Continental Sales Co.

National Labor Relations Board - Board Decisions

May 27, 1966

158 N.L.R.B. 1163 (N.L.R.B. 1966)

CONTINENTAL SALES COMPANY 1163
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material. '
If employees have any question concerning this ' notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 312 North
Spring Street , Los Angeles , California , Telephone No. 688-5850.
Continental Sales Company and International Union, United
Automobile , Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO. Cases Nos. 18-CA-1863,18-CA-
19441,and 18-CA-2035. May 97, 1966
DECISION AND ORDER
On October 13, 1965, Trial Examiner Phil Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. He also
found the Respondent had not engaged in other unfair labor prac-
tices and recommended that the complaint be dismissed as to them.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a. three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at' the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered-the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete from paragraph 1(a) of the Trial Examiner's
Recommended Order.
[", ... except as authorized by Section 8(a) (3) of the Act."
[2. Delete from paragraph 1(g) of the Trial Examiner's
Recommended Order.
1 We agree with the Trial Examiner that James Klein and Robert Klein are entitled to
reinstatement . We do not agree, however, that in the event they are reinstated they are
also entitled . to payment under the profit-sharing plan. Instead , we provide that If they
are offered reinstatement and refuse it, they are to be paid their share under the plan,
Including in their service the period from the date of the discrimination against them
to the date of an offer of reinstatement.
158 NLRB No. 111.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
["... except to the extent that such right may be affected by an
agreement requiring membership in a labor Organization as author-
ized in Section 8(a) (3) of the Act."
[3. Add the following as the last indented paragraph of the notice.
[WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Inter-
national Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL-CIO, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purpose of mutual aid or protection as guar-
anteed in Section 7 of the Act, or to refrain from any and all
such activities.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Phil Saunders in Ames, Iowa,
on June 29 and 30 , 1965, pursuant to due notice . The complaint , which issued on
May 18, 1965, on charges dated June 1 and October 26 , 1964, and April 19 and
May 14, 1965, alleging that Continental Sales Company, herein the Respondent or the
Company, engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and
(4) of the National Labor Relations Act, as amended.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation organized and existing pursuant to the laws of the
State of Iowa and maintains its principal office and place of business at Nevada,
Iowa, where it is engaged in the manufacture , sale, and distribution of fertilizer
equipment . During the past 12 months the Respondent , in the course and conduct
of its business operations, manufactured , sold, and distributed to customers situated
outside the State of Iowa, products valued in excess of $ 1 million . Respondent is
therefore engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile , Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, herein the Union , is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In July 1964 , the Board 's Regional Director approved a settlement agreement in
Case No. 18-CA- 1863, wherein the Respondent agreed to refrain from certain
unfair labor practices and to post appropriate notice. On August 13, 1964, a
Board-conducted election was held (Case No. 18-RC-6050 ), and in which the
Union failed to receive a majority of the votes . In October 1964, another charge
was filed-Case No. 18-CA-1941-alleging unfair labor practices . On Decem-
ber 15, 1964, the Regional Director set aside the settlement agreement in Case No.
18-CA-1863. On February 25, 1965 , the Regional Director approved a settlement
agreement in Cases Nos . 18-CA-1863 and 18-CA-1941, wherein again the
Respondent agreed to refrain from unfair labor practices and to pay loss of earnings
to alleged discriminatees herein , James Klein and Robert Klein . On April 19, 1965,
CONTINENTAL SALES COMPANY 1165
the Union filed another charge, in Case No. 18-CA-2035, and on May 17, 1965,
the Regional Director set aside the settlement agreement in Cases Nos. 18-CA-1863
and 18-CA-1941. On May 18, 1965, the complaint herein and order consolidat-
ing cases was issued alleging that Respondent's presettlement conduct, as well as its
postsettlement conduct was violative of the Act.'
In the instant amended complaint it is alleged that the Respondent on May 27,
1964,,discriminatorily discharged employees Robert Klein, James Klein, and Gor-
don Eivins; 2 that about June 30, 1964, the Company discriminatorily reduced
the hours of the three alleged discriminatees named above; that on August 10, 1964,
denied wage increases to them; that on June 30, 1964, the Respondent refused to
provide James Klein with company-furnished uniforms because of his union activi-
ties; that the Respondent discriminatorily refused to pay Robert and James Klein
their shares of the profit-sharing plan; that in March 1965, denied a wage increase
to James Klein and at this time also reduced the hours of work of James Klein by
refusing to grant him overtime work. It is further alleged in the amended com-
plaint that since May 27, 1964, the Company interrogated employees as to their
union activities; that the Company made promises of benefits to employees; that
the Company granted wage increases to employees, and unilaterally withdrew its
past practice of furnishing uniforms; that in August 1964, the Company again dis-
charged Gordon Eivins because of union activity; and that on April 8, 1965, the
Company discharged James Klein because of his efforts for the Union. The plant
shop employees, with a total of about 12 to 15 in a unit of production and main-
tenance workers , are the only employees involved in this proceeding.
