Lawrenceburg Roller Mills Co.

National Labor Relations Board - Board Decisions

Aug 18, 1940

23 N.L.R.B. 980 (N.L.R.B. 1940)

In the Matter of LAWRENCEBURG ROLLER MILLS COMPANY and FLOUR
MILL & GRAIN ELEVATOR EMPLOYEES UN ION No. 21840 , AFFILIATED
WITH THE A. F. or L.
Case No. C-1478.-Decided May 18, 1940
Milling Industry-Interference, Restraint, anti Coercion: speech and notice
calculated to discourage membership in union ; questioning, warning, and threat-
ening employees with respect to the union and disparaging the effectiveness of
the union as a bargaining agent; demotion of union member; charges of, unsup=
ported as to maintenance of surveillance over union meetings-Discrimination:
discharges : charges of, sustained as to one, dismissed as to two employees;
lay-cffs: charges of, sustained as to two employees-Reinstatement Ordered:
of employee discharged and of employee demoted-Back Pay: awarded one
employee from date of discharge to date of offer of reinstatement ; awarded two
employees from date of lay-off to date of reinstatement; awarded one employee
from date of demotion to date of Intermediate Report and from date of Order
to offer of reinstatement.
Mr. Walter B. Chel f and Mr. Robert D. Malarney,, for the Board,
Stanley c0 Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio,
and Bielby & Bielby, by Estal G. Bielby and Chester E. Bielby,, of
Lawrenceburg, Ind., for the respondent.
Mr. Robert A. Wilson, of Washington, D. C., for the Union.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Flour Mill &
Grain Elevator Employees Union No. 21840, affiliated with the A. F.
of L., herein called the Union , the National Labor Relations Board,
herein called the Board, by Robert H. Cowdrill , Regional Director
for the Eleventh Region ( Indianapolis, Indiana ), issued its complaint
dated June 28, 1939 , against Lawrenceburg Roller Mills Company,
Lawrenceburg , Indiana, the respondent herein , alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3)
23 N L . R. B., No.. IN.
980
LAWRENCEBURG ROLLER MILLS COMPANY 981
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act.
With respect to the unfair labor practices, the complaint, as
amended, alleged that the respondent (1) in December 1938, discharged
George Daugherty, Albert Luchte, and James White, and in January
1939, laid off Roy Gribben and Walter S. Rhodes, and thereafter
refused to reinstate said employees for the reason that they assisted
the Union and engaged in concerted activities for the purposes of
collective bargaining and other mutual aid and protection; and (2)
by the afore-mentioned acts, by urging, persuading, and warning its
employees to refrain from becoming or remaining members of the
Union, by threatening them with discharge and other reprisals if
they became or remained members of the Union, and by maintaining
surveillance over meetings of the Union, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Copies of the complaint and notice of hearing were duly served
upon the respondent and upon the Union. On August 7, 1939, the
respondent filed a written answer to the complaint admitting the
allegations of the complaint as to the nature of its business, but
denying that it had engaged in the unfair labor practices alleged
therein.
Pursuant to notice, and notice of postponement, a hearing was
held in Lawrenceburg, Indiana, from August 28 through September
8, 1939, before Thomas S. Wilson, the Trial Examiner duly desig-
nated by the Board. The Board and the respondent were represented
by counsel, participated in the hearing, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. During the course of the
hearing, the Trial Examiner granted a motion by counsel for the
Board to dismiss the allegations of the complaint in so far as it
alleged that the respondent had discriminatorily discharged and
refused to reinstate George Daugherty. At the conclusion of the
Board's case, counsel for the Board further moved to amend the
complaint to conform to the proof with respect to variances in names,
dates, and minor formal errors. The motion was granted. The
Board has reviewed the rulings of the Trial Examiner on notions
and on objections to the admission of evidence and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report, dated
January 20, 1940, copies of which were duly served on the parties,
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act by making a speech and posting a notice
discouraging membership in the Union, by maintaining surveillance
2M4034-41-N of 23--G3
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a union meeting, and by warning and persuading its employees,
through supervisory officials, to refrain from joining or remaining
members of the Union, and by discriminating in regard to the hire
and tenure of employment of Albert Luchte, James White, Roy
Gribben, and Walter S. Rhodes. He accordingly recommended that
the respondent cease and desist from engaging in these activities and,
affirmatively, reinstate with back pay the four employees found by
him to have been discriminatorily discharged or laid off.
On March 14, 1940, the respondent filed exceptions to the Inter-
mediate Report of the Trial Examiner, and a brief in support of its
exceptions. On March 19, 1940, pursuant to notice duly served upon
all the parties, a hearing for the purpose of oral argument was held
before the Board at Washington, D. C. Only the Union appeared
by counsel and participated. The Board has reviewed the exceptions
to the Intermediate Report and, in so far as they are inconsistent with
the findings, conclusions, and order set forth below, finds no merit
in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Indiana Corporation engaged in the milling
of wheat, flour, and offal at Lawrenceburg, Indiana. In 1938 it pur-
chased grain amounting in value to $1,395,000, of which approximately
50 per cent was shipped to it from points outside the State of
Indiana. During the same period, the respondent shipped approxi-
mately 95 per cent of its finished products, consisting of 358,000
barrels of flour and 15,000 tons of feed, valued at $2,100,000, to States
other than Indiana. The respondent employs approximately 65
employees in the operation of its Lawrenceburg plant.
IT. THE ORGANIZATION INVOLVED
Flour Mill & Grain Elevator Employees Union No. 21840, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the latter part of October 1938, a group of the respondent's em-
ployees initiated the formation of the Union, and at a meeting held
on November 15, 1938, 15 employees joined the organization , applied
for a charter, and elected Albert Luchte business agent. In October
rumors that a union was being formed were reported to Louis B.
LAWRENCEBURG ROLLER MILLS COMPANY 983
Henkle, plant superintendent, by Steve Liddle, mill foreman, and
Largus Brauer, foreman of the warehouse. Henkle testified that he
also saw "signs that something was going on," that he noticed groups
of men "with their heads together" who would avoid his gaze and
had a "rather sneering expression on their faces." He thereupon
conferred with Frank Hutchinson, vice- president and general man-
ager, and informed him of the rumors concerning the formation of a
union, and that some of the men had been told there was going to
be a "closed shop" and if they did not join the Union they might lose
their jobs. He advised Hutchinson that such rumors were "a bad
thing for the plant." It was then decided that Henkle should talk
to "some" of the men and tell them "of their rights and of the
company's rights."
Early in November Henkle began to hold conversations with
various employees concerning the Union. Albert Luchte, one of
the originators of the Union, testified that on November 4, 1938,
Henkle inquired as to what he knew concerning its organization,
telling him, "You know we don't need no union around here," that
"it would be useless to pay money to a union . . . it was just
paying it out for nothing," and that the respondent would never
have a closed shop. He further informed Luchte that his work had
always been satisfactory and that if he became dissatisfied to "just
let me know." Charles Lewis testified that about November 8
Henkle asked him what he knew about the Union and in reply to
his answer of "nothing" states, "Charley, you don't need to join any
union. I have always treated you fair and you will always be taken
care of." About November 17, after Lewis had joined the Union,
Henkle told him that the respondent would be forced to close the
plant, because it "couldn't stand for any union." He also remarked
that Lewis had "changed" since their previous conversation. Elmer
Webb testified that about November 11 Henkle questioned him con-
cerning his knowledge of the Union, suggested that Webb knew
more than he admitted, and told him "I figured that you have always
been a pretty broadminded fellow. I want you to think this over.
They won't give any vacations or anything for holidays." George
Seevers, who later became president of the Union, testified that
shortly after joining the Union on November 11, he was questioned
by Henkle as to "why the boys wanted a union." Seevers replied
that the respondent had been reluctant to pay overtime, maintained
no system of seniority, and failed to grant promotions when merited.
