Hygrade Food Products Corp.

National Labor Relations Board - Board Decisions

Sep 3, 1941

35 N.L.R.B. 120 (N.L.R.B. 1941)

In the Matter of HYGRADE FOOD PRODUCTS CORPORATION and UNITED
OFFICE AND PROFESSIONAL WORKERS OF AMERICA, LOCAL 26 (C. 1. 0.)
In the Matter of HYGRADE FOOD PRODUCTS CORPORATION and OFFICE
WORKERS FEDERAL UNION , LOCAL 22410, AFFILIATED WITH A. F. L.
Cases Nos. C-1895 and C-1896.-Decided September 3, 1941
Jurisdiction : meat packing industry
Unfair Labor Practices
In General: employer held responsible for statements and utterances made by
an employee engaged as "head office auditor."
Interference, Restraint, and Coercion: questioning employees concerning union
and union meetings ; seeking to discourage union membership through threats
of discharge and surveillance of union meetings; bribing union members to
refrain from further union activities; making statements derogatory to the
union membership, interests, and activities of its employees
Discrimination: discharge of an employee because of his union membership
activity ; allegations of, dismissed as to one employee
Remedial Orders : back pay awarded employee discriminatorily discharged but
who did not desire reinstatement from date of discrimination to date upon
which he started working steadily in the employment in which he was engaged
at the time of the hearing.
Mr. Earl R. Cross, for the Board.
Bratton and Bratton, by Mr. Guy G. Bratton and Mr. John F.
Langs, of Detroit, Mich., for the respondent.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Office and Professional Workers
of America, Local 26 (C. I. 0.), herein called the United, and by Office
Workers Federal Union, Local 22410, affiliated with the A. F. L., herein
called the Union, the National Labor Relations Board,` herein called
the Board, acting pursuant to Article II, Section 36 (b), of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
on December 11, 1940, ordered said cases consolidated for the purpose
of hearing. Thereafter, the Board, by the' Regional Director for the
35 N. L. R. B., No. 25.
120 1
HYCRADE FOOD PRODUCTS CORPORATION 121'
Seventh Region (Detroit, Michigan), issued its complaint dated April
4, 1941, against Hygrade Food Products Corporation, Detroit, Michi-
gan, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, 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 thereon
were duly served upon the United, the Union, and the respondent.
The complaint, as amended, alleged in substance that (1) the re-
spondent had interfered with the employees at its Detroit offices in
the exercise of their right to self-organization by (a) fostering a cam-
paigii against joining the United or the Union, (b) expressing hostil-
ity to labor organizations, (c) inquiring of office employees concern-
ing union meetings, (d) engaging in surveillance of union members
and union activities, and (e) inducing union members to refrain
from union activities by threats of discharge and by bribery; (2) the
respondent discharged or laid off Dorothy E. Holdren and George W.
MacFarlane and thereafter refused to reemploy them, for the reason
that each of them had, respectively, joined the United and the Union
and had engaged in other union activity. -
On May 14, 1941, the respondent filed an answer to the complaint,
admitting the allegations therein relative to the nature of its busi-
ness, but denying that it had engaged in the unfair labor practices
alleged in the complaint.
Pursuant to notice, a hearing was held from May 15 to 17, 1941, at
Detroit, Michigan, before Mortimer Riemer, the Trial Examiner duly'
designated by the Chief Trial Examiner. The Board and the re-
spondent were represented by counsel who participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded
all parties. During the course of the hearing, the Trial Examiner
granted,, without objection, a motion by Board's counsel to amend the
complaint in a minor respect.
At the conclusion of the hearing ruling was reserved by the Trial
Examiner upon the respondent's motion to dismiss the complaint;
the Board's motion to conform the pleadings to the proof as to mat-
ters of form was granted without objection. During the course of
the hearing, the Trial Examiner made numerous rulings on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. They are hereby affirmed.
