Agricom Oilseeds, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 616 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELAT'IONS BOARD
Agricom Oilseeds, Inc. and General Teamsters Local
137, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 20-CA-13936
September 28, 1979
DECISION AND ORDER
BY MEMBERS PENEI.IO, MURPHY, AN) TRtUESDA.E
On May 17, 1979, Administrative Law Judge Har-
old A. Kennedy issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed
limited exceptions and a brief in answer to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified.2
The General Counsel in paragraph 6(a) of the com-
plaint alleged that Respondent on June 13, 1978, had
"created the impression amongst employees that it
was engaging in surveillance of the employees' union
activities." The Administrative Law Judge found that
Respondent had, in fact, engaged in such conduct in
violation of Section 8(a)(l) of the Act. However, in
reaching this finding, the Administrative Law Judge
relied on an event that had occurred on June 26,
1978, i.e., the polling incident, and not on conduct
which took place on or about June 13. as alleged in
paragraph 6(a) of the complaint. We disagree with
the Administrative Law Judge's conclusion that the
polling incident also created the impression that Re-
spondent was surveilling its employees' union activi-
ties. The factors necessary to establish a prima Jfiicie
I Respondent has excepted to certain credibility findings made hy the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard DrN Wall Products, Inc., 91 NI.RB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In the fourth paragraph of' the section of his Decision entitled "b. Testi-
mony." the Administrative Law Judge referred to employee English's testi-
mony that Respondent has announced that a pay raise would go into effect
on July 1I 1978. Examination of the record reveals that English testified that
the effective date of the increase would be June I, 1978.
2 General Counsel has excepted to the Administrative Law Judge's failure
to recommend that interest on backpay should be computed at 9 percent per
annum. We find no merit in this contention. See Florida Steel Corporaiion.
231 NLRB 651 (1977).
showing of such a violation are not identical with
those necessary to establish uniawful polling. There-
fore, while the record before us demonstrates that Re-
spondent unlawfully polled its employees, such evi-
dence does not simultaneously sustain the allegation
that it thereby also created the impression of surveil-
lance of its employees' union activities. Inasmuch as
the record contains no evidence to support this allega-
tion, we shall dismiss paragraph 6(a) and amend the
Order and notice accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Agricom
Oilseeds, Inc., Grimes, California, its officers, agents.
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Delete paragraph I(c) and reletter the following
paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
No I(L To EMPI.oYEIS
PoSI ED BY ORDER Ol: ItE
NAII()NAI. LABOR REIAII()NS BOARD
An Agency of the United States Government
WE WIi.i. NOI discourage membership in Gen-
eral Teamsters ocal 137, International Brother-
hood of' Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor or-
ganization, by discharging or laying off any of
our employees or in any other manner discrimi-
nating against them in regard to their tenure of
employment or any term or condition of employ-
ment.
WE wll.. N refuse to recognize or bargain
with said Local 137 as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below.
WE WILL . NOT threaten to change work shifts
of employees in order to induce employees to
abandon support of a union.
WE W\ILi. NOI interrogate employees concern-
ing union membership, activities, or desires.
WE Will. NOI poll employees regarding their
union sympathies. activities, and membership.
WE WIIt NO threaten to discharge or lay off
employees if they select a union to represent
them.
245 NLRB No. 70
616
AG(RI('OM OISFF)DS. IN('
WI- WiiI N)I threaten emploees with loss of
privileges and benefits if they select a union to
represent them.
Wl. \VIII NOI in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
Wi NviiI., upon request. bargain collectively
with said Local 137 as the exclusive bargaining
representative of all the employees in the bar-
gaining unit described below with respect to
rates of pay, wages, hours of employment, and
other conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a written, signed agreement. The bar-
gaining unit is:
All press operators. machine maintenance em-
ployees, clean-up employees. load-out employ-
ees and working forepersons. excluding office
clerical employees, all other employees, guards
and supervisors as defined in the Act.
Wt: wtt offer to Buster Berglund, Colin Eng-
lish. Frank Klimek, and Mike O'Farrell, to anyV
extent we have not done so, reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed: and wi x ni.i. make
them whole for any loss of earnings and benefits
suffered by reason of their being discriminated
against, with interest.
A(,RI(OM OII.SIEt:I)S, IN(.,
DE('ISION
SIAItIMINI O1 1 ti CASI:
HAROI.I) A. KNNFDDY, Administrative Law Judge: This
matter was heard before me in Yuba C'ity, California,. on
October 26, 27, 30. and 31. and November I. 1978. The
complaint, based on charges filed by General Teamsters
Local 137. International Brotherhood of Teamsters. ('hauf-
feurs, Warehousemen and Helpers of America (Union).
charges the Respondent Employer. Agricom Oilseeds. Inc.,
with violating Section 8(a)( I). (3), and (5) of the National
Labor Relations Act, as amended (Act).' Paragraph 6 of the
complaint alleges that Respondent. either through Bill
Cates or Dwight Hendrix, on no less than 14 separate occa-
sions during June 1978. interfered with. restrained. and co-
erced employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, contrary to Section 8(a)( I ) of the Act. Ihe
The Union's initial charge was filed July 11, 1978. The Ilnion filed in
amended charge on August 14. 1978, and the complaint issued on Algulst 18.
1978. All dates used herein refer to 1978 unless otheru ise indicated
following alleged cts of' Respondent were attributed Ito
I)Nsight lendrix:
a. C'reated among emploees the impression of' sursecil-
lance of union activities on or about June 13 (par. 6(a)).
h. Advised an emploee on or about June 13 that bene-
fits would he denied to emplo ee it' the Union were selected
as the bargaining agent (par. 6(hb)).
c. Ihreatened on or about June 19 to change an emplo)-
ee's shift f'employees did not abandon their support for the
Inion (paragraph 6(e)).
d. Interrogated employees regarding union s)mpathies
on or about June 19, June 28. (on two different occasions)
and late June (par. 6(f), (i). (I). and (n)).
e. Threatened an employee on or about June 19 with
denial of benefits to employees if they selected the Union as
bargalinng representative (par. 6(g)).
f. Polled emplosees regarding their union membership.
activities. and smpathies for the Union on or about June
28 (par. 6(j)).
g. Threatened an emplo\ee several times in June with
discharge and/or layoff if employees selected the [Union as
hargaining representative (par. 6(m)).
h. Threatened an employee in late June with loss of
privileges and benefits to employees if they selected the
I'nion as their collective-bargaining representative (par.
6(o)).
The following alleged acts of Respondent were attributed
to Bill ates:
a. Threatened an employee on or about June 15 with a
transfer from the day to night shift because of his union
svrmpathies (par. 6(c)).
h. (Gave an employee an impression on or about June 16
he would be discharged because of' his union sympathies
(par. 6(d)).
c. (reated the impression on or about June 28 among
employees that Respondent was engaging in surveillance of
employees' union activities (par. 6(k)).
I'he complaint also alleges in paragraph 6(h) an addi-
tional Section 8(a)( 1 ) violation i.e.. a refusal to grant wage
increases because of union s mpathies ofemployees- with-
out attributing it to ans individual representative of the
Respondent.
Paragraph 7 of the complaint alleges Respondent vio-
lated Section 8(a)(3) and (I) of the Act by:
a. Switching employee ('olin English from the night shift
to the day shift on or about June 16. 1978. because of his
union membership, activities, or smpathies.
h. Refusing to permit employee Frank Klimek to work
overtimne since on or about June 19 because of his union
membership. activities, or sympathies.
c. Laying off or discharging. on or about June 30. Buster
Berglund, (olin English. Frank Klimek. and Mike O'Far-
rell because of union membership or activities or other pro-
tected concerted activities.
'Ihe complaint also avers that the Ulnion represents a
majorit of a unit of Respondent's employees and that the
Ilnion requested Respondent to recognize and bargain col-
lectixelx with it. Respondent's ftilure to do so is alleged to
be a ilation of Section 8(a)(5) and (I 1.
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. IHF VII)EN('I
A. Undisputed Matters
A number of matters were established by the pleadings,
stipulation, or undisputed evidence of record.
1. Jurisdiction is conceded. Respondent's answer admits
that it is a California corporation with a place of business in
Grimes, California, where it is engaged in the processing
and nonretail sale of oilseeds and vegetable oils. Its annual
sales to out-of-state customers have exceeded $50,000, and
its annual purchase of materials from out of State have
exceeded that amount. Thus, Respondent is unquestionably
an employer engaged in commerce and in operations affect-
ing commerce within the meaning of the Act.
2. Respondent stipulated at the hearing that Bill Cates is
the plant manager of Respondent's Grimes facility and is a
supervisor under the Act. Cates is the person with the high-
est authority at the plant and he reports to George Kopas,
vice president and treasurer of Respondent. Kopas is ad-
mittedly an agent of Respondent and maintains his office in
the corporate office in San Francisco, California.'
3. Respondent's plant facility at Grimes was opened in
March 1975. The plant operates 10 days straight, utilizing
three shifts (day-8 a.m. to 4 p.m.; swing-4 p.m. to mid-
night; graveyard-midnight to 8 a.m.), and then shuts
down for 4 days for cleaning and maintenance. Approxi-
mately eight employees work on the day shift. Two or three
employees work on the swing shift, and similar number on
the graveyard. Some of the employees who work during the
10-day run also perform cleanup and maintenance func-
tions during the 4-day shutdown. The plant is also shut
down for a month or so beginning in early July (except
during its first year of operation, when it remained open).
Employees take vacations during the summer shutdown,
but many also perform repairs of maintenance work during
that period. No layoffs occurred during the seasonal close-
down until the summer of 1978.