Henkle then told Seevers, according to the latter, that there had
been complaints about his work, but that there was a better job
intended for him. When Seevers, in response to Henkle's ques-
tioning, replied that he was very much in favor of a union, Henkle
retorted, "Well, the union is only a place to pay your money in for
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somebody to get fat on," that he was not in favor of any union,
and that "if we ever have a union, we will never have a closed shop
. . . we will hire and fire whoever we please." He advised
Seevers that he had "better think it over. " Harlan Craven testified
that about November 15, a few days after he had joined the Union,
Henkle inquired as to his knowledge of the Union and told him that
he did not think "the company would want a union," that it had
been in business for 41 years without any "labor difficulties" and
did not "want any now." He then informed Craven that if the
Union was successful in organizing the plant the respondent's
employees would be deprived of certain privileges they then enjoyed,
and urged Craven to "think it over thoroughly" before he joined,
pointing out that he (lid not have to join in order to hold his job.
Henry Ake testified that when he requested a loan in December
Henkle asked him what he thought about the Union and whether or
not it "worried" him. According to Ake, Henkle proceeded to tell
him that the Union would not be able to secure any increase in pay
for the men , that Ake should "stick by him ," that Hutchinson would
be his "best friend ," and that he would not have to "worry very
long because finally the union guys would be out." Henkle also
asked Ake, according to the latter's testimony, whether Webb had
attempted to get him drunk so that he would join the Union.
Henkle admitted introducing the subject of the Union into his
conversations with the above-mentioned employees, but testified that
he merely told them that he had heard rumors of a union being
organized, that it was a matter for each man to decide for himself,
and that the respondent would always maintain an open shop. We
are unable to believe, however, that Henkle confined his discussion
of the Union to these remarks. In view of his admitted concern
over the formation of the Union, his determination to speak to the
individual employees concerning their "rights," the consistent testi-
mony of the various employees to the contrary, and the Trial Exam-
iner's refusal to give credence to his testimony, we find that Henkle
made substantially the statements attributed to him.
Harley Holland, a prospective employee, also testified that during
an interview with Henkle on November 6, Henkle inquired if he had
ever been a union member , and informed him that the respondent
was "having a little trouble." When Holland replied that he had
belonged to a union in 1936 because he "had to," and that he "didn't
like unions ," according to Holland , Henkle told him, "In case these
boys go out on strike, I will give you a job then if you are not a
union man." Henkle admitted having a conversation with Holland
regarding employment , but could not recall asking him whether or
not he belonged to a union . He denied any conversation concerning
the possibility of a strike . However, the anti-union sentiment
LAWRENCEBURG ROLLER MILLS COMPANY - 985
expressed by Heckle in his conversations with the respondent's
employees lends weight to Holland 's testimony and permits no
credence to attach to Henkle's denial. We find, as did the Trial
Examiner , that he made the statements testified to by Holland.
Hutchinson , the vice president and general manager, likewise dis-
played the respondent 's hostile attitude toward the Union. About
November 15 , shortly before working time , Russell Craig was
informed by Henkle that Hutchinson wanted to see him in his office.
Craig testified that upon his arrival Hutchinson , who was a distant
relative of the Craig family, inquired concerning his father and
mentioned the hunting at the , Craig farm. He then asked Craig
if he had heard anything about the Union, how many men were
members , suggesting 8 or 10, and whether or not he had joined.
Craig further testified that when he replied that he had not joined,
Hutchinson told him that he would not have to join in order to
keep his job , that the respondent would shut down the plant before
it would agree to a closed shop, and , that he was just giving Craig
"a little friendly advice" because of the friendship existing between
their families . Hutchinson admitted having called Craig to his office
to inquire about the hunting at the Craig farm, and that as a "part-
ing remark" had inquired if he had joined the Union . He denied,
however, having any further conversation with reference to the
Union. In view of the statements made by Hutchinson in a speech
hereinafter discussed, we agree with the Trial Examiner and credit
Craig's version of the conversation.
A number of employees testified that foremen in the various de-
partments also inquired of employees concerning the activities of
the Union and made statements similar in import to those made by
Henkle. Glen Faulkner, elevator foreman , admittedly asked Roy
Gribben, an employee in his department , several times if he was a
member or attended meetings of the Union . Gilbert McKain , assist-
ant to the head miller and alternately in charge of the night shift,
told George Seevers that he would not join the Union because his
brother who had been a union member "all his life" had "consider-
able trouble being kept out of employment ," and also because while
working for the respondent in 1920 or 1921 he had joined the other
employees in obtaining a wage increase of 5 per cent and as a result
had lost a customary 10-per cent bonus. , McKain also told Seevers
on this occasion that "you read in the paper every day where the
unions was failing, that he didn 't think they would amount to any-
thing anyhow , you couldn 't use them in the flour mills." James
White testified that Largus Brauer, warehouse foreman, in the pres-
I This was the first time prior to 1938 that the respondent's employees had engaged in
concerted activities for the purpose of collective bargaining.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence of Herbert Hutchinson, asked him what he knew about the
Union and when White replied "nothing," Brauer retorted, "You
ought to know, you belong to it."
George Seevers testified that Steve Liddle, head miller, questioned
him concerning a rumor that "all the bosses was going to get canned
after the union went through," and that at the time Liddle said
"something about the A. F. of L. being crooked." Harland Craven
also testified that Harry Snyder, his foreman, told him that Henkle
had been informed as to the identity of the 19 members of the Union,
and that Craven was one of them. Brauer, Liddle, and Snyder
denied the statements attributed to them by White, Seevers, and
Craven. In view of the general course of conduct pursued by the
respondent's supervisory employees and the finding of the Trial Ex-
aminer that they made such statements, we cannot credit to their
denials and we find that Brauer, Liddle, and Snyder, made substan-
tially the statements ascribed to them above.
On November 19, 1938, the respondent closed its plant at 3 p. m.
and upon orders, from Henkle the employees assembled to hear an
address by Hutchinson. Henkle accompanied his introduction of
Hutchinson with the statement that he had "felt for some time that
things were not right in the plant" and that he thought if they
"would all talk this thing over it would be for the best interests of
everybody." Following a prepared outline, which was introduced
in evidence, Hutchinson informed the men that it was their privilege
to organize a union but that there were "certain facts" which the
respondent thought they should know, stressing first that the respond-
ent would maintain an "open shop," and second that "no employee
whether member of a union or not would be permitted to threaten
any other employee who desired to work." After stating that this
was the first "trouble" experienced by the respondent in 35 years,
Hutchinson proceeded to outline what the respondent had done for
its employees in the past and how it had always "felt that if any-
thing was wrong or not satisfactory, you would come and tell us
personally." He then gave a resume of the respondent's financial
difficulties for the past 2 or 3 years and the increased competition
in the milling industry, followed by the query of "what chance do
you think we would have of competing if we paid higher wages and
quoted higher selling prices." As indicated by the outline of his
speech, Hutchinson continued with the following statement : .
Right now-regardless of the efforts of some of you to form
a union, the serious question before this Company is whether
we will stay in business or not. If we can break even or lose
a little we are willing to go ahead, but without your whole-
LAWRENCEBURG ROLLER MILLS COMPANY 987
hearted suppose [sic] cooperation and assistance, the chances
don't look very favorable.
Mr. Rothwell and Mr. Brown, founders of the business, are
still interested here, but not absolutely necessary for them to
keep their money here if employees are not interested in making
the business succeed.
After offering to permit a group of three employees to check the
records in verification of his statements concerning the respondent's
financial condition, Hutchinson read a telegram from Rothwell, presi-
dent of the respondent, corroborating the views just expressed and
ending with the statement, "The men know how friendly relations
with them have been for a long term of years and they know whether
these have been helpful or otherwise." According to the testimony
of several employees, Hutchinson concluded his speech with a state-
ment to the effect, "What good would the union be without a job."
Hutchinson denied making the statement, but since it expresses,
though perhaps more bluntly, the point of view conveyed by his
,speech, we find, as did the Trial Examiner, that Hutchinson ended
his remarks substantially as testified to by Board witnesses.
