Cape County Milling Co.

National Labor Relations Board - Board Decisions

Apr 29, 1943

49 N.L.R.B. 226 (N.L.R.B. 1943)

in'the Matter of CAPE COUNTY MILLING COMPANY, A CORPORATION and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ' CIIAUFFEURS, WARE-
HOUSEMEN , AND HELPERS OF AIIERICA, AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR
Case No. C44 10-ecided April 29,19 .-3
DECISION
AND-
ORDER
On November 9, 1942, the Trial Examiners issued his Intermediate
Report 'in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor_pi actices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. Exceptions to the Intermediate Report were there-
after filed by the respondent. The Board has considered the rulings
made by the Trial Examiner at the hearing and finds that no prejudi-
cial error was committed. The rulings arc hereby affirmed:
The Board has considered the Intermediate Report, the respondent's
exceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations made by the Trial Ex-
aminer, with the following additions :
The Trial Examiner has found, inter alia, that the respondent dis-
continued operation of its trucks on February 13, 1942, for the purpose
of discouraging membership in the Union and dissipating the Union's
majority, and in order to avoid its obligation to bargain collectively
within the meaning of the Act. The Trial Examiner has further found
that'the shut-down of the respondent's trucking operations'on Febru-
ary 13, 1942, was in fact a temporary expedient designed to accomplish
these unlawful purposes, and that the respondent thereby locked out
and discriminatorily discharged nine of its employees. ' On these find-
ings, the Trial Examiner recommended that the respondent be ordered
to offer immediate and full reinstatement to the nine truck drivers
thus discriminatorily locked out, without prejudice to their seniority
and other rights and privileges. These findings and recommendations
- '' Of the Trial Examiner, which we affirm' and adopt, do not involve the
49 N L. R 13., No 30.
226
A CAPE COUNTY MILLING CO MPANT 227
question of the propriety of ordering resumption of business opera-
tions permanently abandoned. We find, as did the Trial Examiner,
that there was no such abandonment here and that, the respondent has
employed a mere temporary stratagem in order to rid itself of the
Union, retaining full ownership and control over its trucks, some of
which have been ostensibly sold under colorable contract. Conse-
quently, our order hereinafter set forth, requiring immediate reinstate-
ment of the truck drivers discriminatorily locked out. by the respond-
ent, is appropriate and need not be qualified because of the respondent's
temporary and partial cessation of trucking operations.'
ORDER
Upon the basis of the above findings of fact and the entire record in
the case, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Cape County Milling Company, Jackson, Missouri, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Amer-
ica, affiliated with the American Federation of Labor, as the exclusive
representative of elf of the employees regularly engaged by the re-
spondent at its Jackson, Missouri, mills in driving trucks, with respect
to rates of pay, wages, hours of employment, and other conditions of
employment ;
(b) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warelousemen, and Helpers of America,
affiliated with the American Federation of Labor, or in any other labor
organization of its employees, by laying off, locking out, discharging,
or refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment, or
any terns or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Amer-
' See Matter of Newton Chevrolet, Inc., and International Association of 1fach,nists,
Autoinothve Afachi,mts Lodge No 1001, 37 N 1, It, B 334. 850
531647-4 ,-vol 49--1ll
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ica, affiliated ivith'the American Federation'of Labor as the excluSive-
representative of all of the employees regularly engaged by the respond-
ent at its Jackson,, Missouri, mills in driving trucks, with respect to
rates of pay, wages, hours of employment, and other conditions of
employment ;
(b) Offer to • Willis Wolfenkoehler, Les Ackrnan, Joe McIntyre,
Joe Brown, Sherwood Wolfenkoehler, Dewey Wolf enkoehler, Herbert
Morton, Clarence Tripp, and Arthur Kilhoefner, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice'to their seniority and other rights and privileges;
(c) Make whole Willis Wolfenkoehler, Les Ackrnan, Joe McIntyre,
Joe Brown, Sherwood Wolfenkoehler, Dewey Wolfenkoehler, Herbert
Morton, Clarence Tripp, and Arthur Kilhoefner, for any loss of pay
they have suffered by reason of their discriminatory lock-out and dis-
charge, by payment to each of them of a sum-of money equal to the
amount which lie normally would have earned as wages during the
period from the date of his lock-out and discharge to the date of the
respondent's offer of reinstatement, less his net earnings during such
period ;
(d) Make whole Sherwood Wolfenkoehler, Robert Harris, and
Herbert Morton, for any loss of pay they suffered by reason of their
discriminatory lay-off from September 6 to September 17, 1941, by
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages during the period of his lay-
off, less his net earnings during said period;
(e) Post immediately in conspicuous places throughout its Jackson,
Missouri, Mills A and B, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order;
and (3) that the respondent's employees are free to become and remain
members of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, affiliated with the American
Federation of Labor, and that the respondent will not discriminate
against any employee because of membership in or activity on behalf
of that organization; '
. (f) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is
dismissed, insofar as it alleges that the respondent has engaged in and
CAPE C-OUNTY MILLING GOIMPANY 229
is engaging in unfair labor practices within ,the meaning of Section
8 (3) of the Act with respect to James Bowman.
INTERMEDIATE REPORT
All- Charles K had, lei , for the Board.
Air Wallace Coopea, of St- Louis. Alo, and All Albei t ill. 'Spiadltng , of Cape
Giiardean , Mo, fot the respondent.
STATEMENT OF' THE CASE
Upon an amended charge duly filed on July 7, 1942, by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated
with the'American Federation of Labor, herein called•.the Union, -the National,
Labor 'Relations' Board, -herein called the Board, by the Reg'ional' Director for
the Fourteenth Region (St Lotus. Missouri), issued its complaint, dated August
28, 1942, against the Cape County Milling Company, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1), (3) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act. 49 Stat. 449,
herein called the Act. Co{aies of the complaint, together with notice of hearing
thereon. were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged: (1) that
the respondent laid off three of its truck drivers' on about September 6, 1941,
and refused to reinstate them until about September 17, 1941, because they joined
and assisted the Union; (2) that since about September 16, 1941, the respondent
has refused to bargain collectively with the Union,'which at all times since
September 2, 1941, has been the duly' designated representative "of a majority
of the iespondent's employees in an appropriate unit composed of all of its
truck drivers; (3) that in order to discourage membership in the Union, dissipate
its majority, and avoid collective bargaining, the respondent, about February
13. 1942, discontinued and has :since refused to resume the operation of its
trucks, thereby locking out and discharging its 10 truck drivers; (4) that from
about September 2, 1941, the respondent. among other things, warned its em-
ployees against and questioned them concerning membership in and activities
on behalf of the Union : advised union members to abandon collective bargaining
and revert to individual bargaining; and threatened to discontinue its trucking
operations if employees continued their union membership and collective bar-
gaining demands; and (5) that by such acts and conduct and in other ways the
respondent interfered with, restrained, and coerced its employees in the ex-
ercise of the rights guar anteed in Section 7 of the Act
In its answer filed September 10, 1942. the first day of the hearing herein, the
respondent admitted that the three-named track drivers had been laid off-during
the period alleged; that its trucking operations had been discontinued on Febru-
ary 13. 1942; and that during September 1941 the Union had requested the re-
spondent to bargain collectively with it as the representative of the employees
in the unit alleged to be appropriate in the complaint, but denied, that it had
engaged in any unfair labor practices.
' Sherwood Wolfenkoehler , Robert Ilariis , and IIeibet t Morton -
Willis Wolfenkoehler . Les Ackman , Joe Mclnt',ie , Joe Brown , Sherwood Wolfenkoehler,
Dewey Wolfenkoehler„ Herbert Morton , Clarence Tripp , Arthur Kilhoefner , and James
Brown The foregoing names are spelled as corrected at the healing
1
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice. a hearing was held at.lackson, Missouri. ftoni September 10
to September 16. 1942, before the uudei signed, Earl S. Belhnan, the Trial Exam-
iner duly designated by the Acting Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hearing. Full
opportunity to be heard to examine and cross-examine witnesses and to intro-
duce evidence bearing upon the issues was afforded all parties. At the opening
of the hearing, upon motion by counsel for the respondent, certain particulars
were furnished by counsel for the Board. The complaint fund the answer were
amended without objection to correct the spelling of certain names. At the close
of the Board's case, the respondent moved to dismiss the complaint in its entirety.
The motion was denied. The respondent then moved severally to dismiss certain
,allegations of the complaint. Those` motions were denied At the close of the
hearing, the respondent renewed its motions to disiinss and ruling wag reserved
thereon. Those motions, except as otherwise appears herein, inc•hereby denied.
A motion was granted, without objection, to conform the pleadings to the proot
as to formal matters. The parties were afforded. but waived, opportunity to
argue orally before the undersigned The i espondent ,has filed a brief with the
undersigned I '
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
} INDINO'S OF FACT
I THE BUSINESS OF THE RESPONDEN'r
The respondent, Cape County Milling Company, is a Missouri corporation,
organized in 1895. At its mill in Jackson, Missouri,' the respondent is engaged
in milling, processing, selling,, and distributing flour and feed. In the course
of its milling operations, the respondent secuies large quantities of materials
such as wheat, corn and other grain by purchase and transportation in interstate
-commerce from States outside the State of Missouri During the 12 months
ending August 28, 1942, the value of the respondent's finished products was ap-
proximately $250.000. About 65 percent was shipped to points outside of the
State of Missouri, principally to States in the South and Southeast. The respond-
ent admits that it is engaged in interstate commerce.