4. Respondent processes various oilseeds, including saf-
flower, sunflower, and soybean, and walnuts. Safflower is
the principal product that is processed at Respondent's
Grimes plant. Expellers, extractors, solvents, and centri-
fuges are utilized to obtain the oil. Agricom also markets
meal, which is the residue from processed seeds.
5. The Union is admittedly a labor organization within
the meaning of the Act.
6. It was stipulated that the following unit, which was set
forth in paragraph 8 of the complaint, is an appropriate one
for collective bargaining under the Act:
' Respondent asserts in its answer that Dwight Hendnx is a "working
foreman," not a supervisor, and that Colin English "voluntarily quit." Re-
spondent's answer also states that Berglund, Klimek, and O'Farrell were laid
off "for lack of work due to economic reasons." Respondent claims in its
answer a good-faith doubt as to whether the Union represented a majority of
the unit. Respondent's answer also asserts, in the form of "iffirmative de-
fense," that Board agents engaged in improper conduct-by acting in a
prejudiced, hostile, and biased manner toward Respondent and by conspir-
ing with the Union. Further, Respondent alleges that the Union "has waived
some or all of the unfair labor practices claimed," that the Union is "guilty
of unclean hands," and that the Union itself engaged in misconduct. Finally,
Respondent asks that it be awarded costs, including attorneys fees. Respon-
dent has not, however, established a basis for such an award or any of its
affirmative defenses.
All press operators, machine maintenance employees.
clean-up employees, load-out employees and working
forepersons, excluding office clerical employees, all
other employees, guards and 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.
7. The following is a list of employees on Respondent's
payroll at its Grimes plant, including Plant Foreman Hen-
drix but, excluding Plant Manager Cates, security and office
personnel as of June 26:
Larry Taylor
Dwight Hendrix
Ed Admire
George Downing
Paul Phillips
Ben Flores
Mike Hull
George Coon
C'olin English
John Johnson
Angel Gracia
Frank Klimek
Bob Farrar
Buster Berglund
Mike O'Farrell[3 ]
8. Mark Cummins. president of Local 137, met with sev-
eral employees at Colin English's home on June 5. English.
Frank Klimek, Paul Phillips, Buster Berglund. Larry Tay-
lor, and George Coon were among those in attendance.
Cummins spoke of the benefits of union membership and
passed out application cards. Application cards were there-
after signed. in the presence of either English or Klimek. by
George Downing, Phillips, Benjamin Flores, Ed Admire.
Berglund, Coon, Mike O'Farrell. Michael Hull, and Taylor.
Klimek delivered these cards, along with those signed by
himself and English, to the Union by June 13. Steve
Ruckle, who took over the organizing duties of Cummins
when the latter became seriously ill, had taken possession of
the cards by June 20.4
9. On June 22 the Union filed a representation petition
on behalf of unit employees with the Board's Regional Of-
fice in San Franciso. On July 19 the Regional Director ap-
proved a Stipulation for Certification Upon Consent Elec-
tion form calling for an election on August 22 at the Grimes
plant.
10. On June 26 the Representation Petition and a Board
"Notice to Employees" were received by Respondent and
put on the company bulletin board in the lunchroom by
Plant Manager Cates. On the same day mock elections were
held in the lunchroom; "for" and "against" were written
under the word "Union," and the names of certain employ-
ees were then written below the word "against."
11. On June 30 four of Respondent's employees left its
employment, three of these admittedly in the form of per-
manent layoff. (The parties disagree whether the fourth,
Colin English, quit or was laid off.)
12. Union Business Representative Steve Ruckle, by let-
ter dated July 6 addressed to both Vice President Kopas
and Plant Manager Cates, advised Respondent that an
"overwhelming majority of employees" at the Grimes plant
3Johnson returned to work on June 26. English, Klimek, Berglund, and
O'Farrell left Respondent's employment on June 30.
4 Three of the "cards" had been reproduced on Xerox-type paper by Kli-
mek. This did not affect their validity. Nor does the appearance of the word
"undated" on some of the cards affect their validity.
618
AGRICOM OILSEEDS. INC.
had designated the Union as their bargaining agent.
Ruckle's letter contained an offer to negotiate an agreement
with Respondent and stated that Colin English and Frank
Klimek were "volunteer organizers" for the Union. There-
after, Ruckle sent another letter dated July 13 advising that
George Coon would be acting as an organizer for the Union
as both English and Klimek had been laid off.
13. A few employees of Respondent met at Frank Kli-
mek's home in Colousa, California. on the evening of Jul?
19. Board Agent Lee Corbett was there and interviewed
Agricom employees, including George Coon. Union Official
Ruckle, Berglund, English, and O'Farrell were also there.
14. Plant Manager Cates, by letter dated July 20, advised
Union Official Ruckle that Respondent doubted the
Union's claim of majority; the letter took note that emplo -
ees would be voting on August 22.
15. At the time it filed a charge against Respondent on
July II the Union also filed a Request to Proceed with the
election. Thereafter, on August 14, the Union withdrew
such request, and the August 22 election was cancelled. The
Union's Representation Petition was thereafter withdrawn
on September 15.
16. On August 22. seven of Respondent's day shift em-
ployees punched out and left Respondent's plant and drove
to the Board's Regional Office in San Francisco to protest
the cancellation of the Board election scheduled for that
day.
B. The Testimony
Thirteen witnesses testified. All of them. except for
Union Official Ruckle, were, or had been, employees of
Agricom. Most of the witnesses currently employed by Re-
spondent struck me as being intimidated. This was espe-
cially true with respect to witnesses Coon and O'Farrell.
The testimony of some of the witnesses calls for discussion
in some detail.
Colin English was employed by Respondent from August
1977 until June 30. His regular job was "solvent operator,"
but he had also performed cleanup and maintenance work
during the "four day off deal" that occurred every 10 days.
English said his last immediate boss was Dwight Hendrix
who, he claimed, could hire, fire, give raises, give time off,
and do "everything." He stated that the Company, around
May 1, had posted a notice that indicated Hendrix would
be taking the place of Hans Nissan, a former plant official
who admittedly had supervisory authority. English testified
that the notice, which he said was signed by Plant Manager
Cates, indicated that "Hans was leaving" and that "Dwight
would get all of his responsibilities." English referred to
certain incidents which were indicative that Hendrix had
considerable authority. English stated that Hendrix as-
signed overtime and made up work schedules assigning men
to specific shifts and job duties. English referred to an occa-
sion in May when Cates announced during a meeting of
employees that Hendrix was taking "Hans' place . . . and
that if we had any trouble to go to Dwight." English said he
once spoke to Plant Manager Cates about making a change
in his shift which prompted Cates to reply that "it was
strictly up to Dwight Hendrix and not to go over his head
anymore."'
English stated that during his last 2 or 3 months of em-
ployment he worked at night on the swing shift, except that
there were about three occasions when he had been allowed
to make a change to da) shift so he could see a particular
person or attend some event. At first he did not like work-
ing at night, but he developed a preference for it because of
the extra money paid for such duty. (Persons working on
the swing shift were paid a 15-cent hourly premium, and
persons working on the graveyard shift were paid 25-cent
hourly premium.) According to English, Ilendrix assigned
him in mid-June to the day shift, which he said he contin-
ued to work until the end of the month when he left Re-
spondent's employment.
English testified that Cates announced at a safetx mcet-
ing held in May that a pay raise sould go into eftect tair
employees on July . According to English. Vice President
Kopas was at the meeting. Hendrix, he said. was at the
meeting "off and on." English stated that the emplo ,ees
were told that supervisors were to "go up to $6.00" and the
"regular operators" were to go "to $5.50." No raise was put
into effect while he was on the payroll.'
English testified concerning a union meeting held at his
house on the evening of June 5 at which Union Local 317
President Mark Cummins spoke. He said Cummins "ex-
plained the benefits of the union" and thereafter passed out
application cards for union membership to a number of
employees present, including himself. Ben Flores. George
Coon. Paul Phillips, Frank Klimek, and LarrD Taylor. Ac-
cording to English, Cummins explained that "if ou want to
have an election. or he represented or something like that
.. have these cards filled out." English testified that shortly
thereafter he signed his card and then in the next few days
observed George Downing, Phillips, Flores, and Edward
Admire date and sign cards. He said he turned such cards
over to Frank Klimek then for transmittal to the Union.
Several witnesses testified concerning the mock election
or "blackboard polling incident" that occurred in the em-
ployees' lunchroom on June 26. English gave his version of
the event as follows. He said he saw Cates post two NLRB
notices (the Union's RC Petition and the Board's "basic
rights" notice) in the lunchroom around lunchtime that
day. "ilt seemed like everybody from the whole plant went
into the lunch room" about that time. he said-Bill Cates,
Dwight Hendrix. Frank Klimek. Mike Hull, Paul Phillips.
Bob Farrar. John Johnson, Ed Admire, and Angel Gracia.
According to English, Hendrix then polled the employees
on their sentiments about the Union as follows:
Dwight sort of had like an election nght there. He
wrote "for" and "against" up on the chalk board. and
then he asked one by one in the room what they
thought about the Union, if they were for or against it,
Klimek, Flores, and Phillips also indicated that Hendnx exercised super-
visory authority as plant foreman, Hendnx himself, Cates. Kopas and other
defense witnesses sought to minimize his supervisory authority, but I find
their testimony unpersuasive.
6 A wage increase was put into effect on July I (ates said he told employ-
ces that he would begin evaluating them around June 15 and make the raises
effective July 1.
619
DI).(CISIONS Of()I NA'Il()NAL LABOR REI.A'IONS BOARD
,and then hej Lust A I(lte down vi ho was tor and who was
Ite a IIt.