B. The discharges on May 27,1964
This record establishes that on April 21, 1964, the Respondent's shop foreman,
Vernon Huntrods , suffered a heart attack and thereafter his absence from the plant
premises increased the problems of supervision to the point where the events
occurred that led to the circumstances of these cases? On May 18, 1964, Respond-
ent's president, Oliver Haley, held a meeting of shop employees wherein he
announced that in his and Vernon Huntrods' absence , Ron Haley (his son ), Jerry
Cheek, and Norman Huntrods would be in charge of the plant , and they were then
so designated as supervisors . At this May meeting Oliver Haley also informed the
employees that they were not hired for any one specific job ; that the hours of work
would be from 7 a.m. to 5:30 p .m.; that anyone checking in late "might just as well
stay home"; that any employee being consistently absent would lose his job; that
wage raises would be given only when they were earned; that a $5 charge per hour
would be made for any employees' personal use of the plant shop and that per-
mission must be obtained for its use. There is considerable evidence in this record
that from April 21, 1964 , to this meeting on May 18 , 1964 , there were numerous
infractions of plant rules, some loafing by shop employees, refusals to do work
assigned, and employees clocking in and out as they desired. At this May 18 meet-
ing Oliver Haley also fired one employee for being late for work.
This record shows that shortly after the meeting with Oliver Haley on May 18,
1964, as aforestated , the employees started union discussions , and as a result of such
discussions James Klein contacted the Union and later began passing out authori-
zation cards. The first organizational meeting was held on May 26, 1964, at the
home of Klein's parents , and at this meeting James and Robert Klein and Gordon
Eivins, the alleged discriminatees herein, signed cards for the Union. The next
morning, May 27, 1964, after Robert Klein posted some union literature on the
plant bulletin board (General Counsel's Exhibit 6), all three employees were dis-
charged by Respondent's president, Oliver Haley. The facts in this record show
'It is well settled that continuing violations of the Act will breach a settlement agree-
ment involving unfair labor practices and will justify the Regional Director in going
behind the agreement and in proceeding with a complaint which covers unlawful conduct
both before and after , the agreement . Wallace Corporation v. N.L.R B. , 323 U.S. 248,
253-255 ;,Teamsters, Local 554 (Clark Bros. Transfer Co.) v. NL.R.B., 262 F. 2d 456,
459-461 (C.A.D C.), enfg. 116 NLRB 1891; Bowmar Instrument Corporation, 124 NLRB
1. Finding of unfair labor practices can properly be made on the earlier conduct where
there is evidence of substantial unlawful conduct following the settlement.
2 On June 20, 1964, Respondent reinstated Robert Klein, James Klein, and Gordon
Eivins pursuant to the aforementioned settlement agreement, and also gave them hicl;pav.
8It appears that Foreman Vernon Huntrods returned to at least some of his duties at
the plant in late June or early July 1964.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Haley tore this union literature or pamphlet from the bulletin board and
approached each of the three discriminatees herein and discharged them. Oliver
Haley stated that the reasons for these discharges were that he was quite disap-
pointed "of the acts" he learned about after his meeting of May 18 with the
employees , and "the way things" were continuing to go on.4
James Klein was employed by Respondent since September 1963. He started as
a painter and then worked as a welder . It was undisputed that during the term of
his employment he did not receive any reprimands or warnings concerning his work
performance. Moreover, the evidence shows that he was praised by Vernon Hunt-
rods, plant manager, in February or January 1964, when he was told he and
another employee were both entitled to a raise. Robert Klein had been employed
by Respondent since February 1962 and worked first as a welder and then as a
traveling troubleshooter. It was undisputed that he was a good worker and did not
receive any reprimands during the course of his employment. Gordon Eivins
worked for the Company since January 1964, and did painting jobs during the time
periods relevant here. Eivins was never warned about his work performance.
In explanation of some of the surrounding circumstances and details of events on
the morning of May 27, 1964, Robert Klein testified that after he had posted a
union pamphlet on the bulletin board, Oliver Haley, while holding the pamphlet in
his hand, interrogated him with respect to his' involvement with the union bulletin.
After Klein -admitting posting it, Haley said, "You're fired." Respondent adduced
no reliable evidence to deny or contradict Klein's testimony in this regard. The
evidence shows that Haley also flaunted the pamphlet in the faces of James Klein
and Gordon Eivins. When James Klein inquired of Oliver Haley if he was fired
because of the pamphlet, Haley replied, "Yes." Immediately after Gordon Eivins
was fired he asked Ron Haley if it was because of union activity, and Haley nodded
his head in the affirmative. At this time Ron Haley was one of the men in charge
and a supervisor of shop employees during the absence of Vernon Huntrods. In a
letter sent by Oliver Haley to the Board's Regional Director, dated June 3, 1964-
General Counsel's Exhibit 5-Oliver Haley stated that these three employees
involved in this proceeding were not fired because of union. meetings because he
had several other employees at the meeting whom he did not fire. Oliver Haley
further stated in his letter, "The Union meetings they had played only a small part
in their dismissal." Clearly, from Haley's own admissions that he removed the
union pamphlet from the bulletin board, and the fact that the union meeting played
some part in the discharges-together with his questioning of Robert Klein and
other admissions-at the time he did so, as aforestated, the conclusion is inescapable,
without any further elaboration, that Oliver Haley's discharge of the three employ-
ees on May 27, 1964, was motivated by the Respondent's union animus, to stamp
out the organizational effort right from its start, and thus these discharges were
violative of Section 8(a) (3) and (1) of the Act, and I so find.
