M.F.A. Milling Co.

National Labor Relations Board - Board Decisions

Apr 5, 1968

170 N.L.R.B. 1079 (N.L.R.B. 1968)

M.F.A. MILLING COMPANY 1079
M.F.A. Milling Company and Laborers Interna-
tional Union of North America, AFL-CIO, Local
Union No. 676. Case 17-CA-3082
April 5, 1968
DECISION AND ORDER
On September 26, 1967, Trial Examiner Sidney
S. Asher, Jr., issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended that such al-
legations be dismissed. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief. The Charging Party filed
cross-exceptions to the Trial Examiner's Decision
and a supporting brief.
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, cross-ex-
ceptions, and 'the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as herein
modified.
Employee Larimer' s 8(a)(3 ) Transfer
As more fully set forth in the attached Trial Ex-
aminer's Decision, employee S. Dean Larimer was
discriminatorily transferred from his previous job in
the laboratory to a more onerous job in the
warehouse. Larimer had a history of back trouble
known to Respondent. Nevertheless, because of his
active support of the Union, Respondent trans-
ferred Larimer to a more arduous job which
required continual heavy lifting. On his second day
in the warehouse, Larimer, while lifting a 100
pound sack, slipped and fell off the loading dock.
The sack fell upon him and further aggravated his
preexisting back condition. As a direct result of this
industrial accident, Larimer worked intermittently
in the warehouse for the next few months and, ulti-
mately, he was forced to cease work completely
because of the severe pain he experienced when
lifting.
The Trial Examiner found, and we agree, that the
aforementioned transfer constituted a violation of
8(a)(3) of the Act. Nevertheless he also found that
"for purposes of this proceeding ... the Respon-
dent was in no way responsible for the accident."
After his accident, Larimer became physically in-
capable of performing either the warehouse job, or
his previous job in the laboratory, until March 1,
1967 (almost 9 months after the transfer).
Larimer's laboratory job had included some degree
of lifting but, on approximately March 1, 1967, it
was changed so that it no longer required any lift-
ing. As Larimer could physically perform the
reconstituted laboratory job, the Trial Examiner
recommended that he be reinstated. However the
Trial Examiner awarded backpay only from March
1, 1967. We do not agree that the backpay award
should be tolled during the period of Larimer's dis-
ability.
Larimer was discriminatorily transferred on June
10, 1966, and suffered the aggravated injury to his
back on his second day in the warehouse. His
transfer to a job requiring heavy lifting was accom-
plished with Respondent's full knowledge of
Larimer's physical handicap and, as found by the
Trial Examiner, was motivated by the Respondent's
desire to penalize him for his union activities. The
resulting industrial accident rendered Larimer
physically incapable of sustained work performance
either in the warehouse job or the laboratory job as
it was then constituted.
In American Manufacturing Company of Texas,'
we modified our previous rule that claimants were
not to be allowed backpay during any periods of
disability, regardless of the cause. The Board there
held that a truckdriver, who was injured in the
course of interim employment he was forced to
seek because of an 8(a)(3) discharge, was entitled
to backpay for a period of disability. We stated,
inter alia:
The causes of such ailments [injuries resulting
from industrial accidents during interim em-
ployment] are known and attributable to
events which would not have taken place, or to
environmental factors which would not have
been present, had the employee not been un-
lawfully removed from his employment in the
respondent's plant. Although other extended
disabilities might have occurred absent
discharge, this is not a normal expectancy, and
hence, a discriminatee would not reasonably
have been expected to suffer the industrially
caused ailment and consequent pay loss if he
had retained his former employment.
The instant case falls well within the limits of the
1167NLRB520.
170 NLRB No. 111
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforenoted causal relationship. Respondent's un-
lawful transfer of Larimer placed him in a situation
where the risk of injury to his back was markedly
increased. As it illegally set these environmental
factors in motion, Respondent cannot successfully
disclaim liability for their consequences. Therefore,
under the circumstances of this case, we find that
the Respondent was responsible for aggravating
Larimer's back condition and that it is not entitled
to have Larimer's backpay tolled where Respon-
dent's own unfair labor practice caused the in-
capacitating injury to Larimer. Accordingly, in
order to make him whole for compensation lost as a
result of Respondent's unfair labor practice con-
duct, we shall order that Larimer be awarded
backpay from the date of his 8(a)(3) transfer, June
10, 1966. As indicated by the attached Trial Ex-
aminer's Decision, the Respondent shall also be
required to reinstate Larimer to his former job in
the laboratory, as this job is substantially equivalent
to the job from which he was discriminatorily trans-
ferred.