On June 3, 1941, the Trial Examiner issued his Intermediate Re-
port, in which he denied the respondent's motion to dismiss upon
which he had previously reserved ruling. He found that the re-
spondent had engaged in and was engaging in unfair labor prac-
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices affecting commerce, within the meaning of Section 8 (1) and
(3), and Section 2 (6) and (7) of the Act-and recommended that
the respondent cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act. On June 26, 1941,
the respondent filed exceptions to the Intermediate Report together
with a supporting brief.
Pursuant to notice duly served upon the respondent, the United,
and the Union, a hearing was held before the Board at Washington,
D. C., on July 22, 1941, for the purpose of oral argument.
The Board has considered the exceptions and the brief filed by the
'respondent and, in so far as the exceptions are inconsistent with the
findings, conclusions, and order set forth below, finds no merit in
them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Hygrade Food Products Corporation, is a New
York corporation engaged in meat packing and slaughtering, with its
principal office and place of business in New York City. ) The re-
spondent manufactures, processes, sells, and distributes beef, veal,
mutton, pork, and related products. It operates and maintains
plants, warehouses, and sales offices at Buffalo, Syracuse, and
Utica, New York; Cleveland, Ohio; Wheeling, West Virginia; Fos-
toria, Ohio; and Detroit, Michigan. This proceeding concerns only
the office employees at the Detroit plant.
Between July 1 and November 1, 1939, raw materials shipped to
the Detroit plant from points outside the State of Michigan amounted
in value to $7,836,073.63 and constituted more than 50 per cent of
the value of all raw materials shipped to the plant during that period.
During the same period the gross value of the respondent's ship-
ments of finished products from its Detroit plant to points outside
the State of Michigan amounted to $9,298,548.43, which constituted
more than 50 per cent of the gross value of all sales of finished
products at that plant for that period. The Detroit plant is under
contract to supply products to the United States Army and Navy
and to the Federal Surplus Commodities Corporation. The respond-
ent employs approximately 55 employees in its Detroit office.
The respondent admits that it is engaged in interstate commerce.
IT. THE ORGANIZATIONS INVOLVED
United Office and Professional Workers of America, Local 26,
affiliated with the Congress of Industrial Organizations, and Office
HYGRADE FOOD PRODUCTS CORPORATION 123
Workers Federal Union, Local 22410, affiliated with the American
Federation of Labor, herein called the A. F. of L., are labor organiza-
tions admitting to membership office employees at the respondent's
Detroit plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In September 1938, employees in the respondent's Detroit office
evinced an interest in union membership. Dorothy E. Holdren, one
of the complainants herein, testified that some of the office workers
"were very disgusted with the way things were down there, and
they asked me if there was any way I could find out. They knew I
was in touch with different people that belonged to the union, and
I said I would try to find out, so I did." Accordingly, Holdren con-
sulted Grace Taylor, organizer for the United, and secured informa-
tion concerning the United. Thereafter, Holdren spoke to those
office employees who "had complained" to her and at whose request
Holdren had solicited information concerning the United. These
workers were of the opinion that organization of the United should be
supported: Thereafter, upon invitation of Holdren, an initial meet-
ing attended by 11 employees was held at Holdren's home. One week
later a second meeting of nine employees was again held at Holdren's
home, and plans were made to distribute union leaflets to the em-
ployees and to hold a third meeting at the headquarters of the United.
Following the second meeting, leaflets were distributed among the
employees in the respondent's office. Spileers, a claim clerk, testi-
fied, and we believe his testimony, that on the day of the third meet-
ing Ernest Graham, the respondent's office manager, asked him,
"Did you ever hear of the office union going around here?"; that
Graham then showed Spileers a United leaflet, distributed in the
office that day, which advised the employees of a meeting of the
United to be held that evening; that Spileers, who had not attended
either of the first two meetings, asked Graham whether the latter
wanted him to be present at the meeting scheduled for that evening
and said "... I will go if you want me to"; that Graham made no
response to this offer but that Spileers, nevertheless, told Graham
that he would attend ; and that thereafter Spileers invited Edward
Gorman and Lyle Sunderland, two bookkeepers, to accompany him.