Certain affirmative defenses to these discharges are also interposed by the Com-
pany, and in some remote way or aspects they might possibly have some relation
to the discharges on May 27, 1964. However, they bear mainly on subsequent dis-
charges of James Klein and Eivins, and the refusal to rehire Robert Klein. I will
discuss these defenses in detail later on, but they in no way alter or affect my find-
ings above or herein. There is a sufficient and clear showing here that union
motivation was the dominant and overriding factor, and any prior dissatisfactions
with work habits or performance of the three discriminatees were completely
subservient.
C. Alleged refusal to provide James Klein with company uniforms
The record shows that after James Klein was reinstated on June 29, 1964, he
requested on at least two occasions that he be furnished a uniform, but his requests
were denied. Prior to Klein's discharge he had been furnished with uniforms by
the Company. He testified that certain employees hired after July 1, 1964, were
furnished uniforms by the Company. Oliver Haley testified that as of June 30,
1964, the practice of providing uniforms was discontinued, and the employees were
so notified (General Counsel's Exhibit 7). It is specifically noted that the Respond-
ent's discontinuance of furnishing uniforms was announced on June 30, 1964, the
'As noted previously herein, the three discriminatees were reinstated with backpay
on June 29, 1964. The record also shows that upon reinstatement they were assigned
for a few days to the digging of a ditch in connection with the plant expansion program
instead of being assigned to t13&ir former jobs and work.
CONTINENTAL SALES COMPANY 1167
day after the reinstatement of the three discriminatees. The inference is clear that
the Company refused to furnish James Klein with a uniform because he was an
advocate for the Union, and thus violative of Section 8(a)(3) and (1) of the Act.
This fact is especially clear as the company notice read in part, "So other than the
clothes you are now wearing the program is discontinued." Since the Respondent
had previously furnished employees with from five to seven uniforms, such a change
in policy as announced on June 30 would have no immediate effect on the regular
working employees with their- normal quota of uniforms as they could keep what
they were wearing, but would have immediate and adverse effects on James Klein
who had turned in his uniforms when he was discriminately fired on May 27, 1964.
Acting Foreman Earl Otto also told Charles Carney that employees would probably
get their uniforms back a little later on .5
D. Reduction of hours to the three discriminatees
On June 30, 1964, the Company notified all its shop employees that due to the
plant's expansion program and because sales were down, it would be necessary to
go to a 40-hour week with all- but a skeleton crew. It was explained in the notice
that this method would be used rather than a layoff, and the skeleton crew, which
would work overtime, would be selected by the shop foreman (General Counsel's
Exhibit 7). The record shows that five or-six shop employees were then cut to 40
hours, including the three discriminatees herein, and that prior to this announcement
the regular workweek had been 54 hours for all of them.6 The Company also
maintained that it was customary to have reduction in hours and in the number of
employees because of the seasonal aspects of the Respondent's business (that is, the
demand for fertilizer is consistent with the planting seasons ), and that in determin-
ing which employees would work 54 hours, the Company was justified in consider-
ing such matters as tardiness, absenteeism, and overall efficiency. In this latter
respect the Company refers to General Counsel's Exhibit 11(a) through 11(o)
showing, in a 3- to 4-month period, the daily time records of the shop employees.
The Respondent then reassembled Exhibit 11 in its brief in attempting to show dates
and times when the three discriminatees herein were late for work, quit early, their
days absent, and the time spent for lunch over the permissible limits. I reject the
Respondent's arguments and contentions. In the first place, there is reliable evi-
dence attributed' to Plant Manager' Vernon Huntrods by Gordon Eivins to the effect
that Eivins was informed by Huntrods that Oliver Haley had issued instructions
never to give the two Klbins and Eivins any -more than 40 hours. Vernon Hunt-
rods did not testify so this statement attributed to him stands uncontradicted by
Huntrods. As to the Respondent's reliance on General Counsel's Exhibit 11, as
aforestated, it is noted that in this exhibit the exact daily hours worked by the three
discriminatees are broken down and recorded for the periods covered, but that on
the remainder of the shop employees only the total daily hours worked are recorded.
Therefore, it appears impossible for me to run any comparisons as between the
three discriminatees and the other shop employees in the specific categories
"re-assembled" by the Respondent from General Counsel's Exhibit 11. However,
what is noticeable from this exhibit is that from the end of June 1964, the three
discriminatees worked considerably less total hours than many of the other indi-
vidual shop employees. There is reference also in the testimony of this hearing to
another work record the Company made on the three discriminatees. But in this
respect it is specifically pointed out that such work records were kept only on the
three discriminatees and no other shop employees, and only for the period from
July 3 to August 31, 1964, to ascertain how "the three" were reacting following
their reinstatement. This particular work record on only the three discriminatees.
is of course utterly worthless in the attempted justification of the reduction of
hours-as the reduction was announced on June 30, 1964, and this work record on
the three discriminatees was made subsequent thereto. Likewise, there is no basis
for comparisons on this work record between the lateness and absences of any
other shop employees as they were all exempted and excluded from such observa-
tions. Even with full acknowledgment that the Respondent's business was some-
what seasonal, it is crystal clear that with the former responsibilities and duties
6 Robert Klein managed to retrieve his uniform when he returned as it was still hanging
on the rack, so he just took it back.