Naturally. eer\h body was agailnst it. and Bill [('atesl
said somethitig like. "I guess I must have signed all the
calds."l''
\ccordi ng to .Linglish, lendrix and ('ates stayed in the
lunchrrooml lir a considerable time. English sltated that
lhen tlhe otiler cemploees left, lie put "51 percent" on the
hoard and then ''"erased the whole thing." According to
English, the polling occurred two more times that day:
And then about two o'clock, the whole thing started
again. i'h.ev had another election. This time Angel
(iarcia Isicl rote the stuff up on the board. and
l)VI ight was asking them again, and they did it all
again, and then we erased it again, and then about four
o'clock when the people were coming in for the next
shilt. I)wight would ask them as they came in to write
down for or against the inion up on the board. Like
he asked George ('oon when he came in, and he asked
somebhody else. fle asked all the three people that came
in on the night shift to v, rite tor or against, and then, of
course, after they left, we erased it again, and that wats
it. Everobody ent home from our shift.lJ
Ihe 26th day of June, the da when the "for and against"
writing took place on the company bulletin board. was
John Johnson's first day back at work after a few months'
absence. Ie had told C('aes that he would quit and not
rettirn to work. English testified that early in MayN ates
had told himil that Johnson had made mistake by quitting
and losing out on his seniorit)y and vacation pay.i
O()n crolss-cxamiiatllln Englisshstated that employees rote their own
nanmes on the hboard
I-rank Klhilek also testified coincerning the mock election held in the
lunchroinm n June 26. lie testified that he signed his name under "against"
habout noon and walked out Dwight Flendrix. I-d Admire, and (Colin English
were present at the tile, he recalled
Plant oreman Ilendrix and Plant Manager (ates both testified that they
were In the lunchroom on the day of' the msck election and observed the
writing with reference o "for and against" the nion. Both denied having
anything to doi with the writing. Both also denied saying anything to anyone
about the writing. tlendrix said he saw no names on the board. Hlendrix
testified that he saw Johnson ("a friend") in the room but said nothing to
him about the writing then r to anyone else later during lunch. He recalled
the "tinion sign" was still up there at lunchtime, but he said he "didn't
notice" whether it remained on the board in the afternoon. Cates said he
went through the lunchroom to wash his hands but said nothing to anyone
about the writing on the board.
Admire (who signed a union card) and Johnson testified that Johnson
wrote "for" and "against the union." and then each signed their names under
"against." Johnson said Gracia, Farrar. and Admire were there at the time
Johnson stated that neither Hendrix nor ('ates was there, hut he acknowl-
edged that Hendrix was "around there all day." When Johnson and Admire
learned that the writing had been erased (Johnson noting that English had
an eraser). they returned to write the same words on the blackboard again
George Coon testified that there was a "deal" on the bulletin board on
June 26 about being "for or against the Union" and that there were names
on the board. He said he was handed a piece of chalk by Gracia and wrote
his name on the b)ard. Hendrix and ates "could have been" nearby, he
said. Asked if Cates had made a remark about the writing on the board to
the effect that "it wasn't him who signed those cards." as stated in an affida-
vit, Coon responded, "I don't recall."
9 Cates said he would not have discussed the personal status of' Johnson
with English, but he conceded that Johnson had quit and forfeited his senior-
ity. Johnson appeared to be biased in favor of Respondent and. of course, he
had reason to be. since Cates reinstated him
('ontrary to what Respondent contends, English main-
tained that he did not quit but was in fact discharged. He
testified that around June 15 Hendrix complained that he
had allowed a tank to overflow on the previous night. Eng-
lish said he attempted to explain to tHendrix that this event
had occurred after he had gone off his shift and that he had
warned the next shift, in the form of a note on a shift report,
that a change oft' the tank would he necessary Later on the
same day. he also spoke to Cates about the overflow. He
said he indicated to Cates that it seemed that the Company
was trying to blame him unjustly and made the comment
that "[maye I ought to look for another job or some-
thing." iHe said Cates responded that the Company would
help him and offered to write a letter on his behalf. On the
next afternoon Cates handed English a letter which read:
June 16, 1978
Tlo Whom It May Concern:
This letter is an introduction of' C'olin English, of
whom has been in our employee for the last year.
We found him to be an adaptable person on what-
ever job we placed him on, with his practical and me-
chanical ability and alertness.
('olin has elected to terminate his employment with
us, to seek a job that has a possibility of promotions.
that we are unable to offer to him at this time, as we
already have oung, capable personnel filling these
spots, with openings unlikely for some time.
TIhank you for any consideration on his behalf.
Bill Cates ...
English said he had not asked for a letter of recommenda-
tion and told Cates. "I never quit." He stated that Cates'
response was that "he didn't want to talk about it any-
more.
English stated that on June 30. when the plant was shut
down, he received from Cates a check that included 2 weeks
of vacation pay. He told Cates at the time that he would be
back on "the 18th." but Cates indicated that he was being
permanently laid off. According to English, Cates said he
was obligated to get rid of anyone who "was even thinking
about quitting" in order to have enough men on the job.
Frank Klime said he started work for Respondent in
early February 1978 and was "put on permanent lay-off"
on June 30. 1978. He worked as a "meal operator" and as a
"load-out man." He logged gauge readings, took product
samples, "pumped," and kept various records on the
amount of oil and meal in inventory.
Klimek testified that he worked under Plant Manager
Cates but that Dwight. Hendrix. whom he referred to as
maintenance superintendent, was his immediate boss. Ac-
cording to Klimek. Hendrix had authority to hire. fire, and
give time off. Klimek testified that Hendrix did fire Virgil
Decamp, and regularly assigned specific jobs to Agricom
employees by oral direction and in the form of' written
schedules. Klimek, like English. testified that a notice an-
nouncing Hendrix' succession to Nissan's authority was
posted by the Company, in May, he thought. According to
English, the notice was signed by Cates and announced that
Hendrix would be taking Nissan's position and would have
"the authority to hire, fire, assign work schedules, give time-
off, vacation schedules, et cetera."
AGRICOM OILSEEDS, INC.
Klimek testified that Union Official Cummins explained
at the June 5 meeting held at English's house that the cards
were not only for obtaining an election. When the men
signed the cards "it meant," Cummins said, according to
Klimek, "that they wanted to be represented by the Union,
they wanted the Union in." He recalled the Paul Phillips,
Buster Berglund, Lawrence Taylor, and George Coon were
present that evening. He signed a card that evening and
thereafter collected cards signed in his presence by Berg-
lund, Coon, Mike O'Farrell, Michael Hull. and Taylor. On
June 10 Klimek said he turned nine cards collected by him
and English to Union Official Cummins at the latter's
home. Two other cards-one signed by Ed Admire and
given to English, and another one signed by Berglund-
were turned over, he said, to a union secretary on or before
June 13.
Klimek recalled another meeting held at his house one
evening around July 19 at which he was Steve Ruckle, a
union official who took over President Cummin's organiz-
ing activities. He remembered that Coon (drinking but
"clear" in speech), English, and O'Farrell were there too.
He also recalled that an NLRB agent was there to take
affidavits.
Around mid-June, according to Klimek, Hendrix told
him that the Company must cut down on overtime and he
would be thereafter sent home early. He said he was no
longer assigned overtime as before (i.e., 10 to 12 hours a
week). He stated that a few days later Ed Admire told him
in the presence of Plant Foremen Hendrix that he should
no longer speak to English on the job. Hendrix, he said
"nodded" in agreement.
Klimek testified that he had other conversations with
Dwight Hendrix on or about June 19 or 20 and on approxi-
mately June 28. On the 19th, Hendrix told him that Admire
would be taking Klimek's job as an operator "for the good
of the company." On the same day, or the one following, he
said Hendrix called him into his (Hendrix's) office and
talked with him for at least 45 minutes about the Union.
According to Klimek, Hendrix told him that the Union was
"bad"-that the union dues would be $40 a month; ' that
"there would be a lot of layoffs if the union came in";
"there would be no more long breaks, no horsing around";
"no more working on your automobiles on company prop-
erty, like using the fork lift"; "no more taking of oil from
the company, no privileges, no ... time off"; "there would
hardly be any overtime" and "a lot of privileges [would be]
cut out." Hendrix added, he said, that "[ilt would really be
a mess if the union came in." On the other hand, Klimek
continued, Hendrix stated that "there would be plenty of
work," even extra maintenance work, if the Union did not
come in. Klimek said Hendrix asked what Klimek thought
of the Union during this conversation. Klimek said his re-
sponse was that "the Union could be good if the company
was screwing the men." Klimek inquired during the conver-
sation if he could return to school. Hendrix assured him
10 Union Official Ruckle testified that the Union charges an initiation fee
of S25 after it negotiates its first contract. No fees were collected from Re-
spondent's employees. Klimek said the monthly dues would be 16.50.
that "the company would find a way" for him to go to
school if the Union did not come into the plant."
Klimek said he was summoned to Hendnx' office again
on June 28 for another brief conversation with Hendrix.
Klimek testified that this time Hendrix commented that
Klimek had been "sloughing off' and asked if he was
"mad" because the Union was not coming in." A couple of
days later. on June 30, Klimek encountered Plant Manager
Cates in the warehouse and was told that he was going to
be laid off. Thereafter he received his final check and a
letter which read:
June 30. 1978
Frank Klimek,
Due to our seed crop being late in harvesting, caused
by weather, which delayed planting by our growers. we
will be shut down and out of production for sometime
to come.
This is causing us to permanently lay you off effec-
tive June 30, 1978.
It is impossible for us to determine now, if and when
we will require your services again.
We realize this is an inconvenience to you, that can't
be helped.
We are giving you this notice to he fair to you, so
you will have a chance to obtain other employment.
