Hesmer Foods, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1966

161 N.L.R.B. 485 (N.L.R.B. 1966)

HESMER FOODS, INC. 485
zation, by discriminating in regard to the hire or tenure of employment of any
of our employees or in regard to any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain , or coerce our employ-
ees in the exercise of their right to self-organization , to join or assist said
Union or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing, and to engage in any other concerted activ-
ities for the purpose of collective bargaining, or other mutual aid or protection,
or to refrain from any and all such activities except to the extent that such
right may be affected by an agreement made in conformity with Section
8(a)(3) of the National Labor Relations Act, as amended.
WE WILL offer to Don Street and Dalene Thompson (Linebarger) imme-
diate and full reinstatement to their former or substantially equivalent position
without prejudice to their seniority or other rights and privileges , and WE WILL
make them whole for any loss they may have suffered as the result of the dis-
crimination against them.
WE WILL bargain upon request with Retail Clerks Union, Local 1364, Retail
Clerks International Association, AFL-CIO, and if an understanding is reached
WE WILL embody such understanding in a signed agreement.
WICKLAND OIL CO. & FREEWAY OIL CO., D/B/A KING DOLLAR,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees, or either of them, if pres-
ently serving in the Armed Forces of the United States of America of their right
to full reinstatement upon application in accordance with the Selective Service Act
and the Universal Military Training Service Act, as amended , after discharge from
the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board' s Regional Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco , California
94102, telephone 556-3197.
Hesmer Foods , Inc. and Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO. Case 25-CA-2354-
October 26, 1966
DECISION AND ORDER
On May 6, 1.966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief and the General Counsel
filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
161 NLRB No. 45.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the'hearing and finds that'no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Frederick U. Reel in Evansville, Indiana,
on March 10 , 1966 ,1 pursuant to a charge filed the preceding October 21 and com-
plaint issued December 22, presents the question whether Respondent discharged
five employees on October 13 and 14 for having engaged in union activity, includ-
ing attendance at a union meeting on October 12, or for the reasons advanced by
the Respondent at the hearing. Upon the entire record , including my observation
of the witnesses , and after due consideration of the briefs filed by the General
Counsel and by Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish , and I find, that Respondent , an Indiana corporation
herein called the Company , is engaged at Evansville in the manufacture , processing,
packing, and wholesaling of food products , that its operations in interstate com-
merce place it within the Board 's jurisdiction , and that the Charging Party , herein
called the Union , is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-the employees at the Company's Stockwell Road plant
engage in union activity
The Company maintains two plants in Evansville , one at Stringtown Road and
one at Stockwell Road , 5 miles away . The events in this case concern primarily
the latter plant. The Company had approximately 22 employees at this plant, of
whom 3 or 4 worked on the "night shift " or "clean-up crew," and the balance were
on the "first shift." The first shift worked from 7 a in. to 4 p m.; the other men
worked from 12:30 to 9 p .m. Of the five men whose discharges are at issue here,
Bunker and Cowan worked on the "clean-up " crew; Bruning, Galloway, and Sum-
rall worked on the other shift . These five men, and two others not involved in this
proceeding , signed union cards early in October , and the seven men attended a
union meeting on the night of October 12 at the home of a union representative.
Bunker, who had distributed the union cards, testified that he had done so on com-
pany premises , and that while on company property he had talked to employees
about union matters and about union meetings . Cowan, who received his union
card from Bunker while at work , also talked to some day-shift employees about
signing cards . Galloway, who received his union card from Bunker in the plant, had
himself given union cards to two employees , and kept such cards in his locker.
Sumrall gave out one union card and spoke to one other employee about signing a
card. Bruning, prior to his discharge , had given a card to one man. Company Presi-
dent Mitchell testified , however , that he was unaware of the union activity until
October 13 , when he learned of it under circumstances described below.