6 James Klein then worked on a 40-hour basis up until September 1964. Robert Klein
worked on a 40-hour basis until he was returned to his traveling status, and Gordon
Eivins worked 40 hours -until his final disrllsrg@ on August 27, 1964.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which had been assigned to the discriminatees , and in consideration of their prior
overall work performances ; coupled with the continued condoning of whatever
shortcomings they had-the Respondent 's reasons for reducing the work hours of
the three discriminatees was merely a pretext , and it is perfectly obvious that the
real and actual reason for the reduction in hours was to punish them because of
their union affiliation and advocacy full known and openly demonstrated by Oliver
Haley when he discharged them in May 1964, as aforestated . Such conduct is
clearly violative of Section 8(a)(3) and (1) of the Act?
E. Denial of wage increases to the three discriminatees ; promising and
granting increases to others
Oliver Haley admitted that on or about June 29, 1964, Supervisor Vernon
Huntrods recommended a raise for some of the shop employees , and Haley stated
that he vetoed these recommendations by telling Huntrods, "We can't give a
raise now because it will look like we are raising this to get the boys on our side."
This record further shows that Earl Otto, acting foreman , discussed the then-pend-
ing union election with certain employees and made promises of raises and other
benefits if they voted against the Union.8 Employee Charles Carney credibly testi-
fied that a week or so prior to the August 13, 1964, election , Foreman Otto told
him that he was against the Union , and that after it was "all over" the employees
might get a 15- or 20-cent pay raise . Otto then repeated similar statements to
Carney a few days prior to the election . Employee Larry Bullock credibly stated
in his testimony that before the election , Foreman Otto had told him that "as soon
as this mess cleared up " the employees would probably get a 15- to 20-cent raise.
Within a few days after the election Plant Manager Vernon Huntrods notified
certain shop employees that a pay raise had been granted, and the record establishes
that except for the three discriminatees other shop employees in the unit did
receive a pay raise effective August 10, 1964 (General Counsel's Exhibit 3).
Clearly, Respondent's promise of a wage increase prior to the election and its
granting of a wage increase which' took effect 3 days prior to the election while
denying a wage increase to the three discriminatees was disparate treatment of
union advocates long held to violate Section 8(a)(3) and ( 1) of the Act; and
Respondent 's promises of a wage increase , together with the granting of a wage
increase to defeat the Union , was conduct violative of Section 8(a)(1) of the Act.
F. The discriminatory discharge of Gordon Eivins on August 27, 1964
This record shows that on August 27, 1964 , Eivins sent his wife to the plant
for his paycheck as he had been out sick for a few days . After her request was
refused , Eivins himself went to the plant to get his check. Shop Manager Vernon
Huntrods then told Eivins he was not needed any more , and Eivins said "I guess
it don't matter too much , anyway, because I can't make a living on $50 a week."
Vernon Huntrods replied , "Well, Oliver [Haley ] told me never to give you three
any more than 40 hours , anyhow." This reference was of course to the reduction
in the work hours of the three discriminatees on June 30, 1964 , from 54 to 40
hours per week. Eivins' testimony was undenied and uncontradicted . It is also
noted in connection with this discharge of Eivins ' that although the Company kept
work records on Eivins after his June 1964 reinstatement , as previously pointed
out, no references of any kind were made to such tabulations , and in accordance
7There is no reliable proof in this record whatsoever that the Respondent 's sales were
declining in the middle of 1964. On the contrary , the plant was going through an en-
largement program in building additional fa'cilitles.
8 There was an issue at the hearing of whether or not Earl Otto was a supervisor within
the meaning of the Act . The credited testimony by James Klein , Gordon Eivins , Charles
Carney, and Larry Bullock established that during an interval in the summer of 1964,
Supervisor Norman Huntrods was on military leave or vacation, and at the time a notice
was posted on the bulletin board stating that Earl Otto would be acting foreman during
his absence . There is no reliable evidence of any kind to show that Otto did not assume
the duties of a foreman during the period in question , and, furthermore , Bullock stated
that Otto discussed with him the plant records foremen were required to keep. Otto was
not called as a witness to deny his foreman status , and all Oliver Haley ventured was
that he had no knowledge of the notice posted on the bulletin board In other words,'
there is no outright denial by the Company that Otto was not a foreman in the absence
of Norman Huntrods.
CONTINENTAL SALES COMPANY 1169
therewith I must conclude that such work record played no part in his final dis-
charge in August 1964.9 Based on, the Respondent's discriminatory discharge of
Eivins on May 27, 1964; its "ditch digging" assignment to Eivins upon his rein-
statement on June 29 , 1964; its reduction of hours on June 30, 1964; and its
refusal to grant Eivins a wage increase on August 10, 1964, all show that Respond-
ent's strong and continual union animus . Furthermore , there were no adequate
reasons whatsoever given by the Company for his final discharge , and therefore
it must be found that Eivins was discharged on August 27, 1964, in retaliation for
his efforts on behalf of the Union in violation of Section 8 (a) (3) and ( 1) of the Act.
