Arbie Mineral Feed Co.

National Labor Relations Board - Board Decisions

Apr 27, 1970

182 N.L.R.B. 146 (N.L.R.B. 1970)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arbie Mineral Feed Co. and General Drivers and Helpers
Local Union No. 790, affiliated with International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case 18-CA-2735
of the Act will be effectuated by the imposition of
a bargaining order.
ORDER
April 27, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On January 21, 1970, Trial Examiner Eugene E. Dixon
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Respondent filed timely exceptions, and a brief in support
thereof, to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Decision, the exceptions
and the brief, and the entire record in this case, and
hereby adopts the findings,' conclusions,' and recommen-
dations of the Trial Examiner, with the following addi-
tion.
The Trial Examiner found that Respondent's conduct
required the issuance of a bargaining order, citing
N. L.R.B. v. Gissel Packing Co. ' We agree. Respondent's
pattern of unlawful conduct, as found by the Trial
Examiner, was of such a nature as to have a lingering
coercive effect. Therefore, use of traditional remedies
is unlikely to ensure a fair or coercion-free election.
We are persuaded that the authorization cards executed
by a majority of the employees in the unit represent
a more reliable measure of employee desire on the
issue of representation in this case, and that the policies
' Respondent's exceptions directed to the credibility resolutions of
the Trial Examiner are without merit. The Board will not overrule
the Trial Examiner's resolutions as to credibility, unless a clear prepon-
derance of all relevant evidence convinces us that they are incorrect.
On the entire"record, such a conclusion is not warranted herein Standard
Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A
2).
2 We adopt the Trial Examiner's conclusion that Breuklander was
discharged for his union activity and that the reason given was pretextual,
but in so holding we rely primarily on Respondent's refusal, on request,
to make a nondnvmg position available to Breuklander, despite Respond-
ent's undisputed need for additional production workers and Breuklander,
despite Respondent ' s undisputed need for additional production workers
and Breuklander's previous satisfactory experience with Respondent
as a production employee
We reach this conclusion without adopting or utilizing the Trial Examin-
er's standard, i.e., that Respondent's defense to Breuklander's discharge
must be without flaw and relatively unassailable
' 395 U S 575
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and hereby orders that Respond-
ent, Arbie Mineral Feed Co., Marshalltown, Iowa, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Charles Wogan and Gerald Breuklander
immediate and full reinstatement to their former jobs,
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole in
the manner set forth in the section entitled The Remedy.
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraph's accordingly:
"(b) Notify the above=named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement, upon application, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces."
3. Substitute the following for the sixth indented para-
graph of the notice:
WE WILL offer to Charles Wogan and Gerald
Breuklander immediate and full reinstatement to
their former jobs, or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges,
and make them whole for any loss of pay suffered
as a result of our discrimination against them.
4. Insert the followitg as the seventh indented para-
graph of the Appendix:
WE WILL notify Charles Wogan and Gerald
Breuklander if presently serving in the Armed
Forces of the United States of their right to full
reinstatement, upon application, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after dis-
charge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor Rela-
tions Act, as amended (61 Stat. 136), herein called
the Act, was heard at Marshalltown, Iowa, on July
22 and 23, 1969. The complaint, dated May 8, 1969,
based upon charges filed and served on February 18,
1969, was issued by the Acting Regional Director for
Region 18 (Minneapolis, Minnesota), on behalf of the
General Counsel of the National Labor Relations Board
(herein called the General Counsel and the Board).
182 NLRB No. 24
ARBIE MINERAL FEED CO
The complaint alleged that Respondent had engaged
in and was engaging in unfair labor practices by various
specified coercive conduct, including its failure to bargain
with General Drivers and Helpers Local Union No
790, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Charging Party or the Union),
as the bargaining agent of the majority of its employees
in an appropriate unit and by discriminatorily discharging
its employees, Charles Wogan and Gerald Breuklander,
thus violating Section 8(a)(1), (3), and (5) of the Act
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices
Upon the entire record and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I RESPONDENT 'S BUSINESS
At all times material Respondent has been an Iowa
corporation engaged in the production and sale of animal
feed , maintaining its principal offices in Marshalltown,
Iowa During the year preceding issuance of the com-
plaint Respondent in the course and conduct of its
business shipped goods and materials valued in excess
of $50 ,000 directly to points outside the State of Iowa
At all times material herein Respondent has been an
Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION
General Drivers and Helpers Local Union No 790,
affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
at all times material herein has been a labor organization
within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
Union Activity
In the fall of 1968, dissatisfaction having arisen among
Respondent's truckdrivers regarding a change in their
wage scale, someone asked Gerald Breuklander, a truck-
driver of some 2 years' tenure with Respondent, if
he could contact the Union As a result of a telephone
call from Breuklander to the Union's business agent,
Ivan McFarland, Breuklander and fellow driver Howard
Sawyer visited the union office about November 1 and
asked McFarland if he would try to organize Respond
ert's drivers A meeting was arranged for Sunday,
November 10, at the union hall In the interim Breuklan-
der talked to employees about the matter Among them
was production worker Charles Wogan who, when he
learned about the union meeting, asked if he could
attend it too
The November 10 meeting was held as scheduled
Wogan and one other production worker, Gilbert Mob-
147
ley,' attended along with several of the drivers At
this meeting Wogan, Breuklander, and Mobley signed
union authorization cards At the request of Wogan
and Mobley it was decided at this time that the organizing
effort would be directed to the entire plant rather than
just to a unit of truckdrivers
Another union meeting for the entire plant was sched-
uled for November 17 About 20 employees attended
this meeting McFarland discussed the things that the
Union would try to get into a contract with Respondent
He also had Wogan come up to the rostrum to act
as a "sort of recording secretary" to make note of
various things the men might bring up 2 McFarland
also passed out authorization cards at this meeting
Only one employee, James C Phillips, signed The
rest preferred to "think it over" because they were
afraid that "If they joined the Union they would
lose all their overtime and would be cut to 40
hours, and would lose their profit sharing " It
was at this meeting that Wogan took a supply of authori-
zation cards which he attempted to get signed in the
plant He was unsuccessful because "Everybody seems
to be against it "
Another union meeting was held around December
1 Just a few people attended-among them were Breuk-
lander, Wogan, and Mobley 3 At this time McFarland
indicated that they would "have to get the men up
to the meeting or else give it up " On January
5, 1969, the next union meeting was held, attended
by 12 to 14 employees Three people, Robert Shively,
Gerald Breuklander's son, Terry, and Charles Hanne
gan,4 signed cards at this meeting The next meeting
was held on January 12 Not many employees attended
