Union Stock Yards Co.

National Labor Relations Board - Board Decisions

Oct 5, 1939

15 N.L.R.B. 897 (N.L.R.B. 1939)

In the Matter of UNION STOCK YARDS COMPANY and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKERS OF NORTH AMERICA, LOCAL
No. 536, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
Ccse No. C-814.--.Decided October 5, 1939
Stock Yards-Interference , Restraint , and Coercion : questioning of employees
by officers of the respondent regarding their union activities on the previous
evening; informing an employee that he would have been promoted instead of
discharged had he not engaged in union activities-Discrimination : discharge of
nine employees on day following their attendance of union meeting found dis-
crimination ; failure to reemploy extra employee , in absence of sufficient showing
as to the respondent 's knowledge of employee 's union membership , found not
discrimination and charge of dismissed-Reinstatement Ordered: two employees
not previously reinstated-Back Pay: awarded.
Bernard L. Alpert, for the Board.
Mr. Roscoe C. Patterson and Mr. Fred A. Moon, of Springfield,
Mo., for the respondent. V
1T'allace Cooper, of counsel to the Board.
DECISION
AND
ORDER
• STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Meat Cutters and Butcher
Workers of North America, Local No. 536, affiliated with the Ameri-
can Federation of Labor, herein called the Amalgamated, the Na-
tional Labor Relations Board, herein called the Board, by the Acting
Regional Director for the Seventeenth Region (Kansas City, Mis-
souri), issued its complaint dated June 10, 1938, against Union Stock
Yards Company, Springfield, Missouri, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and notice of hearing thereon were duly served upon
the respondent and the Amalgamated.
The complaint alleged in substance (1) that on July 15, 1937, the
respondent discharged' or laid off Arthur Brown, John Icenhower,
15 N. L. R. B., No. 101.
897
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. F. McMillen, Glen Jackson, John C. Crabtree, Frank Brashear,
A. J. Marks, and R. H. Cardwell, and failed and refused to reinstate
said employees until July 19, 1937, and that on July 15, 1937, it dis-
charged or laid off William Peeler, A. L. Ellis, A. L. Jolliff, and
Homer Ellis, and has at all times since failed to reinstate said em-
ployees, all because said employees joined and assisted the Amalga-
mated; and (2) that by laying off or discharging said employees, the
respondent interfered with and discouraged membership in a labor
organization of its employees' own choosing and particularly the
Amalgamated, and has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act. On June
20, 1938, the respondent filed an answer containing a general denial
of the material allegations of the complaint, an affirmative challenge
of the Board's jurisdiction, and affirmative allegations that certain
of said employees were never regularly employed by it and that
Homer Ellis and William Peeler were discharged for cause.
Pursuant to notice a hearing was held in Springfield, Missouri, on
June 20, 21, and 22, 1938, before Peter F. Ward, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
produce evidence bearing on the issues was afforded all parties. Dur-
ing the course of the hearing, the Trial Examiner, on motion of coun-
sel for the Board, dismissed the complaint in so far as it alleged unfair
labor practices with regard to Homer Ellis and R. H. Cardwell, and
made several rulings on other motions and on objections to the admis-
sion of evidence. The Board has reviewed these rulings and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On July 30, 1938, the Trial Examiner filed an Intermediate Report
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act,
and recommended that the respondent be ordered to cease and desist
therefrom, reinstate William Peeler and A. L. Ellis with Back pay,
and make whole Arthur Brown,. John Icenhower, J. F. McMillen,
Glen Jackson, John C. Crabtree, Frank Brashear, and A. J. Marks
for any loss of wages they may have suffered by reason of their lay-off
from July 15 to 19, 1937. The Trial Examiner further recommended
that the complaint be dismissed in so far as it alleged an unfair labor
practice with regard to A. L. Jolliff. Copies of the Intermediate Report
were duly served upon the respondent and the Amalgamated. There-
after, the respondent filed exceptions to the Intermediate Report.