Reimbursement for Employee Members of
Negotiating Committee
The Trial Examiner also found that the Respon-
dent violated Section 8(a)(5) of the Act by refusing
to bargain in good faith with the Union after it had
been duly certified. The Trial Examiner concluded,
and we agree, that "the Respondent from the
beginning of negotiations deliberately pursued a
course of conduct designed to frustrate bargaining
and make all negotiations a fruitless waste of time."
He recommended, inter alia, that Respondent be
required to reimburse the employee members of
the union negotiating committee2 for wages lost
while attending past negotiating sessions. He also
recommended that the remedy be applied to any
future sessions in which the Respondent pursues its
bad-faith conduct.
As a result of Respondent's 8(a)(5) conduct, the
employee members of the negotiating committee
did not receive the compensatory benefit of good-
faith bargaining for which they sacrificed their
wages. Since the Respondent never had any inten-
tion to bargain in good faith, it deliberately
deprived the employees of their wages as well as of
this anticipated benefit. Therefore, we believe it is
appropriate that, in order to make these employees
whole, they be reimbursed for wages lost while at-
tending those past negotiating sessions and we shall
adopt the Trial Examiner's remedy to this extent.
However, we believe that it is inappropriate to
apply the remedy, at this time, to any future
negotiating sessions, since that will require a later
determination as to whether they are conducted in
bad faith.
Mailing of Notices
The General Counsel and Union, citing H.W.
Elson Bottling Company,3 requested that the
Respondent be required to mail a copy of the
notice to each employee. The Trial Examiner found
the Elson case distinguishable and its remedy inap-
propriate in the context of the instant case. There-
fore, he denied the request. Although the Elson
decision is somewhat factually distinguishable, the
essential remedial problem presented, i.e., attempt-
ing to neutralize the effect of aggravated unfair
labor practice conduct, is similar. In view of the na-
ture and scope of Respondent's unfair labor prac-
tice conduct, we believe the mailing of notices is an
appropriate remedy in the instant case.
Respondent, from the initiation of the Union's
organizational campaign, has continually pursued a
course of conduct which totally contravenes the
fundamental purposes of the National Labor Rela-
tions Act. It has interrogated, threatened, harassed,
and discriminated against union adherents. It has
steadfastly refused to bargain with the duly certified
Union, and has otherwise made known to its em-
ployees its rejection of the principle of collective
bargaining.
Accordingly, in order that Respondent's em-
ployees be fully apprised of our finding herein, and
of their rights under the Act, we shall require the
Respondent to mail a copy of the notice to all per-
sons in its employ on the date of the receipt of this
Decision and Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
M.F.A. Milling Company, Springfield and Aurora,
Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified.
Y The Trial Examiner excluded Lanmer, who was a member of the
negotiating committee , from this aspect of the remedy In view of our
disposition of other issues relating to Larimer's physical incapacity, we
hereby include him in this portion of the remedy However, under no cir-
cumstances is Larimer to receive double compensation for any period of
time incorporated in the determination of his backpay award
3 155 NLRB 714
" Member Fanning does not agree that this case presents an appropriate
factual situation in which to require the mailing of notices to all employees
M.F.A. MILLING COMPANY 1081
1. The following paragraph 1(h) is added to the
Recommended Order. "(h) Refusing to bargain
collectively with Local Union No. 676, Laborers In-
ternational Union of North America, AFL-CIO, as
the exclusive representative of its employees in the
unit described. The appropriate unit is:
All production and maintenance em-
ployees, laboratory employees, and
truckdrivers employed at the Respon-
dent's Springfield, Missouri, and Aurora,
Missouri, plants, excluding office clerical
employees, professional employees,
guards, and supervisors as defined in the
Act.
Paragraph 1(h) of the Recommended Order is
accordingly renumbered paragraph 1(i ).
2. Insert in paragraph 2(a) of the Recommended
Order after the phrase "bargain collectively" the
phrase "in good faith."
3. Amend paragraph 2(c) of the Recommended
Order to read as follows:
"(e) Make whole each employee member of the
negotiating committee of the above-named labor
organization for earnings lost while attending past
bargaining sessions (excluding the session held on
March 23, 1967), with interest thereon at the rate
of 6 percent per annum."