Regretfully.,
Bill Cates['I
George Coon was a recalcitrant witness called by the
General Counsel. His appearance was significant as it re-
vealed his intimidated state. His testimony was of little
value, however, as he made few definitive statements of
fact. The statements he made were suspect. as he was not a
reliable witness.
Coon had signed a union card on June 7 and had even
been designated by the Union as an in-plant organizer. He
had been obviously cooperative with the General Counsel
during the investigative stage, for he signed a lengthy affida-
vit for the General Counsel after being interviewed by a
Board agent on July 19. When he first appeared at the hear-
ing, he refused to be sworn, claiming "I was drunk when I
made them statements." He later took the stand, however,
and disavowed much of his affidavit. He was hostile to the
General Counsel and sought to be helpful to the Respon-
dent's cause."
" Klimek testified that Hendrix did most of the talking. Klimek said he
wanted "me to say something, maybe trying to to trap me, and I just kept my
mouth shut"
2 Klimek's part in the June 26 mock election has been referred to, supra.
" Plant Manager Cates said the layoff letters given Klimek. Berglund, and
O'Farrell were similar. The plant was shut down "partially" for maintenance
and "partially" because the Company was out of seed, Cates stated.
" When asked if he had talked to Hendrix about a raise, Coon volunteered
that "[Ithere would be no reason why I would ask Hendrix about it because
he hasn't got the authority to give a raise."
At one point in his testimony Coon indicated that Union President Cum-
mins had indicated at a union meeting that signed union authorization cards
would only show that employees wanted an election But he also testified
that such cards would "acknowledge that we wanted to vote for a union"
but not a necessarily Cummin's union. he said.
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coon testified that between 4 p.m., when he got off work,
and 7 or 7:30, when he arrived at Klimek's house for the
interview with the Board's agent on July 19, he could have
drunk "18 beers" or even as many as "twenty-four, thirty."
At first, he indicated some doubt about whether he signed
or initiated the affidavit, but it became clear that he had
done both. He ultimately conceded that the Board agent
had asked questions and "had been writing ... [e]vidently
what I was saying .... " He claimed he did not recall
making many of the statements contained in the affidavit
and suggested that some were not true. He ended up saying
he did not know whether the statements in the affidavit
were true or not but still implying that the events referred to
in the affidavit had not occurred.' I do credit Coon's testi-
mony to the effect that he was an operator on June 30 and
had been promoted to shift leader when he appeared later
at the hearing. I also credit Coon's testimony to the effect
that he saw "For" and "Against" written on the company
bulletin board in the lunchroom on June 26, that he saw
names of employees on the board, that he was handed a
piece of chalk by Angel Gracia and that he wrote his own
name there.' 6
Plant Foreman Dwight Hendrix indicated in his testimony
that he had little or no authority over any Agricom employ-
ees. He said he did schedule work shifts as Nissan had done
before him, but he said they had to be approved (and usu-
ally were) by Cates. He could cite a worker for a safety
violation, but he said other employees could also do that.
He denied ordering anyone to work overtime, which he said
was usually "sort of automatic" as an operator was sup-
posed to stay on if his relief was delayed in reporting to
work. He said he checked the plant a lot and acted "more
or less ... a messenger boy."
Hendrix said he learned about the Union as a result of
"people talking about it mostly in the lunchroom." Hendrix
acknowledged that he heard about the Union before an
NLRB notice was posted on June 26, but he said he could
not recall how much earlier. Asked if he heard of a union
meeting 2 or 3 weeks earlier, he replied, "It could have
been, yes." He recalled five or six conversations about the
Union, but he said he "really did not listen to them" as he
was "always busy."
Hendrix said he was aware of the mock election held in
the lunchroom on June 26. Hendrix testified that as he
walked through the lunchroom he saw "Union" on the top
of the blackboard in big letters, and it was either "for or
against," or "yes or no" just underneath it, on [sic] the sides
of it." He noticed one of his "close friends," John Johnson,
was in the room, but he said he only went into the restroom
nearby to wash his hands and then left. The "Union sign"
was still there when he ate lunch, he said, but he could not
recall if he talked to Johnson or to anyone about the writing
on the board. He said he did not write anything on the
s Johnson, another unreliable witness, sought to support Coon's claim of
intoxication. Johnson accompanied Coon on the afternoon of July 19 and
claimed to have consumed a similar amount of beer. I have no doubt that
Coon knew what he was doing when interviewed by the Board agent, how-
ever many beers he had drunk that day. Klimek and Steve Ruckle, both
credible witnesses, indicated that Coon did not appear to be drunk on the
evening he gave the affidavit.
I* Asked if Hendrix and Cates were nearby, Coon stated: "It could have
been: it was time to punch out for them."
Board, and he told no one to either write (or erase) any-
thing. He said he did not recall any names on the black-
board. He claimed that he could not remember if he talked
to any employees about the Union in June.
Hendrix acknowledged that he discussed the Union with
employees Klimek and O'Farrell, each of whom had testi-
fied that they had spoken to Hendrix about the Union. He
said he had asked Klimek about the Union only because he
was "Lj]ust nosey, curious." Incredibly, he then added, "I
figured if the plant was to go Union, I would go Union right
along with them." O'Farrell, he said, had sought him out
and asked what he thought of the Union. Hendrix said he
replied, "Mike, I don't know. What do you think about the
Union?" O'Farrell indicated that he was opposed to the
Union, "and that was it." Hendrix denied on cross-exami-
nation ever speaking about the Union to Phillips (who later
testified on rebuttal for the General Counsel to the con-
trary), Admire or Flores, two defense witnesses, or to Berg-
lund, who did not appear at the hearing. Hendrix also de-
nied that he ever spoke to Klimek about union dues or said
that unionization would bring layoffs and curtailment of
work, overtime, or "long breaks." He also denied telling
any employee that unionization would cause the loss of em-
ployee benefits or privileges.
George Kopas testified that as vice president and treasurer
of Agricom he was in "direct control" of Respondent's
Grimes plant, operating "through Bill Cates, our plant
manager." He said that he was responsible for the Compa-
ny's financial affairs, plant operations, procurement of raw
materials, and sale of by-products. Kopas stated that things
were quite uncertain for the Company in the spring and
summer of 1978 because of a combination of factors: Salyer
Land Company, Respondent's main source for seed, had
been unable to plant any seed because of heavy rains; the
Company had made a commitment to sell 15,000 metric
tons of safflower seed to a company in Portugal; U.S. Labo-
ratories had cancelled a large order for safflower oil from
Agricom; and the Company had accumulated an excessive
inventory of safflower oil which it had been unable to sell.
Kopas testified that he and Cates conferred during the
first week of June and decided to cut the operating staff at
Grimes from 14 men back to its previous level of 10. It was
decided, he said, to lay off, on a "permanent basis" because
of the uncertain conditions, three specific men: O'Farrell,
Berglund, and Frank Klimek. According to Kopas, the pro-
posed layoff would respect seniority rights except that Bob
Farrar would be retained because of his "mechanical abil-
ity." The employees were not told in advance of the
planned layoff because it would be "bad on the morale"
and to prevent "sluffing off." Kopas stated that when Eng-
lish decided to quit in mid-June it was then decided to re-
tain Klimek and lay off only Berglund and O'Farrell. As it
turned out, however, Klimek had to be let go anyway,
Kopas said, because John Johnson called Plant Manager
Cates around June 22 and told him that he could be coming
back to work as his "leg was cured."
Kopas testified that the "earlier uncertainties" cleared up
some time after the layoffs occurred. The Company was
able to purchase an unusually good crop of seed in Mon-
tana, make delivery on the Portugal sale, and get its saf-
flower oil "successfully moving." The plant was started up
622
AGRICOM OILSEEDS. INC.
again on or about September 11, and Cates and he then
decided to rehire the laid off employees.
Plant Manager William Cates said he spends 75 percent
of his time checking on the operation of the plant. He said
he has some marketing responsibilities, primarily involving
meal, and he performs this function while in his plant office.
Cates acknowledged that Dwight Hendrix worked as
"plant foreman" under him after Plant Superintendent
Hans Nissan left in April 1978, but he maintained that
Hendrix did not succeed to Nissan's authority. He denied
that he informed employees that Hendrix had taken over
Nissan's job when Hendrix was promoted from shift leader
to plant foreman. Hendrix only acted "to aid and assist"
him, he said. He maintained that Hendrix had no part in
hiring or firing or recommending layoffs or wage increases.
He stated that the schedules prepared by Hendrix were sub-
ject to his approval, and that it was he who fired Virgil
Decamp after being told by Hendrix that Decamp was
"goofing around." Cates agreed, however, that he and Hen-
drix met regularly and discussed a "multiplicity of things"
about the plant's operation and that Hendrix was "[i]n es-
sence" over the three shift leaders in the plant."
Cates testified that he hired Bob Farrar on April 3 be-
cause of his "expertise" in making repairs. He disputed
English's claim that he had told English that Johnson had
quit his employment with the Company, but Cates agreed
that Johnson had in fact quit. He said Johnson had broken
his leg in April or May and that the illnesses of his mother
and grandmother had put him "under a severe case of du-
ress." Cates stated that he had "complete sympathy" for
him and that he was willing to "restore his full seniority."
On the other hand, he said he told English he would not
take him (English) back when English asked to stay on after
quitting in mid-June (even though he was still working at
the plant).'
Cates gave this version of the alleged decision of English
to quit his employment with Respondent: English ap-
proached him on June 15, the day after the pre-press plant
had been left "in a mess," and stated:
' GCates testified that Nissan "had full authority at the plant; he could hire,
fire, make policy changes, et cetera."
