Preston Feed Corp.

National Labor Relations Board - Board Decisions

Nov 22, 1961

134 N.L.R.B. 629 (N.L.R.B. 1961)

PRESTON FEED CORPORATION 629
Preston Feed Corporation and International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of America,
Teamsters, Chauffeurs , Warehousemen & Helpers Local Union
No. 789. Case No. 6-CA-2212. November 22, 1961
DECISION AND ORDER
On August 10, 1961, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof,' and the General
Counsel filed -a brief in support of the Intermediate Report and
Recommended Order.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and the recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(h) read: "Notify the Regional
Director for the Sixth Region, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply
herewith." 2
1 We hereby deny as being without merit Respondent 's motion to strike portions of the
General Counsel 's brief
2 In the notice attached to the Intermediate Report as the Appendix , the words "A
Decision and Order" are hereby substituted for the words "The Recommendations of a
Trial Examiner ." In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing
an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America , Teamsters , Chauffeurs, Warehousemen & Helpers
Local Union No. 789, herein called the Union, the General Counsel of the National
Labor Relations Board , by the Regional Director for the Sixth Region (Pittsburgh,
Pennsylvania), issued his complaint , dated May 4, 1961 , against Preston Feed Cor-
134 NLRB No. 67.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poration, herein called the Respondent. With respect to the unfair labor practices,
the complaint alleges , in substance, that Respondent (1) discharged employee Donald
Matthews because of his union membership and activities; (2) discontinued its
trucking operations because of union activities and to discourage union membership;
(3) engaged in conduct which constituted a refusal to bargain with the Union which
had been designated as the bargaining agent by a majority of the employees in a
specified appropriate unit; (4) refused to reinstate striking employees upon their
unconditional application, the strike having been caused and prolonged by Re-
spondents' unfair labor practices; (5) engaged in specified acts of interference,
restraint, and coercion; and (6) has thereby violated Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the National Labor Relations Act, as amended.
In its duly filed answer, the Respondent denies the unfair labor practice allegations
and affirmatively alleges, in substance, that: (1) Matthews was terminated and the
trucking operations discontinued for economic reasons; (2) it doubted the Union
represented a majority of its employees in an appropriate unit; and (3) it made un-
conditional offers of reinstatement to Matthews and the strikers, which offers were
refused.
Pursuant to due notice, a hearing was held before me at Morgantown, West Vir-
ginia, on June 13 and 14, 1961. All parties appeared and were represented at the
hearing and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to present oral argument, and to file briefs. On July 17, 1961, the Re-
spondent and the General Counsel filed briefs which I have fully considered.
Upon the entire record in the case,' and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a West Virginia corporation, operates a rendering plant at Reedsville,
West Virginia, where it is engaged in the processing of animal offal 2 into a com-
ponent for poultry and animal feed. During the 12 months preceding March 1, 1961,
the value of goods sold and shipped by Respondents to points outside the State of
West Virginia was in excess of $50,000.
Upon the above admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union No. 789, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Respondent operates a rendering plant at Reedsville, West Virginia, where offal
is processed into feather meal, byproduct meal, and a tallow or grease. During
the period herein material, the plant operated on 3 shifts with a total of about 11
employees, exclusive of supervisors, consisting of 8 laborers who worked in the
plant and 3 truckdrivers who hauled the offal from 3 plants in Pennsylvania and 1
plant at Oakland, Maryland, to Respondent's rendering plant. Respondent's ad-
mitted supervisory hierarchy insofar as herein material are as follows: J. W. Ruby,
president; A. D. Summers, vice president; Frank O'Malley, director of industrial
relations; Kenneth Parks, plant manager of the rendering plant; and Paul Zinn,
' On July 17, 1961, Respondent filed a motion to substitute corrected exhibit and to
correct transcript in 13 specified respects Thereafter, the General Counsel filed a
memorandum in which he opposed the Respondent's motion to substitute a corrected ex-
hibit, and stated that he had no objection to Respondent's proposed correction of the
transcript with the exception of proposed correction 9. Upon consideration of the fore-
going, I hereby grant Respondent's motion in all respects with the exception of proposed
correction 9 Respondent's motion will be Included in the official exhibit folder as
Respondent's Exhibit No 13
8 Offal consists of the entrails, head, feet, blood, and whatever is left after the animal
is cleaned.
PRESTON FEED CORPORATION 631
foreman of the second shift . O'Malley reported directly to President Ruby who was
O'Malley's immediate superior.
About the middle of February 1961 , Donald Matthews , one of Respondent's
truckdrivers , initiated efforts to organize Respondent's employees at the rendering
plant and by February 25 union authorization cards had been signed by a majority
of these employees . On Friday, March 3, Union Business Agent Clemens mailed a
letter to President Ruby, claiming majority representation and requesting recog-
nition . This letter was delivered by registered mail on Saturday , March 4. That
afternoon , Matthews was informed that his services were no longer needed. On
Monday, March 6, Respondent discontinued its trucking operations . That afternoon
the employees went on strike and began picketing the plant . The Respondent has
refused to recognize and deal with the Union.
The principal issues litigated in this proceeding are (1 ) whether the employment
termination of Matthews and the discontinuance of the trucking operations were
discriminatory within the meaning of Section 8(a)(3) of the Act; (2) whether
Respondent 's conduct constituted a refusal to bargain within the meaning of Section
8(a)(5) of the Act; ( 3) whether the refusal to reinstate the strikers constituted
discrimination with respect to their hire and tenure of employment within the
meaning of Section 8(a)(3) of the Act; and (4 ) whether Respondent's admitted
supervisors engaged in specified acts of interference , restraint, and coercion within
the meaning of Section 8(a)( I) of the Act.
B. Sequence of events 3
1. Matthews' employment as a truckdriver
Donald Matthews was employed by Respondent as a truckdriver on December 19,
1960, at $1.25 per hour. After about 6 weeks,,his pay was raised to $1.35 per hour
and would have been increased to the maximum of $1.50 per hour if his employment
had continued for a short period after his termination. His duties were to drive a
tractor-trailer truck from Respondent's rendering plant in Reedsville, West Virginia,
to processing plants where the truck would be loaded with chicken and animal offals
and then to drive it back to the rendering plant. His normal run was to Pennsyl-
vania. He would report to work at the rendering plant about 10 a.m., and would
first load the truck with empty barrels. About 11 a.m. he would be ready to start
on his Pennsylvania run where he had three stops to make and would return to
Reedsville normally about 11 p.m. The trailer would then be unloaded by the
laborers.
Matthews was regarded by management as a satisfactory employee; he had never
had any traffic violations or motor vehicle accidents or any trouble with absences.
He had built a small electric hoist which made it easier for the driver to double-deck
the barrels. Manager Parks complimented him on this arrangement and indicated
that it was helpful. During January and February 1961, Matthews complained to
Industrial Relations Director O'Malley about not getting sufficient hours of work
per week, and inquired about the possibility of a transfer to another trucking job.
He also had frequent discussions with Manager Parks and expressed the view that
the drivers should be given more work by being assigned the hauling of Respondent's
finished product.
2. February 1961-employee self-organization and Matthews' role therein
About the middle of February, Mathews went to see Union Business Agent
'Clemens and discussed the possibilities of organizing Respondent's rendering plant.
Clemens explained what had to be done and gave Matthews a number of union
authorization and membership application cards. Matthews signed his authori-
zation card on February 23, and successfully solicited the signatures of Curtis
White, a fellow truckdriver, and Keith McKinney, a laborer. Foreman Zinn
had previously relayed Matthews' inquiry as to whether McKinney was interested
in helping Matthews get signatures. McKinney agreed to help Matthews solicit
the signatures of the other laborers and was given some authorization cards
by Matthews for that purpose. By February 25, McKinney had succeeded in ob-
taining the signatures of six other laborers to the union authorization cards, which
he then turned over to Matthews. The only two employees who had not signed
s Unless otherwise indicated, the factual findings in this section are based on credible
evidence which is either admitted or undenied.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards by that time were Loren White, the third truckdriver, and Bohan, a laborer,
who had a finger amputated as a result of an accident that day at the plant.
