Anderson Elevator Co.

National Labor Relations Board - Board Decisions

Jan 22, 1941

29 N.L.R.B. 128 (N.L.R.B. 1941)

In the Matter of DAVID ANDERSON, HAROLD ANDERSON AND MARGARET
ANDERSON, INDIVIDUALLY AND AS CO-PARTNERS, DOING BUSINESS UNDER
THE NAME AND STYLE OF ANDERSON ELEVATOR COMPANY and FLOUR,
FEED & GRAIN ELEVATOR WORKERS FEDERAL UNION #19140 (A. F.
OF L. )
Case No. C-1766.-Decided January 0, 1941
Jurisdiction : grain storing industry.
Settlement : stipulation providing for compliance with the Act.
Remedial Orders : entered on stipulation. '
Mr. Norman F. Edmonds, for the Board.
Marshall, Melhorn, Davies, Wall cC Bloch, by Messrs. Leland L.
Lord and Henry D. Bloch, of Toledo, Ohio, for the respondents.
Mr. Clyde M. Valentine, of Toledo, Ohio, for the Union.
Mr. Harold Weston, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Flour, Feed and Grain Ele-
vator Workers Federal Union #19140, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint dated November 2, 1940, against David Anderson,
Harold Anderson and Margaret Anderson, individually and as co-
partners, doing business under the name and style of Anderson
Elevator Company, Maumee, Ohio, herein called the respondents,
alleging that the respondents had engaged in and were engaging iri
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint,accompanied by a notice of hearing were duly served
upon the respondents and the Union.
Regarding the unfair labor practices, the complaint alleged, in
substance, that on July 13, 1940, and at all times thereafter, the
29 N L It. B, No. 24.
128
DAVID ANDERSON 129
respondents refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit, al-
though the Union had been designated representative of a majority
of such employees ; that on or about August 6, 1940, the respondents'
grain elevator employees went out on strike because of the respond-
ents' refusal to bargain collectively with the Union ; and that by
refusing to bargain collectively with the Union, and by persuading
their employees on July 13, 1940, and thereafter, to enter into indi-
vidual contracts of employment with the respondents governing wages
and other working conditions, by threatening George Restle, on or
about July 21, 1940, with discharge because of his membership in and
activity on behalf of the Union, by making similar threats to other
employees, by advising their employees that strikers would never
again be given work by the respondents, by engaging in espionage
and by other acts, the respondents interfered with, coerced, and re-
strained their employees in the exercise of the rights guaranteed in
Section 7 of the Act. On November 27, 1940, the respondents filed
their answer admitting the allegations of the complaint with respect
to the nature of their business, but denying the averments of unfair
labor practices.
Pursuant to notice, a hearing was held in Toledo, Ohio, on Novem-
ber 18, 19, 20, 26, 27, 28, and 29, 1940, before Howard Myers, the
Trial Examiner duly designated by the Board. The Board and the
respondents were represented by counsel and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. At the close of the
hearing, on November 29, 1940, a stipulation in settlement of the
case signed by the respondents, the Union, and an attorney for the
Board was introduced' in evidence.
On December 19, 1940, the respondents, the Union, and counsel
for the Board entered into an amended stipulation in settlement of
the case. The amended stipulation provides as follows :
It is hereby stipulated by and between David Anderson, Harold
Anderson and Margaret Anderson, individually and as co-
partners, doing business under the name and style of Anderson
Elevator Company, herein called Respondents, and Flour, Feed
and Grain Elevator Workers Federal Union #19140 (A. F. of
L.), herein called the Union, and Norman F. Edmonds, Attorney
for the National Labor Relations Board (the National Labor
Relations Board will be hereinafter referred to as the "Board"),
that:
1. The Respondents withdraw their answer and all motions,
heretofore made and filed in this proceeding and admit the alle-
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gations of paragraphs 1, 2 and 3 of the complaint herein, which
allege jurisdictional facts and that the Union is a labor brgani-
zation within the meaning of the National Labor Relations Act.