4. Substitute the date "June 10, 1966," for the
date "March 1, 1967," in paragraph 2(g) of the
Recommended Order.
5. The following paragraph 2(k) is added to the
Recommended Order.
"(k) Mail to each person employed at its plants
in Springfield and Aurora, Missouri, on the date of
the receipt of this Decision and Order, copies of the
attached notice marked "Appendix."
Paragraph 2(k) is accordingly renumbered 2(1).
6. The thirteenth indented paragraph of the
notice attached to the Trial Examiner's Decision
marked "Appendix" is amended to read as follows:
WE WILL reimburse the employee members
of the Union's negotiating committee for wages
lost while attending past negotiating sessions,
with 6, percent interest.
7. The fifteenth indented paragraph of the at-
tached notice marked "Appendix" is amended to
read as follows:
WE WILL reimburse S. Dean Larimer for any
loss of pay caused by our discriminatory
transfer of him, with 6 percent interest.
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner: On
December 5, 1966, Laborers International Union of
North America, AFL-CIO, Local Union No. 676,
herein called the Union, filed charges against
M.F.A. Milling Company, Springfield and Aurora,
Missouri, herein called the Respondent. On Febru-
ary 28, 1967, the General Counsel of the National
Labor Relations Board issued a complaint alleging
that since on or about June 20, 1966, the Respon-
dent has failed and refused to meet and discuss and
negotiate in good faith with the Union with respect
to terms and conditions of employment of the
Respondent's employees in an appropriate unit,
although requested to do so, and although the
Union was then, and has been at all times since, the
exclusive collective-bargaining representative of all
employees in the unit. The complaint also alleges
that since on or about June 5, 1966, the Respon-
dent, by certain specified conduct, has interfered
with, restrained, and coerced its employees in the
exercise of rights guaranteed them in Section 7 of
the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq.), herein called the Act. It is
further alleged that on or about June 5 and 10,
1966, the Respondent transferred its employees, S.
Dean Larimer and James Jackson, to more onerous
job tasks and since then has failed and refused to
reinstate them to their former positions, and since
on or about October 12, 1966, has failed and
refused to rehire Larimer; on or about October 31,
1966, transferred its employee George A. Jones to
more onerous job tasks and failed and refused until
approximately November 14, 1966, to reinstate him
to his former position of employment; on or about
June 15, 1966, imposed more onerous work rules
upon its employee, William Hamblin, and since
then has failed and refused to revoke said work
rules, all because of the said employees' member-
ship in, adherence to, and activities on behalf of the
Union. It is alleged that such conduct violated Sec-
tion 8(a)(1), (3), and (5) of the Act. Thereafter,
the Respondent filed an answer admitting the ap-
propriateness of the unit set forth in the complaint,
and admitting that the Union represented a majori-
ty of the employees in the said unit, but denying the
other allegations of the complaint.'
Upon due notice, a hearing was held before me
on March 22, 23, and 24, 1967, at Springfield, Mis-
souri. All parties were represented and participated
fully in the hearing.' Before the testimony of any
witness had been taken, the hearing was temporari-
ly recessed in order to permit the Respondent and
the Union to engage in collective bargaining, at the
end of which the hearing was resumed. At the close
of the General Counsel's case-in-chief, the Respon-
dent moved to dismiss the complaint in its entirety
for lack of evidence. The motion was denied. The
' The Respondent also filed a request for a bill of particulars Thereafter
Trial Examiner Charles W Schneider granted the motion in part and de-
nied it in part The General Counsel then complied by furnishing certain
detailed information.
' At the beginning of the hearing, the General Counsel withdrew so much
of the complaint as alleged discrimination against Jackson, and also
amended the complaint in several other respects.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel moved "that the Trial Examiner
rule at this time ... that there have been violations
of Section 8(a)(5)." The motion was denied as pre-
mature. At the close of the hearing the Respondent
again moved to dismiss the complaint in its entirety
for insufficient proof. Ruling on this motion was
reserved. It is now denied for reasons set forth
below. The General Counsel renewed his "motion
for summary judgment based upon the evidence"
under Section 102.45 of the Board's Rules and
Regulations, Series 8, as amended, with respect to
the allegation that Section 8(a)(5) of the Act had
been violated by Respondent. The motion, which
would in effect have required me to decide that
particular issue "from the bench," was denied.
