Fairmont Creamery Co.

National Labor Relations Board - Board Decisions

Nov 15, 1945

64 N.L.R.B. 824 (N.L.R.B. 1945)

In the Matter of FAIRMoNT CREAMERY Co31PANY and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NoRTH AMERICA, LOCAL
No. 142, A. F. of L.
Case No. 18-C-1085.-Decided November 15, 1945
DECISION
AND
ORDER
On May 14,1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set' forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the respondent
had not engaged in unfair labor practices in discharging or refusing
to reinstate J. W. White on November 24, 1944, and in laying off Leo
Keller and Verne Ober on December 30, 1944, and recommended that
in this respect the complaint be dismissed as to them. Thereafter, the
respondent filed exceptions to the Intermediate Report and a support-
ing brief. On October 9, 1945, the Board heard oral argument at
Washington, D. C. The respondent and the Union appeared by coun-
sel and participated in the argument.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the 'Intermediate Report, the
respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the modifications and additions hereinafter
set forth.
1. The Trial Examiner found that the respondent violated Section
8 (1) of the Act by admittedly questioning its employees concerning
their union affiliation, and by Personnel Director Evinger's mislead-
ing statement to employee Ambrose, on the Sunday following the
commencement of the strike, that "everybody was going back to work
Monday morning" in order to induce her to abandon the strike. We
agree and so find.'
' Matter of Ltbbey-Owens -Ford Glass Company, 63 N. L . R. B. 1.
64 N. L. R B., No. 144.
824
FAIRMONT CREAMERY COMPANY 825
2. The Trial Examiner found that the respondent refused to rein-
state 15 named strikers, who applied for work upon the termination
of an economic strike, because of their union and concerted activity
in engaging in the strike, and thereby discriminated in regard to their
hire and tenure of employment in violation of the Act. We agree for
the reasons herein set forth.
The economic strike commenced on November 18, 1944, and termi-
nated on November 22, 1944. The strikers applied for reinstatement
on the next work clay, November 24.2 Although conceding that the
strikers in question were not replaced during the strike, the respondent
defends its failure to reinstate them on the ground that there was no
work available for them. We find no merit in this contention.
The record discloses that for the week ending November 18, 1944,
the date of the commencement of the strike, the respondent received
at its Webster City plant a total of 113,982 pounds of poultry and
turkey, and maintained a staff of 75 employees to perform the necessary
processing operations. Since the record also shows that for the week
immediately following- the strikers' application for reinstatement,
namely, the week' ending December 2, 1944, the respondent received
147,694 pounds of unprocessed poultry and turkey, there can be no
question but that sufficient work was available after the termination
of the strike for all the striking as well as the 18 non-striking em-
ployees. Moreover, on November 21, only 2 business days before
the strikers applied for reinstatement, the respondent, in effect, recog-
nized that there would be ample work for all the strikers on their
return. Thus, in an affidavit executed that day by Plant Manager
Iverson, upon which the respondent sought and obtained an injunc-
tion against picketing, Iverson asserted that the respondent had com-
mitments for that week of 4,000 turkeys and 20,000 chickens,3 and
approximately the same amount per week until the end of the year,
and that the respondent maintained a pay roll of between 80 to 90 per-
sons, all of whom "would be at work" if the injunction were granted.
According to Iverson's testimony at the hearing before the Trial
Examiner, the weekly commitments were equivalent to approximately
75,000 pounds of turkey and 80,000 pounds of chicken or a total of
155,000 pounds.
2 November 23 was a Thanksgiving holiday.
3 Iverson testified that the 15 strikers were denied reinstatement because work was not
asailable for them. When questioned at the hearing before the Trial Examiner as to what
happened to the commitments mentioned in his November 21 affidavit , Iverson testified that
the turkeys were cancelled on November 20 and 21, but that chicken purchases were
reflected in the receipts for the week ending December 2. However , the respondent's
records show that 59 ,920 pounds of turkey were also delivered at the plant during that
week . Under all the circumstances , and in view of the credible evidence to the contrary,
which we accept , we are not convinced and cannot credit Iverson 's testimony that the
turkey commitments were cancelled and that at the time of the strikers ' application for
reinstatement there was Insufficient work for them.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, in addition to its commitments and receipts for the
week ending December 2, the record shows that the respondent had
on hand on November 24 a supply of unprocessed poultry and turkeys.
It also appears from the record that, during slack periods in processing,
employees are customarily assigned to miscellaneous jobs such as wash-
ing batteries, walls, windows, and cans. Since it is conceded that the
respondent employed only about 18 employees during the strike and
that 57 employees were on strike, it is apparent that the respondent
could have furnished employment to all the strikers when they applied
for work. Nevertheless, the respondent deliberately refused to do so,
but instead, after personally interviewing each striker on November 24,
selected only 41 of them for reinstatement. Nor did the respondent
give any explanation for hiring, from November 26 to November 30,
1 new employee in the packing department and 3 in the shipping de-
partment, although there were non-reinstated strikers qualified to
perform this work.
In view of all the foregoing facts, we are convinced, and, find, that
work was available for all the strikers who applied for reinstatement
and that the respondent's failure to reinstate the striking employees on
the date of their applications,' was motivated not by any curtailment
of seasonal operations, but rather by a desire to penalize them for en-
gaging in the union and concerted activity of striking.-5
The strike in which the respondent's employees participated was a
concerted activity for the purpose of their mutual aid and protection.
The right to engage in such activity is guaranteed to employees in
Section 7 of the Act. We find that the respondent, by failing to re-
instate the strikers on the date of their applications, interfered with,
restrained, and coerced the employees in the exercise of their rights
guaranteed in Section 7 of the Act, and thereby violated Section 8 (1)
of the Act. We find further that the respondent's conduct in thus
discriminating in regard to the hire and tenure of employment of the
striking employees discouraged membership in the Union and hence
also constituted a violation of Section 8 (3) of the Act. Whether
the respondent's discriminatory conduct be viewed as a violation of
Section 8 (1) or a violation of Section 8 (3), we find that the effectua-
tion of the policies of the Act requires the remedy set forth below.'
"Our findings are also applicable to employee Mix, who applied for reinstatement on
November 27, 1944.
Our finding , however , is not to be construed as a determination that at all times subse-
quent to the strikers ' original application for reinstatement , work was available for all the
strikers , or that after reinstatement the respondent , absent a discriminatory motive, could
not have laid off any of the strikers for economic reasons, or that the strikers are entitled
to back pay for periods in which they normally would not have worked in the respondent's
plant.
6In view of our determination herein, we find it unnecessary to consider whether to
adopt or reject the Trial Examiner 's alternative finding that the respondent violated the
Act by not considering the 18 non -strikers for lay-off.
FAIRMONT CREAMERY COMPANY 827
3. The respondent 's subsequent conduct with respect to some of the
strikers who had been denied reinstatement upon their original ap-
plication , is further violative of the Act. According to the uncontra-
dicted testimony , which we credit , the respondent promised.to recall
Goodrich , Evelyn L. Keller, Evelyn M. Keller, and Downs, when.
needed; and Mix and Whiteaker , when more poultry was received.7
Notwithstanding such promises , and without first offering any posi-
tions to these strikers , the respondent hired 23 new employees from
November 26, 1944 to March 31, 1945 , to fill jobs practically all of
which these strikers were fully qualified to perform ." As stated in the
Intermediate Report, no evidence was adduced to show that any of
these jobs required particular skill or training ; on the contrary, the
record affirmatively discloses that the work in the egg department
required no experience.
Moreover , we find, as did the Trial Examiner, that a practice pre-
vailed at the plant whereby employees have been transferred to dif-
ferent jobs and from department to department as the character of
the season changed. The respondent offered no satisfactory explana-
tion for its failure to recall these strikers in fulfillment of its earlier
promise to do so, before hiring new employees, although in March
1945, the respondent also advertised for help in a local newspaper.