3. Sunday, February 26-Matthews' conversation with Foreman Zinn
During a visit by Foreman Zinn to Matthews' home on Sunday, February 26,
Matthews discussed with Zinn the changes that should be made in the plant and with
the trucking operations in the event the Union became the bargaining agent. They
talked about whether working foremen should do any manual work, about the
possibility of having all of Respondent's trucking handled by Respondent's truck-
drivers,4 about improving the plant working conditions and about the wage increases
to be requested. Matthews told Zinn that he had in his possession all the signed
union cards and was going to turn them in .5
4. Sunday and Monday, February 26 and 27-accident of Curtis White
On Sunday night, February 26, Curtis White, employed by Respondent as a
truckdriver for over a year, was in an accident while riding as a passenger in a
private automobile. The next morning, Monday, February 27, Curtis White tele-
phoned Manager Parks and reported that he had been in an automobile accident,
had one eye bandaged, and did not know how long he would be unable to work.
5. Thursday, March 2-Foreman Zinn's instructions to Matthews
During the week of February 27, Matthews and Loren White, Respondent's two
remaining truckdrivers, performed all the truckdriving required that week. Each
day they alternated between the Pennsylvania and Oakland, Maryland, runs. Mat-
thews' last day of work that week was on Thursday, March 2, because by that time
he had already accumulated substantially 40 hours for the week whereas Loren
White had only 29 hours.6
Manager Parks had instructed Foreman Zinn to inform Matthews that he was to
report Monday morning to make his Pennsylvania run. Zinn relayed these instruc-
tions to Matthews that Thursday.?
6. Events of Friday, March 3
a. Conversation between Matthews and Parks
As Friday, March 3, was a payday, Matthews went to the plant that morning to
pick up his check. On that occasion, he had a lengthy conversation with Manager
Parks in front of the plant. Matthews talked about the Respondent enabling its
truckdrivers to get in their full time and about Respondent making different trucking
* At that time, Respondent's finished products were hauled by drivers employed by
Sterling Faucet Company which, together with Respondent, formed part of the Sterling
Enterprises over which Ruby was president and O'Malley was industrial relations director
' Foreman Zinn testified that during the week of February 27, Manager Parks asked
him at various times if he knew anything about the Union, if he knew how many men
had signed up, and if he himself had signed a union card Zinn further testified that on
such occasions Parks told him, in substance, that Matthews was the chief organizer try-
. ing to get the Union in there ; that if Matthews got the Union in, they would close the
doors ; and that if they would get rid of Matthews, their troubles with the Union would
be over Parks admitted that during that week he had heard a rumor about union activity
in the plant, that he had asked Foremen Zinn and Greaser if they had heard anything
about it, and that they both replied they had heard nothing Parks denied having made
any of the other queries or statements attributed to him by Zinn. At the time of his
testimony in this proceeding, Zinn had signed a union card and had joined the strikers,
having quit Respondent's employ in June. Zion's testimony was contradicted in material
respects by Respondent's counsel and by Matthews and McKinney, witnesses for the
General Counsel
Under all the circumstances, I credit Park's denials and find that he did not make the
queries or statements attributed to him by Zinn I further find that, although Zinn was
aware of the union activities, as found in the text, he did not disclose them to Parks.
In view of the credibility findings herein made, I will henceforth credit Zinn only when,
his testimony is uncontradicted or corroborated by other credible testimony
9 white therefore also worked on Friday and Saturday
'The findings in this paragraph are based on Zinn's credited and uncontradicted testi-
mony Parks did not deny having given such instructions to Zinn
PRESTON FEED CORPORATION 633
.arrangements so as to have its own drivers perform the long hauls of finished prod-
ucts out of the rendering plant which at that time were being made by the drivers
of Sterling Faucet Company ; mentioned the need for improving some of the plant
.conditions ; and suggested better ways for the handling of the containers and that
another hoist should be put in the back of the trucks to facilitate the lifting of the
-waste barrels off the ground . Parks replied that he agreed with Matthews' sug-
gestions for improvements, but stated that the Company would not allow it because
it would cost too much.
At the end of the conversation , Parks told Matthews that he was to go on his
regular run to Pennsylvania on the following Monday, March 6.8
b. Union mails letter to Respondent 's president
That evening , the Union mailed a registered letter , signed by Business Agent
Clemens, to John W . Ruby, c/o Sterling Faucet Company , Morgantown, West
Virginia. This letter, dated March 3, 1961, and addressed to John W. Ruby, who
-was the president of Respondent and of all the companies which together made up
the Sterling Enterprises , stated that the employees of Respondent had selected the
Union as their bargaining representative for the purpose of negotiating a collective-
bargaining agreement , requested recognition of the Union as such bargaining repre-
sentative , and advised that the Board had been petitioned on the same for
certification as such representative.
7. Saturday , March 4-union letter delivered and discharge of Matthews
The registered return receipt of the Union's letter to President Ruby shows that
-the letter was delivered on Saturday , March 4. Moreover , in view of the time
stamped thereon by the Morgantown post office in mailing it back to Clemens, I find
that it was delivered that morning.
About 2:30 on Saturday afternoon , Matthews was informed by his mother that
O'Malley had telephoned to speak to him. Matthews promptly telephoned O'Mal-
ley,9 who advised Matthews that Parks was making different arrangements for the
hauling, that Matthews ' services were no longer required , and that there was nothing
else available for him.
Matthews then telephoned the union hall and, in Clemens ' absence, informed the
secretary that he had been discharged . He was advised that she would have Clemens
contact him.
8. Sunday, March 5-employees vote to strike
Clemens telephoned Matthews on Sunday morning and arrangements were made
-to hold a union meeting that evening at Matthews ' garage. Matthews, Curtis
White, and six of the laborers attended the meeting . Clemens informed the men
that Matthews had been dismissed and a strike vote was taken . The men voted
-unanimously to strike.
9. Events of Monday , March 6
a. Respondent's hauling is performed by Sterling Processing Company
at Oakland, Maryland
Loren White had worked on Saturday , March 4 . Pursuant to prior instructions,
he reported to the plant shortly before 11 o'clock on Monday morning and was told
by Parks to get the truck ready for the Pennsylvania run. White thereupon drove
-the truck to the service station , about a quarter of a mile away, from whence he
was to leave on his run. While he was there, a message was received by White that
his run had been canceled and that he should report back to the plant. When he
returned to the plant, Parks only told White that "there had been some trouble" and
that they would call him "when things were straightened out." White thereupon
went home , which was about 25 miles away.io
8 The findings with respect to the conversation which Matthews had with Parks on
Friday, March 3 , are based on the credited and undisputed testimony of Matthews Parks
admitted that he saw Matthews at the plant that day , that he gave Matthews his pay-
check, and that he did not "recall any particular discussion " with Matthews , although it
would not have been unusual if they had a discussion He did not deny telling Matthews
that morning to report for his regular run to Pennsylvania on Monday morning, March 6.
9 O'Malley admitted that Matthews ' telephone call was made shortly after O'Malley had
telephoned and left a message for Matthews to call.
