Stokely Foods, Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1950

91 N.L.R.B. 1267 (N.L.R.B. 1950)

In the Matter of STOKELY FOODS, INC., EMPLOYER and AMERICAN
FEDERATION OF LABOR, PETITIONER
Case No. 17-CA-121.-Decided October 25, 1950
DECISION AND ORDER
On June 1, 1950, Trial Examiner Robert E. Mullin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent has 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 copy of the Intermediate Report
attached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
The Respondent also requested oral argument. This request is hereby
denied as, in our opinion, the record and the exceptions and briefs
adequately present the issues and the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Houston, Reyn-
olds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications :
' The Trial Examiner properly denied the Respondent's motion to dismiss the complaint
on the ground that the Charging Union, although itself in compliance with Section 9 (f),
(g), and (h) of the Act, had chartered a local at the Respondent's plant which, though
now in compliance, was not in compliance when the complaint was issued. No contention
was raised that the Union was fronting for its local, and we are satisfied from the record,
that the Union by filing the charges was not seeking to circumvent the requirements of
the Act. The remedy sought in this proceeding is for the protection of individual employee
rights and the mere fact that the local which formerly was not in compliance may
incidentally derive a benefit from an unfair labor practice finding in this case is imma-
terial . Cf. Luzerne Hide and Tallow Company, 89 NLRB 989 ; Potlatch Forests, Inc., 87
NLRB 1193 ; Andrews Company, 87 NLRB 379.
2 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner's ultimate conclusions, or our concurrence in
such conclusions. Accordingly, we make the following corrections: (1) The record does
91 NLRB No. 1.91.
1267
917572-51-vol. 91 81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Respondent excepts to the Trial Examiner's finding that it is
engaged in interstate commerce. The Respondent does not dispute
the commerce facts detailed in the Intermediate Report concerning its
extensive operations in the United States, Canada, and Hawaii. Not-
withstanding the apparent interstate character of its over-all opera-
tion's, the Respondent urges that there is no evidence in the record that
its Lawrence, Kansas, plant, where the alleged unfair labor practices
occurred is engaged in interstate commerce . While the record is
silent as to the interstate shipment of goods from or to this plant, the
evidence shows conclusively that the business and labor relations poli-.
ties of the Lawrence plant are centrally controlled by the Respondent
from its Indianapolis, Indiana, headquarters. It is thus evident that
the plant is an integral part of the Respondent's multistate and inter-
national business structure. Accordingly, we find, as did the Trial
Examiner, that the Respondent is engaged in commerce within the
meaning of the Act.
2. The Respondent excepts to any findings of violation of the Act
based on the second amended charge filed October 14, 1949, and incor-
porated in the complaint, and upon the independent 8 (a) (1) allega-
tions included in the complaint but not specified in the original or the
amended charges. The Respondent contends that Section 10 (b) of
the Act precludes (a) any finding by the Board of violation of the
Act based upon conduct which occurred more than 6 months before the
filing of a charge specifically alleging that conduct as an unfair labor
practice, and (b) any finding of violation of the Act based upon con-
duct not specifically alleged in a charge but only in the complaint.
For reasons stated in our decision in Cath,ey Lumber Company, 86
NLRB 157, we conclude that we may base an unfair labor practice
finding upon any conduct which occurred within ,a 6-month period
before the filing of a charge asserting that the Act has been violated
although the charge does not specifically set forth such conduct,
provided the complaint which issues pursuant to the ..charge alleges
the conduct as an unfair labor practice.3 As the original charge in
this proceeding was filed December 15, 1948, Section 10 (b) only ex-
not. support the Trial Examiner ' s finding that Kilby and Jackson observed Eastland's
solicitation of signatures , or that Kilby and Jackson actually saw Eastland' s circular
containing these signatures . The record shows only that Eastland mentioned the circular
to Kilby and Jackson ; (2) the Trial Examiner erroneously referred to Kilby as a supervisor.
The record discloses that he was the Respondent' s timekeeper or personnel man, and
contains no evidence from which the conclusion may be drawn that he was a supervisor
within the meaning of the Act ; (3) we deem unwarranted the Trial Examiner ' s rephrasal
of Eastland ' s testimony from "his [Vance's] face got as red as if I had slapped him" to
"Vance flushed in embarrassment ," and do not rely thereon in connection with our findings
pertaining to Eastland.
3 See Porto Rico Container Corporation , 89 NLRB 1570; Globe Wireless, Ltd., 88 NLRR
1262 ; Tennessee Knitting Mills, Inc., 88 NLRB 1103.
STOKELY FOODS, INC. 1269
tinguishes liability for acts which occurred earlier than June 15, 1948.
The acts specified in the second amended charge and the independent
8 (a) (1) violations set forth in the complaint were alleged to have
occurred not earlier than on or about September 1, 1948. Accord-
ingly, we reject the Respondent's contention. We also reject the Re-
spondent's claim of surprise with respect to proof of any of the
foregoing allegations raised for the first time in its brief. These mat-
ters were fully litigated at the hearing by the Respondent which at no
time during the hearing claimed surprise or requested a postpone-
ment.4 We find moreover that the Respondent had ample notice and
opportunity to defend against these allegations as evidenced by the
objection of Respondent in its answer to the inclusion of these allega-
tions in the complaint.
3. We agree with the Trial Examiner's finding that the Respondent
discriminatorily discharged Willis Logan Eastland in violation of
Section 8 (a) (1) and (3) of the Act. Eastland, who himself had
initiated the drive to organize the Respondent's employees, was dis-
charged on September 8, 1948, about 2 or 3 weeks after the inception
of the organizing campaign. The Respondent's knowledge of East-
land's activities is clearly established by the testimony of Plant Man-
ager Pickett who admitted that he personally knew of these activities.
Although at the time of his discharge Eastland was informed that
this action was being taken because the Respondent had too much
help, at the hearing the Respondent, in attempted justification of
the discharge, contended that Eastland, when hired in the spring of
1948, had been given only temporary employment because of his
visual deficiency and had been so informed, that this handicap pre-
vented him from adequately performing his duties, and that he created
friction among other employees. In support of these contentions, the
Respondent presented as a witness only Plant Manager Pickett, whose
testimony as to essential facts was vague and uncertain. Thus, he
testified that he had never informed Eastland that his employment
was only temporary, but assumed this information was conveyed to
Eastland by Superintendent Vance.5 He asserted that he had re-
ceived complaints of friction caused by Eastland, but was unable.
to recall from whom they were received or the nature of the friction.
He testified that he saw Eastland arguing with other employees during
working hours, but did not remember when these incidents occurred
4 For the same reasons we reject the Respondent ' s contention that it was prejudiced by
the introduction of evidence which varied from the particulars respecting the independent 8
(a) (1) violations furnished by the General Counsel in response to the Respondent 's motion
to make the complaint more specific . See Premier Worsted Mills, 85 NLRB 985.
5 Vance at the time of the hearing was no longer employed by the Respondent and was not
produced as a witness.
1270 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or whether he ever spoke to Eastland about them . He stated that
he had received reports that Eastland was not turning in a good
day's work, but could specify no such instance .. He did have a
specific recollection of having observed Eastland cutting weeds in
what he claimed to be an unsatisfactory manner. We are not im-
pressed, however , that this criticism alone was of sufficient magnitude
to influence the Respondent 's decision to discharge Eastland. On
the other hand, Eastland testified without contradiction that he was
never informed that he had only a temporary job. One .of the Re-
spondent 's foremen, Burgess , under whom Eastland had once worked,
testified that he had observed Eastland at work, that he performed
his duties satisfactorily, and'- that so ` far' as he knew Eastland was
not a troublemaker . As to Eastland's visual defect, it is uncontro-
verted that the Respondent initially hired him with full knowledge
of his condition . and no contention was raised that this disability had
increased in severity , nor does this appear to have been the case.'