Spileers testified further, and we accept his testimony as true, that
he told Sunderland that he would notify Graham that they were
going to the meeting to observe what occurred; and that, although
they were at first reluctant to agree, Gorman and Sunderland sub-
sequently went to the meeting on Spileers' assurance that Graham
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew that it was being held and consented to their presence there.
Spileers, Sunderland, and Gorman never joined the United.
Six employees, including Holdren, Spileers, Sunderland, and Gor-
man, were present at the meeting that evening. According to the tes-
timony of Holdren, Spileers told the employees present at the meeting
that he had been sent there by the respondent and that they were
likely to be discharged for their union activities. Although Spileers
in effect denied Holdren's testimony in this regard, the Trial Exam-
iner credited Holdren's testimony. Under these circumstances we
find, as did the Trial Examiner, that Spileers made the statements
attributed to him by Holdren. The following day Spileers reported
to Graham concerning the meeting. He advised Graham that all of
the employees who belonged to "the group" were not present; that
he did not know who else belonged and that Holdren had stated that
she was the only person who possessed this information; and that the
employees present were "out to get him," Graham, because they were
not satisfied with his policies. Spileers also advised Graham that
Holdren appeared very much dissatisfied by reason of the fact that
she was compelled to forego her vacation and to accept, in lieu
thereof, additional salary; and that the employees present were of
the opinion that "it was only a matter of time" before Graham would
find some reason for discharging them because of the union activity
in which they were engaging and, for this reason, organization was
necessary "for their own protection."
Spileers testified that he "volunteered" this information and was
not questioned concerning the meeting by Graham. Graham ad-
mitted that Spileers told him that Holdren was at the meeting. Gra-
ham was not questioned by the respondent's counsel concerning any
portion of Spileers' testimony relating to this meeting and to or-
ganization of the United. We do not accept Spileers' testimony that
he "volunteered" the information concerning the United meeting-to
Graham but, on the contrary; believe, as did the Trial Examiner, that
Spileers considered that he was imparting information which the
respondent desired. Graham had asked Spileers about the United
prior to the meeting and had shown him a United leaflet. When
Spileers asked whether Graham wanted him to attend, Graham re-
mained silent. Whereupon Spileers told Graham that he would go to
the meeting, and Graham did not object. These facts and the cir-
cumstances under which Gorman and Sunderland attended the meet-
ing on Spileers' invitation, together with the statement of Spileers
made at the meeting that he was sent there by the respondent, indicate,
and we find in agreement with the Trial Examiner, that Spileers
attended the meeting at Graham's suggestion and was expected to, and
did thereafter, in fulfillment of the suggestion, report.to him on what
HYGRADE FOOD PRODUCTS CORPORATION 125
took place there. Our finding in this respect is further supported
by the fact that on another occasion, not fixed as to time, Graham
asked Spileers if he had attended any other meetings of the United.
Spileers testified without contradiction and we find such testimony
to be true, that on this occasion, Graham asked him if he had attended
any more meetings of the United and that he had replied that he had
not; that it was "too soon since the last one" and that he was afraid
that the employees present at the meeting which he attended had felt
that he was antagonistic and had come there "for adverse purposes."
Holdren was laid off on October 21, 1938, under circumstances more
fully related hereafter. Shortly thereafter, two active members of
the United resigned their membership, and the United's organizing
efforts ceased among the office employees.
In July or August 1940 the Union began its organizing activity
when George W. MaicFariane, the other complainant herein, and
Spileers conferred with an A. F. of L. representative for the purpose
of creating a local for the respondent's office employees. Following
this initial conference, a meeting attended by seven employees, includ-
ing MacFarlane and Spileers, was held at the Union's headquarters.
Application cards were distributed and signed and a charter was
obtained from the A. F. of L. setting up a federal local for the
respondent's office employees.