Under these circumstances , we are of the opinion, and find, that the
respondent - f ailed and refused to recall Goodrich , Evelyn L. Keller,
Evelyn M. Keller, Downs, Mix, and Whiteaker , because of their par-
ticipation in the union and concerted activity of striking , and thereby
independently violated not only Section 8 (1) but also Section 8 (3)
of the Act.'
7 Goodrich , Evelyn L. Keller, and Downs testified that the respondent told them on or
about November 24 and December 1, 1944, and January 1945 , respectively , that they would
be recalled when needed . Evelyn M. Keller testified that the respondent informed her
that if it needed more help it would call her in a week Whiteaker and Mix testified that
on November 24 and 27, respectively , they were told that they would be recalled when
the respondent received more poultry.
8 See the following table :
Date employed
Number of
new em-
ployees Department
hired
Nov 26----------------------------------------------- 1 Packing
Nov. 26, 27, 30-------------------------------------------
Jan 10 and 15----------------------------------------- 5 Shipping
Dec 19 and Jan 14---------- ------ 2 Engineering
Dec. 7, Mar 27 and 31----------------------------------- 3 Receiving and Feeding
Jan 29 to Mar 27,ine1-------------------------------- 12 Egg breaking.
8Matter of Wilson C Co, Inc, 123 F. (2d) 411 (C. C. A. 8), enf'g as modified 26
N. L. R. B . 273; and Matter of Kokomo Sanitary Pottery Corporation, 26 N. L. R. B. 1.
In the Wilson case, the United States Court of Appeals for the Eighth Circuit sustained
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to employee Weedman's uncontraclicted testimony, which
we credit, the respondent told him, at the time of his original applica-
tion for reinstatement, to return the "first of the week," and that when
he accordingly applied for work on the following Monday, November
,297, he was informed that none was available because of the seasonal
slack. Yet the record shows that on November 27, the very same
day on which he was denied reemployment, the respondent hired a
new employee for work in the shipping department, a job which it
appears, he was qualified to perform. Thus, on November 27, Weed-
lnan was at least in the position of a new applicant for employment
and the respondent was under the statutory duty to treat his appli-
cation without discrimination.10 This, the respondent failed to do.
We find that the respondent refused to reemploy Weedman on
November 27 -because of his participation in the union and con-
certed activity of striking, and thereby independently violated not
only Section 8 (1) but also Section 8 (3) of the Act.
4. The respondent contends, on several grounds, that the employees
involved herein engaged in unlawful concerted activity and, there-
fore, forfeited their right to the protection of the Act. For the reasons
,11fully set forth in the majority opinion in the Republic Steel case
we find no merit in the respondent's contention that, because the strike
was called without notice of a labor dispute first having been given
as required by the War Labor Disputes Act,12 the strikers were not
entitled to the protection of the Act. With respect to the other
grounds urged by the respondent, we concur in the Trial Examiner's
determination that they are without merit, as fully set forth in the
Intermediate Report attached hereto.13
5. We agree with the Trial Examiner that the respondent discrimi-
nated in the hire and tenure of employment of Mae Ambrose, and
we accept his recommendation awarding her back pay. The respond-
elit's foreman, Van Winkle, discriminatorily transferred Ambrose
to work which was injurious to her health and hence intolerable.
Under these circumstances, we find that Ambrose was compelled by
the Board 's order of reinstatement of an employee who, although she was informed by
the employer when she applied for work after a general lay-off that she had as good a
chance as any and that he would notify her when work started in the egg breaking room,
was never recalled and the employer , instead, hired other inexperienced help. The Court,
observing that the employee was a member of the C. I. O. and had worn a union button
on her uniform at work, stated that "Failing to call her after having promised to do so,
with the other circumstances which the Board had before it, warranted , we think, the
finding of diselimination because of her union affiliations ." ( at page 416).
'o Phelps Dodge Corporation v. N. L. R B., 313 U. S. 177.
" Matter of Republic Steel Corporation (98" Strip Mill ), 62 N L R . B. 1008. Mr.
Reilly, dissenting , held, however, that only the officers of the striking union , who fail to*
file the appropriate notice, are deprived of the protection of the Act.
12 57 Stat. 163
is Nor does the nature of the strikers ' conduct impel us, in the exercise of our discretion,
to deny them the relief herein granted.
FAIRMONT CREAMERY COMPANY 829
the nature of the work, which was discriminatorily assigned to lien,
to terminate her employment 14
V. THE REMEDY
Having found that the respondent has violated Section 8 (1) and
(3) of the Act, we must order the respondent, pursuant to the man-
date of Section 10 (c) to cease and desist therefrom. Our cease and
desist order is also predicated upon the following findings: The
respondent's illegal conduct discloses a purpose to defeat self-organi-
zation among its employees and its objects. For example, the
respondent has interrogated its employees concerning their union
affiliation, and attempted to induce them to abandon the rights.guar-
anteed under the Act. Finally, the respondent actually penalized
the strikers involved herein for their organizational and concerted
activities, by discriminatorily refusing them employment upon and
after termination of the strike. Such discrimination, in the language
of the Circuit Court of Appeals for the Fourth Circuit, "goes to the
very heart of the Act." 15 Because of the respondent's unlawful con
duct and its underlying purpose, we are convinced that the unfair
labor practices found are persuasively related to the other unfair
labor practices proscribed and that danger of their commission in
the future is to be anticipated from the respondent's conduct in the
past.16 The preventive purposes of the Act will be thwarted unless
our order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantee of Section 7, to prevent a recur-
rence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the pol-
icies of the Act, we shall order the respondent to cease and desist from
in any manner infringing upon the rights guaranteed in Section 7
of the Act.
We shall also order the respondent to take certain affirmative action
designed to effectuate the policies of the Act. Having found that the
respondent discriminated in the hire and tenure of employment of
certain employees, we shall order the respondent to offer the em-
ployees not heretofore reemployed, Immediate and full reinstatement
to their former or substantially equivalent positions, or, if such posi-
tions are unavailable, to work which they are capable of performing,
without prejudice to their seniority and other rights and privileges.17
" Matter of Texas Textile Mills, 58 N. L R B. 352 ; Matter of Palm Beach Broadcasting
Corporation , 63 N. L B. B 597.
'IN. L. R B v. Entwistle Manufacturing Co., 120 F. ( 2d) 532. 536 (C. C. A. 4). See
also N. L . R B v. Automotive Maintenance Machinery Co., 116 F. ( 2d) 350, 353 ( C. C. A. 7).
16 See N. L . R. B. v. Express Publishing Company, 312 U. S. 426.
17 The record discloses that Ambrose was reinstated on May 15 , 1944 , Leo Keller and
Ober on or about December 1, 1944, and Mix on March 2, 1945.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, since the respondent's business is seasonal and its opera-
tions vary as to the character of the season changes, it is possible that
sufficient jobs may not be available for all the employees at the time
such offer of reinstatement is made. Therefore, those employees
presently working for the respondent who were not in the respondent's
employ on the date of the strikers' original application for reinstate-
ment, and those employees presently working who, although they were
in the respondent's employ at the time of such application, had subse-
quently quit or been discharged for cause, shall, if necessary, be dis-
missed by the respondent to provide employment for those employees
to be offered, and who shall accept, reinstatement. If, thereupon,
there is not sufficient employment immediately available for the em-
ployees who did not go on strike and for those to be offered, and who
shall accept, reinstatement, then all positions shall be distributed
by the respondent among the employees presently working, excluding
those dismissed, and the employees to be offered, and who shall accept,
reinstatement, in accordance with the respondent's usual method of
reducing its force, without discrimination against any employee
because of his union and concerted activity, following such a system
of seniority or other non-discriminatory procedure as has been here-
tofore applied by the respondent in the conduct of its business. Those
employees remaining after such distribution, for whom no employ-
ment is immediately available shall be placed on a preferential list,
with priority determined among them in accordance with such system
of seniority or other non-discriminatory procedure as has been here-
tofore applied by the respondent in the conduct of its business, and,
thereafter, in accordance with such list, employees shall be offered
reinstatement by the respondent to positions as provided above, as
such employment becomes available and before other persons are hired
for such work.