10 The findings in this paragraph are based on the credited testimony of Loren White.
Parks testified that on Monday morning he had called White to come in to make this
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From that time on, the hauling of the offal to Respondent 's rendering plant was
performed by the drivers of Sterling Processing Company 11 out of Oakland, Mary-
land, which shortly thereafter leased the equipment used by Respondent.
b. Clemens' conversation with O'Malley
On Monday morning, Clemens went to see President Ruby at his office in Reeds-
ville. When he explained his business to the receptionist, she told him that O'Malley
handles these matters and that he was at Manheim, West Virginia, where Respondent
has another plant. Clemens thereupon drove to Manheim and met O'Malley on the
porch of the office building shortly before noon. Clemens introduced himself as the
business agent of the Union, referred to the letter he had mailed to President Ruby
on March 3, and stated that the Union had been requested to represent the employees
of Respondent in Reedsville for collective bargaining. O'Malley asked what em-
ployees the Union claimed to represent. Clemens replied that they claimed the
truckdrivers, the laborers in the plant, and the working foreman at Reedsville, but
that he would not insist upon the foreman being in the unit. O'Malley made no
claim that Respondent no longer had any truckdrivers or that Respondent's hauling
operations had been transferred to another company. Clemens also told O'Malley
that because he had fired Matthews, the man who had done most of the organizing,
the men would stay out on strike unless he agreed to reinstate Matthews and to
guarantee to maintain the jobs and the labor force without change "until we could
have some kind of election." O'Malley did not deny having had any knowledge of
Matthews' union activities. Clemens further stated that he would agree to any
method which would give the Union an opportunity to prove its representation and
explained that this could be accomplished by agreeing to a consent election, or by
checking the union authorization and application cards which had been submitted
to the Board's Regional Office in Pittsburgh, together with a petition for an election,
or, by having some impartial person, such as a minister, conduct an election in the
plant. O'Malley replied that it would take time for him to give an answer, that he
would have to get in touch with his superiors, and that he would inform Clemens
as soon as he could.'2
c. Clemens reports to employees and picket line is established
Clemens, accompanied by Matthews, returned to Reedsville between 1:30 and
2:30 p.m. and met with the employees at the service station. He informed them of
his conversation with O'Malley. The men informed Clemens that after one of
Respondent's drivers had gassed up his truck, referring to Loren White, he was
recalled and that a driver from the Oakland, Maryland, processing plant came there
to take his truck. - Thinking that the Company was trying to eliminate the drivers,
the men decided to set up a picket line at once.
Shortly before the commencement of the second shift at 3 p.m., the men set up
a picket line at the Fairfax Road entrance to the plant, which was about a quarter of
a mile up the road from the picket line. The picket signs read, "On strike, Teamsters
Local 789." The second shift was unable to begin operations on schedule, as all the
laborers were on strike.
run, that he had called the service station to have White return to the plant , and that he
then informed White that the system had been changed , that Sterling Processing of
Oakland, Maryland , was going to do the hauling from then on, that there had been a mixup
in scheduling at Oakland , and that Oakland had called to say that they were sending
their driver on this run . White denied that Parks had so informed him that Monday
morning Loren White had refused to sign a union card when solicited by Matthews the
preceding Friday, was not interested in the Union , crossed the picket line to work as a
laborer in the rendering plant for a short period during the strike, and left the Respond-
ent's employ of his own accord and on good terms He testified that lie would not have
appeared as a witness if he had not been subpenaed and was clearly a neutral and dis-
interested witness in this controversy . He testified in a candid and forthright manner
and made a very favorable impression upon me as a credible witness . Under all the
circumstances , I do not credit Parks' contrary testimony.
n This is a poultry processing plant at Oakland , Maryland , which is part of the Sterling
Enterprises over which Ruby is president , Summers is vice president, and O'Malley is
director of industrial relations.
12 The findings in this paragraph are based on the mutually consistent testimony of
Clemens and O'Malley. O 'Malley testified that he did "not remember " whether Clemens
mentioned Matthews in this conversation.
PRESTON FEED CORPORATION 635
d. O'Malley talks to Clemens at picket line
Between 3 and 4 p.m., O'Malley drove up to the picket line. While sitting in his
car, O'Malley asked Clemens what was going on. Clemens replied that the members
had to strike in self-protection but that if the Company would maintain conditions
as they were and put Matthews back to work until "we have an opportunity to prove
that we represent the people" the men would go back to work. O'Malley replied that
the establishment of a picket line was putting him in an impossible position to get a
receptive attitude for Clemens' request.13
e. Taking of pictures that evening
That evening, President Ruby, Vice President Summers, O'Malley, and others
drove up to the picket line. Although the cars of the strikers were not blocking the
road, Respondent's officials required the men to move their cars. Several pictures
of the strikers on the picket line were also taken by Vice President Summers.14
10. Statements to employees during the strike
Replacements began to be hired by Respondent on March 7; the plant soon resumed
full operations and continued to do so throughout the strike, which was still in progress
at the time of the hearing in this proceeding.
Charles Knotts was hired on March 8 as a laborer on the day shift, under the
supervision of Manager Parks, and worked for about 3 weeks. During his employ-
ment interview, Parks asked what he thought of the Union. Knotts replied that he
believed there would be better working conditions with a union. Knotts was then
interviewed by O'Malley. When Knotts asked how Matthews happened to be fired,
O'Malley replied that it was because they found out he belonged to the Union. During
the time of his employment, he also asked Parks the same question and was given
the same answer. Parks also told Knotts that the Teamsters were a "bunch of rack-
eteers, they drove big cars, and bought million dollar homes off of the members."
During the first week of his employment, Knotts asked Parks about the possibility of
getting a different kind of job. Parks replied that if the Union did not get in, Knotts
stood a "pretty good chance" of getting one of the truckdriving jobs, that they were
going to take on new drivers if the Union did not get in. Knotts had stated on his
application that he had truckdriving experience. On another occasion during his
employment, Knotts asked Parks how he should vote if the union matter came to a
vote, or whether it mattered how he voted. Parks replied that it does make a
difference and that Knotts was supposed to vote against the Union.15
Bohan had been employed by Respondent since March 1960, but had not worked
since February 25, 1961, when he lost a finger in a plant accident. During the first
13 The findings in this paragraph are based on the mutually consistent testimony of
Clemens, Matthews, and O'Malley. With respect to the last statement of O'Malley,
Clemens merely testified that "I don't recall him saying that." Matthews admitted that
he did not hear the entire conversation between O'Malley and Clemens
34 The findings in this paragraph are based on the credited and uncontradicted testi-
mony of Matthews and McKinney. Summers did not deny having taken such pictures
ss The findings in this paragraph are based on the credited testimony of Knotts, who
was testifying under subpena O'Malley did not deny having made the statement as to
the reason for Matthews' discharge, set forth in the text Parks denied telling anyone
that Matthews had been discharged for union activity. He further testified that he neter
had any conversation with replacements about union activities and that, on those occa-
sions when he was asked what would happen about the strike, he replied that if the Union
was voted in the strikers would probably come back to work. He did not deny having
made the above-stated disparaging remarks about the Teamsters, nor did he deny having
told Knotts that they were going to hire new drivers if the Union did not come in and
that Knotts stood a pretty good chance of getting one of the truckdriving jobs.
I have previously found Parks not to be a credible witness in certain respects . Knotts
never joined the Union , never signed a union card , and crossed the picket line. He
testified under subpena in a positive and sincere manner. He readily admitted having
pleaded guilty to a misdemeanor and having served some time in the penitentiary for this
offense. His concealment of this offense in answer to a question on Respondent ' s employ-
ment application , while not condoned , is understandable and does not in itself require that
he be discredited Giving due consideration to all the foregoing , I am convinced and
find, particularly in view of O'Malley's failure to deny the statement attributed to him
and Parks' failure to deny some of the statements attributed to him, that Knotts is a
credible witness.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week of the strike, Manager Parks telephoned Bohan at his home, asked how he was
getting along and when he would be able to get back to work, told him there was a
picket line at the plant, and also inquired if he had signed with the Union. In re-
sponse to Bohan's query as to what union Parks had reference, Parks replied, "The
Teamsters." Bohan then stated that he had not signed. Bohan then asked Parks
who was working. Parks mentioned some names, including Donald Matthews, and
then laughed and stated that Matthews' name was "outlawed" there. He also stated
that he believed Matthews was the cause of the strike. About a week later, Bohan
crossed the picket line and returned to work for a very short period. At that time
Bohan asked Parks what would happen if the Union came in . Parks replied, that he
did not believe it would get in because these people "knew they would be out of a
job." 16
During the first week of the strike, Parks telephoned Loren White and inquired
whether he would like to work as a laborer in the plant "until the situation was over."
Parks told White that they had transferred the truck hauling "for the time being"
and that they would be back on the road "after a while." After first expressing some
doubt as to whether he would like working in the plant, White agreed to try it.