11. THE ORGANI'ZA'TION INVOI.Vi.p
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America is a labor organization affiliated with the American Federation of
Labor. It admits to membership employees of the respondent regularly engaged
in driving trucks
III THE UNFAIR IAWR PRACTICES
A Chronological statement of the facts
1. The advent of the Union
One Sunday during the latter parr of May 1941, a former employee of the
respondent went to Richard Earl Bowman, assistant treasurer and one of the
3 The respondent's Jackson property consists of 2 mills , A and B. Mill A is ,the prin-
cipal place of business Mill B, less than a mile away, is used mainly for storage. The
respondent also has a grain storage depot at Burfordvilie, Missouri , some 8 miles from
Jackson Unless otherwse stated, the term mill as used herein refers to Mill A. in
Jackson.
0
A
CAPE COUNTY MILLING COIMvMPANiY 231
directors of the respondent' and warned him that the respondent's employees
were not going to permit the hill to operate the next day. Bowman said that
the information was "news" to him.' The next day, about 6 o'clock in the morn-
ing at the time the first shift was due to start operating the will, Bowman went
to the mill and found the null employees, including those who did not work on the
morning shift, together in the waiting room. The will was not operating After
ascertaining from the men as a group that they did not intend to go to work, Bow-
man talked with the men individually until lie had secured a crew of 8 needed to
start the hill. After the mill started, the employees who had not been willing
to go to work seated themselves on the railroad track next to the null. About 8
o'clock that morning, when Sherwood Wolfenkoehler, one of the truck drivers,'
i eported for work he saw the men sitting on the tracks and started to go over to
them Bowman, who had immediate supervision of the respondent's trucking
operations, told Wolfenkoehler not to go over to the men as they would get him
in trouble Sometime thereafter, the respondent discharged several of'those who
had been leaders in the walkout Also about June 7, 1941, effective as of June 1,
the respondent increased the pay of its mill workers, packers, and intra-state
truck drivers from 30 cents per hour to 35 cents per hour. The inter-state drivers
continued to receive 30 cents an hour'
Shortly, after the above increase to all of the respondent's other employees, seven
inter-state truck drivers' met under a shed in front of the mill office. Sherwood
\Volfenkoehler went into the office and asked Bowman to come out to discuss the
situation with the drivers. This Bowman did. The drivers complained that
they were getting only 30 cents an hour while the intra-state drivers and 111111
employees had been raised to 35 cents Robert Harris said that they wanted
more money. It was also pointed out that the drivers had to pay money out of
their own pockets for living expenses while on the road since the allowance given
was too small. Bowman expressed sympathy for the men's position, but stated
that he had talked to the directors and had been unable to secure an increase
for them. '
Sometime in June, a few days after the foregoing meeting, several of the
respondent's truck drivers went in Sherwood Wolfenkochler's car to a meeting
of the Union in Cape Girardeau, Missouri, a city about 10 miles from Jackson.
On that occasion at least two of the respondent's employees, Wolfenkoehler and
Harris, signed applications for membership in the Union. The attempt to form
it local in Cape Girardeau failed, initiation fees were refunded, and no charter
was issued Sometime thereafter, about the last of August, Cletes Dodge, a busi-
ness representative of the Union, saw Harris and Wolfenkoehler in Jackson and,
finding that the respondent's truck drivers were still interested in membership
in the'Union, left application blanks.
' There are two, other members of Bowman's family involved in this case, his father,
J. R. Bowman, and his son, James. J. R Bowman is the respondent's treasurer and
one of its six dnectors James Bowman drove one of the trucks Wherever the name
Bowman is used Lerem without first name or initials it designates Richard Earl Bowman.
'There is no evidence that at that time any union Ras attempting to oiganire in
Jackson, a city of 4,100 population
° The truck di ivei s had not participated in the walkout
On the a%ei age, S or 9 of the respondent's approximately 10 or 12 truck di fivers served
]ai_ely as inter-state drivers, driving for the most part large trailer trucks,
'They were Sherwood Wolfenkoehler, Willis Wolfe nkoehler, Dewey R'olfenkoehler, Her-
bert Morton, Robei t alai ris, Marvin Goelunan, and Lawrence Call The foregoing three
Wolfenkoehiers are brothers and are sometimes hereinafter referred to as the three Wolf-
enhoehlers When only the name Wolfenl,oehler is used, it designates Sherwood Wolf-
enkoehler.
I
232 DEiCISIONS OF NATIONAL LABOR RELATION S BOARD
On September 2, 1941;° Dodge met several -of the ' respondent 's truck drivers
at a filling station in Jackson At that time Dodge received applications for
membership in the Union from the three Wolfenkoehlers , Morton , Harris, Call,
and Milford Crader.lo Later that day, Wolfenkoehler , Morton and Dodge met
Goehman down town in Jackson and secured his application.
2 The events surrounding the lay offs
Sometime between September 2 and September 6, Bowman and Call had a
discussion concerning the desirability of unions. The discussion took place in
the mill office and T. A. Cosgrove, the respondent's secretary and accountant,
who is also one of the respondent's directors, was present During 'this discus-
sion Bowman told Call that while a union might work satisfactorily in a big
city, a union was not any good in a small place like Jackson which would not
stand for a union. Bowman illustrated his point by stating that Call had three
children working in the shoe factory in Jackson, and that if it union attempted
to-organize it,, that factory would be moved or closed."
After Harris had,signed his union application on September 2 but before he
was laid off on September 6, Bowman saw him in the mill garage and asked
him if there was going to be a meeting at his home. Harris replied that lie
supposed that there was.'2 Bowman then told Harris that he could save himself
a lot of trouble if he would take Wolfenkoehler and Morton and go to the office
and ask for a 5 cent an hour increase which he wiis sure would be granted.
While Harris told Wolfenkoehler'of his conversation with Bowman, they did
not go to the office to ask for a raise and the meeting was held at Harris' home
on September 7. Shortly before the meeting, Bowman met Willis Wolfenkoehler it
by one of the trucks and asked him if he was going to the meeting at Harris'.
Upon receiving no reply, Bowman said, "Take a fool's advice and stay at honfe." is
I
O The undersigned is convinced that the eight applications wei e seemed on September 2
Except for the testimony of Dodge, the testimony is consistent that applications were
signed at a.filling-station -before the lav offs of September 6, and that the fist union
meeting at Harris' home did not occur until after those layoffs Only one meeting was
held at Harris' home and it was held on September 7. Dodge testified that he secured
the applications at the meeting at Harris' home. The' dates on six of the applications
were filled in by Dodge. However, two of the applications, those of Call and Goehman,
bear the dates "Sept. 2, 1941" in the sane handwiiting as the respective signatures
The undersigned does not accept the respondent's theory presented in its brief that the
cards were actually signed at Harris' home as testified by Dodge and that earlier dates
were then falsely entered to make it appear that the signing had taken place before the
three drivers were laid off. In view of the consistent testimony of the other Board wit-
nesses that the cards were signed at a filling station befoie the lay offs and the dates
on the cards of Call and Goehman, the undeisigned is convinced that Dodge was mistaken
as to the place where lie received the cards. As appears below, the Union had a majority
in the appropriate unit fiom September 2 to December 7, 1941.
io Ciader left the respondent s employ the following week.
ii The above finding is made upon testimony of Call which the undersigned believes
Bowman testified that he did not recall such -a conversation. Cosgrove testified that lie
had never heaid'Bowman make any statement about union matte's to any truck driver
13 The first meeting of the Union was to take place at Harris' home on Sunday, Sep-
tember 7, to discuss wages and a contract
i3 The findings as to the above conversations are made upon testimony of Harris and
of the two Wolfenkoehlers which, the undersigned accepts Dowman admitted that he
had made a remark to Willis \Wolfenkoehler similar to that set out above, but testified
that he had not known the purpose of the meeting or that any of the drivers had joined
the Union. He testified that he had heard that some sort of grievance meeting' was to
be Held but could not recall how he had received the information Bowman admitted
asking Harris if lie was going to be invited to the "big feed" to be held at IIarits' home
CAFE COUNTY MILLING COOMPAi1'T 233
When Bowman wrote out Sherwood Wolfenkoehler's check for the week end-
- mg'September 6,' he said to Wolfenkoehler, "I am sorry I cannot use you any
more" When Harris got his pay, Bowman told him that he no longer had a
job Harris mentioned that he owed the mill $7, but Bowman replied that
he did not have any job with which to pay it Harris then left his truck keys.
Morton was also laid off that same week end n
On September 16, two representatives of the Union, Donald Hungate and
Dodge, held a conference with Bowman and Cosgi owe at the mill office. Hungate
asked why the three drivers had been discharged, pointing out that they were
among the drivers with greatest seniority. - Bowman said that they had been
laid off rather than discharged and that the action had been taken because
work was slack and because they had been unwilling to do every kind of work.
Bowman said that he would let the Union know what lie could do about putting
them back to work Hungate asked Bowman how many truck drivers he
employed and Bowman replied that the respondent employed 11. Hungate in-
formed Bowman that the Union had a majority of the truck drivers signed up
and„that it'would later submit a proposed contract.
