Farmers Grain Elevator

National Labor Relations Board - Board Decisions

Oct 21, 1976

226 N.L.R.B. 564 (N.L.R.B. 1976)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Mezger, d/b/a Farmers Grain Elevator and
James Rodriguez . Case 20-CA-10929
DECISION
STATEMENT OF THE CASE
October 21, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On July 21, 1976, Administrative Law Judge Roger
B. Holmes issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a brief in support of the Deci-
sion of the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Thomas Mezger, d/b/a
Farmers Grain Elevator, Dufour, California, his
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 Respondent in its exceptions requests that the Board find Billy G Reyn-
olds was an independent contractor while cleaning seed, and in support
thereto now seeks to introduce new evidence into the record in the form of
a letter from a division of the California Department of Industrial Rela-
tions In view of the fact that Respondent does not contend that such evi-
dence is newly discovered or that it was unavailable at the time of the
hearing, the Respondent's motion to reopen the hearing is denied Wisconsin
Rubber Products Co, Inc, 160 NLRB 166, 167 (1966). In any event the
record evidence fully supports a finding that Reynolds at the time in issue
was an hourly paid unit employee and his discharge was a violation of Sec
8(a)(1) and (3) of the Act
ROGER B. HOLMES, Administrative Law Judge: The origi-
nal charge in this case was filed on December 22, 1975, by
James Rodriguez, herein called Rodriguez, and a first
amended charge was filed on February 3, 1976, by Rodri-
guez. The complaint was issued on February 10, 1976, on
behalf of the General Counsel of the National Labor Rela-
tions Board, herein called the Board, by the Regional Di-
rector for Region 20 of the Board. The complaint alleges
that Thomas Mezger, d/b/a Farmers Grain Elevator, here-
in called the Respondent, has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, herein called the Act. ' The
Respondent filed an answer to the complaint and denied
the commission of the alleged unfair labor practices.
The hearing was held before me on April 29 and 30,
1976, at Sacramento, California. Briefs were timely filed by
June 4, 1976, by the General Counsel and by the Respon-
dent and have been duly considered.
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following: I
FINDINGS OF FACT
I. JURISDICTION
Thomas Mezger, d/b/a Farmers Grain Elevator, has
been at all time material herein a sole proprietorship with
places of business located at Woodland, DuFour, and Ar-
buckle, California, where Respondent has been engaged in
feed and grain processing.
During the past year, the Respondent has made sales
and provided services valued in excess of $50,000 to firms,
each of which firms in turn made sales or purchases of
$50,000 or more directly to or from customers located out-
side the State of California.
Upon these admitted facts, I find that the Respondent
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated that Chauffeurs, Teamsters, and Help-
ers, Local 150, of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, has been at all times material
herein a labor organization within the meaning of Section
2(5) of .the Act.
i The General Counsel has moved to correct the transcript Without op-
position, the General Counsel's motion is hereby granted
226 NLRB No. 93
FARMERS GRAIN ELEVATOR 565
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues presented in this case are:
1. Whether the Respondent constructively discharged
Billy G. Reynolds on or about December 5, 1975, because
of his union activities in violation of Section 8(a)(1) and (3)
of the Act, or whether Reynolds voluntarily quit his em-
ployment.
2. Whether the Respondent reduced the working hours
of James E. Rodriguez on and after November 6, 1975, and
laid Rodriguez off from work on or about January 23,
1976, because of his union activities in violation of Section
8(a)(1) and (3) of the Act, or whether the Respondent took
such actions for economic reasons due to a lack of work.
3. Whether the Respondent in November and Decem-
ber 1975 interrogated employees about their union activi-
ties; made threats of reprisals; made promises of benefit;
or withdrew the offer of a bonus because of employees'
union activities in violation of Section 8(a)(1) of the Act.
B. The Background
Union activity among the employees at Respondent's
DuFour, California, facility began around July 1975. Billy
G. Reynolds, James E. Rodriguez, Thomas W. Patten, and
Ralph Robles began to talk among themselves about hav-
ing a union to represent them. They were employees at that
time at the DuFour facility where the Respondent receives
and stores grain, processes and cleans seed, and processes
feed for cattle. The grains involved are wheat, barley, and
oats.
About the first of October 1975, Reynolds contacted a
representative of Teamsters Local 150 from whom Reyn-
olds obtained union authorization cards. Reynolds distrib-
uted the cards among the employees at DuFour and four
employees out of the five employees working there at that
point in time signed union cards. Three of the cards were
authenticated and introduced in evidence at the hearing.
Patten's union card indicates that he signed the card on
October 12, 1975, and the union cards of Reynolds and
Rodriguez reflect that they were signed on October 13,
1975. A card which bears Robles' name was identified, but
not introduced in evidence.
On November 4, 1975, Reynolds telephoned another
representative of the Union, Tony Santos, and asked for
his help since the first union representative was busy. San-
tos promised Reynolds that he would be over the next day.
The following day, November 5, Santos arrived at the
DuFour facility about 10:40 a.m. and spoke with Thomas
Mezger, who is the sole owner of Farmers Grain Elevator,
and with Mark Mezger, who is one of the four sons of
Thomas Mezger and who is a' supervisor? Santos told them
that the Union represented^the employees and asked if they
would like to see the authorization cards. Santos showed
the cards to them and they looked at each card one-by-one.
2 Another son of Thomas Mezger is Dan Mezger who supervises the Re-
spondent's facility at Arbuckle, California, which is approximately 20 miles
north of the DuFour facility.
Thomas Mezger said, "I can't believe they want to be
union." Santos stated that he would like for Thomas Mez-
ger to recognize the Union, but that if Thomas Mezger did
not recognize the Union, Santos would file a petition with
the Board. Santos then left. He estimated that the conver-
sation lasted about 10 minutes.
Two petitions seeking a representation election among
the DuFour employees were filed on November 12, 1975,
with Region 20 of the Board. One petition in Case 20-RM-
1920 was filed by the Respondent and another petition in
Case 20-RC-13202 was filed by the Union. Pursuant to a
Stipulation for Certification Upon Consent Election, a
Board-conducted election was held on Friday, December
5, 1975, between 11 a.m. and 11:15 a.m. at DuFour. Of the
five eligible voters in the election three cast ballots for the
Union, and one cast a ballot against the Union. Rodriguez
served as the election observer for the Union. On Decem-
ber 15, 1975, the Regional Director of Region 20, on behalf
of the Board, issued a certification of representative to the
Union as the representative of the employees in the follow-
ing described bargaining unit:
All warehousemen, forklift drivers and scoop driv-
ers at the Employer's Yolo County, California, facili-
ty; excluding all other employees, including office
clerical employees, guards and supervisors as defined
in the Act .4
At the time of the hearing on April 29 and 30, 1976, a
collective-bargaining agreement had not been reached by
the Respondent and the Union.