The Board has considered the exceptions to the Intermediate Report
filed by the respondent and, except in so far as they are consistent with
UNION STOCK YARDS COMPANY 899
the findings, conclusions, and order set forth below, finds them
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Union Stock Yards Company is a Missouri corporation engaged at
Springfield, Missouri, in the operation of a "stock yard" within the
definition of that term by the Packers and Stock Yards Act, 42 Stat.
163, and under the supervision of the United States Department of
Agriculture. Its operations consist of furnishing for compensation
its services and facilities of its stockyard and appurtenances thereto
to commission merchants in connection with their business of buying,
selling, marketing, feeding, watering, weighing, holding, delivering,
and shipping live cattle, calves, sheep, swine, and mules received by
them from consignors.
During 1937, 266,752 head of livestock were shipped into the re-
spondent's stock yard from points in six States, including Missouri,
and 2,126 carloads of such livestock were reshipped from the respond-
ent's stockyard by interstate railroads to points in 29 States, including
Missouri, approximately 61 per cent of said cars being consigned to
points outside the State of Missouri.
We find that the operations of the respondent set forth above occur
in commerce, within the meaning of Section 2 (6) and (7) of the
Act.'
IT. TILE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workers of North America,
Local No. 536, is a labor organization affiliated with the American
Federation of Labor, admitting to membership yard employees of the
respondent.
III. THE UNFAIR LABOR PI:ACTICES
A. Interference, restraint, and coercion
During the early part of July 1937 considerable discussion occurred
in the respondent's stockyard among certain of its yard employees 2
regarding the advantages to them of belonging to a labor organization.
William Peeler took the initiative in these discussions and urged his
fellow employees to organize and become members of the Amalgamated.
' See St. Joseph Stock Yards Company v . United States, 298 U. S. 38; Stafford v. Wallace,
258 U. S. 495; Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters
and Butcher Workmen of North America , Local No. 159, 2 N. L. it. B. 39.
' The respondent had approximately 28 yard employees throughout this period.
900 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Pursuant to a prior understanding, 12 of the respondent's yard em-
ployees 3 met at a cafe near its stockyard on the evening of July 14,
1937, and from there proceeded in a, group to attend a meeting of the
Amalgamated. Peeler was spokesman for his fellow employees at that
meeting and all the employees attending except one 4 joined the Amal-
gamated on that occasion. The next morning A. L. Jolliff went to the
Amalgamated's offices and made application for membership which
was accepted on July 21, bringing the total number of the respondent's
employees joining the Amalgamated to 12.
The evidence is clear that on July 1.5, 1937, and prior to the dis-
charge on that date of any of its employees, the respondent knew the
names of all employees who had attended the union meeting the
previous evening. C. W. Carr, the respondent's manager having the
exclusive power of hiring and discharging employees.,' testified that
before noon on July 15, and prior to discharging Peeler, the first
employee discharged by the respondent on that date, he knew the
names of said employees." The source of Carr's information does
not appear in the record, but it does appear that Raymond Kissee,
a director of the respondent, subsequently interrogated several em-
ployees during the morning of July 15 regarding the meeting. At
that time, Kissee asked J. F. McMillen whether he had joined the
Union and, according to the testimony of Arthur Brown, asked and
secured from Brown the names of the employees who had joined.
Kissee's admission that he talked with Brown and two or three other
employees about the meeting and his equivocation as to whether he
asked Brown the names of the employees (except for Brown himself)
who had joined,? convince us that Kissee, on the morning of July 15
B Including all yard employees named in the complaint , except A. L. Jolliff, and also in-
cluding Lewey Sturdevant who was not named therein.
4 rewey Sturdevant.
6 Under the terms of his contract with the respondent effective on December 14, 1936, for
a period of 2 years.
° His testimony is conflicting as to whether he knew at that time that the employees had
joined the Amalgamated.
° Kissee testified in this regard :
Q. Do you remember the occasion when some of the men out there joined the
union?
A. I remember about them talking about it, yes, sir.
Q. Did you see Arthur Brown on the day after that [the union meeting] ?
A. Yes, sir, I think it was the day after . I wouldn't be sure about it, but I saw
him nearly every day that he worked.