On September 17, the-respondent wrote the Union concerning the meeting of
the preceding day, stating that the three drivers had been "temporarily laid
off on account of insufficient work." The letter concluded with the following
paragraph :
- It was not our intention then, and it is not so now, to lay them off perma-
nently, but as soon as work justifies it, we expect to again call them into
service.
On the same day, the respondent wrote letters to Harris, Morton, and Wolfen-
koehler, each 'of which read as follows :
As stated to you at the tine you were laid off on account of insufficient work,
we expected you to report for work again as soon as our business justified it 15
We received a number of orders this morning and it seems that we are going
to need'your services and we would like for you to report for work tomorrow.
Thereupon the three drivers returned to work.
and telling Hai ris that he thought a 5 cent increase would be granted if he went to the
respondent's president He denied that Wolfenkoehler and Morton had been mentioned
duiing the conversation Bowman, who was not a ciedible witness, was particularll
unconvincing in his testimony conceinmg what lie knew and aid about the meeting at
Harris' home. On the other hand, Harris, who was at the time of the healing seiviug
as the local manager of a common cairier trucking fiim, which was then serving the
respondent and whose financial interest in the outcome of the healing was limited to
possible back pay from September 6 to 17, was coil racing From his testimony, the
undersigned is persuaded that Bodman specifically, suggested that Morton and Wolfen-
koehler accompany Hairis in asking for an increase. In view of the concerted activities
during the pieceduig months, the smallness of the community and Bowman's testimony
that a former employee had warned him in May of the impending walkout of the mill
employees, it is evident from the above credited testimony of Harris that Bowman had
concluded that Harris, Morton, and Wolfenkoehler were leadeis In organisational actiNi-
ties among the truck drivers.
ii The above findings are based upon testimony of Hai ris and Wolfenkoehler as to what
was said to them at the time they were laid off. Morton did not testify. Bowman's
.testimony that he told the drivels that woik was slack was not convincing. .
15 Harris and Wolfenkoebler both testified that no such statement was made to them
at the time they were laid off. The undersigned accepts their testimony. While it can
be argued, as counsel for the Board did dining the lieainig, that the three drivers were
actually discharged on September 6 rather than laid off, a determination of which actually
took place is not material to the issues herein as the effect and the remedy would be the
same in either event Since the term "lay-off" is used in the complaint, the matter
is so considered herein. '
234 DECISIONS OF ]STATIONAL LABOR RELAT I'OIVIS BOARD
3. The first attempts to bargain
On September 26, Dodge called at the mill and presented a proposed contract
to Bowman and Cosgrove The contract, which had alieady been signed by
Flungate for the Union, provided among other things for a union shop.; lay-offs
according to seniority; a week's vacation with pay after a year of service;
50 cents an hour for driving within a radius of 50 miles of Jackson aucl 21/ cents
per mile for driving beyond that radius, plus 1 cent per hundred for unloading;
meals and lodging while away,from home: a minimum of 4 hours pay when re-
porting for work unless previously notified not to report ; and time and one-half
when driving on an hourly basis for all work in excess of 9 hours'in any one day
or 54 hours in any 1 week Dodge asked Bowman to look over the.contract to
see what he thought of it. After Bowman and Cosgrove had read the contract,
Bowman asked if he was expected to sign then Dodge replied that he could have
some time. Bowman stated that he would like to study the contract more thor-
oughly and present it to the directors This was agreeable to Dodge who said
lie would return later, probably the following week. Shortly thereafter, the re;
spondent telephoned its attorney, Albert M Spradling, whose office is at Cape
Girardeau and who is paid an annual retainer by the respondent, and asked
him to come to Jackson to look over Elie contract Spradling said he could not,
and asked that the contract be mailed to him. This was done
- On October 1, 1941, without any notice to the Union the respondent announced
a general wage increase. The mill workers and intra-state drivers were in-
creased from 35 cents an hour to 40 cents and the packers from 35 cents to
421/ cents. At the same time the inter-state truck drivers who had continued
to receive only 30 cents an hour were increased to 40 cents. Thus by its uni-
lateral action the respondent gave to its truck drivers approximately half of
the hourly wage increase which the union was seeking for them. When Bow-
man gave the drivers the increase he asked if they were satisfied
About October 2, Dodge returned to discuss the contract with the respondent.
He met with Bowman and Cosgrove, both directors of the respondent, in the
mill's private office Bowman said that the respondent (lid not like the con-
tract and would not sign it He stated that the wage scale asked was too
high and that he had asked the drivers and they had told him that they were
satisfied with their pay. While the wage scale was the principal topic of dis-
cussion, Bowman indicated that the contract in general was not satisfactory
to the respondent. Among the provisions specifically objected to were those
providing for a minimum reporting time, seniority, vacations with pay, and the
union shop. Neither Bowman nor Cosgrove made any suggestions for changes
in the contract. Dodge asked Bowman if he would draw up a contract similar
in form but with the changes the respondent thought necessary or if he would
tell him what changes lie wanted so the Union could re-draft the contract.
Bowman replied that he did not know anything about drawing up contracts,
but that if the Union drew up one which was satisfactory, the respondent
would consider signing it 10 When Dodge left he said he would return again
on a later (late. After the foregoing conference, Spradling saw Bowman in
Jackson and in the course of their discussion told Bowman not to sign any
contract until it was first determined whether or not the Union actually had a
majority."
10 The undersigned does not credit Bow man's testimony that upon vakious occasions
union representatives told him that counter pioposals were not necessary.
17 The finding that Spradling iaised the majority question with Bowman after. the
October 2 meeting is made upon Spradling's testimony The findings as to what tran-
spired at the meetings of September 16, September 26, and October 2 are made upon
an analysis of the testimony of all the participants , each of whom -test! fled about each
CAPE COUNTY MILLING COMPANY 235
During a period of approximately 3 or 4 weeks beginning about September 20.
the Union conducted a strike at a mill similar to that of the respondent's located
in Scott County, Missouri. On' October 4, Spradling and Bowman went to
Charleston; about 50 miles from Jackson, as spectators to an injunction proceeding
being brought by the Scott County Milling Company against the Union, although
neither of them had any connection with that company of that case n On a street
corner near the court house after they had left the court room, Bowman and
Spradling met Hungate and Dodge. Hungate asked Bowman how he was getting
along and if he had signed the contract.. Bowman replied that lie had not.
Hungate then asked if lie was going to present a counter-proposal Bowman
thereupon introduced Spradling as the respondent's attorney and said to talk
with him about it. SpradliIng stated that the respondent did not know whether
the Union then represented a majority and even if it did there were provisions
in the contract which were not sat isfactoi y Spradling stated that the respondent
could not afford to pay the wage scale provided and would not accept a closed
shop Hungate explained that wages could be negotiated and that the provision
in>theacontract called for a union shop'rather than a closed shop, explaining the
difference. Hungate and Spradling differed sharply on the desirability of the
union shop provision. Hungate asked Spradling to submit a counter-proposal
and Spradling replied that if the Union drew up a contract which the respondent
liked, consideration would be given to signing it Hungate answered that lie could
use all of the paper in Cairo and probably not get a contract that the respondent
Would like. Spradling said that that was just his "hard-luck" but to go ahead
and try if he wanted to, because the respondent would not consider tile contract
Which had been presented. Hungate then said that the matter might have to
be taken to the Boaid since the Union. as a majority representative, had it right
to expect a counter-proposal As the group broke up, Spindling said that
Hungate could go ahead and shoot his "biggest gun" while he was at it"
During the week of October 6 to 11, four additional employees were added to
the respondent's truicking pay roll. These four employees were engaged primarily
meeting In, the main, the findings follow the testimony of Dodge, who nrrpiessed the
undersigned as a tinthtul witness His testimony as to the meeting of September 26
was corroborated by Mitigate. Bowman's testimony was particularly confused as to what
took place at the meetings other than the one on September 16 The most significant
conflict in the testimony as to the above three meetings concerns whether or not the
respondent demanded proof of the Union s majority at any or all of these meetings
Bowman, whose testimony on this point was not consrneirg, maintained that lie had
demanded proof of the Union's majouty at eveiy meeting beginning with the one on
September 16, and liad repeatedly icceived the ieply that the cards had been left in
Cairo. Cosgiove corroborated Bowman's testnnony in this icspect as to the meeting of
September 1G but characteuzed the subsequent meetings as involving, respectively, merely
the presentation of the contiact on September 26 and its return on October 2 as unsatis-
factory. Dodge and Ilungate denied that any question of a majority had been raised
or any request that the Union show its authorization had been made at any of the above
three meetings That the Union would have evaded that issue at that time, if it had
been raised, is unlikely since at the time the contract was presented on September 26
the Union had 7 of the 11 truck driver's, and it had 7 of the 12 drivers when the contiact
was discussed on October 2 From the suirounding cucumstances, the credible testimony
of Dodge and Hungate, and the testimony of Spradling that it was upon an occasion
after the meeting of October 2 that lie first saw Bowman and told hint not to sign any
contract until the majority question had been determined, the undersigned is convinced
that, at, no time was, any question of the Union's majority raised at any of the abot e
three meetings
U Spradling testified as to his presence there, "Well, at that time I knew about the
controversy here and that secured to be a similar pioposition down there .11
>s The above findings are based upon an analysis of the testnnony of Sriradhng, Bow-
man, Dodge , and Hungate.