Hutchinson testified that in making the foregoing speech he was
motivated by the "terrible" situation and near "chaos" existing in
the plant, the threatening and harassment of employees, and the
increasing lack of respect accorded foremen by the men. The record,
however, is devoid of any indication that employees were in fact
threatened or intimidated by union members or that they so com-
plained to the respondent. It appears from his own testimony that
Hutchinson's appraisal of conditions in the plant was based largely
upon "rumors that were going on about the men threatening em-
ployees that if they didn't join the union they would lose their jobs"
and so far as the record shows, upon a single instance of alleged
insubordination by a member of the Union. It is impossible to be-
lieve that Hutchinson, were he so greatly concerned over the lack
of respect shown foremen, as he alleged, would have made no refer-
ence to it in his speech. We are satisfied that the sole purpose of
the speech was to counteract the union organizing activities of the
employees. Hutchinson's denial of the Union's anticipated demands
for a closed shop and higher wages was plainly intended to disparage
any benefits to be received from union membership. We find that his
reference to the respondent's prior beneficence was undoubtedly an
implied reproach for union activity which he -assumed meant a lack
of appreciation 'on the part- of the employees for what the- respondent
had done for them. We further find that he identified union activity
with conduct detrimental to the respondent's welfare.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 7, 1938, the respondent discharged Luchte, business
agent, and the following day, Charles Bingaman and George
Daugherty, two other members of the Union, allegedly for smoking
in violation of a plant rule, and misconduct. On December 14 a
committee of union representatives met with the respondent to pro-
cure their reinstatement and to present a proposed contract providing
for wage increases and a closed shop. The respondent refused to
reinstate the union members, maintaining that their discharge was'
for cause, but after some discussion of the Union's claims to mem-
bership agreed to take the proposed contract under advisement. A
second meeting was held on December 21, but the respondent still
refused to reinstate the discharged employees. On December 15,
after its first conference with the Union, the respondent posted on
its bulletin board the following notice : 2
Recently, a number of our employees have complained that they
have been treated unfairly and discriminated against by other
employees who have been active in forming a union.
You already have been informed that the matter of union
membership is something for each individual employee to decide
for himself free from coercion or intimidation either by the com-
pany or any of its employees.
Today we told a committee representing those who belong to
the union that in the future no employee will be permitted to
coerce, discriminate against or intimidate other employees, or
otherwise treat them unfairly, because they may disagree on the
question of union membership.
Each employee has a right to join or not to join any union
and what he does about it will have no effect upon his job with
or the treatment which he will receive from this company.
The company will take immediate action on any cases reported
to it. [Italics supplied.]
Since there was no more provocation for posting the above notice
than existed for the making of Hutchinson's speech on November
19, we are convinced that the respondent's purpose was to reassure the
employees that despite its conference with the union representatives
its position of hostility to the Union, as previously outlined, remained
unchanged. We find this action by the respondent to be a further
interference with the rights of its employees to self-organization
guaranteed in the Act.
Dawson Bills joined the Union about November 15, 1938, and in
December, shortly after the discharge of the three union members
2 The notice was removed from the bulletin board on December 17, 3 days after posting.
The record contains no explanation for this action
LAWRENCEBURG ROLLER MILLS COMPANY 989
above-referred to, was demoted from his regular job as a flour packer
to repacking and given a reduction in pay from 50 cents to 43 cents
an hour. Bills testified that when his foreman, Largus Brauer, in-
formed him of the reduction he inquired if there was anything wrong
with his work, and that Brauer replied, "No, you will be all right
when you get your 80 cents an hour; that is what it is isn't it?" and
added, "When you get that amount, we will all have to go up to the
union hall, but now we don't." Brauer was obviously referring to
the wage rate provided for in the proposed contract presented by
the Union to the respondent on December 14. Brauer denied making
the above statements and testified that the demotion of Bills was the
result of a shift in the packing crews necessitated by the fact that
since the advent of the Union some of the packers were not speaking
to one another, and that he had asked Henkle if "we couldn't break
it up, try to put the boys that were on friendly terms together and
those that were not, let them work the other shift." Brauer further
explained that had Bills been retained as a packer when making this
change he would have been working on the same shift as Snelling,
head packer, with whom Bills had not been on speaking terms for
"years." Brauer later admitted that the last knowledge he had of
Snelling and Bills not speaking to each other was a year prior to
the transfer. Moreover, there was no satisfactory showing in the
record that the respondent could not have arranged the working
schedules of the eight packers involved so as to keep Bills and
Snelling on opposite shifts. The record further fails to establish the
existence of such inefficiency or dissension among the packers because
of the Union as would warrant their rearrangement. Otis Moreillon,
a packer who was subpenaed by the Board and admitted his re-
luctance to testify, stated that the discussion of the Union among the
packers consisted only of "friendly arguments and talk," and Charles
Slayback, another packing employee, denied that there were any
serious arguments over the Union but admitted that they "talked"
about it. We do not credit the foregoing explanation by Brauer and
his denial of the statements attributed to him by Bills.
Brauer further justified his demotion of Bills by a desire to give
the position to Everett Clark, an allegedly more capable packer, who
replaced Bills. Brauer, however, admitted that Clark had not packed
flour since the respondent discontinued its third shift a "few years"
prior. Clark was not a member of the Union. Brauer also main-
tained that he demoted Bills because of the numerous errors allegedly
found in his tally sheets. The testimony of Brauer and Inglis, the
respondent's timekeeper, on this point was both vague and contra-
dictory. Since Bills had been retained as a packer by the respondent
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for over 5 years, we accord no merit to this contention.3 In view of
his years of satisfactory service, the inadequate showing of reason-
able cause for his transfer, his replacement by a less experienced and
non-union employee, and the fact that during this period only mem-
bers of the Union were involved in difficulties with respect to their
employment, we are convinced that Bills was demoted as a part of
the respondent's obvious determination to discourage membership
in the Union.
In its Exceptions to the Intermediate Report, the respondent ob-
jects to the failure of the Trial Examiner to find that its supervisory
employees were eligible to membership in the Union. The inference
that the respondent would have us draw from this objection un-
doubtedly is that such a finding would relieve the respondent of
responsibility for the conduct of its foremen. We have held, how-
ever, that an employer is not relieved from responsibility for the ac-
tivities of its supervisory employees by virtue of their membership
or eligibility to membership in a labor organization.' An employer
in its relations with its employees necessarily acts through and must
be held responsible for the acts of its supervisory employees. More-
over, in the instant case Henkle, who as plant superintendent was
directly responsible for the activities of his departmental foremen,
acted with the knowledge and consent of the respondent's vice
president.
We find that by the activities of Henkle and its other supervisory
employees in disparaging the Union, and in questioning, warning,
and threatening employees with respect thereto, by Hutchinson's
speech on November 19, by posting the notice on December 15, and
by the demotion of Dawson Bills, the respondent has interfered with;
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The evidence with respect to the allegation that the respondent
maintained surveillance of union meetings consists of testimony that
Liddle and McKain, mill foremen, were seen near the union hall
while meetings were in progress. Both Liddle and McKain denied
spying or having any intention of spying upon the meetings of the
Union, and the explanation given by them for their probable presence
a See Matter of Montgomery Ward & Company and Reuben Litzenberger et at, 9
N L. R. B. 538 , enf'd as mod., Montgomery Ward & Company v. National Labor Relattions
Board, 107 F. (2d) 555 (C C. A. 7).
4 See Matter of Ward Baking Company and Committee for Industrial Organization,
8 N L. R B 558; Matter of Tennessee Copper Company and A F of L Federal Union
No 21164, 8 N L R B 575; Matter of Nest Oregon Lumber Company and Lumber and
Sawmill Workers Local Union No. 3, International Woodworkers of America and Lumber
and Sawmill Workers Union Local No. 2532, chartered by the United Brotherhood of Car-
penters and Joiners of America , 20 N L R B 1
LAWRENCEBURG ROLLER MILLS COMPANY 991
in the vicinity of the meeting hall is not unreasonable. We find that
the evidence is insufficient to sustain the allegation in the complaint
that the respondent kept under surveillance the meetings of the
Union.