Q. Did you have any conversation with him there about having joined the union?
A. I did .. We were just talking about, well just general talk about the boys
joining the union . We were all teasing one another and talking and going on. I
think I talked to 2 or 3 of the boys. I don 't know as I asked them if they joined
don't - know as I did, but we did discuss it and talked about it, ;quite a • bit . .
I didn't criticize them for it, didn 't tell them it was a good thing or nothing. We
just discussed it In a general way. ,
Q. Did you ask any of them who had joined the union?
A. No, I don't believe I asked them who joined . I might have asked the ]crown
boy if he did join,.I might have done that. I would not say. I did or didn ' t, I-don't
remember.
UNION STOCK YARDS COMPANY 90 1
had made detailed inquiry of Brown and other employees as to the
meeting and knew the names of some if not all the employees who.
attended. The respondent's knowledge as to the aforesaid union
activities of its employees and its attempt on July 15, 1937, to deter
them therefrom, are further shown by a conversation1 which occurred.
on July 15, subsequent to Peeler's discharge, between Peeler and C. C.
Hamilton, secretary-treasurer of the respondent. Peeler testified
regarding this conversation :
Hamilton said, "Bill, I am sorry you did what you did last.
night." I said, "What was that Charley." He said "Let those
fellows tie a bell on you, collar you and lead you up to that lodge
hall." I said "I was in my right mind." He said "Hell, you
were right in line for a regular job. You would have been sit-
ting on top of the world."
Hamilton did not deny Peeler's testimony regarding this conversa-
tion. He testified, however, that he could not remember all the
details thereof but that Peeler said "I didn't take the boys up there"
and that, ,is a joke, he replied to Peeler, "Bill . . . the report is
around here that they put a bell on you and paraded you around up
there." We find that the conversation occurred as related by Peeler.
On the basis of all the foregoing facts and the entire record, we
find that on July 15, 1937, prior to the discharge of any employees
on that date, the respondent through Carr, its manager, knew the.
names of its employees who had attended the meeting of the Amal-
gamated on the previous evening; that it knew that at least some of
them had joined the Amalgamated on that occasion; that for the
purpose of discouraging future union activities of these and other
employees, the respondent, acting through Hamilton, an officer, and
Kissee, a director, interrogated at least three of its employees, namely,
Peeler, Brown, and McMillen, regarding their union activities and
those of other employees; and that Hamilton made it plain to Peeler
that by his discharge he was being punished for his union activities
of the previous evening. We accordingly find that the respondent
has interfered with, restrained, and coerced its employees in the,
exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges on July 15, 1937
On July 15, 1937, the respondent, knowing the names of its em-.
ployees who had attended the meeting of the Amalgamated the pre-
vious evening, as stated above, discharged all 12 of said employees,.
including Lewey Sturdevant who had attended the meeting but had_
199549=39=vol. 15-58
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not joined the Amalgamated.8 Of the respondent's.28 yai-d em-
ployees, these 12 were the only ones discharged and Carr testified
that he could furnish no explanation for that fact. The respondent
contends that the employees' attendance at the meeting had nothing
to do with the discharges and it advances various purported reasons
for the discharges. We shall discuss the cases of the individual
employees briefly.
William Peeler was .employed by the respondent .from 1929 until
his discharge on July 15, 1937, first as a "regular" employee for
about 4 years and then as an "extra" employee until his discharge.
He reported for work at the respondent's stockyard at 7: 30 o'clock
in the morning of July 15, but Carr promptly called him from the
cattle dock where he was about to commence work and told him
to go to the office for his check. Peeler then inquired of Carr as to
-what he had done to justify his discharge and Carr replied, "You
know what you have done. I can't reemploy you till 1 have a meet-
ing of the Board of Directors." Peeler appeared at the respondent's
stockyard on July 16 and during the following week but at no time
was he offered reemployment by the respondent, although, as stated
below, the respondent's board of directors met on July 17 and
apparently authorized Carr to reinstate certain other employees dis-
charged on July 15.