II. Respondents are partners doing business under the name
and style of Anderson Elevator Company, having their office
and principal place of business in Maumee, Ohio. Since-oh or
about July 1, 1940 Respondents have been engaged in the busi-
ness of buying, selling and storing various types of grain at
their elevator located in Maumee, Ohio. This elevator has a
capacity of 3,100,000 bushels. Since on or about July 1, 1940,
approximately 3,000,000 bushels of grain have been stored at
'Respondents' elevator in Maumee, Ohio. Approximately one
third of this grain was purchased outside of the State of Ohio
and shipped by rail and truck to Respondents' elevator in Mau-
mee, Ohio. Since on or about July 1, 1940 Respondents have
sold and shipped, approximately 350,000 bushels of grain from
their elevator. Approximately 300,000 bushels of this grain was
shipped to points outside of the State of Ohio. In the normal
operation of Respondents' business, it is estimated that approxi-
mately 75 percent of all the grain purchased and stored at Re-
spondents' elevator in Mauinee, Ohio will be sold and shipped
to points outside of the State of Ohio.
III. All parties having been duly served with the Complaint,
Notice of Hearing, and Second Amended Charge, waive their
right to hearing and the making of findings of fact and conclu-
sions of law by the Board, as set forth in Section 10 (b) and
Section 10 (c) of the National Labor Relations Act.
IV. It is agreed that this Amended Stipulation may be filed
with the Chief Trial Examiner of the Board and when so filed,
this Amended Stipulation, together with 'the Complaint, Notice
of Hearing and the Second Amended Charge shall constitute the
record in this case.
V. All individual contracts or agreements of employment en-
tered into between Respondents and their employees are hereby
cancelled and terminated, subject to all rights and benefits
that may have accrued to such employees up to the date of the
signing of this Amended Stipulation; however, such employees
may enter into individual contracts or agreements of employ-
ment with the Respondents, provided they give notice in writing
to the Respondents of their desire to enter into such contracts
or agreements within 15 days from the date of the posting of
the notice (referred to in paragraph 2 (e) hereof) of the cancel-
lation of these contracts. No individual contracts or agreements
will be entered into with any of such employees after the expira-
DAVID ANDERSON 131
tion of the 15 day period. Nothing herein contained shall be
construed to prevent Anderson Elevator Company from entering
into lawful individual contracts or agreements of employment
with other of their employees.
VI. Respondents hereby agree that they will not discourage
membership in the Union or any other labor organization of their
employees by discriminating in regard to hire and tenure of
employment or other terms or conditions of employment.
VII. The Parties hereto agree that the Board upon the basis
of the record in this case may make the necessary findings of
fact to establish jurisdiction and enter the following Order:
ORDER
Upon the basis of the record in this case, an Order may forth-
with be entered by the Board providing as follows :
1. The Respondents shall not :
(ti) Interfere with; restrain or coerce in aiiy manner, any
of their employees in the exercise of their rights guaranteed un-
der Section 7 of the National Labor Relations Act; or coerce,
intimidate, persuade, or urge any of their employees to enter into
individual contracts of employment with them governing wages
and other working conditions; -
(b) Enter into any individual contracts or agreements of em-
ployment with any of their employees which will in any manlier
restrain, limit, prohibit, or put a premium in any way on the
exercise of an employee's right to strike. -
(c) Enter into any individual contracts or agreements of em-
ployment with any of their employees which will not assure such
employees of their freedom to exercise their rights as guaranteed
in Sectio117 of the National Labor Relations Act.
2. The Respondents shall: -
(a) Offer, to John Long and George Cunningham immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to the former rights or privileges
previously enjoyed by them;
(b) Place each of the employees listed below, who make writ-
ten application for employment within 15 -clays from the date of
the posting of the notice referred to in paragraph 2 (e) below
and for whom employment is not now available, on a preferred
list to be offered employment as the need for employees arises
in the operation and maintenance of its elevator, feed mill and
marine leg, in addition to those presently employed or having
seniority therein.