Herman Frankfort, the respondent's head office auditor in New
York City, came to Detroit on periodic visits in connection with his
duties. In August 1940, on a visit to Detroit, he questioned John
Walton, then employed as a file clerk, concerning the union activities
and interests of the office employees. According to Walton's uncon-
tradicted testimony, Frankfort brought up the subject of unions by
asking Walton whether he believed in them. When Walton replied
that he did "to a certain extent," Frankfort advised him that "the
unions won't get you anywhere" and then explained that he, Walton, _
had- "just started" and "if the, seniority came in"• he would be "one
of the first to go" in the event of a lay-off. Walton testified further
that Frankfort then asked him if he belonged to the Union, and
when he replied that he did not, offered to consult Graham in Wal-
ton's behalf and obtain a salary increase for him.
One day in August 1940, Frankfort told Spileers that unions did
not represent their members ; that competent individuals did not need
unions to represent them; and questioned him concerning union ac-
tivity in the plant. Later in the morning of the same day, while
Spileers was at work, Frankfort engaged him in further conversation.
Spileers testified without contradiction concerning this conversation :
I was working at my desk, and he came over, and I had large
sheets of paper that I was figuring on, which had a considerable
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of red figures in writing, and he mentioned the fact
what were these red figures. You people around here are all
writing in red, the spirit of Trotsky still lives, and from that
he developed into union activity again, and said that, after all,
the security of individuals' positions depended upon how they
acted from day to day. Sometimes they might get into activi-
ties which were sinister in a way, so far as the employers was
concerned, and he didn't believe that such activities were necessary.
Frankfort did not testify and the statements attributed to him
stand unrefuted in the record. The testimony of Walton and Spileers
in the above respects was credible and convincing and was accepted
by the Trial Examiner as true. We find that Frankfort made the
statements attributed to him above. In addition to the significant
title, "head office auditor," which Frankfort carried, it is clear that
his duties allied him more closely with management than with the
ordinary employees and it is reasonable to assume that to those
employees the head office auditor represented management. His
duties were performed without supervision by Graham or Harry F.
Staub, the respondent's vice president and general manager. Thus,
Frankfort was clothed by the respondent with apparent authority
to direct the work of others on his visits to Detroit and he occupied
a,strategic position to translate to the employees the desires of man-
agement. Under these circumstances we find the respondent respon-
sible for the statements and utterances of Frankfort.'
The Union held a meeting on August 22. Two days later Mac-
Farlane was discharged. In September, Bown, president of the
Union, and Spileers interviewed Staub on behalf of MacFarlane,
claiming that he had been discharged for his union activities. The
testimony is undenied that they also told Staub that the union was
meeting with interference in its organizing activities and that they
asked that the Union be permitted to continue its organizing without
further interference by the respondent. Staub on that occasion denied
interference with the activities of the Union. Then, according to the
uncontradicted testimony of Bown, Staub expressed his dislike for
outside unions and said that he saw no reason why employees had to
pay dues to an outside organization and that it would be better for
them to retain their money instead of expending it for union dues.
Staub also told Bown and Spileers that the Union was trying "to
run things," and suggested that the employees "organize among our-
1H. J. Heinz Co. v. National Labor Relations Board, 311 U. S. 514, aff'g 110 F. (2d)
843 (C. C. A. 6) enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers,
Local Union No. 325 , affiliated with Amalgamated Meat Cutters and Butcher Workmen
of North America, American Federation of Labor, 10 N L. R. B. 963; International A880-
ciation of Machinists , Tool and Die Makers Lodge No. 35, etc. v. National Labor Relations
Board, 311, U. S. 72.
HYGRADE FOOD PRODUCTS CORPORATION 127
selves, and forget an AFL or CIO backing." Staub did not testify
and the statements attributed to him are not denied. We find, as did
the Trial Examiner, that Staub made the statements in question and
that they were intended to discourage membership in the Union.