C. The Events in Early November
On the same day that Union Representative Santos
showed the union authorization cards to Thomas Mezger
and Mark Mezger, there were two conversations between
Thomas Mezger and employee Patten at the DuFour facili-
ty.' The first occurred sometime between 11 a.m. and
noontime. Thomas Mezger approached Patten at work and
told Patten that he understood that Patten was dissatisfied
with his job and Mezger wanted Patten to look for work
elsewhere. Patten asked if Mezger wanted him to leave
then and Mezger replied "no." Patten asked who had told
Mezger that Patten was dissatisfied with his job. Mezger
replied, "Actually, nobody told me. I assumed this. I think
you've been talked into something I'm not going for."
Mezger then left and Patten resumed his work.
About an hour later, Thomas Mezger returned to where
Patten was working and told him that he had discussed the
matter with his son, Mark, and it was a poor time of the
year to look for another job. Mezger said that they were
going to keep Patten on at work so he could support his
family. Mezger added that if he was going to be letting
3 This account is based on the testimony of former union representative
Santos regarding his visit on November 5 to the DuFour facility
4 The foregoing findings regarding the representation proceedings are
based upon documentary evidence and stipulation of the parties . For clanfi-
cation, it should be noted that DuFour is located within Yolo County
5 Patten was not an employee of the Respondent at the time of the hear-
ing He had worked for the Respondent from May IS, 1974, to March 17,
1976, when he voluntarily quit work to accept another job The following is
based on his testimony
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anybody go, it was going to be someone other than Patten.
Then Mezger asked Patten if the Union had ever given him
advances on his wages and Patten said "no." Mezger next
asked Patten if the Union had ever made work for him to
keep him busy so Patten could support his family. Patten
replied "no." Mezger asked if the Union had ever lent him
any money and Patten again replied in-the negative.6
The following day Thomas Mezger told Patten that the
starting time was 7 a.m. and that he did not want Patten to
punch in before that time. Patten explained at the hearing
that 7 a.m. was the normal starting time, but he had in the
past been able to punch in 15 or 20 minutes early. He also
testified that several times during the winter months he had
gone to work as early as 5 a.m. In his opinion, Thomas and
Mark Mezger were not as friendly towards Patten as be-
fore, but his working conditions did not change, and he felt
that he worked hours consistent with the needs of the mill
which he was operating.
Thomas Mezger denied that he ever told Patten to go
look for work elsewhere or commented to Patten later that
he and Mark Mezger had decided to keep Patten on at
work. Mezger pointed out at the hearing that he had
known that Patten was a teamster when he hired Patten,
but that made no difference to him. Mezger acknowledged
that he had made a loan of $400 to Patten at Patten's re-
quest in order to purchase another car.
The first knowledge of Mezger that there was any union
activity at the facility occurred when Santos handed the
cards to him according to Mezger. Mezger stated that on
that particular day, "I asked each one of them if they want-
ed a union to represent them and they said yes." According
to Mezger, that was the end of the conversation he had
with the employees whom he talked with singly. He denied
that he made any other statements to employees that day.
He denied that he made any statement about terminating
employees on that day, or at any later time, except that he
might have talked about a layoff sometime prior to that
time due to a reduction in cattle feeding.
In choosing between these two versions, I have decided
to accept Patten's version as the more accurate and com-
plete account. Patten was not employed by the Respondent
at the time that he, gave this testimony. He had voluntarily
left Respondent's employment and the record does not dis-
close any acrimony in his leaving. He is not an alleged
discriminatee in this case and the record does not disclose
that he is biased or prejudiced against, the Respondent.
Furthermore, Patten's testimony fits in with a pattern of
other events which occurred on and after November 5,
1975, and which, will be discussed later. Based on this anal-
ysis, I have decided to credit Patten's testimony throughout
this proceeding.
The day following the visit by Santos to the DuFour
facility, Thomas Mezger showed Santos' business card to
employee Billy Reynolds and said, "A friend of yours was
by." Reynolds only responded with "Good."
On November 5, 1975, Thomas Mezger had a brief con-
versation with employee Rodriguez. According to Rodri-
6 At some point in time, Patten had asked Thomas Mezger for a loan of
$400 in order to buy another car Mezger loaned the money to Patten who
repaid it.
guez, Mezger showed him the business card of Tony Santos
and told Rodriguez that this person had come there. Rodri-
guez looked at the card and gave it back to Mezger with
the comment "Okay."
Rodriguez said that the following day the Respondent
hired a new employee, Jesus Berarra, and on the same day
reduced his working hours. He said Berarra worked at the
company about a week. He also said that after Santos' visit
to the Respondent's facility that his working hours were
reduced to 8 a.m. to 1 p.m. or 2 p.m. from that time until
his layoff from work on January 23, 1976. He,had previ-
ously worked 7 a.m. to 4 p.m., 5 p.m., or 6 p.m. and had
worked overtime hours "almost every payday" between
August and November 1975. Also, Rodriguez said that his
job duties were changed by Thomas and Mark Mezger at
that time so that from then on he was ". . . just sweeping,
standing by the pit, and hoeing; that's all." He did not
observe any other employees having to leave work earlier
than he did, nor did he see any employees having to leave
work at the same early time that he did .7
'Mark Mezger gave the reason for reducing the hours
worked by Rodriguez as "lack of work." However, he add-
ed that after Rodriguez' return to the DuFour facility from
Respondent's Arbuckle facility that: "I could see a definite
change, not only in his work, but his attitude, kind of like a
chip on his shoulder, no interest, mad at something." Mark
Mezger asserted that his brother also told of Rodriguez'
change in attitude around July 1975.