Those that did said that the others "were afraid to
come because they were afraid they would be fired
if they were seen at the union office "I Among those
attending were the two Breuklanders , the discharged
Wogan, Larry Fisher, and John Whaley, Jr The latter
signed an authorization card at this meeting
By January 17, in addition to cards he had received
from people who signed them in his presence at the
union hall, McFarland had received a group of cards
which had been solicited by Breuklander away from
the hall and had been delivered to McFarland at the
union office by Breuklander's wife With these cards
in hand, on January 17 McFarland had a letter typed
to Respondent requesting recognition as the bargaining
agent of the Respondent's production and maintenance
workers and truckdrivers The letter also offered to
' At this time Mobley was a rank and file employee During the
last week of November he was promoted to the supervisory position
of production foreman at a 40 cent per hour increase
Y Several of the men apparently raised some question about Wogan s
so acting He indicated to them in effect that if they wanted to take
over the assignment they were welcome to it
3 Mobley s attendance at this meeting is somewhat unusual considering
that he was now a supervisor
" Hannegan s employment status is in issue and will be discussed
later
s Charles Wogan had been discharged on December i As indicated
his discharge is alleged to be discriminatory within the meaning of
the Act and will be discussed later
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submit the authorization cards of the employees for
an impartial examination and verification of their authen-
ticity McFarland took the letter and went to Respond
ent's plant intending to deliver it personally to Respond-
ent As to what happened when he got there he testified
credibly and without denial as follows
I went up to the window and asked the secretary
if I could see Mr Jim Bagnall and she told me
it was Mr Jim Bagnall standing beside me So
I turned around and introduced myself and I tried
to hand the letter of recognition to Mr Bagnall
which he refused to accept, and I told him he
should read it because I represented a majority
of his people and I was asking for recognition,
and he said he didn't believe it and (I) should
take it to the National Labor Relations Board
At this point McFarland returned to his office As
to what happened then the parties stipulated as follows
after Union Representative McFarland
returned from the Company's offices he came back
to his office and sent a letter to the Region 18
of the NLRB, Minneapolis, and sent along with
that letter a copy of the representation petition
which he has already filed and which Mr Wilson
has put into evidence," and then a list of the people
that he had authorization cards from, and the
authorization cards which have already (been) put
in evidence by the General Counsel, marked as
General Counsel's Exhibit 2, and, further, that
the cards were received by the Region 18 of the
NLRB in Minneapolis on the morning of January
20, 1969
Interference, Restraint, and Coercion
Larry Fisher, a reluctant witness' called by the General
Counsel, testified that in mid-November 1968 as he
was coming out of the breakroom" he overheard Charles
Wogan tell Plant Superintendent Kenneth Penrod that
he had "signed up" for the Union at its first meeting
in reply to Penrod's inquiry of Wogan if he was a
member of the Unions In his testimony Wogan corrobo-
" Enigmatically the filing date shown on the RC petition is January
20 1969 The petition besides calling for a bargaining unit of all
production and maintenance employees specifically included plant opera
tors laborers truckdrivers warehousemen working foremen or lead
men and excluded office clerical employees professional employees
sales personnel guards and supervisors The description of the unit
in the complaint does not specifically include truckdrivers but it is
clear that Respondent does not question their inclusion in the unit
since the RC petition included them and so did the Union s letter
demanding recognition Moreover in the list of unit employees submitted
by Respondent to the Board s Regional Office by letter on January
27 1969 truckdrivers were included
' On the stand Fisher admitted that he had not wanted to testify
and had appeared at the hearing only after being subpenaed When
asked by the General Counsel why he did not want to testify he
answered I didn t feel I had anything to say that would be helpful
for you or Mr Bagnall but like I told you the Company has been
real good to me and I really appreciate it
Also referred to as the lunchroom
On cross examination Fisher was asked about his testimony on
direct when he and Chuck and Penrod were talking He answered
I warn t talking to them I was standing there by them which
rated the fact that Penrod had asked him if he had
joined the Union to which he had replied that he had
signed a union card According to Wogan's version,
however, he did not indicate to Penrod when he had
signed the card and testified that this interrogation took
place in the mixing room
Fisher also testified about a discussion in the break-
room in late November involving himself, Wogan, and
Foreman Dick Moore10 as follows
Well my best recollection, Chuck and I asked
Dick what he thought of the union, and he told
us, we asked his personal opinion of it, and he
said, well, he has had dealings with unions before,
and he thought as far as we were concerned, it
wouldn't be too good, it was too small, not enough
employees, and if the Union did get in, we would
probably be losing a lot of our benefits like our
Christmas bonus, you know, like our profit sharing
and other things like that
Moore also told them at this time that they "would
probably get cut down to 40 hours "11 On cross-examina-
tion Fisher admitted that Moore had not told them
that they "shouldn't belong to the Union" and added
that "he always said it was up to us guys whether
we wanted to or not He said `I can't say either way
about it "'
Wogan corroborated the foregoing testifying in addi-
tion that Moore said "that the way the Company felt
about the Union they probably wouldn't like to
go along with it " He also told the employees that
the Company "would be cutting on the hours and the
Christmas parties and the Christmas bonuses" and that
the employees would be losing money in the long run
Wogan also testified credibly and without denial about
a conversation with Moore in the breakroom after the
first union meeting as follows
Dick asked me what happened at the meeting,
and I told him that I signed a card, and saw
it, and, then, he went on to tell us that the Union
wouldn't do any good, that they would lose all
the overtime and cut down on the profit sharing
and several other things
Gerald Breuklander (the alleged discriminatee herein)
testified that he had had several conversations with
Moore about the Union He described one in particular
that occurred in the lunchroom in the presence of his
son Terry, Robert Shively, young Whaley, Larry Fisher,
and Robert Shafer According to Breuklander they were
"just talking about the Union, what benefits it had "
Moore did not think it had any and indicated that if
was substantially in accord with his testimony on direct When asked
later on cross whether it was Moore or Penrod that Wogan was talking
to on this occasion he answered If I remember right it was Dick
(Moore) he was talking to
11 At first Fisher limited the participants in this discussion to the
above three Later he added Breuklander testifying if I remember
right Jerry Breuklander was in there talking to Dick and I don t remember
just all what happened because I wasn t paying any attention to it
Fisher s lack of memory here and elsewhere in his testimony was
indicative of his admitted reluctance to testify
11 At this time the plant was working a 48 hour week
ARBIE MINERAL FEED CO.
the Company found out that the employees "were push-
ing the Union (they) would be fired for it." Moore
also, said that he had had dealings with unions before
and stated that unions "didn't give . . . any benefits"
in a plant like Respondent's. According to Breuklander's
further testimony Moore told him (apparently privately)
that if the Company found out he was trying to get
the Union in he "would wind up getting fired for it."
