Wilson & Co., Inc.,

National Labor Relations Board - Board Decisions

Aug 7, 1940

26 N.L.R.B. 273 (N.L.R.B. 1940)

IN' THE MATTER OF WILSON & CO., INC., and UNITED CANNERY,
AGRICULTURAL, PACKING & ALLIED WORKERS OF AMERICA, LOCAL
No. 216
Case No. C-1117.-Decided August 7, 1940
Jurisdiction : produce packing industry.
Unfair Labor Practices
Discrimination: discharge of employee and refusal to reinstate laid-off employees
for union membership and activities; charges of, as to one employee, dismissed.
Delay in- reinstating previously laid-off employees for union activity held
discrimination.
Remedial Orders : reinstatement and back pay awarded.
Mr. Samuel M. Spencer, for the Board.
Mr. James D. Cooney, and Mr. Marshal Wiedel, for the respondent.
Mr. Harry A. Sellery, Jr., and Mr. Henry J. Fox, of counsel to the
Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Cannery,
Agricultural, Packing & Allied Workers of America, Local 216,
affiliated with the C. I. 0., herein called Local 216, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Eighteenth Region (Minneapolis, Minnesota),
issued its complaint, dated October 15, 1938, and an amended com-
plaint, dated October 25, 1938, against Wilson & Co., Inc.,' Faribault,
Minnesota, 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),•(2), and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint and the amended
complaint, accompanied by notice of hearing, were duly served
upon the respondent and Local 216.
In "respect to the unfair labor practices, the amended, complaint,-
as further amended during the hearing, alleged in substance:. (1)_ that
I Incorrectly designated as Wilson & Company , Inc , in the Intermediate Report.
26 N. L. R. B., No. 31.
273
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since June 1938 the respondent had continued to dominate and inter-
fere with the formation and administration of a labor organization
known as the Employes Club, herein called the Club; (2) that the
respondent discriminatorily discharged or refused to reinstate 15
named persons because of their union membership and activity;
and (3) that the respondent by the foregoing and by other acts
interfered with, restrained and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer, dated October 26, 1938, which, as
amended during the hearing, denied that the respondent's business
affects commerce, within the meaning of the Act, and that the respond-
ent had engaged in the alleged unfair labor practices. The answer
admitted that the respondent laid off or otherwise terminated the
employment of the persons named in the complaint and that none of
them, except Margaret Kolterman, had been employed by the respond-
ent since their respective lay-offs, but denied that the lay-offs were
discriminatory.
Pursuant to notice, a hearing was held at Faribault, Minnesota,
from October 31 to November 2, 1938, before Gustaf B. Erickson, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and participated in the
hearing. Full opportunity bo be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. At the commencement of the hearing the Trial
Examiner granted the Board's motion to dismiss the allegations of
the complaint that the Club was company dominated. During the
hearing he granted the Board's motion, to dismiss the complaint as
to 2 of the 15 persons named in the complaint.2 At the close of the
hearing the respondent made several motions to dismiss the complaint,
upon which the Trial Examiner reserved his rulings. During the
hearing the Trial Examiner made several rulings on other motions
and on objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On January 6, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. He
found that the respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act. He recommended that the respondent cease
and desist from interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, that it
reinstate seven'named persons with back pay,' that it award back pay
S Mrs. Christian Anderson and Mrs Alva Jackson.
E Marie Chavie , Ruby Hagen , Lillian Jeno, Beatrice Kral, Martin Kral , Pearl Summers , and Edwin
weishaar.
WILSON & CO., INC. 275
to four named persons,4 and that the complaint be dismissed as to
two named persons.'
On January 30, 1939, the respondent filed exceptions to;thevInter-
mediate Report and requested permission to file a brief and To argue
orally before the Board. On January 31, 1939, all parties were
granted permission to file briefs, and subsequently were duly notified
that the oral argument was set for June 6, 1939. None of the parties
availed itself of the opportunity to file a brief and none appeared
before the Board on the day specified to present oral argument.
Subsequently the parties were duly notified that the oral argument was
set for April 16, 1940, but none of the parties appeared before the
Board on that date to present oral argument. The Board has con-
sidered the respondent's exceptions to the Intermediate Report and
finds them without merit, except as they are consistent with the find-
ings of fact, conclusions of law, and order herein.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Wilson & Co., Inc., a Delaware corporation, maintains its principal
office and place of business in Chicago, Illinois. It owns and operates
packing plants in California, Georgia, Illinois, Iowa, Kansas, Minne-
sota, and Oklahoma, and produce packing plants in Alabama, Iowa,
Minnesota, Missouri, Oklahoma, Tennessee, and Texas. Through a
subsidiary New Jersey corporation the respondent operates about 100
branch houses in Eastern, New England, Middle Western, south-
western, and southeastern States, distributing and selling the respond-
ent's products to wholesale and retail dealers.
The iespondent operates a produce packing plant at Faribault,
Minnesota, which is the plant involved in this proceeding, where butter,
eggs, chickens, and turkeys are processed and prepared for market.
For the fiscal year ending in April 1938, the plant processed and pre-
pared for the market 1,387,590 pounds of fowl, 824,020 pounds of
turkeys, 1,886,390 dozen eggs, and 4,345,763 pounds of butter. About
99 per cent of the fowl, 100 per cent of the turkeys, and 84 per cent of the
butter were purchased within Minnesota. During this same period
about 80 per cent of the dressed and processed fowl, 84 per cent of the
dressed turkeys, and 95 per cent of the processed butter were sold out-
side Minnesota. Of the eggs, 786,273 dozen shell eggs were processed
and prepared for the market, of which about 82 per cent were sold
outside-Minnesota, and 1,472,468 pounds of frozen eggs were processed
and prepared for the market, of which 62 per cent were sold outside
Minnesota.
+ Ellen Chappuis, Margaret Kolterman , Thelma Pemrick , and Ann St. Martin.
Christian Anderson and Clayton Pettiptece.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNION
United Cannery, Agricultural, Packing & Allied Workers of America,
Local 216, is a labor organization affiliated with the Committee for
Industrial Organization,' herein called the C. I. 0., admitting to mem-
bership the respondent's non-supervisory employees at the plant,
excluding office employees.
III. THE UNFAIR LABOR PRACTICES
A. The background
About late November 1937 a group of the respondent's employees
organized Local 216. As the result of a campaign for membership,
-Local 216 secured a substantial membership among the respondent's
employees. As soon as the organizing efforts of Local 216 began, an-
other group of employees, led by Russell Woods, then in charge of the
poultry picking room, and Anthony O'Brien, organized the Club for
the purpose of heading off the membership campaign of Local 216.
In a few days, the Club had succeeded in enlisting as members many
of the employees.'