Thomas Mezger testified that: "Prior to August 1975, 1
considered Jimmy Rodriguez a son. After August, 1975, I
was disgusted with Jimmy Rodriguez's attitude." In
Mezger's opinion it was an attitude of indifference, but
also one of belligerence when Mezger had called to Rodri-
guez' attention the fact that Rodriguez had left the screw
conveyor plugged in. According to Mezger, Rodriguez re-
plied, "If you don't like my work, why don't you fire me."
Mezger acknowledged that other employees had left the
screw conveyor running in the past and that the cost for
the electricity was minimal in this situation. Nevertheless,
Mezger lost confidence in Rodriguez and became con-
cerned about the possibility that Rodriguez might mix the
different types of grains. Mezger explained at the hearing
that if wheat grain was mixed into barley grain, or vice
versa, the value of the product would be reduced greatly.
However, Mezger candidly stated, "You are always con-
cerned, certainly" about any employee making a mistake
and mixing the grains. Mezger said that his son, Dan, had
told him of a change in Rodriguez' attitude as early as May
1975 and that his son,' Mark, had done so in October 1975.8
7 Rodriguez had worked for the Mezgers as far back as 1969 when he
performed yard work for them In the summer of 1972, he began working at
the DuFour warehouse and continued to do so after school hours In June
1973, he began working approximately 40 hours a week and, although he
returned to school in the fall of 1973, he continued to work 'at DuFour in the
afternoons and evenings In January 1975 he began working full-time dur-
ing the days For the period from about May 1975 to August 1975, Rodri-
guez worked under Dan Mezger at the Arbuckle warehouse. He received an
extra 25 cents an hour there for gasoline so that his rate of pay was in-
creased to $3 25, but his hourly rate was reduced to $3 an hour when he
returned to DuFour in August 1975 From that time until his layoff, he
worked at the DuFour facility
8 Dan Mezger did not testify at the hearing
FARMERS GRAIN ELEVATOR
In contrast to the testimony given by Thomas and Mark
Mezger, Rodriguez testified that Dan Mezger was pleased
with his work at the Arbuckle facility where he had worked
from May to August 1975. Rodriguez said that Dan Mez-
ger told him on four or five occasions: "About how good
of work I did for them that year, and everything. It was the
first year he ever had so good-me helping him out that
year." Rodriguez also said that Dan Mezger had told him
that "someday I'd become foreman at Arbuckle's ware-
house." Because Rodnguez' wife needed his car, Dan Mez-
ger gave rides to Rodriguez to and from work at the Ar-
buckle warehouse.
Rodriguez said that he admitted to Thomas Mezger that
he had left the auger plugged in and that he would not do
it again. He said that he, Reynolds, Patten, and Robles had
previously left the auger plugged in during prior years.
Rodriguez said that it was after that conversation about the
auger being plugged in and about November 12, 1975, that
Thomas Mezger told him that he could not trust Rodriguez
anymore. Rodriguez later returned to talk with Thomas
Mezger and told him, "If I wasn't doing your work, why
don't you lay me off a long time ago; if you can't trust me
anymore."
In weighing the foregoing testimony, I have decided to
credit Rodriguez' testimony. His testimony concerning
Dan Merger's complimentary remarks about his work at
Arbuckle stands undenied. That testimony contradicts the
reports from Dan Mezger which were testified to by Thom-
as and Mark Mezger. Leaving the screw conveyor plugged
in had occurred several times before, and while that mis-
take is not to be overlooked, it would not seem to signal
such a complete change in Rodriguez' attitude as testified
to by Thomas and Mark Mezger. No other incidents were
specified and the concern about mixing the grains is a con-
tinuing serious concern applicable to all employees. Based
on the foregoing analysis, I have decided to credit Rodri-
guez' testimony.
D. The Events in Mid-November
About November 12, 1975, which was a week after
Union Representative Santos' visit to the DuFour facility,
there was a conversation between Mark Mezger and em-
ployee Patten at an elevator where grain was being loaded
on a truck. Patten testified that Mark Mezger asked him, "I
just wanted to know some of your reasons for wanting to
go union." Patten replied that all of them could use more
money and discussed Rodriguez and Reynolds. Patten said
that Mark Mezger responded: "He told me what went on
between him and James Rodriguez was his business and
none of mine. And as far as Bill Reynolds was concerned,
he was making money hand over fist, across the street."
Then Mezger asked Patten if the Union had ever lent any
money to Patten or advanced wages to Patten. Patten re-
plied "no." Then Mezger asked if the Union had ever lent
him money interest free and Patten again responded "no."
Mark Mezger did not specifically contradict the fore-
going although when asked about any discussion concern-
ing the Union, he mentioned only one time 3 or 4 days
prior to the election among his father, himself, Reynolds,
and Patten. That conversation will be discussed later. He
567
denied making any threats to employees about their union
activities or making any promises of benefit. For the rea-
sons previously stated, I credit the testimony given by Pat-
ten.
In mid-November 1975 there also was a conversation
between Mark Mezger and Reynolds at the seed cleaning
plant which is about 100 yards across the road from the
main building at DuFour. Mark Mezger told Reynolds,
"That he had been trying to hold his tongue but he would
like to know why I signed the card to have the Union
represent us-or me, I should say." Reynolds told Mezger,
"That there were several things that were eating me: That
he was a friend of mine, except when it came to paying me
a living wage during the winter; and when it came to pay-
ing medical bills that I felt was his." 9 Mark Mezger asked
Reynolds who was responsible for the Union and Reynolds
answered, "That he was talking to the one who started it."
Mezger told Reynolds that he was making good money
and was foolish; "That what I was really getting involved
in was protecting a Mexican who was incompetent to han-
dle his job and an idiot." Reynolds also testified: "He said
after he had paid for James' baby being born, that he
thought he was an ungrateful little son-of-a-bitch for sign-
ing the card; that he had treated him just like a brother."
During this same conversation Mark Mezger told Reyn-
olds that Patten would be on welfare if it was not for the
job which the Company gave him. Reynolds further stated
that Mezger told him that he and his brother, Dan, had
talked that day about giving Reynolds a $500 bonus "and
that now I could get my bonus from the Union." At the
hearing Reynolds explained that a bonus had previously
been mentioned to him about June or July 1975, "assuming
I finished the season and be there quite a while longer." He
said that he had never previously received a bonus from
the Respondent.
Mark Mezger denied the remark attributed to him by
Reynolds regarding getting his bonus from the Union. He
said that a $500 bonus for Reynolds had been discussed in
September or October 1975 on the condition that Reynolds
finish out the seed cleaning season. He said that he had not
discussed the matter with his father, but that he had dis-
cussed it with his brother.