We are satisfied in view of the Respondent's knowledge of East-
land's union activities , the timing of his discharge which occurred
soon after the inception of the organizing campaign , the Respondent's
shift of reasons for his discharge and the unconvincing nature of these
reasons, that the real motivation for his discharge was the Respond-
ent's desire to rid itself of the Union 's chief protagonist and to subdue
the organizational attempts of its employees at. their outset, in
violation of the rights guaranteed by Section 7 of the Act.
4. We also agree with the Trial Examiner's finding that the Re-
spondent discriminatorily terminated the employment of Paul J.
Niemann and Fred Nightingale in violation of Section 8 (a) (1) and
(3) of the Act by failing to recall them upon reopening its plant on
November 1, 1948. We base our conclusion on the following
considerations :
( a) Both these employees were active adherents of the Union.
Each had solicited members among the employees. Nightingale was
the first signer of Eastland's circular and had helped publicize the
first union meeting. Niemann was elected the first president of the
Union on October 6, 1948;
(b) The Respondent's knowledge of the union activities of these
employees is reasonably inferable from the small size of the plant.?
6 we do not agree with the Trial Examiner 's conclusion that the record shows that
Eastland 's visual deficiency was not considered a handicap by the Respondent when he was
hired in the spring of 1948 and do not rely thereon in connection with our finding herein.
Quest-Shun Mark Brassiere Company, 80, NLRB 1149. There were approximately 75
employees in the plant during the period in question.
STOKELY FOODS, INC: 1271
This inference is strengthened by the fact that Plant Manager, Pickett
was well informed as to the Union's affairs ; 8
(c) The hostility of the Respondent to union organization was
displayed by the coercive conduct which violated Section 8 (a) (1)
of the Act as detailed in the Intermediate Report, and by the dis-
criminatory discharge of Eastland as indicated in paragraph 3
herein ;
(d) The employment of Niemann and Nightingale was terminated
at the height of the Union's campaign for recognition, 12 days after
it had filed a representation petition with the Board;
(e) The Respondent contended that it failed to recall Niemann and
Nightingale because of its belief that these employees were riot avail-
able for work when it reopened its plant, Niemann allegedly having
obtained other employment and Nightingale having gone to Cali-
fornia. However, Niemann at that time had only a temporary job
and had not -informed the Respondent that he was unavailable, and
Nightingale had neither gone to California nor apprised any one
of an intention to do so. Following the reopening of its plant, both
Niemann and Nightingale applied for but were refused employment,
although within a period of 3 months thereafter the Respondent hired
49 new employees.
The superficial and inaccurate nature of the basis offered by the
Respondent for its action in terminating the employment of these
employees, coupled with the Respondent's subsequent refusal to employ
them at a time when it was hiring new employees, convinces us that
the real reason their employment was terminated was their union
activities and sympathies.
The Remedy
As recommended by the Trial Examiner, we shall order the Re-
spondent to offer Willis Logan Eastland, Paul J. Niemann, and
Fred Nightingale reinstatement with back pay from the dates of
the discriminatory action against them. Since the issuance of the
Trial Examiner's Intermediate Report, however, the Board has
adopted a method of computing back pay different from that recom-
mended by the Trial Examiner.9 Consistent with the new Board
policy, we shall order that the loss of pay be computed on the basis
of each separate calendar quarter or portion thereof during the period
from the Respondent's discriminatory action to the date of a proper
9 Picket testified that he was aware of the organizing campaign from the outset and
communicated this information to the Respondent 's home office in Indianapolis , Indiana.
He knew in advance the ..dates.of.union .meetings . .He also admitted knowledge of Eastland's
union activities. ,
OF. W. Woolworth Company, 90 NLRB 289.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum
equal to that which these employees normally would have earned for
each quarter: or portion thereof, their net earnings,10 if any, in other
employment during that period. Earnings in one particular quar-
ter shall have no effect upon the back-pay liability for any other
quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Stokely Foods, Inc., its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the American Federation of Labor
or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or by discriminating in
any- other manner in regard to their hire or tenure of employment, or
any term or condition of employment;
(b) Interrogating its employees. concerning their union affiliations,
activities, or sympathies;
(c) Threatening employees that it will close its plant, or taking
any other form of economic reprisal if the American Federation of
Labor or any other labor organization succeeds in unionizing the
Respondent's Lawrence, Kansas, plant;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the American Federation of Labor
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
10 By "het 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 which would not have been incurred but for this unlawful discrimination and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Federal , State, county, municipal,
or other work -relief projects shall be considered as earnings . Republic Steel Corporation v.
N. L. R. B ., 311 U. S. 7. '
11 F. W. Woolworth Company, supra.
STOKELY FOODS, INC. 1273
requiring membership in a labor organization as a -condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the. Board finds will
effectuate the policies of the Act :
(a) Offer to Willis Logan Eastland, Paul J. Niemann, and Fred
Nightingale immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other rights or privileges ;
(b) Make whole Willis Logan Eastland, Paul J. Niemann, and Fred
Nightingale in • the manner set forth in the section entitled "The
Remedy" for any loss of pay they may.have suffered by reason of
the Respondent's discrimination against'them;
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order ;
(d) Post at its plant in Lawrence, Kansas, copies of the notice
attached hereto and marked Appendix.12 Copies of said notice to
be furnished by the Regional Director for the Seventeenth Region
shall, after being duly signed by a representative of the Respondent,
be posted by it immediately upon receipt thereof and maintained by
it for sixty (60) consecutive days thereafter in conspicuous. places,
including all places where notices to employees are customarily posted.
Reasonable steps .shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director of the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in the AMERICAN
FEDERATION OF LABOR, or any other labor organization of our
employees, by discharging or refusing to reinstate any of our
employees, or by discriminating in any other manner with regard
u In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be inserted, before the words "Decision and Order," the words "Decree of the
United States Court of Appeals Enforcing."
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their hire and tenure of employment, or any term or condition
of employment. -
WE WILL NOT interrogate our employees in any manner,con-.,...
cerning their union affiliation, activities, or sympathies.
WE WILL NOT threaten employees that we will close our plant.
or take other economic reprisals against our employees if the
AMERICAN FEDERATION of LABOR, or any other labor organization,
succeeds in unionizing the Lawrence, Kansas, plant of Stokely
Foods, Inc.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist the
AMERICAN FEDERATION OF LABOR, or any other labor organization,.
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination :
Willis Logan Eastland
Paul J. Niemann
Fred Nightingale
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization. We will
not discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employees because of
membership in or activity on behalf of any such labor organization.
STOKELY FOODS, INC.,
Employer.
Date-------------------- By --------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
STOKELY FOODS, INC.
INTERMEDIATE REPORT
1275
Messrs. Martin Sacks and Charles F. McCoy, for the General Counsel.
Mr. Frederic D. Anderson, of Barnes, Hickman, Pantzer & Boyd of Indian,
apolis, Ind., and Mr. C. L. Eldridge, of Indianapolis, Ind., for the Respondent.
Messrs. Charles J. Hill and Anton E. Kubicki, of Kansas City, Mo., for the
Union.
STATEMENT OF THE] CASE
Upon charges duly filed by the American Federation of Labor, herein called
the Union (and sometimes A. F. L.), the General Counsel of the National Labor
Relations Board,' by the Regional Director for the Seventeenth Region (Kansas
City, Missouri), issued his complaint, dated October 14, 1949, against Stokley
Foods, Inc., herein called the Respondent, alleging that the Respondent had
engaged and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3), and Section 2 (6) and (7) of the National Labor
Relations Act, as amended (June 23, 1947, Public Law 101, 80th Congress,
Chapter 120, 1st Session, 61 Stat. 136), herein called the Act. Copies of the
original charge, the first amended charge, the second amended charge, the com-
plaint, and notices of hearing thereon were duly served upon the Respondent and
the Union?