G. Fmtner discrimination against James Klein in 1965
James Klein testified that in the early part of 1965 he learned that some of the
shop employees had received another pay raise.10 James Klein then had a conver-
sation with Foreman Norman Huntrods about this matter , but Huntrods did not
give him any satisfactory answer. Norman Huntrods classified this admitted dis-
cussion with Klein as merely "light conversation " during a coffee break. In view
of the undisputed testimony that Plant Manager Vernon Huntrods had told James
Klein the year before that he and another employee were two employees entitled
to a raise ; and in view of Respondent failure to give any reason for not granting
James Klein a raise while granting other shop employees a raise; and in light of
Respondent 's position that raises were granted on the basis of experience , ability,
and overall work record and that Klein 's experience , ability, and overall work rec-
ord was satisfactory in the total aspects , and all coupled with the Respondent's
prior union animus, ' it is inescapable that Respondent 's refusal to grant James
Klein a pay raise in early 1965 was because of his union advocacy and because he
remained a thorn in the side of Respondent and such refusal was clearly violative
of Section 8(a)(3) and ( 1) of the Act.
As noted previously herein , James Klein worked on a 40 -hour week up until
September 1964, and then was given 54 hours a week thereafter . However, James
Klein maintains and testified that he was given no overtime work and the General
Counsel alleges that such was further discrimination against Klein as the Company
refused to give him any overtime hours. This record shows that the Respondent's
production increased to the extent that a shop night crew was employed in the
plant during January, February , and March , 1965. The record also shows that
some of the regular shop employees also worked overtime during such periods, but
James Klein did not . Foreman Norman Huntrods testified and admitted that Klein
worked overtime in the spring of 1964, and that when he asked Klein to do so he
agreeably complied , and that the shop employees desired and wanted overtime work.
Norman Huntrods further testified and admitted that he never asked James Klein
to work overtime after May 1964, and that Klein did not work any overtime in
1965. The Respondent 's chief defense in this phase of the case appears to be that
James Klein did not volunteer for overtime work despite announcements of avail-
able overtime work. The evidence in this record will not support this contention.
The record is clear that employees continually sought overtime work and this is
undisputed . It seems hardly likely , as pointed out by the General Counsel, that
James Klein was the only one who did not volunteer for overtime work , and that
he would then later complain of not having been granted overtime work. Although
there is a conflict with respect to Respondent 's method of assigning overtime work,
the testimony that foremen requested employees to work on an individual basis
is the most credible one . In the light of Respondent 's disparate treatment of James
Klein , and on all the other prior discriminatory conduct and actions, it is clear
0 The Respondent 's answer also set forth the affirmative defense that Eivins was absent
from his work a good share of the time and that he did very little work when he was
on the job . However, the record shows that Eivins received no warnings from the Com-
pany relative to any such alleged infractions , and that he called in by telephone to the
shop after the May 1964 meeting when he was absent due to illness and work injuries.
These affirmative defenses must be 'deemed mere afterthoughts by the Company, and
especially so when considering that there is no evidence in this record that they were even
mentioned to Eivins at any time.
10 This record shows that as a result of the settlement agreement approved in Febru-
ary 1965, James Klein was also paid backpay as a result of discriminatory reduction in
his hours and the refusal to grant him the wage increase of 10 cents per hour effective
August 10 , 1964, as aforestated.
221-731-67-vol . 158-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent's failure and refusal to assign Klein overtime work in March 1965,
as specifically alleged in the complaint, was in violation of Section 8(a)(3) and (1)
of the Act.
As noted previously herein, James Klein was finally discharged on April 8, 1965.
James Klein testified that 2 or 3 days prior to April 8, 1965, he asked Foreman
Norman Huntrods for permission to work on his truck in the plant shop, and that
he worked 2 nights on his truck prior to April 8, and on one occasion Foreman
Norman Huntrods observed Klein working on the truck. Huntrods did not repri-
mand Klein nor report the incident to Haley. Norman Huntrods testified that he
could not recall James Klein asking for permission to use the shop after working
hours, but stated that he had observed James Klein in the shop working on his
brother's car. Grant Clark stated for the General Counsel that on one occasion he
had asked Foreman Norman Huntrods for permission to wash his car in the shop.
Huntrods admitted that he had given Clark such permission , but that it was right
after work in the afternoon and that he actually had exceeded his authority in
doing so. Respondent's president, Oliver Haley, testified that after learning on the
night of April 8, 1965, that James Klein was at the shop working on his truck, he
called Huntrods to see if he had given permission, and after being informed that
he had not, Haley went directly to the plant. Upon arrival Haley asked Klein if
he had permission to work in the shop." Klein replied that he had, and Haley
then stated, "You didn't ask me," and Oliver Haley then fired Klein. Immediately
beforehand, Klein had offered to pay the $5, but Haley refused to accept it.
Haley stated that Vernon Huntrods had authority to grant permission for employees
to use the shop for their own personal needs, but not Norman Huntrods. Respond-
ent's position that it discharged Klein on April 8, 1965, because he used the shop
to work on his truck in violation of the company rule is completely without merit.
The reliable evidence in the record shows that Klein did ask permission to use the
shop; that on occasions Foreman Norman Huntrods admittedly gave employees
permission to use the shop; that other employees used the shop with or without
permission after promulgation of the rule; and that admittedly one employee, Dave
Otto, not only failed to ask permission but broke into the plant shop after the
May 1964 rule was announced to work on a stolen car, and was not discharged.