After working about a week, he voluntarily gave notice and quit his job. At that
time Parks told him that he was a good man and that he (Parks) would like to have
him back as a truckdriver.17
During the strike, Parks accidentally met Curtis White at the service station.
Parks asked White when he would return to work. White replied that he was on sick
leave and that he would not return as long as the "strike situation was on" because
he would not drive for the Company or against the boys. Parks asked White if he
was "part of the situation." White parried the question by replying, "You don't
know do you?"
Curtis White also met O'Malley accidentally during the strike at the gas station
and had a conversation about coming back to work. White gave O'Malley the same
answer he had given Parks. On that occasion O'Malley for the first time informed
White that Respondent's truck hauling operations had been transferred to Oakland.
In response to White's request for a transfer to another part of the organization,
O'Malley replied that that was not in his department.18
11. Requests for, and offers of, reinstatement during the strike
By letter dated April 18, 1961, from Business Agent Clemens to John W. Ruby,
president of Respondent, the Union made an unconditional offer of an immediate
return to work on behalf of eight named strikers and of Matthews. By letter dated
April 24, 1961, President Ruby replied, advising Clemens that the strike was
"wholly economic in character," that all strikers had been permanently replaced and
no jobs were available for them at that time, that hauling operations had been dis-
continued and that "there is not now and will not in the future be any vacancy for
truck drivers," and that these employees would be considered for employment "for
such jobs as may be available in the future on the same basis as any other applicant
for employment" but "only if they indicate individually their interest in future em-
ployment by completing an application at the Company office." The Union replied
by a'letter from Clemens to Ruby, dated April 28, stating that, contrary to Ruby's
contention, the strike was caused "solely by your unfair labor practices, including
your refusal to recognize" the Union, and reiterating the Union's demand for recog-
nition as the exclusive bargaining representative.
By identical letters, dated May 4, 1961, from Industrial Relations Director O'Malley
to Matthews and to each of the strikers listed in the Union's letter of April 18, the
Respondent offered each one immediate reinstatement to the job held prior to the
strike. By identical letters, dated May 5, Matthews and the other strikers replied that
they were interested in returning to work immediately but would not do so " unless
and until" the Union had been recognized as the employees' exclusive collective-
bargaining representative, and indicated their intention to continue on strike for
such recognition. O'Malley replied within a few days by identical letters, stating
that Respondent had "attached no conditions to its offer of reinstatement and will
1e The findings in this paragraph are based on the credited and undisputed testimony
of Bohan
17 The findings in this paragraph are based on the credited and undisputed testimony of
Loren White.
18 The findings in the last two paragraphs are based on the credited and uncontradicted
testimony of Curtis White and admissions by Parks and O'Malley.
PRESTON FEED CORPORATION 637
accept none as a condition to your returning to work," and that the "questions of
representation must be determined by the National Labor Relations Board." 19
C. Legality of Respondent's conduct in transferring its trucking operations and
terminating Matthews' employment
The General Counsel contends that the Respondent's transfer of its trucking
operations and the discharge of Matthews were motivated by the Union's letter
requesting recognition and by Matthews' union activities and hence were unlawful.
The Respondent contends that (1) Matthews' employment was terminated because
of the discontinuance of its trucking operations and (2) the discontinuance, and
transfer to Sterling Processing Company, of its trucking operations were for economic
reasons.
In support of its position, Respondent relies upon the testimony of Plant Manager
Parks, Industrial Relations Director O'Malley, Summers, who was vice president in
charge of transportation of both Respondent and Sterling Processing Company as
well as of all other companies which together make up the Sterling Enterprises, and
Earl Wise, manager of Sterling Processing Company. The composite testimony of
these witnesses is, in substance, as follows: The rendering plant had been operating at
a loss during the year 1960 and it was felt that this was due to the trucking operations
which involved abnormal turnover of drivers and excessive safety and maintenance
costs. As a result of discussions to find a possible solution, O'Malley recommended
in January 1961 that Respondent's trucking operations be discontinued and taken
over by Sterling Processing Company, which is controlled and operated by the same
top management. Summers and Wise agreed with this recommendation. Shortly
after February 15, Summers inquired of O'Malley as to how soon the Respondent's
hauling operations could be taken over by Sterling Processing. O'Malley replied
that "we would not replace any of our present three drivers" but in view of past
experience they would soon be able to transfer the operation gradually by relying on
normal attrition to take care of it. Summers did not dissent from this recommenda-
tion. On Monday, February 27, O'Malley was informed by Parks that Curtis White
had been in an automobile accident and would not be available for some time.
O'Malley that day contacted Summers and they mutually agreed that now was the
time to make the permanent change. That same day Summers informed Wise of
the situation and wanted to know if he could take over the hauling operations im-
mediately. Wise replied that he possibly could but would prefer to wait until the
following Monday, March 6, because the drivers had already been scheduled for
that week. Summers agreed to have the transfer made on the following Monday,
informed O'Malley to that effect, and advised that Respondent should handle the
hauling for the rest of that week with two drivers. O'Malley informed Parks that
the hauling should be handled for the rest of the week with the two remaining drivers
and that it would be permanently transferred to Sterling Processing. O'Malley was
in Oakland on Friday, March 3, at which time Wise confirmed that he would be able
to take over the hauling on Monday, March 6. About noon, Saturday, March 4,
O'Malley notified Parks that Sterling Processing was going to take over all the haul-
ing beginning Monday and that he should inform the drivers of the change in opera-
tions. Parks agreed to notify Loren White and O'Malley agreed to notify Matthews.
Parks and Summers testified that they had no knowledge of any union activities at
Respondent's plant before the strike of March 6; O'Malley testified that he had no
knowledge of the Union's recognition letter or of any union activities before his
meeting with Clemens on Monday morning, March 6.
After careful consideration of Respondent's contentions and the foregoing testi-
mony, which consists primarily of self-serving declarations, I am unable to accept
the contentions or to credit the testimony relating to the circumstances surrounding
the transfer and discharge of Matthews or Respondent's true motivation for its con-
duct. A consideration of the entire record as a whole leads me to conclude that
Respondent's conduct with respect to the transfer of its trucking operations and the
termination of Matthews' employment was discriminatorily motivated. Foremost
among the factors which lead me to this conclusion are the following:
1. The timing of the transfer of the operations and the precipitous method by
which it was effected: Although Respondent' s witnesses allegedly were aware as early
as February 27 or 28 that the transfer of the trucking operations to Sterling Processing
was to become effective on Monday, March 6, it, is admitted that no notice or inkling
' The Union 's representation petition, which had been mailed to the Board's Regional
Ofce,' was subsequently withdrawn by the Union with the consent of the Regional Director,
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any kind that such action was even being contemplated was given to any of Re-
spondent 's employees until Matthews was informed of his termination on Saturday
afternoon , March 4. Parks' entire conduct was hardly consistent with such an alleged
arrangement. Matthews had made the last run for that week on Thursday, March 2,
by which time he had already accumulated substantially 40 hours and therefore was
not scheduled to work on Friday and Saturday. Pursuant to Parks' instructions to
Foreman Zinn, the latter informed Matthews on Thursday to report Monday morning
for the Pennsylvania run, as previously found. Also, as previously found, on Friday
morning when Matthews was at the plant to get his paycheck and engaged in a
lengthy conversation with Parks, the latter told Matthews that he was to take his
regular run to Pennsylvania on the following Monday, March 6, giving him no inkling
of any decision to transfer the work to Sterling Processing. Indeed, Parks admitted
that when he came to work on Monday morning, March 6, he followed his normal
practice of telephoning to the Pennsylvania and Oakland plants to find out what days
they would be working that week so as to enable him to schedule the drivers accord-
ingly. If in fact arrangements had previously been made for Sterling Processing
to begin the hauling operations that morning, there would have been no need for
Parks to make these calls to Pennsylvania and Oakland. Moreover, when Loren
White reported that Monday morning, pursuant to prior instructions, Parks admit-
tedly told him to prepare his truck for the Pennsylvania run without at that time
giving him any inclination about a decision to transfer the trucking operations. And
while White was at the service station getting gas for the truck, he was suddenly
recalled and told by Parks that his run was canceled because of "some trouble" and
that he would be called "when things were straightened out." A driver from Sterling
Processing then took over.