The respondent's business is seasonal , except for the work in the
butter room, where butter is processed and prepared for market and
where the volume of work is substantially constant throughout the
year. All other departments of the plant virtually suspend operations
from December until March of each year.
The processing of eggs normally begins early in March and ends late
in July. The work in the egg department is of two types: candling,
for the purpose of grading the eggs; and breaking, for the purpose of
removing the egg meat from the shell. After the egg meat has been
removed, it is churned and prepared for sale in bulk form. The work
in the poultry picking room normally beings early in July, as the egg
season slackens, and continues until about Christmas. Shortly before
Thanksgiving and Christmas there are two peak periods each lasting
about 10 days. The work in the poultry picking room consists of
killing the poultry and removing the feathers. The receiving dock,
the feeding station, and the poultry packing room are auxiliary to the
picking room and the volume of work in those departments fluctuates
in accordance with the volume of work in the picking room. During
the slack season the egg and poultry departments operate only 1 or 2
days a week.
In December 1937 a committee representing Local 216 conferred
with William J. Wilson, the plant manager, and Maury Hopkins,
6 Now the Congress of Industrial Organizations.
7 In the Decision in Matter of Wilson & Cc , Inc . and United Cannery Agricultural Packing and Allied Work-
ers of America , Local 216, etc , 26 N L R B , No 32, issued this day, we found that the Club was company
dominated.
WILSON & CO., INC. 277
another representative of the respondent. The union committee
requested that the respondent observe seniority in the impending
seasonal lay-offs and in recalling the employees to work thereafter.
The respondent took the position that because of the nature of its
business it could not follow seniority strictly, and the parties failed to
reach any agreement concerning the procedure to be followed in the
lay-offs. Thereafter, about December 22, 1937, the customary sea-
sonal reduction in production operations occurred and most of the
employees were laid off. The number of employees decreased from
about 88 before the lay-offs to 27-in the first week in January 1938.
In late January or,early February 1938 Local 216 again conferred
with the respondent regarding the procedure to be followed by the
respondent in recalling the employees to work in the spring of 1938.
Harvey Clark, then the assistant plant manager, stated that the em-
ployees would be recalled as needed. The respondent did not agree,
however, to the demand of Local 216 that it recall the employees in
accordance with their seniority.
B. The delayed reinstatements and the refusals to reinstate
During January and February 1938 the number of production
employees in the respondent's plant, excluding the plant manager,
assistant, plant manager, the general superintendent, and the office
employees, remained at about 27. During the succeeding months, as
the respondent's business reached its seasonal peak, the number of
employees on.the pay roll steadily increased. Thus, the respondent
had on its pay roll as many as 39 employees in March, 45 in April,
48 in May, 50 in June, 66 in July, 76 in August, and 82 in September.
From October 1 to October 20, 1938, the number of employees slightly
decreased to 78. In short, from March to October 20, 1938, the
respondent hired new employees or reinstated old employees to fill
the jobs of 55 production workers.
So far as the record discloses, of the employees hired during the 1938
season, 17, including one member of Local 216, had previously worked
for the respondent,' 3 had worked for the respondent's predecessor,'
8 Jessie Crandall was employed for 2 weeks in 1937 , she was rehired in September 1938 . Hubert Duchene
and Anna Gruber were each employed for about 10 days in 1937, Duchene and Gruber were rehired in
September and July 1938, respectively. Joseph Fliegel and Esther G. St Martin's previous employment
ended in 1934, Fliegel and St Martin were rehired in August and July 1938, respectively. Marie Gruber,
Marvin Newkirk, Andrew Paquette, and Harold Swedberg were employed for a few months during the
1937 season , Gruber, Newkirk , and Paquette were rehired in July and Swedberg in August 1938. Matt
Thomas' previous employment ended in December 1935; he was rehired in August 1938. Mary Gale, Ruby
Goar, Mrs Ambrose Hauck, Alfred Hovland, Alfred Moreau, and Odgen Walstrom were employed in the
1937 season Gale was rehired in March, Hovland in June, and Goar, Hanek, Moreau, and Walstrom in
July 1938 Margaret Kolterman was the member of Local 216 who was hired during the 1938 season, before
October 20 We shall discuss her case below
4 Susie Abelman and Hazel Wheeler's employment by Swift ended about 8 years previously. They were
rehired in July 1938. Blanche Dienst's previous employment by Swift ended about 5 years previously
She was rehired in July 1938.
323429-42-vol. 26-19
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 had previous experience in the business,10 and 6 had no such expe-
rience.11 With respect to the previous experience of the remaining
employees hired during 1938, the record is silent, save for the fact
that 22 were employed in December 1937 and 34 were not so employed.
Thus of the production employees hired during 1938, 6 admittedly
had no experience, 13 had experience varying from as little as 2 weeks
to a few months, and 7 had not been employed in a produce plant for
periods varying from 3 to 8 years. As for the remaining employees,
their experience, if any, is not disclosed by the record, except that 22
were employed in December 1937, while 34 others, unlike the em-
ployees named in the complaint, had not worked during the last
month of the 1937 season when the plant operations were at the
yearly peak and when the respondent was most in need of employees,
except Kolterman whose case we shall discuss below. Had the 34
worked for the respondent earlier in the 1937 season, they were laid
off prior to the employees named in the complaint and presumably
had less seniority or were less desirable as employees to the respondent
than those named in the complaint.
With a few exceptions, including Kolterman, Pemrick, and Ann St.
Martin, whose cases will be discussed below, the respondent failed in
1938 to reinstate any members of Local 216, including the 15 employees
named in the complaint. In the light of the respondent's previous
practice of recalling employees each season and the availability of the
employees named in the complaint, it was incumbent upon the re-
spondent, we believe, to offer some explanation for its failure to recall
or its refusal to reinstate these experienced employees.12 The re-
spondent, however, offered no such explanation, except as to certain
individual employees noted below, with respect to such failure or
refusal prior to July 1938. About July 1, 1938, Woods was appointed
general superintendent of the plant with responsibility for the entire
production of the plant and full authority to hire and discharge.
We have observed that Woods, as head of the poultry picking depart-
ment, was instrumental in the formation of the Club as a bulwark
against the organization of the employees by Local 216. Woods
testified that shortly after his promotion in July, various members of
the Club threatened to strike should the respondent reinstate any
11 Madeline Walbrock's previous employment in a poultry processing plant ended at least 4 years prior
to her hiring by the respondent in September 1938.
11 Mrs John Hunt, hired in July 1938 , Elsie Ahlman , Donald Hoban , and Mary Frances Wheeler, hired
in August 1938 ; and Mrs. Vernes Kruze and Edward Schultz, hired in October 1938.