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that the Respondent, on or about September 8, 1948, discharged Willis East-
land, an employee, and on or about October 8, 1948, laid off Paul J. Niemann,
Fred Nightingale, Harold W. Pobjoy, Marvel Murphy, and Loren W. Donner, all
employees, and has since refused to reinstate them to their former positions, for
the reason that they joined or assisted the Union ; and (2) that the Respondent
has since about September 1, 1948, interfered with, restrained, and coerced its
employees by engaging in surveillance of their union activities, by interrogating
them as to their union affiliations, and by threatening its employees in order to
discourage them from becoming union members.
In its answer the Respondent admitted certain facts with respect to its business
operations and that it had discharged or laid off the employees named in the
complaint but it denied all allegations that it had committed any unfair labor
practices. The answer affirmatively alleged that the complaint should be dis-
missed because: (1) it was unsupported by any charge filed with the Board
covering all the allegations set out in the complaint; (2) it was based on the
second amended charge which had been filed more than 6 months after the
alleged unfair labor practices covered thereby; and (3) an affiliated local of the
A. F. L. admitting to membership employees of the Respondent at its Lawrence,
Kansas, plant, had not complied with Section 9 (f), (g), and (h) of the Act.
Prior to the hearing certain motions made by the Respondent were referred
to Trial Examiner Reeves R. Hilton for disposition. By order dated February
24, 1950, Trial Examiner Hilton denied the Respondent's Motion to Strike from
the Record and to Dismiss the Second Amended Charge. On the same date the
aforesaid Trial Examiner granted, in part, the Respondent's Motion to Make the
Complaint More Specific and directed the General Counsel to furnish the Respond-
ent with further information as to certain allegations in the complaint.
1 The General Counsel and the attorneys representing him at the hearing are referred to
herein as the Geheral Counsel ; the National Labor Relations Board as the Board.
2 The original charge was filed on December 15, 1948; the first amended charge was filed
on January 4, 1949, and the second amended charge on October 14, 1949.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on March 28, 29, and 30, 1950, at
Lawrence, Kansas, before Robert E. Mullin, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel, and the Union by authorized repre-
sentatives. All parties were afforded opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues.
At the opening of the hearing a number of motions made by the Respondent
to dismiss the complaint in its entirety were denied. The motions were made
upon the following alleged grounds: (1) that an affiliated local of the A. F. L.,
having among its members employees of the Respondent, was disqualified from
using the processes of the Board because of noncompliance with the provisions
of Section 9 (f), (g), and (h) of the Act; and (2) that the 6-month limitation
upon the filing of charges operated as a bar to this proceeding. These motions
were denied. At the close of the General Counsel's case-in-chief, the Respond-
ent moved to dismiss the complaint for lack of evidence. In another motion,
the Respondent moved to dismiss the complaint insofar as it related to Loren
W. Donner. These motions were denied. At the close of the case, the Respond-
ent renewed its motion to dismiss the allegations in the complaint relating to
Donner.. This- motion was granted.3 At this time the Respondent likewise
moved to dismiss the complaint for lack of evidence and, in addition, for the
same reasons urged by it at the opening of the hearing. Respondent also moved
to strike from the record all testimony offered by the General Counsel which
was barred by the provisions of Section 8 (c) of the Act. Ruling was reserved
on these motions. To the extent that Respondent's motion sought dismissal of
the complaint under Section 9 (f), (g), and (h) and under Section 10 (b) of
the Act, it is hereby denied .4 The other motions made by the Respondent at the
8 This ruling is discussed at p. 1288, infra.
4 (1) The Respondent's argument that the complaint should be dismissed under Section
9 (f), (g), and (h) of the Act is predicated on the fact that during the Union's organiza-
tional campaign at Respondent's Lawrence, Kansas, plant, a local of the A. F. L. was
in the process of formation there. Temporary officers were elected to fill the posts of
president, recording secretary, financial secretary-treasurer, and sergeant-at-arms, and on
October 26, 1948, a charter was granted to it as Federal Labor Union No. 24439. At the
opening of the hearing, the General Counsel conceded that the latter (herein called Local
24439) was not in compliance.
The charges in this case were filed by the A. F. L. There would be force to Respond-
ent's argument if the objective of this proceeding were an order compelling the Respondent
to bargain with Local 24439 (cf. The Prudential Insurance Company of America, 81 NLRB
295, 296; Marshall and Bruce Company, 75 NLRB 90), or if this were a representation
proceeding in which the petition had been filed by the A. F. L. Cf. The Empire Furniture
Manufacturing Co., 82 NLRB 427. The instant case, however, is on a different footing.
"All this proceeding looks toward is a cease and desist order enjoining certain alleged
practices that are violative of individual employee rights protected by the Act. The
Board's processes for that purpose might properly have been invoked by a charge filed by
any interested individual." Potlatch Forests, Inc., 87 NLRB 1193; Luzerne Hide and
Tallow Company, 89 NLRB 989; Andrews Company, 87 NLRB 379.
Since the A. F. L. was in compliance it could, of course, file such charges as'it did on
behalf of its affected members. It is immaterial, therefore, whether a local which is not
in compliance might incidentally derive any benefit from an unfair labor practice finding
in this case. Potlatch Forests, Inc., ibid.; United Engineering Company, 84 NLRB 74.
Moreover, it should be noted, and the undersigned Trial Examiner takes official notice
thereof, that, in any event, since the close of the hearing, Local 24439 has effected full
compliance with Section 9 (f), (g), and (h) of the Act.
(2) In support of its argument that the complaint should be dismissed under Section
10 (b) of the Act, Respondent contends that the subject matter of paragraphs 4, 10, and
12 of the complaint is not covered by any charge served on Respondent within the 6 months
prior to issuance of the complaint. This contention is likewise lacking in merit. Meier cE
STOKELY FOODS, INC. 1277
close of the hearing are disposed of in the manner indicated in the body of this
Report. A motion made by the General Counsel at the close of the case to
amend the complaint in certain minor respects was granted. Opportunity was
afforded all parties to argue the issues orally upon the record and to file briefs.
The parties waived oral argument. On May 1, 1950, briefs were received from the
General Counsel and the Respondent which have been carefully considered by
the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation having its general offices at Indianap-
olis, Indiana. It operates 72 packing plants located in 14 States in the United
States, Canada, and the Hawaiian Islands. It is engaged in processing and
canning seasonal food products at some of them, nonseasonal food products at
others, and both seasonal and nonseasonal food products at still others. Dur-
ing the year 1948 it sold food products for an amount in excess of $50,000,000,
and distributed its products on a Nation-wide basis.'
On these facts, the undersigned concludes and finds that the Respondent is
engaged in commerce within the meaning of the Act.
The Lawrence Plant
Only the Lawrence, Kansas, plant of the Respondent is involved herein.
Respondent acquired this plant from another corporation known as Columbus
Foods in November 1945. For some time thereafter it remained a seasonal
plant. In the summer of 1948, however, the Respondent made it a year-around
plant. In 1C4S, the sole seasonal product of the Lawrence plant was peas and
it packed "dry pack"6 throughout the year. During the year 1948 this plant
purchased for its canning operations, food and raw materials valued in excess
of $50,000, and sold canned goods processed at this plant valued at over $100,000.
At the time of the principal events related in this Report it had approximately
75 employees.
Frank Company, Inc., 89 NLRB 1016. The original charge was served on Respondent on
December 21, 1948. Consequently any and all unfair labor practices alleged to have been,
committed by the Respondent going back to a date 6 months prior to December 21, 1948,
are properly in issue. Lily-Tulip Cup Corporation, 88 NLRB 892 ; Cathey Lumber Com-
pany, 86 NLRB 157. Moreover, a complaint is, not limited in scope "by.the averments
contained in the charge filed to initiate the proceedings." Globe Wireless, Ltd , 88 NLRB
1262. It is well established that every single element in a complaint need not be covered
by a charge filed with the Board. N. L. R. B. v. Indiana & Michigan Electric Co., 318
U. S. 9, 18; N. L. R. B. v. National Licorice Co., 309 U. S. 350, 369; N L. R. B. v.
American Creosoting Co., 139 F. 2d 193, 195 (C. A. 6), certiorari denied, 321 U. S. 797 ;
Consumers Power Co. V. N. L R. B., 113 F. 2d 38, 42-43 (C. A. 6).