Four or 5 days after this conference with Staub, Spileers was called
to Staub's office. Staub told Spileers that he, Staub, and Samuel
Slotkin, the respondent's president, then visiting the Detroit plant, had
just concluded "considerable discussion" about Spileers. Staub told
Spileers that Slotkin was of the opinion "that probably Spileers wasn't
getting enough money." Spileers testified further without contradic-
tion, and we find, with respect to this conversation, that Staub made
the following statements to him:
.. . there are times in the lives of individuals when obligations
are pressing, and that causes us to do things which we wouldn't
otherwise do, so that Mr. Slotkin had offered to give me a raise,
$5 a week-it would amount'to about $250 a year, he said. How-
ever I was to discontinue all my activities. And, I asked him,
"Did you mean that I am to discontinue the union activity?" .. .
and he said, "Yes, discontinue it because let us go back to where
we were at the beginning."
Graham admitted that Staub instructed him to give Spileers this in-
crease in salary. Thereafter Spileers received weekly, in addition to
his regular salary for services as claim clerk, a check in the amount of
$5 drawn on the respondent's special account. Whereas his salary
check, drawn on the respondent's general account, was given him by
the pay-roll clerk, Graham handed Spileers the special account check
every week. Graham testified that Spileers was carried on the re-
spondent's special pay roll for the reason that the salary increase was
confidential and that the respondent did not wish to disclose it to
other office employees. Spileers appears to have been the only non-
supervisory employee carried on the respondent's special pay-roll
account. At the time of the hearing Spileers was still receiving $5
a week in addition to his regular salary. We find, as did the Trial
Examiner, that the $5 weekly wage increase was given to Spileers by
the respondent as an inducement to cease his activities on behalf of the
Union.
As in the case of the organizing efforts of the United, the activities
of the Union ceased shortly after the respondent's active interference.
Spileers no longer participated in=union affairs and, according to his
testimony, the local thereafter existed "in name only." Ruhstorfer
and Sunderland, members of the Union, resigned from the local after
MacFarlane's discharge. According to Bown, the president of the
Union, the local is kept in good standing only by payment of a per
capita tax, although few members pay their dues.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, the respondent introduced no testimony during the
hearing in defense of the charges herein. It is apparent from the
above undenied facts and uncontroverted credible testimony, and we
find, as did the Trial Examiner, that from September 1938 to the
date of the hearing the respondent,, by questioning office employees
concerning the United and the Union; by seeking to discourage union
membership through threats of discharge and surveillance of union
meetings; by questioning employees concerning union meetings; by
bribing union members to refrain from further union activities; and
by making statements derogatory to the union membership, interests,
and activities of its office employees, his interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The discharges
Dorothy E..Holdren
Holdren was first employed by the respondent in June 1927 as a
comptometer operator and worked continuously thereafter until her
lay-off in October 1938. She started on a weekly salary of $25 and
at the time of her lay-off was the respondent's highest paid comptom-
eter operator, receiving a weekly salary of $27.
As related above, Holdren was instrumental in September 1938 in
trying to organize on behalf of the United among the office workers.
She invited employees to the first two meetings of the United, which
were held at her home. Her presence at the third meeting was re-
ported to Graham by Spileers. Moreover, Spileers reported to
Graham that Holdren was "very much upset" for the reason that she
had been deprived of her annual vacation.
Holdren's time as a comptometer operator was spent chiefly in the
computation of salesmen's commissions in the sales-distributionde-
partment. A minor portion of her time was devoted to a separate
billing operation. The evidence is clear that Holdren was a com-
petent operator and that there had never been any complaint con-
cerning her work. In addition to being the highest paid comptometer
operator, she was also the oldest in point of service with the respond-
ent and was entrusted by Graham with special tasks. Holdren had
never been discharged or laid off in the more than 11 years she had
worked for the respondent, although several reductions in office per-
sonnel were effected for business reasons during that period.