236 DECISIONS OF NAT110\AL LABOR RELATI'O\1 S '-BOARD
in loading and unloading wheat and did little, if any, actual driving' One of
them worked only 1 week., The second worked until approximately the end of
November, the third until about the middle of December and the fourth until
January. -
During the week following the above discussed chance meeting in Charleston on
October 4, Dodge saw Bowman for a few minutes, in front of the mill. Dodge
asked Bowman if the respondent had drawn up any kind of a contract or would
consider the one which the Union had presented Bowman said the respondent
had riot drawn up a contract, and still did not like the Union's contract. Dodge
suggested that Bowman and he go over the contract together to make any sug-
gested changes Bowman said that would be a waste of time During the con-
versation, Bowman pointed out that the Union.had not demonstrated its repre-
sentation of a majority.21 -
Sometime during or shortly after the strike at the Scott County mill, which
terminated about the middle of October, Bowman questioned Morton as to the
possibility of the Union striking the respondent's trucks One of the respondent's
salesmen stationed in Arkansas had reported to Bowman that one of the respond-
ent's customers had reported to him that one 'of the respondent's truck drivers
,had made the statement that the Scott County mill was shut down and that the
respondent also would-be shut down in a few days Morton denied to Bowman
that he had made such a statement to any customer, but admitted that be had-
to] d "them all he had joi;ied the Union." 22
4. The later attempts to bar grin and sir rounding events
No meeting took place between the respondent and the Union from early October
1941 to January 30, 1942.' On December 15, after telephone calls from Dodge
requesting a conference, Spradling wrote Dodge that his physician had advised,
him ,not to undertake any kind of work until after the first of the year, at which
time he would be glad to confer: On January 3, 1942. in a telephone conversation
between Dodge and Spradling , a meeting was arranged for January 7 In a letter
to Dodge, dated January 5, Spradling confirmed arrangements for the meeting
concerning "certain truck drivers" and requested that the Union bring to the
meeting its evidence of its authority to represent the truck drivers. That meeting
was never held, being called off by the Union.
In the meantime, during the last of December and early in January, Bowman
had several discussions presented below concerning the Union, and one of the
union truck drivers, Marvin Goehman,.was given a position as a night watchman
at Mill A during the week ending January 3.'' A few days before Goehman was
given the position, Call, who had asked for a position as night watchman in Mill
B the preceding June before the truck drivers had been increased from'30 cents
21 Such extra employees are customai ilv taken on during the period when wheat is
being hauled They largely assist in loading and unloading wheat. The hauling of
wheat is a seasonal activity beginning in the summer with the hauling of wheat from
farms to storage depots Later, the wheat is hauled to and between various storage
-facilities of the respondent ' s three nulls This wheat hauling is a process which continues
from summer into early winter.
21 On October 24, 1941, the Union filed its original charge in the instant matter, alleging
that the respondent had refused to baigaur with the Union, and was interfering with
the nght of its employees to self-organization
22 The above finding is based on Bowman's testmmonv.
23 Counsel for the Board stated at the hearing that the Board was not contending that
the respondent had engaged in any dilatory practices in arranging meetings with the
Union
24 The loss of Goehman as a truck driver left the Union with only 5 members out of
it employees then in the appropriate unit, as is set out below.
CAPE COUNTY MIL'LIN'G COMPANY 237
an hour to 40 cents an hour, had tried out the job as night watclmian in Mill A
for about 3 days because Bowman had repeatedly asked him to do so. Call had
not liked the work, and had been returned to a position as truck driver from which
he later secured a leave of absence about January 242' Sometime before he took
his leave of absence, Bowman sent Call to see his brother-in-law about a position
then open in another firm in Jackson. Call decided after investigating the pro-
position which Bowman's brother-in-law had to offer, that he preferred to remain
with the respondent. About the time that Bowman had insisted that Call try out
the job as night watchman,' approximately January 1, Bowman had a con-
^ersation with Call in which he said that it looked like the Union was working
around but that he did not know how many members it had Call replied that he
belonged to the Union and that he thoi ght all the drivers did.
In a conversation just before Christmas, Bowman asked Joe Brown, who was
then driving Bowman's personally owned truck, whether,he would promise -not
to join the Union if given a position as a track driver for the respondent. Brown
replied that if the Union got it union shop lie would join rather than lose his job.
Early in January, about the time Goehinan became a night watchman, Bowman
told Brown that if Goehman did not accept the job as night watchman be was not
going to be permitted to continue to drive a truck. Later, sometime before the
middle,-of January, just before Cosgrove, the son, of the respondent's-secretary,
was recalled to the army and Brown was given Cosgrove's position as truck driver,
Bowman said to Brown that he surely hated to see Cosgrove leave; that "we have
already got rid of two or three of them" ; and that as long as "we can keep them
below the majority we are all right." n
On January 30, a meeting between the respondent and the Union. which a
Field Examiner of the Board had cooperated in arranging, was held in the
mill office. Spradliug, Bowman, and Cosgiove represented the respondent.
I-lungate and Dodge represented the Union; IIungate's secretary attended as an
observer During the meeting which lasted about 2 hours, most of the pro-
iisions of the contract, which Dodge had submitted on September 26, were
discussed since the respondent had not prepared counter-proposals During the
discussion, Spradliug indicated that 3 of the 16 paragraphs were satisfactory
to the respondent These- paragraphs provided, respectively, that the purpose
of the agreement was to improve relationships between the parties; that equip-
ment be mechanically safe to operate; and that drunkenness, dishonesty; negli-
gence, incompetency, insubordination, or too great an accident frequency would
12:. It is unnecossai y to determine whether Call remained an eniplovee on leave , as con-
tended b3 the P.o,nd, or ceased to be an employee because lie started drinking heavily,
as contended by the respondent Ills exclusion or inclusion in the appropriate unit in
determining the Union's maioiity is immaterial, since piior to February 3 the Union
lacked a inalouts' even if Call weie included By February 4 after three new members
were secured, the Union regained its majoiily even if Call be excluded fioin the
calculation -
The watchman's position involved above was actually on the pay roll of the Law-
rence w ai ehouse Company, although Call remained on the pay roll of the respondent
dnrnig his liy-out period The Laivience Warehouse Company leases and operates the
respondent's storage facilities. CosgiOse, the respondent's secretary, is the resident
manager, for the warehouse company It is evident that Cosgiove and Bowman deter-
mined who Mere to be emploied by the warehouse company as watchmen and that from
the standpoint of labor relations Goehman's shift from his position as a truck driver to a
position as a night watchman, even though the latter position was on the pay roll of
another corporation , was deteuuined upon and brought about by two diiectors of the
respondent.
21 The above findings and an additional finding made below as to a conversation between
Brown and Bowman aie made upon testinionv of Brown which the undersigned believes.
Bowman denied making any of the statements attributed to him by Brown i
i
'238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute causes for,discharge Early in the'discpssion, when Article 2 providing _
for a union shop was reached, Spradling questioned whether the Union had a
majority and asked for evidence of its authority to represent the truck drivers
Hungate replied that the authorizations had been left in Cairo. Spradling then
said that while the Union alight have had a majority, it then no longer did,
pointing out that Harris had left the respondent's employ and that Goehniai
had been transferred to a position as night watchman." After Hungate stated
that the Union would be glad to have its majority status determined by a,
Board election, the discussion of the provisions of the contract continued.
As to the union shop provision, the respondent took' a strong stand against
it and the Union took an equally strong stand for it Among the other pro-
visions objected to by the respondent was that prodding for seniority, on the
ground that the respondent would have to retain inferior men during lay of;.,
The most extensive discussion centered about Ai title 12 with its several sub-
divisions concerning wages. The respondent objected to any payment on mileage
basis and made no specific offer to increase the 40 cents all hour rate then in
effect, whereas the Union asked 50 cents an hour for driving, within a 50-mile
radius of Jackson and 2t/> cents per mile for driving beyond that radius.
The respondent contended that living costs in Jackson did not justify any wage
increase, and Bowman stated that lie knew that the men w ei e satisfied because
he had asked then and had received their assurances to that effect The re-
spondent advanced no counter-proposals at any time during the meeting The
last several paragi apps of the contract were not discussed and the meeting ended
indeterminately without arrangements being made for a future meeting29
On February 3 Joe Brown and Clarence Tripp joined the Union and Les
Ackman joined on February 4 All three were legular truck drivers.g0
Upon several occasions from about January 31 until about the time he joined
the Union on February 4, Bowman had conversations with Ackman. In the
first of these conversations Bowman asked Ackman if lie had joined the Union
and Ackman said that lie had not yet joined Bowman told Ackman that if he
believed in him he would "lay off that Union " Bowman al' o said that befor e
lie "would go Union" and let them tell him what to do, "I will shut every
' damn truck down I have." Bowman asked Ackman who the ring leaders of the
Union were and Ackman replied that he did not know Bowman then said
it would "all cone out in the wash " About the time Ackman joined the
Union, Bowman again asked him if lie bad joined. Ackman ieplied he had
not and Bowman said in substance. that lie had better not as it would affect
the Union's majority and before he would "go Union" lie would shut down the
trucks."