'' During his testimony Cates was reluctant to concede Hendrix had any
authority over another employee. Asked if Hendnx was the next person in
authority below him at the Grimes plant, Cates said, "I can't say 'yes.' and I
can't say 'no'." When asked if Hendrix was superior to all shift leaders, he
replied: "Yes, and no."
l' The testimony of Plant Manager Cates and Vice President Kopas gave
as to how and when it was decided who should be laid off impressed me as
contrived. Kopas said that the plans that he and Cates had formulated in
early June for the "permanent" layoff of Klimek. Berglund. and O'Farrell (in
accord with seniority "with the exception of Farrar") were changed, first by
English telling Cates that he "was quitting." and then by the news (relayed
to him, he said, by Cates "probably the 22nd" of June) "that John's leg was
cured and that he would now be back to work." Testifying on rebuttal, Cates
first said that he thought Johnson had asked for his job back and returned on
"April the 13th" (apparently when Johnson actually first stopped working)
and then "on May Ist." He said Johnson had been away (meaning off the
payroll, presumably) only for "la]bout two weeks." He had indicated earlier.
when called by the General Counsel, that Johnson's seniority nghts had been
restored prior to Johnson's call to Cates on June 22 (the "Thursday pnor to
going to work on a Monday." June 26) to say he would be back on June 26.
The Company's payroll (Resp. Exh. 6) shows Johnson was paid for 13 hours
for I week in mid-April, nothing during the next 2 weeks, for 42.5 hours
during the first week of May and nothing for the 7 succeeding weeks.
It doesn't look like I am going to make it here, so I am
going to find myself another job. Johns Manville is
hiring supervisory trainees. and I am going to get a job
there.
Cates said he gave English until June 30 to find a job, and
English agreed to the arrangement. He said he prepared a
letter of recommendation for English as he had requested
except that he refused to state in the letter the English had
been a supervisor because that would be "unethical." He
gave him the letter of recommendation on the following day
at which time he said English asked. "Well. what if I don't
want to quit?" Cates said he told English that the Company
had assumed he was leaving, although he indicated he
could ask for a job in the future. On June 30 he said English
asked if he could return on July 18, but he told him "no," as
that would mean someone else would have to leave.
On October 3 Cates prepared and sent, by registered
mail, letters to Klimek and Berglund offering to reinstate
them to full seniority. A somewhat similar letter was sent to
English on October 10 by registered mail. The letters to
Berglund and English were delivered, but Klimek never
picked his up. Only O'Farrell returned to work for the
Company. Cates said he was able to contact O'Farrell per-
sonally, and O'Farrell returned to his old job as expeller
operator.
Cates said he was unaware of union activity at the Com-
pany's plant "until around June the 22nd when an em-
ployee told me that I would be getting a letter from the
Union, and that was all I knew." He said he did not recall
which employee told him about the letter. lie acknowl-
edged that he and Hendrix visited the Company's lunch-
room daily, but he denied that he had heard about the
union meeting that had taken place on June 5.
II. FINDINGS ON TILE ('ItAR(iES
Hendrix }w*as a supervisor and an agent of Respondent. A
threshold question to be decided is whether the acts of
Plant Foreman Dwight Hendrix were attributable to Agri-
com. It should be noted, of course, that it is well settled that
a nonsupervisory employee may be held to be acting as an
agent for an employer. See Savoyv Faucet Co., Inc., d/b/a
Savoy Brass Manufacturing Company, 241 NLRB 51 (1978);
also, Capitol Foods, Inc. d/b/a Schulte's IGA Foodliner, 241
NLRB 855 (1979). 1 am persuaded by the record herein,
however, that the proven acts of Hendrix relevant to the
charges contained in the complaint were attributable to Re-
spondent because he was acting as a supervisor and an
agent of Respondent. 0
0O Sec. 2(1 ) of the Act provides:
The term "supervisor" means any individual having authonty. in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action. if in connection with the foregoing the exercise
of such authority is not a merely routine or clerical nature, but requires
the use of independent judgment.
Sec. 2(13) of the Act provides:
In determining whether any person is acting as an "agent" of another
person so as to make such other person responsible for his acts, the
question of whether the specific acts performed were actually authorized
or subsequentl) ratified shall not be controlling
623
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
Respondent argues Hendrix could not be considered a
supervisor or deemed an agent of the Company because
any supervisory power exercised or supervisory acts per-
formed by him were routine in nature and did not require
any independent judgment. The difficulty with Respon-
dent's argument is that it assumes the credibility of the evi-
dence given on this issue by Hendrix and Plant Manager
Cates. I do not credit such testimony. The repeated at-
tempts of these and some other witnesses to minimize the
supervisory responsibilities of Hendrix were not convinc-
ing. 2'
The credible evidence is that Hendrix had power to act as
the representative of Agricom with respect to all other em-
ployees of the bargaining unit and that he exercised that
power. There was impressive testimony from English, Kli-
mek, and Phillips, a shift leader, that they considered Hen-
drix to be their supervisor and their real boss. Obviously,
employees believed that he spoke for the management, and
he unquestionably did." The record clearly demonstrates
that Hendrix had the authority "responsibly to direct" the
work of employees. His job was not merely as a "job equip-
ment watchdog and production expediter," as Respondent's
brief suggests. 3 Hendrix assigned work, transferred employ-
ees, gave time off, assigned overtime, and gave written
instructions to employees. Hendrix at least effectively rec-
ommended the termination of Virgil Decamp, I am con-
vinced, notwithstanding the efforts made to fix responsibil-
ity for such action upon Cates.'4 Hendrix used independent
judgment in acting for Respondent in the respects men-
tioned above. Further, he was in charge of the plant in
Cates' absence. Even Cates acknowledged that night shift
leaders were to contact Hendrix (or himself) if they encoun-
tered any special problems.
I am persuaded that Cates signed and posted a notice
around May I advising employees at the Grimes plant that
Hans Nissan was being replaced by Hendrix who would be
succeeding to his authority, which included the power to
hire, fire, assign work, and give time off. Klimek testified
:2 George Coon and John Johnson, undoubtedly concerned about their
jobs, tried to suggest that Plant Manager Cates was their only boss with any
authority. Coon's unreliability has been previously referred to. And Johnson,
while maintaining at one point that "Bill Cates .. is the only boss I have."
at another time staled that Hendrix had called him into the office on June 26
(the day of the mock election and his first day back at work) and had him
doing things that day that were not part of his regular job.
22 Another shift leader, Ed Admire, conceded Hendrix was the "number
one supervisor" and his boss. Benjamin Flores testified that it was Hendrix
who gave him his daily work instructions, assigned him overtime, and told
him whether or not he could work during a shutdown.
:3 Respondent's cases are inapposite. Hendrix' scheduling, which he said
was usually approved, was different from the assistance given in this respect
by the first cook and assistant head steward in Town Foods, Inc, d/b/a
Tower of the Americas Restaurant,. 221 NLRB 1260 (1975). (As previousl
noted, Cates told English that scheduling was "strictly up to Dwight.") Nor
did Hendrix merely relay routine instructions as the titled employees did in
Davison-Paxon Company, a Division of R H. Mao' and Cornpanv, Inc., 185
NLRB 21 (1970). Any "direction of personnel" by the central dispatchers in
Pilot Freight Carriers, Inc, 221 NLRB 1026 (1975), occurred only as "an
incidental result." The department heads in Ross Porta-Plan. Inc., 166
NLRB 494 (1967). had less authority than Hendrix. They could not even
grant time off, and the Board rejected the employer's attempt in that case to
"beef-up" their authority (making the management obviously top-heavy) in
order to remove them from the bargaining unit.
credibly to that effect, and English recalled seeing such a
notice posted."
I am also persuaded that Hendrix became aware of the
union activity at the Grimes plant shortly after the June 5
union meeting and that he made it his business to know
who among Respondent's employees were active for and
favorable to the Union. As will be discussed later, he ques-
tioned employees about their sentiments, not out of curios-
ity, but because he knew persons holding positions in man-
agement higher than his own would want to be informed of
any union activity. Hendrix no doubt kept Plant Manager
Cates informed of any union activity of which he was
aware, and took steps to discourage it (also discussed later),
no doubt with the knowledge of the plant manager.
1ll. 'l 8A)(X) ( IAR(;ES
The testimony of Colin English concerning the mock
election incident on June 26 was disputed by Respondent's
witnesses in certain significant respects, particularly with
respect to Hendrix' participation in the polling of employ-
ees. Also, there was some apparent inconsistency in Eng-
lish's own testimony in that at one point he indicated that it
was Hendrix who wrote the names on the board while indi-
cating at another time that the employees wrote their names
on the board.26 There is no doubt. however, about the fact
that a number of unit employees were called upon to ex-
press publicly a view-i.e., take a stand - as to whether they
were in favor of unionizing the plant, and in a manner that
would be obvious to Respondent's management. The em-
ployees voting apparently expressed a unanimous view
against the Union.27 I am unable to believe that the election
was "employee-initiated and employee-run." as Respon-
dent states. Nor do I believe that employees acted voluntar-
ily in writing their names on the board. Hendrix was pre-
sent for some of the voting for sure. and I am persuaded
that the mock election occurred because he was there. I
credit the testimony of English to the extent that he indi-
cated that Hendrix instigated the polling of the employees.
I am further of the view that Plant Manager Cates was
aware of the fact at the time. It is not credible to me that
Hendrix never discussed the writing on the board with em-
ployees, as Hendrix. Johnson, and Admire testified.28
The public polling of Respondent's employees as to their
sentiments about the Union was coercive and illegal. See
Heck's, Inc., 172 NLRB 2231 (1968), enfd. 433 F.2d 541
(D.C. Cir. 1970). Such conduct indicated Respondent's op-
position to the unionization and gave the impression that
Respondent was engaging in surveillance of union activi-
24 Vice President Kopas said. "I don't think" Cates could delegate author-
ity to hire and fire.