While Oliver Haley testified that Norman Huntrods did not have authority to grant
permission for use of the shop-he also testified that before he went to the shop
on the night of April 8, he called Norman Huntrods to see if he had given Klein
permission. Furthermore, it is noted that in the May 1964 announcement about
employees' first obtaining permission to use the plant shop-there is no reference
made as to which particular foreman or supervisor could or could not give such
permission (General Counsel's Exhibit 4). Clearly then, Respondent's reason for
discharging Klein, when viewed in the light of all the other evidence relating to
Klein's union activity and advocacy, is nothing more than a pretext seized upon
by Respondent to rid itself of the only remaining union advocate. This conclu-
sion is further substantiated by Respondent's answer to the amended complaint in
which it set forth its affirmative defense alleging that James Klein was also dis-
charged because he refused to do work that he had been directed to do. Respond-
ent's only testimony as to this affirmative defense involved a fertilizer blender and
auger which needed repairs after installation. However, the Company produced no
real testimony to prove that Klein had been responsible for the defects. 12 It is
further noted that there were no references made whatsoever about such com-
plaints or defects when Haley confronted Klein on the night he was using the shop,
as aforestated. It is readily apparent that the Respondent's affirmative defense
played no part in the discharge, and this afterthought cannot and will not in any
way bolster the Respondent's case. In accordance with the above, the discharge of
James Klein on April 8, 1965, was discriminatorily motivated and in violation of
Section 8(a)(3) and (1) of the Act.13
"As noted earlier herein . Haley had announced at the employees ' meeting on May 18,
1964, that there would be a charge of $5 for personal use of the plant shop , and that
permission must be obtained for such use.
12 Ron Haley gave testimony to the effect that prior to the employees' meeting on May 18,
1964, James Klein initially refused to paint a certain tank when he asked him to do so.
This was before Ron Haley was designated as one of the three to be in charge, as afore-
stated, and it is also noted that shortly thereafter Klein painted the tank.
13 It was even admitted by Norman Huntrods that no employee other than James Klein
was ever discharged for violating the rule in using the shop, and that the Company never
collected the $5 fee from any employee.
CONTINENTAL SALES COMPANY 1171
H. With respect to the refusal to rehire Robert Klein in 1965
After being reinstated in June 1964, as aforestated, Robert Klein worked for the
Company until about November 6, 1964, when he quit his employment because he
felt the Company was discriminating against him. This record shows that in
February 1965, Robert Klein then applied for a job with the Company. On this
occasion, Shop Foreman Vet non Huntrods told Klein he would check into it and
"would have to ask somebody higher than he was." A week or so later Robert
Klein again talked with Foreman Vernon Huntrods and asked him what he had
found out about Klein going back to work. After Vernon Huntrods said. "No,"'
Klein asked why, and Huntrods replied, "No, on account of this other deal." 1
agree with the General Counsel that obviously the Company refused to rehire
Klein because of his efforts on behalf of the Union and because of his being the
subject matter of the Union's charges against Respondent, as that was the only
"other deal" Klein was involved in. Respondent adduced no testimony to deny
or contradict the testimony of Robert Klein in this regard. Thus, Respondent's
refusal to rehire him in February 1965 was motivated by Respondent's union
animus and thus violative of Section 8(a)(3) and (1) of the Act. The Company
again ventured an affirmative defense in its answer, and this time suggests that
Robert Klein was absent from his work on several occasions without an excuse.
Oliver Haley stated that Robert Klein has a knack to learn and has aptitude in the
work, but that he did not show up for his job on time. Robert Klein admitted in
his testimony that ever since he has worked for the Company he had been tardy
and absent from work on occasions. Klein then explained that in his traveling
status as a "troubleshooter" for the Company there were some days that he was
out of town and would drive home at 10 or 11 o'clock at night, and that on the
next morning he would then not report for work until noontime or after. Klein
also stated that he had quit his job on several prior occasions but the Company
had always hired him back. It is most obvious to anyone studying this record
that Robert Klein was a key and important employee in the successful field opera-
tions of the Respondent's business, and that his habits of being late and absent
from work had been continually overlooked and repeatedly condoned -by Oliver
Haley. There are no indications whatsoever that Klein's services were no longer
needed or that his lateness and tardiness played any real part in the Respondent's
refusal to rehire him.14
I. Failure of Respondent to pay profit-sharing plait to Robert and James Klein
The Company has a profit-sharing plan which provides that if any employee is
terminated other than by death, retirement, disability, or discharged by an act
"demonstrably- injurious" to the Company, he shall receive a percentage of his
share based on the number of years of continuous employment (General Counsel's
Exhibit 9). Oliver Haley admitted that James Klein had not received his share,
and testified that Robert Klein had not been paid either, but that his share had
been set aside for him.15 James Klein testified that he discussed the payment of
his share with Maynard Olson, and also stated that an employee was supposed to
be paid when discharged. Robert Klein stated that he asked Shop Foreman Vernon
Huntrods for his payment of the profit-sharing plan, but was told that he would
have to see Oliver Haley and that he did not talk to Haley about it as Huntrods
was his immediate foreman.
