Norfolk Livestock Sales Co.

National Labor Relations Board - Board Decisions

Jun 7, 1966

158 N.L.R.B. 1595 (N.L.R.B. 1966)

NORFOLK LIVESTOCK SALES -COMPANY " ' 1595
Norfolk Livestock Sales Company and United Packinghouse, Food
& Allied Workers , AFL-CIO. Case No. 17-CA-2604. June 7,
1966
DECISION AND ORDER
On December 22, 1965, Trial Examiner Arthur Christopher, Jr.,
issued his Decision in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and -a brief in support thereof and the General Counsel
filed cross-exceptions. ,
Pursuant to 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 [Mem-
bers Fanning, Brown, and Jenkins].
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 brief, the cross-
exceptions, and the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the Trial Examiner,
except as noted hereafter.
The Trial Examiner found that the Respondent violated Section
8 (a) (1) by the implementation of an improved vacation plan after'
July 18, 1964, and prior to the election of December 18, 1964.2 We
do not agree. In our view the record does not establish that at the
time the vacation plan was announced or placed in effect Respondent
was aware 'of any union activity or union organizational campaign
among its employees, and it does not appear that Respondent subse-
quently amended or otherwise altered the vacation plan after it
learned of such union activity among its employees. Moreover, the
fact that some of the employees did not receive their vacation bene-
fits which had been announced previously until sometime after
Respondent becameaware of the union activity does not warrant a
finding that Respondent unlawfully implemented the vacation plan
in violation of Section 8(a) (1).3
i In his conclusions of law, the Trial Examiner failed to set forth that Respondent
violated Section 8 ( a) (1) of the Act by doubling the Christmas bonus and advancing its
payment to a date shortly before the election , and violated Section 8 ( a)(4) by reducing
Kleensang's hours after warning him not to make a liar out of Cecil Emrich at a Board
hearing. We so conclude with respect to those unfair labor practices.
2 The Trial Examiner inadvertently described these events as occurring in 1965 instead
of 1964 , and the correction is hereby made
8 Cf. TMT Trailer Ferry, Inc., 152 NLRB 1495, footnote 1.
158 NLRB No. 136.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Norfolk Livestock Sales Company, Norfolk,
Nebraska, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Unlawfully creating the impression of surveillance of the
union activities of employees
(b) Unlawfully interrogating employees about their union activ-
ity or threatening them with reprisals for engaging in such activity
(c) Unlawfully warning of threatening employees concerning
their testimony at Board hearings
(d) Unlawfully increasing the amount of bonuses and advancing
the date of the bonus payment in carder to induce employees to vote
against the Union
(e) Discouraging membership in the Union or any other labor
organization by reducing the working hours or otherwise discrimi-
nating in regard to hire or tenure of employment of any employee
(f) In any pother manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, land to engage in
other concerted activity for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities
2 Take the following affirmative Faction designed to effectuate the
policies of the Act
(a) Make John D Kleensang, Bernard Vyhildal, and Marvin
Qaek whole for any loss of pay they may have suffered by reason of
the reduction in their working hours and restore them to the same
positions they would have enjoyed but for the discrimination prac-
ticed against them, in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy "
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due and all other rights under the terms of this Order
(c) Post at its operation at Norfolk, Nebraska, copies of the
attached notice marked "Appendix " 4 Copies of said notice, to be
4 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words a Decision and Order" the words a Decree of the
United States Court of Appeals Enforcing an Order 11
NORFOLK LIVESTOCK SALES COMPANY 1597
furnished by the Regional Director for Region 17, shall, after being
duly signed by the Company's representative, be posted by the
Company 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 Rea-
sonable steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 17, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Puisuant to a decision and order 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 NOT create the impression of surveillance of the
union activities of our employees
WE WILL NOT unlawfully interrogate oui employees about
their union activities and WE WILL NOT threaten our employees
with reprisals foi engaging in union activity
WE WILL NOT warn or threaten our employees concerning their
testimony at Board hearings
WE WILL NOT increase or advance bonuses of our employees
in order to induce them to vote against the Union
WE WILL NOT discourage membership in any union by dis-
criminatorily reducing the working hours of our employees, or
by otherwise discriminating in regard to hire or tenure of
employment
WE WILL NOT in any other manner interfere with, restrain,
or coei ce our employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities
Wi WILL make John D Kleensang, Bernard Vyhildal, and
Marvin Gaek whole for the loss of pay they may have suffered
by reason of our discriminatory reduction of their working
hours and WE WILL restore them to the same positions they
would have enjoyed but for our discrimination against them
1598 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
NORFOLK LIVESTOCK SALES COMPANY,
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 compli-
iance with its provisions, they may communicate directly with the
Board's Regional Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone No. FR 4-5082.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Arthur Christopher, Jr., in
Norfolk, Nebraska, on April 30, 1965, on complaint of the General Counsel and
answer of Norfolk Livestock Sales Company, herein called the Respondent.' The
issues litigated were whether the Respondent violated Section 8(a)(1), (3), and
(4) of the National Labor Relations Act, as amended. At the hearing all parties
were represented by counsel or other representative, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to present evidence,
and to file briefs. At the close of the hearing the General Counsel and the
Respondent argued orally and thereafter the Respondent submitted a brief.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Nebraska corporation with its principal place of business located
Norfolk, Nebraska, is engaged in the buying and selling of livestock. During 1964,
the Respondent, in the course of its business enterprise, had gross sales exceeding
$500,000 in value. During the same year the Respondent' s sales directly to cus-
tomers located outside the State of Nebraska exceeded $50,000 in value.