B. Company President Mitchell's conversation
with employee Cowan on October 11
On Monday , October 11, Company President Mitchell took a future employee,
London Davis, through the Stockwell Road plant . Davis was the first Negro ever
'All other dates herein refer to the year 1965 unless otherwise indicated.
HESMER FOODS, INC. 487
to be hired for work at that plant. That evening Mitchell had a conversation with
employee Charles Cowan at the plant, in the course of which Cowan expressed
his opposition to the hiring of Negroes and added that other employees, specifically
naming Bunker, were likewise opposed. Indeed Cowan told Mitchell (mistakenly,
according to both Cowan's and Bunker's testimony) that Bunker had threatened
to post an anti-Negro sign on the door of the men's restroom . Mitchell expressed
surprise and disapproval at this expression of prejudice , particularly because ( accord-
ing to his testimony) he had previously asked his supervisors, Johann and Ten
Barge, to inquire into the employees' attitude, and they had reported there was no
prejudice.
C. Mitchell meets with his supervisors on October 12
According to Mitchell, he met with Johann and Ten Barge the next morning-
(Johann and Ten Barge did not testify.) Mitchell told them of his conversation
with Cowan the night before. His testimony continues:
A. I asked who besides this Bunker would be the ones that would be
prejudiced towards Negroes working in there. That's when Johann said he felt
sure he knew who they were. They were a little clique that ran together, he'd
been warning their work was no good, and he'd just as soon not have them
if they were going to cause that kind of trouble. He warned them several
times. He pointed out who they were. I said, "Well, let them work to the
end of the work week and let them go. We can't afford to have this kind of
trouble."
Q. Who did they mention?
A. They mentioned Sumrall and Bruning and Galloway and I asked them
about Bunker and they said he hadn't been there but a week or two. And I
said, "Well, just let those fellows go when their work week is up," which was
the next day. "We don't want them around any more."
Later Mitchell made it clear that Johann had referred only to Bruning. Sumrall. and
Galloway as a "clique that fraternized together" who had caused him a lot of trouble
on the day shift." According to Mitchell, he decided at this meeting "to discharge
those three and Cowan because he had definitely sail that he was against Negroes
These three because their «oik was unsatisfactory. and we felt they were part of the
group that would cause the t:ouble "
D. The discharges
1. Galloway, Bruning, and Sumrall
The next day, Wednesday, October 13, was the last day of the workweek, which
at the Company runs from Thursday through Wednesday. When Bruning, Gallo-
way, and Sumrall went to punch out that afternoon, they found their timecards
missing. Johann called them to his desk and said they were discharged. He told the
three that because their work had not improved they were being let go (according
to Sumrall) or that their work was unsatisfactory (according to Bruning). There
is no evidence that any of them had ever been criticized for poor work; indeed,
Sumrall testified to the contrary, and Galloway had received a pay raise the week
before? The three men were friends, rode to work together, and visited together
during breaks; they did not, however, associate to any appreciable extent with
Cowan and Bunker.
2. Bunker
Upon being notified of the discharges, Galloway went into the plant to tell
Bunker, who promptly came to the office and obtained Johann's permission to make
a telephone call. Johann gave permission but, while Bunker was dialing, asked to.
whom the call was directed. Bunker replied, "The Union," to which Johann -returned,
"What Union?" adding that there was no union there. Bunker said there soon
would be, and asked if Johann was going to fire him for union activity too. An
argument ensued between Johann and Bunker, during the course of which both
men became angry and Johann left the room. Bunker then returned to his work.
None of the witnesses at the hearing' who also witnessed the exchange between
Bunker and Johann testified to any statement or action of Bunker vis-a-vis Johann
^2
They apparently had been warned for tardiness, but the Company does not contend that
this was a cause of their discharge.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than those recited above, Bruning testified that Bunker did not assume a
menacing attitude or threatening stance toward Johann, and the other witnesses
were not asked about that matter. Johann, although present in the hearing room,
was not called as a witness.