In his testimony Breuklander admitted that he had made
several efforts to get Moore to sign up with the Union.
Robert Shively, another witness called by the General
Counsel, testified that in late November 1968 as he
was cleaning out the pellet mill on the night shift Moore
came up to him and started talking to him about the
Union. Moore told him that if the Union got in the
employees would lose their overtime work. Shively also
testified about a conversation with Penrod in January
after Union Representative McFarland had sought recog-
nition from Respondent as follows:
I was over by the pellet mill again and Mr. Penrod
called me up from what use to be the mineral
room, which nobody was, present, and told me
if I didn't quit talking about the Union we would
be cut down to 40 hours and we wouldn't get
no overtime, and I says we was pretty busy at
the time, I said they can't get the feed out in
40 hours, and he said they would go to a third
shift.
Moore in his direct testimony admitted having had
"discussions" with Fisher "about the Union activities
at the plant" but claimed that Fisher initiated these
discussions saying he wanted Moore's opinion "about
the Union coming in." About what he told Fisher at
this time Moore testified as follows:
I told him that if the Union come in there was
a possibility that we could lose some of our benefits,
we could go down to a 40-hour week, but that
doesn't mean that we will, and anything I did
tell him I didn't want him to change his mind
in any way, he still had to make up his own
mind. It just was my own personal opinion.
Although testifying that Breuklander had attempted
to recruit him for the Union, Moore denied initiating
or starting any discussions with Breuklander about the
Union. He also denied telling Breuklander that he would
be discharged if he was discovered pushing the Union.
In his testimony Penrod answered in the affirmative
when he was asked by Respondent's counsel if in the
last 2 months of 1968 and early 1969 any of the employees
"approached (him) to discuss the matter of a union
at the plant." He testified that there were at least
three such occasions involving mostly younger employ-
ees who had not been "employed there too long."
One of these12 was Robert Shively about which he
testified as follows:
Well, we was talking, I was trying to tell him,
I didn't think we needed a union, it wouldn't help
us any, we could lose this and lose that, I couldn't
12 The only one discussed by Penrod in his testimony
149
say that we would, maybe we would gain and
maybe we wouldn't, but I wouldn't see where
we would gain any.
Penrod also denied ever having had any discussion with
Wogan or Fisher that he could "recall."
8(a)(1) Conclusions
On the basis of the foregoing testimony and consider-
ing Fisher's obvious reluctance to testify to anything
adverse to Respondent's interest (which tends to lend
credence to anything he did so testify) I find that (1)
Penrod coercively interrogated Wogan regarding his
union membership; (2) Moore in late November threat-
ened employees with loss of overtime, Christmas bonus-
es, and other benefits if the Union got in;13 and (3)
Moore made similar threats to Wogan after the first
union meeting and also coercively interrogated Wogan
as to what happened at that meeting. I also credit
Shively's virtually undenied testimony that after the
Union's demand for recognition Penrod threatened him
with loss of overtime if the Union came in. Considering
the threats of discriminatory action by Respondent as
found above, I also find in accordance with Breuklander's
testimony that Moore threatened that employees would
be discharged if the Company found out they were
pushing the Union.
The complaint alleged that Respondent (1) advanced
the date of its 1968 Christmas party, (2) advanced the
time that it granted 1968 bonuses to its unit employees,
and (3) granted pay increases to various employees
in January 1969 all for the purpose of discouraging
the employees' union activity. Evidence offered by
Respondent that the date of the 1968 Christmas party
was set almost a year previously clearly refutes (1)
above. As for the other allegations the most that the
evidence, does is to raise a suspicion that Respondent's
purpose was as alleged. I shall make no finding of
unfair labor practices on the basis of the foregoing.
Discrimination
1. Wogan
Charles Wogan worked for Respondent from July
1967 to December 5, 1968, when he was discharged.
His union activity and the leading part he played in
the union campaign have already been noted. One night
in September 1968 when Wogan was on the night shift
his wife came to the plant and informed him that they
11 I deem it immaterial whether Moore voiced his comments in the
positive or the conditional or whether he qualified them as being his
personal opinions Nor would the fact that Moore did not initiate
the conversations about the Union insulate Respondent from the legal
effect of any coercive comments Moore made therein Moreover,
Moore's telling the employees that their belonging to a union was
a matter of their own choice does not nullify or neutralize the coercive
effect of the threats he had lust made If anything his comment in
this respect had a tendency to accentuate the coerciveness of his
remarks. In effect he was saying, "Its your choice if you want to
be stupid enough to join a union and jeopardize the economic benefits
you are enjoying in your employment "
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had to go out and get her car which she had left
out on the highway between Des Moines and Marshall-
town with a flat tire. According to Wogan's testimony
Foreman Moore suggested that they could use the compa-
ny truck and drive down to change the tire after the
shift ended at 2 a.m.14 This they did, accompanied
by Moore. Before they left the plant, Wogan filled
the truck with gasoline from; the company pump.
According to Wogan's further testimony, his wife's
car was parked about 30 miles out of Marshalltown.
When they got there they had to take the spare, which
was flat, to a truckstop to be fixed. When they got
back to the plant Wogan refilled the gas tank from
the company pump to determine how much gas he
had used and put the truck in the plant after Moore
had unlocked the door.
The next day, according to Wogan's direct testimony,
he went to see Bagnall , to tell him that they had used
the truck and to pay for the gasoline. This interview
took place in the reception area. Bagnall did not like
the idea of their having used the truck and indicated
that he did not want it taken for such a purpose again.
He also told Wogan that "it would be $7" for the
use of the truck. Wogan did not have $7 on him .and
Bagnall apparently said he would take it out of Wogan's
check.
On cross-examination Wogan testified that he thought
the charge made for the use of the truck "was quite
a bit" and told Bagnall so. Wogan also categorically
denied on cross-examination that he had said that the
Company had "cheated" him but he admitted that he
had let it generally be known about the plant that he
"didn't think it was fair that they would charge . . .
that much" for the use of the truck. '
About this matter Bagnall testified that he told Wogan
that his taking of the truck was a violation of company
policy and that "nobody ever used the company trucks
without permission ." Bagnall also testified about a sec-
ond conversation he had with Wogan about this matter
as follows:
Approximately 2 weeks later I learned that he had
been informing the other plant personnel and the
truckdrivers, as well, that we had been unfair with
him on what we had charged him, for using the
truck to go to Des Moines, and he had been making
derogatory remarks about the company and me
in particular and the management.