It is admitted, and I find, that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
It is stipulated , and I find, that United Packinghouse , Food & Allied Workers,
AFL-CIO , hereinafter called the Union , is a labor organization within the mean-
ing of the Act.
III. THE UNFAIR LABOR, PRACTICES
A. The issues
The first principal issue in this proceeding is whether the Respondent violated
Section 8(a)(1) of the Act (a) through the alleged promise of economic and
other benefits in a speech to the employees by Respondent's counsel, John E. Tate,
on August 28, 1964, in order to induce them to refrain from becoming union
members or engaging in activity in its behalf; (b) through the alleged conduct of
Cecil O. Emrich and his brother, W. V. Emrich, comanagers of the Respondent,
1 The original charge was filed by the above -named Union on January 18, 1965, and an
amended charge was filed on February 17, 1965
• NORFOLK LIVESTOCK SALES COMPANY— 1599
in granting the employees during September, and December 1964, respectively,
improved vacations. and an increased Christmas bonus, -likewise in order to induce
then from becoming union members or engaging in activity in its behalf; a (c)
through the alleged conduct of Edward Barritt,•;an, admitted supervisor, in Sep-
tember and October, 1964 and January 1965, George Gowler, an admitted super-
visor, on December 16, 1964, and Clarence Papstein, an, alleged supervisor, on
December 30, 1964, threatening employees with economic or other reprisals to
discourage membership in, and activity on behalf of the Union or other concerted
activities;. (d) through the alleged conduct of Papstein, on December 30, 1964,
and Barritt on January 2 and, 4, 1965, interrogating employees concerning their
union membership or activities; and (e) through the alleged conduct of Barritt in
October 1964 and on various dates in January 1965,,and Papstein on December 30,
1964, engaging .in, -and/or creating the impression of, surveillance of union, or
other protected concerted activities of employees. The second issue is, whether
the Respondent violated Section 8(a)(3) and (1) of the Act through the alleged
discriminatory reduction of the hours of employment of John Kleensang, Bernard
Vyhildal, and Marvin Gaek; and its subsequent failure and refusal to restore these
three employees to their -former or' substantially equivalent working conditions
because they assisted the Union and engaged in other protected concerted activity.
The third issue is whether the Respondent violated Section 8(a)(4) of the Act
through the alleged reduction of Kleensang's hours of employment and its sub-
sequent failure and refusal to restore him to his former or substantially equivalent
working conditions because of the appearance and testimony of Kleensang in the
hearing conducted by the Board in Case No. 17-RC-4569, a representation proceed-
ing involving the Respondent.
. 1 - . B. Background,
This proceeding was an outgrowth of an unsuccessful union campaign that
began about the latter part of June or the first of July, 1964, which was itself the
subject of the aforementioned representation proceeding in Case No. 17-RC-4569.
The Union lost the election which was held in that case on December 18, 1964, by
vote of 37 against, and 12 for, the Union; but it filed no objections and the
Regional Director certified the results on December 29, 1964.
As indicated hereinabove, the original charge was filed on January 18, 1965.
The' Section 10(b) date is therefore July 18, 1964, precluding the finding of any
unfair labor practice based on conduct which occurred prior thereto. Although
the General Counsel offered evidence concerning Respondent's conduct preceding
the latter date, it is given weight herein only insofar as relevant in determining
whether conduct within the 6-month period was unlawful.3
As stated above, the Respondent is engaged in the buying and selling of livestock
at Norfolk, Nebraska. Cecil 0., Emrich and his brother, W. V. Emrich, serve as
comanagers of the Respondent. Under the Emrichs are certain departments that
function under Everett Barritt, who serves as superintendent of the yards. Norman
Wisch serves as office manager. There are several field men who serve under the
Emrichs and Barritt, including, among others, George Gowler, an admitted super-
visor, and Clarence Papstein, whose supervisory status within the meaning of the
Act is disputed by the Respondent. As several of the issues relating to alleged
threats and interrogation and surveillance of employees involve alleged miscon-
duct on the part of Papstein, a resolution of his status as a supervisor is necessary
in the consideration of the aforementioned issues.
C. The supervisory status of Papstein
In Norfolk Livestock Sales Company, Case No. 17-RC-4569 (not reported in
printed volumes of Board Decisions and Orders) the parties at the formal repre-
sentation hearing litigated the status of Clarence Papstein as a supervisor. There-
after the parties stipulated, inter alias that Papstein should be excluded as a super-
visor. As a consequence Papstein was excluded from the unit of full-time and
regular part-time yard workers found to be appropriate by ' the Regional Director
in that proceeding. Absent a showing of changed circumstances with respect to the
2 The testimony showed that the Respondent granted wage increases to certain employees
which were effective on July 10, 1965. As the 'alleged violation occurred more than
6 months prior to the filing of the charge with the Board, the General Counsel' s motion
to amend the complaint to delete therefrom such allegation was granted without objection.
3 Bryan Manufacturing Company, 119 NLRB 502, 504.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authority of Papstein, I consider myself bound in' this proceeding by the resolution
of the Regional Director ins Case No. 17-RC-4569 that Papstein is a supervisor
within the meaning of the Act. However, counsel for the Respondent stated that
since that proceeding "the duties of- all 8 people [referring to the 8 individuals
whose status as supervisors was stipulated in the representation proceeding ], inso-
far as hiring and firing, were changed, 1 other than Everett Barritt . . . " In the
circumstances I permitted litigation of the question as to whether Papstein's status
as a supervisor had changed since the representation proceeding.4
Superintendent Barritt testified that Clarence Papstein was in charge of haying
and watering of cattle and performs manual, work along with the men in his
group. Barritt further testified that Papstein "is not a supervisor in the sense that
he stands up and tells my men what to db." '
Barritt testified -that there were 8 or 10 men in the groups that Papstein was
in charge of and at times more men were assigned to such groups. With respect
to Papstein's duties, Barritt also testified that they had been the same as they were
prior to October 7, 1964, and that there had been no increase nor any decrease
in Papstein's authority since the latter date. Papstein, like Barritt, is paid on an
hourly basis and receives $1.50 per hour. As to Papstein's specific duties Barritt
testified that he helps sort cattle on sale days and his primary responsibility is to
see that hay is fed to the cattle and that they are watered, receiving his instruc-
tions from Barritt. When one of Papstein's subordinates wanted a day off or if he
wanted a change in his scheduled vacation he would make such requests of Barritt.
