the picking
room floor-Of course, at that time we anticipated working
again in the picking room . . . when the boiler was there
.. . One morning she came in there . . . and she wanted
to know, why she couldn't go back to work. So I explained
to her that we might not be able to put anybody back right
away . . . She said, "Well, that isn't what they tell us
down there." I said, "What's down there? What do you
mean?" And she said, "Well, they say down there it's the union,
is the reason we haven't gotten work." And I said, "Well, that
doesn't have anything to do with it; but if it did, Mr. Wilson
and Mr. Daugherty should be sorry that they are beating you
out of this work."
Upon the basis of the entire record, we find, as did the Trial Ex-
aminer, that Wilcox made the statements substantially as attributed
to him by Hess, and thereby intimated to her that the union meet-
ings were under surveillance by the respondent and that, if the em-
ployees abandoned interest in the Union, work opportunities would
increase, but otherwise they would fall off.
F. M. STAMPER COMPANY 311
After the - supply of eggs in storage at Moberly had been ex-
hausted, the drier was dependent on current intake. The capacity of
the drier , however, was greater than could be supplied by the number
of eggs available in the Moberly area. It was therefore necessary
to increase the supply at Moberly by bringing in either shell eggs or
eggs in liquid form from outside. The respondent decided to trans-
port liquid eggs from its plant at Macon, Missouri , which already
had its own candling equipment . A breaking room was thereupon
opened and equipped at the Macon plant , and a refrigerator truck
was repaired at the cost of $1,000 for transporting the liquid eggs
to Moberly . On February 16, 1942, the respondent started breaking
eggs at Macon. At the same time, the respondent discontinued its
poultry operations at the Macon plant, transferred the 15 or, 20 poul-
try workers to egg breaking , and hired a sufficient number of new
employees to enable it to operate 9 tables . From then on, all eggs
from the Macon territory were candled and broken at the Macon
plant, and then transported in liquid form to the Moberly plant for
drying.
On February 18, 1942, the respondent laid off 46 additional em-
ployees at the Moberly plant as follows : 18 from the egg-breaking
room; 13 from the candling department ; 6 from the transfer room;
and 9 from the poultry picking room. In April 1942 the Govern-
ment changed its specifications for the processing of egg powder by
requiring all eggs to be precooled before broken . Under the condi-
tions existing at Moberly , the required precooling took 3 days. The
quantity of eggs sufficient to run the breaking crew for 3 days filled
all the coolers which theretofore had been used for poultry. Con-
sequently , although a new boiler was installed in the Moberly plant
and put into operation on July 10, 1942 , the respondent was unable
to resume poultry operations until the early part of November when
the eggs no longer required artificial refrigeration. At that time the
respondent offered reemployment to all employees who had been laid
off in February , and approximately 30 accepted.
2. Conclusions
(a) As to interference, coercion , and restraint
From the very outset of the Union 's organizational campaign in
October 1941, the respondent manifested its opposition to the self-
organization of its employees and its - determination to defeat the
Union's efforts. The respondent arranged for informers to attend,
on its behalf , the first organizational meeting of ' the Union and to
report as to who was present and what transpired. By the statements
of Manager Wilcox and Forelady Palmer, at Wilcox's direction, in
November 1941, the respondent made clear to the employees its opposi-
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to the Union and represented to them that affiliation with the
Union would bring no benefits commensurate with the disadvantages
of having to pay dues and of risking involvement in strikes, that the
Union was making false representations to them as to there being a
difference in the wage scale between the St. Louis and Moberly plants,
that the St. Louis plant had been organized through fraud, and that if
the Union succeeded in organizing the employees the respondent would
shut down its plant. At the same time Foreman Miller enlisted the
services of employee Asbury in the respondent's campaign against the
Union, warning that the plant would close down if the Union were not,
stopped. When these activities led to charges of unfair labor prac-
tices, the respondent posted notices specifically agreeing to "live up to
the spirit as well as the letter" of the Act, but to all intents and purposes
nullified any corrective effect which such action might have had, by
Wilcox's statements to its employees that the posting of the notice
"didn't mean anything," was a mere expedient formality, and repre-
sented no change in the respondent's attitude. During the very period
that the notices were being posted, the respondent, by Foreman Miller,
brought to the attention of its employees the news story in the Globe-
Democrat reporting the arrest of the union organizers on charges of
disturbing the peace, and characterized them and the Union in deroga;
tory terms.