Mitchell was in his office with Sales Manager Gorman that afternoon shortly
after 4 when Johann entered and told Mitchell that the men had been discharged
and that Bunker had threatened him, had used abusive language and gestures, and
had accused him of discharging the men for union activity. Mitchell promptly went
to Bunker and discharged him. According to Mitchell and Gorman, who was also
present, when Bunker asked the reason, Mitchell told Bunker he was fired for being
insubordinate to Johann. Bunker and Cowan, who was likewise present, testified
that insubordination was not mentioned, and that when Bunker asked if he was
fired for union activity, Mitchell called Bunker an "agitator," a term Mitchell did
not remember using and was "reasonably sure" he had not used. I find that
Mitchell used both expressions. I credit his and Gorman's testimony that he referred
to "insubordination," but the testimony of Bunker that he called Cowan's attention
to Mitchell's use of the word "agitator," and Cowan's confirmation of this fact
although he is again in the Company's employ, lead me to find that this term was
also employed. Mitchell also at this time charged Bunker with race prejudice, which
Bunker denied, explicitly also denying that he had threatened to put a notice on the
restroom door.
3. Cowan
Cowan was in or near the office when Johann discharged the three men. Shortly
thereafter, Cowan inquired of Johann as to the reason for the discharges, to which
Johann replied that it was none of Cowan's business, and that Cowan should "shut
his mouth and get back to work," which Cowan did.
As stated above, Cowan was also present during the conversation between
Mitchell and Bunker. According to both Bunker and Cowan, the latter's only par-
ticipation in the matter occurred when Bunker asked if Cowan had heard Mitchell
call Bunker an "agitator," at which point Cowan answered "Yes" and Mitchell
asked Cowan: "What have you got in this?" To quote Cowan's rather obscure testi-
mony: "And I said-right there I didn't say nothing, but him and Jim Bunker was
talking, and I said, `Yes, I have.' "
Mitchell testified that when he fired Bunker, Cowan "said something apparently
to Bunker. I thought he was talking to me . I said `What did you say?' He
said, `I didn't say anything to you.' And I said, `Well, you won't be able to say
too much to me after this, anyway."' Mitchell further testified that in his conver-
sation with Cowan on October 11 he had mentioned that Cowan might become
an instructor of the new employees on new machines similar to that Cowan was
operating. The testimony continues:
TRIAL EXAMINER: When did you make up your mind to fire Cowan?
The WITNESS: Well, I made it-I'm a slow burner-I made up my mind
pretty well that night when he told me what he did about this, about his
attitude toward Negroes.
TRIAL EXAMINER: Was it before or after you made up your mind to fire
him that you talked about his advancement on the machine?
The WITNESS: Well, it was after I tried to sell him the idea of being more
tolerant but I didn't get very far.
TRIAL EXAMINER: In what way didn't you get very far?
The WITNESS His attitude was obvious that he was prejudiced
At the conclusion of Mitchell's cross-examination, he testified as follows:
Q. Am I correct you discharged Mr. Cowan because he talked back to you?
A. Yes.
Q. And that was the reason why he was discharged?
A. No.
Mr. Yocum: No.
Q. (By Mr. LIMESAND) All right-
TRIAL EXAMINER: Just a minute.
Mr. Yocum You're assuming a fact not in evidence.
TRIAL EXAMINER: Just a minute. Mr. Mitchell, at the time you started this
conversation with Bunker, had you already determined to discharge Cowan
or not?
The WITNESS: Yes, I believe that I was ready to let him go because his
attitude seemed to me, I couldn't compromise him when I talked to him.
HESMER FOODS, INC. 489
TRIAL EXAMINER: Two nights before the 14th?
The WITNESS: Two nights before. I wasn't satisfied that his attitude would
be right. I was concerned about it. Then when he popped off to me that
night, well, I knew that his attitude wouldn't be right.
In a pretrial affidavit Mitchell stated that he had decided to fire all five men at
the meeting with Johann on October 12. At the hearing Mitchell stated that this
was an error, as he had reached no decision with respect to Bunker, and the
number should have been four not five.