5 The findings in this paragraph are based upon Respondent' s admissions in its answer
and on the testimony of C. L. Eldridge, Respondent's director of personnel relations.
6 Respondent packs both seasonal items (i. e., those which must be brought in from the
fields and packed immediately), and what are known as "dry pack" items (i. e., those
which can be delivered to the plant in the raw state, stored without spoilage, and canned
at any time during the year, such as dried beans). About 90 percent of Respondent' s plants
are purely seasonal, and do not can any dry pack items. The regular year-around dry pack
plants of the Respondent do, however, normally pack one or more seasonal items.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION INVOLVED
American Federation of Labor is a labor organization admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. The inception of organizational activities
The first attempt to organize the employees at Respondent's plant in Lawrence,
Kansas, began in August 1948? In the latter part of that month Willis Eastland,
a laborer working at the Lawrence plant, sought the advice of Clarence Strunk,
president of the Lawrence Central Labor Union, A. F. L., on how to organize
Respondent's cannery. Strunk suggested that Eastland procure a list of em-
ployees interested in a union and then report back to him. Thereafter, on
August 27, during the noon lunch hour at the plant, and at the same time on
several succeeding. days, Eastland passed among the employees a circular cap-
tioned "a meeting at Carpenters Hall, Lawrence, Kan." and asked that employees
interested in such a meeting sign the circular. In the course of his canvass
Eastland showed his list of signatures to Robert L. Kilby, the plant personnel
man, and Harvey Jackson, a foreman. Another foreman, Ervin Burgess, signed
the list. After Eastland had collected a total of 52 signatures he reported to
Strunk. The latter then arranged to have Charles J. Hill, regional director of
the A. F. L., in that area, meet with the Stokely employees on September 21.
On September 8, Eastland was discharged. Plant Superintendent Morris
Vance approached Eastland shortly before the end of his shift. According to
Eastland, whose testimony the undersigned credits,' the followipg conversation
ensued:
He [Vance] says "Willis, 1-have got too much help, I have got to lay
off somebody-" and I says "tonight?" I was taken by surprise. "Yes,"
he says "I got too much help." I says, "Mr. Vance, I believe that that
petition I passed around with those names on there," and he looked away
and he says, "Willis, I don't know anything about it," and his face got as
red as if I slapped him.
Pursuant to the arrangements made by Strunk, the Stokely employees held
their first organizational meeting at Carpenters' Hall in Lawrence on the even-
ing of September 21. It happened that another meeting was in progress when
they first arrived at the union hall so that the Stokely employees found it neces-
sary to wait on the public sidewalk before the building for 20 to 30 minutes. At
a time when 35 to 40 of them, were thus assembled near the entrance, Plant
Manager Robert W. Pickett and his wife walked by, greeting several of the em-
ployees as they did so. Shortly thereafter the employees were able to enter
the union hall where Hill then delivered an organizational speech. Hill testi-
fied that during the meeting he collected approximately 65 authorization cards
from them. The Stokely employees held their second union meeting on October
6, at which time they took the initial steps toward organizing their own A. F. L.
4 All events referred to herein occurred during the year 1948 unless otherwise specified.
8 At the time of the hearing Vance was no longer in Respondent 's employ and the
Respondent did not call him as a witness . Eastland 's testimony as to the conversation
related above is undenied . For the further reason that Eastland impressed the under-
signed as doing his , best to testify truthfully his testimony is credited.
STOKELY FOODS, INC. 1279
local and elected 4 of their number to the temporary offices of president, record-
ing secretary, financial secretary-treasurer, and sergeant- at-arms.
On October 12, in a letter to Plant Manager Pickett, Hill advised the Com-
pany that a large majority of its employees had authorized the A. F. L. to repre-
sent them. and requested that Pickett meet with him s On October 21 C. L.
Eldridge, director of personnel relations for the Respondent, in a reply to this
letter, informed Hill that lie would be happy to arrange a meeting if Hill would
tell him the name of the union which the Stokely employees had authorized
to bargain for them. On October 25, Hill wrote to Eldridge that the Stokely
employees at Lawrence had formed a labor union of their own, elected officers,
paid initiation fees, and made application to the A. F. L. for a charter of what
would be known as Cannery Workers Federal Labor Union.10
There is evidence that during the latter part of September and early in
October two of Respondent's supervisory staff interrogated employees with
respect to their union activities and interests. Thus, Harold W. Pobjoy testi-
fied that after one of the union meetings mentioned above Warehouse Fore-
man Warren Harrell" approached him at the plant to ask whether the employees
were "trying to organize, get a union in." When Pobjoy conceded that this
was true, Harrell added, "Well, if you would go up to the office and talk to them
up in the office, you could get just as much for you and the workers as you could
by getting a union in down here." Harrell concluded the conversation with the
declaration that the plant might be closed "if the union got in." 12 Later, in
October, Plant Manager Pickett asked employee Charles Herschell as to whether
he would join the Union."
2. Shutdown of the cannery and subsequent discharges on reopening
On October 8, the Respondent notified its employees that the cannery would
be shut down indefinitely. Eldridge testified that the shut-down was ordered
to prevent an overstocking of the warehousing facilities at the Lawrence plant
and was done pursuant to an established maximum-minimum inventory policy
which the Respondent followed with respect to its dry pack plants.. As Eldridge
explained this policy, all of Respondent's dry pack plants are controlled by a
system which establishes a minimum and maximum inventory figure for each.
As long as the particular plant has an inventory within that spread, it operates
at full capacity. Whenever the maximum inventory is exceeded, production
is reduced or suspended entirely the decision as to the proper size of the in-
ventory being made by the production and sales department at the Respondent's
-On October 20, the A. F. L. filed a representation petition with the Board (Case No.
17-RC-306). This was withdrawn, however, on December 10. Five days later the A. F. L.
filed its original charge in this case.
10 Federal Labor Union No. 24439, mentioned in footnote 4, supra.
11 This name is spelled II-a-r-o-1-d throughout the transcript. In their briefs to the Trial
Examiner , both the General Counsel and Respondent agree that this spelling is erroneous
and that H -a-r-r-e-l -l is correct . In view of this fact , in all subsequent references to this
individual , the undersigned will use the latter spelling.
12 The quotations in this paragraph are from Pobjoy's uncontradicted testimony which
the undersigned credits. Harrell is still employed by Respondent but did not testify.
Respondent offered no explanation for his failure to appear.
13 This finding is based upon the testimony of Charles Herschell . Pickett conceded that
lie had discussed union activity with Herschell at the time and place described by the latter
but denied that he had asked Herschell if he had joined the Union . Herschell , however,
by his demeanor and forthrightness on the stand impressed the undersigned as giving the
more accurate account of this incident. Consequently , the undersigned credits his testimony
over that of Pickett.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
headquarters in Indianapolis, Indiana. When stocks exceed the established
maximum inventory, Eldridge, as director of personnel relations, shares with
the production and sales heads the decision as to whether production should be
reduced or completely suspended. Eldridge testified that here he decided upon
a complete rather than a partial shutdown of the production operations because
he knew that the Union was attempting to organize the plant and since the
Respondent had no set seniority policy he felt that a mere reduction in per-
sonnel would inevitably result in charges of discrimination for having selected
certain employees instead of others"
About 50 employees were laid off on the day the plant closed. About 25 main-
tenance and warehouse employees were kept on throughout the shutdown, how-
ever. Eldridge testified that during the layoff he advised Pickett that before
the plant reopened he should take advantage of the opportunity to eliminate
any of the nonproductive workers still being carried on the rolls from the post-
war period when there was a shortage of labor. The Respondent's final deci-
sions as to whom should be eliminated will be discussed in detail hereinafter.