25 The various indicia of supervisory status referred to in Section 2(i1 I) of
the Act are stated in the alternative; the exercise of one of the functions
referred toi is sufficient. The fact that Hendrix was not a salaried employee is
not controlling; after he was elevated from shift leader to plant foreman his
hourly wage was the highest. (Resp. Exh. 6.)
26 There was, of course, more than one mock election that day.
27 Klimek and Admire, both of whom had signed union cards, testified
that they voted against the Union in the mock election.
12 Cates' claim that he made no comment on the writing on the board has
more plausibility if only because he apparently spent less time in the lunch-
room that day.
624
A(RI('O()M OIl.SEEDS. IN('
ties. See tIndrl Malmuiu'nlring ( 'omrpativ v. l.. R B.. 32
F.2d 100 (5th (Cir.. 1963). Subparagraphs (a) and (i) of para-
graph 6 of the complaint were sustained. Subparagraph (k).
which alleges (Cates created an impression of surveillance.
was not"2
Plant Foreman Ilendrix' 45-minute conversation sith
Klimek on June 19 was clearly coercive and iolated Sec-
tion 8(a)( I) of the Act as alleged in subparagraphs (1). (m).
and (o) of paragraph 6. Klimek testified credibls thiti on
June 19 lendrix called him in and, alter staiing "how bad"
the Union w as. asked what he thought about the I.]nion.
Hendrix went on to explain that if the Union did come in
there would be layoffs and loss of privileges and benefits
(overtime. use of company property. etc.). Subparagraphs
(h) and (g) are duplicative of subparagraph (o). and sub-
paragraphs (i). (I ). and (n) are duplicative of subparagraph
(ff)- even though they allege different incidents and will
be dismissed as being cumulative.)"
Klimek testified that he and Flendrix discussed the rota-
tion of shifts on June 19. and that Hendrix stated that Ed
Admire would he taking Klimek's position "lor the good of
the Company'." The reason given b Hendrix impresses me
as pretextual under the circumstances, and I find Klimek's
active support of the Union prompted the change. his is
true even when Plant Manager ('ates' testimony is consid-
ered. ('ates testified that he had told Klimek abot the same
time that Klimek's job was being changed because of the
improper manner he had taken product samples. I am not
persuaded that Klimek took samples as (lates testified. Kli-
mek acknowledged discussing proper sampling procedures
with other Agricom officials (Chemist Bob l.awrence and
Richard ('onley), but he did not recall ever discussing the
subject with ('ates. Further, there was no indication that
Hendrix' statement about a shift change was related to ant
improper sampling. Paragraph 6(e) w.as established.
'The General Counsel argues in his brief that Plant Man-
ager (ates on June 15 threatened English with a change of
work shifts from night to day. Paragraph 6(c), howeser.
refers to an alleged threat by (Cates to do the reverse i.e..
switch an employee on day shift to night shift. Any shift
change, or threatened one, because of union activities, sym-
pathies, or membership would, of course. he unlawlul. but
the difficulty here is that English's testimony on this point
in not consistent. At one point he maintained that shifts
rotated until Hendrix took over as plant foreman (in April).
but at another point he complained Hendrix had taken him
"Subparagraph (k) duplicates subparagraph a). howe'er. I agree with
Respondenl the Klimek's lestimony to the effect thai Bob Farrar was to
stand at the polls on election day and note those who voted (supposedly
being onl' those n favor of the t nion) did not support the surveillance
allegation. On the other hand I do notl consider ('on'ersrs (raviure Senrlc,.
Inc.. 164 NL.RB 397 (1967i, ciled by Respondenl. as analagous Io the case at
bar. Polling of employees arose in that case under difRerent circumstances.
and the election by secrel ballot was conducted after the cornpan pres-
ident left the room.
0 Paul Phillips testified credibly that he was asked bh tendrix n June
off' o his regular shift. Furthermore. he never expressed any
disapproval of an'y shift change. Compare pages 78. 97. 129.
and 152 of the transcript. I cannot inter that English was
given a shift change for the reason alleged, so paragraph
6(c) will he dismissed.
Paragraph 6(d) alleges that on or about June 16 Plant
Manager ('ates gave the ''impression" to an employee that
he would he discharged because of union membership. ac-
tis ities, or smpathies. his allegation. obiously, refers to
the June 15 conversation betw een English and ('ates in
which English indicated that possiblv he should look for
another joh and Cates' deli er) the next day of a "letter of
recommendation" to English. ('ates was obviousls pleased
at the prospect that I-nglish might lease Agricom and
seized upon the opportunit to force him to go, but the
record does not suggest that ('ates sought to, or did, give
English the "impression" that he as being let go because
of anl association English may have had with the l nion as
alleged. Subparagraph (d) of paragraph 6 will be dismissed.
English testified that ('ites announced at a May meeting
that wage increases would be put into effect on June I. A
wage incease was put into effect n Jul 1. ('aties claimed in
his testimonN that he had told employees that he would
make evaluations in June and make the increases ef'eclive
July I. ('ales' testinmon is not particularly persuasive on
this point, as I consider it unlikels that ('ales would have
told employees of a pending increase before he had begun
evaluating them. Even so, it is impossible to find on this
record that Respondent withheld a promised wage increase
fronl employees "because of their membership in and ac-
tivities and/or smpathies on behalf of the Union." There is
no evidence of union actis it) as early as June I. whlen Elng-
lish said the increases were to go into effect, so it cannot he
inferred that Respondent unlaw fully withheld them. Para-
graph 6(h) was not established.
I. 8(A)(1) AN D (I) ( I R(; IS
Paragraph 7(c) of the complaint alleges that Respondent
laid off or discharged Buster Berglund. Colin English.
Frank Klimek. and Mike O'Farrell because of their mem-
bership in or activities on behalf of the U nion or because of'
other concerted activities. The allegations of this subpara-
graph were fuli) sustained.
Respondent knew of the Union's organizing activities
among its employees within 2 dass or so after the union
meeting w as held on June 5 at the home of Colin English.
Respondent employed ewer than 15 employees at its
Grimes plant, and Plant Manager Cates and Plant Fore-
man Hendrix were in daily contact with them. Employees
would go to the lunchroom for their breaks and to eat.
llendrix and ('ates also went to the lunchroom to eat and
for other purposes. Timecards were maintained in the area,
and the restroom was nearby. Hendrix admitted overhear-
ing several conversations about the U!nion and he spoke to
Phillips for sure about joining the Union within a couple of
days of the June 5 meeting. No doubt lendrix knew at
about the same time that Klimek and Eniglish were the
Union's organizers. or at least its most active supporters
among the employees at the Grimes plant. And, of course.
what Ilendrix knew his superiors were bound to know. I
h25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thus find that Respondent, through Hendrix, was aware of
the union activity by at least June 8.1
Respondent's hostility toward the Union is apparent
from the record, in spite of the indifference claimed by Re-
spondent's officials at the hearing. Hendrix expressed strong
dislike for the Union to Klimek, asserting that the Union's
dues would be $40 a month. Hendrix denied discussing the
subject, but I credit Klimek over Hendrix.
The timing and precipitate manner of the discharges, oc-
curring as they did during the Union's organizing drive and
only shortly after a copy of the Union's petition had been
filed, makes them suspect. This is especially true in light of'
the facts that Respondent had never laid off employees be-
fore during a summer shutdown and that Respondent chose
to make the layoffs permanent."
I am unable to believe that the layoffs had been planned
3 weeks or more in advance of the July 1 shutdown with a
view to reducing the size of the staff because of adverse
business conditions. English testified credibly that in early
June Cates had posted a notice to the effect that the Com-
pany had so much work that further vacations would have
to be staggered, with the prospect that the newer employees
would not be able to take any leave. Plant Manager Cates
testified that he did not have a copy of such notice (which
had been subpoenaed) but acknowledged that "I can't say
that it never existed."
Granted Respondent may have had reason for some con-
cern about its financial outlook in June 1978, 1 am con-
vinced that the moving reason for terminating English was
his organizing activities on behalf of the Union. Respon-
dent's action in allowing John Johnson to return on June 26
after he had quit the Company renders Respondent's
claimed economic defense suspect. Even if Respondent had
indicated to Johnson prior to June that he would be rein-
stated, as it may well have, the disparate treatment between
him and English (even assuming the accuracy of Cates' ver-
sion of English's expressed desires about leaving) is appar-
ent.3)
I credit English's version of the conversations between
him and Cates on June 15 and 16, and I reject Cates' con-
tradicting account of them. I find English did not ask for a
:I Cates claimed he did not know of any union activity "until around June
the 22nd," an assertion I do not credit. He said he "might" have overheard
employees' conversations about health and other problems but nothing
about the Union.
a2 Citing Port-A-Crib, 143 NLRB 483 (1963). and Cato Show Printing Co..,
Inc., 219 NLRB 739 (1975), Respondent defends making its layoffs perma-
nent. The chances of recall in such cases were far more speculative than here,
however. Also, in Port-A-Crib, there was no evidence of union membership
or activity on the part of the discharged employees. Further, in Cato, the
Respondent employer acted on the recommendations of a government in-
spector who urged terminations rather than temporary layoffs so affected
employees could "secure new government security clearances."