Accordingly , Bagnall talked to Wogan again in the con-
ference room and told him that he "was unhappy about
what (he) had heard concerning the comments about
management and the company" and told Wogan that
he "wanted them to stop at once." At the end of
the interview , according to Bagnall ' s further testimony,
after Wogan had turned around and was walking through
the door , he said he "wouldn ' t take the damn thing
anyway." Thereafter Wogan's attitude did not improve.
About the circumstances of his discharge on December
5, Wogan testified as follows:
. . . On December 5 when I went to work, I
had my check stub and we were looking at them,
and Larry Fisher noticed that he had gotten paid
$1 more than I did , and we got talking about
it and Larry and Dick both said I should go up
and see Ralph and see what had happened. So
I went upstairs and I talked to Ralph about it,
asked him if he could show me if they made a
mistake or what happened, and he brought back
my timecard and said if I could get any more
time than what they got, they would pay me for
it. I said, "that isn't what I asked you, I just
asked you why they got more pay than I did."
He didn't say, so I got up and went back to
work, and on the way out Terry Breuklander and
Jim Philips were setting there , they was going to
see Ralph about something , and they asked if I
found out anything . . . about why they got paid
an hour more than I did . I said , "no, I think
it is a bunch of crap,'," and I went on downstairs
to go to work . . . then, I got a call that said
I was supposed, to go back upstairs, and when
I got up there they asked me to wait in the reception
area and then they called me back to Mr. Bagnall's
office and Ralph was there and Jim said because
of my language and my poor attitude that they
couldn't keep me around any more.
According to Wogan's further testimony he was also
told that since he was so friendly with Moore they
would "just as soon (he) didn't come down here any
more ." He thereupon went to his locker followed by
Bagnall who stood there and watched Wogan as he
cleaned it out.
About this matter Bagnall testified that when he saw
Wogan walking out of Rich's office on December 5
he went in to see what had been the reason for Wogan's
visit. About what he learned at this point Bagnall testified
as follows:
Chuck had come up to the office and accused
the Company of cheating15 him out of 1 hour's
pay. He demanded to see timecards of his foreman
and Larry Fisher, and he was shown his own time-
card and it was proven to him that the time was,
that he was paid for the hours that he worked
plus 4 hours off for evenings and dinner.16
According to Bagnall's further testimony up to this
time Wogan had "previously accused the Company over
a period of time of cheating " him. . . ." Citing as
an example the truck incident.
In its brief Respondent attacks the credibility of
Wogan in some detail on the basis of his having testified
that he saw his name and that of Breuklander heading
a list of union members on Bagnall ' s desk in mid-
November 1968.18 Respondent also attacks Wogan's
15 On cross -examination Bagnall testified that the word " cheating"
was not his but was the choice of Ralph Rich
" Moore testified that Wogan asked him if it would be all right 1fl This was for the Christmas party.
if he borrowed the truck and that he told Wogan that he thought On direct examination the word "cheating " was posed to the
it would as long as he told Executive Vice President James Bagnall witness by counsel as part of his question.
about it and made it right with him the next day 11 An analysis of the evidence Respondent offered on this point
ARBIE MINERAL FEED CO.
credibility on the question of the mileage he drove
the truck the night he took it with Moore's permission
to fix his wife's flat tire, and on the basis of Wogan's
"remarkable memory as to names, dates, places" per-
taining to the 8(a)(1) allegations in the case. As for
the latter, his testimony about the Section 8(a)(1) aspects
of the case was either undenied or almost entirely of
a corroborative nature with other testimony offered by
the General Counsel particularly that of Fisher whose
reluctance to testify and resulting credibility has already
been commented on. As for the former, there would
appear to be a discrepancy of some 35 or 40 miles
between the mileage Wogan estimated that he drove
the truck and that shown by Respondent on the basis
of actual map distances. "I
In the last analysis there is little dispute as to the
circumstances of Wogan's discharge and Respondent's
reasons for it as I understand them. In this connection
Respondent apparently contends that Wogan was dis-
charged for (1) taking the truck without permission;
(2) saying he "wouldn't take the damn thing again any-
way" in front of a receptionist; (3) complaining to
fellow employees that the Company was unfair to him
in charging him $7 for the use of the truck;20 (4) running
a mixer improperly thereby causing a motor to burn
out;21 and (5) questioning a discrepancy between his
pay and that of fellow employees who worked the
same hours he did whereby he sought to be shown
their timecards to compare with his own and that when
his request was refused he commented to other employ-
ees within the hearing of an office secretary that he
thought the matter "was a bunch of crap." At the
time of Wogan's discharge Respondent had no knowledge
as to whether Wogan "had signed a union card or
not," and further that "the first formal notice" that
the Company received regarding the efforts of the Union
to organize Respondent's employees was on January
17, 1969.
Considering first Respondent's apparent claim that
it had no knowledge of Wogan's union activity or interest
at the time of his discharge my first observation is
that neither a claimed lack of knowledge of Wogan's
having "signed a union card" or a lack of "formal"
notice as to the Union's campaign is really a denial
of knowledge by Respondent of the union campaign
and Wogan's part in it. However , assuming , arguendo,
that Respondent by its limited denial is actually claiming
a complete lack of knowledge regarding the union cam-
paign and Wogan's part in it, I think that the evidence
clearly shows that Wogan's testimony in this respect is not credible
and I do not credit it
1B Wogan testified that his wife's car was "about 30 miles" out
of Marshalltown and that he had to take the spare to be fixed at
a gas station "about 2 miles away " Doubling both these distances
as a round trip requires and adding the products together shows a
total of about 64 miles that Wogan estimated he drove the truck that
night Respondent claims he drove about 100 miles.
20 I credit Wogan's denial that he accused the Company of "cheating"
him,,
The evidence shows that in late October 1%8 Wogan had a mixer
motor burn out on him for which Respondent did not reprimand more
than to admonish him to be more careful in the future
151
is substantial enough to permit the opposite inference
which I hereby draw.
Thus we have credited testimony that Supervisor
Moore was aware of Wogan's having signed a union
card and presumably about what happened at the Novem-
ber 10 union meeting as a result of his having asked
Wogan about it. We also have Penrod learning in mid-
November as a result of his interrogation of Wogan
that the latter had signed a union card at the first
union meeting. In addition to this knowledge legally
attributable to Respondent it seems a reasonable infer-
ence that when Mobley became a supervisor his newly
acquired loyalty to Respondent would have resulted
in a disclosure to Respondent of his intimate and first-
hand knowledge of the union activity of the employees
from its inception including that of both Wogan and
the other discriminatee, Breuklander. Indeed, in effect
Mobley admitted having made such a disclosure but
claimed that it was not until January 6 that he did
so.