After the close of the hearing, all parties filed
briefs. These have been duly considered.
Upon the entire record in this case,3 and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it
is found that the Respondent is, and at all material
times has been, an employer engaged in commerce
as defined in the Act, and its operations meet the
Board's jurisdictional standards; and the Union is,
and at all material times has been, a labor organiza-
tion within the meaning of the Act.
A. The Setting
At all material times, the Respondent has main-
tained plants at Aurora and Springfield, Missouri.
The combined complement of both plants exceeds
300 rank-and-file employees. Each plant operates
on the basis of two shifts daily.
In April or May 1966, the Union began a cam-
paign to organize the employees of both plants. On
May 17, 1966, the Union filed with the Board a
petition seeking to represent a unit composed of
employees of both plants (Case 17-RC-5089). The
Respondent notified the employees that "Manage-
ment [and the] Board of Directors ... are very
strictly opposed to having these Labor Unions
representing our employees" and urged them to
vote against the Union. A Board-conducted elec-
tion was held on June 8,6 which the Union won.
B. Interference, Restraint , and Coercion
1. By J. F. Johnson
J. F. Johnson is, and for over 30 years has been,
general manager of both plants and the highest offi-
cial of the Respondent directly active in manage-
ment. The complaint alleges , the Respondent stipu-
lated, and it is found that he is, and at all material
times has been, a supervisor within the meaning of
the Act.
a. Contentions of the parties
The complaint, as amended at the hearing, al-
leges and the answer denies that on or about June 7
J. F. Johnson kept "under surveillance, or
create[d] the impression of surveillance of, the
concerted activities of the employees"; and that on
June 6 and 7 he "threaten[ed] employees with
discharge, or other reprisals, if they became or
remained members of the Union, or gave any
assistance or support to it." Elaborating on these al-
legations in his response to order on motion for bill
of particulars, the General Counsel further alleges
that on or about June 7 J. F. Johnson told an em-
ployee "that said employee's exercise of rights
granted in ... the Act was futile," because the
Respondent "would ... successfully frustrate all
concerted efforts of its employees" and that on or
about June 6 he "delivered a speech to all em-
ployees which ... constituted a threat to all em-
ployee's [sic] tenure of employment and existing
privileges at the plants."
b. Discussion with Tatum
On June 7, the day before the election, Glenn
Tatum, an employee in the chemical laboratory of
the Springfield plant, was approached in the plant
during working hours by Richard L. (Dick)
Matthews, his immediate superior. Matthews asked
Tatum his opinion of the Union. Tatum responded,
evasively, that there were "still some unanswered
questions in [his] mind." Tatum added: "I un-
derstand that Mr. Johnson has my name as a union
pusher." Matthews answered: "Yes, that is right. I
didn't know it until yesterday."' Shortly after that,
in the plant, Tatum told Orlin Mapes, another su-
8 On motion of the General Counsel, the transcript was amended by
order dated May 8, 1967. On May 29, 1967, the transcript was further cor-
rected. On June 8, 1967, Trial Examiner's Exhibits I and 2 were received
into evidence without objection and made part of the record herein
The Respondent is, and at all material times has been , a Missouri cor-
poration operating as a cooperative association, with its principal offices
and places of business at Aurora and Springfield, Missouri, where it is en-
gaged in processing grain and animal feed products for patron members,
who are located both inside and outside the State of Missouri. The Respon-
dent's gross sales exceed $500,000 annually, it annually ships products
valued at more than $50,000 directly to destinations outside the State of
Missouri. It annually purchases goods and/or services valued at more than
$50,000 directly from sources outside the State.
s On June 2, 1966, the manager of both plants informed the Respon-
dent's board of directors, at their monthly meeting, that the Union was at-
tempting to organize the employees of both plants, that the National Labor
Relations Board would conduct an election on June 8, and that "manage-
ment was conducting a very vigorous campaign to influence the employees
to vote against unionization."
s Hereafter, all dates refer to the year 1966, unless otherwise noted,
The findings regarding this conversation are based on Tatum's unde-
nied testimony Although Matthews testified, he did not mention this par-
ticular incident.
M.F.A. MILLING COMPANY 1083
pervisor : "Mr. Mapes , you know someone turned
my name in to Mr . Johnson as being a union
pusher ." Mapes asked : "Well, are you?" and Tatum
replied , again evasively : "What do you think?"