Throughout the shutdown all the employees laid off on October 8 were carried
on the plant personnel records as employees in a nonpay status. Immediately
prior to the reopening a recall list was prepared. All those on the list were
notified that they should return'to the plant on November 1. Eldridge testified
that those not called back at this time were terminated as of the last day they
worked. Paul J. Niemann, Fred Nightingale, Harold W. Pobjoy, Marvel Murphy,
and Loren W. Donner were among those not recalled. The record is not clear
whether there were others in addition to this group of five. It appears that
there were few, if any, however, for Pickett testified that when the plant re-
opened on November 1 "there were probably just a few less than what we had
when we closed down."
Within 3 months after the plant reopened Respondent hired 49 new employees.
Niemann, Nightingale, Pobjoy, and Murphy, however, were never rehired. The
record is silent as to whether Donner was ever reemployed.
A few days after the plant reopened Hill telephoned Eldridge in Indianapolis
to protest the failure of the Lawrence plant to recall a number of its employees
and to tell him that he felt they had been discharged for union activities.
Eldridge promised to look into the matter and shortly thereafter talked to Hill
again, at which time he promised Hill that he would speak to Pickett about
getting all the employees back to work. According to Eldridge, he later relayed
to Hill the information that, with the exception of Murphy, all the employees
who went in to Picket and stated that'they would do better than before would
be given "another trial job."
On December 15, 1948, Hill filed the charge which initiated the present pro-
ceeding. On April 25, 1949, Hill wrote Eldridge that the Union would waive
retroactive pay and withdraw unfair labor practice charges filed with the
Board if all the employees involved in the charges were offered immediate
reemployment. Because the Respondent would not offer to reemploy Murphy,
Hill notified Eldridge, on April 29, 1949, that he would continue to press the
charges filed with the Board.
B. Conclusions as to allegations of interference, restraint, and coercion
The complaint alleged that Respondent had violated Section 8 (a) (1) of the
Act by threatening its employees in order to prevent their becoming or re-
14 There was no allegation in the complaint that the shutdown was in itself discrimina-
tory.
STOKELY FOODS, INC. 1281
maining union members, by interrogating them concerning their union affilia-
tions, and by engaging in surveillance of their union activities.
Warehouse Foreman Harrell's statement to Pobjoy that the plant might close
down "if the Union got in" was clearly an implied threat to deprive the employees
of their jobs in the event the employees exercised their right to organize. Such
a statement is unquestionably coercive and proscribed by the Act. Premier
Worsted Mills, 85 NLRB 985; Andrews Company, 87 NLRB 379. Likewise,
Harrell's questioning of Pobjoy as to the employees' union interests and Plant
Manager Pickett's interrogation of Herschell about his union sympathies just
as plainly come within the prohibitions of the Act. Meier & Franck Company,
Inc., 89 NLRB 1016; Standard-Coosa-Thatcher Companny, 85 NLRB 1358.16 The
undersigned finds that by the above conduct, the Respondent interfered with,
restrained, and coerced its employees in,the exercise of the rights guaranteed
in Section 7 of the Act, thereby committing unfair labor practices within the
meaning of Section 8 (a) (1) thereof 18
The allegation of surveillance rests, as the General Counsel contends in his
brief, upon Pickett's conduct on the night of the first union meeting. It is
conceded by all parties that on the evening in question, while the employees were
assembled on the public street at the entrance to the union hall, Pickett and his
wife walked by the group, exchanged greetings with the employees and then,
without stopping to carry on any conversation, proceeded on down the street. In
his brief, the General Counsel, appears to stress the fact that Pickett first drove
by the group in his automobile, turned around and came back past the union
hall, parked his car, and then chose to walk through the crowd rather than
avoid it as he might have done by going to the other side of the street. Pickett
freely admitted that he knew a union meeting was scheduled on this particular
evening. He testified that he was "under the impression" that the meeting was
to open before 8 p. in. so that when he arrived in the business section some time
after 8:15 p. in. he was surprised to see his employees still outside Carpenters'
Hall. He stated that at this time on that particular evening he and his wife
were driving north on Massachusetts Street, the principal thoroughfare in
Lawrence, bound for a motion picture theatre located a short distance beyond
15 At one point in his brief, counsel for Respondent urges that Personnel Director Eldridge
had forbidden supervisory interference with union activity and that, as a result, such
conduct by supervisory employees as that set forth above could not be violative of the
Act. This, of course, is no defense. C. Ray Randall Manufacturing Company, 88 NLRB
140. In this connection it should be noted that Eldridge further testified that although
for some time the Respondent has had in effect a training program in personnel procedure
for supervisory employees which dealt, in part, with union matters, Plant Manager Pickett
has not yet been given this training.
10 In his brief, counsel for Respondent makes no argument in support of his blanket
motion to strike from the record all testimony barred by Section 8 (c) of the Act, nor
does he point to specific testimony for the Trial Examiner to consider in connection there-
with. The motion is denied, for this reason and for the further reason that no testimony
which comes within the purview of Section 8 (c) has been considered by the undersigned
as the basis for any of the unfair labor practice findings made herein. As the Board
stated in Standard-Coosa-Thatcher Company, ibid., "Interrogation cannot be considered an
expression of views, arguments, or opinion, within the meaning of that provision [Section
8 (c) l . . . Moreover, the purpose of that section is to permit an employer to express his
views, not to license him to extract those of his employees." Likewise, Harrell's state-
ment that unionization might result in closing the plant contained an implied threat of
reprisal for adherence to the Union which is plainly beyond the immunization of "views,
argument, or opinion" intended by Section 8 (c) of the Act. Andrews Company, 87
NLRB 379.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union hall and on the opposite side of the street. Pickett stated that on
getting to the theatre he could find no parking place for his car, so that he turned
around and drove back on the same street until he finally located parking space
a short distance beyond the union hall. Thereafter, in proceeding to the theatre,
Pickett testified that he and his wife decided to do some "window shopping" and
chose to walk past the employees who were still assembled before the entrance
to the building because the main stores were on that side of the street and be-
cause he saw "no reason for avoiding x. *. * friends." In the light of all
the testimony Pickett's explanation of this incident appears reasonable and is
credited. Andrews Company, 87 NLRB 379; Chicopee Manufacturing Corpora-
tion of Georgia, 85 NLRB 1439; Boreva Sportswear, Inc., 73 NLRB 1048, 1057-
1058. The undersigned will recommend the dismissal, therefore, of paragraph.
4 (A) of the complaint which alleged that Respondent kept under surveillance
the union activities of its employees.
C. Respondent's contentions relating to the discharge of Eastland;
conclusions with respect thereto
Eastland was discharged by Respondent on September 8, 1948. He had
been hired the preceding March. He had, however, worked at the cannery be-
fore, having been employed by the Respondent throughout the greater part
of 1947, and having worked for Stokely's predecessor prior to 1945. In explana-
tion of Eastland's discharge Pickett testified that the last time Eastland had
been hired it was with the understanding that he would have only a short-time
job, that Eastland had difficulty working with his fellow employees, was inef-
ficient, and, in addition, had defective eyesight. Pickett admitted, however, that
he had never personally informed Eastland that his job was to be temporary and
Eastland testified that no one had ever told him that be was to have only a*tem-
porary job. As has been noted above, Plant Superintendent Vance did not
testify. Foreman Burgess who had, once been Eastland's supervisor (although
not at the time of his discharge) testified that he was a "satisfactory" worker.
Eastland testified that lie had had an eye operation in June 1943 but none since.
From the record it is the conclusion of the undersigned that any visual deficiency
Eastland had at the time of his discharge he had also had at the time he was
hired in the spring of 1948 and that it was not then considered any handicap by
the Respondent.