Having found that Respondent had knowledge of Wog-
an's union activity at the time of his discharge let
us now consider the merits. It is clear that an employer
can discharge an employee for any reason or no reason
at all without running afoul of the Act as long as
the exercise of Section 7 employee rights is not involved.
But where even part of an employer's motivation for
discharge is grounded in opposition to an employee's
Section 7 rights that discharge is discriminatory within
the meaning of Section 8(a)(3) of the Act regardless
of whether adequate independent cause existed for the
discharge at the time. While it is not within my province
or that of the Board to evaluate the sufficiency or
adequacy of an employer' s reasons for discharging an
employee, such evaluation is often required in weighing
various aspects of a case. Thus it seems here that
Respondent is relying on relatively innocuous conduct
to impose the drastic penalty of discharge-which of
course is Respondent's right if it is that kind of an
employer. The trouble is that if Respondent is indeed
such a strict disciplinarian type of an employer, the
question is why was Wogan not discharged in September
or early October when his dereliction was so much
more serious than his relatively mild expression of dis-
gust directed to a couple of fellow employees in answer
to their inquiry some 2 months later. In late September
or early October it appears that Wogan had taken a
company truck without permission22 and, if Respondent's
version is to be believed, thereafter accused the Compa-
ny of cheating him in the amount it charged him for
ZY There is no indication in the record whether or not Bagnall was
initially aware of the fact that Wogan not only had his supervisor's
permission to take the truck but his assistance also. However, that
such is the impression that Respondent would create seems implicit
in the following statement in Respondent ' s brief:
It should be noted that at the time the truck was taken and
when Mr Bagnall reprimanded Charles Wogan, Mr Wogan did
not state to Mr Bagnall that he had permission from Mr Moore
to take the truck At the time the taking of the truck was
reported to Mr Jim Bagnall , Mr Bagnall advised Mr Wogan
that this was in violation of company policy and that nobody
used the company trucks without permission from Mr Bagnall
152 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
using it In addition , when confronted about the matter
Wogan responded directly to Respondent ' s chief execu-
tive with a remark hardly calculated to be polite This
kind of conduct to a strict employer conceivably would
be grounds for summary discharge 23 But Wogan was
not discharged then Of course , at this time Wogan
was not active in trying to get a union into the plant
Then 2 months later , when Wogan was active on behalf
of the Union, he is discharged for what clearly must
be considered a most minor incident In my opinion
the evidence fully supports the inference that Respondent
was waiting for some slip by Wogan that would present
the opportunity to discharge him and that the reason
for Respondent ' s purpose was to have a pretext to
conceal its antiunion motive I so find
2 Breuklander
Gerald Breuklander started as a plant employee of
Respondent in 1966 or 1967 and worked until January
24, 1969 , at which time he was discharged from his
then position of truckdriver His union activities have
been noted About what occurred on the job on January
21, 1969 , Breuklander testified as follows
I left with a load of feed that morning and I
stopped out at Schaeffer ' s truck stop and washed
my windshield and one of the other drivers was
out there , Ron Crouse , he was going west, too,
and we run together at Carroll, and he had trouble
with his windshield wipers, and we stopped at
that rest area and I stopped to see if I could
fix it , and I couldn ' t and he was going to Internation-
al, and he said as long as I was coming back
that way that evening to stop and see whether
he had got his truck fixed or not , and if he hadn't
he wanted a ride back with me So I stopped
and he was there , so on my last stop of hauling
feed I got two cans of beer offered me When
I got to Carroll I had one can of beer that I
was drinking and I had one left and I offered
him one and he didn't take it , and we just come
back to Marshalltown
According to Breuklander ' s further testimony he got
the beer at a farm on his last stop of the day After
he and the farmer unloaded the truck the farmer brought
the beer out It was a six pack He and the farmer
drank four of them and because the farmer did not
know what to do with the remaining two he told Breuk-
lander to take them with him
The following day, Wednesday , January 22 , Breuklan
der "took another load of feed out and peddled it
and came back in that night " When he got back there
were no loading orders posted for him as there
customarily were He asked Moore for an explanation
but Moore said he did not know anything about it
Breuklander then called John Lumsden , the dispatcher,
Za It will be recalled that in addition to all this it was about this
time that Wogan was also apparently guilty of having allowed the
mixer motor to burn out by overloading it
who said that all he knew about it was that Bagnall
had told him to hold Breuklander ' s load Breuklander
thereupon called Bagnall who told him to come in the
next morning that he ' would talk about it " About
what happened the next morning Breuklander testified
as follows
I went in to see Mr Bagnall and he explained
to me how good my work record and stuff, that
I had done a good job for him, but that they
couldn ' t keep me , he just had a report that I
had been drinking in the truck , and he would give
me the best recommendation that he could give
in thew world for another job and that was it
At this time Breuklander denied to Bagnall that he
had been drinking in the truck He also asked Bagnall
if he could be transferred back to the plant for work
there since he could no longer drive a truck According
to Breuklander ' s undenied and credited testimony Bag-
nall ` said he would have to think it over and he thought
it over a minute but that he couldn't do it, he said
it was a poor time to let anybody go, but he just
couldn't do it " He also ' said he would be going
back on his word, or something to that effect"
which Breuklander did not understand
About an incident that occurred the previous summer
Breuklander testified credibly and without denial as fol-
lows
I was in the tavern across the street and I went
over to the plant for something and they had some
feed that had to go out to some farm out there
about 4 or 5 miles, and Jim Bagnall was downstairs,
and Kenneth Penrod and Ralph Rich , and I was
asked if I could take the feed and I told them
I wasn 't in too good shape , I don 't recall which
one said "could you drive " or something like that,
and I said "Yes," and so they loaded the feed
on my truck and I called my wife and she went
with me to deliver that two or three ton of feed,
whatever it was
Along this same line Howard Sawyer , a truckdriver
of some 4 years' tenure with Respondent , testified credi-
bly and without denial about an occasion one day in
late 1967 when he was at the Carolina Tavern across
the street from the plant having a few beers on his
return from an all-night trip to Nebraska He had had
four or five beers when he got a telephone call from
Bagnall who wanted to know if he was in any condition
that he "couldn 't drive a truck ," Sawyer said, "No,
sir, but I had a few beers " Bagnall wanted him to
haul some soy beans from Des Moines and suggested
he could get one load that day and finish hauling the
rest later and that it was up to Sawyer as to when
he hauled the subsequent loads According to Sawyer
he not only hauled the imtial load that day but hauled
two more loads finishing the assignment after the night
shift had ended
Bagnall testified that company policy does not permit
drinking on the job which with respect to truckdrivers