Barritt further testified that he is the only person with authority to terminate em-
ployees. In answer to a question as to whether Papstein had the authority to make
recommendations concerning the hire and discharge of employees Barritt was some-
what evasive and replied "he never has at any time." When asked further if
Papstein had been told that he possessed such authority Barritt's answer was "he
never has been given authority for any hiring or firing." Again when asked con-
cerning Papstein's authority to make effective recommendations as to hiring and
discharge of employees Barritt answered "he has never recommended any men be
hired or fired." Barritt testified that all hiring and firing of employees was left
entirely up to him.
With respect to the alleged change in authority of Papstein, Cecil O. Emrich
testified that after December 18, 1964, the Respondent thought it necessary to re-
organize its structure and as 'a 'consequence told the employees "what their certain
obligations were." This Emrich said was for the purpose of clarifying each man's
responsibility so that he would know'what it was.
Paul Moser, a yard employee of the Respondent for a period of about 2 years,
testified that Clarence Papstein was the hay foreman and he had worked under
him for a period of about 2 days each week. Papstein assigned him work on the
job and if he had a problem on the job he would look to Papstein who would
give him instructions and this 'occurred frequently, although he usually requested
leave from Barritt. Moser testified that on occasions he would ask Papstein for
leave and it was granted "on the spot." Moser said that Papstein attended a
meeting of supervisors held on December 30, 1964. Moser never heard after
October 7, 1964, that Papstein's authority as a, supervisor had been revoked or
changed in any manner. With respect to the December 30 meeting of supervisors,
Emrich testified that he had no knowledge of such a meeting although it might
have occurred. In all the foregoing circumstances I find that Clarence Papstein
responsibly directed employees in the performance of their work exercising inde-
pendent judgment in connection therewith, that he was held out by the Respondent
as their supervisor, and that his authority as a supervisor was not changed after
October 7, 1964. I therefore find and conclude that Clarence Papstein was a
supervisor within the meaning of the Act on all dates material herein.
D. Interference, restraint, and coercion
During the latter part' of June 1964, John E. Tate, Respondent's counsel, talked
to the Respondent's employees at the "cattle ring" discussing wages, vacations, etc.
Tate's talk to the employees was followed up by a letter to them dated July 3, 1964,
and signed by "Buss" and "Cec" Emrich. The letter was mailed on or about
July 3, 1964, according to Cecil Emricli.', Among other things it stated that the
Respondent was presently instituting raises for about 28 men on a merit basis. The
- 4 See B.M.C! Manufacturing Corporation,,113 NLRB , 823, 825. See also Rieh Equipment
Company, 150 NLRB 1185.
NORFOLK LIVESTOCK SALES COMPANY 1601
letter also stated that, in accord with seniority, employees would be paid vacation
wages on the basis of I week for each year of employment with the Respondent
Employees were advised that they could take the time off with pay or in lieu they
could receive the actual money The letter also pointed out that for each year an
employee worked he would receive 1 day of vacation added to the week with the
provision that all employees after the fifth year would receive 2 full weeks of paid
vacation Several witnesses for the General Counsel testified that Tate's talk was
made some time in August 1964 I find and conclude that the talk occurred during
the latter part of June 1964, shortly before the letter heretofore referred to was
mailed This finding and conclusion is supported by evidence that the salary in-
creases referred to in the letter were received by the 28 men involved on July 9
I find that the implementation of the improved vacation plan after July 18, 1965,
and prior to the December 18, 1965, election was violative of Section 8(a)(1) of
the Act
Bernard Vyhildal, one of the alleged discriminatees, credibly testified that he
received a Christmas bonus from the Respondent about December 15, 1964, in the
amount of $80 In 1963 Vyhildal received a bonus of $40 which was granted about
the last payday immediately before Christmas With respect to the 1964 bonus,
Vyhildal testified that in the approximately 13 years he had been employed by
the Respondent he had never received a Christmas bonus that early in December
The election in the representation case followed several days later Vyhildal's
testimony with respect to the Christmas bonus was substantially corroborated by
Larry Klemschmit and Lyle Wiese, also employees of the Respondent at that
time I find that the doubling of the Christmas bonus and its advancement to a
date 2 or 3 days before the election was violative of Section 8(a)(1) of the Act
Paul Moser testified that about December 16, 2 days before the election, he had
a conversation with George Gowler concerning the Union Also present at the
time with Elvin Petersen and Earl LaFavor Gowler came along as the three
employees were standing around and remarked "if somebody here isn't for the
Union, they had better do some talking When the Union gets in the hours will
be staggered and you will work this morning today and the evening the next day "
Gowler, Petersen, or LaFavor did not testify Cecil Emrich, however, testified
that Gowler could not have been on the premises of Respondent during the period
December 11 to 17, 1964, inclusive, because Gowler was on vacation at that time
and the Respondent's timecard for Gowler revealed that fact i accept Moser's
version of this incident as he impressed me as being a very forthright witness as
contrasted with Emrich whose memory was faulty 8 Moreover, assuming the cor-
rectness of Emrich's testimony it is conceivable that Gowler made the statement
while he was on vacation and on a visit to the yard I find that Gowler's state-
ment constituted a threat
Moser further testified that on or about December 30, 1964, he talked with