We shall also order the respondent to make the employees whole
for losses incurred because of the respondent's discrimination against
them. However, in making the employees whole, we shall not award
back pay for the periods in which they normally would not have
worked in the respondent's plant because of seasonal slack; nor shall
we deduct as earnings any money earned elsewhere during such
periods.
We also expressly reserve the right to modify the back-pay and
reinstatement'provisions if made necessary by a change of conditions
in the future, and to make such supplements thereto as may here-
after become necessary in order to define or clarify their application
to a specific set of circumstances not now appearing 18
"Cf . N. L. R. B. v. New York Merchandising Co., 134 F. (2d) 949 (C. C. A. 2) ; Inter-
national Union v. Eagle Picker Mining & Smelting Co., 65 S. Ct. 1166.
FAIRMONT CREAMERY COMPANY 831
The Trial Examiner recommended that the respondent offer Stone
reemployment. However, in view of the fact that Stone testified at
the hearing before the Trial Examiner that she did not desire rein-
statement, we shall not order, in the exercise of our discretion, that
the respondent offer her reinstatement. Under ordinary circum-
stances, we would, nevertheless, allow such an employee back" pay
from the date of the discrimination against her to the date upon which
she obtained other employment. Since the record, however, discloses,
and we find, that Stone failed to make any reasonable effort to obtain
any other employment, as required under our decision in the Ohio
Public Service case,19 until about February 15, 1945, when she regis-
tered with the U. S. Employment Service and obtained work at Solar
Aircraft Company, we shall, contrary to the Trial Examiner's
recommendation, deny her back pay.
The Trial Examiner also recommended that Norem (Mrs. Espey)
be denied back pay because she failed to make any effort to obtain other
employment. Since it is possible, however, that Norem has, since
the hearing herein, obtained or made a reasonable effort to obtain
other employment, or will do so hereafter, we shall deny her back
pay only for the period during which she wilfully incurred loss of
earnings. Accordingly, we shall order the respondent to make her
whole for any loss of pay she has suffered or may suffer because of the
respondent's discrimination against her, by payment to her of a sum of
money equal to the amount which she normally would have earned as
wages during the period from the date on which she obtained or shall
obtain other employment, or on which she may or shall make a reason-
able effort to obtain other employment to the date of the respondent's
offer of reinstatement, less her net earnings during such period.20
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Fairmont Creamery Com-
is Matter of Ohio Public Service Company , 52 N. L. R. B. 725.
20 The Trial Examiner recommended that Holtkamp and Urick be awarded back pay
because they registered with the U . S. Employment Service, made timely effort to obtain
other employment, or relied upon the respondent 's promise to recall them. However, there
is no evidence to support the basis of the Trial Examiner 's recommendation . Moreover,
the state of the record does not enable us to decide whether in accordance with the
principles set forth in the Ohio Public Service Company case , supra, Holtkamp and Urick
have wilfully incurred a loss of earnings . We shall not, however , require additional
evidence at this time , inasmuch as the parties may be able amicably to adjust the amount
of back pay due these employees upon the basis of facts disclosed when compliance with
our Order is undertaken . This is without prejudice to the respondent 's right, In the event
that this matter is not adjusted , to apply for leave to adduce additional evidence as to
whether Holtkamp and Urick have wilfully incurred a loss of earnings subsequent to the
respondent ' s discrimination against them . See Matter of C. D . Beck & Company, 63
N. L. R B. 1426.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany, Webster City, Iowa, and its officers, agents, successors and
assigns, shall:
1. Cease and desist from :
(a) Discouraging nienibership in Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 142, A. F. of L., or
any other labor organization of its employees, by discharging or re-
fusing to reinstate any of its employees or by discriminating in any
other manner in regard to their hire and tenure of employment, or
any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 142, A. F. of L., or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or protec-
tion, 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 Evelyn L. Keller, Robert Downs, Phyllis Kepler, Billy
Holtkamp, Clyde Weedman, Evelyn AT. Keller, Fay Goodrich, Dor-
othy Norein (Mrs. Theodore C. Espey), Harold Kepler, Kathleen
Urick, and Grace Whiteaker immediate and full reinstatement to their
former or substantially equivalent positions or, if such positions are
unavailable, to work which they are capable of performing, without
prejudice to their seniority and other rights and privileges, dismiss-
ing, if necessary, all employees in the manner set forth in our Deci-
sion, and place those for whom employment is not immediately availa-
ble upon a preferential list and offer them employment as it becomes
available in the manner set forth in our Decision ;
(b) Make whole Evelyn L. Keller, Robert Downs, Phyllis Kepler,
Billy Holtkamp, Clyde Weedinan, Evelyn Al. Keller, Fay Goodrich,
Harold Kepler, Kathleen Urick, and Grace Whiteaker for any loss
of pay they have suffered by reason of the respondent's discrinnina-
tion against them, by payment to each of them of a sum of money
equal to the amount which he or she normally would have earned as
wages from the date of the respondent's discrimination against hint
or her to the date of the respondent's offer of reinstatement or place-
ment upon the preferential list, less his or her net earnings during such
periods, in the manner set forth in our Decision;
(c) Make whole Dorothy Norem (Mrs. Theodore C. Espey) for any
loss of pay she has suffered by reason of the respondent's discrimina-
FAIRMONT CREAMERY COMPANY 833
tion against her, by payment to her of a sum of money equal to the
amount which she normally would have earned as wages from the date
on which she obtained or shall obtain other employment, or on which
she made or shall make a reasonable effort to obtain other employ-
ment, to the date of the respondent's offer of reinstatement or place-
ment upon the preferential list, less her net earnings during such
period, in the manner set forth in our Decision;
(d) Make whole Mae Ambrose, Leo Keller, Verne Ober, and Lucille
Mix for any loss of pay they have suffered by reason of the respond-
cut's discrimination against them, by payment to each of them of a
sum of money equal to the amount which he or she normally would
have earned as wages from the date of the respondent's discrimination
against him or her to the date of his or her reinstatement less his or
her net earnings during such period, in the manner set forth in out-
Decision; 21
(e) Post at its plant at Webster City, Iowa, copies of the notice
attached hereto, marked Appendix "A." Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon[ receipt thereof, or if the plant
is not in-full operation, immediately upon the resumption of full
operation, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced,
or covered by any other material;
(f) Notify the Regional Director for the Eighteenth Region (Mi n-
neapolis, Minnesota) in writing, within ten (10) days from the date
of this Order, what steps the respondent has taken to comply herewith.
(g) It is further ordered that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of J. W. White on
November 24, 1944, and of Leo Keller and Verne Ober on December
30, 1944.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
21 The Board expressly reserves the right to modify the back pay and reinstatement
provisions if made necessary by a change of conditions in the future, and to make such
supplements thereto as may hereafter become necessary in order to define or clarify their
application to a specific set of circumstances not now appearing.
670417-46-vol. 64-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Amalgamated Meat
Cutters and Butcher Workmen of North America, Local No. 142,
A. F. of L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
We will offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, or, if such positions are unavailable, to work which
they are capable of performing, in the manner set forth in the
Board's Decision, without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of the discrimination.
Evelyn L. Keller, Robert Downs, Phyllis Kepler, Billy Holt-
kamp, Clyde Weedman, Evelyn M. Keller, Fay Goodrich, Harold
Kepler, Kathleen Urick, and Grace Whiteaker.