Sometime shortly before the trucks ceased to operate. Bowman bad a con-
N;ersation with Joe Brown in which he told Brown that if someone had not lied
to him the Union was "below the majority mark yet"
On February 12, following conferences on February 11 during which the
Union had given-the Board's Field Examiner, Warren A. Silver, its applications
and the respondent had furnished its, payroll, Silver conferred in Pradling's
As is found below, the Union did not have a majority in the appiopriate unit at the
time of the meeting
29The,above findings conceimng the•meeting• of January 30 are-made upon,an amaiysis
of the testimony of the six who attended , namely ; Spradling, Cosgrove , Bowman, Ilun-
gate , Dodge , and Edna Mae Reid
"As is found below , their joining gave the Union a majority on and after February 3.
n The above findings and findings made below as to conversations between Bowman
and Ackman are based upon testimony of Ackman which the undersigned credits., Bow-
man denied making the remarks.
CAPE COUNTY MILLING COMPAa^Y 239
private office in Cape Girardeau with Sptadling, Bowman, and Cosgrove while
-representatives of the Union waited in an outer office Silver indicated that
he though the respondent and the Union ought to t'ry to get together. Spradling
said that it was a simple matter if the Union would give the names of its
ineinbers and agree to an open shop, and that the parties could then come to
an agreement on wages Silver stated tbat the Union did represent a majority.
Spradling insisted that since Silver had the names of the union members and
the respondent's pay roll, lie should tell the respondent the names of the
union members then employed. Silver said that he could not reveal the names
of the union members any more than he could give the Union the pay roll
furnished by the respondent. Silver then proposed that an election be held
to determine the Union's majority. Spradling replied that there was no
necessity for holding an election since Silver could simply give him the names
,of the union members and if there was an actual majority that would be the
end of the matter.
Before Silver and the union representatives left Spradling's office, Spradling
had a private talk with Silver in which he told Silver that the respondent was,
going to discontinue its trucking business. He explained that the "discontinu-
ance was not due to this labor controversy, but due to an expected shortage in
rubber and the difficulty we would encounter in buying, trucks and keeping theirs
in repair " Silver replied that while such difficulties would likely occur the
respondent ought to operate its trucks as long as it was possible to do so. This was
the first occasion upon which any representative of the respondent had stated
to any representative of the Union or of the Board that the respondent was
contemplating shutting down its trucking operations.
5 The shut down of the trucks and developments thereafter
On Friday, February 13, the respondent shut down most of its trucks. That
afternoon when Sherwood Wolfenkoeliler brought in his truck, Oscar Loos, the
iespondent's shipping clerk, told him that there was no use to "gas up" as the
trucks weie going to be locked up Later when Bowman paid off Wolfenkoehler
and Morton lie said, "Boys see what Social Security can do for you now" When
Acluman got in late that afternoon, Loos told him to put his truck under the
shed because he would not be driving it. When Bowmman handed Ackman his
check he said, "You think you are mighty damned smart and the boys think they
are mighty damned smart." That same afternoon when Bowman checked out Tripp
foi a run of some 700 miles he asked him where his union card was. Tripp
replied that Bowman did not see any button oil his cap
On Saturday, February 14, Brown returned from his run. When Bowman
checked him in, he made no explanation as to why the trucks were being discon-
tinued Tripp returned froni his long run Sunday evening and checked in Monday
niormmng, February 16 At that'lime. Joe McIntyre. one of the truck drivers who
had not joined the Union, told Tripp that "the rest of•the trucks were tied up,
the Union tied them up" Shortly after the shut down, BownSan told Peter
Mollenhour. the respondent's mechanic, whose duty it had been to keep the trucks
in repair, that lie did not know how long the trucks would be shut down Bow-
man offered to let Mollenhour use the respondent's garage free of charge with
lights furnished if he wished to operate a garage and repair business of his own.
"At no time on February 12 did the respondent and the Union repiesentatives meet
in joint conferences. I
n Earlier that day and also sometime prior thei eto, Bowman had told Tripp that he
did not know how much longer the trucking operations weie going to continue , as getting
-tires and equipment was becoming complicated
i
240 DECISIONS OF NATIONAL LABOR. RELATION'S BOARD
Bowman also said thiit if and when the trucks operated again, the respondent
would want Mollenhour to return to work on the trucks if he was then available.
Except for the local pickup truck which James Bowman " continued to chit e, '
all the respondent 's other trucks, nine in number, were parked under an open
shed next to the mill on and after February 16 A tew weeks thereafter the
Union commenced picketing. The picketing continued for sevemal weeks.
About the time the picketing ceased, evidently late in March 1942, J R Bow-
man, the respondent's treasurer and one of its six directois. picked up driver.
Ackman in his car . During a brief conversation, Bowman told Ackman that hey
believed that if all the boys got together and went up to talk to Earl Bowman
and "did right" that Bowman would start the trucks. Ackman slid not follow the
suggestion . About this same time, J R Bowman had a conversation with Sher-
wood Wolfenkoehier whom he also had picked up in his car He asked Wolfen-
koehler what the boys were trying to do and if they were trying to put the
respondent out of business He also said that he chid not know what the boys
were asking for, and Wolfenkochler replied that Earl Bowuutu had the contract
J. R. Bowman then-asked why the boys (lid not buy or lease' time trucks mitt
Wolfenkoehler said that they could nor Bowman told Wolfenkoehlei that the
respondent would sell or lease the trucks to the diivers but that it was not going
to start running them again unless the Union made it.""
On April 10, 1942, the respondent gale a general Increatse to its employees of
2i/ cents an hour. ] 'his increased the null workers from 40 cents to 42i/-. cents
an hour and the packers troiii 421/'.-. cents an bout to 45 cents an bout.
1; Coucludniq fiudiil(/s
1 Interference , restraint and coercion
From the entire course of conduct set lot th above, the undersigned conclndrs
and finds that, through the several conversa tions Ii oni about September 1941
to March 1942 held by Richard Earl Bowman and J R Bowman with various
of the respondent's employees. the respondent waived its employees against
and questioned them concerning membership in and activities on behalf of the
Union; advised union members to abandon collective bargaining and revert to
individual bargaining ; and threatened to discontinue its trucking operations if
employees continued their Union membership and collectiie bargaining demands,
and thereby interfered, restrained, and coerced its employees iii the exercise of
the right guaranteed in Section 7 of the Act
2 The lay offs of.Sopteniber 1941
As to the lay off of Sherwood Wolfenkoehler. Robert llaiii ,i id Herbert Mor'-
ton,'the complaint alleges, and the answer denies that they were laid off on
September 6, 1941, and refused reintateuient until September 17, 1941, because
they joined and assisted the Union The respondent contends in its brief that
they were laid off because "there was not available foi them sutheient work of the
type which'they desired " i
''Bowman was replaced £oi seieiat weeks apparently about the roue of file I)Wkehng
by Bill \liederhoff, who had lormerly worked in the null but who had not driven a truck
The position on the pickup tiuck was not ofreied to any of the then unemployed unuin
drivers
' The above findings are made upon the testimony of Ackman, and Shernood NVolfen-'
koehler which the undersigned accepts. J R Bowman testified that lie did not reniembei
Such conversations; that his memory was not as good as it used to he, and that lie often
did offer people rides in his car.
CAPE COUNTY A11LLING COAMPAiI'Y 241
Work for truck Urn ore was not slack at the time of the lay offs. In fact, the
average hours worked rose from about 40 hours the week before the lay offs to
about 50 hours the week of the lay offs Further, the hauling of wheat, which
began in the summer and contained into the early winter was a steady process
which required extra help. The respondent's pay-roll record showing the hours
worked by persons engaged in trucking and wheat hauling' reveals that during
the period of August, September and October, 1941, the number of employees
engaged in such work during any given week was on the average about 12
During the week of the above lay offs, it was only 8. The only other week in the
three months when the number fell below 11 was the week ending September 27
when the number was 10
Bowman testified that the three men laid off hall 'practically refused" to haul
wheat and that had they not so refused the work available would have been
divided up among the drivers as was customary The interstate drivers were
undoubtedly dissatisfied because they were receiving only 30 cents an hour when
hauling wheat while their helpers were receiving 35 cents an hour and the
`undeis'gned is convinced that the respondent knew that the three drivers laid off
'were not the only ones thus dissatisfied. nor the only ones who preferred inter-
state hauling of flour to hauling wheatF In any event, none of the three flatly
refused to haul wheat, and it is clear that none was given a choice between hauling
wheat and being laid off Nor was any reason given for the lay offs or any
probable duration thereof indicated at the time the men were laid off.