Clarence Papstein about the Union while the two men were alone unloading hay
from a wagon Papstein asked Moser if he thought that Albert Kruger had voted
for the Union Moser replied that he thought Kruger had voted but he had no
knowledge as to how he had voted Papstein thereupon stated that Everett Barritt
"was wondering" about the matter and, "if Everett thought he had, he was going
to put his name down on the list, too " Moser did not ask what the list was and
Papstein did not explain its significance Moser's testimony in this regard was not
controverted I find and conclude that the Respondent, by the above described
conduct of Clarence Papstein, a supervisor, created the impression of surveillance
of protected concerted activities of its employees, and was violative of Section
8(a)(1) I further find and conclude that the evidence is insufficient to support a
finding that the Respondent engaged in surveillance as alleged in the complaint
Harold Donohoe testified that he was employed by the Respondent on or about
January 2, 1965 About that time in the course of a job interview Everett Barritt
asked the witness whether he favored the Union or if he was familiar with the
Union Donohoe stated that he was not prounion and "I had nevei worked around
a union I knew very little about it only what I heard " Donohoe was subse-
quently hired and commenced work for the Respondent on January 4, 1965 On
January 5, 1965, Barrett told the witness in the presence of Jim Beckner "that if
any of the union men came around talking union to us, to tell them we were not
5In this connection Emrich testified at the hearing in the representation proceeding that
Gowler had the right to hire and discharge employees In this proceeding he testified that
he did not recall such testimony
221-7 31-6 7-v of 158-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interested in the Union and all we were interested in was our job." This conver-
sation occurred while the witness was at the , chute on the Respondent 's premises.
Donohoe further .testified that Barritt had, told him that the Union had lost and
stated that, ,with respect to the 12 men who had voted for the Union , "those 12
men were going to be let go."
Everett Barritt testified that his practice while interviewing prospective employees
when the question of the Union arose and the applicant "was a man that was
interested in the union ... I would rather he wouldn't start working ... because
we had had an election and ... three -fourths of our men had voted against having
a union and . I would rather hire men that would get along with my 37 men
that did • not want a union ...... Barritt followed the same procedure with respect
to his interview of Donohoe , as well as James Beckner whose testimony is discussed
below ,, and Leo Pritchard , a third employee hired after the election who, like
Donohoe, was discharged because of alcoholism . In view of Barritt's corroboration
of Donohoe 's testimony in certain essential aspects, and Beckner's testimony dis-
cussed below which substantially corroborates the testimony of Donohoe , I credit
Donohoe's testimony.
James Beckner , credibly testified that he was interviewed for a job by Everett
•Barritt on January 4, 1965 . After he had executed the application for employ-
ment and while he was in the room with Barritt the latter stated that although
legally he could not ask him a question that he proposed to ask it nevertheless.
Barritt "asked me what I thought about unions, and I said I didn't care much for
them." Barritt thereupon stated that if the matter ever arose again he would "lie
as fast and as hard" as he could and stated further "there were several fellows that
voted for the Union that were going to be let go." On the next day, January 5,
.,early in the morning , Beckner was present with Gordon Greve and Harold Donohoe.
•Barritt told Beckner he "would be working with Marvin Gaek . It would be all
right to be associated with him, but other than that it wouldn't be.best." , Beckner
also testified that Barritt at that time also mentioned the names of Roy Shipps,
Bernard Vyhildal , and John Kleensang . He told Beckner that he should not have
anything to do - with Kleensang, Gaek, and Vyhildal because they were going to be
let go on account of "this union business ." Beckner at the time of the hearing was
still employed by the Respondent and had worked continuously since his initial
employment on January 4. He further testified that Leroy Shipps was likewise
still employed by the Respondent.
Larry Kleinschmit credibly testified that he was initially employed by the
Respondent in 1958 and worked for the Respondent approximately 2 years. After
his military service he was reemployed by the Respondent , beginning his second
period of employment during the first part of September 1964 . A day or two
after returning to work Kleinschmit had a conversation with Barritt in the lunch-
room . Barritt told Kleinschmit that the Union had been trying to organize the
yard and advised "that I was to keep my nose clean and I would do all right." No
one else was present. Klemschmit had a second conversation with Barritt on the
Tuesday prior to the December 18 Board election . At that time Barritt told Klein-
schmit that after his military service he should have learned his lesson and if the
Union were not successful in the election "he was in trouble ." Kleinschmit voted
in the December 18 election and, with John Kleensang , served as a union observer
at the election . Following the election on a Saturday night either during the latter
part of December or the first , part of January 1965 , Kleinschmit had a third con-
versation with Barritt. The latter told him he "wouldn't have to come back to
work on Mondays" furnishing no reason for the reduction in his working hours.
Thereafter Kleinschmit found another job and when he told Barritt the latter
replied that "it was the best thing [for all persons concerned] that he did quit."
At the time of the hearing , Kleinschmit was employed by an insurance company.
Shortly after terminating his employment with the Respondent Kleinschmit
returned to the plant where he saw Kleensang, Vyhildal, and Barritt- in the office.