After considering all of the testimony of. Reynolds and
Mark Mezger and the entire record, I have decided to ac-
cept the testimony of Reynolds as the credible account of
the foregoing and subsequent events. Especially the De-
cember 5, 1975, incident which will be detailed later reveals
a sharp contrast between the account given by Reynolds
and that given by Mark Mezger. My analysis of the De-
cember 5 incident is that Reynolds gave the believable ac-
count of the confrontation which caused him to quit work
that day. Mezger's account of that same incident is im-
probable when viewed in the context of the Union's elec-
9 That had reference to the accident which occurred in the summer of
1975 involving one of the two teenage sons of Reynolds while they were
working for a few days at the Respondent's facility doing cleanup work
Reynolds took his injured son to the hospital and told them that he had
been hurt in a farm accident, which was not true, and I have considered that
and weighed it in reaching a credible determination with respect to Reyn-
olds Reynolds gave no explanation at the hearing for his statement to the
hospital.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion victory a few minutes earlier and in view of the fact
that Reynolds was performing a task which was part of his
duties. I have found Reynolds' testimony with regard to
the December 5 incident to be the credible one. Therefore,
I have decided to credit his testimony as to other matters
also, including the foregoing conversation just described.
On November 14, 1975, Thomas Mezger gave a warning
letter to Rodriguez which reads as follows:
To Jim Rodriguez:
For the past three or four months, there has been a
great deterioration in the quality of your work. At first
I thought it might be a temporary thing and there
would be a noticable change for the better. There has
been no improvement and finally I felt I had to men-
tion it to you. I discussed this with you on November
12, 1975. Your attitude at that time leaves me no alter-
native but to inform you that if there is not an imme-
diate improvement in your work, you will be dis-
charged without further notice.
FARMERS GRAIN ELEVATOR
THOMAS MEZGER
Rodriguez testified that none of the things in the letter
were true. He said that his attitude towards his work had
not changed, nor had there been any slacking off in his
work.' As previously indicated, I have found Rodriguez'
earlier testimony credible and I find this to be also. While
the Respondent claimed that Rodriguez' attitude had
changed and his work deteriorated, nevertheless Thomas
Mezgei was still willing to call Rodriguez back to work
after Rodriguez was laid off on January 23, 1976. Thomas
Mezger testified that he told Rodriguez on that occasion,
"That we had run out of work for him and I would call him
back if and when worked picked up." Thus, Rodriguez was
not laid off or discharged for a poor attitude or poor work,
notwithstanding the other testimony from the Respondent
about his attitude and work.
E. The Events in Late November and Early December
In late November or early December 1975, there was a
conversation between Thomas Mezger and Reynolds in
Mezger's pickup truck. According to Reynolds, Mezger
told him that "the Union was a bunch of grafters. To look
at Tony Santos' car he was driving." Mezger continued by
saying that the Union was not to their benefit; that the
Union was not going to help them "because any man who
voted for that Union would not be there six months after
all was settled; and it would be settled in six months."
Thomas Mezger denied that he made any threat to ter-
minate employees. For the reasons previously stated, I
have found Reynolds' testimony to be credible as to other
matters and I will accept it here also.
About the last of November or the first of December
1975, Reynolds received a two-page letter from the Re-
spondent. The letter dealt with several matters under the
headings: "Why is this Union so interested in getting into
our firm?"; "What would the Union be able to do?";
"What about job security?"; "Will anyone know how you
vote?"; and "What about strikes." The letter from the com-
pany caused Reynolds to compose a letter in response. He
had his mother-in-law type the letter four times because of
some typographical errors and -because there was no car-
bon paper at his house. He selected one typed copy and
put it in an envelope addressed to Tom Mezger and he said
he placed the proper postage, on it for ordinary mail. Reyn
Olds then placed the envelope in his own. mail box in front
of his house. He lives on a rural route and, according to
Reynolds, he customarily sends as well as receives mail at
his own mail box.
There is an issue as to whether Reynolds' letter was ever
received by the Respondent who asserts that it was not
received. At my request both the General Counsel and the
Respondent's attorney researched the California law on
this issue and argued the matter in their respective briefs.
Both have cited California Evidence Code Section 641
which provides that a letter which has been correctly ad-
dressed and properly mailed is presumed to have been re-
ceived' in the ordinary course of business. I find that the
Respondent's attorney's argument is persuasive that sec-
tion 641 creates a rebuttable presumption-and not a con-
clusive one-which could be overcome by affirmative testi-
mony that the letter was not received. The General
Counsel had subpenaed the original of the letter from Re-
spondent and Respondent was unable to produce it. Re-
spondent's attorney asserted on the record that the letter
had not been seen before the day of the hearing when a
copy was tendered and he objected to the receipt of the
copy in evidence, inter aha, on the grounds that it was not
received by the Respondent. In these circumstances and
considering the manner in which the letter was "mailed"
by Reynolds by putting the letter m- his own mail box in
front of his house, and further considering the total ab-
sence of any mention of Reynolds letter by the Respondent
to him or anyone else, I view the evidence as insufficient to
show proof of receipt of the letter by-the Respondent.
In early December 1975, there was a conversation
among Thomas Mezger, Mark Mezger, Reynolds, and Pat-
ten at the DuFour office where employees punch the time-
clock.
According to Patten, Thomas Mezger explained that he
did not want a union so he would be able to maintain his
prices on selling feed and seed at a reasonable cost. He
asked Patten how he felt about the Union coming in and
Patten responded that he did not know whether they could
do better with Mezger or the Union. Mezger replied, "I'm
sure you can" and told him that after the Union was voted
out, they would be able to sit down and-negotiate "and
reach an agreement within 30 minutes to an hour that we
would not be able to reach with the Union in six months to
a year." Patten continued by testifying that Mezger told
them that Rodriguez had earlier demanded to see the
books to see what kind of money Bill Reynolds was,mak-
ing across the street. Either Thomas or Mark Mezger said
that if the facility went union, Rodriguez would be trans-
ferring across the street where there was more' overtime.