Parks' testimony that he had White prepare to make the run to Pennsylvania that
morning because Oakland had telephoned to report a mixup in drivers' schedules and
to request him to make that run, does not bear scrutiny and is not credited. On
direct examination, Parks testified that he was the one who called Oakland and that
his purpose in calling was to find out what days they were working, information
which was no longer necessary if Respondent did not have to schedule the drivers
to pick up Oakland's offal. Manager Wise testified that they had forgotten to notify
a driver to make the Monday run to Pennsylvania before he left for the weekend
and were at first unable to locate him that Monday morning. This strains credulity
to the breaking point if, as Wise testified, he had in fact had a full week's advance
notice to take over Respondent's hauling operations as of Monday, March 6, had
instructed his dispatcher to have a driver make the run to Pennsylvania on Monday,
and had confirmed the arrangement the preceding Friday.
Moreover, if the decision to make the transfer effective as of March 6 had in fact
been made about a week in advance, there would have been no need for O'Malley
to have notified Parks about noon on Saturday that Sterling Processing would take
over .the hauling the following Monday. Finally, O'Malley gave no explanation for
suddenly reversing his previously agreed upon program of not discharging any of
Respondent's drivers but of making a gradual transfer of the operations while wait-
ing until all the jobs had been eliminated through normal attrition.
2. Transfer not regarded as a fixed and firm arrangement: On Monday morning,
March 6, Parks had told Loren White, after his recall from the service station and the
cancellation of his run, that "there had been some trouble" and that he would be
called "when things were straightened out." A few days later, Parks did tele-
phone Loren White and inquired whether he would like to work as a laborer in the
plant "until the situation was over." White agreed to try it out and worked for about
a week. Parks also told White that they had transferred the truck hauling "for the
time being" and that they would be back on the road "after a while." When White
voluntarily quit his job in the plant, Parks told him that he was a good man and that
Parks would like to have him back as a truckdriver.20
During their conversation at Manheim on Monday morning, O'Malley asked
Clemens what employees he claimed to represent. Clemens listed the truckdrivers
and laborers at Reedsville. O'Malley made no claim that the truckdriving had been
eliminated and the operation transferred to another company.
Charles Knotts had been hired as a strike replacement on March 8. During the
first week of his employment, Knotts asked Parks about the possibility of getting a
better job. Parks replied that they were going to take on new drivers if the Union
did not get in and that Knotts would then have a "pretty good chance" of getting one
of the truckdriving jobs.
20 Significantly , Respondent 's brief makes no mention of these undenied statements of
Parks after White was contacted to work in the plant.
PRESTON FEED CORPORATION 639
During the strike, Parks also asked Curtis White, whom he accidentally met at the
service station, when he would return to work. White replied that he was on sick
leave and that as long as the "strike situation was on," he would not drive for the
Company.
That the transfer of the trucking operations was not regarded by Respondent as a
fixed and firm arrangement is further shown by Respondent' s willingness to resume
these operations only 2 months later when O'Malley informed Matthews of Respond-
ent's offer of reinstatement to his former truckdriving job. Such resumption did not
pose any difficult problems because both companies are controlled and operated by
the same management.
3. Lack of economic necessity for the transfer: Respondent offered no records into
evidence in support of the testimony that its rendering plant operated at a loss during
1960, or that, if such loss did occur, it was due to its trucking operations. That Re-
spondent's officials felt that there was no urgency about effecting the transfer of its
hauling operations but were willing to wait until the driving jobs were eliminated
through the normal attrition of Respondent's drivers, tends to rebut this contention.
Still stronger evidence refuting this contention appears in Parks' statements to Loren
White and Knotts, as above set forth, and in Parks' admission of Respondent's will-
ingness to resume its trucking operations if Matthews had accepted O'Malley's offer,
made on May 4, of reinstatement by Respondent to his former truckdriving job.
It is difficult to believe that, if Respondent had incurred losses because of its trucking
operations and had made the transfer to Sterling Processing for the purpose of effect-
ing economies in such operations, it would have been ready and willing to resume
these operations only 2 months later and only about 10 days after President Ruby
had informed the Union that there would not be any future vacancies for
truckdrivers.
4. The disparate treatment accorded to Matthews: Matthews was an admittedly
satisfactory driver with a good employment record. He was regarded as a safe,
dependable driver and was complimented by Parks for constructing an electric hoist
for loading the trucks more efficiently, a device which Loren White admittedly also
used. He had seniority over Loren White and would have been raised to the maxi-
mum of $1.50 per hour within a short time after his termination. Yet, Matthews
was the only driver whose employment was terminated. As previously found, on
Saturday afternoon, March 4, O'Malley informed Matthews that Parks was making
different arrangements for the hauling and that his services were no longer required.
No termination notice was ever given to Loren White and Curtis White, the other
two drivers. Despite the fact that Matthews had not worked on Friday and Saturday
whereas Loren White had worked those 2 days, the fact that Matthews lived only
about 8 or 10 miles from the plant whereas Loren White lived about 25 miles away,
and the fact that Matthews had seniority over Loren White and had such a good
employment record, Parks instructed Loren White, and not Matthews, to make the
Pennsylvania run on Monday morning, March 6, before it was called off. During the
strike, Parks offered Loren White, who had neither signed a union card nor joined
in the strike or picketing, another job in the plant and later told him that he would
like to have him back as a truckdriver. Both Parks and O'Malley inquired of Curtis
White, who was regarded as being on sick leave, as to when he would return to work.
That Parks did not know whether Curtis White was a union supporter or adherent is
apparent from his inquiry as to whether White was part of the strike "situation."
No such offers, promises, or inquiries were made with respect to Matthews.
Of the three drivers, Matthews was the only one who had frequently complained
to O'Malley and Parks about not receiving sufficient hours of work and had also made
frequent suggestions for increasing the hauling operations as well as for improving
working conditions, none of which were acceptable to Respondent. Matthews then
took the initiative in getting the employees interested in the Union and having a ma-
jority sign the union authorization cards. Parks admitted that about a week before
the strike he had heard rumors about union activity at the plant. The Union's letter,
requesting recognition for the purpose of negotiating a collective-bargaining agree-
ment , was received Saturday morning, March 4. That afternoon, Matthews was sum-
marily notified that his services were no longer needed. The following Monday
morning when Clemens accused O'Malley of having fired the man who had done most
of the organizing, naming Matthews, O'Malley made no disclaimer of lack of knowl-
edge of Matthews' role or activities in this respect During the first weer of the
strike both O'Malley and Parks told employee Knotts that Matthews was fi-ed be-
cause they found out about his union activity, as previously found. During the same
period, also as previously found, Parks told employee Bohan that Matthews was no
longer working because he had been "outlawed," adding that Matthews was believed
to be the cause of the strike.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Respondent's whole course of conduct, hereinabove detailed, is more consistent
with, and more reasonably explained by, the following which I find truly reflects
what actually occurred: Whether or not the transfer of Respondent's trucking oper-
ations had been under prior consideration, there was no pressing economic necessity
for effecting such a transfer. As previously found, the Union's letter, advising of its
selection by Respondent's employees as bargaining representative for the purpose of
negotiating a collective-bargaining agreement and requesting recognition as such
representative, was received on Saturday morning, March 4. O'Malley was informed
of the contents of that letter immediately upon its receipt and it was at that point that
a decision was made to effect an immediate transfer to Respondent's trucking opera-
tions as a maneuver to combat the Union. O'Malley, then, for the first time, com-
municated his decision to Parks. According to Parks' own testimony, it was not until
about noon on that Saturday that O'Malley informed him that all hauling opera-
tions would be taken over by Sterling Processing as of the next working day, Mon-
day, March 6. Thereafter, hurried arrangements were made with Manager Wise of
Sterling Processing to take over the hauling operations the following Monday but
not in sufficient time to enable him to contact a driver to be available for the Monday
morning run to Pennsylvania before Loren White was required to prepare to make the
run himself. Matthews was then treated differently from the other two drivers,
and his employment terminated, because his union activities became known. The
alleged economic considerations advanced by Respondent at the hearing as the as-
serted reason for its conduct was seized upon as an afterthought to cloak its dis-
criminatory motivation.