The respondent asserts that Peeler was discharged for frequent
-drunkenness while on duty, although Carr testified that lie had
known about Peeler's drinking habits for several years and that
he never put Peeler to work when he had been drinking. As indi-
cated below, however, the last incident involving Peeler's drinking
occurred over 2 weeks prior to his discharge, and lie worked steadily
during the interim period.
In February or March 1937 Peeler, while working for the re-
spondent, called the Frisco Railroad's yardmaster on the telephone
and subjected him to a vigorous castigation. Peeler had been
drinking on this occasion, although it does not appear that he was
intoxicated. At about the same time, or shortly thereafter, Carr
removed Peeler from the job of loading livestock into trucks leav-
ing the respondent's stockyard. This action was taken because of
complaints to Carr by Claud Beck," who was frequently engaged
8 On July 15, soon after his discharge , Sturdevant pointed out to certain of the commis-
sion men in the respondent 's stockyard that he had not joined the Amalgamated. That
night Carr talked with Sturdevant by telephone and asked him if he wished to ieturn to
work at that time, but, due to other plans previously made , Sturdevant decided not to
return until July 19. Carr testified that Sturdevant was the only discharged employee
notified to return to work prior to July 19.
9 Carr testified that Beck 's complaint about Peeler occurred about July 1, 1937, although
he "'wouldn't be positive [ of the date ]." Since Beck testified that this incident occurred
3 or 4 months prior to Peeler 's discharge , we conclude that Carr was mistaken in his recol-
lection of this date.
UNION STOCK YARDS COMPANY 903
in trucking livestock away from the respondent's stockyard, to the
effect that Peeler had been drunk while loading his truck and that he
was afraid that Peeler might become injured while working in that
condition.10 We are convinced that Carr attached comparatively
little significance to these incidents since he continued to give em-
ployment to Peeler. With one exception, Peeler's earnings from
work done for the respondent between January 1 and July 15, 1937,
exceeded those of the respondent's other 23 extra employees em-
ployed during that period. Although there is evidence that Peeler
took an occasional drink while engaged in working for the respond-
ent, the only specific evidence of Peeler's intoxication near the time
of his discharge is the testimony of T. L. Burwell, president of the
respondent, that he saw Peeler intoxicated while working during
the latter part of June 1937 and ordered him to go home. Obviously
this incident did not affect Peeler's employment status since he was
employed 59 hours by the respondent between July 2 and 15, 1937.
On the basis of the foregoing facts and the entire record we, find
that Peeler reported for work at the respondent's stockyard on the
morning of July 15, 1937; that prior thereto the respondent had
learned that Peeler had induced certain of its employees to attend
a meeting of the Amalgamated on the previous evening and had been
their spokesman at said meeting; that upon learning of Peeler's
said union activities, the respondent discharged him therefor, as is
indicated by the statements, referred to above, subsequently made to
Peeler by C. C. Hamilton on July 15, 1937; and that Peeler's drink-
ing habits and occasional drinking while on duty at the respond-
ent's stockyard did not occasion his discharge, as these habits had
been well known to the respondent for several years prior to July
15, 1937, and tolerated by it. We find that William Peeler was dis-
charged because of his union activities.
During the 6 months next preceding his discharge on July 15,
1937, Peeler earned the stun of $145.83 from the respondent. From
the date of his discharge to the time of the hearing, his only earnings
were $26.86 each 2 weeks from W. P. A., commencing January 27,
1938.
Arthur Brown., John Icenhower, J. F. DIcilf llen, Glen Jackson,
John C. Crabtree, Frank Br,-(,shear, A. J. Marks, R. H. Cardivell,11
10 Beck ' s complaint to Carr was motivated by fear that his employer might become liable
for any injury sustained by Peeler while engaged in loading its trucks..
11 Cardwell testified that he was not discharged and the complaint , in so far as It con-
cerned him , was dismissed during the course of the hearing . However , Carr testified that
Cardwell was discharged on July 15, 1937 , and that it 'was his recollection that he gave
Cardwell a written notice terminating his employment together with a check for wages
due him.