Reynolds spoke up and said that he knew that. Mezger also
said that Rodriguez was supposed to have turned in his
uncle Sammy to the Immigration Service and that his uncle
Sammy had gone to jail because of that.10 According to
10 At the hearing Rodriguez denied having done so
FARMERS GRAIN ELEVATOR
Patten, Thomas Mezger also told them they could have a
raise and a health and welfare plan, and "After the Union
was voted out we would be able to sit down and discuss
and reach an agreement." Patten asked if Rodriguez would
be able to sit at the negotiation table with them "and-that's
when he told us no matter which way the voting went,
Jimmy was going down the road."
Reynolds also testified with regard to that conversation.
He said that Thomas Mezger told them that Mezger knew
the union election was coming up and that he did not see
why reasonable men could not sit down and discuss their
problems without having a third party involved. According
to Reynolds, Mezger also mentioned that Mark Mezger did
not have a health insurance policy at the mill and that he
thought health insurance was a good thing; that on Mon-
day they would sit down and talk out their differences after
the union election was over. Thomas Mezger told them
that Reynolds knew how much money was in the business
and, what did they think was reasonable. Mark Mezger
brought in some papers showing the wage rates at another
company's warehouse. Reynolds responded that his broth-
er-in-law worked at a rice mill where the starting wage rate
was $5 an hour. Thomas Mezger said, "This was not a rice
mill. If I wanted to work at a rice mill, why didn't I go
there and go to work." Reynolds responded that he liked
his job where he was. Then Mezger said that Reynolds had
made a tremendous amount of money this year; asked if
Reynolds could estimate his earnings, and commented that
with the $500 bonus Reynolds would make quite a tremen-
dous amount of income for 1 year. Mezger said that on the
Monday following the election that they could sit down
and discuss all of their differences on wages and that he
felt a health and welfare plan was a good idea. Then Patten
asked if Rodriguez or any others were going to be in on the
discussion on the following Monday. According to Reyn-
olds, Mezger told them: "He said that Mexican was fired
no matter how the election came out." Mezger also told
them that Rodriguez had reported his own uncle to the
immigration authorities and that Rodriguez had demanded
to see the books to see how much money Reynolds had
made.
Later that same day, Reynolds told Thomas and Mark
Mezger that he and Patten had talked it over and that they
had decided not to go with the Union. The Mezgers made
no comment.
Thomas Mezger denied having made any threats or
promises of benefits. He described one occasion when
Reynolds and Patten voluntarily came in his office and
Reynolds told him that they had "some second thoughts
about the Union." Mezger said he asked Reynolds what
prompted him to join the Union and Reynolds told Mezger
that1e had hired someone off the street and paid him the
same wages as the employees there. Mezger 'also testified
that on one occasion he said to Reynolds, "Don't you think
you could do as well for yourself by coming and talking to
me as the Union could do for you?"
Mark Mezger testified that 2 or 3 days before the elec-
tion Reynolds volunteered that he had second thoughts
about going union and his father asked "whatever pos.
sessed him to ever want to join the Union." According to
Mark Mezger, Reynolds replied that Mezger-had hired a
569
man off the street and paid him the same as the employees.
Then, Thomas Mezger said, "Bill, don't you think that if
you would have come to us, you could have gotten the
same or done as well, than as if you had gone to the
Union?"
Mark Mezger also testified that the day before the elec-
tion Reynolds told his father that he had decided not to
vote for the Union.
For the reasons already discussed, I credit the testimony
of Patten and Reynolds regarding this matter. I recognize
that there are minor differences between the two in relating
the entire conversation which was lengthy, but I do not
view those variations as significant.
F. The Events on December 5, 1975
The Board-conducted election was held between 11 and
11:15 a.m. on Friday, December 5, 1975. Earlier that
morning about 8 o'clock, Reynolds had the first of several
conversations with Mark Mezger that day. Reynolds said
that he asked Mark Mezger what was going to happen to
Rodriguez if the Union was voted out. Mezger replied that
he did not feel that was any of Reynolds' business.
About 10 o'clock that morning Reynolds again ap-
proached Mark Mezger and again asked about Rodriguez.
Reynolds said he felt responsible for getting Rodriguez
into this "if you have to send him down the road." Reyn-
olds asked if Mezger could give the $500 bonus to Rodri-
guez and Mezger told him that he did not feel this was any
of Reynolds' business, "But there is one thing I want to
make clear: That is not `our' little Mexican, that is `your'
little Mexican."
About 5 minutes after the ballots were counted in the
election, Reynolds asked Mark Mezger what he would like
for Reynolds to do. Mezger told him to go over to' the seed
plant and clean the "dust house." ti
Reynolds proceeded to the seed plant where he was in
the process of emptying treated seed from a box when
Mark Mezger entered the warehouse and told, him, "I
thought I told you to get your f- a- down there and
clean that dust house." Reynolds replied, "Okay, Mark,"
and went to the dust house which was about 30 or 40 feet
away. When Reynolds arrived at the dust house, the fol-
lowing took place according to Reynolds' testimony:
Q. (By Ms. Hunt) What did he say?
A. "Do you know what you are? You are a dirty
son-of-a-bitch."
Q. Did you answer?
A. No.
Q. What did you do?
A. I proceeded to open the dust house. This is a
latch. I just open the door and let the dust come out.
i
Reynolds testified that he had performed this task a half-dozen times in
the past Reynolds began working in 1969 for the Respondent and contin-
ued working only during the seed season from June to November or De-
cember until June or July 1973 From that time on until December 5, 1975,
he worked regularly for the Respondent When he was not occupied with
seed cleaning, for which he was paid on a production basis, he did
warehousemen's work for the Respondent.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you have any difficulty opening the latch?
A. No.
Q. Did Mark help you open it?
A. No.
Q. After you opened the door, what did you do?
A. Proceeded to shovel the grain.
Q. Did Mark Mezger say anything further?
A. Yes.
Q. What was that?
A. I think his words were, "You are the most no-
good bastard I have ever know."
Q. Did you answer him?
A. I don't believe so.
Q. What did you do?
A. I proceeded to shovel the dust.
Q. What did Mark Mezger do?
A. He left then. He rather stormed out.
Q. About 10 minutes or so later, did anything hap-
pen?
A. Yes.
Q. What was that?
A. Mark returned.
Q. What, if anything, did he say?
A. He walked around on the' side of the box where
I was shoveling. He put his face about six inches to a
foot from mine-I'm not sure of the distance, but at
any rate, it was right up in my face, and screamed,
"You dirty bastard. You no-good son-of-a-bitch."