We will offer Dorothy Noreen (Mrs. Theodore C. Espey) imme-
diate and full reinstatement to her former or substantially equiv-
alent position, or, if such position is unavailable, to work which
she is capable of performing, in the manner set forth in the Board's
Decision, without prejudice to any seniority or other rights and
privileges previously enjoyed.
We will make whole Mae Ambrose, Leo Keller, Verne Ober, and
Lucille Mix for any loss of pay suffered as a result of the dis-
crimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
FAIRMONT CREAMERY COMPANY
(Employer)
By -----------------------------
(Representative ) (Title)
Dated --------------------
FAIRMONT CREAMERY COMPANY 835
Nov : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in'accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Clarence A. Meter, for the Board.
Mr. Leonard A. Flansburg, of Lincoln, Nebr., and Mr. C. B. Evinger, of
Omaha, Nebr ., for the Respondent.
Mr. Kenneth Sowers, of Cedar Rapids, Iowa, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 142, A. F. of L., herein called
the Union, the National Labor Relations Board, herein called the Board, by
the Regional Director for the Eighteenth Region (Minneapolis, Minnesota),
issued its complaint dated March 23, 1945 , against Fairmont Creamery Company,
Webster City, Iowa, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 ( 1) and ( 3), and Section 2 (6) and ( 7) of the
National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of
the complaint and notice of hearing were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent : ( 1) warned and discouraged its employees against, and
questioned them concerning, union affiliation and activities; proscribed union
discussion or activities in its Webster City, Iowa, plant ; and, during a strike
lasting from November 18 to November 24, 1944, attempted to induce its
employees to return to work; (2) laid off 16 named employees, and refused or
failed to employ a 17th named employee in her former or equivalent position
during a specified period, because of their union and concerted activities ; and
(3) by the foregoing conduct, engaged in unfair labor practices within the
meaning of Section 8 (1) and (3) of the Act.
The Respondent in its duly filed answer to the Board's complaint, denied that
it had engaged in any of the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Webster City, Iowa, on April 5 and 6,
1945, before the undersigned, the Trial Examiner duly designated by the Chief
Trial Examiner. All parties were represented and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At the close
of the Board's case, the respondent moved to dismiss the complaint. The under-
signed denied the motion. At the conclusion of testimony, the Respondent
renewed its motion and the undersigned reserved ruling thereon. It is disposed
in the body of the Intermediate Report. Upon the conclusion of testimony the
undersigned granted, over Respondent's objection, the Board's motion to conform
the pleadings to the proof as to formal matters. Counsel for the Board and for
the respondent argued orally before the undersigned near the close of the hearing,
and have since filed briefs with the undersigned.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record thus made and front his obseivation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, Fairmont Creamery Company, is a Delawaie corporation
with its principal office in Omaha, Nebraska It has since January 1, 1944,
operated a plant at Webster City. Iowa, the sole plant involved in this proceeding,
where it is engaged in the processing of poultry and eggs. During the calendar
year 1944, it caused to be sold and transported in interstate commerce from its
Webster City, Iowa , plant. to States other than the State of Iowa, products
valued in excess of $100,000.
At all times during the calendar year 1944, the Respondent was engaged in the
production, manufacture and transport at its Webster City, Iowa, plant, under
contract with the United States Government, of articles and materials consisting
largely of poultry and eggs, for the use of the Armed Forces, and was a "war
contractor" within the meaning of the War Labor Disputes Act, 57 Stat 163
The Respondent concedes that it is engaged in commerce within the meaning of
the Act.
II THE LABOR ORGANIZATION INVOLI ED
The Union , Amalgamated heat Cutters and Butcher Workmen of North Amer-
ica, Local No. 142, affiliated with the American Federation of Labor , is a labor
organization admitting to membeiship employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A Chronological statement
The Respondent's operation of its Webster City, Iowa, plant, herein called the
Plant, dates from January 1, 1944. Prior to that date the Plant had been
operated by Selby Produce Company, Respondent's predecessor, herein called
Selby. In the summer of 1942, Selby recognized the Union as bargaining repre-
sentative of employees of the Plant, and on or about September 1, 1942, executed
a contract with the Union. The contract was for a year's duration and auto-
matically renewable from year to year thereafter unless notice of termination
was given by either party between 30 and 60 days prior to the annual expiration
date. This contract was in effect at the time the Respondent took over the Plant
of the Selby Produce Company and, according to C. B Evinger, Respondent's pei-
sonnel director, it was recognized as binding on the respondent.
On February 21, 1944, the Union wrote to Respondent requesting negotiations
on a new agreement, and submitted a proposal for a new contract. Evinger
replied on February 25, 1944, stating that the Respondent was "willing to
talk matters over" with the Union, and further stating that perhaps the
"existing agreement could be modified or amended." On or, about April 25,
1944, there was a meeting of Respondent and union representatives At this
meeting Evinger offered to sign a new short-term contract with expii ation
date of January 1, 1945, and agreed to incorporate therein provision for a
wage increase, but iefused certain other union demands.' On the following
day, Evinger was advised by the Union's representative that his proposal for
' Evinger testified that the Union asked for a closed shop, and Respondent refused No
union representative attending this conference testified
FAIRMONT CREAMERY COMPANY 837
it new contract had been rejected, after its submission to the employees. Ac-
,cording to Evinger, he replied to the Union's representative, McCoy : "we don't
think you represent a majority of these people, we cannot give you the kind of
a contract you would like to have . . . ' McCoy then stated that the Union
would not enter into an agreement on the basis of the old contract. Evinger
at that time advised McCoy that the Respondent would file unilaterally an
application for a wage increase with the National War Labor Board, herein called
WVLB. According to Evinger, the Respondent thereafter filed such an, applica-
tion and it was granted.
On July 28, 1944, Kenneth Sowers, who was then the Union's international
representative , wrote the Respondent stating, inter alia:
As you no doubt know, our contract expires on August 31st, and we are
desirous of starting negotiations of an Agreement, and if at all possible,
have it negotiated by the expiration date.
On or about August 1, Evinger saw Sowers and told him, in response to the
letter of July 28, that the Union would have to "prove" its majority or obtain
certification as bargaining representative , before the Respondent would nego-
tiate with the Union ; that Respondent did not want "to make any contracts
with unions that are not certified as the true bargaining agency" ; and that Re-
spondent would not renew the old contract.
In October the Union sought the aid of the Conciliation Service of the U. S
Department of Labor, and through this agency a meeting was arranged be-
tww een union and management representatives on November 17 The Respond-
ent maintained its position that it would not bargain with the Union until the
latter had afforded proof of its majority. The same evening there was a union
meeting attended by a majority of Respondent's employees. At this meeting
the employees voted not to return to work until the Respondent had agreed to
negotiate a new contract with the Union. On the following day, November 18,
about GO of a total of some 80 employees went on a strike pursuant to action
taken at the union meeting. No notice of a labor dispute was filed by the
Union pursuant to the provisions of the War Labor Disputes Act? The strike
continued until November 22 when Sowers received a telegram from the WLB
directing that the strike be terminated and that the employees "not engage in
illegal work stoppage which is destroying flow of vital food stuff " Sowers im-
mediately called a meeting of employees and they voted to comply with the
WLB's directive order. On the same day, the Respondent was furnished with
a copy of the WLB telegram and was advised that the striking employees would
return to work. Since November 23 was Thanksgiving, it was agreed that the
strikers should report back for work on November 24.
During the period of the strike and until noon on November 22, the Union
maintained a picket line of employees about the Plant. On November 22, pursu-
ant to petition of the Respondent, a State District Court caused to be issued and
served on representatives of the Union, including Robert Downs, president of the
Local, a temporary injunction restraining the Union from further picketing of
Respondent's premises. The Union promptly complied and, as previously stated,
the strike was terminated on the same day.