33 While I do not credit Cate's testimony concerning the so-called quitting
of English, it is apparent from Cates' own version that his treatment of
Johnson and English was disparate. Cates allowed Johnson to return at a
time when the Company was assertedly facing serious economic problems;
yet Cates said he refused a request for reconsideration from English about
quitting, expressed immediately thereafter while still on the job, Vice Pres-
ident Kopas had testified that Agricom was experiencing economic difficul-
ties in May and even earlier. Cunously, Respondent states in its brief that
English's "voluntary quit" was "decidedly different" from the "Johnson mat-
ter" as it had occurred at a time when the firm's "operations were in full
swing" and "Johnson was so sorely needed." Respondent's claims concern-
ing its financial situation are not consistent.
letter of recommendation of any kind and did not ask to be
able to stay on until the end of June.34 In any event, it was
English's union activity which motivated his being let go, I
am convinced, and this established its illegality. Radio Offi-
cers' Union v. N.L.R..., 347 U.S. 17 (1954). Thus, any le-
gitimate considerations that Respondent may have had for
laying him off. or any other employee. at the end of June
became irrelevant in the face of Respondent's discrimina-
tory motive. See ('onicord Furniture Indut.sries Inc., d/hl/a
Bradlord Furniture Conpamttv, 241 NLRB 643 (1979).
I am also persuaded that Klimek, Berglund, and O'Far-
rell were discharged because of union activity. I am con-
vinced that Respondent was intent on ridding itself of both
English and Klimek because of their prominent roles in
trying to organize Respondent's Grimes plant. I believe,
and I find, that the layoffs of Berglund and O'Farrell were a
cover to mask Respondent's real desire to rid itself of Kli-
mek, English's organizing partner. Respondent thought it
had been able to remove English on the basis that he had
offered to quit." And "to get at Klimek, a . ..senior em-
ployee, and strong advocate" (quoting from the General
Counsel's brief), it was necessary to lay off ()O'Farrell, Berg-
lund, and Bob Farrar or satisfactorily explain the failure to
do so as each had less seniority than Klimek. Respondent
offeredjustification for the retention of Farrar, who had not
signed a union card, on the basis of his "expertise" as a
mechanic. Respondent elected to lay off both Berglund and
O'Farrell. each of whom had signed union cards. Conceiv-
ably. Respondent was not aware that Berglund and O'Far-
rell were supporters of the Union though this seems
doubtful in view of Hendrix' interrogations and the close
association of Respondent's few employees and supervisors
at the Grimes plant, but the layoff of Berglund and O'Far-
rell to reach Klimek was, nevertheless, unlawful. As the
Board stated in Arnoldwsare, Inc.. 129 NLRB 228 (1960):'6
" English testified that on June 16, after receiving Cates' "letter of recom-
mendation" and being obviously aware that he was being forced out, he
asked Cates if he could have his job back. But such testimony did not estab-
lish that English had offered to quit. Respondent acknowledges in its brief
that "English did not state specifically that he quit." It is paradoxical that
Cates would send a job offer to English after insisting that he had quit.
especially after Cates concededly declined in June to let him stay on the job
and keep working.
Respondent makes a strong attack on English's credibility. English had
indicated during his testimony that he did not renew his application for a job
at Johns-Manville until after he received Cates' letter of June 16 and left
Respondent's employment. The evidence supplied through a Johns-Manville
witness, however, indicated that English had been in touch with the com-
pany earlier in the month. But I do not consider that fact as a basis for
discrediting his testimony. The record shows that English did visit the Johns-
Manville office earlier and was interviewed in June after he had received
Cates' letter. I believe that he had forgotten the earlier June visit to the
company: he did not have a cops of his application or other records of his
visit to aid him in trying to recount such past events. The Johns-Manville
evidence conflicts in other respects with Cates' version of what English had
said-but not in any matenal way with the version given by English. The
State of California ruling (Resp. Exh. 29) to the effect that English had quit
his job at Agricom is hardly persuasive, especially since it was based on
information supplied by Respondent.
3" English had considerable senority, being eighth on the Company's se-
niority list. Unless he quit voluntanly a layoff of English would have been
suspect of John Johnson and Angel Gracia had not also been laid off.
3 See also Engleood Lumber Company, 130 NLRB 394 (1961) and Mate-
rials Transportatlon Compass, and Cemen 7rucking Companv, 170 NLRB 997
(1968).
626
A(GRICOM OILSEEI)S. INC
As Respondent's objective in effecting the [shift] close-
down was illegal. it is immaterial that in carrying out
this objective, some of the victims of Respondent's dis-
crimination may not have been union employees or
that Respondent had no knowledge of their union
membership and activities. Discrimination in regard to
hire or tenure of employment of a group of employees.
including nonunion employees of the group or union
members not known by the employer to be union
members, tends to discourage union membership and
activities no less than discrimination against known
union members alone. All victims of discrimination are
in such cases entitled to the same relief' under the Act
as are known union members.
The factual allegations of paragraph 7(a) are similar to
those contained in paragraph 6(c) of the complaint, al-
though in the former the shift change was allegedly made
from night to day and was allegedly implemented, not
merely threatened. As noted previously. English's testimony
concerning the shifts worked during his last 3 months was
somewhat inconsistent (indicating at one point that prior to
Hendrix' promotion to plant foreman he had worked only
at night and at another that the shifts had been rotated
before Hendrix had taken over), and he had not made
known sufficiently what his desires were. Thus. I find that
the General Counsel did not carry his burden with respect
to paragraph 7(a), and it will be dismissed."'
Paragraph 7(b) alleges that Respondent refused to permit
Klimek to work overtime after on or about June 19. Klimek
testified that to the best of his knowledge he was not as-
signed overtime work after that date. When confronted
with his last timecard. showing that he had been paid for
14-1/2 hours of overtime during the week of June 19- 26, he
remained skeptical that he had been paid any overtime."
He acknowledged, however, that "it ha[dl been a long time"
previous to his testifying, indicating that he could be wrong.
Respondent unquestionably cut back in Klimek's over-
time-he was paid for only 45-1/2 hours of work for the
week of June 19. and 36-1/2 hours of work for the week of
June 12, whereas he was paid for over 60 hours in each of
the weeks beginning on June 5 and on May 28 (Respon-
dent's Exhibit 6)-the reduction beginning in mid-June. 1
have no doubt that the cutback was predicated on his union
activities, but the evidence does not clearly establish the
strict and unequivocal allegation of the complaint that he
was given no overtime work after on or about June 19.
Therefore, paragraph 7(b) will be dismissed.
'7 But as indicated previously. I consider English a reliable witness. He
was called upon to recount the sequence of various shifts he had worked
several months earlier without the aid of timecards or payroll records. In
fact, there was no great vanance between his recollections and Respondent's
records. His timecards (most of which were received at the end of the hear-
ing) indicate that he worked days dunng his last 2 weeks of employment: the
previous 2 weeks he worked swing: the next 2 previous weeks were grave-
yard: the next 2 previous weeks were day shifts; and the next 2 previous
shifts were swing. Respondent's payroll records (Respondent's Exhibit 6)
show that all of his work in February was on the swing shift (being desig-
nated by the 15-cent pay differential) and that 2 weeks of March were on the
graveyard shift (being designated by the 25-cent pay differential). Compare
his testimony at pages 863, 868 871: also at 96 98, 128 132. 135.
3&The timecard shows that he worked 16-1/2 hours I day during that
penod.
\. tit NIO()N S IAJ()RI IX lilt RI-t SAI It) BARt(AIN
There is no doubt as to the appropriateness of the bar-
gaining unit. As of June 26 there were 14 unit employees on
the payroll at the Grimes plant, excluding Plant Foreman
Dwight Hendrix. Eight signed cards would have been
enough to establish a majorit. and II enmployees had
signed valid cards a few das s after the June union meet-
ing. All 11 cards were in the hands of the Union hb June 20.
and Respondent continued to represent a majority of unit
employees even in Juls when the Union requested Respon-
dent to recognize and bargain with it."
The Supreme C(ourt in .\'L.R.R. v. (;.vsw/ PacAiltg C(o.,
395 U.S. 575 (1969) stated that union authorization "cards.
though admittedly interior to the election process, can ade-
quatel5 reflect emploec sentiment when that process has
been impeded."' )' he Supreme Court also stalted in the (s-
sc/ decision:
We cannot agree with the employers here that em-
ployers as a rule are too unsophisticated to be hound
by what they sign unless expressly told that their act of
signing represents something else. In addition to ap-
proving the use of cards. of course. Congress has ex-
pressly authorized reliance on employee signatures
alone in other areas of labor relations. even where
criminal sanctions hang in the balance. and we should
not act hastily in disregarding congressional judgments
that employees can he counted on to take responsibil-
itv for their acts.
We agree, however. with the Board's own warnings
in Levi Strauss & C(o. 172 N.L..R.B. No. 57 68
LR.R.M. 1338. 1341. and n. 7 (1968). that int hearing
testimony concerning a card challenge. trial examiners
should not neglect their obligation to ensure employee
free choice by rule We also accept the observation
that employees are more likely than not, many mnonths
after a card drive and in response to questions by com-
pany counsel, to give testimony damaging to the union,
particularly where company officials have previously
threatened reprisals for union activity in violation of
§8(a)(I). We therefore reject any rule that requires a
probe of an employee's subjective motivations as in-
volving an endless and unreliable inquiry.
It is to be noted that the authorization card used by the
Union here was not ambiguous: the card clearly indicated
that the signer was applying "for admission to member-
ship" in the Union and was designating the Union as "rep-
resentative in any and all matters concerning employment."