I find that the decision to make the transfer of Respondent's hauling operations
to Sterling Processing, effective as of Monday, March 6, was motivated by the
Union's recognition letter, that the transfer was designed as a maneuver to dis-
courage adherence to the Union and to undermine the status of the Union as the
employees' collective-bargaining representative, and that Matthews' employment was
terminated because of his union activities.21 By such conduct,' Respondent has dis-
criminated with respect to its employees' hire, tenure, and terms and conditions of
employment, thereby discouragaing membership in the Union in violation of Section
8(a)(3) and (1) of the Act.
D. The refusal to bargain
1. The appropriate unit
Respondent's rendering plant is located at Reedsville, West Virginia. It is en-
gaged in the processing of poultry and animal offal into ingredients used for poultry
and animal feed. The finished products of this plant are feather meal, byproduct
meal, and a tallow or grease. The only nonsupervisory help employed by Respondent
at the rendering plant are laborers and, prior to the transfer of its trucking opera-
tions, truckdrivers.
The Respondent also operates a feed mill at Manheim, West Virginia, about 25
miles from Reedsville, where it is engaged in the grinding, mixing, and pellatizing of
feed owned by another corporation of the Sterling Enterprises. Only about five or
six employees were working at this plant at all times material herein.
The Respondent contends that, unless the employees of the Manheim plant are
found to be agricultural employees, the only appropriate unit is one of the employees
a I have fully considered, and found unpersuasive, the following additional factors
relied upon by Respondent: (1) Sterling Processing is represented by the Meat Cutters
and Teamsters Unions ; (2) Knotts was hired, despite his reply, in response to Parks'
query as to what Knotts thought about the Union, that he believed there would be better-,
working conditions with a union ; (3) District 50 made some attempt to organize Re-
spondent's plant in 1959 and no one was fired; and (4) Matthews and three other em-
ployees were hired by O'Malley although they had been employed by Armour and had
been members of the Teamsters Union As to (1), the record does not disclose the circum-
stances under which these unions were recognized As to (2), the Respondent was in no
position to be selective, as it was in need of strike replacements, and it was not taking
much of a chance in hiring an employee who was willing to cross the picket line and work
during the strike As to (3), all that the record shows about District 50 is that Foreman
Zinn had heard that men were signed up for District 50 and that he told Parks about It;
this is hardly comparable to the instant case where the Union had succeeded in signing
up a majority of the employees and the Respondent was confronted with a letter requesting
recognition . As to (4), the record does not disclose that O'Malley was aware that these
men had been employed by Armour and had been members of the Teamsters Union.
PRESTON FEED CORPORATION 641
of both plants. The General Counsel contends that, regardless of the status of the
employees of the Manheim plant, a unit confined only to the employees of the
rendering plant is an appropriate unit.
As previously noted, the two plants are located 25 miles apart. They operate
under separate immediate supervision, with no interchange of employees. The em-
ployee classifications differ and the wage rates are not necessarily the same. There is
no bargaining history and no union is seeking a single unit of both plants. In view
of the foregoing, I find, even assuming that the employees of the Manheim plant are
not agricultural employees, that a unit confined to the rendering plant alone is an
appropriate umt.22 Accordingly, I find that all employees of Respondent's plant
at Reedsville, West Virginia, excluding supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
2. The Union's majority status
The undisputed evidence shows that as of February 25 and March 4, 1961, there
were 11 unit employees at Respondent's rendering plant, and that 9 of these em-
ployees had signed valid union authorization cards by February 25, 19,61. I therefore
find that the Union had been designated as the collective-bargaining representative
by a majority of the employees in the appropriate unit by February 25, 1961.23 I
further find that at all times on and after February 25, 1961, the Union has been
and is the exclusive representative of the employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
3. Conduct constituting a refusal to bargain in violation of the Act
As previously found, on Saturday morning, March 4, Respondent received the
Union's letter, advising that it had been selected by Respondent's employees as bar-
gaining representative for the purpose of negotiating a collective-bargaining agree-
ment and requesting recognition as such representative. The only answer Respondent
ever made to this letter was to engage in the unfair labor practices of transferring
its trucking operations and discharging Matthews, as previously found. In his con-
versation with O'Malley on Monday morning, March 6, Union Business Agent
Clemens in effect renewed his recognition request by referring to the Union's letter of
March 3 and stating that the Union represented the employees at the Reedsville
plant. Clemens also accused O'Malley of having discharged the Union's chief or-
ganizer, and offered to prove the Union's majority representation by either a card
check, a consent election, or an election by a neutral person, if O'Malley would re-
instate Matthews and agree to maintain the status quo. At that time Clemens was
unaware of the decision to transfer the trucking operations. When Clemens re-
ported back to the men that afternoon, he was informed of the fact that Loren
White had been called back while in the process of having his truck serviced and that
his run was taken over by a driver from Sterling Processing of Oakland, Maryland.
Realizing for the first time at this point that Respondent was eliminating its truck-
driving jobs, a picket line was immediately set up. When O'Malley met Clemens on
the picket line that same day, Clemens again offered to agree to a method for prov-
ing the Union's majority if Respondent would reinstate Matthews and restore the-
status quo as to the drivers. This Respondent never agreed to do The Union re-
iterated its demand for recognition in its letter of April 28. The first and only reply-
ever made by Respondent was O'Malley's letter, dated May 5, in which he stated that
the question of representation must be determined by the Board.
I find no merit in Respondent's contention that its failure to recognize the Union
was based on a good-faith doubt as to the appropriate unit and as to the Union's
majority representation. Clemens made it clear to O'Malley that the Union repre-
sented the employees of the rendering plant at Reedsville. It was not denied that at
no time did O'Malley or any other representative of Respondent express any doubt
to Clemens on these matters.24 Indeed, it was Respondent who failed to agree to-
Clemens' offer to prove the Union's majority in various ways Moreover, any
genuine doubt as to the Union's majority representation should have been dispelled-
when a majority of the employees of the rendering plant took part in the strike
See, e g, Kearfott Company , Inc, 112 NLRB 978, 981; Gulf Soap Corporation, 48
LRRM 1313 ( not published in NLRB volumes).
It is significant to note that even if the five or six employees of the Manheim plant=
were included in the unit , the Union still maintained its majority representation.
24 See, e.g., Arts 1 Crafts Distributors , Inc., 132 NLRB 166.
630849-62-vol . 131 12
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which began on March 6 .25 Finally, Respondent's asserted good faith is completely
belied by the unfair labor practices in which it engaged for the purpose of discourag-
ing adherence to the Union and undermining the Union's representative status in
response to the Union's first letter requesting recognition. During the first week of
the strike, Respondent committed additional unfair labor practices violative of
Section 8(a)(1), as hereinafter found. As a free election was thus made im-
possible because of Respondent's unfair labor practices which Respondent refused to
remedy, the Union made a timely withdrawal of its representation petition and pro-
ceeded to establish its bargaining rights through this complaint proceeding.26
The Union's March demand for recognition as bargaining representative for the
purpose of negotiating a contract for employees in an appropriate unit imposed upon
Respondent a duty to grant such recognition and to bargain which Respondent may
not, as it did, evade by failing to make or delaying its response, committing unfair
labor practices, and then belatedly questioning the appropriate unit and the Union's
majority status.27 In view of all the foregoing, I find that Respondent's failure and
refusal to recognize the Union on and after March 4, 1961, constituted a refusal to
bargain within the meaning of Section 8(a)(5) and (1) of the Act.