Q. How was he standing when he screamed this?
A. With his face right up to mine and his arms
raised up, fists somewhat doubled; you know, an atti-
tude of complete loss of temper.
Q. What did you say?
A. "Okay, Mark."
Q. What did Mark say?
'A. "Don't `okay' me, you son-of-a-bitch. Get to
work."
Q. What did you say?
A. "Okay, Mark."
Q. What did Mark say?
A. "You smart son-of-a-bitch."
Q. Did you say anything?
A. I said, "Okay. I give it to you, Mark. I can make
out my time."
Q. What did Mark Mezger say?
A. "Fuck you."
Q. What did you say?
A. Walked across the street to where the time clock
was at and punched my time clock and went home.
Q. Approximately what time was that?
A. About 11:30 or 11:45.
Reynolds testified that he and Mark Mezger were
friends and that he had never been cursed in the past by
either Mark or Thomas Mezger. He estimated that Mark
Mezger was 15 to 20 years younger than he was and he
concluded that he had to "either leave or fight."
On his State of California unemployment insurance
form, Reynolds answered the question: "Why are you no
longer working on your last job?" with the words: "I quit."
At the hearing on his unemployment claim, he said that he
had good cause to quit other than the cursing which in-
cluded, inter aha, his son's medical bills resulting from the
accident and the wages of his sons while they worked at the
Respondent's facility.
Mark Mezger gave an entirely different account of the
events which occurred after the counting of the ballots in
the election on December 5. According to him, the follow-
mg took place when he gave Reynolds a job assignment:
Q. (By Mr. Schuering) What did you tell him to do?
A. I told him to go over to the seed plant and clean
out the dust house.
Q. Would you relate what took place following
this? -
A. Oh, probably 10 or 15 minutes later I went over
to see if he needed any help; there was a door over
there that usually had pressure on it and you needed
help to open- it.
I went into the seed plant and Bill was standing in a
box elevated in the air, over another box, shoveling
grain from one box to the other.
Q. What did you do?
A. I said, "Bill, we have got to get the dust house
clean. Let's get it cleaned up." and I left.
Q. Did he respond to that-statement?
A. He said okay.
Q. Then what happened.
A. I came back about 10 minutes later and asked-
went over to' see if he needed help with the door; he
had the door 'open and he was shoveling the dust into
a box.-
I walked in and I turned around and started to walk
out. And, he said,, "I quit; I'm not going to do this
janitorial 'wo'rk."
'Q. Did you make any comment when you went
walking in?
A. No.
Q. Did you use any obscene language toward Mr.
Reynolds?
A. No.
Q. Did you cuss' him out?
A. No.
Q. Did you threaten him?
A. No.
Q. Were `you abusive?
A. No.
Q. What happened then?
A. I walked out of the building; got in my car and
drove down to the mill and from there I went to the
office. His card was laying on the desk. He had
punched out.
According to Mark Mezger, Reynolds had-donejanitori-
al work once or twice a week; cleaned the dust house two
or three tunes a year, and had never objected before to his
work. Mark Mezger said that they were friends; he knew
Reynolds' wife and children and that they had a friendly
working relationship at all times that Reynolds worked
there.
Thomas Mezger said that he spoke with Reynolds' wife
about December 3, 1975, when she came to the plant and
volunteered the following:
FARMERS GRAIN ELEVATOR
She said she had just heard of the union activities
and she was disturbed by it.
She didn't think the union was for the best interest
of her husband. She told us she didn't want him to
become involved and she was pretty sure he was going
to quit any way.
Thomas Mezger said that he then asked Ms. Reynolds
what he was going to do and Ms. Reynolds said-that Reyn-
olds had an offer for a job at a place known as "Fat City"
and also he had jobs trimming trees.
Reynolds denied telling anyone that he planned on quit-
ting work and denied discussing with anyone the possibili-
ty of going to work at "Fat City." Reynolds said that he
did perform tree trimming work during the winter time to
make extra money because he had 11 children. He said:
"My wife was worried that I was going to lose my job over
going along with this Union and my instigation of this
Union. And I told her that I could find other work."
After considering all of the foregoing and the entire re-
cord, I credit Reynolds' testimony. As pointed out earlier,
Mark Mezger's version of the events on December 5 is
improbable considered in the context of the union election
victory a few minutes earlier and in view of the fact that
Reynolds was performing one of his assigned tasks which
he had done previously without objection.
Ms. Reynolds was not called as a witness to testify re-
garding her conversation with Thomas Mezger and thus his
account of that conversation is undenied. In view of Reyn-
olds' testimony, it appears that his wife was expressing her
own opinion when she indicated that she was "pretty sure"
that her husband was going to quit work. At the hearing
Reynolds gave the appearance of being genuinely surprised
when asked about the establishment known as "Fat City"
and this is reflected in the transcript. As Reynolds ex-
pressed it, he was "slightly bum-fuzzled" by the question
from the Respondent's attorney. In the absence of any tes-
timony from Ms. Reynolds, I can only conclude that her
statement to Mezger about the job offer at "Fat City" was
based on her own notion or based on some misunderstand-
ing by her.
G. Events Subsequent to December 5
On Friday, December 19, 1975, Thomas Mezger told
Rodriguez to take Christmas week off. Rodriguez was not
paid for that time. He returned to work the following Mon-
day, December 29, 1975, and was told to go home around
noon. He was placed on vacation from Monday, January
5, 1976, to Monday, January 19, 1976. He worked the week
of January 19 and was laid off from work on Friday, Janu-
ary 23, 1976. Rodriguez said that he was told that ".. .
work had slowed down, and he was going to lay me off
until work speeded up."
Patten testified that he was asked to work overtime
hours on two Saturdays during November and December,
but he declined to do so. He said that the employees
worked close to 40 hours a week during those months, but
at times 38 hours, then'45 hours. He said that Robles, Aba-
los, and he worked during Christmas week and that during
the period of December 1975 through February 1976, he
571
saw Robles and Abalos performing work which Rodriguez
had done.