The striking employees who reported back for work on November 24, were not
automatically returned to their jobs but were personally interviewed as applicants
for reemployment by Iverson or Evinger or both, whereas nonstriking employees,
some 18 in number, returned to their jobs as usual. Sixteen of, the strikers thus
2 57 Stat 163.
838 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD
interviewed were denied reinstatement and were advised by Iverson that there
was no work available for them. They were:
Evelyn L Keller, Robert Downs, Phyllis Kepler, Eva Stone, Billy Holtkamp,
Clyde Weedman, Evelyn M. Keller, Fay Goodrich, Dorothy Norem, Harold
Kepler, Kathleen Urick, Leo Keller, Verne Ober, Lucille Mix, J W. White,
and Grace Whiteaker.
On the same date several employees voluntarily terminated their employment,
making a total personnel reduction of some 21 employees.
Some of the employees applying for reinstatement were shown a copy of the
WLB telegram to the Union directing that the strike be terminated. Most of
those denied reinstatement were askedby Iverson to report back again either that
same day or later, and most of them did so.' Others were told that they would be
called back when needed. Leo Keller and Verne Ober were reinstated, on
application, about a week later ; Lucille Mix was reinstated February 23, 1945.
Although Respondent hired a total of some 23 new employees, some of them with-
out prior experience in the poultry industry,' between the date of the strike and
the hearing, and advertised for help in the local newspaper in March of 1945, of
the 16 employees denied reinstatement on November 24, only the 3 named above,
were at any time offered reinstatement. The record further reveals that while
the total employment level remained fairly constant from November 24 to De-
cember 25, 1944, the Respondent hired 4 new employees during the period from
November 26 to 30, and 2 new employees in the period from December 2 to 19
There is no showing that any of the positions thus filled required special skills
which rendered reinstatements from among the group laid off on November 24
impractical. The evidence is to the contrary. Thus, Myrol Reuter was hired
in the receiving and feeding department on December 7, whereas Harold Kepler
and Kathleen Urick had been employed in this department prior to the strike.
Furthermore, the employment history of employees testifying, shows a pattern of
inter-departmental transfers indicating that employees are shifted from one job
function to another as the character of the seasonal work varies. Most of the
employees testifying had worked in various job capacities Obviously, very little
special skill is required in a majority of the jobs
B The issues and conclusions thereon
1. The November 24 lay-offs
Respondent's Plant Manager, Iverson, testified that the 16 employees named
in the Board's complaint were denied reinstatement on November 24 because the
slack season in poultry was at hand and there was no work available for them.
He denied that any of them were laid off because they had engaged in strike or
other union or concerted activities.
According to Iverson, the slack season in poultry normally sets in at or about
Thanksgiving. All employees other than Iverson who were questioned on the
topic, some of whom had been employed at the Plant for several years, testified
that the slack season in poultry normally begins on or about January 1 and that
in prior years there had been no mass seasonal lay-offs, the available work being
apportioned among the personnel on a part-time basis during the slack poultry
season until full operations were resumed with the beginning of the egg season
s Iverson testified , "In practically almost every instance I asked them to report back."
+ Mae Ambrose, a forelady , testified without contradiction that four inexperienced persons
were hired in her department during the current egg season.
0
FAIRMONT CREAMERY COMPANY 839
in February or March.' The undersigned is convinced and finds that the slack
season in poultry at the Plant, as reflected in total employment, normally begins
on or about January 1. as testified to by the Board's witnesses.
While the strike lasting from November 17 to 22 necessarily interrupted a full
flow of production during that period, there is no evidence that it created a situ-
ation where normal production could not have been resumed upon its termina-
tion. The evidence is to the contrary. Iverson testified that he cancelled cer-
tain outstanding orders for turkeys and ceased solicitations for live poultry during
the strike, but it is clear from his testimony that such curtailments related only
to processing during Thanksgiving week and would have no bearing on produc-
tion during the subsequent period. The actual poultry receipts for the week
of December 2, the week following the strike, were 147,694 pounds as compared
with receipts of 113,982 pounds for the week of November 18, the week immedi-
ately preceding the strike. While poultry receipts reached a peak of 236,465
pounds during the week of November 4 and fell to 194,891 pounds during the
following week, the Respondent employed some 9 new employees between Novem-
ber 1 and November 16. It would appear that the Respondent would not have
added to its pay roll or filled vacancies of those voluntarily quitting during this
period, if in fact it was contemplating a mass lay-off due to a slack season in
poultry then imminent. As a matter of fact, it appears that Respondent antic-
ipated a steady flow of poultry receipts for the balance of the year, since in his
affidavit supporting Respondent's petition to the State Ditsrict Court for an
injunctive order restraining picketing by the striking employees, dated November
22, Iverson stated :
At this season of the year, the company has a heavy run of poultry and
turkeys ; that it has commitments to take approximately four thousand
(4,000) turkeys and twenty thousand (20,000) chickens this week; that if it
cannot continue operations it will lose the processing and sale of these birds
and approximately the same amount per week until the end of the year . . .
[Italics supplied.]
There is no showing of any special circumstances or conditions, other than the
strike itself, which would interfere with the normal flow of poultry receipts"
Iverson testified that he was unable to recall the amount of live undressed poultry
on hand as of November 24, and though weekly inventories admittedly were made,
the Respondent did not produce such record dbta although it related to the focal
issue of whether dr not there was actually work available for all the striking
employees as of that date.
In view of the foregoing and the entire record, the undersigned is convinced
that the November 24 lay-offs were not dictated solely by business considerations
but were punitive and directed against the Union for having engaged in strike
activities. This conclusion is strengthened by the fact that from November 24
to January 1, 1945, the remaining employees worked full hours whereas nor-
mally, at the beginning of a slack season, the work would have been staggered
Thus, Clifford Williams, a working foreman and an employee at the Plant since about
1930, testified : "Well, we have always worked steady up until around Christmas." He
further testified that there were no seasonal lay-offs, work being apportioned or staggered.
Lucille Holtkamp, reinstated on November 24 and now working, testified similarly, as did
others. Mae Ambrose testified that in a slack season, the employees were usually shifted
to various jobs and "there never are very many laid off."
Actual poultry receipts at the Plant , as reflected by Respondent 's records, show a
steady decline after the week of December 2. It is borne in mind, however , that Respondent
operated at least three other plants in Iowa where poultry was processed , and to which,
receipts of poultry normally intended for the Plant might have been diverted.
840 DECISIONS OF NATION AL LABOR RELATIONS BOARD
among the entire personnel ; the lu i uig of new employees in the period imme-
diately following the strike; the fact that Robert Downs, known to the Re-
spondent to be the president of the Union's Local, and others prominent in union
and strike activities, were denied reinstatement; and the generally unsatisfactory
character of Iverson's testimony as to the basis for the selection of individuals
to be laid off
Iverson testified that the striking employees were ieunstated in the order
in which they applied on the morning of November 24, and according to their
"fitness" for the job. Obviously, if they -%n ere reinstated strictly in the order
of their applications, fitness for the job could not have been the criterion,
unless it was determined in advance that certain employees would be denied
reinstatement As a matter of tact, it is clear that employees were not rein-
stated strictly in the order of their applications since some of those who
applied early were told to report back later and were then denied reinstatement.
Some, among them Downs, though early in the order of their applications, were
denied reinstatement whereas others applying later were returned to their jobs.
Downs, who had worked at the Plant for several years, had never before been
laid off, and his tenure and continuity of employment confirms his fitness for
the job in the absence of evidence to the contrary of which there is none. Iver-
son testified that seniority (lid not enter into his consideration in the matter of
lay-offs but, according to the otherwise undisputed testimony of Kathleen Urick,
whom the undersigned credits, Iverson advised het that she was laid off because
it was the slack season and she was one of the "newer help." She had in fact
been employed only some 3 weeks prior to the strike. Iverson's entire testimony
as to the selection of the 16 individual employees for lay-offs, was confused,
evasive, and inconsistent.