When, after a period of dormancy, there were indications of renewed
interest in the Union in the latter part of January 1942, Wilcox also
solicited Asbury's aid against the Union. Shortly after the first mass
lay-off of February 2, the "respondent, by Wilcox and Miller, instigated
a counter-campaign by employees known td be hostile to the Union,
and encouraged, bonnived at, and assisted in the circulation among its
employees, for their signatures, of a pledge of loyalty to the respondent
that carried, and was intended to carry, the inference of disapproval of
the Union. The respondent took further steps to check up on the
extent of the interest shown in the Union by its employees. During
the period between the lay-offs of February 2 and February 18, Wilcox
told a number of laid-off employees, in substance, that the Union was
responsible for the lay-offs, that abandonment of the Union would
result in an increase of work at Moberly whereas less work would be
available if union interest continued; disparaged the union organ-
izers; made known to them that the union activities were under sur-
veillance; and warned that it was not necessary for the respondent to
employ them in order to keep the drier running because the respondent
could break the eggs in its other houses and then bring them to Moberly.
Upon the entire record, we find, as did the Trial Examiner, that the
respondent engaged in a course of conduct which was designed to, and
did in fact, interfere with, restrain, and coerce its employees in the
F. M. STAMPER COMPANY 313
exercise of the rights guaranteed in Section 7 of the Act 19 The re-
spondent contends that the Board is precluded from considering so
much of the foregoing conduct as occurred prior to the settlement
agreement of November 27, 1941. There is no merit to this contention
since the respondent violated both the implied and express provision
of the agreement requiring it to discontinue its unfair labor practices.
(b) As to the February lay-offs
The issue relative to the February lay-offs was limited by stipu-
lation to the question of whether the lay-offs as a whole were effected
for the purpose of discouraging organizational interest among the
employees of the Moberly plant. No issue was raised as to whether
these lay-offs were individually discriminatory. The lay-offs were
due to the respondent's suspension of its poultry department caused
by the failure of the boiler to supply sufficient steam for the poultry
and egg-drying operations, and to a sharp reduction in the number
of employees in the egg-drying operations. The occasion for the large
pay roll from January 20 to 30, 1942, was the emergency created by
the necessity of fulfilling a Government penalty contract within a
period of 11 days. With the completion of the Government contract
on January 30, there was clearly no longer any need for so large a
pay roll. Upon the entire record, we are convinced and find that the
lay-offs of February 2 were motivated solely by economic consider-
ations, as counsel for the Teamsters in effect conceded in his oral
argument before the Board at Washington, D. C.
A more difficult question is presented by the February 18 lay-offs
in the breaking department. The Union contended that the respond-
ent opened a breaking room and commenced breaking operations
at the Macon plant in order to limit the amount of work available at
Moberly, thereby causing the February 18 lay-offs in the breaking de-
partment. The respondent contended that its decision to break the
eggs at Macon and transport them to Moberly in liquid form rather
than to transport them in. shell form for breaking at Moberly, was
grounded on economic factors. In support of this position, witnesses
for the respondent testified, without contradiction, (1) that the Mo-
berly facilities were inadequate to handle a larger number of egg-
breaking employees; (2) that to transport shell eggs to Moberly
would require a double candling operation, since the State law re-
quired candling of eggs at the point of concentration (which was
Macon) and FSCC required candling at the place of breaking; (3)
1° The complaint alleged that the respondent also violated the Act by granting pay
increases to its employees calculated to interfere with, thwart , and obstruct the organiza-
tional efforts of its employees . We find that there is no evidence in the record to support
this allegation. '
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that to use Moberly as a point of concentration would have imposed
a hardship on the Macon employees, because there would have been
no need for the 25 candlers employed at the Macon plant; (4) that the
cost of transporting shell eggs, is slightly more than for liquid eggs;
and (5) that the transportation of shell eggs directly to Moberly
would have disrupted the territorial and management relationship
existing at Macon.