12 Cf. Montgomery Ward & Co v. National Labor Relations Board, 107 F (2d) 555 (C. C. A. 7), mod'g
and enf'g Matter of Montgomery Ward & Company and Reuben L:tzenberger et at.,-9 N . L. R. B. 538, where;
in an analogous situation , the Court stated
This mfeience of discriminatory discharge leaves it up to the employer to give an adequate "explana-
tion of the discharge ," even though the burden of proof remains on the Board, since it is obvious that
the reasons of the discharge "lay exclusively within its knowledge ." National Labor Relations Board
v. Remington Rand, Inc , 94 F. (2d) 802, 871, 872.
WILSON & CO., INC. 279
members of Local 216. Denying any antipathy to Local 216, Woods
testified:
After all these complaints began coming to me, I made up my
mind that I needed these people [members of Local 216] and
just as soon as the feeling down here [in the plant] quieted down
and I felt it was safe to put these folks back to work, without
having a strike on my hands, I was going to do so.
Through Woods, the respondent thus admitted that it discriminated
with respect to the hire and tenure of employment of members of
Local 216. We need not decide whether the respondent was seriously
concerned about the strike threats of several Club members.13 Even
though induced by the attitude of the Club, the threats of economic
reprisals by a rival labor organization do not excuse such unlawful
discrimination." In the light of the respondent's admission of its
intention to discriminate against certain employees because of their
union membership, we turn to a consideration of the respondent's
refusal to reinstate the employees named in the complaint. '
Margaret Kolterman. Kolterman was hired by the respondent in
the summer of 1936 and worked as a ruffer in the picking room until
the seasonal lay-offs in December 1936. She returned to work in the
picking room in July 1937 and was laid off on December 22, 1937.
Kolterman joined Local 216 on December 1, 1937, was elected the
secretary of Local 216, and wore her union button at work.
Kolterman applied for reinstatement in June 1938 and was told
that she would be recalled when production increased. She was re-
instated in September or early October 1938 and shortly thereafter
joined the Club upon the urging of many employees.lb At the time
of her reinstatement Woods explained to her, "We need some of our
experienced help down here . . ."
In Woods' opinion Kolterman was a "very good worker." At the
hearing he explained that he nad determined to reinstate Kolterman
as soon as it was possible to do so without causing the other employees
to strike. He selected Kolterman as the first person to be reinstated,
as he thought that she was "on the quiet side" and not "aggressive"
and that there was "less hard feeling against her than the rest" of
the members of Local 216. When Kolterman first returned to work
13 It should be noted, in this respect , that in the Decision in Matter of Wilson & Co , Inc . and United
Cannery Agricultural Packing and Allied Workers of Amer ica, Local 216, etc , Case No . C-863, issued this
day, we have found that the respondent dominated the formation and administration of the Club. It is
doubtful, under the circumstances , that the respondent would have feared reprisals from the organization
that it had created and controlled.
ii National Labor Relations Board v. Star Publishing Co., 97 F. (2d) 465 (C. C A. 9), enf'g Matter of Star
Publishing Company and Seattle Newspaper Guild Local No . 82, 4 N. L. R. B 498, Matter of Trawler Marts
Stella, Inc . and American Communications Association , 12 N. L. R. B. 415.
13 In response to her inquiry at the time of her reinstatement , Woods told Kolterman that she would
not be required to join the Club .' Woods made the same response to a similar inquiry by Ann St Martin,
whose reinstatement is discussed below.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 1938 several employees refused to speak to her. ' Woods estimated
that the "feeling" against Kolterman disappeared about' a week
after her reinstatement.
As we have noted above, by September 1938 the respondent had
increased its force by some 55 employees. The respondent did not
show that any of the employees thus hired had more experience or
were more efficient than Kolterman. Moreover, by August 1938
the respondent had hired three inexperienced chicken pickers. It is
plain that the respondent delayed her reinstatement because-6f her
union membership.
We find that the respondent, by delaying the 'reinstatement of
Kolterman, discriminated in regard to her hire and tenure of employ-
ment, thereby discouraging membership in Local 216 and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Kolterman has had no earnings since her lay-off on December
'22, 1937.
Thelma Pemrick. Pemrick was hired by the respondent on July 7,
1937, and worked in the poultry picking department until she was
laid off on December 22, 1937. She joined Local 216 in late Novem-
ber or early December 1937 and wore her union button at work.
Pemrick applied for reinstatement about July 11, 1938, and was
told that she would probably be reinstated in about 2 weeks. On
,October 25, 1938, Pemrick was notified by the respondent to return
to work, and on the following day she was reinstated.
Woods explained that he had not previously reinstated Pemrick
because in his opinion she was a slow worker, and "up until that time
I could get better pinners-could get betters pickers than she was."
On October 31, 1938, several days after her reinstatement, Pemrick
observed Edwin Magadanz, then the head of the poultry picking room,
showing a new employee how to pick chickens. Presumably Pemrick's
work during the 1937 season had been satisfactory to the respondent.
In view of the respondent's admitted reluctance to reinstate members
of Local 216, and its employment of at least six employees without
any experience in a produce plant, we do not attach any weight to the
respondent's contention that it did not reinstate Pemrick until October
1938 because it could secure more satisfactory employees.
We find that the respondent, by delaying the reinstatement of
Pemrick, discriminated in regard to her tenure of employment,
thereby discouraging membership in Local 216 and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Pemrick had no earnings during her lay-off.
Ann St. Martin (Mrs. Albert). St. Martin was hired by the
respondent in July 1936 and worked as a chicken picker until Decem-
WILSON & CO., INC. 281
her 1937. She once overheard Woods state to Erickson, the former
general superintendent, that.if Woods had two more employees as
able as St. Martin, Woods could dispense witli'half his crew. Woods
did not deny making this statement. We find that the respondent
recognized St. Martin as one of its more efficient employees. On
December 27, 1937, Woods laid , her off, stating that he would notify
her when to report again for work. St. Martin had joined Local
216 about December 1, 1937, and wore her union button at work.
St. Martin twice telephoned the respondent's office in January
1938 to ask when she should report for work. The person answering
the telephone told her that there was no work available and to inquire
again at a later date. On October 25, 1938, St. Martin was summoned
to the plant; where Woods asked, her if she wished to work for respond-
ent. Woods advised her that although she would be "pestered" to
join the Club, she need not do so. St. Martin asked why she had
not previously been recalled. Woods replied that "it was not his
fault" that as good a worker as she had not been previously recalled.16
St. Martin returned to work on October 27, 1938.
Woods testified at the hearing that he wished "to gradually work
these people [the members of Local 216] back in, there," that the
respondent needed them, and that as soon as the "feeling" created by
the recall of Kolterman had "quieted down" he had recalled St.