Eastland's union activities were well known. He was the first employee to
seek advice from the A. F. L. on how to initiate an organizational campaign
and he spent several lunch periods at the plant gathering the naines of some 52
employees interested in attending a union meeting. Eastland's solicitations
during this period were observed by Killiy, the plant personnel man, and by.at
least 2 foremen, Jackson and Burgess. In addition, Pickett freely admitted
that he knew of Eastland's activity at, the time. A few days later Plant Su:
perintendent Vance abruptly discharged him. In contrast with the numerous
reasons for Eastland's dismissal advanced at the hearing by Pickett, Vance gave
Eastland no explanation other that that he had "too much help." When
Eastland suggested that he was being laid off because of his union activities,
Vance flushed in embarrassment and denied any knowledge of then. Nor was
Eastland ever rehired. In June 1949, at the beginning of the busy pea pack
season, a time when, according to Pickett, almost anyone who sought work
at the cannery was hired, Eastland applied for a job at the plant without
success.
STOKELY FOODS, INC. 1283
In view of Respondent's knowledge of Eastland's prominence in the incipient
union movement, the abruptness of his discharge, the unconvincing reasons ad-
vanced to explain it, and the subsequent refusal to rehire him, even during the
height of a rush season, the undersigned concludes and finds that the real rea-
son for his summary lay-off was Eastland's union activities. Although Re-
spondent may have had some cause for dissatisfaction with Eastland's work as
the Court of Appeals for the Third Circuit observed in a similar case, "it ap-
parently became intolerable only after he had joined the union." N. L. R. B. v.
Electric City Dyeing Co., 178 F. 2d 980, 983 (C. A. 3).
D. Respondent's contentions relating to the discharges made on reopening the
cannery; conclusions with respect thereto
1. Paul J. Niemann and Fred Nightingale
Paul J. Niemann went to work for the Respondent at its Lawrence plant in
June 1948. For a time he operated a quality grader; later he worked in the
cook room and the warehouse. With the exception of 1 week early in the sum-
mer when he went to a Stokely plant in Illinois in the hope that he would be able
to take part in the pea pack there, Niemann worked steadily at Lawrence until
he was laid off on October 8. Niemann attended the first organizational meeting
on September 21 and thereafter became prominent in the union drive. He so-
licited his fellow employees to sign union authorization cards at the plant, on
the street, and in their homes. In doing so, he secured about 10 signed cards.
At the second union meeting, held on October 6, Niemann was elected temporary
president of the local that was then being established. He still holds that office.
The October shutdown of the plant occurred on a Friday. On the following
Tuesday, Niemann returned to the plant to receive his last pay check. Pickett
and Vance, whom he met at the time, assured him that they hoped to have the
employees "all back before long." When the plant reopened on November 1,
however, Niemann was not recalled. On November 10, Niemann telephoned
Vance to ask if Vance had any job for him. Vance replied, "No, we are all filled
up right now." When Niemann told him that since he had not received a recall
notice he was afraid that he had done something wrong, Vance told him, "No,
we are just filled up now, Paul." " Vance went on to say that Niemann had not
been recalled because he and Kilby understood that Niemann was working some-
where else. Niemann told Vance that he did, in fact, have a temporary job with
the State Highway Commission but that it would only last for two or three
more days.1e However, Niemann was never recalled.
Fred Nightingale, also laid off in the October shutdown, had worked for the
Respondent from the time it took over the Lawrence plant in 1945. Prior to that
time he had worked at the cannery for many years for Stokely's predecessor.
Nightingale had held many jobs in the plant throughout this period and at the
time of the layoff he was working in the warehouse. Nightingale was active
in the union campaign from its beginning. He was the first to sign Eastland's
circular and thereafter notified his fellow employees of the date for the first
meeting. During the subsequent weeks he handed out union cards to his co-
workers and got two signed authorizations from them.
17 The quotations in this paragraph are from Niemann's undenied, credited testimony.
"Since the layoff notice of October 8 had stated that the plant would remain closed
indefinitely, Niemann had registered with the State Employment Office. That agency had
referred him to the Highway Commission for a temporary job.
917572-51-vol. 91-82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.Nightingale was not recalled when the plant reopened on November 1 and after
several weeks passed without his being notified to come back, Nightingale sought
out Vance to ask that he be rehired. Vance told him to see Pickett. Pickett
told him that Vance was doing the hiring and that he should go back to Vance.
When Nightingale did this, Vance told him that he had no job for him. Night-
ingale was never recalled thereafter.
At the hearing Respondent did not attack the work record of either Niemann
or Nightingale or argue that they had not been recalled because of any reason
related to their job performance . Instead, Respondent urged that it did not
recall either of them because Kilby, its personnel man, had information at the
time the plant was being reopened that Niemann had another job and, that
Nightingale had gone to California.
Kilby explained in his testimony that the two had been left off the recall
list "not from inadvertence " but because he had told Vance that Niemann had
another job and that Nightingale had gone to California . Respondent intro-
duced the recall list in evidence . Although the names of Niemann and Night-
ingale appear at the bottom of it, Kilby testified that he added them only "to show
what had been done in regard ... to those two names." Besides Niemann's
name on this exhibit there appears the notation "Has job at highway depart-
ment." Opposite Nightingale ' s' name there appears the phrase "Left March
6, April 11 rehired." Kilby testified that he learned about Niemann's other job
,on October 29, a Saturday , when he happened to meet Niemann on the public
street and in a brief conversation found what Niemann was doing at the time.
I t does not appear, however, that Kilby asked Niemann whether he wanted to
return to work in the event the plant reopened.' Kilby was unable to identify
the source of his information that Nightingale had gone to California other
than that it was "somebody who knew him pretty well in the plant." In fact,
Nightingale had not gone to California. In March 1947, during another shut-
down at the cannery, he had gone to the West Coast for a short period but
throughout the,entire period of this one he ' had remained in Lawrence. More-
over, Nightingale denied, and his denial is credited , that he ever told any
of the Stokely personnel that he proposed to leave for California during the
October layoff.
The reasons advanced by Respondent for not recalling Niemann and Nightin-
gale might be convincing were it not for the fact that Respondent's recall list
included the name of at least one employee , Thomas Garcia , who bad another
job at the time the plant reopened but who was , nevertheless , recalled to work.
Further, and most significantly , shortly after the plant reopened both Niemann
and Nightingale returned to ask for work and were rejected, despite the fact
that Respondent was then hiring new employees.
Both Niemann and Nightingale were active in the nascent union movement.
From the record in this case it is inferrable that Respondent was well aware
of their activity . Nightingale was the first to sign B+ astland's circular and
subsequently Kilby, Jackson , and Burgess , all supervisory employees , saw it.
Pickett freely admitted foreknowledge of his employees' union meetings. In
view of these facts and the additional factor that the Respondent 's plant is
small , the undersigned concludes and finds that Respondent 's supervisory per-
sonnel had knowledge of the union activities of two so prominent in the move-
ment as Niemann and Nightingale . N. L. R. B. v. Abbott Worsted Mills, 127
19 In response to the question "Did you ask Mr. Niemann if he wanted to come back to
work?" Kilby answered , " I don't think I did."
STOKELY FOODS, INC. 1285
F. 2d 438, 440 (C. A. 1) ; Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149,
1150; L. & H. Shirt Company , Inc., 84 NLRB 248; The Firestone Tire and Rubber
Company, 62 NLRB 1316 , 1325. Further , upon consideration of (a) the hos-
tility to union organization displayed by Respondent 's management at the
Lawrence plant in the coercive conduct of Warehouse Foreman Harrell and
Plant Manager Pickett in violation of Section 8 (a) (1) of the Act and the
precipitate discharge of Eastland by Plant Superintendent Vance in violation
of Section 8 (a) (3) of the Act, as found above; ( b) Respondent 's knowledge
of the union activities of Niemann and Nightingale and the fact that these two
employees were among the most active in the Union ; ( c) Respondent 's failure
to criticize their work ; ( d) Respondent ' s refusal to reemploy them when they
applied and its failure to give a valid reason for not taking them back ; and (e)
the fact that there is nothing in the record to show that Niemann and Nightin-
gale were unable to perform the work of any of the 49 new employees whom the
Respondent added to its staff from November 1948 to January 1949, the under-
signed concludes and finds that on November 1, 1948, Respondent discriminatorily
refused to reemploy Niemann and Nightingale because of their union activities.