It is clear that during the period from January 20 to 30, 1942, the
respondent operated at Moberly under emergency conditions. Will
Fleming, the respondent's treasurer, testified that shortly after the
commencement of egg-breaking operations at Moberly, the plant was
visited by two Federal inspectors who told him orally that "the-break-
ing room was entirely too crowded, there were too many breakers in
there for the size and condition of the room" and that the toilet
facilities were "inadequate." Although the written report submitted
by the Federal inspectors made no mention of the crowded condition
in the breaking room, it did recommend, among other things, that
the respondent should provided "adequate toilet facilities," "adequate
washing facilities, and an ample supply of hot water." Moreover, a
report from the State Department of Agriculture, dated August 20,
1942, and made at a time when the egg-breaking personnel and oper-
ations had already been reduced, stated that "the breaking room at
Moberly . . . is crowded." With respect to the respondent's other
contentions, the record shows the following : The Macon plant had
been in operation since 1922, and the number of eggs purchased at
Macon was about equal to that purchased at Moberly. The manager
of the Macon plant had a contractual profit-sharing interest in main-
taining the plant as a going concern. For many years the truck
drivers had covered specified routes throughout the Macon territory,
called upon their customers regularly and returned each day to the
Macon plant where all records pertaining to the Macon business were
kept. The Macon plant had always been used as the point of con-
centration for the Macon territory. To have transported the shell
eggs to Moberly without changing this arrangement would have
required that the eggs be candled at Macon and again at Moberly at an
additional expense. To have transported the shell eggs directly from
the Macon producers to Moberly would not only have resulted in the
discharge of the Macon candlers but would have required each truck
driver to make an additional daily round trip ranging from 23 to 46
miles. Moreover, the evidence shows that the respondent followed the
same procedure at its other houses as it did at Macon. Thus, on those
occasions when more eggs were required than both. the Macon and
Moberly territories could furnish, the respondent supplied such eggs
from its other houses at Chilicothe, Boonville, Kansas City, and
F. M. STAMPER COMPANY 315
Omaha, where the eggs were broken and then transported in liquid
form to Moberly. It would appear from the above -outlined facts that
there is considerable merit to the respondent 's position.
On the other hand there is other evidence in the record which renders
the respondent 's asserted reasons open to grave suspicion . Thus, it is
significant to note that there was no union at Macon; that the respond-
ent had never broken eggs at Macon;.that it hired inexperienced egg
breakers at Macon, while it laid off experienced egg breakers at Mo-
berly without even giving them an opportunity to work at Macon,
which was 23 miles away ; that the respondent was curiously uncon-
cerned about the hardship imposed upon the Moberly egg breakers;
and that in a letter dated January 31 , 1942, Treasurer Fleming told
President Stamper that the cost of transporting liquid eggs would be
about the same as that for shell . Moreover , whereas in 'the service
letters given to the laid-off employees , insufficient steam was noted as
the reason for the lay-offs of poultry pickers and egg breakers; at the
hearing the respondent contended that lack of eggs in the Moberly
territory was the chief reason for the lay -offs of the egg breakers.
Finally, there is Manager Wilcox's warning to Corinne Hess shortly
prior to the February 18 lay-offs that, if the employees continued their
interest in the Union, the work at the Moberly plant would fall off and
that the respondent would break the eggs in its other houses. This
warning, however , loses a great deal of its significance in view of the
fact that Wilcox also attributed to union activities the February 2
lay-offs, which we have found , and the Teamsters have conceded, to be
based on economic considerations.