Martin. Many less able employees, including several new and in-
experienced chicken pickers, were hired before St. Martin was rein-
stated. It is plain that respondent failed to reinstate her prior to
October 27, 1938, because of her membership in Local 216.
We find that the respondent, by delaying the reinstatement of
St. Martin, discriminated in regard to her tenure of employment,
thereby discouraging membership in Local 216 and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7. of the Act.
St. Martin had no earnings during her lay-off.
Ernest Pearl Summers. Summers was hired by the respondent
on April 5, 1937. He worked in the egg breaking room until July
1937, carrying eggs to and from the breaking table, carrying egg
whites to the separator, mixing egg yolks and other materials in the
churn, operating the churn, carrying eggs to the freezers, and per-
forming the other types of work in the egg breaking room, except the
operation of the testing machine. When the egg breaking room
closed in July 1937, Summers was transferred to the packing room
to make boxes. About December 17, 1937, Clarence, St. Martin,
the head of the poultry packing room, told him that he was laid off
until business increased.
1E It should be noted that St Martin's home is plainly visible from the plant and that woods caused her
to be summoned to the plant within 10 minutes after Lee Loevinger, an attorney for the Board, bad left
her home after an interview respecting the charges herein
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summers was one of the first employees to join Local 216 and
shortly thereafter was elected its president. He wore his union button
at work and was one of the representatives of Local 216 at the con-
ferences with the respondent in December 1937.
Summers applied to the respondent for reinstatement in March
and again in April 1938. In March Wilson told Summers that he
would be recalled as soon as business warranted. In April Summers
told Wilson that he understood that the egg breaking room had just
begun to operate and that he was the first or second employee in
seniority in the breaking room. Wilson replied that the breaking
room had not yet begun to operate, and that the respondent would
recall Sommers as soon as business increased. Although the
respondent operated the egg breaking room and the packing room in
1938, it did not recall Summers to work in either room.
As noted above, by March 1938 the respondent had hired about 11
additional employees and by April 1938 about 18 additional employees.
By July 1938, when the poultry packing department began to operate,
the respondent had hired about 39 additional employees. Woods
stated that Summers was a "very good worker." The respondent
did not show that any of the employees thus hired or thereafter hired
had more experience or were more efficient than Summers. It is
plain that the respondent refused to reinstate him because of his union
membership and activity.
We find that the respondent, by refusing to reinstate Summers,
discriminated in regard to his tenure of employment, thereby dis-
couraging membership in Local 216 and interfering with, restraining,
and coercing its employees in' the exercise of the rights guaranteed
in Section 7 of the Act.
Summers has received a wage of about $12 per week from the
W. P. A. since May 1938. His average weekly wage while employed
by the respondent was about $19 per week.
Marie Chavie. Chavie was hired by the respondent about July 4,
1936, and worked in the picking room. Except for a short lay-off in
July 1936 and the seasonal lay-offs during the slack seasons she was
continuously employed until she was laid off on December 22, 1937.
Chavie joined Local 216 about December 1, 1937, and wore her union
button at work. She was a member of the union committee which
conferred with the respondent in December 1937.
At the time of her lay-off Chavie was instructed to "keep in touch"
with the respondent. Accordingly, about December 27, 1937, she
telephoned the respondent's office to inquire when she should report
for work and was told that she was not on the list of those who were
to be called back to work.17 In January or February 1938 she applied
11 For the slack season starting at Christmas 1937, the respondent changed its previous system of recalling
a large number of the employees for only a few hours of work each to a system under which a small number
of employees received substantially steady employment We do not and that the respondent effected this
change for the purpose of discriminating against the members of Local 216.
WILSON & CO., INC. 283
to Erickson for reinstatement. He told her that her services were not
then required, but that as soon as work was available the respondent
would recall her. About August 12, 1938, she again applied for work,
stating to Woods that the respondent had hired many new employees
and that she wanted her job back. Woods told her that the respondent
did not then need any additional employees, but that the respondent
would recal] her when it had need of her services. Chavie was never
recalled to work.
At the hearing Woods stated that Chavie was a "very good worker,"
and that he would recall her "just as soon as that feeling quiets down."
As noted above, by August 1938 the respondent had hired approxi-
mately 47 additional employees. The respondent did not show that
any of the employees thus hired or thereafter hired had more experience
or were more efficient than Chavie. Moreover, by August 1938, the
respondent had hired three inexperienced chicken pickers. It is plain
that the respondent refused to reinstate Chavie because of her union
membership and activities.
We find that the respondent, by refusing to reinstate Chavie,
discriminated in regard to her tenure of employment, thereby discour-
aging membership in Local 216 and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
Chavie has had no earnings since her lay-off.
Edwin C. Weishaar.'$ Weishaar was first hired by the respondent
in the summer of 1935, working as a car unloader and poultry packer.
He was laid off at the end of the 1935 season. During the 1936 season
he worked as a poultry packer from June'until November when he quit
his job. He applied for work in June 1937 and went to work as a poul-
try packer. Clarence St. Martin laid him off about December '17,
1937, stating that there was no more work available. Weishaar
joined Local 216 about December 10, 1937, and wore his union button
at work.
Late'in January or early in February 1938 Weishaar asked Wilson
when he would be recalled to work. Wilson told him that the respond-
ent would first recall the senior employees, that there might not be
work until March or July 1938, and "From now on . . . I will take
care of it and I will see that you go back in order." Weishaar was
never recalled.
The respondent claimed that Weishaar was a slow worker, although
good, and,that in his place it employed a better worker. Woods
relied on a report from an unidentified person in concluding that
'Weishaar was a slow worker. We are satisfied that his alleged slow-
18 Referred to in the Intermediate Report as "Wisehart."
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness was not the reason for the respondent's refusal to reinstate him.
As noted above ,,by July 1938 the respondent had hired about 39 addi-
tional employees. Weishaar had been a satisfactory employee for the
3 previous seasons, during which he was never warned that he was a
slow worker . We conclude that the respondent refused to reinstate
him because of his union membership.
We find that the respondent , by refusing to reinstate Weishaar,
discriminated in regard to his tenure of employment , thereby dis-
couraging membership in Local 216 and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
After he was laid off, Weishaar worked about 3 weeks in a canning
factory in August 1938, earning $40 to $45. His average weekly
wage while employed by the respondent was about $19.
Ruby Hagen . Hagen was hired on November 16, 1936, as a turkey
picker. She also worked as a chicken picker before her lay -off early
in December 1937. She was subsequently recalled for one day's work
on December 22, 1937. She joined Local 216 during the first week of
December 1937.