Assuming, arguendo, however, that the Respondent was prompted by business
considerations to bring about a reduction in its personnel following the strike,
by its own admissions the basis upon which it selected employees to be laid off
was discriminatory, since it admits that the some 18 employees who did not par-
ticipate in the strike were not considered for hiv-olis, all persons denied employ-
ment on November 24 being selected solely from the gi oup of strikers. This
-completely negatives Iverson's testimony that the 16 employees were selected
for lay-off without consideration of their having engaged in union or concerted
activities. Respondent in its answer and brief asserts, however, as aflirniative
defense, that it was under no duty to reinstate the striking employees since by
their strike action they had volnuntarily severed the eniployer-einployee relation-
ship. In support of this position it advances several theories.
The first of these is that in calling the strike the Union violated the no-strike
pledge of the contract executed by the Union and Selby on September 1, 1942
This contract was renewed in 1943 and was in force at the time Respondent
took over the Selby plant While Respondent asserts that it considered itself
bound by the contract, as early as April 1944, Respondent challenged the Union's
status as bargaining representative, later filed a unilateral application for a
wage increase, and on or about August 1, advised Sowers, the Union's repre-
sentative, that the Respondent would not renew the old contract. The Union
had as early as April 1944, advised the Respondent that it would not enter into
an agreement on the basis of the old contract and had submitteil a proposal for
a new agreement. From the foregoing it is clear that it was the intent of the
parties to terminate the old contract on its expiration date of August 31, and
that the Respondent had in fact violated the recognition clause of the contract
months prior to that date. In view of these facts it is idle for the Respondent
to argue that the Union or the employees were on November is, bound by the
no-strike clause of the old contract Clearly, the doctrines of the Sands Mannn-
FAIRMONT CREAMERY COMPANY . 841
factoring' and Columbian Enameling cf Stamping' cases, cited by Respondent
in support of its position, have no application here.
The Draper Corporation case,' also cited by the Respondent, is not germane
to the issues presented here, since here we are considering a strike called by
the Union and participated in by a large majority of Respondent's employees,
whereas the Draper decision involved an unauthorized or "wildcat" strike of
a minority and the decision turned on that fact.
The Respondent further argues that because of their picketing activities, the
employees are deprived of their rights under the Act, and cites the Fansteel
case" as authority for this position. Since admittedly 95 percent of the some
60 striking employees engaged in picketing activities and Respondent reinstated
all but 16 of those applying for reinstatement, and denies that it selected the
16 for lay-off because of their strike or concerted activities, Respondent's action
could not have been predicated upon the defense offered. In any event there is
no merit in its position. The only evidence the record affords of other than
peaceable picketing, is that on the morning of November 20, when certain officers
of the Respondent attempted to pass some 10 or 12 non-striking employees
through the picket lines, the strikers attempted to bar their entrance into the
plant and, as testified by Evinger, "there was considerable pushing and biting and
scratching all the way." The only blow passed on this occasion appears to
have been when a non-striking employee struck one of the women on the picket
line. Immediately upon service of a temporary restraining order issued by
the State District Court, all picketing ceased. Obviously, the instant situation
is not analogous to that of the Fansteel ease, where the striking employees
illegally seized the plant and continued to occupy it in defiance of a court order,
but falls within the doctrine of Board and Court cases that employees are not
deprived of their rights under the Act because of minor misconduct and picket
line disorders.
Finally, the Respondent asserts as of einative defense, that the striking em-
ployees are deprived of their rights under the Act because the strike was illegal
in that the notice requirements of the War Labor Disputes Act" were not com-
plied with Admittedly, these requirements were not complied with. The Board
in the American News case,' denied reinstatement to employees who struck to.
require the employer to grant a wage increase in violation of existing wage
stabilization legislation. Such is not the case here, since here the employees
struck to require the Respondent to recognize the Union and negotiate a contract
with it Further, it appears that the Board in its American, News decision relied
in part upon the preamble of the Emergency Price Control Act, of January 30, 19-42,
which expressly enjoins the Board, among other agencies, "to work toward a
stabilization of prices, fair and equitable wages, and cost of production." No
such mandate is found in the War Labor Disputes Act. On the contrary, the
legislative history of this statute shows that the Congress did not intend, by its
enactment, to withhold from employees any of the rights guaranteed by the Na-
tional Labor Relations Act. The bill as originally passed by the Senate contained
no provision requiring the giving of notice of a labor dispute. In the House of
Representatives, the bill as amended and passed provided that it was unlawful
for employees to strike without notice and that any person violating such provi-
sions would forfeit certain rights guaranteed by the National Labor Relations Act.
v N. L. R. B. v. Sands Mfg. Co , 306 U. S. 332.
s N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U. S. 292.
O N. L. R. B. v. Draper Corporation, 145 F. ( 2d) 199 ( C. C. A. 4).
10 N. L. R. B. v. Fansteel Me'tallurgical Corporation , 306 U. S. 240.
" War Labor Disputes Act, 57 Stat. 163.
12 55 N. L . R. B. 1302.
842. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Senate refused to concur in the House amendments and thereafter conferees
of the House and Senate omitted all provisions for forfeiture of rights under the
National Labor Relations Act. The undersigned, accordingly, is convinced and
finds that the doctrine of the Angel scan Ncw' case is not applicable to the instant
situation 13
In conclusion, the undersigned rejects the Respondent's argument that the
employees in striking severed the employee-employer relationship, or that they are
deprived of their rights under the Act by participating in the action aforesaid.
Respondent's action, therefore, in requiring the striking employees to apply in-
dividually for reinstatement as in the case of a new employee while the non-
strikers went to their customary jobs as usual, and in denying certain of them
reinstatement without consideration of the relative merits of striking and non-
striking employees, was discriminatory and violative of the Act.
The undersigned accordingly finds that the Respondent on November 24, 1944,
laid off or discharged the following employees, because of their union and con-
certed activities:
Evelyn L. Keller, Robert Downs, Phyllis Kepler, Eva Stone, Billy Holtcamp,
Grace Whiteaker,14 Clyde Weeduian, Evelyn M Keller, Pay Goodrich, Dorothy
Norem, Harold Kepler, Kathleen Urich. Leo Keller, Verne Ober, Lucille Mix.16
The complaint further alleges that J. W. White was discriminatorily laid off on
November 24. Prior to the strike White was employed as a poultry killer. He
was active in the Union and served on a union committee which met with repre-
sentatives of management during the strike Admittedly. lie was an efficient
employee On November 20, during the strike, Respondent employed Luella Tate
in its killing and dressing department It is its position that Tate was hired to
fill White's job while the latter was engaging in an economic strike.
It is a generally accepted principle that an employer may replace economic
strikers where it is necessary for the conduct of itrs business and "is not bound
to discharge those hired to fill the places of strikers, upon the election of the
latter to resume their employment, in order to create places for them . . ." 18
It is clear that as of the period of the strike, the employment of a poultry killer
was necessary for the conduct of Respondent's business While Iverson's testi-
mony gives rise to doubt as to whether Respondent hired Tate for replacing
White,'1 she did in fact kill poultry for a substantial period following the strike,
thus filling White's job At the time of the hearing, Clifford Williams, a working
foreman, was the poultry killer, but it is borne in mind that this was the slack
13 A more detailed discussion of the issue is found in the Intermediate Report in Matter
of Republic Steel Corporation (98" Strip Mill). 62 N L R B 1008 (Case No 8-C-1569).
14 It is Respondent's position that Whiteaker voluntarily severed her employment prior
to the strike. Whiteaker admitted that her attendance was irregular and that she may
have been absent from work for several days prior to the strike, but denied that she at any
time advised the Respondent that she had quit. The undersigned credits her testimony.
Further, it appears that she was denied reinstatement on the same discriminatory basis as
were the others.