Respondent's refusal to pay James Klein his share of the company profit-sharing
plan was, in the absence of any reason, and in the context of Respondent's other
unfair labor practices, clearly that disparate treatment long held to be violative of
Section 8(a)(3) and (1) of the Act. Respondent's only reason for not paying
Robert Klein is that he failed to request it from Respondent's president, Oliver
Haley. It is noted, however, that there are no written requirements as to how or
when employees are to request their share, and certainly under all equitable doc-
trines employees cannot be penalized in situations of this kind for failure to exhaust
their administrative remedies in making their demands. There can be no doubt
whatsoever that Respondent's refusal to pay Robert Klein his share of the com-
pany profit-sharing plan, when viewed in the context of Respondent's conduct as
a whole, was also in violation of Section 8(a)(3) and (1) of the Act.
"While there is no specific allegation in the amended complaint on the refusal to rehire
Robert Klein-the issue was completely and fully litigated in this proceeding and, there-
fore, is properly before me. _
151t: appears that Gordon Eivins had not been in the employment of the Company for
1 year, and therefore ineligible There is no allegation or contention otherwise.
1172 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
J. Final summary
In the concluding arguments by the Respondent , it is pointed out that Robert
Klein was later hired by a companion company of the Respondent ; that the brother
of Robert and James Klein was hired by the Respondent itself; that the father-in-
law of James Klein works for the Company ; and that the Respondent entered into
a side business arrangement with James Klein, all of which , according to the Com-
pany, shows lack of discrimination on the part of the Company. However, as I
have detailed herein, all the immediate circumstances surrounding the discharge,
reduction in hours, denial of wage increases , and the other violative conduct, par-
ticularly their precipitate nature, the timing, the independent 8(a)(1) statements
and promises the Company engaged in , and the absence of hard evidence to sup-
port the Respondent 's defenses , make it apparent that these concluding factors
relied on by the Company are merely additional and general afterthoughts which
can have no direct bearing on the specific events and issues raised by this complaint.
The Company may have had many instances of good will to the community and
to some of its shop employees , but when the chips were down the Respondent
amply demonstrated its full and complete union animus in several respects and on
many occasions , all to the adversity of the three discriminatees who were specifically
and openly tied into the union movement on the morning of May 27, 1964, and
the subsequent events and violative conduct shows that the Respondent 's efforts
were continually dogmatic and relentless in efforts to rid itself of the three principal
union supporters.
The General , Counsel also alleges,in the complaint an 8(a )( 4) violation. How-
ever, in this respect I am unable to ascertain f*_orn this record how the three dis-
criminatees were specifically discriminated against because they filed charges or
gave testimony under the Act (essential elements in an 8(a)(4 ) allegation). The
Union filled the charges, and there is no evidence of any -testimony by the discrim-
inatees before any Board proceeding other than the instant hearing. I hereby
dismiss the 8(a) (4) aspect and reference in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices ' of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic , and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices
violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act. Having found that James Klein , Robert Klein , and Gordon
Eivins 'were discriminatorily discharged on May 27, 1964; that Gordon Eivins was
again discriminatorily discharged on August 27, 1964; that Respondent discrimina-
torily refused to rehire Robert Klein in February 1965; and that James Klein was
again discriminatorily discharged on April 8, 1965, it will be recommended that
the Respondent offer them full and immediate reinstatement to their former posi-
tion or ones substantially equivalent thereto, without prejudice to their seniority
and other rights and privileges , and make them whole for any loss of earnings
suffered by reason of the discriminations against them . In making them whole, the
Respondent shall pay to them a sum of money equal to that which they would
have earned as wages ' from the dates of such discriminations to the date of rein-
statement or a proper offer of reinstatement , as the case may be, less their net
earnings during such period, and less any sums heretofore received by way of
settlements . The backpay is to be computed on a quarterly basis in the manner
prescribed by the Board in F . W. Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent as provided by the formula adopted in Isis Plumbing & Heat-
ing Co., 138 NLRB 716. Having found that on June 30 , 1964, the Respondent
reduced the work hours of the above-named three discriminatees , it will be rec-
ommended that the Respondent make them whole for any loss of earnings they
may have suffered because of such discrimination from the date of such reduction
in hours to the date they were reinstated to regular work hours , and less any sums
heretofore received from the Respondent by way of settlement . Having also found
that on August 10, 1964 , the above-named discriminatees were refused or denied
wage increases, it is recommended that the Respondent make them whole for any
CONTINENTAL SALES COMPANY 1173
loss of earnings from the date of such discrimination less sums received by way
of settlement. Having further found that in the early part of 1965, the Respondent
denied James Klein a wage increase, it is recommended that he be made whole for
any loss of earnings from the date of such discrimination less sums received if
any, by way of settlement. Having found that in March 1965, James Klein was
denied and refused overtime work, it is recommended that he be made whole for
any loss of earnings from the date of such discrimination based on the average
overtime hours worked by the other shop employees during such periods. And
having found that James Klein on April 8, 1965, and Robert Klein in November
1964, were refused payment of their respective shares of the company profit-sharing
plan, it is recommended that they be paid such amounts as established by the
formula therein provided.
I shall further recommend that the Respondent, upon request, make available
to the Board, or its agents, for examination and copying, all payroll records and
reports, and all other records necessary to properly analyze the amounts of back-
pay and all other compensations due the discriminatees.