After Barritt left, Vyhildal and Kleensang showed Kleinschmit a work schedule that
was on the desk . The schedule , or work chart as the witness described it, revealed
that the working hours of certain employees were cut . Kleinschmit observed that
Marvin Gaek was going to be cut with respect to his "Monday or Sunday nights"
working schedule , and Kleensang was to be reduced with respect to his Monday
and Wednesday working hours. He could not recall what the schedule showed
with respect do Vyhildal 's schedule.
Lyle Wiese , employed by the State of Nebraska as a brand inspector , worked for
the Responddeat pu a part-time basis about 1 day each week on livestock sale days.
NORFOLK LIVESTOCK SALES -COMPANY - 1603
Wiese credibly, testified that he voted in the December 18 election.. Sometime
after the election, Wiese was present in the office while Barritt and • Grebe were
talking. Paul Moser was also seated,. nearby. Although Wiese testified that he
-did not "pay, too much attention" to the conversation, he observed. that Barritt
appeared to be angry and heard him • remark "These men prove they can't be
trusted, so we are going to relieve them of all jobs and responsibility." Wiese did
not hear the identity of the men referred to by Barritt. Wiese further testified that
the conversation occurred late in the same day that Marvin Gaek told Wiese that
the former's working hours had been ieduced, as found hereinafter, on or about
January 12, 1965. In the surrounding circumstances, including Barritt's threat to
-Donohoe that the 12 men who voted for the Union would be let go, I find,and
-conclude that Barritt's remark quoted above referred to these 12 employees and
-was intended likewise to serve as a threat.
Wiese likewise testified to a conversation he had with Tom Shadwell, an employee
-of the Respondent and Everett Barritt's son-in-law, about the end of January. At
that time Shadwell told Wiese, while a hog sale was in progress, that Respondent's
.counsel advised Barritt that he "should get rid of two men every month until
he got rid of those 12 men." 6
On the basis of the foregoing, I find and conclude that the Respondent, by
.Supervisor Gowler's threat to Moser and two other employees; Superintendent
Barritt's interrogation of Donohoe and Beckner concerning their union sentiments;
Barritt's threat to Kleinschmit; and Barritt's threat uttered in the presence of Grebe,
Moser, and Wiese, recited hereinabove violated Section 8(a)(1) of the Act .7
E. The reduction in the working hours of Kleensang, Vyhildal, and Gaek
John D. Kleensang was employed by the Respondent in the fall of 1962. Kleen-
sang worked directly under Everett Barritt and , inter alia, was engaged in cleanup
work in the areas where livestock was kept. Kleensang credibly testified that he
signed a union authorization card on or about July 15, 1964, which was about 2
weeks after the Union's organizational campaign started. On January 4, 1965,
after checking out from work, Kleensang had a conversation with Barritt about
the former's work schedule. Barritt told him he would not have to report for work
anymore on Monday. Upon being asked, the reason, Barritt replied that he did not
want Kleensang around anymore and that was reason enough. Barritt also stated
that he was going to take Kleensang off the "bug," a small tractor used for cleanup
purposes. Kleensang and his brother, Willie, were the only employees who
operated the bug, prior to January 4. On January 12 Kleensang learned from
employees at the Respondent's barn that he likewise was no longer being scheduled
for Wednesday work. The next day, Wednesday, Kleensang reported for work and
asked Barritt if he was scheduled to work that day. Barritt replied "no you're not
to work Wednesday anymore and I am taking you off the night work." Thereupon
Barritt asked Kleensang to come into the locker before he departed where Barritt
told Kleensang that he was the cause of most of the trouble and that he had voted
for the Union. Kleensang asked Barritt if he could prove that Kleensang had
voted for the Union. Barritt replied "I just know 12 of you voted for the union
and there are 12 df you who are going to have to go." Since that date Kleensang
has not been scheduled for any work on Wednesdays and, with a single exception,
has not been assigned any night work.
Kleensang also testified that some time between the dates of the first session of
the representation hearing and the second. session of that shearing he encountered
Barritt in the hog barn and the latter told Kleensang he wanted to talk with him.
This was prior to the time that Kleensang was served with a Board subpena. (The
first session of the representation hearing was held on September 30, 1964, and
the second session was held on October 7, 1964.) Barritt told Kleensang that the
latter was "in a lot of trouble." Kleensang asked Barritt the reason thereupon
Barritt replied that Kleensang was to be served with a subpena to appear for the
e Although this hearsay testimony of Wiese was neither objected to nor controverted by
the Respondent, in view of the family relationship involved, and because of my ultimate
-determination herein I have found it unnecessary to decide whether the alleged remark
constituted a violation of Section 8(a) (1) of the Act. See Reilly Tar & Chemical Corpo-
ration, 151 NLRB 1503, footnote 1.
° See Peninsular & Occidental Steamship Company, 13.2 NLRB 10; The Murray Ohio Man-
ufacturing Company, 134 NLRB 175.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
next session of the representation hearing and that -Kleensang "was going to make
a liar out of Cecil [ Emrich] ." Kleensang told Barritt that he "didn't figure I would
make a liar out of anybody. If I had to go I would tell the truth." In this con-
nection Kleens ang testified at the representation hearing as a witness for the
petitioning union , the'Charging Party herein , voted and served as a union observer
in the December ' 18 election.
Edward'Barritt testified that a hailstorm occurred in the Norfolk, Nebraska, area
on or about June 16 , 1964. Kleensang , who also performed house maintenance
and repair work such as fixing roofs, carpentry , and painting, was absent from
work on various dates between June 16 and November 1964, engaged in such out-
side work, according to Barritt. In this connection, Barritt testified that Kleensang
was absent from work a total of 81/2 days during the approximately 61/2-month
period beginning on June 16 and ending on December 31, 1964 , his last date of
absence from work-during the period being December 11, 1964. Barritt further
testified that Kleensang initially obtained permission to take leave from his regular
job but after his first request "took off" on subsequent occasions without approval.