2. Harold W. Pobjoy
Harold W. Pobjoy went to work for Stokely 's predecessor at the Lawrence
plant in 1945. When the Respondent took over operation of the cannery he re-
mained an employee until the October shutdown which figures in this case.
Throughout the course of his employment Pobjoy worked in the warehouse where
he was under the supervision of Foreman Harrell. At the outset of the organi-
zational campaign Pobjoy did some work on behalf of the Union in that, along
with Nightingale , he handed out cards to the cannery employees and told them
about the date set for the first union meeting. Harrell 's interrogation of Pobjoy
regarding the union movement has already been discussed . On October 8,
Pobjoy was among those laid off, although others in the warehouse were kept
for shipping work during the shutdown . When the plant reopened he was never'
recalled?°
At the hearing , Respondent asserted that Pobjoy was not taken back when
the plant reopened because of his record for "excessive absenteeism ." 21 In ad-
dition, Respondent urged that Pobjoy was a supervisory employee within the
meaning of the Act.
Pickett testified that Pobjoy had been absent for 37 working days from January
1 to October 8, that complaints about these absences had come to him from the
foremen, and that on at least one occasion Vance had reprimanded Pobjoy for
leaving work to go fishing . Respondent did not introduce any personnel records
to corroborate Pickett's testimony . Nor did it call Foreman Harrell, Pobjoy's
immediate supervisor . On the other band, Pobjoy testified that except for a,
minor incident in 1947 he was never reprimanded by Harrell and he denied that he
ever left work at the plant without at least informing a supervisor . However, he
conceded that just before the end of the night shift in August he had spoken to
Pickett about taking a vacation and then, after Pickett told him that he was not
eligible for a vacation , he had taken one for "eight or ten days " z in September.
Pobjoy testified that on his return he went back to work and was not disciplined
20 Insofar as the record shows, Pobjoy never applied for work after the plant reopened.
21 The quotation is from Pickett 's testimony.
M The quotation is from Pobjoy ' s testimony.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for an unauthorized absence. However, Pickett testified that the decision to•
eliminate Pobjoy was made before the October shutdown of the cannery.
In view of Respondent's knowledge of Pobjoy's union adherence, its failure to
all Harrell as a witness or to produce any records to support Pickett's testi-
mony, Pickett's assertion that Pobjoy was not recalled because of his record for
absenteeism is somewhat lacking in plausibility. However, Pobjoy conceded
rather frequent absences from the plant and his casual description of the manner
in which he took a vacation in September lent substance to Pickett's claim that
when he was dropped shortly thereafter it was because of his repeated ab-
senteeism. On the whole, Pobjoy by his demeanor and manner of testifying
did not impress the undersigned as a reliable witness. On the other hand,
Pickett did, at least with respect to this incident, and his testimony, therefore, is
credited. Clark Phonograph Record Co., 78 NLRB 34, 53-54, enforced,. 176 F. 2d
341 (C. A. 3) ; Rice-Stix of Arkansas, Inc., 79 NLRB 1333, 1335.
The undersigned does not agree, however, with Respondent's contention that
Pobjoy was a supervisor within the meaning of the Act. It is true that Pobjoy
was an assistant foreman on a night shift in 1948 for a period described by
Pickett as approximately 2 months. From •Pobjoy's own testimony it appears
that during the night shift lie recommended one man for a raise and on another
occasion discharged an employee. The undersigned is convinced that Pobjoy
did have supervisory status throughout this period. However, with the elimina-
tion of the night shift Pobjoy went back to the day shift where he was "over-
seer" or "strawboss" over a group of three to five men loading cars and trucks.
Pobjoy received 771/2 cents an hour whereas those with whom he worked received
70 to 75 cents. Pobjoy denied that he had the power to hire or fire employees.
Plant Manager Pickett testified that he could not state "truthfully" whether
Pobjoy had such power, nor could he, recall whether Pobjoy had ever hired or
discharged anyone. Although Pickett did state that Pobjoy had transferred
men from one job in the warehouse to another it is clear that he was referring
to that period when Pobjoy was an assistant foreman on the night shift. From
the record the undersigned is convinced and finds that at the time of the layoff
Pobjoy was in a category of working foremen described by Pickett as being
"men who are a little above average [who] look after small crews," with no
authority to hire or fire, recommend wage increases, or discipline employees. As
such, the undersigned concludes and finds that at the time of his layoff Pobjoy
was not a supervisory employee within the meanin of the Act. Bear Creek
Orchards, 87 NLRB 1348; Riverside Mills, 85 NLRB 969.
However, as the undersigned has already found that the Respondent's expla-
nation for not having recalled Pobjoy on November 1, is supported by a prepon-
derance of the testimony in the record, it will be recommended that these allega-
tions in the complaint that the Respondent in violation of Section 8 (a) (1) and
(3) of the Act discriminatorily terminated the employment of Harold W. Pobjoy
be dismissed.
3. Marvel Murphy
At the time of the layoff in October, Marvel Murphy had been working at the
cannery since 1929, first for the Respondent's predecessor and then for the
Respondent. So far as the record discloses she was far from being a prominent
or active union member. She had signed Eastland's circular in August and had
attended the first union meeting but nothing further appears in the record to
prove that she was in any manner outstanding by reason of her part in the
organizational campaign. Murphy was among those laid off when the plant shut
down and when it reopened she was not recalled.
STOKELY FOODS, INC. 1287
.,There was a sharp conflict in the record as to Murphy's duties and as to the
-question of whether-she had supervisory status. Murphy testified that prior to
the layoff she had performed a wide variety of work at the plant, such as picking
beans at the picking table, unloading cans from railroad freight cars, working
,on the production line, and even scrubbing the rest rooms. Murphy stated that
"there is no job in there I haven't done" and that "If they were short of any
help they put me in any women's place that wasn't there." Murphy also testified
that she had interviewed applicants and recommended that some of them be
hired but she denied that she had ever recommended the discharge of any em-
ployee. At the time she was laid off Murphy was receiving 70 cents per hour,
the highest rate for any female production worker in the cannery. The women
with whom she worked received from 60 to 621,^ cents per hour.
Respondent contends that Murphy was, throughout this period, a forelady over
all the female employees at the cannery with jurisdiction over them regardless of
the particular departments in which they worked. Pickett testified that Murphy
was the plant forelady when he first came to the Lawrence cannery in 1939 and
that she remained such all the while she was there. He testified that she had
hired a large number of the women who worked in the plant, and that it was to
her the foremen customarily turned when in need of more help since she was in
the best position to supply such personnel from one of the picking tables in the
cannery department. He further testified that she had the power to discharge
and had exercised it. However, he was able to name only one specific instance
-when Murphy had done so.
Personnel Director Eldridge testified that when he had come with the Com-
pany in 1946 he found that it was a long standing practice in the year-around
canneries to have a forelady over the female employees, despite the fact that
female employees were scattered throughout each plant and did not all work
in one department. Eldridge stated, that he concluded it would be better ad-
ministratively to have the women in the various departments work directly
under the departmental foremen and in September 1947 it was decided that the
job of forelady should be eliminated from all the Respondent's year-around
plants. This was done, plant by plant, the last of such jobs being abolished in
August 1949. Eldridge testified that in a telephone conversation with Pickett
during the shutdown of the Lawrence plant he told Pickett that the forelady
position at his plant should-be abolished then and that Murphy should not be
recalled. Eldridge stated that he rejected a suggestion by Pickett that Murphy
be taken back as a rank-and-file employee at a reduced wage because this had
been tried at another plant and had not been satisfactory because the ex-forelady
had not been able to work with her former subordinates without giving orders.