On Friday, October 21, 1938, Graham showed Holdren a letter
received from the respondent's New York office to the effect that the
respondent was putting its Detroit salesmen on a, salary basis, thus
dispensing with the need to compute salesmen's commissions. Be-
cause of this change in business methods, Graham informed Holdren,
HYGRADE FOOD PRODUCTS CORPORATION , 129
the sales-distribution department would be eliminated and her services
would no longer be required. The sales-distribution department was
discontinued, and the three remaining comptometer operators were
also laid off. Four comptometer operators in the billing department
were not laid off.
At the time of these lay-offs, there was no seniority rule or custom
in force among the respondent's office employees that was applied in
determining lay-offs. Graham testified that if, at the time of her
lay-off, Holdren had indicated her willingness to work for $19 or
$20 per week he would have considered her for a billing job. Hold-
ren, as her testimony indicates, was resentful and hurt by her lay-off
and thereafter never returned to the respondent's office seeking rein-
statement. She testified that she was "not in the habit" of applying
for work in places where "I am not wanted."
The evidence 'shows that comptometer operators have been em-
ployed by the respondent since Holdren's lay-off in October 1938.
Virginia Evans, who was laid off at the same time as Holdren, was
rehired in May 1941 as a comptometer operator, although the record
does not disclose the exact nature of the duties which she assumed.
In connection with her reemployment, Graham testified without dis-
pute that Evans was not called back to work by the respondent but
that on several occasions after her lay-off, she called personally at
the office in search of employment and that she was reemployed on
one of these occasions when "There happened to be an opening just
when she called." The evidence further shows that a modified form
of sales distribution work, which required the use of a limited num-
ber of comptometer operators, was resumed by the respondent some-
time in the spring of 1941. At that time, Catherine Grable, a billing
comptometer operator who had been retained in October 1938,
t,gether with Virginia Zapalski, hired as an order clerk in 1939,
were given this work. Likewise, the record discloses the employment
by the respondent in the fall of 1940 and the spring of 1941 of
three other comptometer operators, none of whom had previously
been in its employ. The record does not indicate the circumstances
under which these three operators were hired or the exact nature of
the work they performed. Graham testified without contradiction
that, although the respondent would under certain circumstances give
preference in employment to laid-off employees over employees who
had never previously been in its employ and that the addresses of
laid-off employees were retained in the office, the respondent did not
follow a practice of recalling laid-off employees to fill vacancies
which might occur, but that "eight times out of ten" such a vacancy
"fills itself, and consequently you are not required to resort to that
file address list."
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the fact that Holdren's lay-off occurred shortly after her
union activities had been brought to the attention of the respondent
might ordinarily create some suspicion as to the respondent's motive,
it is clear from the- undisputed evidence that the lay-off on October
21, 1938, was occasioned by the elimination of the sales-distribution
department and that all the comptometer operators engaged in this
work were laid off at that time. Nor does it appear to be unreason-
able or unusual, in view of the absence of any seniority rule or cus-
tom, that Holdren was not at the time of her lay-off offered a position
as comptometer operator in the billing department, as this would
in turn have necessitated the lay-off of one of the comptometer opera-
tors regularly employed in that department. Thus, there is no evi-
dence in the record upon which - to predicate a finding that the
selection of Holdren as one of the employees to be laid off was
discriminatory.
There remains only the question of whether or not the fact that
Holdren did not secure reemployment after her lay-off shows dis-
crimination against her. Clearly militating against any such
conclusion is the fact that Holdren made no effort to obtain reem-
ployment at any time after her lay-off and the further fact that it is
not shown by the evidence that-the respondent followed any estab-
lished practice of recalling laid-off employees to fill vacancies. Con-
sequently, no discrimination against Holdren can be implied by
reason of the employment of Evans, Grable, and Zapalski for work
which Holdren was qualified to do, as the evidence is undisputed
that these three employees were available and on hand at the time
that the vacancies occurred. Nor can discrimination against Holdren
be assumed by reason of the employment of the three new comp-
tometer operators employed after Holdren's lay-off. We are unable
to agree with the Trial Examiner, who found her discharge to the
discriminatory. Under all the circumstances, we find that the vi-
dence is insufficient to establish that Dorothy Holdren was discharged,
or refused reemployment, because of her union activities. We shall,
accordingly, dismiss the complaint in this respect.'