B. The diseTimzn natory discharge of Luchte
Albert Luchte was first temporarily employed by the respondent
in 1922 or 1923, and received regular employment in 1930. For al-
most a year prior to an operation for appendicitis in August 1937,
Luchte had held the position of packer at a wage rate of 50 cents an
hour. Following his illness and upon the advice of his physician,
Luchte requested less strenuous work and was transferred to the mill
as a sweeper at the same rate of pay that he received when packing.
His duties entailed cleaning the basement and first floor of the mill,
the disposal of sweepings from all five floors, the conveyance of
empty sacks to the sack-cleaning department, the elimination of
"choke-ups" in the flour spouts, and other work of a similar nature.
Luchte was also given extra employment by Henkle mowing the
lawn and doing other odd jobs around Henkle's home. He was one
of the first to promote the organization of the Union and was elected
its business agent on November 15, 1938.
Early in November, Henkle sent Luchte to Cincinnati, Ohio, in
the "company car" to bring a Rabbi to the plant for the performance
of certain religious rites in connection with the manufacture of flour
for Jewish consumers. On November 4, after his return, Henkle
called Luchte to his office to pay him for this extra service. In their
conversation, Henkle brought up the subject of the Union, telling
Luchte, "You know the boys around here pretty well, because you
get around quite a bit," and inquiring, "What do you know about
this union ?" Henkle, as previously related, then told him that there
was no need for a union in the plant; that he would be paying out
money to no purpose ; that his work had always been satisfactory ;
and that if he became dissatisfied to tell him about it. Prior to this
conversation, in October, Faulkner, the elevator foreman, had ques-
tioned Luchte about the Union, derided him about becoming a "big
shot" after his election as business agent on November 15, and a few
days later greeted Luchte with "Hello there, Brother Rat."
As Luchte was sweeping the basement of the mill shortly before
his discharge on December 8, 1938, Henkle reprimanded him for not
removing some dust from the joists and ordered him to "get that
cleaned up." Luchte immediately stopped sweeping and obeyed.
The following day, Luchte testified, Henkle again "jumped onto me
about fumigating." Luchte told him that he "fumigated twice this
week and that's more than we ever did," to which Henkle replied
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Then fumigate it again." On December 7, approximately 10 min-
utes before quitting time, Luchte went to the water shed adjoining
the boiler room to "wash up," preparatory to leaving the plant.
After he had finished, Luchte started to smoke a cigarette. Luchte
testified that upon receiving a warning from Harry Rubel of Hen-
kle's approach he threw away his cigarette and that he was not smok-
ing when Henkle entered. He further testified that it was customary
for the men to smoke in the watershed, and that it was the practice
of the other employees to warn them of Henkle's approach by greet-
ing him (Henkle) in a loud tone of voice. Henkle testified that he
saw Luchte throwing his cigarette into the shower bath as he came
into the shed and that he said "Well !" Luchte denied that Henkle
said anything to him. The next day, Henkle discharged Luchte for
"misconduct and smoking."
As previously stated, the union committee endeavored twice in
December to secure the reinstatement of Luchte, Bingaman, and
Daugherty, but the respondent maintained that they had been dis-
charged for cause and refused to reemploy them. On February 11,
1939, Hutchinson sent for Luchte and, according to the former's
testimony, stated, that he thought Luchte had suffered "enough
penalty for what he had done," and that he could return to his job
if he would "agree to observe the rules, and do the right thing."
According to Luchte, Hutchinson also told him, "Well, if you want
your job back, you'll have to drop all of your charges with the
Labor Board." Luchte testified that he denied having been guilty
of such neglect of duties as Hutchinson alleged, stated that the
Union, not he, was responsible for filing the charges, and that he
thought he was entitled to back pay. Hutchinson asserted that the
respondent was not responsible for his loss of pay, and Luchte left
the office without agreeing to return to work upon the terms offered.
Although Hutchinson denied that either the Union or the Board
was mentioned in his conference with Luchte, his denial as elicited
by counsel for the respondent upon direct examination is uncon-
vincing :
Q. Was the union mentioned in that conference?
A. Absolutely there was nothing mentioned about the union.
Q. Or about the Labor Board?
A. I think perhaps he may have got the impression, be-
cause
Q. No, I want to know what was stated.
A. There was absolutely nothing. I don't think the Labor
Board or the union was mentioned in the whole conversation.
I made it a special point not to.
LAWRENCEBURG ROLLER MILLS COMPANY 993
We credit, as did the Trial Examiner, Luchte's account of the con-
versation.,'
In its answer the respondent alleges that Luchte was discharged,
after previous warning, (1) for neglecting his duties and failing to
carry out the instructions of his foremen, (2) for entering the plant
after working hours without the permission of the watchman on
duty, and (3) for violation of its smoking rules. In support of the
first allegation, Henkle testified that in November 1938, Steve Liddle
and Bud McKain, mill foremen, reported that Luchte was fre-
quently absent from his place of duty in the basement and on the
first floor of the mill, and that he in turn brought the matter to
Luchte's attention. Liddle and McKain both testified that they had
complained to Henkle, but admitted that they had never spoken to
Luchte concerning their inability to find him. They also admitted
that on the occasions that Luchte could not be found they looked
for him only on the "first floor and basement," Liddle further testi-
fying that he never spent "over five minutes' in trying to locate
him. Henkle also testified that he personally saw Luchte on several
occasions in various parts of the mill where his presence was not
required by his work. John Inglis, the respondent's timekeeper,
testified that on one occasion when he found Luchte sitting in the
boiler room during working hours Luchte jumped up and said,
"Don't scare me that way with those white pants. I thought you
were Mr. Henkle." Inglis jokingly reported the incident to Henkle
who, Inglis testified, also thought it amusing. Inglis further testi-
fied that a month or 6 weeks before Luchte's discharge he passed
Luchte taking some sacks to the sack-cleaning department and that
when he passed that way about 10 or 15 minutes later Luchte was
still talking to Paul Blumeyer who worked in that department.
Inglis stated that shortly afterwards he asked Blumeyer, "What are
you fellows plotting against ?" and was told that Luchte had been
asking him to join the Union. Inglis first testified that he reported
the incident to Henkle after questioning Blumeyer, but on cross-
examination stated that he mentioned it to Henkle beforehand and
5 Bingaman and Daugherty were also named in the original charges filed by the Union
on December 12, 1938. In support of Ilutchinson 's account of his interview with Luchte,
the respondent cites in its brief their testimony that in similar conversations with
Hutchinson prior to their reinstatement he made no request for a withdrawal of the
charges pending before the Board We note, however, that following their reemploy-
ment in January and May 1939, respectively , Binganian and Daugherty not only evinced
an unwillingness to press the charges filed in their behalf, but appeared at the bearing
as hostile witnesses for the Board and disavowed affidavits admittedly signed by then in
support of such charges Accordingly, the charges were withdrawn as to Bingaman
and the complaint was dismissed as to Daugherty Both men , moreover, testified that
they were no longer members of the Union , Bingaman specifically admitting that he
had withdrawn from membeiship prior to his iecniployment We find nothing in the
circumstances surrounding the reinstatement of Bingaman and Daugherty to support
the respondent ' s contentions with respect to Luchte
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Henkle remarked that he "supposed" Luchte was talking about
the Union.
With reference to the second alleged cause for Luchte's discharge,
the evidence discloses that he returned to the plant one evening early
in November to deliver a receipt for union dues to Charles Slayback,
and that while there stopped to talk to several employees. Luchte
admitted that he did not report to the watchman on this occasion,
but testified that he did not do so because it was customary for em-
ployees to enter the plant without restriction. Henkle testified in
contradiction that "No Trespassing" signs were posted and that he
had instructed the watchmen to allow "nobody" to enter the plant
without special permission. Luchte was never told either before or
after this occasion that he had violated any rules of the respondent
by visiting the plant after working hours.