When Cowan reported for work on the following day, his card was missing.
He spoke to Johann, who went to see Ten Barge, the other supervisor, who also
did not testify. Ten Barge simply told Cowan "You're released," and told Cowan
to get his paycheck.
E. Postdischarge developments
Each of the men involved received with his final paycheck a written statement
that he was discharged because "Work was not satisfactory. Insubordination." The
following January 4 the Company wrote each of them, asking them to return to
work by January 12, 1966, and offering them full reinstatement, but declaring that
the Company had not violated the law in discharging them.
On the witness stand Mitchell admitted hostility to the Union. The only allega-
tions of unlawful conduct on the Company's part, however, concern the discharges
described above; the allegation in the complaint of unlawful interrogation was
dismissed for want of any supporting evidence.
F. Concluding findings
1. Bruning, Sumrall, and Galloway
The issue with respect to each discharge is whether General Counsel sustained
his burden of proving that the Company's action was motivated in significant part
by the employee's union activity. The Company does not have the burden of prov-
ing that it discharged them for the reasons stated by the Company. And it is by
now a truism that an employee may lawfully be discharged for no reason at all.
On the other hand it is likewise true that employers do not ordinarily discharge
men "for no reason at all," and the Company here does not claim to have done
so. Moreover, judicial authority warrants inquiry into whether an employer's
asserted motive for discharge "withstands scrutiny," and goes so far as to declare
that its failure in that regard can furnish support for a finding of unlawful moti-
vation. See e.g. N.L.R.B. v. Dant, 207 F.2d 165 (C.A. 9), and cases there cited
Without overlooking for one moment that the burden of proof rests on General
Counsel, I turn first to a consideration of the reasons advanced by the Company
for the first discharges-those of Sumrall , Bruning, and Galloway.
According to Mitchell's testimony, these discharges had their genesis in his
October 11 conversation with Cowan on the night shift at which Mitchell learned
that Cowan was opposed to the hiring of Negroes, and that Cowan said other
employees (naming Bunker, perhaps erroneously) were similarly opposed. The
next day, according to Mitchell, he told Johann and Ten Barge about the con-
versation with Cowan, asked who else besides Bunker would be prejudiced against
Negroes, and was told that Johann felt sure he knew who they were. Mitchell
testified that Johann named Bruning, Sumrall, and Galloway as a "little clique
that ran together," whose work was not good, and whom he had warned several
times. Mitchell, according to his testimony, said to let them go as "We can't
afford to have this kind of trouble." In his pretrial affidavit he stated that he
wanted those men out before the Negroes came to work.
The trouble I have with this explanation stems in large part from the failure
of Johann to testify. Why should Mitchell's report on the prejudice of Cowan
and Bunker, night-shift employees, lead Johann to the view that those prejudices
were shared by three men on the day shift? Nothing in the record establishes any
association of consequence between the three daymen on the one hand and Cowan
and Bunker on the other. And there is not a scintilla of evidence that any of the
daymen in question was anti-Negro. Moreover, the Company never told them that
their allegedly anti-Negro views caused their discharges. On the contrary, they
were told orally that they were discharged for unsatisfactory work, and they were
told in writing that they were discharged for unsatisfactory work and "insubordi-
nation." The record is totally devoid of evidence of their "insubordination," unless
the Company felt that engaging in union activity was insubordinate. As to their
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, the record contains no evidence that their work was poor or that they had
been criticized for bad' work; Mitchell'testified Johann said he had criticized them,
but Johann did not testify and the employees' denials of criticism thus stands
uncontradicted by any direct evidence. To be sure, there is some mention of tardi-
ness„ but no suggestion that this occurred recently (Galloway had received a pay
raise a , week before), and it was not mentioned orally or in writing when they
were discharged.