15 The undersigned is not unmindful that the employment records of certain of these
employees as revealed by their testimony, would normally give rise to some question as to
their efficiency and regularity of attendance and, therefore, desirability as employees, but
inasmuch as the basis for their selection for lay-off was discriminatory, we are not here
concerned with their relative desirability as employees as compared with the non-striking
employees who were not considered for lay-off, and no basis for such comparison exists in
the record. Any conclusions in such matters would therefore be entirely speculative.
'ON. L. R. B. v. Mackay Radio & Telegraph Company, 304 U. S. 333
17 Iverson first testified that White was laid off for lack of work, and, later, that lie was
laid off because his job had been filled.
FAIRMONT CREAMERY COMPANY 843
season in poultry and a full-time killer was not required. It may very well
follow that the same arrangement would have existed had White been reinstated.
In view of the foregoing, while not without doubt, the undersigned is persuaded
that White was replaced while on economic strike and therefore was not dis-
criminatorily laid off on November 24, as alleged in the Board's complaint.
2. The December 30 lay-offs
Leo Keller and Verne Ober, whom the undersigned has found the Respondent
discriminatorily laid off on November 24, were reemployed on or about December
1, 1944, and worked continuously thereafter until December 30, 1944, when they
were again laid off.
It has been found that the slack season in poultry normally begins on or about
January 1. At or about the same time that Keller and Ober were laid off on
December 30, others not named in the Board's complaint, including Ralph
McCollough, Charles Strong. and Fred Lenaham, were also laid off, and there
was a substantial reduction in Respondent's overall personnel. There is no
evidence of a resurgence of union activity or of conspicuous union activity on the
part of Ober and Keller as of the period of the December 30 lay-offs, from which
an inference might be drawn that Respondent singled them out for discriminatory
lay-off at that time. On the basis of the entire testimony, the undersigned believes
that it is more reasonable to conclude that their December 30 lay-offs were
occasioned by business considerations, and will recommend that the complaint be
dismissed insofar as it alleges that the December 30 lay-offs were discriminatory.
3. The discriminatory discharge of Mae Ambrose
Mae Ambrose, allegedly discharged by Respondent on or about January 15,
1944, worked for Selby, Respondent's predecessor, from 1938 until Respondent
took over the Plant on January 1, 1944. At and prior to the time when the change
in ownership occurred, and until the termination of her employment, her imme-
diate supervisor or foreman was Ed Van Winkle. Van Winkle's superior was
General Plant Foreman or Superintendent Joe Hamilton. Ambrose was employed
by Selby as a poultry inspector.
In December 1943, Ambrose joined the Union. On or about the last week in
December, Van Winkle remarked that a good many of the girls in the department
were wearing union badges and asked Ambrose where hers was. Ambrose then
showed Van Winkle her union button. It was her undisputed and credited
testimony that Van Winkle said, "there is not going to be any damned union here
as long as I have anything to say about it . .." In the ensuing week, he con-
tinued to talk to her about the Union and asked her how many had signed up with
the Union. Later, Ambrose heard that Van Winkle had stated outside the Plant
that he would either discharge her or put her to work on the "tipping line" where,
apparently, poultry was prepared for shipment. When she reported for work on
the following day, she questioned Van Winkle as to his statement and he told her
"you can not wear that union badge and oversee the women." She replied that she
had never been advised that she was "overseer of the women", and that they
received thepsame wages. It appears, and the undersigned fins, that at this time
Ambrose, as an inspector, in fact had no supervisory functions. Van Winkle
maintained his position and told Ambrose that she could either work on the
"tipping line" or, go home. She went home, wrote to the Union's representative
or organizer and was advised by him to report to Selby, the then owner of the
Plant. She saw Selby and he directed her to work on the tipping line and advised
her that there would be no inspector thereafter.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Ambrose. after she had gone to work on the tipping line there
was a new inspector placed on the job.
Still later, apparently on or about January 15, Van Winkle instructed Ambrose
that she was to report for work on the "roughing line." This was where the
heavy wing feathers of the poultry were removed. Ambrose testified that because
of an operation she had had a year or more prior to this date, she was not physi-
cally able to perform this work and that her doctor advised her not to undertake It.
She so informed Van Winkle. Thereafter she saw Hamilton and asked him if she
had to work on the roughing line and he advised her that Van Winkle was "boss "
Ambrose informed Hamilton that she could not perform this work, and left the
plant. She later saw Van Winkle who advised her, "you never can work for
me again."
On or about March 1, 1944. Respondent replaced Van Winkle with Clifford
Williams. Hamilton was replaced by Charles W. Walker as plant superintendent.
After Van Winkle and Hamilton had been replaced, Ambrose twice applied for
work at the Plant but was refused. Again, in May, she received a card from a
local employment office advising her that there were job openings at Respondent's
and again applied for work. She was again refused, but on applying a second
time in May, she was rehired by Walker. Walker advised her that he was not
"supposed" to hire her and that Van Winkle had left a list of people "that he
should not hire." Later, Walker advised Ambrose that he was glad he had hired
her. At the time of the hearing she had been advanced to the position of
forelady.
The undersigned believes it is clear from Ambrose's undisputed testimony, that
Van Winkle, her supervisor, caused her to be taken off her job as inspector and
placed on the tipping line and later demanded that she go on the roughing line,
because of her manifest support of the Union and her wearing of a union badge or
button. It is not disputed that work on the roughing line was more arduous than
work she had previously been engaged in, and that she was not physically able to
vndeitake it Van Winkle's action was discriminatory and, in view of the entire
circumstances, constituted constructive discharge While the difficulty first arose,
and Van Winkle's discriminatory course of conduct began under the Selby
management, it continued after Respondent assumed full ownership and manage-
ment of the Plant and reached its culmination after Respondent had been in
control of the Plant some two weeks It is not disputed that Van Winkle and
Hamilton continued after January 1, 1944, in their same supervisory capacities, as
employees of the Respondent Respondent asserts that inasmuch as it displaced
both Van Winkle and Hamilton early in 1944, it is not "morally" responsible for
their discriminatory acts. The undersigned feels that much is to be said for this
view, but nevertheless the constructive discharge of Ambrose on or about January
15, was in law and effect the action of the Respondent and Respondent is liable
therefor under the Act
The undersigned accordingly finds that the Respondent on or about January 15,
1944, discharged Mae Ambrose because of her union and concerted activities, and
thereby interfered with, restrained and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
4. Interference, restraint, and coercion
Reference has been made to the fact that while the contract originally executed
by Selby and the Union was still in effect, the Respondent challenged the Union's
majority and filed a unilateral application for a wage increase with the WLB.
During this period, or later, General Plant Manager Iverson, by his own admission,
questioned various employees concerning their union affiliations. In his affidavit
FAIRMONT CREAMERY COMPANY, 845
supporting Respondent ' s petition for an injunctive order restraining picketing,
he stated :
Your afliant does not believe the union represents a majority of the
employees , that he has talked to a good many of the production employees,
and that in his opinion based upon these talks , the majority of the workers
do not believe in union connections , and are not union members.
During the strike, Iverson and Evinger sought out several employees individu-
ally and solicited them to return to work. It was Mae Ambrose's uncontradicted
.and credited testimony that Iverson and Evinger came to her house on Sunday,
the day following the beginning of the strike, and during the course of the con.
versation which ensued between them, Evinger told her "everybody was going
back to work Monday morning " This, clearly, was a misleading statement.