The evidence relative to Luchte's violation of the smoking rules
shows that for many years the respondent had maintained "NO
SMOKING" signs throughout its plant, and that the fire hazard
of smoking in the mill, warehouse, and elevators, was well recog-
nized by the employees. It was permissible, however, to smoke in
the engine and boiler rooms of the power plant because of their
fireproof construction, and it was common practice for employees to
do so during working hours. The evidence also establishes that the
men customarily smoked in the watershed adjoining the boiler room
and in boxcars located on the trestle behind the warehouse. Al-
though smoking during working hours and in places other than the
power plant had never been expressly permitted, it is clear that
the respondent was aware of,this practice. The apparent custom of
the supervisory employees was to overlook such smoking as did not
occur in their presence, and the employees usually smoked when they
could do so without being seen by their foremen. That the rules
were not strictly enforced with respect to smoking in the less haz-
ardous parts of the plant, is evidenced by the fact that Henkle
could recall but three discharges for smoking prior to 1938, and
they involved employees who had been found smoking in the base-
ment of the elevator and inside the mill. Moreover, the respondent
did not discharge Dawson Bills when, upon the basis of a report by
Brauer, he was held responsible for a boxcar fire in July 1938. The
respondent endeavored to show that after the boxcar fire the rule
against smoking was more rigidly enforced throughout the plant.
Henkle testified that he had given all of the foremen special instruc-
tions to warn the employees that smoking was strictly prohibited
and to report any violations. Brauer, however, was the only fore-
man who admitted receiving such instructions. It appears that
Brauer did warn the warehouse employees and that thereafter they
smoked less frequently in the boxcars and were more careful not to
LAWRENCEBURG ROLLER MILLS COMPANY 995
be caught. The evidence shows, however , that in smoking elsewhere
there was no change in the customary smoking habits of the eiii-
ployees . Nor was any stricter enforcement of the rules made evi-
dent by the respondent until after the Union began to organize, and
then only by the sudden discharge of Luchte, Bingaman, and
,Daugherty early in December.6 It was not until February 17, 1939,
that the respondent posted the following notice:
NOTICE TO ALL PLANT EMPLOYEES
SMOKING
Recently it has come to our attention that there has been
smoking by some of our employees in and around our plant, on
our premises during working hours.
It is difficult to understand how any employee could have the
impression that smoking was permitted on these premises in
view of the rule and signs that have been posted to that effect
for a number of years.
Because of the fact that a flour mill is a dangerous explosive
hazard, smoking in or around the premises not only endangers
the life of the smoker , but all of those working in the plant, as
well as the property itself.
We are again notifying each of you that smoking in or out
of the plant buildings on the premises of this Company is
prohibited and that any violator of this rule will be discharged
immediately . The fact that some other employee violates this
or any other rule without being caught will be no excuse for
others. It will be the purpose of the Company through its
Foremen to enforce this rule to the letter and regardless of
who it may affect.
It has also been called to our attention that certain employees
have recently been found wandering around the plant away
from their place of duty without any particular reason for so
doing. Every employee knows that he is expected to be on his
job during working hours. In the future if any employee is
found in a department other than his own, away from his place
of duty, during working hours, he shall be considered as neglect-
ing his work.
Any employees who are not actually employed in the loading
of cars who are found in cars or at other places away from their
place of duty during working hours, shall be considered as
neglecting their work.
This Rule Will Be Impartially But Strictly Enforced.
6 See footnote 5, supra
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent's contentions with respect to Luchte's
neglect of duty and violation of the rules are not supported by the
record. It was admitted that Luchte's work required him to go to
various parts of the mill and, so far as the record shows, Luchte's
absence from his principal place of duty on the occasions complained
of might well have occurred in the ordinary pursuit of his duties.
Furthermore, had Luchte's absences been as detrimental to his work
as indicated by the testimony of Liddle and McKain, who were
charged with the immediate responsibility for the operation of the
mill, it is reasonable to assume that they would have brought the
matter to his immediate attention and not left its correction to the
plant superintendent, Henkle. As for the brief conversations held
by Luchte with other employees on his trips throughout the plant,
there was no showing that they interfered with the efficient per-
formance of their work, nor did the respondent require its employees
to abstain from talking with their fellow employees during working
hours. The longest period shown to have been spent in such con-
versations was the 10 or 15 minutes Luchte spent talking to Blumeyer
about the Union. In contrast, we observe the freedom with which
supervisory employees engaged in anti-union conversations during
working hours and the closing of the plant for Hutchinson's speech.
We also find no merit in the respondent's contention that Luchte's
visit to the plant after working hours contributed to his discharge.
There was no evidence that the employees were aware that such visits
were a violation of the respondent's rules. It appears from Henkle's
own testimony that his instructions allegedly were given to the
watchmen, not to the men, and it is obvious that the "No Trespassing"
signs were not intended for the respondent's regular employees.
It is significant that specific instances relied upon by the respond-
ent to show Luchte's neglect of duty and violation of its rules have
some connection with his union activity. While we agree with the
contention made by the respondent in its exceptions that any viola-
tions of the rules by Luchte are not to be excused because of their
occurrence while engaged in union activity, we are convinced that
had Luchte not been so engaged on the occasions complained of, the
respondent would have considered his conduct in keeping with that
normally prescribed for its employees. We again note the respond-
ent's failure to find any cause for complaint in the conduct of its
supervisory employees in questioning employees as to their union
membership and engaging in other anti-union activity during work-
ing hours. Moreover, Luchte had received no complaints until `after
he joined the Union, and Henkle personally had expressed his
satisfaction with Luchte's work but a few weeks before his discharge.
LAWRENCEBURG ROLLER MILLS COMPANY 997
That the respondent also considered Luchte a worthy employee prior
to his known activity in the Union, is shown by his employment at
Henkle's home, by his transfer to the mill without a reduction in
pay following his operation in 1937, and by his selection for the
trip to Cincinnati in pursuance of the respondent's business. In
view of this commendatory attitude toward Luchte, his more than
8 years of service, and the respondent's willingness to reemploy him
if he would withdraw the charges filed with the Board, we are
satisfied, and we find, that if his union activities had not met with
the respondent's disapproval Luchte would not have been regarded
as an unsatisfactory employee or discharged with no other warning
than that evinced by Henkle's criticism shortly before his dismissal.
The respondent contends in its brief that because of his smoking
"Luchte was a constant hazard to the safety of the respondent's
mill." It appears from Henkle's testimony, however, that his prin-
cipal objection to Luchte's smoking in the watershed on December
7 was because it occurred during working hours. Henkle also testi-
fied that this occasion was the first time he had ever seen Luchte
smoking while "on duty." Luchte admitted that he habitually left
the mill twice daily to smoke, and we cannot believe that the re-
spondent was not aware of this practice. Luchte testified without
contradiction that he had smoked in the presence of Liddle on at
least one occasion several months prior to his discharge, and Liddle
admitted that he had never reprimanded Luchte for smoking. In
view of the respondent's hostility toward the Union, the paucity of
discharges for smoking during the more than 10 years preceding its
organization, and the fact that after the Union began to organize
discharges for smoking were confined to union members and obvi-
ously not impartially enforced we are convinced that Luchte's viola-
tion of the smoking rules was utilized by the respondent only as an
ostensible justification for his discharge.
When discharged, Luchte was earning 50 cents an hour and aver-
aging $20 weekly. Since that time he has earned approximately $28
at odd jobs hanging wallpaper.
We find that the respondent, on December 8, 1938, discharged,
and subsequently refused to reinstate Albert Lutche because of his
membership and activities in the Union, thereby discriminating in
regard to the hire and tenure of his employment and discouraging
membership in a labor organization ; and that by said discharge and
refusal to reinstate, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2830.-34-41-von 23-64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged discriminatory discharge of White
James W. White had been employed in the respondent 's ware-
house department since February 1937. He joined the Union about
November 11, 1938.
On December 23 White was working on the same crew as Hutch-
inson, Jack Endress, and Frank Ernest , non-union employees. While
they were preparing a boxcar for loading. White stopped working
and was standing in the doorway of the , car smoking a cigarette.