means while driving and unloading That the Respondent
does not tolerate drinking while driving is well known
to the drivers, according to Bagnall , including Breuklan-
ARBIE MINERAL FEED CO
der who was so informed when hired According to
Bagnall's further testimony on direct examination, on
a prior occasion he had discharged truckdriver Virgil
Carter for drinking while driving On cross-examination
of Bagnall it was brought out that Carter's discharge
had occurred some 2 years previously when Carter
"came in really loaded one night"24 after he had been
warned about having liquor on his breath On redirect
Bagnall further testified that some time during the sum
mer of 1968 Breuklander came into the lockerroom
with liquor on his breath on an occasion when his
truck was in the garage Bagnall asked him if he had
been driving the truck and Breuklander said, "No "
Bagnall replied, "I am glad to hear that because we
don't want you driving that truck if you had one drop
to drink >f
Conclusions as to Breuklander
As in the case of Wogan I believe that the preponder-
ance of the evidence in the record as a whole supports
the inference that Respondent was relying on a pretext
to mask its real antiunion motive in discharging Breuklan-
der First, one must consider the leading part that Breuk-
lander played in instigating and promoting the Union's
organizing campaign Directly connected with this of
course are the threats of reprisals made by Respondent
to the employees about their participation in the union
campaign including particularly the threat to Breuklander
of the ultimate reprisal-that of the loss of his job
In this posture of the evidence it would seem that
any cause advanced by Respondent as the reason for
Breuklander's discharge would have to be without flaw
and relatively unassailable I do not believe that the
reason given for Breuklander's discharge meets this
requirement
The difficulty with Respondent's defense is the double
standard it applied to its policy regarding drinking by
its truckdrivers Obviously when it suited Respondent's
purpose the imbibing of a few beers was no impediment
to its drivers operating its trucks on the public highways
While there is a distinction between drinking beer while
actually driving a truck and drinking it b6fore or between
driving stints, the distinction lacks validity as far as
Respondent's ethical or economic position here is con-
cerned As for Carter's discharge it affords no particular
support for Respondent since there is a vast difference
between drinking a beer or two while working or driving
and appearing for work as a driver or attempting to
so work while "really loaded "
Added to these considerations are Bagnall's protesta-
tion to Breuklander at the time of his discharge that
he was a good employee and would be given a good
recommendation and his somewhat inconsistent refusal
to consider Breuklander for a plant job even though
Respondent apparently needed help as attested by Bag-
24 Oddly on direct examination Bagnall had testified that if a man
came to work drunk he would be discharged but added that it just
hasn t happened to my knowledge
153
nail's comment that it was a poor time to let anyone
go and the subsequent hiring of two new plant employees
Refusal to Bargain
I The bargaining unit
It will be recalled that on January 17 Union Represent-
ative McFarland made a demand on Respondent for
recognition as the bargaining agent of Respondent's
production and maintenance employees and truckdri
vers 25 Such a unit with the usual exclusions I find
to be an appropriate bargaining unit within the meaning
of the Act
Respondent is in agreement as to the inclusion of
22 employees in the bargaining unit as of the time
recognition was demanded by the Union 28 In addition
to the agreed 22 the General Counsel would also include
Charles Hannegan and Charles Wogan whose inclusions
are opposed by Respondent On the other hand Respond
ent contends and the General Counsel denies that John
Lumsden should b& included in the unit
2 Hannegan
Hannegan , called as a witness by the General Counsel,
was a current employee of about 2 years' tenure with
Respondent who testified that his job title was "mainte-
nance working supervisor "27 As such his duties were
to repair machinery and "keep the place running "
He holds an electrician ' s license, can install and repair
plumbing, and he does carpentry work He is responsible
for the installation , repair , and maintenance of `two
mixers, a pellet mill, shakers , sewing machines, automat-
ic sacker," among other things All of his time is spent
on these duties, according to Hannegan , 211 for which
he is paid at an hourly rate of $3 40 He had his
own workshop in the plant which contains work benches,
a welder, a cutting torch , and tools He also has an
office off the workshop where he keeps all of the electri
cal equipment and supplies he has on hand
Whenever he needs it, he has held which is normally
supplied by Marvin Cross whose regular job is that
2 Quite apart from McFarland s oral demand Respondents refusal
to accept the Union s letter of demand precludes any claim that no
valid demand was made City Electric Company 164 NLRB 844 848 1
21 The evidence shows and I finSi the following 22 employees to
be in the unit Terry Lee Breuklander Marvin Cross Ronald Crouse
Lynn Finders Larry Fisher Mark Huisman Stanley Hunt Omer Keese
Eugene Kinney David Long Robert Long James Phillips George
Piper Howard Sawyer Robert Shafer Robert Shively Dewey Snyder
Allen Stephens Gordon Kent Warren John Henry Whaley John William
Whaley and Gerald Breuklander
2' Elsewhere he testified credibly and without denial that after the
Union came into the picture he attended a few union meetings Then
he became concerned about his job status and asked Ralph Rich just
what his title was- a maintenance man or a supervisor? Rich informed
Hannegan that he was a maintenance man
28 He so testified on direct It appears however from Bagnall s
undenied and credited testimony that in addition to his mechanical
ability he also is capable of operating all of the machines he maintains
and as a result instructs othei employees how to use them In this
connection he makes recommendations is to who is capable of operltmg
the machinery
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of custodian-i. e., 'janitor. His method of getting assist-
ance from Cross is simply to tell him that he needs
Cross' help. If he needs more than one man to assist
him at any given ' time he places a request for him
to Supervisor Keith Penrod.
He is responsible directly to Bagnall. While he never
hires or fires, according to Bagnall's testimony he makes
recommendations as to whom Respondent should or
should not employ for a particular job which recommen-
dations are followed. In this connection Bagnall named
three employees Respondent hired on the recommenda-
tion of Hannegan-Marvin, Cross, Dennis Hannegan,
and Bill Collins.29 He also testified that Cross' pay
was increased on Hannegan's recommendation. Apart
from these broad assertions by Bagnall there was no
other testimony or evidence in this connection.
From the undenied and credited details supplied by
Hannegan in his testimony regarding the foregoing, it
would appear that the part that Hannegan played in
them was negligible to say the least. Thus it appears
that Hannegan had appealed to .Ralph Rich for another
man to help him with the maintenance work because
it "was piling up." So Respondent hired Bill Collins
for Hannegan to train as his assistant. Hannegan did
not know Collins before he was hired nor did he make
any recommendation to management that Collins be
hired. Hannegan's only part in the hiring as noted , was
his request for someone to assist him because the work
"was piling up." Subsequently, when it became apparent
to Hannegan that Collins (who knew nothing about
plumbing or electricity and had no special mechanical
ability) "just wouldn't pan out for a maintenance man,"
he told his superiors so and Collins was laid off or
quit-Hannegan could not remember.