E. Discrimination with respect to the hire and tenure of employment of the strikers
1. Nature of the strike
The testimony is undisputed that the employees voted to strike to protest the dis-
charge of Matthews and to obtain recognition of the Union. That the Respondent's
conduct in withholding recognition while engaging in unfair labor practices was a
contributing factor to the cause and prolongation of the strike became apparent when
the employees and Clemens became aware, after his conversation with O'Malley on
Monday, March 6, that Respondent was eliminating the jobs of truckdrivers. Indeed,
it was Respondent's conduct in this respect which triggered the immediate setting
up of a picket line. Any doubt that Respondent's refusal to recognize the Union
was a contributing factor to the cause and prolongation of the strike is completely
removed by Clemens' letter to President Ruby, dated April 28, 1961, in which
Clemens states that "this strike was caused solely by your unfair labor practices,
including your refusal to recognize Teamsters Local Union No. 789, as the exclusive
bargaining representative of your employees in spite of our letter of March 3, 1961,
requesting recognition." In any event, Respondent's failure to recognize the Union
was clearly an additional factor which immediately contributed to the prolongation
of the strike.
I find that the strike, which began on March 6, 1961, and was still in effect at
the time of the hearing in this proceeding, was caused and prolonged by Respondent's
unfair labor practices in discharging Matthews and in failing and refusing to recog-
nize the Union, as previously found. By identical letters dated May 4, 1961, Re-
spondent offered the strikers and Matthews unconditional reinstatement to the job
which they held prior to March 6. By identical-letters dated May 5, the strikers and
Matthews refused to return to work unless Respondent recognized the Union, and
indicated their intention to continue to protest Respondent's unfair labor practice
in refusing such recognition. I find that on and after May 5, 1961, the strike was
prolonged solely by Respondent's unfair labor practice in refusing to recognize the
Union and that Matthews became an unfair labor striker on that date.
2. Failure to reinstate strikers
As previously found, by letter dated April 18, 1961, the Union made an uncon-
ditional request for reinstatement on behalf of eight named strikers. This request
was refused by Respondent in a letter dated April 24. However, as previously
noted, the strikers were offered unconditional reinstatement by letters dated May 4.
At that time the strikers refused to accept this offer until Respondent recognized
25 Majority support of a strike is evidence that the Union represents a majority
Seven-Up Bottling Company of Miami, Inc . 92 NLRB 1622, 1623, Irving Taitel, Ruth
Tastel and Jerome Taitel, d/b/a I Taitel and Son, a partnership, 119 NLRB 910, 924;
Michael Benevento and John Benevento d/b/a M. Benevento Sand & Gravel Co , 131 NLRB
358. Contrary to Respondent's assertions in its brief, strike replacements are not counted
in determining the Union's majority status where the strike is caused and prolonged by
Respondent's unfair labor practices, as hereinafter found _
'Arts & Crafts Distributors, Inc, 132 NLRB 166.
27 Ibid.
PRESTON FEED CORPORATION ` 643
the Union , and made known their intention to continue on strike in protest against
Respondent 's unfair labor practices in refusing to recognize the Union.
Respondent was obligated to reinstate the unfair labor practice strikers upon their
unconditional request, discharging, if necessary, any replacements in order to provide
work for the strikers.28 Respondent's failure and refusal to do so during the period
from April 18 to May 4, 1961, constituted discrimination against the strikers in
violation of Section 8(a) (3) and (1) of the Act.
F. Interference, restraint, and coercion
In agreement with the General Counsel , I find, as alleged in the complaint, that
Respondent interfered with , restrained , and coerced its employees in the exercise of
their. statutory rights, in violation of Section 8(a)(1) of the Act, by the following
additional conduct:
1. Plant Manager Parks' interrogation during the strike, as previously found, (a)
of Knotts, who was applying as a strike replacement, as to what he thought of the
Union, (b) of Bohan, who was on sick leave because of a plant injury, as to when
he could return to work and if he had signed a union card, and (c) of Curtis White,
who was on sick leave because of an injury, as to whether he was part of the strike
"situation." 29
2. Parks' promise, in response to employee Knotts' inquiry as to opportunities for
a better job after he had been working a short time as a strike replacement, that if
the Union did not get in Knotts would have a "pretty good chance" of getting a truck-
driving job, as previously found.
3. The photographing by Vice President Summers on the first day of the strike of
the employees engaged in peaceful picketing on the entrance road leading to Re-
spondent's plant, as previously found. In the absence of any explanation of justifica-
tion for its conduct in this respect (and none appears in this record), such conduct
has been held to constitute unlawful surveillance.30
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of 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 obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discontinued the operations of its trucking services
with its own employees in violation of Section 8(a)(3) and (1) of the Act, I will
recommend that Respondent be ordered to resume operations of its trucking services
with its own employee driver. The hauling operations are still needed in the conduct
of Respondent's business; its performance for the Respondent was merely trans-
ferred to a corporation controlled and operated by the same top management and
constituting part of the Sterling Enterprise. As previously found, the transfer of
these operations was not regarded by Respondent as a fixed and firm arrangement
and their resumption by Respondent posed no difficult or serious problems. Under
these circumstances, the requirement that Respondent be ordered to resume the
hauling operations with its own employees imposed no undue hardship, is adapted
to the situation calling for redress , and is necessary to effectuate the policies of
the Act .31
As Respondent 's unlawful discontinuance of its trucking operations eliminated
the truckdriving jobs, it is necessary in order adequately to effectuate the policies
of the Act to require Respondent to remedy any loss of jobs or earnings incurred by
anyone employed at that time as a truckdriver, whether or not he has any interest
° See,'e g, Winchester Electronics, Incorporated, Pyne Moulding, Inc, 128 NLRB 1292,
Walsh-Lumpkin Wholesale Drug Company. 129 NLRB 294
^ It is clear from' the context that such Interrogation was not engaged in for the pur-
pose of ascertaining the validity of the Union's majority claim.
'' See, e g, Radio Industries, Inc, 101 NLRB 912, 914, 625; Hudson Hosiery Company
(Monroe Road Plant), 109 NLRB 1410, 1411, 1416
Hugh Major d/b/a Hugh Major Truck Service, 129 NLRB 322
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Union or has been specifically named in the complaint. At the time of the
discontinuance of the trucking operations , Respondent admittedly had in its employ
three truckdrivers, Loren White, Curtis White, and Matthews. All three were
deprived of their truckdriving jobs as a result of Respondent's unlawful conduct. I
will therefore recommend that Respondent be ordered to offer to Loren White and_
Curtis White, if physically able to resume said work, immediate and full reinstate-
ment to their former or substantially equivalent positions as truckdrivers, without
prejudice to their seniority or other rights and privileges, and make them whole for
any loss of earnings each may have suffered as a result of the discriminatory dis-
continuance of the trucking operations by payment to Loren White of a sum of
money equal to the amount he normally would have earned as a truckdriver from
March 6, 1961, the effective date of the discontinuance of the trucking operations,.
and by payment to Curtis White of a sum of money equal to the amount he normally-
would have earned as a truckdriver from the date he was physically able to resume
such work, to the date of Respondent's offer of reinstatement in each case, less his.
net earnings during said period, with backpay to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294.
Matthews' case must be treated differently, as he refused Respondent's uncondi-
tional offer of reinstatement to his former position on May 4, and at that time be-
came an unfair labor practice striker. However, as I have previously found that
Matthews was discharged on March 4 because of his union activities, the Respondent
shall be required to make him whole for any loss of earnings he may have suffered-
as a result of the discrimination against him, by payment to him of a sum of money
equal to the amount he normally would have earned as a truckdriver from March 4,
1961, the date of his discharge, to May 4, 1961, the date of Respondent's uncondi-
tional offer of reinstatement , less his net earnings during said period , with backpay-
computed in the same manner as above.
Having previously found that Respondent discriminated against the unfair labor-
practice strikers by failing and refusing to reinstate them, upon their unconditional-
request, during the period from April 18 to May 4, 1961, 1 will recommend that
Respondent be ordered to make each whole for any loss of earnings each may
have suffered during this period as a result of such discrimination, in the same-
manner as above.