Brauer appeared and seeing White smoking said, "Well, Jini, what
have you got to say for yourself ." White replied , "I haven't got
a thing," and continued to smoke. After looking in the car, Brauer
returned to the mill where lie reported the incident to Henkle. Not
long afterwards, White was notified by another employee that he
was to report to Henkle 's office after working hours . White testi-
fied that he turned to the other three men and asked , "If he says
anything to me, all of you are going to back me up that you were
smoking? " and that they replied in the affirmative . White asked
Brauer later that day if Henkle was going to discharge him, and
protested that the other three men also had been smoking. Brauer
replied, "Well , they were not smoking when I looked in the car."
Brauer testified that when he later questioned Ernest and Hutch-
inson, Ernest replied , "You didn't see me," and Hutchinson denied
having smoked in the boxcar . White was discharged when he
reported to Henkle that afternoon.
The evidence shows that Brauer warned White about smoking
after the boxcar fire in . July 1938, and again about 2 weeks before
his discharge , after Brauer had found cigarette butts and matches
on the floor of the boxcars . On the second occasion , Brauer told both
White and Ernest , who were working together at the ,time, "There
is smoking still going on here. If I ever catch you , you are going to
be reported for it." The evidence also shows that at the conference
between the respondent and the union committee on December 21,
2 days before White was discharged , Snelling, union representative,
asked Hutchinson if the respondent would discharge "any" man
caught smoking in violation of the rules . Hutchinson replied, "We
certainly will," and Snelling then told him , "Well, I will try you
out, I will give you a chance."
Since the evidence does not establish that Ernest , Endress, or
Hutchinson , were smoking when Brauer apprehended White, we do
not find that in discharging White the respondent accorded prefer-
ential treatment to the other non-union members of the crew. A]-
though we have found that the respondent had utilized Lutche's
LAWRENCEBURG ROLLER MILLS COMPANY 999
smoking in the watershed to conceal the true motive for his dis-
charge on December 7, in view of the above statement made by
Snelling at the December 21 conference, we cannot say that there-
after the smoking rules were not impartially enforced. So far as
the record shows, Endress was the only employee discovered smok-
ing after White was discharged, but because of his more than 20
years service he was not dismissed until caught smoking for a second
time in July 1939. We do not find, however, that in overlooking
his first offense, Endress was shown such preference by the respond-
ent as would indicate a discriminatory treatment of White. White
had been employed by the respondent for less than 2 years and,
moreover, had been warned both before and after he joined the
Union that he would be discharged if found smoking in the box-
cars. In view of all the evidence pertaining to White's discharge,
we find that it was not occasioned by his membership or activity in
the Union.
D. The discriminatory lay-offs
Roy Gribben and Walter S. Rhodes were employed in the elevator
department, Gribben for over 14 years, Rhodes since March 1934.
Both had been steadily employed until their lay-off on January 12,
1939, at which time there were four men working in the elevator
department. In point of service, Gribben was junior to Harry
Christian, although both weighed wheat and did the same type of
work. Rhodes had been working as a laborer for a year longer
than Henry Ake. Rhodes joined the Union on November 11, 1938,
Gribben on December 13. Christian and Ake were also members of
the Union.
In November Gribben asked Henkle for an increase in pay.
Henkle questioned him about the Union and stated that the re-
spondent did not want a union in the plant, and that if there was a
union, Gribben would not be able to talk to Hutchinson or him
"about any affairs." Glen Faulkner, elevator foreman, also ques-
tioned Gribben several times about the Union, and about January
3, 1939, told Gribben. "Well, Pop, I heard that you was the first
to join the union." Gribben replied that lie was the last and not
the first to join.
For 3 weeks prior to their lay-off, Gribben and Rhodes had been
'employed at cleaning and repair work because of a shortage of
work in the elevator department. At quitting time on January 12,
1939, Faulkner summoned Gribben and Rhodes and said, Well, I
guess you know what it is all about, don't you? You are both laid
off, and you ought to go and talk to Henkle." When they reported
-to Henkle. lie told them that they were being laid off because work
in the elevators was slack. Rhodes requested Henkle to give them
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporary work elsewhere in the plant as had been done during
previous slack periods, but was told that there was no work in the
other departments. Rhodes reminded Henkle that the respondent
recently had hired new men in the mill, and Henkle replied that
he was laying off elevator and not mill employees. Rhodes further
commented that on the basis of seniority he and Ake should be laid
off and not Gribben. Henkle's reply was that he was laying off the
"junior operator and the senior helper." 7
Rhodes went to Faulkner's home the evening he was laid off and
during a discussion of the Union in connection with his lay-off
Faulkner admittedly told Rhodes that he had never "believed that
the union was good for anybody," or "felt that one was ever needed."
Rhodes also talked to Hutchinson the following day and reiterated
his protest made to Henkle the afternoon before. When Rhodes
referred to the new men hired in the mill, Hutchinson stated that
their lay-off would "hurt" them as much as it would Gribben and
Rhodes. He advised Rhodes to keep in touch with Henkle as to
the possibility of securing reemployment. Rhodes accordingly saw
Henkle the following day and several times thereafter, but was told
that there was no work available. About February 2 Rhodes went
to the plant and asked Henkle for a loan of $25.00. Henkle told him
that the respondent did not lend money to men not on the pay roll,
but that he would see what he could do about it personally, and that
in the meantime Rhodes was to stay away from the plant. That
same evening, Henkle went to Rhodes' home and gave him his per-
sonal check for $10.00. Thereafter Rhodes did not return to the
plant. Gribben after his lay-off had gone to Dry Ridge, Kentucky.
Commencing in June and continuing for a period of 2 or 3 months
during the harvest season the work in the respondent's elevator de-
partment greatly increases, making it necessary to hire additional
employees. On June 29, July 5, and July 9, 1939, three new em-
ployees were hired in that department. The first week in July,
Rhodes approached Faulkner on the street and told him that he
thought it unfair that Henkle was hiring new men before recalling
him and Gribben. Faulkner stated that he thought Rhodes could
return to work if he saw Henkle. Rhodes, however, believed that
he should have been notified and did not report to Henkle until ad-
vised to do so by the State Unemployment Office. Rhodes testified
that before starting to work on July 10, Henkle told him that he was
giving him "another chance" and that he would have to "pay atten-
tion to the work." Henkle denied telling Rhodes he was getting
"another chance," but admitted that he told him, "I want you to do
your work right, obey the rules of the company." Gribben, who was
' The evidence shows that the respondent applied no system of seniority in its plant.
LAWRENCEBURG ROLLER MILLS COMPANY 1001
notified by letter to report for work on July 15, was also told by
Henkle to obey the rules. Henkle's explanation for his admonition
to Gribben and Rhodes was that it was a customary procedure when
employing men.
On July 14, 1939, the evening before he returned to work, Gribben
visited the plant and stopped to talk to Brauer. They discussed his
lay-off, and Gribben stated that he did not think he should have been
laid off in the first instance. Brauer remarked, "Well, can't you
see through it yet V" Brauer denied making this statement, although
he admitted having talked to Gribben on this occasion about his
return to work. We find, as did the Trial Examiner, that Brauer
made the statement attributed to him by Gribben. While Gribben
was talking to Faulkner in his office shortly thereafter, Rhodes
passed by wearing a union button. Faulkner remarked, according to
Gribben, that he was doing the "wrong thing" by wearing the button
in the plant because Henkle would not "stand for that," and that
Rhodes would "probably be pushed out as soon as this rush is over."
Gribben further testified as follows : About August 12, after Gribben
had returned to work, Faulkner asked him if he had paid his dues in
the Union. Gribben replied affirmatively and Faulkner said, "Well,
I hope you haven't. I hope you are behind, because we have been
thinking for quite a while you would just drop it." He also stated
that the Union had not done Gribben "any good," and that the Union
would be unsuccessful because "a money place like this will always
win out." Faulkner denied having any conversation with Gribben
about the Union after his return to work. In view of Faulkner's
admitted questioning of Gribben about the Union prior to his lay-off,
and his disparagement of the Union to Rhodes, as described above,
we find, as did the Trial Examiner, that Faulkner made the statements
testified to by Gribben.