904 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
A. L. Ellis, Homer Ellis '12 and Levey Sturdevant 13 were discharged
by the respondent at about 4 p. m. on July 15, 1937,14 by written
notices terminating their employment until further notice. These
notices, accompanied by checks in payment of wages due them, were
handed to said employees by Carr and Burwell in the respondent's
stockyard. Six of these eleven employees were regular- and five
were extra employees.'(' Prior to July 15, 1937, the respondent in.
discharging employees had never given either the regular or extra.
employees written notice that their services would not be needed in
the future. This was obviously the situation in the case of the extra
employees as they customarily reported to the respondent when they(
desired employment and each morning the respondent selected from.
their number those whom it could, use that day. Furthermore, it
was not customary for the respondent to distribute wage checks on
Thursday; it had previously issued them on Friday unless an extra.
employee asked for his check at an earlier time.
The respondent has furnished no reason for the discharge of
Icenhower, Brown, McMillen, Marks, and A. L. Ellis except the
closing of its sheep house on July 15, 1937,17 and in Icenhower's
case, the testimony of Carr that lie was considering making it night-
man of him and laid him off because he wanted to consult the board
of directors on the change. This explanation is especially uliilnpres-
sive in view of Carr's testimony that lie had never previously con-
sulted the directors on personnel matters. We are also unable to.
reconcile the respondent's contention regarding the closing of its
sheep house with Carr's testimony that the respondent's business
was "something like normal" on July 16, 1937, and that the employees
were not "laid-off because business was slack." The tenuousness of
Carr's explanations is further shown by the fact that Carr employed
two new extra employees on Friday, July 16, 1937, whereas the work
in the respondent's stockyard over Friday and Saturday is normally
much slower than during the earlier part of each week. Also, no
material change in employment occurred during the 2 months' period
immediately following the close of the sheep season of either 1936
or 1937. Moreover, Icenhower had been a regular employee for
about a year prior to his discharge and had other duties in the
respondent's stockyard aside from his duties in the sheep house.
12 Homer Ellis did not testify and the complaint in so far as it concerned him was dis-
missed. Respondent's pay-roll records, however, show that Ellis ceased to be employed by
the respondent on July 15, 1937.
11 See footnote 8 above.
14This .date fell on Thursday , the last day of the respondent 's fiscal week.
11 Crabtree , Jackson ; lcenhowei , Brashear , Homer Ellis , and Stuidevant.
11 Brown , McMillen, Marks , A. L. Ellis, and Cardwell.
17 The sheep season usually runs from the latter part of May until about the middle of
July of each year.
UNION STOCK YARDS COMPANY 905
McMillen, Marks, and A. L. Ellis had worked as extra employees on
various occasions between the closing of the sheep house in 1936 and
its opening in 1937, and McMillen worked more hours for the re-
spondent than any of its other 23 extra employees during the period
from January 1 to July 15, 1937. Although Brown was hired ex-
pressly for the 1937 sheep season, the respondent gave him irregular
=employment between July 20 and August 19, 1937.
On July 17, 1937, two representatives of the Amalgamated attended
a meeting of the respondent's board of directors and requested the
reinstatement of the discharged employees. On that occasion certain
directors took the position that the employees had been laid off as a
result. of the closing of the sheep house, although they did not "fully
understand" Carr's action and agreed to consider the request for rein-
statement of these employees. Undoubtedly as a result of a decision
of the directors on this occasion, Icenhower and Marks were given
notice on July 19 to return to work that day 18 and Brown and Mc-
Millen were returned to work on July 20. A. L. Ellis had not been
offered reinstatement.
In view of the foregoing facts, the circumstances of the other dis-
charges on July 15, 1937, and the above-mentioned fact that Lewey
Sturdevant was offered reinstatement promptly after the respondent
learned that he had not joined the Amalgamated, it is clear that the
reasons given by Carr for the discharge of Icenhower, Brown, Marks,
A. L. Ellis, and McMillen are wholly specious. We find that the
said employees were discharged because of their union activities.