Barritt stated -that Kleensang 's services were needed by the Respondent during the
aforementioned period . However, Barritt said nothing to Kleensang about his
alleged absenteeism until January 1, 1965, when he told him that he had been off
from work "so many times" that another man had been hired to operate the
tractor and, in the future, Kleensang would work only on sale days. As Kleensang
impressed me as being a more trustworthy witness than Barritt, I credit his version
of the circumstances surrounding the reduction in his working hours.
Bernard Vyhildal began working for the Respondent on March 2, 1952. Vyhildal
credibly testified that he signed a union authorization card about the middle of
July 1964. t In the course of the Union's organizational campaign, Vyhildal
solicited union memberships from about 20 employees and was successful in per-
suading at least 1 employee to join the Union. Vyhildal testified further that on
January 5, 1965, while he was eating lunch in the cafe on the Respondent's premises
with John Kleensang, Superintendent Barritt walked over to him and said, "Welt
I guess you won't have to come anymore on Wednesday." Vyhildal replied,
"Okay," and there was no further exchange between the two. Vyhildal's schedule
was changed approximately a week later. About the same time his regular
scheduled hours were cut, Vyhildal heard rumors that he would likewise be taken
off night work. Thereafter, the Respondent, in fact, took him off night work.
Vyhildal further testified that after January 5, 1965, he did not work, on Wednes-
days until 5 or 6 weeks before the hearing at which time he returned to his regular,
6-day weekly, schedule, working from Monday through Saturday. Although
Vyhildal actually earned about the same amount during the period in which his
hours were reduced that he earned during the 3-month period preceding the hear-
ing, this fact he attributed to the extra hours he had worked nights because of the
increased fat cattle and hog sales. He testified that if he had worked on Wednes-
days his total working hours would have been greater: In this regard the General
Counsel and the Respondent stipulated,that Vyhildal, for a period of 5 or 6 weeks,
lost approximately 5 or 6 hours per day on Wednesdays and 4 or 5 hours per
evening on Monday nights but that his total- working hours during the aforesaid
period were substantially the same as they were prior to the reduction.
Everett Barrett testified that Vyhildal, on one or two occasions, worked on
Thursday nights after the cattle sales ended. When the sales ended "early," Vyhil-
dal remained on duty, until 10, 11, or -12 p.m., in order to assist the nightman.
After the sales increased in volume, all employees were required to remain until
the hours mentioned above. As a consequence, according to Barritt, Vyhildal did
not work the additional 2 hours that he worked during the summer of 1964.
Superintendent Barritt explained to Vyhildal that the Respondent did not need his
services during the additional hour or two on Thursday nights as formerly as the
nightman could handle the situation alone and "Bernard [Vyhildal] was working
a full days' work then, the full time." Barritt further testified that Vyhildal com-
menced working on Wednesdays again 5 or 6 weeks prior to the hearing. Although
Vyhildal 'at that time was restored to a, 6-day per week work schedule, he was not
restored to Monday night work.
With,respect to the Saturday night work, Barritt further testified that Vyhildal
commenced working about 6:30 a.m. on Saturday mornings and worked until 1
or 2 a.m. on Sundays. He alternated in such work every third night with John
Kleensang and Paul Moser. Barritt testified the work became so heavy Respond-
ent put extra men on to assist in the cattle loading, which occurred during both
the day and evening hours. Employees who worked a full daily schedule, includ-
NORFOLK LIVESTOCK SALES COMPANY, - , , 1605
ing Vyhildal, were- taken off night work so that they could perform their duties,
during the_ daylight hours more efficiently. On the hearing date, none of the three
aforementioned men were performing any Saturday night work. ,
Barritt admitted that he knew Kleensang and Vyhildal were "talking to our men
all over the yard at, all times, and some of the, men cane and told me, . . . they
wanted to know why they had to listen to those men talking to them about the
Union." Barritt could not fix the time of the alleged complaints except to state
they occurred 4 or 5 months before. He testified ". . . these two and possibly a
few of the others have been talking to the men about this union stuff."
Marvin A. Gaek had worked. for the Respondent 15 years at the time of, the
hearing. Gaek credibly testified that he signed a union authorization card on
July 20, 1964. He voted in the-December 18 election. On or about January 12,
1965, Gaek while in a chute house talking to other employees, was approached
by Superintendent, Barritt who asked him to leave as Barritt wanted to talk to him.
Thereafter Barritt told Gaek,. "Marvin, I am going to convert you." Gaek did not
reply whereupon Barritt said, "From now on, on Sunday nights you don't work
anymore." Gaek asked for the reason for his action and Barritt replied "There is
a bunch of us that only want to work 40 hours a week and that is what we are
going to see that you get." Barritt added that he had received complaints from
truckers who had not been able to awaken Gaek. Gaek answered that he had yet
to be awakened by a trucker. At that point Barritt remarked as he was leaving
"I was just kidding about this union deal." Gaek testified that during his long his-
tory of employment with the Respondent he had never received any complaints
about his work. Since January 12, Gaek has not worked on Sunday nights. He
testified that as a result of the reduction in his working hours he lost an approx-
imate total of 13 hours each Sunday.
Everett Barritt admitted that he removed Marvin Gaek from Sunday night work.