The testimony of employee witnesses as to the purpose of
signing the union authorization cards was not alwass con-
sistent. but I believe that they understood. almost without
exception. that the cards were not simply to be used for the
N' The inion asked Respondent to bargain bh letters dated July 6 and July
13. Bs letter dated July 20 Plant Manager Cates disputed the Union's claim
of majority No doubt Respondent's unfair labor practices undermined some
of the Union's support. utal I find the Union continued to hase majorits
status at the time of Its demand in spite of such practlces
4 t nder the Supreme (Cours later decision in Linden I.umblr Do,,,von v
.N LR R. 419 U.S 301 ( 1974). Respondent. of course would not have been
bound to recognize the Union's authorization cards as proof of the UInion's
majority had it not engaged in unfair labor practices
027
I)F(CISIONS OF NATIONAL L.ABOR RFIA'I IONS BOARI)
purpose of having an election. I have no doubt that O'Far-
rell understood he was designating the Union as his repre-
sentative in spite of his claim that he was unable to read.4
O'Farrell said "different ones" aided him in filling out the
authorization card, and he said he asked someone the pur-
pose of the card. Allegedly he could not remember who he
asked, what the answer was, or where he was at the time.
I reject Admire's claim that some employee, whose iden-
tity he could not recall, gave him the false impression that
he was the only employee who had not signed for the
Union. I do not believe Flores was confused by any lan-
guage problem. It was apparent that Flores did not sign a
card merely to have an election. The cards were passed out.
he said. "Is]o that we could he members of the Union, and
to learn on how many we could count on so that we could
have an election."
The trip of seven employees to the General Counsel's
Regional Office in San Francisco on August 22 was not, as
Respondent claims, a "clear indication" that the employees
understood that the authorization cards would only be used
to obtain an election at Respondent's plant. The testimony,
if anything, raises a question concerning the circumstances
of the employees leaving the plant that morning. Johnson
and Admire implied in their testimony that the employees
left the plant strictly on their own, without the knowledge
of either Plant Manager Cates or Plant Foreman Hendrix.
and traveled to San Francisco to protest cancellation of the
election. 3 Flores testified that the employees (six in number
he thought) worked for 2 hours and then punched out to go
to the Board's office in San Francisco. It strikes me as un-
likely that such a number of employees could leave Respon-
dent's plant during working hours without the knowledge
and approval of the plant's managing officials.
Respondent's Section 8(a)(1) violations, which interfered
with the Section 7 rights of Respondent's employees, and its
discriminatory discharges tended to undermine the Union's
majority. Respondent violated Section 8(a)(5) of the Act by
refusing to recognize and bargain with the Union, the col-
lective-bargaining representative of the majority of employ-
ees. A bargaining order is clearly appropriate under the
circumstances; Respondent engaged in pervasive unfair la-
bor practices, the Union had attained a majority status, and
the possibility of erasing the effects of past unfair labor
practices and insuring a fair election is certainly slight.
41 Respondent also argues that O'Farrell's card, along with those signed by
Berglund, English, and Klimek, should not be counted because they had
been lawfully removed from the payroll by Jul 6 when the Union made its
first demand for recognition. But. as has been held above, such employees
were unlawfully discharged.
,1 As has already been noted, O'Farrell appeared to be an intimidated
witness, He claimed he could not recall if he ever told Cates if he had signed
a card. It is apparent that Hendrix had questioned O'Farrell about signing a
card. even though O'Farrell claimed Hendrix knew his opinion about the
Union "from the start."
,' Johnson and Flores said the purpose in going to the Board's office was
to tell it hat they did not want a union. Admire stated that the purpose of
the trip was "tio see if they would give us an election."
TII R MI-i)Y
Having found that Respondent has engaged in unfair la-
bor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
In view of the fact that Respondent unlawfully dis-
charged Buster Berglund, Colin English, Frank Klimek.
and Mike O'Farrell, it will be recommended that Respon-
dent be ordered to offer each immediate and full reinstate-
ment to his tormer position, or, if such is not available, to
one which is substantially equivalent thereto, without preju-
dice to the seniority and other rights of each. (It is noted
that Mike O'Farrell has returned to work and that offers
were made to the other employees. Presumably the offers
referred to the former jobs held by each. It can be deter-
mined in the subsequent compliance stage whether the of-
tfers in fact encompassed the former or substantially equiv-
alent job of each of such employees.) It will also be
recommended that each of these unlawfully discharged em-
ployees be made whole for any loss of earnings suffered by
reason of his termination. Backpay shall be computed with
interest as prescribed in 1: U1Woolworth Compant 90
NLRB 289 (1950), Isis Plumbhing & Heating Co., 138 NLRB
716 (1962), and Florida Steel C'orporaion, 231 NLRB 651
(1977). (The General Counsel's request that 9 percent inter-
est be paid on the backpay is denied as the Board has not
approved of such rate.) I will recommend that pertinent
records be preserved and made available for ascertaining
the backpay that may be due.
I find that Respondent's Section 8(a)( 1) and (3) violations
are pervasive, have interfered with the exercise of a free and
untrammeled choice, and tend to foreclose the possibility of
holding a fair election. I find Respondent violated Section
8(a)(5) of the Act by refusing to recognize the Union as the
collective-bargaining representative of the bargaining unit.
that a bargaining order is proper. that an election is not
required, and that an employee sentiment expressed
through cards will be better protected by a bargaining order
without an election. See Gi.sel Packing ('o. supra.
Upon the basis of the foregoing findings of fact and the
entire record. I make the following:
CO(N(SI.ISloNS ()F LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By creating the impression among employees that
their union activities were under surveillance; by threaten-
ing to change work shifts of an employee if' employees do
not abandon their support of the Union; by interrogating
employees with respect to union sympathies, activities, or
membership: by polling employees regarding their union
sympathies, activities, or membership: by threatening dis-
charge or layoff of employees if employees selected the
Union as their collective-bargaining representative: and by
threatening employees with the loss of privileges and bene-
fits if they selected the I nion as their collective-bargaining
528
AGRI(COM OILSEEDS. INC.
representative, Respondent deprived employees of their
statutory rights and engaged in unfair labor practices
within the meaning of Section 8(a)( 1) of the Act.
4. By discriminatorily discharging Buster Berglund, Co-
lin English. Frank Klimek, and Mike O'Farrell, Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)( 1) and (3) of the Act.
5. All press operators, machine maintenance employees.
clean-up employees, load-out employees and working fore-
persons, excluding office clerical employees, all other em-
ployees, guards and supervisors as defined in the Act. con-
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
6. On or about June 20, 1978, and at all times material
thereafter, the Union represented a majority of the employ-
ees in the above appropriate unit, and has been the exclu-
sive representative of all said employees for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act; and Respondent was on or about July 6, 1978, and
has been since, legally obligated to recognize and bargain
with the Union."
7. By refusing to recognize and bargain collectively with
the Union in regard to the employees in said appropriate
unit since on or about July 6, 1978. Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (I) of the Act.
8. The above-described unfair labor practices affect com-
merce within the contemplation of the Act.
9. Respondent has not engaged in any other unfair labor
practices alleged in the complaint.
Upon the foregoing finding of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 45
The Respondent, Agricom Oilseeds, Inc., its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization by discharging or laying off employees
or otherwise discriminating against them in any manner
with respect to their tenure of employment or any term or
condition of employment.
(b) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of all the employees
in the above-described appropriate unit.
(c) Creating the impression among employees that their
union activities are under surveillance.
(d) Threatening to change an employee's work shift if
employees do not abandon their support of the Union.
" Respondent's obligation to bargain began on July 6. 1978. the date on
which the Union made its demand, even though Respondent had embarked
on a clear course of unlawful conduct earlier. Respondent's other unfair
labor practices can be remedied by entry of recommended order. See Taylor
Bros., Inc.. 230 NLRB 861 (1977): also Trading Post, Inc.. 219 NLRB 298
(1975).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 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.
(e) Interrogating employees concerning union smpa-
thies, activities, and membership.
(f) Polling employees regarding their union sympathies.
activities, and membership.
(g) Threatening discharge or layoff of employees if em-
ployees select the Union as their collective-bargaining rep-
resentative.
(h) Threatening employees with the loss of privileges or
benefits if the select the Union as their collective-hargaining
representative.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to elf-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain with the Union
as the exclusive representative of all emplobees in the afore-
said appropriate unit and, if an understanding is reached.
embody such understanding in a written signed agreement.
(b) Offer to each of the employees named to paragraph
7(c) of the complaint (Buster Berglund, Colin English,
Frank Klimek, and Mike O'Farrell) who have not yet been
recalled to work, immediate and full reinstatement to his
former job, or, if it no longer exists, to a substantially equiv-
alent one, without prejudice to the seniority and other
rights and privileges previously enjoyed b each.*
(c) Make whole Buster Berglund. Colin English. Frank
Klimek, and Mike O'Farrell for any loss of pay each may
have suffered by reason of Respondent's discrimination
against him, with interest, as provided in the section above
entitled "The Remedy."
(d) Preserve and. upon reasonable request, make avail-
able to the Board and its agents, for examination and copy-
ing, all payroll records and reports and all other records
required to ascertain the amount of any backpa) due under
the terms of this recommended Order.
(e) Post at its premises at Grimes. California. copies of
the attached notice marked "Appendix."4' Copies of said
notice, after being signed by a duly authorized representa-
tive of Respondent, shall be posted by it immediately upon
receipt thereof, in conspicuous places, including all places
where notices to employees are customarily displayed. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from receipt of this Decision, what steps
have been taken to comply herewith.
I-r Is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
v Mike O'Farrell returned to work in October and offers were mailed to
English, Klimek. and Berglund. Presumably Farrell returned to the same job
he previously held and presumably the other discriminatees were offered the
same job each had held before his layoff. The question of whether the offers
encompassed their former or substantially equivalent positions can be best
determined in the compliance stage of the proceeding
,s In the event that this Order is enforced by a judgnient ofa United States
Court of Appeals. the words in the notice reading "Posted bh Order of the
National l.ahor Relations Board" shall read "Posted Pursuant to a Judgment
of the United Statles Court of Appeals Enforcing an Order of he National
L.abor Relations Board"
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