The Respondent's questioning of its employees concerning their union affilia-
-tion and attempt to persuade Ambrose, through misleading statements , to give
up her strike activity, considered in the context of the unfair labor practices
found herein, constituted interference, restraint and coercion within the
meaning of Section 8 (1) of the Act18
The undersigned finds no support in the record for the Board's allegation that
the Respondent forbade union discussion in its Webster City plant.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMAIERCE
The activities of the Respondent set forth in Section III, 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
aniong the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
eei taro affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire
,111(1 tenure of employment of the following employees:
Mae Ambrose, Verne Ober, Leo Keller, Evelyn L. Keller, Robert Downs,
Phyllis Kepler, Eva Stone, Billy Holtkamp, Grace Whiteaker, Clyde Weed-
nian, Evelyn M. Keller, Fay Goodrich, Dorothy Noreen, Harold Kepler,
Kathleen Urich, and Lucille Mix.
Subsequent to their respective discriminatory lay-offs or discharges, as found
herein, Mae Ambrose, Verne Ober, Leo Kellei, and Lucille Mix, were, reinstated.
With respect to them it will be recommended that the Respondent make each
of them whole for any loss of pay he or she may have suffered by payment to
each of a sum of money equal to the amount which each normally would have
earned as wages from the date of Respondent's discrimination against them,
respectively, to the date of his or her reinstatement, less his or her net earn-
ings 19 during said period
N. L R. B V. Peyton Packing Company, Inc., 142 F (2d) 1009 (C. C. A 5).
1 9 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection v ith obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440 . Monies received for work performed upon
Federal, State , county , municipal , or other work -relief projects shall be considered as earn-
ings See Republic Steel Corporation v. N. L. R. B , 311 U. S 7.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dorothy Norem ( Mrs. Theodore C. Espey ) when denied reinstatement on,
November 24, asked for and received a job release . She testified that she did
not thereafter make any effort to obtain other employment. In view of these-
circumstances the undersigned will recommend that the Respondent offer Dorothy
Norem ( Mrs. Theodore C Espey ) immediate and full reinstatement to her former
or substantially equivalent position , without prejudice to her seniority and other
rights and privileges , but will not recommend that the Respondent make her
whole for loss of wages , inasmuch as it is clear that she did not observe the
requisite diligence in seeking other employment 20
With respect to Evelyn L. Keller, Robert Downs, Phyllis Kepler, Eva Stone,
Billy Holtkamp , Grace Whiteaker, Clyde Weedman , Evelyn M. Keller, Fay Good-
rich, Harold Kepler, and Kathleen Urich, it appears that each of them either
registered with the United States Employment Service or made other timely
efforts to obtain employment following their discriminatory denial of reinstate-
ment on November 24, or were led by the Respondent to believe that they would be
recalled to their former jobs and relied on the assurances thus given them. With
respect to them, it will be recommended that the Respondent offer each of them
immediate and full reinstatement to his or her former or substantially equivalent
position , without prejudice to his or her seniority and other rights and privileges-
It will further be recommended that the Respondent make each of them whole
for any loss of pay they may have suffered , ( 1) by payment to each desiring rein-
statement of a sum of money equal to the amount which he or she normally would
have earned as wages from the date of the Respondent 's discrimination against
him or her to the date of offer of reinstatement , less his or her net earnings 21
'during said period ; ( 2) by payment to each of those who , after offer of reinstate-
ment is made , indicate that they do not desire reinstatement ,22 of a sum of money
equal to the amount which he or she normally would have earned as wages from.
the date of the Respondent 's discrimination against him or her to the date prior
to the offer of reinstatement when he or she obtained other regular or equivalent
employment , less his or her net earnings 23 during the said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local
No. 142, affiliated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is
engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Mae
Ambrose, Verne Ober, Leo Keller, Evelyn L Keller, Robert Downs, Phyllis Kepler,
Eva Stone, Billy Holtkamp, Grace Whiteaker, Clyde Weedman, Evelyn M. Keller,
Fay Goodrich, Dorothy Noreen (Mrs. Theodore C Espey), Harold Kepler, Kathleen
Urich, and Lucille Mix, thereby discouraging membership in Amalgamated Meat
Cutters and Butcher Workmen of North America, Local No 142. affiliated with
the American Federation of Labor, the Respondent has engaged and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
20 Matter of Ohio Public Service Company , 52 N. L. It. B 725.
21 See footnote 19, supra.
22 Several of the employees testified that they did not desire reinstatement.
23 See footnote 19, supra.
FAIRMONT CREAMERY COMPANY 847
4 The afoi esaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondent, Faiimont Creamery Company, Webster
City, Iowa, 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, Local No 142, affiliated with the American Federa-
tion of Labor, or in any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees. or in any other manner discriiui-
nating in regard to their hire or tenure of employment or any term or conditions
of their employment,
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to foim labor organiza-
tions, to join or assist Amalgamated Meat Cutters and Butcher Workmen of
North America, Local No 142, affiliated with the American Federation of Labor.
or any other labor organization. and to engage in concerted activities for the
purpose of mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Offer to Evelyn L Keller, Robert Downs, Phyllis Kepler, Eva Stone, Billy
Holtkamp, Grace Whiteaker, Clyde Weedman, Evelyn M. Keller, Fay Goodrich,
Dorothy Norem (Mrs. Theodore C Espey), Harold Kepler, and Kathleen Urich
immediate and full reinstatement to iris or her former or substantially equiv-
alent position, without prejudice to his or her seniority and other rights and
privileges;
(b) Make whole Evelyn L. Keller, Robert Downs, Phyllis Kepler, Eva Stone,
Billy Holtkanip, Grace Whiteaker, Clyde Weedman, Evelyn M Keller, Fay Good-
rich, Harold Kepler, and Kathleen Urich for any loss of pay they may have
suffered by reason of the Respondent's discrimination against them, (1) by pay-
ment to each of them desiring reinstatement of a sum of money equal to the
amount which each normally would have earned as wages from the date of the
Respondent's discrimination against him or her to the date of the offer of rein-
statement, less his or her net earnings during said period; (2) by payment to
each of those who, after offer of reinstatement is made, indicate that they do
not desire reinstatement, of a sum of money equal to the amount which he or she
normally would have earned as wages from the date of the Respondent's discrimi-
nation against him or her to the date prior to the offer of reinstatement when
he or she obtained other regular or equivalent employment, less his or her net
earnings during the said period ;
(c) Make whole Mae Ambrose, Verne Ober, Leo Keller, and Lucille Mix
for any loss of pay they may have suffered by reason of the Respondent's dis-
crimination against them, by payment to each of a sum of money equal to the
amount which he or she normally would have earned as wages from the date
of the Respondent 's discrimination against him or her, to the date of his or
her reinstatement, as found herein , less his or her net earnings during the said
period ;
(d) Post at its plant at Webster City, Iowa, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Eighteenth Region, shall , after being duly signed by
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other
material;
(e) File with the Regional Director of the Eighteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the Respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) clays from the
receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective July 12, 1944, as emended
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, filed with the Board,
Rochambeau Building, Washington 25 , D C, an original and four copies of
a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel foi the Board filing
the same shall serve a copy thereof upon each of the parties and shall file a
copy with the Regional Director As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) clays from the
date of the order transferring the case to the Board.
WILLIAM E. SPENCER,
Trial Emamzner.
Dated May 14, 1945.
APPENDIX A
NoTicx To ALL EMPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 142. affiliated with the American
Federation of Labor, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
FAIRMONT CREAMERY COMPANY 849
Evelyn L. Keller, Robert Downs, Phyllis Kepler, Eva Stone, Billy Holt-
kamp, Grace Whiteaker, Clyde Weedman, Evelyn M. Keller, Fay Goodrich,
Harold Kepler, Kathleen Urich.
We will offer Dorothy Norem (Mrs. Theodore C. Espey) immediate and
full reinstatement to her former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously
enjoyed.
We will make whole Mae Ambrose, Verne Ober, Leo Keller and Lucille
Mix for any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will-not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
FAIRMONT CREAMERY COMPANY
(Employer)
By ----------------------------
(Representative ) (Title)
Dated -------------- ---------
NOTE.-Any of the above-named employees piesently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
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