While the matter is not entirely free from doubt , we feel, upon
the basis of the record before us , that the evidence is insufficient to
warrant a finding ( 1) that the curtailment of operations at Moberly
and the opening of egg-breaking operations at Macon were not moti-
vated by economic factors and ( 2) that they were prompted by a
discriminatory purpose. Upon the entire record, we find that the
allegations of the complaint that the respondent laid off the employees
listed in Appendix "A" attached to the complaint , reduced its opera-
tions at its Moberly plant, and diverted production therefrom to dis-
courage membership in and activities on behalf of the Union, are not
established by the evidence.
C. The refusal to reemploy Mrs. Ora June Archer
Mrs. Ora June Archer was first employed by the respondent on
August 8, 1941. She worked in the poultry department, and was
laid off on December 19, at the end of the Christmas poultry season.
In January 1942, when the plant was hiring egg breakers, she applied
for work in company with Mabel Perkins. Perkins was given em-
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment but Archer was not.20 Clyde Miller testified that, during
the period of her previous employment, Archer had worked very
irregularly, which either slowed up production on the line or made it
necessary to transfer a worker from some other department, and he
had made up his mind that he was not going to reemploy her. Wilcox
testified : "The way I remember Mrs. Archer, she came sometime in the
fall of 1941 and two or three times Clyde Miller, who was her foreman,
mentioned to me that she wasn't there, that he couldn't depend on her
being there, and I said, `Just put up with it and when this season is
over, just forget that she ever worked here.' As I explained earlier,
we had a policy that we never did fire anybody. We did have a policy
that if we got someone in one of those seasons, and when the lay-off
came, if they hadn't been entirely satisfactory we wouldn't put them
back again:"
The record indicates that Archer was sometimes absent from work,
and that, on the days she reported for work, the number of hours that
she worked was irregular. She admitted that it took a certain number
of women to balance the chain line when poultry was being processed,
and that the absence or premature departure of a worker threw the
line out of balance.
Referring to the period of her employment, Archer testified, "I was
off about 3 or 4 days on a trip, but that was my fault ...' I took a
trip back to Ohio." She further testified, however, that as soon as
she returned to Moberly she went back to work and explained to the
Company why she had been off , and that nothing was said to her
about it. She testified also that the variations in the daily hours
worked corresponded to the amount of work available each day, and
that she did not recall ever leaving before the pickers were dismissed;
that she had received no complaints about her being off from work;
and that she had taken one afternoon off, with Miller's permission,
to attend a funeral, but did not remember any other absences except
the trip to Ohio. The respondent's time-card records established that
she worked fewer hours on several occasions than other employees who
were then working. But it is not at all clear from the record that,
with the exception of the time she went to Ohio, Archer was ever
absent from the plant without permission. The record further fails
to show that she was ever warned, reprimanded, or otherwise dis-
ciplined for doing so or for failing to report to work without per-
mission.
"Mrs . Archer testified that she talked to Foreman Miller personally , that he told her
to go home and stay until he sent for her, and that at the same time he told Perkins to "get
her apron on and go to work." Miller testified that, at the time in question , "every
morning there would be a bunch" at the plant looking for work, that he saw Archer in the
crowd and did not hire her, but had no direct conversation with her. Upon the basis of
the entire record , we, like the Trial Examiner, credit Archer's testimony.
F. M. STAMPER COMPANY 317
Archer had attended the union organizational meeting on October
27, 1941, and had signed an application for membership in the Union.
Although Miller denied knowledge of Archer's union affiliations, we,
like the Trial Examiner, do not credit his denial . He was present in
the respondent 's office on the evening of October 27 when a full report
of the union meeting was given to the respondent 's officials , and Archer
was specifically named as one of the employees who attended the
meeting and signed an application for membership in the Union.