When Hagen was laid off on December 22, 1937, a group of employ-
ees, including Hagen, asked Erickson when they should again report
for work. He told them that the respondent would notify them when
they were needed. When Hagen telephoned the respondent 's. office
on December 27, 1937, one Gan, the office manager, asked her name.
He then told her, "Your name , isn't on the list," but added that if she
called later the respondent might have work for her . 19 On July 11,
1938, she applied to the respondent for reinstatement . Woods told
her that several persons had been applying for work, that there was
not much work , and that as soon as work increased , he would recall
her. Hagen was never recalled.
Woods testified that Hagen was a "very good worker." On at
least two occasions he commended her as an employee . As noted
above, by July 1938 the respondent hired about 39 additional employ-
ees, and thereafter it hired admittedly inexperienced chicken pickers.
Hagen had experience in this work and the respondent did not show
that any of the employees hired by July 1938 or thereafter had more
experience or were more efficient than Hagen . It is plain that the re-
spondent refused to reinstate her because of her union membership.
We find that the respondent , by refusing to-reinstate Hagen, dis-
criminated in regard to her tenure of employment , thereby discourag-
ing membership in Local 216 and interfering with, restraining, and
coercing its employees in the exercise .. of the rights guaranteed in
Section 7 of the Act.
10 See footnote 17, supra
WILSON & CO., INC. 285
After she was laid off, Hagen worked about 63 weeks in a canning
factory, earning about $80. Her average weekly wage while employed
by the respondent was about $14.
Lillian Jeno. Jeno was hired by the respondent on July 6, 1937,
and worked as a chicken picker until she was laid off on December
22, 1937. She joined Local 216 about the first week in December 1937
and wore her union button at work.
When she applied in person to the respondent for work about
December 27, 1937, Jeno was asked her name. After she had given it,
she was told that her name was not on the list and that only a few
persons would be employed during the winter months.20 About
February 16, 1938, she asked Woods far reinstatement as an egg
breaker, since egg breaking was the first work of the season.21 Woods
told her that she "had as good a chance as any" and that he would
notify her when work started in the egg breaking room. She was
never recalled to work in the egg breaking room or in the picking
room.
Woods claimed that Jeno was a poor pinner, that he had unsuccess-
fully attempted to train her as a ruffer, and that in-her place he had
hired another person, whom he did not identify at the hearing. In
view of this fact and the fact that Woods told Jeno that he would
notify her when work started, we are of the opinion that Jeno's
allegedly unsatisfactory work was not the real reason for the respond-
ent's refusal to reinstate her. As noted above, by March 1938, when
the egg breaking season began, the respondent had hired about 11
employees; by July 1938, when the poultry picking season began, the
respondent had hired 39 additional employees. We agree with the
Trial Examiner and find that during the 1937 season the respondent
had never warned Jeno that she was unsatisfactory as a chicken
pinner or ruffer. It is plain that the respondent refused to reinstate
her because of her union membership.
We find that the respondent, by refusing to reinstate Jeno, dis-
criminated in regard to her tenure of employment, thereby discourag-
ing membership in Local 216 and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Jeno received a wage of about $12 per week from the W. P. A.
When employed by the respondent, she earned $14.40 for a full
week's work.
Martin Kral. Kral was hired by the' respondent on May 4, 1937,
working in the egg breaking room. He was subsequently transferred
to work as a truck driver and at the time of his lay-off in December
1937, he was working in the packing room as a scaler, weighing
10 See footnote 17, supra.
20 From the record it appears that Jeno may also have applied to the respondent for work in July 1938.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poultry before it was placed in boxes. Kral joined Local 216 in
December 1937 and wore his union button at work. He was a member
of the union committee which conferred with the respondent in
December 1937.
About July 5, 1938, Kral and his wife, Beatrice, applied to the
respondent for reinstatement. Woods told them that the respondent
"would keep them in mind" as applicants for work. Kral was never
recalled. At the hearing Woods claimed that Clarence St. Martin
had reported that Kral was an unreliable and unsatisfactory worker,
that for 2 days he had not reported for work when needed, and that
on the third day he -reported for work with a "hangover." Kral
denied Woods' accusation that he had taken sick leave without notice
or that he had ever reported for work after he had been drinking.
The respondent did not call St. Martin as a witness or introduce any
evidence to show that Kral had been absent from work for more than
one day. We accept Kral's testimony as correct. As noted above, by
July 1938 the respondent had hired about 39 additional employees.
During the 1937 season the respondent had never warned Kral that he
was an unsatisfactory employee. It is plain that the respondent
refused to reinstate him because of his union membership and activity.
We find that the respondent, by refusing to reinstate Martin Kral,
discriminated in regard to his tenure of employment, thereby
discouraging membership in Local 216 and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Kral received a wage of about $12 per week from the W. P. A. in
the summer of 1938.. He is now employed in a local woolen mill at
about $14,or $15 per week and his hours of work are from noon until
8 p. in. While in the respondent's employ his average weekly wage
was $18 to $20 and his hours of work were from 7.a. in. until 4 p. in.
Beau ice Kral. Kral was hired by the respondent about August
1937 and worked in the picking room until she was laid off about
December 22, 1937. She joined Local 216 in December 1937 and
wore her union button at work. -
Late in December 1937 Kral telephoned the respondent's- office
to ask when she should report for work and was told that her name was
not on the list of persons who were to work.22 As above stated, about
July 5, 1938, Kral and her husband applied for reinstatement. Woods
told them that the respondent did not need additional employees at
that time, but that he would "keep them in mind" as applicants for
work. Kral was never recalled. I . -
Woods claimed that Kral was a poor worker -and that he, had
secured better workers. Kral's work had never been criticized.and
Woods did not specify at the hearing the respects in which her work
22 See footnote 17, supra.
'WILSON &,-CO., 'INC. 287
was not satisfactory to the respondent.' As noted abova, by July 1938
the respondent had hired about 39 additional employees. 'In-view
.of these facts'arid'the 'respondent's admitted intention to refuse
-reinstatement to'meriibers of Local 216, we are of the opinion that her
allegedly unsatisfactory work was not the real reason for the resp'on-
;dent's refusal.to 'reinstate her. We find that the respondent refused
-to reinstate Kral because of her union membership.
We find that the respondent, by refusing to reinstate Beatrice
Kral; discriminated in regard to her tenure of employment, thereby
discouraging membership in Local 216 ^and-interfermg with, restrain-
ning, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Kral has had no earnings since her lay-off in December 1937.
Ellen Chappuis. -Chappuis21 was hired by the respondent about
October 20, 1937, as,a'chicken picker. She was laid off on December
•22,-1937. Chappuis, joined Local 216 in December 1937 and wore
her union button at work.