Johann's testimony might have shed light on these mysteries . To be sure, Gen-
eral Counsel could have called him as a witness, but it seems more logical to
expect the Company to have put him on the stand, particularly following
employee' testimony that he had not warned them about unsatisfactory work. Com-
pare N.L.R.B. v. Kalof Pulp & Papei Coip.,`290 F.2d 447., 451 (CA 9):
N.L.R.B. v. Elias Bros. Big Boy, Inc., 327 F.2d 421, 427 (C.A. 6); see Note
5 A.L.R. 2d 893, 896, 907-908, 909-911. As the Seventh Circuit stated in W. H.
Miner, Inc. v. Peerless Equipment Co., 115 F.2d 650, 655, cert. denied 312 U.S.
687: "Furthermore, the master rightfully suggested that the failure of available
officers who had personal 'knowledge -of- the ifacts to testify ;raised, an inference
unfavorable to defendant's attempted allocation."
In the absence of Johann's testimony, the record compels disbelief of the Com-
pany's story that it fired Bruning, Galloway, and Sumrall because of Johann's
alleged report on their race prejudice. The record is clear that their timecards
were removed from the rack on October 13. But Cowan's card was not missing
until the next day, and according to Mitchell's own testimony he had not decided
to fire Bunker until he heard of Bunker's "insubordination." Yet Mitchell had
first hand awareness of Cowan's prejudice, and at least as much reason to believe
Bunker guilty of that offense as he had to believe it of the three day-shift men.
If their cards were pulled and their discharges settled on because of a fear of
race prejudice, Cowan's and Bunker's would have been handled the same way at
the same time.
I find, in short, that the reasons assigned both at the time of discharge and at
the hearing were not the real reason for the discharge of Bruning, Galloway, and
Sumrall.
These "negative" findings do not of themselves, however, establish General
Counsel's case. General Counsel also showed that these men had engaged in union
activity on the premises, that they had signed union cards, that they (together with
Cowan, Bunker, and two others) attended a union meeting the night before their
discharge, that each of them had also given cards to one or two other employees,
and that the Company was opposed to the advent of the, Union. The question is
whether these facts added to the spurious reasons advanced by the Company add
up to an affirmative case for the General Counsel. The courts have held that a
disproportionate selection of union men for discharge "may under certain circum-
stances be very persuasive evidence of discrimination." N.L.R.B. v. Bachelder, 120
F.2d 574, 578 (C.A. 7), cert. denied 314 U.S. 647; N.L.R.B. v. Shedd-Brown Mfg.
Co.. 213 F.2d 163, 174 (C.A. 7). But the Company argues here that the record
contains no evidence whatsoever that it was aware of any union activity at the
time it discharged the three day-shift men, and indeed that Mitchell testified posi-
tively to the contrary.
Mitchell's testimony, if credited, would compel a finding that the Company was
unaware of union activity: This would put the case in the "Discharge for no rea-
son at all" category (if such cases actually do exist), for as shown above I find
on this record that the three were not discharged for the reasons given them or
for those advanced at the hearing. By the same token, having found against the
Company on its asserted grounds, I have in effect stated that I do not credit
Mitchell.
With all this, however, we are left with little affirmative evidence in the record
that the Company knew or believed these men to be in the Union. The most that
can be said on the affirmative evidence is that Johann (according to Mitchell)
referred to them as a clique , and the word "insubordination" appears as a ground
for their discharge , although there is not a scintilla of evidence that they were
guilty of any insubordination beyond joining the Union. In addition , the record
discloses that eadh of them engaged in some union activity in the plant at this
time , and that the plant consisted of only 18 or 19 men on the day shift, and 3
,or 4 on the night shift. This circumstance, when coupled with the employer's
admitted hostility to the Union, and with the affirmative evidence that false rea-
sons were given for the discharges, warrants the inference that the true reason,
which was concealed, was the union activity. See the recent discussion of the "small
HESMER FOODS, INC. 491
plant" doctrine by the first circuit, enforcing the Board 's Order in a case involv-
ing a plant of 100 employees. N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880
(C.A. 1), enfg. Malone Knitting Company, 152 NLRB 643. I therefore find that
the Company discharged Sumrall, Bruning, and Galloway for union activity.3
2. Bunker
The Company contends that Bunker was discharged for being insubordinate
to Johann. The Company makes no contention that his work was unsatisfactory
(notwithstanding the statement to that effect on the statement accompanying his
final paycheck), and makes no contention that his alleged race prejudice (which
he denied, but which Cowan, apparently in error, reported to Mitchell) played
any role in the discharge And while the Company admittedly knew of Bunker's
union activity when Mitchell fired him, this would not serve to protect Bunker
against a discharge for insubordination.