On the basis of the record , we would not be persuaded of the dis-
criminatory character of the respondent's refusal to reemploy Archer
in January 1942, if the question had then been one of the selection of
a permanent employee. The situation at the plant when she applied
for work was , however, exceptional in that there was a temporary
premium on workers to the extent that the respondent was hiring new
and inexperienced help which had to be trained on the job. The
record casts a doubt on Archer's dependability from the standpoint
of attendance but is far from showing that she was an undesirable
employee. Furthermore , the record affords no real basis for com-
parison between Archer's attendance record for the season and that
of other employees who were hired in January . We have given careful
consideration to Wilcox 's testimony that Miller had discussed Archer's'
case with him prior to the close of the 1941 season for picking poultry.
But Miller 's own testimony in support of his complaint against Archer
is not convincing . His incredible denial that he had any knowledge
of Archer 's union affiliation tends seriously to impeach the credibility
of other phases of his testimony . On the whole record herein, we
find, as did the Trial Examiner, that the respondent refused reem-
ployment to Archer in ' January 1942 because of her union membership
and activities , thereby discouraging membership in the Union, and
interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. The termination of employment of Roy H. Asbury
Asbury worked for the respondent continuously from the fall of
1936 until his employment was terminated on or about October 10,
1942. Edna Ruth Asbury, his wife, joined the Union shortly after
it started organizing at Moberly , and remained active until she was
laid off on February 18, 1942. Asbury did not join. On the con-
trary, he attended the first organizational meeting as an emissary of
the respondent ; reported on the happenings at the meeting ; under-
took, at the respondent 's request , to dissuade his fellow employees
from affiliating with, and to get his wife to quit, the Union; and was
one of the group that originated and canvassed for signatures to the
"loyalty pledge."
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• After the installation of the drier, Asbury was put in charge of
operating it on his shift. About the time of the second lay-off in
February, his shift was changed from the hours 11 p. m. to 7 a. in.,
to the hours 7 a. m. to 3 p. in. A few days after the change, he was
summoned to Wilcox's office and reprimanded for being under the
influence of liquor the last night that he had worked on the night shift.
He thereafter continued to work on the day shift until August, when,
on the complaint of the other operators, they were all put on rotating
shifts.
On or about October 10, Wilcox again sent for Asbury and told him
that reports had reached him that he was drinking again. Wilcox
further told him that work on the drier was slowing down for the
season, and suggested that he look for another job. Asbury there-
upon stated that he was quitting. He was paid off at once and never
returned to the plant.
Asbury's relation to the Union was consistently indifferent and, if
not personally hostile to the Union, he was at least acquiescent in his
role of informer and anti-union propagandist. His wife's affiliation
with the Union was not shown to be a factor in terminating his em-
ployment. , Mrs. Asbury had been laid off in February 1942, and she
testified that she had since found permanent employment elsewhere.
Whether or not the respondent was justified in discharging Asbury
would, on the basis of anything appearing in the record herein, have
no significance from the standpoint of its effect on encouraging or
discouraging union membership. We find, as did the Trial Examiner,
that there is no support in the record for so much of the complaint
as alleges that the respondent discharged Asbury and thereafter
refused to reinstate him in order to discourage membership 'in and
activities on behalf of the Union.
E. Statements attributed to Walker Duvall
Mrs. Mae Walker testified that, for 3 or 4 days after the February
18 lay-offs, Walker Duvall exercised supervisory authority over the
employees in the transfer room, during which time he made numerous
derogatory remarks about her on account of her affiliation with the
Union, accused her of being responsible for 190 women being laid
off, and stated that "we've gotten rid of all the union girls but one,
and I think I will soon get rid of her," referring to the witness. There
is no evidence as to Duvall's supervisory authority other than Mrs.
Walker's testimony that Duvall so claimed and that Hobart Wheeler,
another employee in the transfer room, confirmed his claim., Mrs.