Barritt testified that Gaek was removed from Sunday night work on January 4 or 5,
1965, because ibis drinking habit resulted in his being untrustworthy and not able
to perform his duties. According to Barritt, truckers had complained about Gaek's
derelictions on the job on Sunday nights, including one incident described by
Cecil Emrich discussed below .8 Barritt stated that Gaek still worked the same
schedule, i.e.,-on Tuesdays, Thursdays, Fridays, and Saturdays, except for the Sun-
day night work. Barritt testified that he warned Gaek quite a few times on differ-
ent occasions that we were going to "take him off [Sunday night work] if he didn't
straighten up." Barritt also testified that Gaek on occasions called in during the
afternoon from 1 to 4 p.m. and the "day men" were required to remain on the job
until he arrived, which on occasions was as late as 8 or 9 p.m.
Superintendent Barritt admitted that he might have spoken to Gaek about work-
ing only 40 hours a week but ascribed it to "a lot of kidding . . . going on .. .
about working 40 hours a week." He explained that if the Union had won, the
Respondent's operation would have functioned on a 40-hour a week basis. This
was discussed before the election while "there was Union talk," in the course of,
which the employees asked Barritt for his opinion as to what might happen in the
event the Union won. Barritt testified he had no knowledge that Gaek was pro-
union until the time of the hearing herein. He also denied telling Gaek that he was
going to convert him. I credit Gaek's account of the circumstances surrounding
the reduction in his working hours, and find that Barritt told Gaek that he was
going to convert him.
The Respondent in effect asserts as its affirmative defense that the reduction in.
the working hours of Kleensang, Vyhildal, and Gaek were not motivated by union
animus but occurred in the normal course of Respondent's business operation.
The Respondent, in this regard, contends that there is no causal connection between
the alleged acts of interference, restraint, and coercion of employees that occurred
prior to January 1, 1965, and the reduction in the working hours of the aforemen-
8 Emrich testified that he received a telephone call on one occasion about midnight
from a trucker who complained that the nightman on duty (Gaek) was lying on a bench
and he could not arouse him. Emrich testified that he got out of bed and drove to Re-
spondent' s premises when he arrived, Gaek had been aroused and was taking care
of the livestock whereupon Emrich returned to his home Emrich further testified "Now
I don't believe Mr. Gaek is conscious of this because I did not tell him . I saw that
the job was being, done , and I decided that,I should leave it to Barritt to handle." . Emrich
discussed the matter with Barritt several times and 'the latter felt that the Respondent
should take into consideration Gaek's long service with the , Respondent As a con-
sequence Gaek was assigned to a place "where he was not so vulnerable " -
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned three men that occurred later. The reason assigned for Kleensang's reduc-
tion in working hours was that he failed to report for work nor was excused from,
working "on many days" when he was expected and scheduled to be at work.
Vyhildal was taken off -the night work schedule because he worked a full daily
schedule and relieving-him of night work resulted in a more efficient performance by
him during his day working hours. No specific reason was assigned for the elimi-
nation'of Wednesdays from Vyhildal's work schedule. The specific reason assigned
for the reduction in Gaek's working hours was that his habitual drinking rendered
him untrustworthy for night work. As to Vyhildal and Gaek, the Respondent
further asserts-that both- continued to work substantially as many hours after their
work schedules were changed as they did before.
The General Counsel argues that Respondent's conduct in reducing the working
hours of Kleensang, Vyhildal, Gaek, and Kleinschmidt (not alleged to be a dis-
criminatee' in this proceeding) reveal a definite pattern on the part of the Respond-
ent to punish and eventually rid itself of the 12 employees who were "pro-union,"
occurring within a period of about 2 weeks after the election lost by the Union.
As to union animus, the General Counsel urges there is sufficient evidence in the
record revealing various • instances of interrogation and threats. With respect to
Respondent's knowledge of the union activity on the part of the discriminatees, the
General Counsel asserts that Superintendent Barritt himself testified as to his
knowledge of such activity.
The appraisal of the- Respondent's evidence is not limited to determining whether
valid or justifiable cause existed for reducing the working hours of Kleensang,
Vyhildal, and Gaek. In cases such as this involving alleged violations of Section
8(a)(3) it is the "real motive" of the employer which is controlling.9 To state
the principle another way, the existence of a lawful cause for discharge or for
reduction in the working hours is no defense where the action taken against the
employee is because of his union activities or his support of the Union.1° More-
over, the furnishing of implausible explanations for such actions may be considered'
in determining the real motive. It is a circumstance indicative of antiunion
motivation.li '
The foregoing principles 'control the disposition of this case. Assuming argu-
endo that the Respondent had grounds for reducing the working hours of the three
employees, or, as Respondent urges in its brief, for even discharging Kleensang
and Gaek, it never considered their derelictions sufficiently grievous to take any
disciplinary action against them until several weeks after the election.
Although Barritt testified that Kleensang was absent from work about 8% days
between June 16 and December 31, 1964, and likewise had frequent unexcused
absences commencing with the workweek of January 15, through April 1965, the
record reveals that the last day Kleensang was absent from work before the Janu-
ary 4, 1965, reduction in his working hours was December 11, 1964. The Respond-
ent, however, took no disciplinary action at that time nor during the following 3
weeks. Barritt's explanation that Vybildal's evening working hours were changed
to achieve greater efficiency of performance on his part with respect to his day
work furnishes no reason whatsoever for the elimination of Vyhildal's Wednesday
work. The reason asserted for the reduction in Gaek's working hours likewise is,
not plausible when examined -closely. Gaek, a 15-year veteran employee, was one
of the -28 employees granted a raise early in July 1964. Nevertheless, he was
removed from Sunday night work because his alleged drinking resulted in his-being,
untrustworthy on the job. In this regard, Barritt admitted on cross-examination,
that he did not personally observe Gaek insofar as his Sunday night work was con-
cerned, but acted on the basis of complaints from "our men." Likewise, when
queried as to whether Gaek was a trustworthy employee during his prior long,
tenure of employment, Barritt stated that Gaek had drinking problems before his
reduction in hours but that he was always able to arrive at the premises and do his
job.