As for the details of Cross' hiring Hannegan testified
as follows:
Well, George Piper, the custodian, was retiring,
so they needed a man to fill his place and I had
heard about Marve through George, and that's how
he come down to fill out an application.
According to Hannegan's further testimony Piper had
told him that Cross "would probably be a pretty good
man for the job." He also testified that Cross filled
out his application in Rich's office and when asked
why Cross had filled out an application in Rich's office
he answered "Because that's where you go to see about
a job." Hannegan further testified that Cross is directly
responsible to him and that if Cross wants a raise
he asks Hannegan for it. Nevertheless Hannegan also
testified that he did not set Cross' wage and that he
did not know what Cross' rate was nor could he remem-
ber when Cross last got a raise explaining that he did
not "even remember how long he has been there now.
I have my own work to take care of, not somebody
else's." It also appears from Hannegan's testimony that
79 Bagnall also claimed that currently Respondent had "two new
personnel working that were recently hired by him" (presumably Hanne-
Piper trained Cross for his job working with Cross
"for a couple of weeks."
The foregoing constitutes the only details regarding
Hannegan's connection with the hiring and employment
of Collins, Cross, or Dennis Hannegan. Rich did not
testify, and, as already indicated, Bagnall supplied no
details whatsoever. On the foregoing evidence (including
Rich's failure to confirm to Hannegan that he was a
supervisor when Hannegan asked him just what his
title was-"a maintenance man or a supervisor,"), I
conclude and find that Hannegan was not a supervisor
within the meaning of the Act. In my opinion what
we have in the case of Hannegan is a highly skilled
employee who simply exercises the control of a skilled
worker over less capable employees and in no demonstra-
ble sense shares the power of management. See Ross
Porta-Plant, Inc., 166 NLRB 494. As pointed out by
the court in N.L.R.B. v. Southern Bleachery & Print
Works, Inc., 257 F.2d 235, 239 (C.A. 4), cert. denied
359 U.S. 911, "[T]he employer cannot make a supervisor
out of a rank-and-file employee simply by giving him
the title and the theoretical power to perform one or
more of the enumerated supervisory functions." Having
found that Hannegan is not a 'supervisor within the
meaning of the Act I include him in the bargaining
unit.
3. Lumsden
I agree with the General Counsel that Lumsden should
not be included in the unit because he shares insufficient
community of interest with unit employees. The evidence
shows that his only connection with the unit employees
is the limited function of routing the trucks. Otherwise
he rarely leaves the upstairs office where he works
at various duties among which is taking telephone orders.
Unlike the unit employees he is on a salary and is
under different supervision than the unit employees.
Accordingly, I exclude him from the unit. Having found
that Wogan was discharged in violation of the Act
it is clear that he is to be included in the unit and
I so find. City Electric Company, supra. Thus by adding
Hannegan and Wogan to the 22 already included in
the unit we have a unit composed of 24 employees.
11
4. The cards
At the time McFarland demanded recognition from
Respondent he had 14 authorization cards from employ-
ees in the unit-a clear majority if the authorizations
are considered valid. Respondent attacks the validity
of the cards for various reasons.
In its campaign to organize Respondent ' s employees
the Union reduced the initiation fee from $25 to $5.
Even then four of the signers30 did not pay the $5
on signing. At least one of the four, Larry Fisher,
claimed on the witness stand to have not paid because
he changed his mind about joining the Union after
gan) but that he didn't "even know their names" conjecturing 30 Larry Fisher, Eugene Kinney , Howard Sawyer, and John Whaley,11"that the name of one of them is Rose Sr
ARBIE MINERAL FEED CO. 155
he signed the card. In this connection the bylaws of
the Union provide as follows regarding dues and initiation
fees:
B. Initiation fees for membership in this organiza-
tion shall be $25.00 dollars, provided, however,
that such initiation fee may be waived or reduced
in connection with a particular unit or industry
or the organization of unorganized employees
at the discretion of the Local Executive Board.
It is Respondent's contention apparently that because
the Union failed to show the specific action of the
local executive board authorizing the reduction of the
initiation fee from' $25 to $531 the offer of the $5 fee
to the employees nullifies the cards. It seems to me
that this is an internal affair of the Union over which
Respondent can raise no issue regarding the validity
of the cards. If Respondent's position is that whether
duly authorized or not by the Union the reduction in
the initiation fee from $25 to $5 nullifies the cards,
it is mistaken. See Gafner Automotive & Machine, Inc.,
156 NLRB 577, 578.
As for the failure of some of the signers to pay
the $5 at the time of signing I see no reason to invalidate
the cards either. By its very terminology the fee is
an initiation fee and its payment certainly can be deferred
until the time that formal initiation ceremony is about
to take place or even afterwards for that matter. Nor
does the testimony of Fisher that he changed his mind
about joining the Union after he signed the card invali-
date it. The coercive conduct engaged in by Respondent
here in opposition to its employees' rights under the
Act could be expected to change their attitude about
joining the Union, making such testimony incompetent
to negate a loss of union membership or support. Cf.
Patent Trader, Inc., 167 NLRB 842.
Respondent also attacks a group of cards because
the name of the Union was not filled in at the time
of the signing. Even if the International's name did
not appear on the cards here as it did (which was
sufficient to avoid invalidation of the cards, see Glass
Fiber Molding Co., 104 NLRB 383; Knickerbocker Plas-
tics Co., 104 NLRB 514), it would seem that under
the circumstances here there could be no question that
the employees knew perfectly well what union they
were signing authorization cards for..
Respondent's further contention that the card of James
C. Phillips should not be counted because he, printed
his name on it in the place where his signature should
have been is also rejected. McEwen Manufacturing Com-
pany and Washington Industries, Inc., 172 NLRB No.
99. Finally Respondent contends that the card of Stanley
H. Hunt has not been properly identified for receipt
in evidence and should not be included in the card
computation. Hunt's card had been offered in evidence
with a group of other cards that had been received
by McFarland from Breuklander's wife. Over objection
I received them on the commitment of the General
Counsel that he would establish t,y other witnesses
the actual signing of the cards.
Breuklander testified that Hunt had given him a card
that was already signed and filled out telling Breuklander
that he "had been carrying it for a while," having
filled it out for Hannegan. In his testimony Hannegan
confirmed that he had signed up Hunt along with Howard
Sawyer and Robert Long on January 6-the date appear-
ing on Hunt's card. Later on during the same day,
according to Hannegan's further testimony, he was called
into the office and told by Bagnall that there was a
tape recorder in operation and that everything said would
be recorded. He was then told "that they were shocked
to hear that one of their supervisors had filled out
an application card fpr the union." He was'also told
that he had no business joining the Union and that
"they could fire him or take him to court." When
he left the office he went downstairs and locked in
his drawer the three signed cards he had obtained.