Walker testified that she made no complaint against Duvall either
to Clyde Miller or to Wilcox but did report Duvall's conduct to the
Board.- Clyde Miller testified that Duvall had never had any super-
F. M. STAMPER COMPANY 319
visory authority and that he had never heard of his claiming any.
Wilcox testified that he had had a visit from a Field Agent of the
Board who "kept wanting to know about this `foreman Walker
Duvall;"' that he could not understand to whom he was referring
until he learned from the employees in the transfer room that Duvall
and Wheeler had been playing pranks on Mrs. Walker; and that
he had ordered them to stop bothering her. We find, as did the Trial
Examiner, that Duvall was never a supervisory employee of the re-
spondent, that the respondent first learned of his claim of authority
in the manner that Wilcox described, and that the respondent was
not responsible for the acts and statements attributed to Duvall by
Mrs. Walker.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged'in and is engaging
in unfair labor practices, we shall order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
We have found that the respondent has discriminated with regard
to the hire and tenure of employment of Ora June Archer, because of
her membership in and activities on behalf of the Union. We shall
order that the respondent make the said Ora June Archer whole for
any loss of pay she has suffered by reason of the respondent's discrim-
ination against her, by payment to her of a sum of money equal to the
amount she normally would have earned as wages from the date of
the discrimination to whichever of the dates, February 2, 1942, or
February 18, 1942, she should have been subject to lay-off in the order
of her seniority, less her net earnings 21 during that period.
"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 subsequent necessity of his seeking employment elsewhere. See
Matter, of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B 440. Monies
received for work performed upon Federal, State,' county, municipal, or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v N. L. R. B.,
311 U. S. 7.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Amalgamated Meat Cutters and Butcher Workmen of North
America, affiliated with the American Federation of Labor, 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 Ora June Archer, and thereby discouraging membership in
Amalgamated Meat Cutters and Butcher Workmen of North America,
affiliated with the American Federation of Labor, 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 under 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.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act with respect to Roy H.
Asbury or the lay-offs between January 31 and February 21, 1942.
6. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1) of the Act, by granting pay increases to
its employees calculated to interfere with, thwart, and obstruct the
organizational efforts of its employees.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
F. M. Stamper Company, Moberly, Missouri, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, affiliated with the American
Federation of Labor, or any other labor organization of its employees,
by refusing to reemploy any of its employees, or by discriminating in
any other manner' in regard to their hire or tenure of employment or
any term or condition of their employment;
(b) In any manner employing espionage for the purpose of ascer-
taining, investigating, or interfering with the activities of its em-
F. M. STAMPER COMPANY 321
ployees on behalf of Amalgamated Meat Cutters and Butcher Work-
men of North America, affiliated with the American Federation of
Labor, or any other labor organization of its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights 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 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) Make whole Ora June Archer for any loss of pay she has suf-
fered by reason of the respondent's discrimination against her, by pay-
ment to her of a sum of money equal to the amount which she normally
would have earned as wages from the date of the respondent's dis-
crimination against her to whichever of the dates, February 2, 1942,
or February,18, 1942, she would have been subject to lay-off in the
order of her seniority, less her net earnings during said period;
(b) Post immediately in conspicuous places throughout its plant
at Moberly, Missouri, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
,which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c) of this Order; (2) that the respondent will take the affirmative
action set out in paragraph 2 (a) of this Order; and (3) that the
respondent's employees are free to become and remain members of
Amalgamated Meat Cutters and Butcher Workmen of North America,
affiliated with the American Federation of Labor, or any other labor
organization, and that the respondent will not discriminate against
any employee because of his membership or activity in such
organization ;
(c) 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 IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section 8 (3) of the Act with respect to
the lay-offs between January 31 and February 21, 1942, and the ter-
mination of the employment of Roy H. Asbury, and that the respon-
dent violated Section 8 (1) of the Act by granting pay increases to its
employees calculated to interfere with, thwart, and obstruct the organ-
izational efforts of its employees, be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and, Order.
567900-44-vol. 54-22