On account of this case and similar instances that arose in his own experience
in personnel work, Eldridge stated that he told Pickett that with the abolition of
her job Murphy could not be taken back as a production worker but would have
to be dismissed.
Pickett testified that since the plant resumed operations on November 1, 1948,
no one has occupied a position similar to that held by Murphy and that since
then the female employees have been supervised entirely by their individual
department heads.
The undersigned was impressed by the apparent truthfulness of Eldridge and
Pickett in their testimony as to Murphy's status and also by the fact that al-
though the General Counsel recalled several other witnesses in rebuttal as to
other aspects of the case he did not recall Murphy to refute the testimony of
Pickett and Eldridge as to her supervisory status. Cf. Homes Stores, Inc., 87
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 335. Accordingly, he is persuaded and finds that prior to the shutdown
Murphy was a supervisory employee of the Respondent, with authority to hire
and discharge, and responsibly to direct the 'female employees in the cannery.
L & H Shirt Company, Inc., 84 NLRB 248.
Since the Board may not agree with the conclusion of the undersigned as to
Murphy's supervisory status another incident related at the hearing should be
considered.
O'n about November 10, Pickett visited Murphy at her home after Murphy had
told Pickett's wife that she wanted to see the plant manager. According to
Murphy, Pickett told her that she was one of the best workers in the plant and
that she had not been dropped because of any deficiencies but because be had
orders to let her go from the Indianapolis headquarters of the Company. Mur-
phy testified that after Pickett had told her this he then stated, ". . it all
leads back to your union activities . . . You know we don't want a union in
that plant, it will change the set-up of everything . . . If you wanted a union,
why didn't you form a company union?" Pickett's version of this conversation
agreed in many substantial respects with Murphy's testimony but he denied that
he had attributed her discharge to union activities. According to Pickett, at
one point in the conversation Murphy suggested, that that was the real reason
for her not being reemployed. Pickett testified that he assured her that such
was not the case and that in not recalling her he was simply acting on orders
from the home office of the Company.23
Murphy's version of the conversation is not convincing for several reasons:
(a) Assuming arguendo that Murphy had been discharged for union activities
it seems most unlikely that the plant manager would make a special trip to her
home in order to tell her so; (b) so far as the record indicates Murphy took no
active part in the union movement other than to sign Eastland's circular and
attend one meeting; (c) Murphy did not impress the undersigned as a reliable
witness. Accordingly, Pickett's version of this conversation is accepted by the
undersigned as the more credible.
In the light of the above, the undersigned is convinced and finds that Murphy
was not reemployed on November' 1, 1948, because, as Respondent contends, she
occupied a supervisory position which for administrative reasons was eliminated
during the shutdown. Accordingly, the undersigned will recommend that those
allegations in the complaint that the Respondent in violation of Section 8 (a)
(1) and (3) of the Act discriminatorily terminated the employment of Marvel
Murphy, be dismissed.
4. Loren W. Donner
The complaint also alleged that Loren W. Donner was discriminatorily laid
off or terminated at the time the plant reopened. A Loren Donner is mentioned
in the record as a charter member of Local 24439 and the signature "Loren
Donner" appears on the petition Eastland circulated. Donner did not appear
at the hearing. At the conclusion of the General Counsel's case, Respondent
moved to dismiss the complaint with respect to Donner. The Trial Examiner
asked the General Counsel's representative as to the reason for his not producing
23 In his brief , the General Counsel urges that in this conversation Pickett did not
mention a company policy on abolition of the position of forelady . It is not clear from
the record whether Pickett referred to this policy but there is one passage in the transcript
(at pp. 341-342) which indicates that he did. During the presentation of his case-in-chief
the General Counsel asked no question of Murphy as to whether Pickett referred to any
policy on foreladies in this conversation:' As has been noted in another connection, the
General Counsel never called Murphy in his rebuttal.
STOKELY FOODS, INC. 1289
this alleged discriminatee and was told that Donner was in the Coast Guard and
that efforts to contact him had been futile. Counsel for Respondent then stated,
on the record, that approximately 10 days before the hearing opened he had
talked with Donner in the latter's home in Lawrence, Kansas, that Donner told
him at that time that he had been in the Coast Guard for a year, that he had
a 3-year enlistment, that he expected to stay in 20 years and get a pension and
that he did not know then whether he would attend the hearing. At the con-
elusion of the bearing the undersigned granted Respondent's motion to dismiss
those allegations in the complaint relating to Donner. That ruling is hereby
reaffirmed. Cathey Lumber Company, 86 NLRB, 157; El Paso-Ysleta Bus Line,
Inc., 85 NLRB 1149.
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with its operations 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
Since it has been found that Respondent has engaged in unfair labor practices
affecting commerce, it will be recommended that the Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
The undersigned has found that Respondent discriminatorily discharged
Willis Eastland on September 8, 1949, and discriminatorily refused to reemploy
,Paul J. Niemann and Fred Nightingale on November 1, 1948, because of their
union and concerted activities. The undersigned has found also that shortly
after the cannery reopened in November 1948, Respondent notified the Union's
representative that with the exception of Marvel Murphy it would offer "another
trial job" to those employees whom the Union alleged the Respondent had
discriminated against. At the hearing, counsel for Respondent urged that by
its offer the Respondent cut off its back-pay liability, if any, to the employees
involved herein. The question therefore arises as to whether the offer of rein-
statement was of such character as to relieve the Respondent of the obligation
to compensate the complainants for back pay subsequent to the date of Re-
spondent's offer. The question must be answered in the negative. This is true
because Respondent's offer to its discharged employees of "another trial job"
fell far short of an offer to reinstate them to their former or substantially equiv-
alent positions, N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980, 983
(C. A. 3) ; N. L. R. B. v. Van Deusen, 138 F. 2d 893, 895 (C. A. 2). Moreover,
when Niemann and Nightingale in November 1948, and Eastland in June 1949,
applied for work at the Lawrence plant they were not rehired. The under-
signed will recommend, therefore, that Respondent offer each of the said
employees immediate and full reinstatement to his former or substantially equiv-
alent position " without prejudice to his seniority or other rights and privileges.
" In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible, but if such position is no longer in existence, then to a substantially
equivalent position." See The Chase National Bank of the City of New York, an Juan,
Puerto Rico, Branch, 65 NLRB 827.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that all found to be discriminated against be made
whole for.any loss of pay by reason of Respondent's. discrimination, by payment
to each of a sum of money equal to that which he would have earned from the
date of the discrimination against him to the date of the offer of reinstatement
less his respective net earnings 2" during the period.
It has also been found that the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them by the Act,
by threatening reprisals against employees who exercised those rights and by
interrogating employees about their union affiliations and activities.
In view of the above findings, the undersigned is convinced that the manage-
ment of Respondent's Lawrence, Kansas, plant has demonstrated an intent
generally to interfere with, restrain, and coerce its employees in the exercise
of their rights under the Act, and that the commission of other unfair labor
practices by the Respondent is reasonably to be anticipated from the Respondent's
conduct in the past. In order, therefore, to make effective the interdependent
'guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor
practices, and thereby minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, the undersigned will
recommend that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act. 26
CONCLUSIONS OF LAW
1. The American Federation of Labor is a labor organization within the
meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Willis
Eastland, Paul J. Niemann, and Fred Nightingale, thereby discouraging mem-
bership in a labor organization, Respondent has engaged in and is engaging in.
unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (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, to the extent herein found to be
violative of the Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in the unfair labor practices alleged in
the complaint of (1) discriminating in regard to the hire and tenure of em-
ployment of Harold W. Pobjoy and Marvel Murphy; and (2) interfering with,
restraining, or coercing its employees, in the exercise of the rights guaranteed
in the Act, except by the acts and conduct herein found to have been violative.
[Recommended Order omitted from publication in this volume.]
25 Crossett Lumber Co., 8.NLRB 440.
26 See May Department Stores v. N. L. R. B., 326 U. S. 376, affirming as modified 145
F. 2d 66 (C. A. 8), enforcing 53 NLRB 1366.