When she applied to the respondent for work by telephone on
December 26, 1937, she was told that her name•was not on the list.2-•
When she again applied to Woods for reinstatement about July •5,
1938, the latter told her that he then had "a full crew," but that the
respondent would need more employees later and he would recall her.
She was not recalled.
Following arrangements made one or two months previously,
Chappuis moved ;to a farm on October 8, 1938. About October 28,
1938, she received by.mail a note from the respondent and signed by
Woods as follows: - "Please report for work as soon as possible if
you care to work." Woods explained that he,had not rehired Chap-
puis because he,did not consider her a good worker and also suggested
that the respondent had not reinstated her because of her slight weight.
Her work was, never criticized. The respondent's subsequent efforts
to reinstate her indicate that she was a satisfactory employee and
showed that it attached no importance to her weight. As noted above,
by July 1938 the respondent had hired about 39 additional employees.
Thereafter it also hired six inexperienced chicken pickers. Under
the 'circumstances and in view of all the evidence, we do not credit
the respondent's explanation for its refusal to offer her reinstatement
,prior to 'October 1938.- We think that the respondent refused to
reinstate her because of her union membership.
We find that the respondent, by delaying to offer. reinstatement to
Chappuis, discriminated in regard to her tenure of employment; thereby
discouraging membership in Local 216 and interfering with; restraining,
23 Referred to in the Intermediate Report as " Chappins:" - '
2 1 See footnote 17, supra . - , - ;.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coercing its- employees in the exercise of the rights guaranteed in
-Section 7 of the Act.
Chappuis has had no earnings since her lay-off in December 1938.
Until she moved to the farm she desired to be reinstated, but she does
not now desire reinstatement.
Christian Anderson. Anderson was hired by the respondent on
July 6, 1936, as a feeder in the feeding station of the poultry depart-
ment. He was laid off at the end of the 1936 season and reinstated in
August 1937. He was again laid off on November 19, 1937. Anderson
joined Local 216 before his lay-off in 1937.
Anderson applied for reinstatement in March 1938, about three
months before the respondent customarily began to operate the
poultry department. Woods told him that his services were not then
required but that as soon as the poultry department resumed operation,
the respondent would recall him. Normally the respondent employs
about 9 to 12 feeders in the feeding station. Anderson was fourth in
seniority among the feeders.
In his Intermediate Report the Trial Examiner found that "the
evidence indicates that Anderson's employment was casual and more
to his convenience than to the need of the respondent," and that he
"made no serious application for employment after his lay-off." We
do not agree with the Trial Examiner's findings respecting Anderson.
As indicated above, Anderson had been employed by the respondent
during the two seasons prior to 1938 in'a capacity normally required
by the respondent in the operation of its business; moreover he had
more seniority than many of the other feeders. There is no evidence
in the record that either Anderson or the respondent considered his
employment as casual, and, as we have observed, in accordance with
the respondent's practice, he had been recalled to work by the respond-
ent - in 1937. In view of the respondent's custom of notifying em-
ployees when to return to work, Anderson's application for reinstate-
ment 3 months prior to the commencement of the 1938 season attests
to the sincerity of his desire to return to work. We are satisfied from
all the evidence, and particularly in view of.the respondent's expressed
intention of refusing to reinstate members of Local 216, that the re-
spondent refused to reinstate Anderson because of his membership in
that labor organization.
We find that the respondent, by refusing to reinstate Anderson,
discriminated in regard to his tenure of- employment, thereby discour-
aging membership in Local 216 and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. -
Anderson has been employed by the W. P. A. at a weekly wage of
$17.32 since May 10, 1938. While in the respondent's employ, his
average weekly wage was about $19.
WILSON & CO., INC. 289
C. The discharges
Clayton Pettipiece. Pettipiece was hired by the respondent on
March 1, 1937, to make egg cases. He was laid off in the second week
in December 1937 and thereafter joined Local 216. About March 1,
1938, Pettipiece worked for 3 days for the respondent making egg
cases. On the third day he wore his union button at work. That
night Woods laid him off, stating that the respondent had sufficient
egg cases on hand. Pettipiece claimed that his employment in early
March 1938 was his last. The respondent showed, however, that it
subsequently employed him during the week ending March 17, 1938.
He was then discharged as an unsatisfactory employee.
In view of his employment during the 1938 season and subsequent
to his affiliation with Local 216, we agree with the Trial Examiner and
find that the record does not support the allegations of the complaint
that Clayton Pettipiece was discriminatorily discharged in March 1938.
Mrs. Wilfred Caron.25 Caron was hired by the respondent as a
turkey picker during the 1936 and 1937 seasons. She was laid off
about Christmas 1937. In January 1938 Caron designated Local
216 as her bargaining representative and attended one of its
meetings.
For a week in July 1938 Caron applied daily for reinstatement.
The respondent reinstated her later in July 1938, immediately of ter she
notified Woods that she had abandoned her affiliation with Local 216.
Thereafter she worked for a period of 2 weeks as a chicken pinner.
On the last day of that period, in the presence of several employees,
she remarked to Mrs. Charles Headline, a fellow employee, "I wish
the C. I. O. would get down here [at the plant] so I would not have to
work so hard." That same evening Floyd Dunaway, her supervisor,
notified Caron that she was laid off, 'but that she would be recalled
to work in a few days. The respondent did not thereafter recall her
for employment.
The respondent contended that Caron's work was unsatisfactory.
Woods testified that after Caron had been employed for 4 or 5 days in
July 1938 reports came to him that her work was not satisfactory.
At the hearing he did not identify the person who reported to him
Caron 's allegedly unsatisfactory work. Woods further testified that
he watched her at work during one day, and notified her at the end
of the day that she would be discharged if her work did not improve.
According to Woods, she was discharged as unsatisfactory a few days
later.
Caron denied that her work had ever been criticized. She explained
that on two occasions during her employment in 1938, Dunaway
25 Although Caron was not named in the complaint, the issue of her discharge was litigated at the hearing.
In his Intermediate Report the Trial Examiner, while not recommending Caron's reinstatement, found that
her discharge, among other matters, demonstrated that "the respondent deliberately refused to employ
C. I. 0. employees because of their membership in the Union" (Local 216). See footnote 29, 2nfra.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
installed a new system of work in the picking room. Each picker
normally removes all the feathers from the carcass of a fowl. On
the two occasions in question Dunaway abandoned this procedure
for one whereby two pickers were assigned to remove the feathers
from a particular portion of the carcass, except for the portion assigned
to Caron. She alone was assigned to remove the feathers from a larger
portion of the carcass and one containing more feathers than the other
portions of the carcass which were assigiied,,,to a pair of pickers.