Mapes said: "Well, if I wasn 't, I'd go talk to Mr.
Johnson and get it straightened out." Tatum then
remarked that he (Tatum ) "couldn't get in to talk
to Mr . Johnson, " and left .8 Within a half hour
Matthews told Tatum that J. F. Johnson wanted to
see him . When Tatum asked why , Matthews
replied : " Mr. Johnson ... has understood that [you
are] a union pusher . Then he found out that the in-
formation was wrong and he wanted to
straighten it out ." Tatum then proceeded to J. F.
Johnson 's office . J. F. Johnson explained "that he
had gotten (Tatum 's] name as a union pusher and
then he understood that the information was wrong
and he wanted ... to get it straightened out."
Tatum replied that he was " deeply hurt because
there are some idiots working here that don't know
enough to keep their mouths shut ." There followed
a discussion of the advantages and disadvantages of
union representation . Tatum complained at length
that he had not received a pay raise since 1959.
Finally, he asked J . F. Johnson "what good it would
do [the employees ] to vote against the Union." J.
F. Johnson responded that it would not do any
good "because he wasn 't going to give the Union
five minutes of his time or sign a contract either."
The interview ended with J. F. Johnson expressing
the hope that Tatum would vote against the Union
in the forthcoming election.9
I conclude that the conduct of J. F. Johnson in
recounting his understanding , originally, that
Tatum was a "union pusher ," clearly implied that
Johnson was keeping informed of Tatum 's union
activities and thereby fostered the impression of
surveillance in violation of Section 8(a)(1) of the
Act.1° In addition, J. F. Johnson's statement that he
was not going to give the Union 5 minutes of his
time or sign a contract was, under settled Board
policy, tantamount to an announcement that the
Respondent had no intention of negotiating in good
faith or entering into a collective-bargaining agree-
ment even if the Union were to be designated by a
majority of the employees , and as such was viola-
tive of Section 8 (a)(1) of the Act.u
c. The speeches
On June 6 and 7 J. F. Johnson spoke to the as-
sembled employees on each shift at both plants. In
all, he made the identical speech four times. On
June- 6 -the Respondent mailed copies of this talk to
all its employees. The speech read:
MY FRIENDS AND FELLOW EMPLOYEES
OF THE M.F.A. MILLING COMPANY:
Over the past several years I have talked with
you people, in groups, a great many times,
about different things. But most of the times I
think that I have talked with you as a group it
has been to discuss and advise with you about
the operation of the M.F.A. Milling Company
and each year, for about the past 20 years, to
tell you that I had recommended the payment
of a Bonus to the M.F.A. Milling Company
Employees and that I was glad to tell you that
the Board had authorized the payment of the
Bonus.
Today though, Gentlemen, I need to talk with
you about something that is not quite so
pleasant. This union situation.
Because the Law is just a bit technical on it, I
am going to read what I have to say to you. So
far as the Employer is concerned, the Law
prohibits us from making any kind of threats to
the Employees, if they did vote for the Union
(but we would not do that anyway). Likewise,
we are not allowed, by Law,- to make any
promises if you vote against the 'Union. The
Union and it's Business Agents and Organizers
are pretty irresponsible-here today-and
gone tommorrow-and it would be almost im-
possible to try to control the irresponsible, wild
and untrue statements and threats they con-
tinuously make.
As the Manager of the M.F.A. Milling Com-
pany, I feel, frankly, that it is my responsibility
to talk with you and especially to straighten
out and clear some op the misstatements,
claims, threats, and plain falsehoods, that have
been made to you recently by the Union Busi-
ness Agents and Organizers, who are so greatly
interested in you and I know, they're interested
in getting their hands in your pockets and tak-
ing a bunch of money off of you in the way of
dues, fines and assessments.
Not only do I feel the responsibility as your
Manager, but also I feel responsible in talking
with you because of the fact that I know the
thousands of farmers who own and operate this
8 These findings are based on Tatum's undenied testimony Mapes did
'not testify.
9 These findings are based on Tatum's credited testimony, corroborated
in part by that of Johnson . Johnson flatly denied stating that he was not
going to give the Union 5 minutes of his time or sign a contract . His denial
in this respect was not convincing and is not credited.