4i ;00 2--42-N of 21)-10 -
132
i
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Preferred List
Lawrence Culbertson
Leo Hoen-
Win. Hoen
Melvin Gallant
Chas. Simpson
Marion Vaughn
Fred Madden
Albert Pack
Ray Overmeyer
' Geo. Hart
(c) In order to effectuate the policies of the National Labor
Relations Act pay over to the individuals listed below the
amounts set opposite their names :
George Restle------ -------------------------------- $635 64
Herbert Vogel 1-------------------------------------- 528.80
Romaine DeStatte--------------------------------- 200 00
Robert -DeStatte----------------------------------- 200 00
Melvin Gallant-------------------------------------- 100 00
Provided , however, that if Melvin Gallant decides at his option
not to make application for employment as provided in para-
graph 2 (b) above he shall be paid an additional sum of $100.
(d) Immediately cancel and terminate all individual contracts
or agreements of employment entered into between Respondents
and their employees subject to all rights and benefits which may
have accrued to such employees to the date of such cancellation
and termination , provided however such employees may enter
into individual contracts or agreements of employment with Re-
spondents which do not violate the provisions of this Order, if
such employees give notice in writing to Respondents of their
desire to enter into such contracts or agreements within fifteen
(15) days from the date of the posting of the notice referred to
in paragraph 2 (e) hereof. Nothing herein contained shall be
construed to prevent the Respondents from entering into lawful
individual' contracts or agreements of employment with other
of their employees.
(e) Immediately post and ' keep visible on their bulletin board
adjacent to the time clock for a period of sixty ( 60) days notices
advising their employees that Respondents will not engage in
any of the practices prohibited in paragraphs 1 (a) through
1 (c) above ( such notice to contain the specific provisions of
Section 7 of the National Labor Relations Act) and will take
the affirmative action set forth in paragraphs 2 (a), 2 (b)' and
2 (d) above.
DAVID . ANDERSON 133
VIII . It is understood and agreed that the entire agreement is
contained within the terns of this Amended Stipulation and that
there is no verbal agreement of any kind which varies, alters or
adds to this Amended Stipulation, and that compliance by the
Respondents with the foregoing Order shall be a final and com-
plete disposition of the allegations set forth in the Complaint
in the above entitled matter, and that the Respondents shall not
be compelled to ,reinstate or place on a preferred list to be
offered employment any persons other than those listed in
paragraphs 2 (a) and 2 (b) hereof. -
IX. It is further understood and agreed that this Amended
Stipulation is subject to the approval of the Board and shall
become effective immediately upon'the granting of such approval.
X. In the event an Order of the Board is entered iii accord
herewith, all parties consent to the entry by the appropriate Cir-
cuit Court of Appeals, upon application without notice to the
parties, of a decree enforcing an Order of the Board in the
above form and waive their right to contest any application by
the Board for the entry of such a decree.
XI. It is understood and agreed that in the event this Amended
Stipulation is not approved by the Board as written, the pro-
visions hereof , including any and all waivers herein made shall
be null and void and shall be without prejudice to the respective
claims of the parties hereto and the parties shall be relegated to
the position they were in immediately prior to the execution
thereof.