Thomas Mezger testified that no new employees had
been hired from the time that Rodriguez was laid off on
January 23, 1976, and the time of the hearing in this pro-
ceeding. He also said that no employees had been recalled
from layoff-during that time. He pointed out that Patten
also had quit work in that period of time. Mezger said that
the business had always had a slack season during the win-
ter months, but in 1975, due to the lack of cattle to be fed,
the business fell off drastically starting the first part of
October 1975. Mezger said with regard to the feed portion
of his business: "From the first of October through Decem-
ber, I'd say forty percent less than what it had been the
year before." In 1973 Respondent sold 74 million pounds
of cattle feed. In 1974 the total was 73 million pounds. In
1975 the total declined much further to 62 million pounds.
Company records show the following for the last 3 months
of the last 3 years in millions of pounds of feed:
1973 1974 1975
Oct. 6.2 8.2 4.9
Nov. 5.3 7.0 3.6
Dec. 4.9 6.2 5.1
Mezger said that the normal seed cleaning season would
be from July 1 through December 15, but because of the
unusually dry weather, the last seed was not delivered until
February 12, 1976, which was very unusual for the Respon-
dent.
Although he said that business had not picked up,
Thomas Mezger gave a raise of 50 cents an hour to his
employees in April 1976.
H. Final Conclusions
In view of the foregoing credited testimony, I find that
Thomas Mezger interrogated Patten on November 5, 1975,
about his union feelings and activities and again interro-
gated Patten and Reynolds in early December 1975 about
their union activities. I also find that Mark Mezger interro-
gated Patten on or about November 12, 1975, and further
interrogated Reynolds in mid-November 1975 concerning
their union activities. While the persons were on friendly
terms, the Board has recently stated in Quemetco, Inc, a
subsidiary of RSR Corporation, 223 NLRB 470 (1976):
A more serious error lies in the premise that a
"friendly" interrogation does not interfere with an
employee's Section 7 rights. An employee is entitled to
keep from his employer his views concerning unions,
so that the employee may exercise a full and free
choice on the point, uninfluenced by the employer's
knowledge or suspicion about those views and the pos-
sible reaction toward the employee that his views may
stimulate in the employer. That the interrogation may
be suave, courteous, and low-keyed instead of boisteri-
ous, rude, and profane does not alter the case. It is the
effort to ascertain the individual employee's sympa-
thies by the employer, who wields economic power
over that individual, which necessarily interferes with
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or inhibits the expression by the individual of the'free
choice guaranteed him by the Act.
Accordingly, I find the foregoing interrogations of em-
ployees violated Section 8(a)(1) of the Act. Furthermore,
the Board has held that although a union has been certified
as the collective-bargaining representative of employees, a
remedy for interrogation is still appropriate. Amoco Oil
Company, Marketing & Transportation Division, 223 NLRB
946 (1976).- -
I also find that Mark Mezger withdrew a previously of-
fered bonus of $500 to Reynolds in mid-November 1975 by
telling him that he could get his bonus from the Union. I
find that conduct violated Section 8(a)(1) of the Act.
In late November or early December 1975 Thomas Mez-
ger threatened Reynolds that employees who voted for the
Union would be discharged. I find this threat to have vio-
lated Section 8(a)(1) of the Act.
I further find that in early December Thomas Mezger
promised benefits, such as a raise and a health and welfare
plan, to Reynolds and Patten if the employees voted
against union representation in the Board-conducted elec-
tion. I find such a promise, conditioned on employees re-
jection of a collective-bargaining agent, to be violative of
Section 8(a)(1) of the Act.
With regard to Rodriguez, I conclude that the Respon-
dent reduced his working hours on and after November 6,
1975, and laid him off from work on January 23, 1976,
because of his union activities and, therefore, in violation
of Section 8(a)(1) and (3) of the Act. The timing of the
reduction in his hours on November 6 "is convincing evi-
dence of Respondent's unlawful motive." Highlight Equip-
ment Co., a Division of the Highway Equipment Company,
224 NLRB 918 (1976). In the instant case the timing of the
reduction took place the very next day after the Respon-
dent learned for the first time of the union organizing at its
facility. The proximity of Rodriguez' protected activity and
the reduction in his hours is clear. See Union Camp Corpo-
ration, Building Products Div., 194 NLRB 933 (1972).
In addition, the hiring of a new employee, Jesus Berarra,
contemporaneous with reducing the working hours of Ro-
driguez is inconsistent with the claim of lack of work. It
thus appears that work which Rodriguez would have per-
formed was shifted to Berarra for the short time that he
was there. Patten, however, testified that he thereafter ob-
served others performing work which Rodriguez had done
previously and also Patten testified that he was offered
overtime work on two Saturdays during November and
December. He also pointed out that employees were work-
ing close to the 40-hour schedule at that time, but some-
times 38 hours and sometimes 45 hours. In considering the
foregoing and the context of the independent violations of
Section 8(a)(1) found in this case, I also find that the layoff
of Rodriguez on January 23, 1976, violated Section 8(a)(1)
and (3) of the Act. Since there is evidence of a decline in
Respondent's feed business, it may be that Rodriguez
would have been laid off at some future point, even absent
any discrimination against him, although he had not been
laid off in the past after he began working a regular sched-
ule for Respondent. However, that is a matter for a back-
pay determination in the compliance stage. On the present
record" Patten observed that others performed work done
by Rodriguez at least through February 1976, and, accord-
ing to Thomas Mezger, the last seed was not delivered until
February 12, 1976. Also, according to the credited testimo-
ny of Rodriguez, his work at the Arbuckle facility was
pleasing to Dan Mezger who even suggested that Rodri-
guez might be a foreman there someday. Considering that
fact'and his longtime relationship with-,the Mezger family
and business, it appears that Rodriguez would have been
retained in employment, but for his union activities, which
I conclude resulted in his reduction in working hours and
eventual layoff from work.
With regard to Reynolds, I conclude that he quit work
involuntarily because of the language and manner used by
Mark Mezger towards Reynolds immediately after the
Board-conducted election on December 5, 1975. Since
Reynolds' leaving employment was involuntary and due to
the Respondent's conduct towards him because of his
union activities, I conclude that the Respondent construc-
tively discharged Reynolds on December 5, 1975, in viola-
tion of Section 8(a)(1) and (3) of the Act.