George W. MacFarlane
MacFarlane was first employed by the respondent in October 1937
as file clerk and worked continuously thereafter until his discharge
on August 24, 1940. In November 1939 MacFarlane's salary was
increased from $16 to $17.50 per week. In February 1940 he was
2 After the close of the hearing, the respondent submitted to the Board a motion to
incorporate in the record certain documents in support of its contention that the depart-
ment in' which Holdren worked was discontinued at the time of her lay-off In view of our
disposition of Holdren's case and because the proffer would be cumulative on this point,
the motion is hereby denied
HYGRADE FOOD,PRODUCTS CORPORATION 131
promoted to the position of assistant clerk to Wilcoxson, the respond-
ent's purchasing agent.
MacFarlane took no part in the activities of, nor did he join, the
United. In July and August of 1940, however, he was instrumental
with Spileers in organizing the Union. He spoke to other office
employees about it and it is clear from the record that MacFarlane
was one of the active members of the Union. The activities of
Frankfort, set forth above, and the circumstances surrounding the
wage increase given Spileers, jointly responsible with MacFarlane
for organization of the Union, clearly show that MacFarlane's union
activities came to the respondent's attention, and we so find.
MacFarlane was discharged on August 24, 2 days after a union
meeting which he had attended. MacFarlane testified that on
August 24 he was told by Graham that "because of business condi-
tions" it was necessary to lay him off. On the other hand, Graham
testified that on that occasion he advised MacFarlane "that I didn't
like his attitude, and that business conditions were not good, and that
he was being discharged." For reasons which will appear below, we
credit, as did the Trial Examiner, the testimony of MacFarlane.
MacFarlane was the only employee laid off at that time. In
previous years he had escaped lay-offs necessitated by business
conditions.
On the Monday following his discharge, MacFarlane, accompanied
by another employee, interviewed Staub, the respondent's vice presi-
dent and general manager, for the purpose of securing MacFarlane's
reinstatement. Staub expressed lack of knowledge concerning the
reason for MacFarlane's lay-off, stated that "business conditions were
pretty bad," and that he would consult Graham about the matter.
Thereafter, MacFarlane never heard from Staub or Graham. Bown,
;resident of the Union, and Spileers, who sought MacFarlane's
reinstatement in September, were told by Staub that MacFarlane
had been "laid off for business reasons."
Graham at first testified that MacFarlane was laid off because of
business conditions. However, the respondent introduced no evi-
dence in support of this contention and offered no explanation as to
why its alleged business conditions required that only MacFarlane
be laid off. We consequently find that this aspect of the respondent's
defense has not been established. Graham later changed his testi-
mony and said that MacFarlane was in fact discharged for insubor-
dination. In support of the latter claim, Graham testified in an
uncertain manner concerning MacFarlane's changed attitude. Be-
cause of its indefiniteness and uncertainty, we find Graham's testi-
mony on this point, as did the Trial Examiner, to be unconvincing.
Further in support of the claim of insubordination, Graham testified
451270-42-vol. 35-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the following incidents : on one occasion MacFarlane was
observed reading "Life" magazine on his own time; on another occa-
sion, 1 week before his discharge , MacFarlane came to Graham's desk
with an invoice for some merchandise , requested him to approve it
for payment and asked, "Well, are you going to pay it?" an!, when
Graham replied that this was a matter for him to decide, MacFarlane
"grabbed" the invoice from his desk and walked away. Graham tes-
tified further that, because of the latter incident , he called MacFarlane
to his desk later in the day, questioned him regarding his behavior,
and warned him that there was no "room " in the respondent 's organi-
zation for one who acted in that manner . Since as we have already
found, Graham told MacFarlane on August 24, 1940, that he was
being laid off merely for business reasons and since Grahair at first
testified that the lay-off was due to business reasons, we find, as did
the Trial Examiner, that the defense - of insubordination, supported
by the trivial incidents recited above, was an afterthought inter-
posed for the first time at the hearing to justify Graham's conduct.