On December 30, 1940, the Board issued its order approving the
amended stipulation , making it part of the record, and transferring
the proceeding to the Board for the purpose of entry of a decision
and order by the Board. -
Upon the. above stipulation and the entire record in the case, the
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
David Anderson, Harold Anderson and Margaret Anderson are
partners doing business under the name and style of Anderson Ele-
vator Company,1having their office and, principal place of business
in Maumee, Ohio. Since on or about July 1; 1940, the respondents
,have been engaged in the business of buying, selling and storing vari-
ous types of grain at their elevator located in Maumee, Ohio. During
this period, approximately 3,000,000 bushels of grain have been stored
in the'respondents' elevator, about one-third of which was purchased
outside the State of Ohio. During this same period, the respondents
134 DECISIONS OF NATIONAL LABOB RELATIONS BOARD
have sold and shipped approximately 350,000 bushels of the grain
stored in their elevator; about 300,000 bushels of which were shipped
to points outside the State of Ohio. In the normal operation of the
respondents' business, it is estimated that approximately 75 per cent
of all the grain purchased and stored at the respondents' elevator in
Maumee, Ohio, will be sold and shipped to points outside the State
of Ohio. The respondents admit that they are engaged in interstate
commerce within the meaning of the Act.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
ORDER
Upon the basis of the above findings of fact, amended stipulation,
and the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations
Board hereby orders that David Anderson, Harold Anderson and
Margaret Anderson, individually and as co-partners, doing business
under the name and style of Anderson Elevator Company, their
agents, successors, and assigns :
1. Shall not :
(a) Interfere with, restrain or coerce in any manner, any of their
employees in the exercise of their rights guaranteed under Section 7
of the National Labor Relations Act; or coerce, intimidate, persuade,
or urge any of their employees to enter into individual contracts of
employment with them governing wages and other, working
conditions ;
(b), Enter into any individual contracts or agreements of employ-
ment with any of their employees which will in any manner restrain,
limit, prohibit, or put a premium in any way on the exercise of an
employee's right to strike;
(c) Enter into any-individual contracts or agreements of employ-
ment with any of their employees which will not assure such em-
ployees of their freedom to exercise their rights as guaranteed in
Section 7 of the National Labor Relations Act.
2. Shall :
(a) Offer to John Long and George Cunningham immediate and
full reinstatement to 'their former or substantially equivalent posi-
tions without prejudice to the former rights or privileges previously
enjoyed by them;
(b) Place each of 'the employees listed below, who make written
application for employment within 15 days from the date of the
posting of the notice referred to in paragraph 2 (e) below and for
whom employment is not now available, on a preferred list to be
offered employment as the need for employees arises in the operation
DAVID ANDERSON 135
and maintenance of its elevator, feed mill and marine leg, in addition
to those presently employed or having seniority therein.
Preferred List
Lawrence Culbertson
Leo Hoen
Wm. Hoen
Melvin Gallant
Chas. Simpson
Marion Vaughn
Fred Madden
Albert Pack
Ray Overmeyer
Geo. Hart
(c) In order to effectuate the policies of the National Labor Rela-
tions Act pay over to the individuals listed below the amounts set
opposite their names :
George Restle------------------ ------------------------ $635 64
Herbert Vogel------------------------------------------ 528 80
Romaine DeStatte-------------------------------------- 200.00
Robert DeStatte---------------------------------------- 200.00
Melvin Gallant----------------------------------------- 100.00
Provided, however, that if Melvin Gallant decides at his option not
to make application for employment as provided in paragraph 2 (b)
above he shall be paid an additional sum of $100.
(d) Immediately cancel and terminate all individual contracts or
agreements of employment entered into between Respondents and
their- employees subject to all rights and benefits which may have
accrued to such employees to the date of such cancellation and termi-
nation, provided however such employees may enter into individual
contracts or agreements of employment with Respondents which do
not violate the provisions of this Order, if such employees give no-
tice in writing to Respondents of their desire to enter into such con-
tracts or' agreements within fifteen (15) days from the date of the
posting of the notice referred to in paragraph 2 (e) hereof. Nothing
herein contained shall be construed to prevent the Respondents from
entering into lawful individual contracts or agreements of employ-
ment with other of their employees.
(e) Immediately post and keep visible on their bulletin board
adjacent to the time clock for a period of sixty (60) days, notices
advising their employees that Respondents will not,engage in any of
the practices prohibited in paragraphs 1 (a) through 1 (c) above
(such notice to contain' the specific provisions of Section 7 of the
National Labor Relations Act) and will take the affirmative 'action
set forth in paragraphs 2 (a), 2 (b) and 2 (d) above.