The reasons given by the respondent for the discharge of Glen
Jackson, Frank Brashear, and John C. Crabtree, regular employees
from about 1929 until their' discharge on July 15, 1937, are also con-
tained in Carr's testimony. He testified that he had reprimanded
Jackson two or three times for laziness, once during the sheep season
of 1937, but he could-not remember the date of,this alleged incident.
As to Brashear, he sought to justify the discharge on the ground
that Breashear was supposed to work on Sundays from 3 to 11 p. in.,
but that it had been reported to him in the spring of 1937 that
Breashear sometimes quit work at 9 or 10 p. m. The respondent's
pay-roll records show that Breashear worked on alternate Sundays
from January 1 to May 25, 1937, and did not work at all from the
latter date until July 12, 1937. This break in Breashear's employ-
ment was occasioned -by his illness. He returned to work on July 12,
was discharged on July 15, and after his reinstatement on July 19
resumed his schedule of working on alternate Sundays. Further-
is Lewey Sturdevant , who was not named in the complaint , and R . H. Cardwell, as to
whom the complaint was dismissed at the hearing , were also notified to return to work on
July 19.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more, there is no evidence that these complaints, if any, were ever
brought to Brashear's attention. Carr testified as to Crabtree that
in March or April 1937 Crabtree had refused to obey an order given
him by Burwell to do some feeding, but that he did not then make up
his mind to discharge him. Carr also testified that, except for this
incident, Crabtree's work had been satisfactory.
The reasons given for the discharge of Crabtree, Jackson, and
Brashear are obviously rationalizations in the light of all the fore-
going facts and the entire record. We agree with the Trial Exam-
iner's finding that, "The reasons given by Carr for the lay-off of the
`regular' employees on July 15, 1937, less than 24 hours after their
attendance at a union meeting, have a ring of insincerity that is very
apparent from the mere reading of his testimony in connection there-
with, and one who heard such testimony could have no doubt that a
portion of it, at least, was a pure fabrication."
We find that on the basis of the foregoing facts and the entire
record that John C. Crabtree, Frank Brashear, and Glen Jackson
were discharged by the respondent because of their union activities.
John C. Crabtree, Glen Jackson, John Icenhower, and Frank
Brashear were each earning as regular employees, working 5 and 6
days per week on alternate weeks, $18 per week at the time of their
discharge on July 15, 1937. Each was reinstated by the respondent
on July 19 and for the week ending July 22 was paid $12. Each of
said employees sustained a loss of earnings in the sum of $6 as a
result of his discriminatory discharge.
Arthur Brown was first employed by the respondent as an extra
employee on June 4, 1937, and thereafter until his discharge on July
15, 1937, his earnings per week ranged from $2.67 to $9.35. From
the date of his reinstatement on July 20, 1937, he worked irregularly
until the week ending August 19, 1937. Since Brown was a high-
school student, he was not recalled to work after August 19, 1937,
until the opening of the 1938 sheep season. He was employed in the
respondent's sheep house at the time of the hearing herein. In view
of Brown's testimony that the job for which the had been hired was
concluded with the closing of the sheep house on July 15, 1937, and
all the surrounding circumstances, we conclude that Brown suffered
no loss of earnings as a result of his discriminatory discharge.
J. F. McMillen had worked as an extra employee for about 2 years
prior to his discharge and during the sheep season of 1937 worked
almost as steadily as the regular employees. He was recalled to
work on July 20, 1937, and continued to work as an extra for about
2 months when he quit to take a steady job with a commission com-
pany. Since McMillen's earnings for the period of his employment
following his reinstatement were approximately the same as during
UNION STOCK YARDS COMPANY 907
the same period in 1936 and since he testified that he does not know
how much he would have earned from July 16 to 19, inclusive, had
he not been discharged, we find that he suffered no loss of earnings
as a result of his discriminatory discharge.
A. J. Marks had worked as an extra employee since the spring of
1935. After his discharge on July 15, 1937, he was recalled to work
on July 19, 1937. The respondent's pay-roll records show that he
did not work for the respondent from February 18, 1937, until May
24, 1937, and his earnings for the 2-month period following his dis-
charge were in excess of his earnings during the same period of 1936.