10 The impression of employer surveillance was probably implanted in
Tatum's mind before the events described above and in that sense perhaps
this impression was not shown to have been "created " by Johnson, as al-
leged in the complaint. But Johnson undoubtedly fostered this impression
and I do not find the variance between " fostering" and "creating" to be
fatal.
i' Arkansas Grain Corporation, 166 NLRB 11 1, I find no merit in the con-
tention voiced in the Respondent's brief that anything which occurred
prior to the election became "merged in the election , itself" and is there-
fore of no "present significance."
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization have such a strong feeling about
this thing.
Actually, if I were here today as_ Manager or
representing a private corporation, our attitude
might be different, then we might be inclined
to make a SOFT, EASY, deal with the Labor
Union Business Agents. In that case, we might
give them some kind of a Union Shop Contract
so that all of the employees would have to pay
Union dues. Gentlemen, I want you to know,
emphatically, that I do not represent that kind
of thinking or that kind of an organization.
One thing I want to make perfectly clear. The
Union has told you the Milling Company
would be unionized and that all of the em-
ployees would have to belong to the Union, the
Milling Company would have to sign a "Closed
Shop Contract" or something to that effect.
This is all absolutely untrue-we would posi-
tively never sign a Closed Shop Contract with
any Labor Union. I want to tell you here and
now, and get this mighty straight-so long as I
am Manager of this Organization, not one sin-
gle man will ever have to join the Union if he
doesn't want to-and should the Milling Com-
pany be unionized, but I ,don't think it ever will
but just assuming the worst, that it might be, I
want you to know, Gentlemen, that employees
working here, who do not belong to the Union,
and a lot of you I know never would, I can as-
sure you, and remember this, no Union man or
Union member will ever get any perferential
treatment over you IN ANY WAY.
One of the things the Union has told you
recently is, that any more the farmers would
not be concerned in the operation of these
plants should they "The Union" call a Strike.
They mention some Farmer's Organization,
other than the M.F.A. Organization, but we
want to tell you that a very high per cent of the
farmers living in the area served by the M.F.A.
Milling Company belong to and are members
of the Missouri Farmers Association and that's
the organization of Farmers who own and
operate these plants and don't let anyone for a
minute tell you but what they would be just as
determined as ever that these . plants would
continue to operate in event of a strike.
Our farmers have got too much at stake, not
only in these plants, but in their supplies of
these good M.F.A. Feeds, continuously going
out for their poultry, dairy and livestock. Just
Sunday morning, I was talking with a good
farmer down near Mount Vernon. He men-
tioned he had noticed an article in the paper
that the Milling Company was going to have a
Union election. He said he thought we had
made a mistake by not publicizing this thing
sooner so that the farmers could be informed.
He said he was confident they would have been
anxious to have used their influence in talking
with the employees to ask you to vote against
this Union thing. I think the man was -right.
One thing that I want to call to your attention,
which you might not have .thought of., Down
through the years, when the Milling Company
has had these various clashes with the Labor
Unions, and invaribly without exception, the
Unions have lost. As a result of those labor
clashes, a Strike at our Springfield Plant in
1942, the Union lost; a Strike at-our Aurora
Plant in 1951,, the Union lost; an attempted
blockade of our Springfield Plant in, 1939, it
failed; a Union election at our Springfield Plant
in 1949, that went against the Union 87 votes
to 3 votes.
Without exception, the publicity from these
things, the records show, the volume of M.F.A.
Feeds increased unusually strong during those
times. I think one of the main reasons is that it
brings more farmers to the realization that this
is a farmers organization and that the Board of
Directors they have elected and the Manage-
ment, are determined that it shall be operated
by the policies of these farmers and for their
best interest and that it shall never be operated
or directed by a bunch of Union Business
Agents and Organizers that have only the in-
terest of collecting money off the employees.
These farmers know that if this should come
about, this money that goes from the em-
ployees to the Union Business Agents would,
indirectly, come off the farmers in their cost of
feeds. Recently, the Unions have, in line with
their usual policies, tactics and methods, tried
to discredit the Management of the M.F.A.
Milling Company. They have said in some of
their letters they sent out to you, that without
the Union you couldn't get a raise in wages.
How silly, or how dumb can they be to insult
your intelligence this way.
These Union Organizers question the truthful-
ness or promises of the Management of the
M.F.A. Milling Company. I think that too is an
insult to your intelligence. The -records plainly
show as^to the honesty and truthfulness of the
Management and policies of the M.F.A.