About the time the Respondent reduced the working hours of Kleensang, Vyhil-
dal, and Gaek, it hired six new employees to work at the yard,12 some of whom.
0 N.L.R B. v. Brown, 380 U.S 278, and cases cited therein.
10 N.L R.B v. Ace Comb Company, 342 F. 2d 841 (C. A. 8). See also N.L R B. v. Wells,
Incorporated, 162 F. 2d 457 , 460 (C.A. 9).
11 N.L.R.B. v. Honi'edale Tractor & Equipment Company, 211 F . 2d 309 ( C.A. 9), and
cases cited therein.
12 James Beckner, Don Johnson , Norman Cosiek , Wayne Anderson, Harold Donohoe, and
Leonard Pritchard.
NORFOLK LIVESTOCK SALES COMPANY ' 1607
were still employed at the time of the hearing herein. These new hires reflected
the Respondent's need for additional manpower at the very time it was in the proc-
ess of reducing the working hours of three of its experienced employees.
The Respondent's argument that Kleensang and Gaek worked substantially the
same number of hours after their hours were changed as they worked before, is not
a valid defense. It is clear from the record that increased sales during the later
period resulted in the employees working longer hours, and if the working hours
of the men had not been reduced, each would have worked even longer hours dur-
ing the period in question.
The Respondent's further argument that there was no casual connection between
the various acts of interference, restraint, and coercion found hereinabove to
have occurred before January 1, 1965, and the Respondent's subsequent conduct
in reducing the working hours is untenable. This conclusion is supported by
the various acts of illegal interrogation, threats, and creation of the impression of
surveillance, together with credible evidence that Barritt knew. Kleensang, Vyhil-
dal, and Gaek were "pro-union" in their sentiments, and Barritt's announced
threat to get rid of the 12 employees who voted for the Union. In the latter
respect, Barritt knew that Kleensang had served as a union observer at the elec-
tion, and admitted that he observed both Kleensang and Vyhildal talking "union
stuff" to the yard employees throughout the Union's organizational campaign. He
likewise knew that Gaek was a union adherent as evidenced by his stated inten-
tion to "convert" Gaek.
I believe it is fair to conclude from a preponderance of the evidence that a
discriminatory motivation was behind the Respondent's conduct in reducing the
working hours of the three employees. Accordingly, I find and conclude that the
Respondent, by its reduction of the working hours of John D. -Kleensang, Bernard
Vyhildal, and Marvin Gaek, sought to punish them for their support of the Union,
and violated Section 8(a)(3) and (1) of the Act.13 I' further find and conclude
that the Respondent by its conduct recited hereinabove wherein Barritt warned
Kleensang not to make a liar out of Cecil Emrich, likewise violated Sec-
tion 8(a) (4) of the Act.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above, occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policy of the Act.
Having found that the Respondent discriminatorily reduced the working hours
of John D. Kleensang during the week of January 4, 1965, Bernard Vyhildal dur-
ing the same week, and Marvin Gaek during the week of January 11, 1965, I
shall therefore recommend that the Respondent make them whole for any loss
of pay they may have suffered through loss of such work, by payment to them
of a sum of money equal to that they normally would have earned through such
work in such period, and restore them to the status quo they enjoyed prior to
said discrimination..
The backpay with respect to Kleensang, Vyhildal, and Gaek shall include inter-
est at 6 percent to be computed in the manner set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716.
The above-described reductions in working hours strike at the heart of rights
guaranteed employees by the Act and are closely related to other conduct abridging
rights guaranteed employees by Section 7 of the Act. There is reasonable ground to
anticipate Respondent will infringe upon other rights guaranteed employees in
the future , unless appropriately restrained. I shall therefore recommend an order
requiring Respondent to cease and desist from infringing in any manner upon
the rights guaranteed employees by Section 7 of the Act.
131pava Farmers Elevator Co., 153 NLRB 1303, and cases cited therein.
14 Thomas J. Aycock, Jr. d/b/a Vita Foods, 135 NLRB 1357.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By discriminatorily reducing the working hours of Kleensang , Vyhildal, and
Gaek, as found above, Respondent has engaged in, and is engaging in an unfair
labor practice within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining , and coercing employees in exercising the
rights guaranteed them by Section 7 of the Act, including a reduction in the
working hours of Kleensang, Vyhildal, and Gaek, for engaging in union activities,
the creation of the impression of surveillance , and interrogations and threats,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Journeymen Plasterers ' Protective and Benevolent Society of
Chicago, Local No. 5, AFL-CIO (Royal -Rin Builders, Inc.;
Imperial Carpentry , Inc.) and Howard Rynberk
Journeymen Plasterers ' Protective and Benevolent Society of
Chicago, Local No. 5, AFL-CIO ( Royal-Rin Builders, Inc.;
Imperial Carpentry , Inc.) and United Construction & Trades
Union Local #102
Journeymen Plasterers' Protective and Benevolent Society of
Chicago, Local No. 5, AFL-CIO ( Royal-Rin Builders, Inc.;
Imperial Carpentry, Inc.) and Howard Rynberk. Cases Nos.
13-CC-487,13-CC-.487-2, and 13-CC-520. June 7,1966
DECISION AND ORDER
On March 15, 1966, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief and the General Counsel filed
an answering brief.
Pursuant to Section 3(b) of the Act, the National Labor Relations
Board has delegated its powers in connection with these cases to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
158 NLRB No. 143.