At the hearing Caron explained that she was unable to pull as many
feathers as the pickers who were assigned to work in pairs. Accord-
ing to Caron, Dunaway's first experiment in having the feathers
removed in this manner was unsatisfactory and he abandoned it
after a trial of one day. On the last day of Caron's employment,
about a week after the experiment referred 'to above,, Dunaway
again utilized the new system. The respondent did not call Dunaway
as a witness or otherwise seek to controvert Caron's testimony with
respect to the inovation described above.
We find that Caron's testimony is substantially correct; that her
work was not criticized, and that when she was laid off, she was.
notified that she would be recalled shortly. Although Woods denied
that Caron's remark about the C. I. O. had been reported to him,
we do not credit his denial or his testimony that Caron was an unsat-
isfactory employee. In view of the respondent's antipathy to• mem-
bers of Local 216, and the fact that her employment was terminated
on the same day that she expressed her approval of the C. I. 0., we
believe that the respondent by purporting to lay her off sought thus
to rid itself of a proponent of Local 216.
We find that the respondent's discharge of Caron in July 1938
constituted an interference, restraint, • and coercion of its employees,
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B and C above, occurring in connection with the operations of
the respondent 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 ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that • the respondent has engaged in certain unfair
labor practices, we will order that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies
of the Act.
WILSON & • CO., INC. 291
We have found that the respondent, in violation of the Act, dis-
criminatorily delayed the reinstatement of Kolterman, Pemrick, and
St. Martin, refused to consider for reinstatement Anderson, Chavie,
Hagen, Jeno, Beatrice Kral, Martin Kral, Summers, and Weishaar,
discharged Caron, and delayed the offer of reinstatement to Chappuis.
Since Chappuis does not desire reinstatement, we shall not order the
respondent to offer her reinstatement. Since Kolterman, Pemrick,
and Ann St. Martin have already been reinstated, our reinstatement
order as to them shall be limited to the restoration of their seniority
and'other rights and privileges. With respect to Anderson, Caron,
Chavie, Hagen, Jeno, Beatrice Kral, Martin Kral, Summers, and
Weishaar, we shall order the respondent to offer them reinstatement,
without loss of their seniority and other rights and privileges, in the
manner more fully described below.
Summers and Martin Kral had been employed in the egg depart-
ment: Although seasonal operations began in that department in
March, 1938, male employees were not hired or reinstated to meet the
increased production therein during the 1938 season. But Summers
and Martin Kral had also worked in the poultry packing department
during the 1937 season, as had Weishaar. Anderson had worked in
the poultry feeding station, a department auxiliary to the poultry
department, during the 1937 season. Seasonal operations in • the
poultry department and departments auxiliary to it began in July
1938. During the week ending July 8, 1938, new male employees
were hired and old male employees were reinstated in the poultry
department. Had the respondent not engaged in the unfair labor
practices, it is clear that Anderson, Martin Kral, Summers, and
Weishaar would have been reinstated before any new male employees
were hired, and would have been considered for reinstatement along
with the respondent's old male employees who were reinstated when
the 1938 poultry season began.26 We shall therefore order the re-
spondent to offer reinstatement to Anderson, Martin Kral, Summers,
and Weishaar,' dismissing if necessary to provide them with employ-
ment all new male employees hired in the poultry department during
the week ending July 8, 1938, the week in which the respondent en-
gaged in the unfair labor practices by refusing to consider the four
named employees for reinstatement, and any new male employees
hired thereafter.
Chavie, Hagen, Jeno, Beatrice Kral, and Caron 27 had been- em-
ployed in 'the poultry picking room. Seasonal operations in the
poultry department began in July 1938 and by the week ending July 8,
" By "new employees" we mean persons who were hired by the respondent for the first time in July 1938,
or persons who had not been in the respondent's employ during the last month of the 1937 season when the
plant operations were at the yearly peak and when the respondent was most in need of employees.
27 Although Caron was discharged in July 1938 , in view of the nature of our reinstatement order as indi-
cated below , she may be considered along with the other female employees who were refused reinstatement.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1938, new female employees had been hired or old female employees
reinstated to positions in the poultry picking room: Had the re-
spondent not engaged in the unfair labor practices, Chavie, Hagen,
Jeno, and Beatrice Kral would have been reinstated before any new
female employees were hired and would have been considered for
reinstatement along with the respondent's old female employees who
were reinstated during the week ending July 8, 1938, and thereafter.
With respect to Caron, she would have continued to work in July
1938 and thereafter, if the respondent had not discriminated against
her. We shall therefore order the respondent to offer reinstatement
to Chavie, Hagen, Jeno, Beatrice Kral, and Caron'21 dismissing, if
necessary to provide them with employment, all new female em-
ployees hired in the poultry picking room during the week ending
July 8, 1938, and any new employees hired thereafter.
In cases where we have found that there was discrimination against
a certain employee, we have ordinarily ordered the offending employer
to make the employee whole with back pay, this being an amount
equal to the amount he would have earned with the employer from
the date of the discrimination to the date of reinstatement, pursuant
to our order, less his net earnings 29 during the same period. The
objective is to restore the situation, as nearly as possible, to that
which would have obtained but for the illegal discrimination.
We are unable to determine the precise dates upon which Anderson,
Chappuis, Chavie, Hagen, Jeno, Beatrice Kral, Martin Kral, Kolter-
man, Pemrick, Ann St. Martin, Summers, and Weishaar would have
been reinstated had the respondent considered them for reinstatement
on a non-discriminatory basis. Of Chappuis, Chavie, Hagen, Jeno,
Beatrice Kral, Kolterman, Pemrick, and Ann St. Martin, any two of
them might have been reinstated in place of the two new female
employees hired during the week ending July 8, 1938, in the poultry
picking department, and similarly, of Anderson, Martin Kral, Sum-
mers, and Weishaar, any two of them might have been reinstated in
place of the two new male employees hired during the week ending
July 8, 1938. Since it rests upon the respondent "to disentangle the
consequences from which it was chargeable from those from which it
was immune," 30 and since any of the employees might have been rein-
28 See footnote 27, supra
28 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 elsewhere than for the respondent, which
would not have been incurred but for the unlawful refusal to reinstate them and the consequent necessity
,of their seeking employment eslewhere . See Matter of Crossett Lumber Company and United Brotherhood
of Carpenters and Joiners of America , Lumber and Sawmill tiVorkers Union, Local 2590, 8 N. L R . B. 440.
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.
ii National Labor Relations Board v Remington Rand, Inc , et at , 94 F (2d) 862, cert denied 304 U S.
576, enf'g as mod Matter of Remington Rand, Inc and Remington Rand Joint Protective Board, etc , 2 N. L.