Milling Company. (I also think the articles we
read most every day in the- papers and hear
over the news pretty plainly shows the
dishonesty, untruthfulness and complete ir-
responsibility of most of these Union Business
Agents.) But; just to bring immediately to your
mind, let me quote some things.
M.F.A. MILLING COMPANY 1085
I have been Manager of the Milling Company
for 31 years the end of this June. During that
time we have brought the volume of M.F.A.
Feeds from 350,000 bags a year to an average
of about a million bags per month, or twelve
million bags a year. We have built these fine
plants and facilities at Springfield and Aurora,
we have established warehouse plants at Man-
sfield, Willow Springs, Cuba, Dixon, and Gol-
den City, Missouri, and one at Rogers, Arkan-
sas, and are in the process of establishing
another one at Pyatt, Arkansas.
These- facilities I have mentioned are as fine
and modern as are available today for the
production of good feeds and this volume of 12
million bags a year is tremendous, but as I have
told you men before, the thing which I think is
even more important than this is that during
these years we have developed and put
together, fine, effective, productive people-
and I mean YOU PEOPLE that I am talking to
right now.
Of this organization, substantially over half of
the total employees have been with this or-
ganization for more than five years; substan-
tially over one-third more than 10 years and a
great many for 15, 20, and 25 years. Now then,
let me ask you a perfectly frank question that
you must answer within yourself before you
vote in this election on Wednesday of this
week-Who do you think would have the best
interest in developing a fine organization of
good people with the M.F.A. Milling Com-
pany-for sure, you can't develop that kind of
an organization with mis-treatment, without
paying good wages and without good working
conditions. Do you think the Management and
Board of Directors would have the best interest
of developing this kind of an organization with
good people, or do you think these Union Busi-
ness 'Agents who are only trying to collect
dues, fines and assessments off of you, would
have the best interest?
Surely, surely, you Gentlemen have the right
answer to that and emphatically will give this
Union thing a resounding and overwhelming
vote of NO in this election.
The Union Business Agents tell you, in their
letter, you don't have a chance to get a raise
without their help. If that isn't an outright and
absurd lie there can't be one.
When I came here as Manager of the Mill, and
of course times and things were different then,
but the men in the-warehouse at that time were
receiving 35 cents an hour and in the Mill 40
cents an hour. The changes and increases in
wages over this period of years have been
gradual of course but you know what the
wages are today and right here I will say-we
don't claim to be the highest paid place in the
country but since this Union thing has come
up, a good many of you good solid employees
have come to me and expressed your apprecia-
tion for working for the Milling Company.
Some of you have said you realize you are not
receiving the highest wages in the country but
that you have steady employment the year
around, which is absolutely true. You are not
being continuously confronted by being layed
off.
Effective January 1st, this year, the M.F.A.
Milling Company adopted an Insurance Policy
with a strong, in fact, one of the best known In-
surance Companies in this Country, to handle
our Group, sickness and hospitalization In-
surance, with very broad and good coverage,
and with this we made this change: Prior to
January 1st, of this year, the employees had
paid their own group insurance for their own
hospitalization insurance. (You will not con-
fuse this with Workmens Compensation which
is always paid for by the Company.) This
Group Insurance , prior to this time , had been
paid for by the Employee. Effective January 1,
1966, the M.F.A. Milling Company started
paying this Group Insurance for the Employee.
You have the choice of whether or not you
want to carry it for your dependents. Do you
think the Union could lay any claim for having
had any part in getting this for you? They
would, of course, try to make that claim if they
thought they could.
Another thing that I want to make sure you un-
derstand and that is the Bonus that has,been
paid to the M.F.A. Milling Company Em-
ployees each year for the past several years, in
fact, beginning with the year 1947. During that
time the total of this employee's Bonus has
amounted to about One Million Dollars. What
has the Union had to do with that? Have you
ever wondered whether or not you would have
received that Bonus if the Union had been in
these plants all of that time?
Well, now, let me tell you how that's handled.