When he saw the signers he gave them back their
cards telling them that he "didn't have anything to
.do with that now." Sawyer and Long tore their cards
up. Hunt took his with him.
On this evidence I conclude and find that Hunt's
card was sufficiently identified for receipt in evidence
and for use in computing the number of valid cards
in possession of the Union when demand for recognition
was made. In so ruling I am so mindful of my admonition
to the General Counsel that I would not count any
of the cards not identified as to the details of their
signing. I believe, contrary to Respondent, that Hanne-
gan's testimony considered with that of Breuklander
meets this requirement. See McEwen Manufacturing
Company, etc, supra. In any event even without Hunt's
card it appears on the basis of the foregoing that with
13 valid authorizations on January 17 the Union repre-
sented a majority of the employees in an appropriate
unit and I so find. I further find that by Respondent's
failure and refusal on and after January 17 to recognize
the Union, Respondent refused to bargain in violation
of Section 8(a) (5) of the Act. This conduct in the
context of the other unfair labor practices by Respondent
clearly requires the issuance of a bargaining order. Gissel
Packing Co., Inc., et al., 395 U.S. 575.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
31 At the hearing McFarland offered to produce the minutes of the
executive board action regarding this matter " If he (could) find it
They were not produced
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8 (a) (1), (3)
and (5) of the Act, I shall recommend that it cease
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act I shall
recommend that Respondent upon request , be ordered
to bargain with the Union concerning rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed agreement I shall also recom
mend that Respondent offer Charles Wogan and Gerald
Breuklander immediate and full reinstatement to their
former or substantially equivalent positions and that
they be made whole for any loss of pay from the
dates of their discharges to the date of the offer of
reinstatement less tlieir net earnings during that period
Loss of pay shall be computed and paid in accordance
with the formula adopted by the Board in F W Wool
worth Company 90 NI RB 289, and with interest thereon
at the rate of 6 percent per annum as prescribed by
the Board in Isis Plumbing & Heating Co 138 NLRB
716
The unfair labor practices committed by Respondent
involved conduct in derrogation of the principles of
good faith collective bargaining The inference is thus
warranted that Respondent maintains an attitude of oppo
sition to the purpose of the Act with respect to the
protection of employee rights in general Accordingly
I shall recommend that Respondent be ordered to cease
and desist from infringing n any manner upon the
rights guaranteed in Section 7 of the Act
Upon the basis of the foregoing findings of fact and
the entire record in this case , I make the following
CONCLUSIONS OF LAW
I Arbie Mineral Feed Co at all times material herein
has been an employer within the meaning of Section
2(2) of the Act
2 General Drivers and Helpers Local Union No
790, affiliated with International Brotherhood of Team
sters, Chauffeurs , Warehousemen and Helpers of
America, at all times material herein has been a labor
organization within the meaning of Section 2(5) of the
Act
3 By interfering with restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act as found above, Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a) (l) of the Act
4 By discriminating against it employees , as found
above, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (3) of the Act
5 By failing and refusing to bargain in good faith
with the Union as the representative of all production
and maintenance employees including truckdrivers
employed by Respondent in Marshalltown , Iowa, exclud
ing all office clerical employees , guards, professional
employees and supervisors as defined in the Act (an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act ), Respond
ent has engaged in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding , I recommend that Arbie Mineral Feed Co ,
its officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Discouraging membership of its employees in Gen-
eral Drivers and Helpers Local Union No 790 affiliated
with International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America, or any
other labor organization , by discriminatorily discharging
or in any other manner discriminating against them
in regard to their hire, tenure of employment or any
term or condition of employment
(b) Refusing to bargain collectively with General Driv-
ers and Helpers Local Union No 790, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , as the exclusive
representative of the employees in the above unit
(c) Illegally interrogating its employees about their
union activities membership, or sympathies
(d) Threatening its employees with loss of overtime,
Christmas bonuses, jobs, or other reprisals because of
their union activities
(e) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their right
to self-organization , to bargain collectively through rep
resentatives of their own choosing , or to engage in
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection , or to refrain
from any or all such activities
2 Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Offer to Charles Wogan and Gerald Breuklander
immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make
them whole in the manner set forth in the section
entitled "The Remedy "
(b) Upon request , bargain collectively with General
Drivers and Helpers Local Union No 790, affiliated
with International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America, as the
exclusive representative of Respondent ' s employees in
the appropriate unit described herein and embody in
a signed contract any understanding reached
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommenced Order
ARBIE MINERAL FEED CO.
(d) Post at its plant in Marshalltown, Iowa, the
attached notice marked "Appendix. "32 Copies of said
notice, on forms provided by the Regional Director
for Region 18, after being duly signed by an authorized
representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.33
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the receipt of this Decision the Respondent
notifies said Regional Director, in writing, that it will
comply with the ,foregoing Recommended Order, the
National Labor Relations Board issue an order requiring
it to take such action.
32 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
31 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify the Regional
Director for Region 18 , in writing , within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith " '
APPENDIX
NOTICE To EMPLOYEES '
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in General
Drivers and Helpers Local Union No. 790, affiliated
with International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America,
or any other labor organization, by discriminatorily
discharging employees or in any other manner dis-
criminating against them in regard to their hire
or tenure of employment or any term or condition
of employment.
WE WILL NOT refuse to bargain collectively with
the aforesaid' union as the exclusive bargaining
representative of all production and maintenance
employees including truckdrivers employed by us
157
in Marshalltown, Iowa, excluding all office clerical
employees, guards, professional employees and
supervisors, as defined in the National Labor Rela-
tions Act.
WE WILL NOT illegally interrogate our employees
concerning their union activities.
WE WILL' NOT threaten our employees with loss
of overtime, Christmas bonuses, jobs, or other
reprisals for engaging in union activities or joining
the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the right to self-organization, to form, join,
or assist the aforesaid Union, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
WE WILL offer Charles Wogan and Gerald Breuk-
lander immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority and other rights and
privileges and make them whole for any loss of
pay suffered as a result of our discrimination against
them.
WE WILL upon request meet and bargain collec-
tively with General Drivers and Helpers Local
Union No. 790, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of our employees in the above-
described appropriate bargaining unit, concerning
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
the aforesaid Union, or any other labor organization
Dated By
ARBIE MINERAL FEED
Co.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 316 Federal Building, 110 South Fourth, Minneap-
olis, Minnesota 55401, Telephone No. 612-725-2611.