As the facts above found show, the lay offs occurred at a time when Bowman
knew that the truck drivers were planning to meet at Harris' home. Shortly
before the lay offs, he questioned Harris about that meeting and suggested that
the three men laid off, Harris, Morton, and Wolfenkoehler, whom Bowman evi-
dently,believed to be leaders in self-organization among his employees, could save
a lot of trouble by going to the office to ask for a 5 cent an hour increase which
he was sure would be given About this time, Bowman advised Willis Wolfen-
koehler in reference to the meeting to take a fool's advice and stay at home
He also pointed out to Calt the undesirability of a union in a small place like
Jackson
Harris, Morton, and Wolfenkoehler did not take Bowman's advice as to how
to save a lot of trouble On the contrary the first meeting of the Union was held
on September 7 at Hams' hone The day before that meeting, Bowman in-'
definitely ]aid off Harris, Morton, and Wolfenkoehler, each of whom had joined
the Union on September 2 In view of all the surrounding circumstances, the
respondent's explanation of the lay offs is not convincing. The undersigned con-
efides and finds that the respondent land oft Robert Harris. Sherwood Wolfen-
koehler and Herber t Morton oil September 17, 1941, because each of them joined
and assisted the Union. I '
The undersigned finds that the respondent, by laying off Robert Harris, Sher-
wood Wolfenkoehler, and Herbert Morton, on September 6,-1941, and thereafter
refusing to reinstate them until' September 17, 1941, discriminated in regard to
the hire and tenure- of employment of Harris, Wolfenkoehler, and Morton, and
thereby discouraged membership in the Unigir, and that the respondent thereby
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act
10 James Bo w nian is not included in.the above figures, except dui ing one week
*+ Hauling wheat involved niany short trips with a large aurount of loading and unloading
242 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain collectively .
a. The appropriate unit
The complaint alleges that the appropriate unit consists of "all of the em-
ployees engaged by - the respondent at its mill in driving, trucks " The respond-
ent's answer states that the respondent is without sufficient knowledge to form
a belief concerning the appropriate unit. The respondent made no contention
,for any other unit at the hearing and no other labor organization was seeking
a different unit. The respondent had 10 trucks , and employed at any one time
during the period material herein from 10 to 13 drivers who gave a substantial
portion of their time to driving those trucks. The union attempted to organize
only such regular truck drivers
aB There is no evidence that any confusion
existed at any time during the discussions ' between the Union and the respond-
ent as to the appropriate unit.
The undersigned finds that all of the employees engaged by the respondent
at its Jackson, Missouri, mills 39 in driving trucks, at all time.,, material herein
constituted and that they now constitute a unit appropriate for the purposes
of collective bargaining with respect to rates of pay, wages , hours of employ-
ment, or other conditions of employment and that said unit insures to the
employees of the respondent the full benefit of their right to self organization
and collective bargaining and otherwise effectuates the liolicies of the Act.
b. Representation by the Union of a majority in the appropriate unit
On September 2, 1941, as is found above, 8 of the respondent's truck drivels
in the appropriate unit joined the Union. At that time there were 11 drivers
in the unit" During the week ending September 12, one of the union drivers,
Crader, ceased his employment with the re,^pondeut The three drivers laid off
from September 6 to September 17; Wolfenkoehler, Harris and Morton, are
found herein to have been di scriminatorily laic] off They continued to remain
members of the Union within the appropriate unit. Tripp, who slid not join
the Union until February, was hired about September 15 Thus when repre-
sentatives of the respondent and the Union met on September 16 and on
September 26, 7 of the 11 drivers in the appropriate unit were then members
of the Union. A twelfth driver, Kilhoefner, was hired during the week ending
October 4 Assuming he was hued by October 2, 7 of the 12 drivers then
employed were members of the Union at the time the respondent and the Union
met on October 2. Thereafter during the week ending October 25, a thirteenth
driver within the unit was added when a former truck driver, Cosgrove, re-
turned from 'the army. From that time until one of the union members, Harris,
quit about November 8, 7 of the 13 drivers were members of the Union. From
Fifteen persons here emploied as regular driveis at diffeient tines during the period
from September 2, 1941, to the time of the shut down in February 1942. They were the
three wolfenkoehleis, liclntyie, Call, Hairis, Morton, Ackman, Goehman, Tripp, Kilhoefner,
Brown. Cinder, Coseroce. and Bow>}ian The various periods during which each was
within the appropriate unit and the number of drivels in the appropriate unit at various
tunes appeals in the next section of this report Employees lined to help during wheat
hauling did little, if any, actual truck diming and are not included in the appropriate unit
-'In a claiification of the allegation as to appropriate unit, counsel for the Board
stated at the hearing without objection that the teen `mill" included both Mill A and
Mill L' in Jackson The local delivery and pick up-truck operated out of a retail depart-
ment in ,lull B and the other trucks operated out of Trill A
"The 11 in the unit on September 2 were the three Wolfenkoehleis, McIntyre, Call,
Harris, Dorton, Ackman, Goehm.rn, Bowman and Crader. Of these, all but McIntyre,
Bow inan and Acknr.in joined the Union on Septembel 2, 1941.
CAPE COUNTY MILLING COMPANY 243
the week ending November 8 to the week ending December 6, a non union
driver , McIntyre ,; was ,not in the respondent 's employ. During the , 4 weeks
prior to his reemployment , 6-of the 11 drivers were members of the Union.
Upon McIntyre 's reemployment , during the week" ending December 13, and con-
tinuing until the week ending , January 3, 6 of the 12 drivers were members of
the Union . During the week ending January 3 ,, a union driver , Goehmari, was
transferred to, a ,position as night watchman .41 After his transfer the Union
had 5 members out of 11 drivers unt il another union driver , Call, took a leave
of absence about January 24 42 On February 3, two more of the drivers within
the unit, Brown and Tripp , joined the Union ., Ackman joined on February 4.
Thereupon , 7 of the respondent 's 10 truck drivers within the unit were members
'of the Union.
While the Union had as members less than - a majority of the truck drivers
thenworking. at the time of the January 30 meeting , it had a majority at the
time of the conferences of September 16, September 26, and October 2, and had
regained-its majority on February 3, 1942. ' Hence, even if it be conceded that
the Union temporarily lost its collective bargaining status from December 7,
1941, to February 3, 1942, as a result of its loss of majority , the ultimate result
reached herein would not be affected since the refusals to bargain which are
found below occurred on October 2, 1941, and, on February 12, 1942, respectively,
at both of which times the Union clearly had a majority.
The undersigned finds that on and at all times after September 2, 1941,
except from December 7, 1941, to February 3, 1942, the Union was the duly
designated representative of the majority of the employees in the aforesaid
appropriate unit; and that, by virtue of Section 9 (a) of the Act , the Union
was at all times material herein and is the exclusive representative of all the
employees in such unit for the purpose of collective bargaining with the
respect to rates of pay , wages, hours of employment , or other conditions of
employment. ,
C. The refusal to bargain
At 'the conference 'on September 16, the Union claimed to represent a
majority of the respondent's employees and stated that a proposed contract
would be submitted. The Union's majority was not questioned at that time.
On September 26 'a proposed contract was presented which sought among
other things wage increases and a union shop. Time was asked for its con-
sideration and this request was granted On October 1, the respondent, by
unilateral action, increased the wages of its track cli•iveis by approximately
one third. This increase was about one half what the Union was asking.
On October 2, at its third meeting with the Union, the respondent stated that
the drivers were satisfied with their wages and objected to all of the provisions of
the contract. The, respondent would not suggest changes or offer any counter
proppsals although asked to do so. It would only consider signing a contract
it the Union presented one which it liked. By'the foregoing course of conduct,
considered in the light of the respondent's other activities during September
1941, the respondent refused to bargain with the Union on October 2, 1041.
At the chance meeting in Charleston on October 4, the respondent's attorney
for-the first time raised the question of the Union's majority status. Opposi-
41 No other driver had ever been so transferred.
42 As is pointed out above, it is immaterial whether or not Call be considered within
the unit during his leave of absence, since in any event, the Union had less than a majority
of the truck drivers as members at the time of its meeting with the respondent on
January 30 _
53111 4 7-4:;-v of 40-17
'244 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
tion was also expressed to the union shop provision and to wage increases.
Tlie following week, in a brief meeting in -front of the mill between Dodge
and Bowman, the respondent again raised a question of majority and expressed
dissatisfaction with the contract. No further meetings were held, for 'reasons
from which no adverse inferences are drawn herein, until January 30, 1942
Early in the meeting on that date, the respondent again questioned the Union's
majority status, 'naming certain union' men -who, had left,' the. respondent's
employ. However, dismission proceeded' with the' terms of the Contract The
respondent accepted only' a few' provisions clearly favorable to it. It refused
to grant any''concessions, insisting that it could not increase wages and that
the truck drivers had stated that they were satisfied with their present wages'
The Union strongly urged the union shop provision, but the respondent was
opposed to the 'union shop The last few provisions in the contract were mot
discussed. '
Prior to the meeting of February 12 in -Spradling's' office, the 'Union and the
respondent furnished to the Board's Field Examiner the information neces-
sary to make a payroll check. On February 12, the Field Examiner informed
the respondent that the Union represented a' majority of,-its truck drivers
The respondent would not accept the statement of the Board's agent, but
'insisted that' the names of the Union's members be revealed to it This the
Field Examiner stated he was not permitted to do and, in the alternative,
proposed an election. The respondent would not agree to an election, and
thereafter informed the'Field Examiner for the first time that it intended to
'discontinue the operation of ' its trucks. This-it did the following day. By
its actions on February,12 and thereafter the respondent refused to bargain
with the Union."' _.,
The undersigned concludes and finds that on October 2, 1941, on 'February
12, 1942, and at all times thereafter, the respondent- refused to bargain col-
lectively with the Union as the exclusive representative of its employees in an
appropriate unit, and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7, of the Act
4. The lockout
The complaint alleges and the answer denies that in order to discourage
membership in the Union, dissipate its majority, and avoid collective bar-
gaining, the respondent, on about February 13, 1942, discontinued and has
since refused to resume the operation of its trucks, thereby .locking ,out.tand
discharging its truck drivers in violation of the act.- The'respondent contends
that it permanently discontinued its trucking operations because of anticipated
shortages in tires and truck equipment; it further contends that the presence
of, the Union on the scene was merely an "unfortunate coincidence."