The unfair labor practices committed by the Respondent strike at the very heart
of the rights guaranteed employees by Section 7 of the Act. N.L.R.B. v. Entwistle
Mfg. Co., 120 F. 2d 532 (C.A. 4). The inference is warranted that Respondent
maintains an attitude of opposition to the purpose of the Act with respect to the
protection of employee rights in general . It will, accordingly, be recommended
that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the
Act, and is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating in regard to the hire or tenure of employment of James
Klein, Robert Klein, and Gordon Eivins, thereby discouraging membership in the
above Union, Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By engaging in the conduct set forth herein, the Respondent has engaged and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , it is recommended that Continental Sales
Company, its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in International Union,
United Automobile ; Aerospace and Agricultural Implement Workers of America
(UAW), AFL-CIO, or any other labor organization of its employees , by dis-
charging or in any other manner discriminating egainst any individual in regard
to hire, tenure of employment , or any term or condition of employment , except as
authorized by Section 8(a)(3) of the Act.
(b) Interrogating its employees about union literature or pamphlets and unlaw-
fully removing the same.
(c) Promising and granting financial benefits to its employees to induce them
to vote against the Union.
( d) Granting wage increases to its employees for voting against the Union.
(e) Denying benefits and raises to union supporters.
(f) Refusing to issue or furnish company uniforms to employees because of
their union affiliations and organizational efforts.
(g) In any other manner interfering with, restraining , or coercing its employees
in the right to self-organization , to form labor organizations , to join or assist the
Union , or any other labor organization, to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be affected by an
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement requiring :membership in a labor organization as authorized in Section
8(a)(3) of the Act.
2 Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer James Klein, Robert Klein, and Gordon Eivins immediate and full
reinstatement to their former or a substantially equivalent position, without preju-
dice to seniority or other rights and privileges, and make them whole for any and
all loss of earnings suffered by reason of the discriminations against them, in the
manner set forth in the section above entitled "The Remedy."
(b) Preserve ahd, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records, and reports necessary to analyze the amounts of all
backpay due and the right to reinstatement under the terms of the Recommended
Order.
(c) Post at its plant in Nevada, Iowa, copies of the attached notice marked
"Appendix." 16 Copies of said notice, to be furnished by the Regional Director for
Region 18, shall, after being signed by a representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notice is not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 18, in writing, within 20 days
from the receipt of this Decision, what steps have been taken to comply herewith.17
19 In the event that this Recommended Order shall be adopted by the Board, the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order Is enforced
by 'a decree of a United States Court of Appeals, the words "a Decree of 'the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
17 In the event that this Recommended Order be adopted by the 'Board, this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Union , United Auto-
mobile, Aerospace and Agricultural Implement Workers of Amerioa (UAW),
AFL-CIO, or any other labor organization , by discharging or refusing to
reinstate any of our employees , or in any manner discriminating in regard to
their hire or tenure of employment , or any term or condition of employment.
WE WILL NOT promise, offer , or grant economic benefits to employees for
refraining from union activities.
WE WILL NOT interrogate employees about union literature or pamphlets
or unlawfully remove the same from the plant premises.
'WE WILL NOT refuse to issue and furnish company uniforms to employees
because of their union activities.
WE WILL NOT deny benefits and pay raises to employees because of their
union activities.
WE WILL offer to James Klein, Robert Klein , and Gordon Eivins immedi-
ate and full reinstatement to their former or substantially equivalent positions,
and make them whole for any loss of pay suffered as a result of all the
discriminations against them as provided for herein.
All our employees are free to become, remain , or refrain from becoming or
remaining, members of the above-named union , or any other labor organization.
CONTINENTAL SALES COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LENDER'S BAGEL BAKERY 1175
NOTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 316
Federal Building, 110 South Fourth Street, Minneapolis, Minnesota , Telephone
No. 334-2618.
Lender's Bagel Bakery and Bagel Bakers Union Local 338 of the
Bakery and Confectionery Workers International Union of
America and Local No . 171, American Bakery and Confection-
ery Workers , AFL-CIO. Cases Nos. 1-CA-5054 and 1-CA-5165.
May 27, 1966
DECISION AND ORDER
On March 3, 1966, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Ile further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that they be dismissed. Thereafter, the
Respondent, the General Counsel, and the Charging Party filed ex-
'ceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this proceeding to a
three-member panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this proceeding, and hereby adopts the Trial Examiner's findings,
,conclusions,' and recommendations with the following modifications.
i We agree with the Trial Examiner ' s conclusion that Respondent 's discharge of Thomas
violated Section 8(a) (3) of the Act . In 'this connection , we find that Thomas' union
activity was the motivating factor for the discharge . Wolverine Shoe & Tanning Corpo-
ration, 152 NLRB 307 ; Tursair Fueling , Inc., 151 NLRB 270.
We further agree, for the reasons stated by the Trial Examiner , that Respondent inter-
fered with Local 171 in violation of Section 8(a) (2) and that the contract between them,
dated December 25, 1964, should not be given effect. However , in reaching this con-
clusion , we do not adopt the Trial Examiner 's statement in his "Conclusions as to Sec-
tion 8 ( a) (1) and (2) violations ," that "The unlawful genesis of the contract precludes
its validity . . . ." insofar as this may imply any finding that events occurring before
December 21, 1964, the cutoff date under Section 10(b) of the Act, violated the Act, or
any reliance on such events to support our finding of a violation therein.
158 NLRB No. 118.