In view of these facts and his testimony that he lost no earnings as
a result of his discharge, we find that Marks suffered no loss of
earnings as a result of his discriminatory discharge.
A. L. Ellis had been employed very irregularly by the respondent
for about 6 years prior to his discharge on July 15, 1937. During
the 6-month period next preceding his discharge his earnings from
the respondent aggregated $47.25. Following the close of the sheep
season the previous year, he had earned from the respondent during
the remainder of 1936 an aggregate of $38.95. He occasionally had
other employment during the period he worked for the respondent,
but his earnings from such other sources do not appear in the record.
During the week of July 19, 1937, following his discharge, he ap-
peared each day at the respondent's stockyard but was not offered
work. Shortly thereafter he went to the State of Washington and
earned $120 between August 18 and December 18, 1937. After re-
turning to Springfield, Missouri, in January 1938, he worked, coin-
mencing March 10, 1938, on a farm near Springfield, earning $30 per
.month and board and room, and was there employed when he testi-
fied at the hearing on June 21, 1938. In view of the foregoing facts,
we conclude that Ellis suffered no loss of earnings from July 15, 1937,
to June 21, 1938, as a result of his discriminatory discharge.
A. L. Jolliff was first employed by the respondent on June 21, 1937,
and worked as an extra employee until and including July 14, 1937,,
but has not been offered any employment by the respondent since
the latter date. During said period he worked a part of 11 days,,
earning $18.75.
Jolliff did not attend the meeting of the Amalgamated on July 14,
1937, but went to the Amalgamated's offices on the morning of July
15 and made application for membership. He then went to the
respondent's stockyard and reported for work. He testified as fol-
lows regarding a conversation which he claims to have had that day'
with Carr upon reaching the respondent's stockyard :
I met Mr. Carr on the dock. He said, "Jolliff, where were-
you this morning?" He said, "I wanted you to work." He said,
1908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Be here in the next [sic] morning." The next morning, if I re-
member right, was Friday morning. I said, "Well, I thought
you canned me when you canned the rest of them." He said, "I
didn't know you went over last night." And I said, "I didn't
go last night, but went over this morning" .. .
On their face these remarks allegedly made by Jolliff and Carr
seem incredible. Furthermore, there is a probable discrepancy in
Jolliff's testimony in that he apparently arrived at the stockyard be-
fore the employees were discharged, as the discharges, except for
Peeler's, did not occur until about 4 o'clock in the afternoon. Jolliff
fixed no time for this conversation, but there is an inference in his
testimony that he arrived at the stockyard in the early afternoon of
July 15 and talked with Carr immediately upon his arrival. Carr
also denied having had this conversation and there is no other evi-
dence that the respondent knew of Jolliff's union activities. More-
over, Jolliff was not given either written or oral notice of termina-
tion of his employment, as in the case of all the other employees dis-
charged on July 15, 1.937.
In view of the foregoing facts and circumstances and also the
absence of any evidence that Jolliff was given employment as an
extra employee except for the duration of the 1937 sheep season, we
agree with the recommendation of the Trial Examiner that the com-
plaint, in so far as it concerns A. L. Jolliff, should be dismissed.
We find that the respondent has discriminated in regard to hire and
tenure of employment of William Peeler, Arthur Brown, John Icen-
hower, J. F. McMillen, Glen Jackson, John C. Crabtree, Frank
Brashear, A. J. Marks, and A. L. Ellis, thereby discouraging member-
ship in the Amalgamated, and has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
We affirm the rulings of the Trial Examiner in dismissing the
complaint in so far as it alleged unfair labor practices with regard
to R. H. Cardwell and Homer Ellis.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce, among the sev-
eral States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
UNION STOCK YARDS CO_MI#'ANY
V. THE REIVMEDY
909
Since William Peeler and A. L. Ellis were discharged as the result
of the. respondent's ' unfair labor practices and both desire reinstate-
ment to their former status of employment with the respondent, we
shall order their reinstatement to their former or substantially
equivalent positions with back pay in the amount they have suffered
by reason of their discharge by payment to each of them of a sum
equal to the amount which he normally would have earned as wages,
in the case of Peeler, during the period from the date of his dis-
charge to the date of the offer of reinstatement, and, in the case of
Ellis, during the period from June 21, 1938, until the date of the
offer of reinstatement, less his net earnings- during said period.