R B. 626.
a
WILSON & CO., INC. 293
stated during the week ending July 8, 1938, we shall order, the respond-
ent to make the above-named employees whole for any losses of pay
they may have suffered by reason of the respondent's discrimination
against them by payment to each of them of a sum of money equal
to the amount that he would have, earned from the week ending
July, 8, 1938, to the date of the offer of reinstatement, less his net
earnings during said period, except in the case of Anderson. We have
previously held in cases where the Trial Examiner in his Intermediate
Report recommended a dismissal of the complaint on the merits, that
the respondent could not have been expected,to reinstate an employee
on the basis of such recommendations." Since in his Intermediate
Report the Trial Examiner recommended that the complaint be dis-
missed as to Anderson, we will not require the respondent to award
him back pay for that part of the period extending from January 6,
1939, the date of the Intermediate Report, to the date of this Decision
and Order.
We shall also order the respondent to make Caron whole for any
loss of pay which she may have suffered by reason of the discrimination
against her by payment to her of a sum of money equal to that which
she would normally have earned as wages from the date of the respond-
ent's discrimination against her in July 1938 to the date of the offer
of reinstatement, less her net earnings during said period.32
Since we have found that Clayton Pettipiece was not discrimina-
torily discharged, we will dismiss the complaint as to him.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. United Cannery, Agricultural, Packing & Allied Workers of
America, Local 216, is a labor organization, within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Christian Ande^son, Ellen Chappuis, Marie Chavie, Ruby
Hagen, Lillian Jeno, Margaret Kolterman, Beatrice Kral, Martin
Kral, Thelma Pemrick, Ann St. Martin, Pearl Summers, and Edwin
C. Weishaar, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section ,8 (3) of the Act.
31 Cf Matter of E R Hafelfinger Company, Inc and United Wall Paper Crafts of North America, Local
No 6, 1 N L R B. 760, and subsequent cases
32 See Fort Wayne Corrugated Paper Company v. National Labor Relations Board, Ill F . (2d) 869 (C. C.
A 7), enf'g Matter of Fort Wayne Corrugated Paper Company and Local No . 182, International Brotherhood
of Pulp, Sulphite, and Paper Mill Workers, 14 N. L. R. B. 1; of National Labor Relations Board v. Piqua
Munising Wood Products Co , 109 F (2d) 552 (C C A 7), enf'g Matter of Piqua Munising Wood Products
Company and Federal Labor Union 18787, 7 N. L R B: 782 ; National Licorice Company v . National Labor
Relations Board , 60 S. Ct 569, aff'g as mod 104 F (2d) 655 (C. C. A 2), enf'g as mod . Matter of National
Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 405,
etc , 7 N L R B. 537, Matter of Lawrenceburg Roller Mills Company and Flour Mill & Grain Elevator Em-
ployees Union No. 21840, etc , 23 N L. R. B 980
323429-42-vol. 26-20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in
the exercise of the':rights guaranteed in Section 7 of the Act; the
respondent has engaged'in.arid is engaging in unfair labor-practices,
within the meaning of Section 8 (1) of the Act.
" 4:',The aforesaid unfairilabor practices, are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7).'of
the Act.
'5'. The respondent has not discriminated in regard to the hire, and
tenure of employment of Clayton Pettipiece, within the meaning of
'Section 89) of the Act.
ORDER . .
Upon the basis of the foregoing findings of fact and conclusions of
law, ,and pursuant to, Section 10 , (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Wilson & Co., Inc:, Faribault, Minnesota, and its officers,
agents, successors, and assigns shall: ,
1.,,Qease and desist from:
(a) Discouraging membership in, United Cannery, Agricultural,
Packing & Alhed Workers of America, Local 216, or in any other
labor organization of its employees, by refusing to reinstate any, of
its employees, by discharging any of its employees, or in any other
manner discriminating in regard to their hire and tenure of employ-
ment or any, term of condition of employment;
,(b) In any other mariner 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, or to engage in concerted ac-
tivities for the purposes of collective bargaining, or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative `action, which the Board' finds
will effectuate the policies of the Act:
(a) `Offer to 'Christian Ande'r'son; Mrs. Wilfred Caron, Marie Chavie,
Ruby Hagen,Lillian Jeno; Beatrice Kral, Martin Kral, Pearl Summers,
and Edwin C. Weishaar immediate and full reinstatement to their
former or substiinti' lly' equivalent positions, without prejudice to
their seniority aid other `rights and privileges;
(b) Restore to Margaret Kolterman, Thelma Pemrick, and Ann St.
Martin their seniority"and' other'rights and 'privileges;
(c) Make whole Ellen Chappuis, Marie Chavie,, Ruby Hagen,
Lillian' Jeno; Margaret. Kolterman, Beatrice Kral, Martin Kral,
Thelma Pemrick, ,Ann. St. Martin, Pearl Summers, and Edwin'C.
Weishaar for any loss of 'pay which they 'may have suffered by reason
of : the 'respondent's discrimination against them by payment to each
of 'them of a sum of money equal to that which he, would -normally
have earned as wages from July 8, 1938, 'to' the date of the offer of
• = ' ='-.'WILSON & CO .'^' INC:- - I ' "`I 295
reinstatement, less•- 'his net earnings ^ during said `period; 'deducting,
however, from the amount otherwise due to each of'the said employees,L
monies, received -by, said employee dur'ing said period foe`work^per`-
formed upon Federal, State, county, municipal, or other work-relief
projects, and pay over the amount, so deducted, to the appropriate -
fiscal agency ofthe Federal, State; county, municipal, or other gov;
ernment or governments which supplied'the funds for said wo'rk-relief
projects;
(d) Make whole Christian Anderson for any loss of pay which he
may have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which he
would normally have earned as wages from July 8, 1938, to January 6,
1939, and from the date of this Order to the date of the offer of rein-
statement, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due to him, monies received by said
employee during said periods for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount, so deducted, 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;
(e) Make whole Mrs. Wilfred Caron for any loss of pay which she
may have suffered by reason of the respondent's discrimination against
her by payment to her of a sum of money equal to that which she would
normally have earned as wages from the date in July 1938 of the re-
spondent's discrimination against her to the date of the offer of rein-
statement, less her net earnings during said period; deducting, how-
ever, from the amount otherwise due to her, monies received by said
employee during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount, so deducted, 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;
(f) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days, notices to its
employees stating: (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs 1 (a) and
(b); (2) that it will take the affirmative action set forth in paragraphs
2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondent's
employees are free to become or remain members of United Cannery,
Agricultural, Packing & Allied Workers of America, Local 216, and that
the respondent will not discriminate against any employee because of
membership or activity in that organization;
(g) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent discriminated
against Clayton Pettipiece in regard to his hire and tenure of employ-
ment.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.