Bunker denied that he was insubordinate. I found him a somewhat untrust-
worthy witness, evasive and unreliable, and would not rest my decision on his
self-serving testimony. But the testimony of the only witnesses to the scene between
Bunker and Johann who testified at the hearing supports Bunker's testimony. Their
testimony establishes that when Johann learned Bunker was telephoning the Union
an argument ensued between them, that both men became angry, and that Bunker
did not menace or threaten Johann.
The exact words of the argument are not reported, beyond Bunker's statement
that there will be a union, a reply to Johann's observation that there was no union
there. Under circumstances not too dissimilar, an employee was held within the
protection of the statute when he referred to his supervisor in most uncomplimen-
tary terms. N.L R B. v. Thor Power Tool Cu, 351 F.2d 584 (C.A. 7). A mere
showing that Bunker, while engaging in union and concerted activity, got into an
argument with a supervisor about unions falls far short of establishing that he was
so insubordinate as to forfeit statutory protection.
Of course, if Bunker had physically threatened Johann the case would be
otherwise. But on this record, the proof is that he did not do so. Had the Com-
pany wanted to establish the contrary, particularly after Bruning's testimony that
Bunker did not assume a threatening attitude, it could have called Johann as a
witness.
To be sure, Johann told Mitchell that Bunker had been abusive and threatening.
Since Mitchell acted on Johann's report, the case is similar to N.L R.B. v. Burnnp
& Suns, 379 U S. 21. It matters not, under that case, that Mitchell honestly
believed Bunker had threatened Johann, for Mitchell knew that Bunker had been
engaged in a protected activity (telephoning the Union to protest the discharges),
the basis of the discharge was an alleged act of misconduct in the course of that
activity, and the proof establishes that the employee was not in fact guilty of
that misconduct.
I find, therefore, that Bunker was engaged in a protected activity in his dis-
cussion with Johann, and that the proof affirmatively establishes that he did noth-
ing to forfeit that protection. His discharge for that activity violated Section
8(a)(1) under the Burnup case. In addition, I find that Mitchell in firing Bunker
called him an "agitator" Cowan, who is still in the Company's employ, corrob-
orated Bunker as to this, and I credit them over Mitchell's less-than-categorical
denial. The race issue had not yet been injected into the conversation, and the
term "agitator" appears to have referred to Bunker's union activity. I find, there-
fore, that Mitchell in discharging Bunker was also motivated by a resentment of
this activity, and therefore the discharge violated Section 8(a)(3) as well as
Section 8(a)(1).
3 Cowan
Cowan's discharge apparently resulted from his participation in the conversa-
tion between Mitchell and Bunker. Mitchell testified that Cowan's opposition to
3 General Counsel does not contend that if Sumrall, Galloway, and Bruning were jointly
opposed to the hiring of Negroes, this would be protected concerted activity on their part.
In my view employees acting in concert in support of nondiscrimination in hiring are
engaging in protected activity (see N L R.B. v. Tanner Motor Livery, Ltd., 349 F 2d 1, 4
(C A. 9)), but employees acting in concert to support racially discriminatory hiring
policies would not be protected by the Act as their objective would be contrary to the
public policy of the United States as expressed in the Civil Rights Act of 1964. Cf Southern
Steamship Company v. N.L R.B., 316 U.S 31, 47.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hiring of Negroes was likewise a factor, but although Mitchell was aware of
this attitude as early as October 11, Cowan's timecard was still in place on Octo-
ber 13, after Bruning's, Sumrall's, and Galloway's had been removed, and Cowan
did not learn of his discharge until the following morning.