John C. Crabtree, Glen Jackson, John Icenhower, and Frank Bra-
shear were discharged on July 15, 1937, as a result of unfair labor
practices, but Were reinstated on July 19, 1937. We shall order the
payment of back pay to each in the sum of $6, that being the amount
which each normally would have earned during the period between
the date of his discharge and the date of his reinstatement.
We have also found that Arthur Brown, John Icenhower, J. F.
McMillen, Glen Jackson, John C. Crabtree, Frank Brashear, and
A. J. Marks were discriminatorily discharged. Since these employees
were reinstated by the respondent and suffered no loss of earnings
as a result of their discharge, it is unnecessary to order any remedy
for them.
The complaint in so far as it alleges unfair labor practices with
regard to A. L. Jolliff, R. H. Cardwell, and Homer Ellis will be dis-
missed.
Upon the basis of the foregoing findings of fact and the entire
record in this proceeding, the Board makes the following.
CON CLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workers of North
America, Local No. 536, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5)
of the Act.
"By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
lea, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 490. Monies received
for work performed upon Federal , State, county , municipal , or other work -relief projects
are not considered as earnings , but as provided below in the Order , shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county, municipal , or other government or governments
which supplied the funds for said work -relief projects.
1.910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The respondent, by discriminating in regard to the hire and
-tenure of employment of William Peeler, A. L. Ellis, Arthur Brown,
John Icenhower, J. F. McMillen, Glen Jackson, John C. Crabtree,
Frank Brashear, and A. J. Marks, thereby discouraging membership
in a labor organization, has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 . (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (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 unfair labor practices within
the meaning of Section 8 (3) of the Act with respect to the discharge
of A. L. Jolliff.
ORDER
Upon the basis of the findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Union Stock Yards Company, and its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workers of North America, Local No. 536, affiliated with
the American Federation of Labor, or any other labor organization
of its employees by discriminatorily discharging or refusing to rein-
state any of its employees or in any other manner discriminating in
regard to their hire or tenure of employment because of their mem-
bership in or activity in behalf of any such labor organization;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to William Peeler and A. L. Ellis immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges
previously enjoyed;
UNION STOCK YARDS COMPANY 911
(b) Make whole William Peeler and A. L. Ellis for any loss of
pay they have suffered by reason of their 'discharge by payment to
each of them a sum equal to the amount which he normally would
have earned as wages, in the case of Peeler, during the period from
the date of his discharge to the date of the offer of reinstatement,
and, in the case of Ellis, during the period from June 21, 1938,
until the date of the offer of reinstatement, less net earnings 20 of each
during said periods; provided, that the respondent shall deduct from
the back pay due each employee a sum equal to that received by such
employee for work performed upon Federal, State, county, municipal,
or other work-relief projects during the period for which back pay
is due him under this Order, and shall pay any such amount
deducted to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup=
plied the funds for said work-relief projects;
(c) Pay to John C. Crabtree, Glen Jackson, John Icenhower, and
Frank Brashear each the sum of $6, that being the amount of wages
which each normally would have earned during the period between
the date of his discharge on July 15, 1937, and the date of his
reinstatement on July 19, 1937;
(d) Immediately post notices in conspicuous places throughout
its stockyard, including among such places all bulletin boards com-
monly used by the respondent for announcements to its employees,
stating that the respondent will cease and desist in the manner
set forth in 1 (a) and (b) and that it will take the affirmative action
set forth in 2 (a), (b), and (c) of this Order, and maintain such
notices for a period of at least sixty (60) consecutive days from the
date of posting;
(e) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what
steps the respondent has .taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices with regard to A. L. Jolliff, R. H. Cardwell,
and Homer Ellis, within the meaning of Section 8 (3) of the Act.
Y0 See footnote 19 above.