From the sequence of events detailed heretofore, the undersigned does not
'believe that the relationship of the Union to the shut-down was merely coin-
43 It is noteworthy that less than two months later the respondent granted an approxi-
mately 5 percent general wage increase to its employees.
"In view of the respondent's course of conduct set out above, the undersigned does not
believe that the i espondent raised the question of the Union's, majority In good ' faith.' On
the contiary, the undersigned believes and finds that the question of majority' wae"pa'ssed
over until the respondent was fully informed of-the Union's demands ; that the respondent
,thereafter pursued a policy calculated to destroy the Union's majority status; and that
after it had been assured by the Field Examiner on February 12 that the Union did
'represent a majority, the respondent chose to dissipate that majority by shutting down its
ti ucks rather than to test that, majority by an election
CAPE COUNTY ^ MILLING COMPANY . _ 245
cidental. As shown above, in the early part of September 1941, Bowman
sought to impede the Union's organizational efforts by means of anti-union
statements and proposals to various employees. When the members of the Union'
failed to heed the respondent's warnings, the respondent, on September 6,
1941, peremptorily laid off three of the most active Union members. On Oc-
tober 1, 1941, at a time when the Union, as the duly designated collective
bargaining representative of the truck drivers, was seeking an increase in
wages, the respondent, disregarding the Union's position and demands, unilater-
ally announced a substantial wage hicr ease to the drivers. Thereafter the
trespondent illegally warded off the Union's contract demands, thereby indi-
cating its rejection of the collective bargaining principle. In December, 1941,
Bowman sought to exact from a prospective employee, Brown, a promise that
the latter would not join the Union Later, in January, 1942, be indicated to
Brown the'respondent's desire to rid itself of the Union In the,early part of
February 1942, Bowman again sought to dissuade employees from becoming
members of the Union and indicated that before he would recognize the Union
he would "shut every damned truck down
The incidents here reviewed, as well as others indicating the anxiety with
which the respondent followed the Union's organizational progress, plainly
indicate that this subject matter was constantly before the respondent. Al-
though Spradling and other witnesses for the respondent denied that during
various discussions, which allegedly occurred among the respondent's officials
prior to February 13, any mention what'wer was made of the Union, the
undersigned finds it impossible to credit those denials, and infers and finds that
the Union and its activities were major subjects of conversation by the respond-
ent throughout this entire period.
Witnesses for the respondent testified that for some time prior to the shnt-
do sin -,there had lbeen discussion of the situation in relation to tires, trucks,
and gasoline, and that difficulties in continuing to operate the trucks had
been contemplated. The testimony as to the time and extent of such dis-
cussions is contused The most definite testimony is that of Spradling, who
testified that his first discussion of the subject was'with Piesident McCombs
and his daughter, both erectors of the respondent, on Februaiy 1, 1942, at his
home in Cape Girardeau a° Spradling testified that thereafter two meetings
were held with the directors of the respondent in Jackson about February 6
and 11. No minutes were kept of any such meetings and no record appears
in the minutes of any regular directors' meeting of any discussion of or decision
to discontinue the trucking department No cost :ni:rl^ sis of the trucking
department, which was then' carrying about 25 or 30 percent of the respond-'
ent's products and which had been in operation since about 1920, appears to
have been presented, toi-the, directors; likewise no comparative cost analysis
of railroad rates was made
While during the period before the shut-down there was wide-spread public
discussion of the probability that automotive transportation would have to be
curtailed in the future because of rubber and material shortages, the respond-
ent was confronted with no immediate problem in that respect. Almost all the
tires on its trucks and trailers were in good condition, and spare tires were
carried Furthermore, the respondent had a supply of 24 tires in stock, of
which 10 were new, the rest being recapped and repaired. The trucks them-
selves were mechanically in good condition, two having practically new motors,
This' \u as two days after the meeting on January 30 with the Union.
I
I
'246 DEC'ISIONS OF NATSONAL LABOR RELA'T1OTNS BOARD
one of which had not been driven since its installation 48 There were no
restrictions upon the purchase or use of gasoline . Clearly the respondent could
have continued to operate its rtrucks . Further , the respondent made no effort
to determine what its competitors were planning to do . if anything , nor did it,
wait until national policies relative to ties, trucks, and gasoline rationing had
been developed . The respondent waited only until the day after the Board's
Field Examiner assured it that the Union represented a majority of the respond-
ent's drivers
From the entire record , and especially the events outlined above, the under-
signed is convinced and finds that the respondent discontinued the operation
of its trucks - on February 13, 1942, for the purpose of discouraging member-
ship in the Union , dissipating its majority, and in order to avoid collective
bargaining under the Act.
The sole question which remains for consideration with reference to this
shut-down , is whether the shut-down was permanent or temporary in nature.
The evidence shows that the shut-down was in fact a tempos ary expedient hast-
ily executed' to accomplish the respondent 's unlawful purposes of ridding itself
of the Union . In addition to the matters already related, the following events
support the above conclusion.
On January 31, 11142 , the respondent spent $234 for license tags for its
10 trucks and 6 trailers . Some time after February 13, the date of the shut-
down, respondent paid an insurance premium of $1,055 52. renewing its insurance
on its trucks and trailers covering public liability , property damage , fire and
theft, and an additional premium of $160 for cargo insurance It was not
until April 25, 1942 , that the respondent cancelled its public liability , property
damage, and cargo insurance. ,
The respondent has, since the discontinuance of its trucking operations,
attempted to meet, the problem of transpoa hug its pi oduo:bi in various ways,
including a slight increase in the use of railroad , facilities . Trucks have been
hired on a- per-bushel basis to haul wheat . To keep its customers in Arkan-
sas, the respondent has authorized its salesmen to hire local trucks to deliver
flour from a railroad center. In Memphis , a jobbing concern makes deliver-
ies for the respondent. In western Kentucky , the respondent made one of its
salesmen a jobber , transferring to him one of the respondent 's newest trucks
upon a basis which amounted to loaning him the truck; thereafter the re-
spondent made available a second truck to this jobber on , the same basis
At the time of the hearing , seven of the respondent's trucks stood parked
,under an open shed. It had been necessary shortly before the hearing for a
mechanic to go over the trucks to prevent further deterioration . The respond-
ent has made no attempt to sell its trucks.
Admittedly under its present make-shift arrangements the respondent is
not now able to serve some of its customers who cannot be served by rail."
40 Bowman testified that there were 24 tires in stock. However, he insisted that the
tires ,on the trucks were poor and that the trucks were mechanically in bad condition.
The testimony of the respondent's former mechanic and the testimony of several' of the
tiuck dilvers, whicli testimony the undersigned credits, was to the contrary
47 The salesman had insisted that the territory could not be served'by rail Actual sales
contracts were signed which 'provided for no down payment on trucks. The provisions
were such that the trucks were the sole security for the notes At any time the return
of the trucks would completely liquidate any, obligation assumed At the time of the'
hearing no payment had been made on either truck.
m There is nothing in national regulations covering truck, tires, and gasoline - rationing
to prevent the transportation. by the respondent of flour by truck, especially where
customers cannot be served by rail.
CAPE COUNTY MILIJING COMPANY 247
The increase in the respondent's rail shipments for the 6 months from March
to August 1942 was only 66 percent above that for the same period in 1941.
This was only about one-sixth of the increase in shipments by rail which would
have been necessary to absorb the approximately 30 percent of the respond-
ent's shipments formerly carried by truck.4°
On or veiy shortly after Febinary 13, 1942, the respondent's mechanic, Peter
Mollenhouer, learned for the first time from several of the warehouse employees
that the respondent had shut down its trucks; thereafter he received this infor-
mation ft oat Bowman. Mollenhouer asked Bowman how long the trucking opera-
tions were to be discontinued. Bowman replied that lie did not known. Although
Mollenhouer had been in the respondent's employ for only about four months at
that time, Bowman offered Mollenhouer free use of the respondent's shop and
"lights", so that Molienhoner could take in outside work. Bowman also informed
Mollenhouer that if and when the trucks operated again, the respondent wouldi
want Mollenhouer to return to work on the trucks Thereafter Mollenhouer per-
lornied some work on the brakes of the trucks and made other minor repairs.
•cTfie Union begati^picketing respondent's operations toward the end of February
1942. As related heretofore, about the time the picketing ceased, evidently ]ate
in March 1942,. J. It. Bowman, the respondent's treasnter and one of its six
directors informed truck driver Ackman that if the drivers "got together," ap-
proached Earl Bowman, and "did right", the respondent would resume operation
of its trucks
On the bads of the entire record and in view of the respondent's various
efforts to dislodge the Union, the evident haste with which it decided to discon-
tinne the operations of its trucks, the make-shift and clearly unsatisfactory nature
of its attempted'substitutes for its trucking operations, the statements of Earl
and J R Bowman, the respondent's failure to make any attempt to dispose of its
trucks, the continuance of its full insurance until April 25, and the various other
factors already set forth, the undersigned concludes and finds that on February
13, 1942, the respondent did not discontinue its trucking operations permanently
but rather lucked out its truck drivers for purposes repugnant to the Act.