The timing of the confrontation by Mezger which pre-
cipitated Reynolds' quit is significant. It occurred just a
few minutes after the Union had won the election. It seems
to me that Mark Mezger said things to his friend which in
calmer circumstances, he would not have said in view of
their longstanding friendship. Nevertheless, considering
the timing of the incident and in the context of the inde-
pendent violations of Section 8(a)(1) of the Act, I conclude
that the Respondent constructively discharged Reynolds
because of his union activities and thus violated Section
8(a)(1) and (3) of the Act. With regard to providing for
reinstatement in "a difficult and awkward situation" where
personalities have clashed the Board has recently held in
Trustees of Boston University, 224 NLRB 1385 (1976):
As noted by the Administrative Law Judge, the re-
turn of a discriimnatee to the employ of a less than
receptive employer frequently leads to a difficult and
awkward situation. In this case, the apparent personal-
ity conflict between Schiffer and Stephanou will not
make any easier the restoration of the status quo prior
to the unfair labor practices. Nonetheless, the remedi-
al nature of the Act and its policy favoring reinstate-
ment to a discriminatee's former position outweigh the
difficulties attendant to Schiffer's returning to her for-
mer job. Where, as here, the employer's provocations
as well as its illegal discrimination contributed sub-
stantially to creating a suspicious and tense atmo-
sphere, the employer cannot allege that its own illegal
actions warrant restoring a discriminatee to a Job
other than his or her former one. The Board has long
held that an employer can restore a discriminatee to a
"substantially equivalent job" only when the
discriminatee's former job is no longer available. It is
a significant consideration that other employees be
made aware, through the discriminatee's return to his
or her former job, that their rights to engage in con-
certed activity are protected by the Act. Finally, de-
spite the difficulties, we believe it is incumbent upon
the employer, in order to comply with our Order, and
FARMERS GRAIN ELEVATOR 573
the discriminatee, in order to fulfill the legitimate job
requirements of the position to which he or she is to be
reinstated, to attempt to work together harmoniously
and forget past animosity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Thomas Mezger d/b/a Farmers Grain Elevator is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers, Local 150, of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union sympa-
thies, activities, and desires, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By withdrawing a previously offered bonus to an em-
ployee because of his union activities, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By telling an employee that employees who voted for
the Union in a Board-conducted election would be dis-
charged, the Respondent has engaged in unfair labor prac-
tices within the meaning, of Section 8(a)(1) of the Act.
6. By promising benefits to employees, such as a raise
and a health and welfare plan, conditioned upon the em-
ployees' rejection of a collective-bargaining representative,
the Respondent has engaged in unfair labor practices with-
in the meaning of Section 8(a)(1) of the Act.
7. By reducing the working hours of James E. Rodriguez
from on and after November 6, 1975, and by laying off
Rodriguez from work on or' about January 23, 1976, be-
cause of his union activities, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
8. By constructively discharging Billy G. Reynolds on or
about December 5, 1975, because of his union activities,
the Respondent has engaged in unfair labor practices with-
in the meaning of Section 8(a)(1) and (3) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I, shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
Having found that the Respondent unlawfully reduced
the working hours of James E. Rodriguez and subsequently
laid him off from work, and also constructively discharged
Billy G. Reynolds, I shall recommend that the Respondent
offer to each of them immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to their se-
niority or other rights and privileges. I shall also recom-
mend that the Respondent make them whole for any loss
of earnings suffered as a result of the discrimination
against them by payment to them of sums of money equal
to that which they normally would have earned as wages
from the dates of the discrimination against them until said
offers of reinstatement, less net earnings during such peri-
od. Backpay is to be computed on a quarterly basis in the
manner prescribed by the Board in F W. Woolworth Com-
pany, 90 NLRB 289 (1950), and with interest thereon as
prescribed by the-Board in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
In view of the nature of the Respondent's unfair labor
practices found herein, I shall recommend that the Re-
spondent cease and desist from infringing in any other
manner on the rights of its employees guaranteed by Sec-
tion 7 of the Act. Brom Machine and Foundry Co., 222
NLRB 74 (1976); SKRL Die Casting, Inc., 222 NLRB 85
(1976); N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4, 1941).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER12
Respondent Thomas Mezger, d/b/a Farmers Grain Ele-
vator, Dufour, California, his agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating employees about their union sympa-
thies, activities, and desires.
(b) Withdrawing a previously offered bonus to an em-
ployee because of his union activities.
(c) Telling employees that employees who vote for a
union in a Board-conducted election would be discharged.
(d) Promising benefits to employees such as a raise and
a health and welfare plan, conditioned on his employees
rejection of a collective-bargaining representative.
(e) Reducing the working hours of employees, laying
them off from work, or constructively discharging employ-
ees because of their union activities.
(f) In any other manner interfering with, restraining, or
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing his employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer James E. Rodriguez and Billy G. Reynolds im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges.
(b) Make whole James E. Rodriguez and Billy G. Reyn-
olds for any loss of earnings suffered by them as a result of
the discrimination against them in the manner set forth in
the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze and compute the amounts of backpay due
under the terms of this Order.
(d) Post at its DuFour, Woodland, and Arbuckle, Cali-
fornia, facilities copies of the attached notice marked "Ap-
pendix." 13 Copies of the said notice, on forms to be pro-
vided by the Regional Director for Region 20, after being
duly signed by the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date, of this Order, what steps
the Respondent has taken to comply herewith.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, the National Labor Relations Board
found that we violated the National Labor Relations Act
and has ordered us to post this notice.
The Act gives employees the following rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representatives
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT question our employees about their
union sympathies, activities, or desires.
WE WILL NOT withdraw a previously offered bonus to
our employees because our employees engage in activ-
ities in behalf of Chauffeurs, Teamsters and Helpers,
Local 150, of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
WE WILL NOT tell employees that employees who
vote for a union in a Board-conducted election will be
discharged.
WE WILL NOT promise benefits to employees, such as
a raise and a health and welfare plan, conditioned on
our employees rejection of a collective-bargaining rep-
resentative.
WE WILL NOT reduce the working hours of our em-
ployees, lay off employees from work, or constructive-
ly discharge our employees because of their activities
in behalf of Chauffeurs, Teamsters and Helpers, Local
150, of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL offer James E. Rodriguez and Billy G.
Reynolds immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges.
WE WILL pay to James E. Rodriguez and Billy G.
Reynolds the amounts of money which they lost as
wages as a result of the discrimination against them
together with 6-percent interest.
WE WILL NOT-in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
THOMAS MEZGER d/b/a FARMERS GRAIN ELEVATOR