It is therefore apparent, from the respondent 's knowledge of Mac-
Farlane's union activity and from its hostility to any collective action
on the part of its employees , as hereinbefore indicated , that the
discharge was due solely to MacFarlane 's efforts on behalf of the
Union.
We find that the respondent discharged George MacFarlane on
August 24 , 1940, and thereafter refused to reinstate him because of
his membership and activities in organizing the Union, and that
the respondent discriminated against him in regard to hire and
tenure of employment , thereby discouraging membership in the
Union and interfering with, restraining , and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find, that the activities of the respondent set forth in Section
III' above , occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order that it cease and desist therefrom and take
certain affirmative action deemed necessary to effectuate the policies
of the Act.
HYGRADE FOOD PRODUCTS CORPORATION 133
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of George W. MacFarlane.' In
late September 1940, after his discharge by the respondent, MacFar-
lane entered business school and on completion of the course of train-
ing in February 1941, secured the employment in which he was
engaged at the time of the hearing and at which he earned between
$35 and $40 a week. - While working for the respondent he had been
earning $17.50 a week. He testified that he did not desire reinstate-
inent. We will, therefore, not order MacFarlane reinstated but will
order that the respondent make him whole for any loss of pay he
may have suffered by reason of the discrimination against him by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages from the date of the discrimi-
nation against him to the date upon which he started working
steadily in the employment in which he was engaged at the time of
the hearing, less his net earnings 3 during said period. Having found
that the respondent did not discriminatorily discharge Dorothy
Holdren, we shall further order that the complaint be dismissed as
to her. '
Upon the basis of the above ;findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Office and Professional Workers of America, Local 26,
affiliated with the Congress of Industrial Organizations, and Office
Workers Federal Union, Local 22410, affiliated with the American
Federation of Labor, are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
n-ent of George W. MacFarlane, thereby discouraging membership
in Office Workers Federal Union, Local 22410, affiliated with the
American Federation of Labor, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section & (1) of the Act.
3 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection-with obtaining work and working 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 and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 5590, 8 N. L R B 440. Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings See Republic Steel Corporation v. National Labor Relations
Board, 311 U S. 7.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Dorothy Holdren, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10- (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Hygrade Food Products Corporation, Detroit, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Office Workers Federal Union,
Local 22410, affiliated with the American Federation of Labor, or
any other labor organization of its employees, by discriminating in
regard to the hire and tenure of employment or any term or con-
dition of employment of its office employees ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining and other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Make whole George W. MacFarlane for any loss of pay he
may have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which lie
normally would have earned as wages from the date of the re-
spondent's discrimination against him to the date upon which he
started working steadily in the employment in which he was engaged
at the time of the hearing, less his net earnings during said period ;
(b) Post immediately, in a conspicuous place in the office of
its plant at Detroit, Michigan, and maintain for a period of at
least sixty (60) consecutive days from the date of posting, a notice
to its office employees stating : (1) that the respondent will not en-
gage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a) and (b) of this Order; (2) that it will take
the affirmative action set forth in paragraph 2 (a) of this Order;
and (3) that the respondent's employees are free to become or remain
members of Office Workers Federal Union, Local 22410, affiliated
with the American Federation of Labor, and that the respondent
HYGRADE FOOD PRODUCTS CORPORATION 135
will not discriminate against any employees because of membership
or activity in said organization;
(c) Notify the Regional Director for the Seventh Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged
in unfair labor practices, within the meaning of Section 8 (3) of
the Act, with respect to Dorothy Holdren.