Both Gribben and Rhodes were reemployed at the same rate of
pay as received prior to their lay-off. Gribben, however, was assigned
to general work in the elevator department and was not permitted to
weigh wheat as he had done previously. After Gribben's return, the
respondent qualified under the United States Warehouse Act, which
requires that all weighers be licensed. Faulkner instructed Christian
and Rubel, who was also a weigher when the respondent operated a
third shift, to obtain licenses, but said nothing to Gribben about se-
curing one. Gribben has weighed no wheat since his return to work.
The respondent contends that the lay-off of Gribben and Rhodes
was attributable solely to a lack of work in the elevator department.
Faulkner and Henkle testified that they had discussed the lack of
work in the elevators and the possibility of laying off Gribben and
Rhodes 3 weeks prior to January 12, and that they finally decided to
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay off Gribben and Rhodes because Christian was a more experienced
weigher than Gribben, and Ake a better laborer than Rhodes. The
respondent's records show that January 1939 was unusually slack and
that the respondent handled approximately 85,000 bushels of grain
less that month than in January 1938. In February and March 1939,
however, the respondent handled approximately 150,000 bushels more,
and also slightly more from April to June, than for the same periods
in 1938. In January, shortly after Gribben and Rhodes were laid
off, Charles Lewis, a coal tender in the power department, was trans-
ferred to the elevators for at least one 48-hour week and on other
occasions for 2- or 3-day periods. During the weeks ending Febru-
ary 16 and 23, 1939, Dawson Bills also was transferred from repacking
to the elevator department for 82 hours, and thereafter worked in
that department intermittently until about April 1 when, with the
exception of a 2-week period, his transfer became permanent.8 A
tabulation introduced in evidence by the respondent shows that, with
the exception of March, an average of four men were employed in the
elevator department from January to June 1939, and that notwith-
standing the fact that the time spent by Lewis was admittedly not
included in the computation, the average number of hours per man
was but 6 hours less per month than in 1938.
In justification of his refusal to transfer Gribben and Rhodes to
some other department, Henkle testified that they were not physically
able to perform the heavy work required in the warehouse and that
they had no mill experience. He further testified that he had
received reports from the foremen that Gribben and Rhodes "were
not adapted to work" in the mill, warehouse, or packing room.
Gribben, however, testified that he had been transferred to the mill
for 2 or 3 weeks on one occasion, and that he had loaded flour and
feed and tied flour sacks "lots of times." He further testified that
once in preparation for prospective work on one of the packers he had
spent several evenings after working hours learning its operation,
but that Faulkner recalled him to the elevators and Rhodes was
transferred to the packer in his stead. Rhodes testified that he also
had tied flour sacks, loaded flour and feed, and in addition had run
the feed packer and worked on the maintenance crew when reroofing
the warehouse. Henkle admitted that Gribben and Rhodes had
"helped a little bit in the warehouse in times gone by," but that it was
only on "small package goods." He further testified that at the time
of their lay-off there were no jobs "open" in the other departments,
and that had Gribben and Rhodes been transferred other employees
8 As we have found above, Bills had been discriminatorily transferred from packing
to repacking The record shows that his transfer to the elevator department carried
with it the same rate of pav that he received after his demotion to repacking.
LAWRENCEBURG ROLLER MILLS COMPANY 1003
would have been forced out of employment . The record shows that
from December 12 to December 27, 1938, the respondent hired three
new employees in the warehouse and two in the mill . In 1939 three
more men were employed in the warehouse , Bingaman and Daugherty
were reinstated on February 20 and May 17, respectively , and Joseph
Lipps, a new employee, was hired on March 20.
We are not persuaded that the decline of work in the respondent's
elevator department in January explains the lay-off of Gribben and
Rhodes. It is clear that shortly after their lay-off there was suffi-
cient work in that department for at least one man , and thereafter,
according to the respondent 's own records , possibly two on a shorter
hour basis . It is equally clear that there also was sufficient work
available for Gribben and Rhodes in the mill and warehouse had they
been transferred to these departments. Their transfer during pre-
vious slack periods in the elevators contradicts Henkle's disparage-
ment of their qualifications for that type of work. Indeed, the re-
spondent excepts to the failure of the Trial Examiner in his Inter-
mediate Report to find: "That on the occasions that Rhodes and
Gribben were transferred to the mill during slow seasons in the ele-
vator, there was work in the mill which needed to be done and which
would have required extra help to be hired had not said employees
been transferred to the mill." The proposal of such a finding is not
only an admission that Gribben and Rhodes were capable of perform-
ing other work, but also that it would have been in keeping with the
respondent 's normal procedure if it had transferred them in Decem-
ber when there was work in both the mill and warehouse which
"needed to be done ," as evidenced by the hiring of five additional
employees. The respondent argues, however , that these new em-
ployees had been hired to fill permanent positions before Gribben and
Rhodes were laid off, and further that Gribben and Rhodes were not
"fitted for steady employment in the mill ." As for the first conten-
tion, the record shows that at least one man was hired in the mill
after the probability of laying off Gribben and Rhodes had been dis-
cussed. Moreover, in February and March 1939, two more men were
hired in the warehouse , including Charles Bingaman , whom the re-
spondent but 3 months before had allegedly discharged for smoking
and misconduct." Assuming that Gribben and Rhodes were so unqual-
ified, as is secondly contended , there is no showing that they requested
"steady employment" in another department ; their only desire was
to be temporarily employed until their regular work was available.
Although Henkle denied the existence of any general policy to trans-
fer employees to other departments during slack periods , the testi-
mony of Inglis, who for 20 or 25 years prior to becoming time-
0 See footnote 5, 8fVra
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
keeper was foreman of the elevator department, appears in contra-
diction. Inglis testified that, when he was foreman, if there was
"a fellow in the elevator and we knew it was going to be slack, if there
was an opening in the mill we would give him preference." The re-
spondent had employed Gribben steadily for over 14 years, Rhodes
for approximately 4, and their prior transfer during these years
shows that such a policy existed up to the time of their lay-off.
Moreover, from Henkle's own testimony, it appears to have been con-
tinued thereafter. In explanation of his failure to recall Gribben or
Rhodes in April when work in the elevators became sufficient to
transfer Bills permanently to that department, Henkle testified,
"Well, it was a matter of judgment on my part. I thought Bills
could do the work and in the milling business today we have to look
to economy. Now, if you have got help inside of the plant that can
do a job that is enough. You can use that help to do it." We do
not believe, therefore, that Henkle's refusal to accord this customary
preference to employees with as many years of satisfactory service
as Gribben and Rhodes is explained by the specious reasons alleged
therefor. We are persuaded by the evidence and find that the real
reason lay in the hostility toward the Union which dominated the
respondent's conduct during this period.
In its brief, the respondent cites as a "test of whether or not
Gribben and Rhodes were laid off and not sooner reinstated because
they were union members," the fact that all four employees in the ele-
vator department had joined the Union. The respondent thereby
infers that because it did not discharge Christian and Ake the lay-off
of Gribben and Rhodes could not have been discriminatory. While
such a factor is to be considered, it is not determinative. We also
find no merit in the respondent's contention that it did not know prior
to their lay-off that Gribben and Rhodes were members of the Union.
It appears from Faulkner's testimony that he knew Gribben was a
member, and in view of his hostility toward the Union, his question-
ing of union employees as described above, and the statements made
by him to Rhodes after his lay-off, we find that Faulkner knew that
both Gribben and Rhodes had joined the Union.
At the time of his lay-off Rhodes was earning 43 cents an hour
and averaging $18.92 a week. Since his discharge he had earned ap-
proximately $108.00 at other employment. After his lay-off, Gribben
earned $1.00 a week working on his father-in-law's farm. He also
received money from the State in unemployment insurance benefits.
We find that the respondent laid off Roy Gribben and Walter S.