Having found that the strike continued to be prolonged on and after May 5 -
by Respondent's unfair labor practice in refusing to recognize the Union, I will further
recommend that Respondent be ordered to offer to the unfair labor practice strikers,
including Matthews, listed in the Appendix hereto, upon their unconditional
applications, immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority and other rights and privileges,
dismissing, if necessary, any person hired on and after March 6, 1961, to provide-
places for the returning strikers. I will also recommend that Respondent be or-
dered to make said striking employees whole for any loss of pay they have suffered'
or may suffer by reason of Respondent's refusal, if any, to reinstate them, by
payment to each of them of a sum of money equal to that which each normally
would have earned as wages during the period from 5 days after the date on which
an individual employee applies for reinstatement to the date of Respondent's offer
of reinstatement , less his net earnings during said period , in accordance with the
formula prescribed in the Woolworth case , supra.32
Having found that Respondent has refused to bargain with the Union in violation
of Section 8(a)(5) and (1) of the Act, I will recommend that Respondent be
ordered to bargain with the Union, upon request, as the exclusive representative of-
all its employees in the appropriate unit concerning rates of pay, wages , hours,
and other terms and conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
In view of the nature and extent of Respondent 's unfair labor practices, I am
convinced and find that there exists the danger of the commission of similar and
other unfair labor practices proscribed by the Act. The preventive purposes of
the Act will be thwarted unless the order is coextensive with the threat. In order
therefore to make more effective the interdependent guarantees of Section 7 to
prevent a recurrence of unfair labor practices , and thereby minimize industrial
strife which burdens and obstructs commerce , and thus effectuate the policies of-
the Act, I will recommend that Respondent be ordered to cease and desist from
infringing - in any other manner upon the rights guaranteed in Section 7 of the Act.
82 See, e g, Concrete Haulers, The, Wamie, Inc., and Red -D-Mix, Inc., 106 NLRB 690,_
693-694, enfd . 212 F . 2d 477 ( C.A. 5) ; Buffalo Arms. Inc. Division of Frontier Industries,.
Inc., 110 NLRB 816.
PRESTO N FEED CORPORATION 645
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. All employees of Respondent's plant at Reedsville, West Virginia, excluding
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No.
789, a labor organization within the meaning of Section 2(5) of the Act, has been
at all times on and after February 25, 1961, the exclusive representative of all the
-employees in the aforestated appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By failing and refusing at all times on and after March 4, 1961, to bargain
,collectively with the above-named labor organization as the exclusive representative
of its employees in the aforestated appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
•of the Act.
4. By discriminating with respect to the hire, tenure, and terms and conditions
of employment of its truckdrivers, including Donald Matthews, and of the unfair
labor practice strikers who were denied reinstatement from April 18 to May 4, 1961,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
5. By the foregoing and by the conduct set forth in section III, F, supra, the
Respondent has interefered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
6. The strike, which commenced on March 4, 1961, was caused and prolonged by
Respondent's unfair labor practices, as set forth in section III, E, 1, supra, and
hence was an unfair labor practice strike.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Preston Feed Corporation, Reeds-
ville, West Virginia , its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Teamsters, Chauffeurs, Warehouse-
men & Helpers Local Union No 789, or any other labor organization of its em-
ployees, by discriminatorily transferring its trucking or any other operations, by
.discriminatorily discharging or refusing to reinstate any of its employees , or by dis-
,criminating in any other manner in regard to its employees ' hire and tenure of em-
ployment or any term or condition of employment.
(b) Refusing to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, with the above-named
labor organization , as the exclusive representative of its employees in the following
appropriate unit : All employees of Respondent 's plant in Reedsville , West Virginia,
excluding supervisors as defined in the Act.
(c) Promising employees opportunities for better jobs or other economic bene-
fits if the Union does not become the employees ' collective -bargaining representa-
tive, engaging in surveillance , and interrogating employees or applicants for em-
ployment concerning their union membership , attitude , sympathies , or activities, in
a manner constituting interference , restraint, or coercion within the meaning of
Section 8 (a)( I) of the Act.
(d) In any other manner interfering with , restraining , or coercing its employees in
the exercise of the right to self-organization , to form labor organizations, to join
or assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3) of the Act, as modified
Thy the Labor-Management Reporting and Disclosure Act of 1959.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in the above-described appropriate
unit with respect to rates of pay, wages, hours of work, and other terms and con-
ditions of employment, and embody in a signed agreement any understanding
reached.
(b) Resume trucking operations with its own employee drivers and offer to Loren
White and Curtis White, if physically able to resume such work, immediate and full
reinstatement to their former or substantially equivalent positions as truckdrivers,
without prejudice to their seniority or other rights and privileges, and make them
whole for any loss of pay suffered by them in the manner set forth in "The Remedy"
section of this report.
(c) Make whole Donald Matthews for any loss of earnings he may have suffered
from March 4, 1961, the 'date of his discriminatory discharge, to May 4, 1961, the
date of Respondent's unconditional offer of reinstatement, in the manner set forth
in "The Remedy" section of this report.
(d) Make whole the remaining employees listed in the Appendix hereto for any
loss of earnings each may have suffered as a result of Respondent's discrimination
against them during the period from April 18, 1961, the date of their unconditional
request for reinstatement, to May 4, 1961, the date of Respondent's offer of rein-
statement, in the manner set forth in "The Remedy" section of this report
(e) Upon application, offer to Donald Matthews and to the employees referred
to in the preceding paragraph, all of whom are listed in the Appendix attached here-
to, immediate and full reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority or other rights and privileges, dismissing,
if necessary, any persons hired on or after March 6, 1961, and make them whole
for any loss of pay .they have suffered or may suffer by reason of the Respondent's
refusal, if any, to reinstate them, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(f) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the de-
termination of the amount of backpay due and the right of reinstatement under
these Recommendations.
(g) Post at its plant in Reedsville, West Virginia, copies of the notice attached
hereto marked "Appendix." Copies of said notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the 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 to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for the Sixth Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report, what steps it has taken
to comply herewith.
I further recommend that unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing Recom-
mendations, the National Labor Relations Board issue an order requiring the Re-
spondent to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters, Chauf-
feurs, Warehousemen & Helpers Local Union No. 789, or any other labor or-
ganization of our employees, by discriminatorily transferring our trucking or
any other operations, by discriminatorily discharging or refusing to reinstate
any of our employees, or by discriminating in any other manner in regard to our
employees' hire, tenure, or any term or condition of employment.
WE WILL NOT promise employees opportunities for better jobs or any other
economic benefits if the above-named Union does not become the employees'
collective-bargaining representative; WE WILL NOT engage in surveillance;
GENERAL PLANT PROTECTION CORPORATION 647
and WE WILL NOT interrogate employees or applicants for employment con-
cerning their union membership, attitude, sympathies, or activities in a manner
constituting interference, restraint, or coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization, to form, join, or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a)(3) of the Act, as
amended.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representatives of all employees in the
following unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is: All em-
ployees of our plant in Reedsville, West Virginia, excluding supervisors as de-
fined in the Act.
WE WILL resume trucking service with our own employee drivers.
WE WILL offer to Loren White and Curtis White, if physically able, imme-
diate and full reinstatement to their former or substantially equivalent positions
as truckdrivers, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered by them.
WE WILL, upon application, offer the following employees 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
for any loss of pay they have suffered by reason of our refusal to reinstate
them.
David L. Adams Kenneth G. Croft
Darwin Bohan Joseph P. DeSantis
Buck D. Cole Keith E. McKinney
Jack L. Cole Ronald L. Waybright
Donald Matthews
WE WILL further make Donald Matthews whole for any loss of earnings he
may have suffered from March 4 to May 4, 1961, and the remaining employees,
listed in the preceding paragraph, whole for any loss of earnings they may have
suffered from April 18 to May 4, 1961.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any labor organization, except to the extent that this right may
be affected by a lawful agreement requiring membership in a labor organization as
a condition of employment.
PRESTON FEED CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
General Plant Protection Corporation and United Plant Guards
Amalgamated , Local No. 5. Case No. 19-CA-2213. November 00,
1961
DECISION AND ORDER
On September 6, 1961, Trial Examiner William Spencer issued his
Intermediate Report, finding that the Respondent had engaged in and
was engaging in unfair labor practices in violation of Section 8 (a) (3)
134 NLRB No. 68.