Mitchell testified that Cowan said something during Mitchell 's conversation with
Bunker, that Mitchell asked Cowan, "What did you say," that Cowan replied "I
wasn 't talking to you," and that this reply showed so bad an attitude (Mitchell
referred to it as "popping off") that he instantaneously determined to let Cowan go.
On the other hand, Cowan and Bunker describe the episode as arising out of
Mitchell's calling Bunker an "agitator," at which time Bunker asked Cowan if he
heard the expression, Cowan replied "Yes, I heard it," and Mitchell turned on
Cowan with "What have you got to do with this ?" Piecing the three versions
together, I find that Cowan answered that query by saying , "I wasn't talking to
you," and Mitchell reacted as described above.
In the light of all circumstances , I find that Mitchell 's irritation at Cowan
stemmed in substantial part from Mitchell's discovery that Bunker and Cowan
were allied in the union matter to which Mitchell referred when he called Bunker
an "agitator ." It follows, of course, that Cowan 's discharge was likewise violative of
Section 8 (a)(3) and (1) of the Act.
CONCLUSION OF LAW
The Company by discharging Bruning, Bunker, Cowan , Galloway, and Sumrall
under the circumstances and for the reasons described above engaged in unfair
labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
THE REMEDY
I shall recommend an order directing the Company to cease and desist from its
unfair labor practices and from any other invasions of its employees' rights under
Section 7 of the Act. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A.
4). Affirmatively , I shall recommend that the Company reimburse the five employ-
ees in question for losses incurred between October 14, 1965, and January 11, 1966,
inclusive , under the formulas approved by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and that it
post appropriate notices.
Upon the foregoing findings of fact and conclusion of law, and upon the record
as a whole I recommend, pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Hesmer Foods , Inc., it; officers , agents, successors , and assigns , shall:
(1) Cease and desist from:
(a) Dicharging or otherwise discriminating against any employee because of his
membership in or support of Hotel & Restaurant and Bartenders International
Union, AFL-CIO, or any other labor organization.
(b) In any other manner interfering with, restraining , or coercing employees in
the exercise of their rights under Section 7 of the Act.
(2) Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Make Robert Binning, James Bunker, Charles Cowan, Max Galloway, and
Robert Sumrall whole in the manner described in the portion of the Trial Exam-
iner's Decision entitled "The Remedy" for any loss of earnings suffered by reason
of the discrimination against them.
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its plant on Stockwell Road in Evansville , Indiana, copies of the
attached notice marked "Appendix." 4 Copies of such notice, to be furnished by the
'In the event that this Recommended Order is adopted by the Board, the words "an
Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by a decree of a United
States Court of Appeals the words "a Decree of the United States Court of Appeals En-
forcing" shall be inserted immediately preceding "an Order."
GENERAL TRUCKDRIVERS , LOCAL NO. 5 493
Regional Director for Region 25, after being duly signed by an authorized repre-
sentative of the Respondent , shall be posted immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter , 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.
(d) Notify the Regional Director for Region 25, in writing , within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to
comply herewith s
' In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL pay Robert Bruning, James Bunker , Charles Cowan, Max Gallo-
way, and Robert Sumrall for wages they lost between October 14, 1965, and
January 11, 1966.
All our employees have the right to join or assist Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO, or any other union.
WE WILL NOT discharge or discriminate against employees , or interfere with
them in any way, because of their union activity.
HESMER FOODS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana 46204, Telephone 633-8921.
General Truckdrivers , Warehousemen and Helpers of America,
Local No. 5, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(Ind.) (Ryder Truck Lines, Inc.) and Joseph D. Albin. Case
15-CB-751. October 26, 1966
DECISION AND ORDER
On June 9, 1966, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended they be
161 NLRB No. 35.