Rhodes on January 12, 1939, and refused them reinstatement until
July 10 and July 15, 1939, respectively, because they joined and
assisted the Union, and that the respondent thereby discriminated in
regard to the hire and tenure of employment of said employees and
LAWRENCEBURG ROLLER MILLS COMPANY 1005
discouraged membership in a labor organization; and that by such
acts the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by 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, A, B, and D 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order that it cease and desist from such
practices and, to effectuate the purposes of the Act, we will order
the respondent to post notices stating that it will not engage in the
conduct from which it is ordered to cease and desist. The respond-
ent's employees will thus be assured that they may exercise the rights
guaranteed by the Act without fear of interference, restraint, or
coercion. As a further means of removing and avoiding the con-
sequences of the respondent's unfair labor practices, we shall order
the respondent to take certain affirmative action, more particularly
described below.
We have found that the respondent discriminatorily discharged
and subsequently refused to reinstate Albert Luchte because of his
union membership and activity. We shall therefore order the re-
spondent to offer him reinstatement to his former position without
prejudice to his seniority and other rights and privileges. Although
the respondent offered to reemploy Luchte if he should withdraw the
charges filed with the Board, it is clear that this placed no obligation
upon Luchte to forego redress for his wrongful discharge and return
to work upon the respondent's terms. We find nothing in the cir-
cumstances surrounding Luchte's refusal of the respondent's offer
that would justify a denial of the remedy we shall order in his case.
In its brief, the respondent argues that Luchte should not be rein-
stated because he testified that if reemployed he would continue to
smoke. In reinstating Luchte, however, we do not mean that the
respondent is obliged to retain him in violation of its rules. If the
respondent now enforces its smoking rules without discrimination,
Luchte will be subject to discharge for a violation thereof as other
employees of the respondent.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have also found that the respondent discriminatorily laid off
and subsequently refused to reinstate Roy Gribben and Walter S.,
Rhodes. However, since the respondent has already reinstated Grib,
ben and Rhodes, we shall not order the respondent to reinstate them.
We have further found that the respondent's demotion of Dawson
Bills from "packing" to "repacking" work constituted an unfair
labor practice. The respondent took exception to a similar finding
by the Trial Examiner in his Intermediate Report on the ground
that the finding did not come within the allegations of the complaint.
However, since the respondent participated in the litigation of the
issue and at no time applied to the Trial Examiner for a continuance
of the hearing so that it might make additional preparation for the
presentation of its defense, it cannot claim prejudice by the failure
of the complaint specifically to allege Bills' demotion.1° We shall,
therefore, in order to remedy the effect of this unfair labor practice,
order the respondent to reinstate Bills to his former position as a
"packer," or if such position is not available, to a substantially equiv-
alent position without prejudice to his seniority and other rights
and privileges.
We shall also order the respondent to make whole Albert Luchte,
Roy Gribben, and Walter S. Rhodes, for any loss of pay they have
suffered by reason of the respondent's discrimination by payment to
each of them a sum of money equal to the amount which he normally
would have earned as wages from the date of the discrimination to
the date of the offer of reinstatement, less his net earnings 11 during
that period. We shall enter the same order with respect to Dawson
Bills, except that since the Trial Examiner made no recommendation
with respect to his reinstatement as a "packer," we will exclude from
10 See Fort Wayne Corrugated Paper Company v National Labor Relations Board,
111 F. (2d) 869 (C C A 7), enf'g Matter of Fort Wayne Corrugated Paper Com-
pany and Local No 182, International Brotherhood of Pulp, Sulphite, and Paper Mill
Workers, 14 N. L. R. B 1 ; Cf. National Labor Relations Board v . Piqua Munising Wood
Products Co, 109 F. (2d) 552 (C. C A. 6), enf'g Matter of Piqua Munising Wood Prod-
ucts Company and Federal Labor Union Local 18787, 7 N i, R B 782 ; National Licorice
Company v National Labor Relations Board , 60 S Ct 569, aff'g as modified 104 F. (2d) 655
(C C. A 2), enf'g as modified Matter of National Licorice Company and Bakery and Con-
fectionery Workers International Union of America, Local Union 405, Greater New York
and Vicinity, 7 N L. R B 537
it By "net earnings" is meant earnings less expenses. such as for transportation, room and
board, incurred by an employee in connection with seeking work or working elsewhere than
for the respondent , which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seekine employment elsewhere . See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber
and Sawm 11 Workrs Union, Local 2590, 8 N. L R B 440 We shall order the respond-
ent to deduct from the back pay due under our Order monies received by an employee
for work performed upon Federal, State , county, municipal , or other work-relief projects
during the period for which we are ordering the respondent to pay such employee back
pay and to pay such deductions over to the proper fiscal agency of the Fedeial, State,
county , municipal , or other government or governments which supplied the funds for said
work-relief projects.
LAWRENCEBURG ROLLER MILLS COMPANY 1007
the computation of his back pay the period from the date of the
Intermediate Report to the date of the order ,herein . This is in
accord with our usual rule: 2
Upon the basis of the foregoing findings of fact and upon the entire
record in this case, the Board makes the following:
CONCLUSIONS or LAW
1. Flour Mill & Grain Elevator Employees Union No. 21840, affil-
iated with the A. F. of L., 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 Albert Luchte, Roy Gribben, and Walter S. Rhodes, thereby
discouraging membership in Flour Mill & Grain Elevator Employees
Union No. 21840, affiliated with the A. F. of L., the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
-within the meaning of Section 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 maintained surveillance over union meet-
ings and has not thereby engaged in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
6. By discharging and refusing to reinstate James White, the
respondent has not engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act, as alleged in the complaint.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Lawrenceburg Roller Mills Company, Lawrenceburg, Indi-
ana, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Flour Mill & Grain Elevator
Employees Union No. 21840, affiliated with the A. F. of L., or any
other labor organization of its employees, by discharging, laying off,
or refusing to reinstate any of its employees, or in any other manner
22 Matter of E. tt Hafelfinger Co. Inc , and United Wall Paper Crafts of North Amet ica,
Local No. 6 . 1 N. L. R B 760.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating in regard to hire or tenure of employment of its
employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Albert Luchte, immediate and full reinstatement to
his former position, and to Dawson Bills immediate reinstatement
to his former position as a "packer" or to a substantially equivalent
position, without prejudice to their seniority and other rights and
privileges ;
(b) Make whole Albert Luchte, Roy Gribben, and Walter S.
Rhodes, for any loss of pay they may have suffered by reason of the
respondent's discrimination by payment to each of them a sum of
money equal to that which each would have earned as wages during
the period from the date of the discrimination to the date of the
offer of reinstatement, less his net earnings 13 during said period ;
deducting, however, from the amount otherwise due each of the said
employees, monies received by said employees 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;
(c) Make whole Dawson Bills for any loss of pay he may have
suffered by reason of his transfer from "packing" to "repacking"
work by payment to him of a sum of money equal to that which he
normally would have earned as a "packer" from the date of his trans-
fer to January 20, 1940, the date of the Intermediate Report of the
Trial Examiner, and from the date of this Order to the date of the
offer of reinstatement, less his earnings while employed elsewhere
in the respondent's plant during said period;
(d) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating: (1) that the re-
spondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2)
38 See footnote 11, supra.
LA`VRENCEBURG ROLLER MILLS COMPANY 1009
that the respondent will take the affirmative action set forth in para-
graphs 2 (a), (b), and (c) of this Order; and (3) that the respond-
ent's employees are free to become or remain members of Flour Mill
& Grain Elevator Employees Union No. 21840, affiliated with the
A. F. of L., and that the respondent will not discriminate against any
employee because of membership or activity in said labor organization ;
(e) Notify the Regional Director for the Eleventh Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply therewith;
AND IT IS rURTHER ORDERED that the complaint, in so far as It
alleges that the respondent, by maintaining surveillance over union
meetings, has engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act, and by discharging and refusing to
reinstate James White and George Daugherty, has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act, be, and it hereby is, dismissed.