The undersigned therefore finds that in order to discourage membership in the
Union, ,and dissipate its majority, and to-avoid collective bargaining, the respond-
ent, about February 13, 1942,'° temporarily discontinued and has since refused to
resume the operation of its trucks, and that the respondent thereby locked out
and discharged Willis Wolfenkoehler, Les Ackman, Joe McIntyre, Joe Brown,
Sherwood Wolfenkoehler, Dewey Wolfenkoeller, Herbert Morton, Clarence Tripp,
and Arthur Killioefner.
The undersigned further finds the respondent did not discontinue the operation
of its local delivery truck on February 13, 1942, and therefore (lid not lock out
and discharge James Bowman
The undersigned finds that the respondent, by locking out and discharging on
February 13, 1942, and subsequently refusing to reemploy Willis Wolfenkoehler,
Les Ackman, JoellcIntyie, Joe Brown, Sherwood Wolfenkoehler, Dewey Wolfen-
koehler, Herbert Morton, Clarence Tripp, and Arthur Kilhoefner, discriminated
in regard to their' hire and tenure of employment and thereby discouraged mem-
bership in the Union and interfered with, restrained and coerced its employees in
the exercise of the tights guaranteed in Section 7 of the Act.
" From March to August 19-11 inclusive , 197 cars of merchandise were shipped by rail.
In the same months of 1942 , the first 6 months after the trucks were shut down, that
figuro totaled only 210 The cars were loaded to about the same capacity during each
of the foregoing periods.
r" The evidence 'shows that the trucks were shut clown as they returned to the mill
during a 3 -day period beginning February 13.
248 DECISIONS OF NATIiONAL -LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent described
in Section I above, have a close. intimate, and substantial relation to trade, traffic,
and commei ce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom, and take cer-
tain affirmative action which ' the undersigned finds necessary to effectuate
the policies of the Act.
Having found that the respondent discriminatorily laid off Sherwood Wolfen-'
Ic_oehler, Robert Harris and Herbert Morton from about September 6 to Sep-
tember 17, 1941 , the undersigned will recommend that the respondent make each
of the aforesaid whole for any loss of pay he may have suffered by reason of
the respondent 's discrimination against him by payment to him of a sum of
money equal "to the amount which he normally would have earned as wages
during said period , less his net earnings,'' during said period.,
It has been found above that the i espondent 's shutting down of - its trucks,
with the exception of its local delivery and pickup truck , was an action taken
in pursuance of the respondent 's unfair labor practices It has also been found
above that the respondent has not gone out of the trucking business but has
rather locked out 9 of its truck drivers in order to discourage membership in
the Union , dissipate the Union 's majority and avoid collective bargaining. The
normal action necessary to remedy the respondent 's unfair labor practices is to
require that the respondent offer immediate and full reinstatement without
prejudice to their seniority and other rights and privileges to the nine truck
drivers now locked out . There are no circumstances in this case which would
warrant a departure from this normal pi ocednre.s ' Accordingly it will be
recommended below that the respondent offer to its locked out truck drivers
immediate and full reinstatement to their former or substaintially equivalent
positions without prejudice to their seniority and other rights and privileges
and make them whole for any loss of pay they may have suffered by reason of
the respondent 's discrimination'against them by payment to each , of them of„a
sum of money equal to the amount he normally would have earned as wages
from the date of his discharge as a result of the lockout to the date of the offer
of reinstatement, less his net earnings during such period
Should it develop , as appears likely from the record , that any of the nine
truck drivers are in the armed forces of the United States at the time of the
issuance of this Intermediate Report, it is recommended that the respondent, in
compliance with the recommendations herein , upon application by such employees
"By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
Where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of-
Aineiica, Lumber and Sawmill IVoilcers, Union, Local 2590, 8 N. L. R. B.r Monies received
for work performed- upon Federal, State, county, and municipal, or other work-relief
projects shall -be considered as earnings. See -Republic -Steel Corporation v. N. L. R. B.,
311US7
53See Matter of Newton Chevrolet, Inc. and International As+ociation of Machinists,
Automobile Maehintsts Lodge No. 1001, 37 N. L. R. B. 334.
-CAPE COUNTY MILLING COMPANY 249
within forty ( 40) days after their respective discharges from the armed forces
of the United States , offer to each reinstatement to his former or substantially,
,equivalent position without prejudice to his seniority and other rights and
privileges . In making whole any such individual for any loss of earnings he,
may have suffered by reason of the respondent 's discrimination against,him, it
is recommended that the respondent pay to each a sum of money equal to the
amount-he normally would have earned as wages during the periods ( 1) between
the date of his discharge to the date of his enlistment and (2 ) between a date,
five (5 ) days after his timely application for reinstatement as provided above
and the date of the respondent 's offer of reinstatement , less his net earnings
during those periods.
At the hearing , the undersigned expressly stated that in respect to the rein-
statement of employees , it would be assumed that they had obtained substantially.
equivalent employment . In the Ford Motor Company case, the Board held that
the mere obtaining of substantially equivalent employment is irrelevant to con-
siderations decisive of the question whether reinstatement effectuates the policies
of the Act . The Board held that the decisive considerations do not vary from,
-case to case , and accordingly found that it would "effectuate the policy of the Act
to require the respondent to offer reinstatement to all individuals . . . found . . .
victims , of discrimination, whether or not they , or any of them , may have obtained
substantially equivalent employment ." For the reasons set forth by the Board
in its decision in the above matter, the undersigned finds that-it is necessary, in
order to effectuate the purposes of the Act , that the respondent offer reinstate-
ment to those discriminated against as above indicated.
Having found that the respondent has refused to bargain collectively with
the Union as the exclusive representative of the majority of the employees in,
an -appropriate 'unit , it will be recommended that the respondent upon request
bargain collectively with the Union L'
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAw
1 International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and,
Helpers of America, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. All of the employees engaged by the respondent at its Jackson, Missouri,
mills in driving trucks at all times material herein constituted and now constitute
a unit appropriate for the purposes of collective'bargaining, within the meaning
cf Section 9 (b) of the Act.
3 International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, affiliated with the American Federation of Labor is, and
at all times since September 2, 1941, except from December 7, 1941, to February'
3, 1942, has been the exclusive representative' of all of the employees' in the
above unit, for the purposes of collective bargaining, within the meaning' of
Section 9 (a) of the Act.
4 By refusing on October 2, 1941, and on Februaiy 12. 1942, and at all times
thereafter, to bargain collectively with International Brotherhood of Teamsters;
Chauffeurs. Warehousemen and Helpers of America, affiliated with the American,
Federation of. Labor, as the exclusive representative of its employees in said unit,
63 Matter of Ford Motor Company, and International Union United Automobile Workers
of America, Local No. 249, 31 N L R. B 994.
"It would be recommended that the respondent so bargain ever, if no present rein-
statement of the drivers were recommended herein. ,
250 . DECISIONS OF NATIONAL LABOR ]RELATION'S BOARD
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (5) of the Act
5. By discriminating in regard to the hire and tenure of employment of Willis
'Wolfenkoehler, Les Ackman, Joe McIntyre, Joe Brown, Slierwoad Wolfenkoehler.
Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp, Arthur Kilhoefner and
Robert Harris, thereby discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with
the American Federation of Labor, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the respondent has engaged in and
Is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act. I "
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The respondent has not engaged in any unfair labor practices in regard to
the hire and tenure of employment of James Bowman.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Cape County Milling Company, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with
the American Federation of Labor, as the exclusive representative of all of the
employees engaged by the respondent at its Jackson, Missouri, mills in driving
trucks;
(b) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American
Federation of Labor, or any other labor organization of its employees,-by :laying
off, locking out, discharging or refusing to reinstate any of its employees, or
in any other manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self organization, to form,. join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) ' Upon request, bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with
the American Federation of Labor, as the exclusive representative of all of the
employees engaged by the respondent at its Jackson, Missouri, mills in driving
trucks in respect to rates of pay, wages, hours of employment, or other conditions
of employment ;
(b) Offer to Willis Wolfenkoehler, Les Ackman, Joe McIntyre,'J66" Brown;
Sherwood Wolfenkoehler, Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp,
and Arthur Kilhoefner, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority and other
rights and privileges ;
CAPE COUNTY MILLING COMPANY . 251
(c) Make whole, in the manner set forth in the Section entitled "The
remedy" above, Willis Wolfenkoehler, Les Ackman, Joe McIntyre, Joe Brown,
Sherwood Wolfenkoehler, Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp,
Arthur Kilhoefner, and Robert Harris, for any loss of pay they may have
suffered or may hereafter suffer by reason of the respondent's discrimination
against them;
(d) Post'immediately in conspicuous places throughout its Jackson, Missouri,
Mills A and B, and maintatin for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraph 1 (a), (b) and (c) of these recommendations;
(2) that the respondent will take the affirmative action set forth in paragraph
2 (a), (b), and (c) of these recommendations; and (3) that the respondent's
employees are free to become or remain members of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated
with the American Federation of Labor, and that the respondent will not
discriminate against any employee because of membership in or activity on
behalf of that organization ;
(e) Notify the Regional Director for the Fourteenth Region in writing within
ten (10)- days from the date of the receipt of this Intermediate Report what
steps the respondent liad taken to comply herewith.
It is further recommended that the allegations of the complaint as to James
Bowman be dismissed.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2, as amended, effective October 14,
1942-any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an.original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part'of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to' the
Board within ten (10) days from the date of the order transferring the case
to the Board:,
EARL S. BELLMAN,
Trial Examiner.
Dated November 9, 1942.