Each year it's been paid, the Manager of this
M.F.A. Milling Company, that these Union
Business Agents try to slur and make fun of, to
you, has recommended to the Board of
Directors that this Bonus be paid to the em-
ployees. The Board EVERY TIME accepted
my recommendations and authorized the pay-
ment. I don't know if these same Business
Agents, who are presently trying to get their
hands in your pocket, would have even-recom-
mended the payment of a Bonus but if they
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had, I believe all of us would question the reac-
tion of the Board of Directors . But let me tell
you this: During this same period of time, had
these plants been unionized , based on the esti-
mated dues and initiation fees, fines and assess-
ments, I would say a very conservative figure,
is to say these Union Business Agents would
have taken at least a Million Dollars off of you
during this time , from 1947 up to date-(it
probably would have been much more than
One Million Dollars that they would have
taken off you), and adding up the Million Dol-
lars that has been paid to you in Bonuses dur-
ing that time . To me that totals at least Two
Million Dollars . Don't let anyone try to tell me
that you people are not intelligent enough to
understand who's working for your best in-
terest.
the answer , for this reason . It can 't be paid
without the Union 's approval . - Perhaps they
would approve it , maybe they wouldn 't, I don t
know . I do know this though-back in 1950
when the Aurora Plant was unionized-at the
time of the unionization drive , we were in the
process of giving all of our employees a raise in
wages. When this Union thing come up, of
course everything was frozen at Aurora. By
Law, we couldn t legally, do anything. The
Springfield Plant was not unionized. The
Springfield Employees were given -an increase
in wages . This increase in wages was offered to
Aurora but by then the Aurora Employees
were represented by the Union . I might say the
Aurora election at that time was carried by the
Union 60%, just a little over half but that was
enough to give it to the'Union.
In one of the letters you received , the Union
Organizers indicated they are going to kinda
give you a bargain price and let you in for
$13.80, saying the regular fee is $75.00, and
then give you another special deal the first
month for $6.00, saying the regular dues are
$8.00 a month. If they have that much author-
ity in changing the amount of these dues and
assessments and stuff , tell me what would keep
them from, next month, saying you haven t
acted just right this month we will just double
it on you, and you people who have talked with
others who have had experience with some of
these Labor Union people know this is only a
matter of record that this does happen.
Now back to this Bonus. Several of you good
people have asked me recently, several of you
that I know are going to vote against the
Union, are wondering what may happen to the
Bonus this year . I could just tell you that I
don't know, but I won't do that. I will tell you
in more detail.
Last year , when this Bonus was paid, I met
with you employees and told you how it was,
you had been a good organization, we had had
a pretty good year , I had recommended it to
the Board and they had authorized the pay-
ment . I told you then that this year would stand
on its ' own. Well , we have had a pretty good
year, our volume is up about one-half million
bags over last; our savings are up some over
last year and I'll tell ou right now that I am
going to recommend to' the Board that for this
year, ending June 30, 1966, a Bonus again be
paid to the M.F.A. Milling Company Em-
ployees and I feel sure the Board will approve
the Bonus to be paid.
Now, if you vote against the Union there's no
question but what you will get the Bonus; if
you vote for the Union then I can't give you
Well, anyway, the Union refused to accept the
raise we offered our employees and so the Au-
rora Employees didn't get it until the Union
was kicked out late in 1951, after they had lost
the strike. The Springfield Employees received
their increase in wages December 1, 1950. The
Aurora Employees received their increase in
wages October 1, 1951.
I mention this to show you that we can't say for
sure just what the situation would be. That is,
whether or not the Union would let us pay this
Bonus even though we - wanted to. You see
when you vote for the Union you put your
destiny in their hands completely . I don 't think
I need to go into detail to outline -again the ex-
periences we have had with the Unions over
the past several years here at the M.F.A.
Milling Company. My letter mailed to you on
May 26, 1966, pretty well outlines the record
on that thing. I remember talking with the Au-
rora Employees though just before that elec-
tion and I remember, and I have the record of
it yet, what I said, that in-the attempt to or-
ganize the Mill, the Union Business Agents
would be promising everything in the sky. They
would tell them everybody would have to join
the Union; they would tell them there wouldn't
be any trouble, they wanted to get along with
everybody. I told the AuroraEmployees that if
the Union won I could pretty well tell them
about how the pattern would follow.
The Union Business Agents would start bar-
gaining or talking . with our - Attorney's, and I
might say here, that our Attorney's handle that
part of the business . I told the Aurora people
then, and I want to 'emphasize to you people
now, that if the Union should carry this elec-
tion, which I sincerely hope and trust they
won't and I don't believe they will, I -think you
are going to give an overwhelming vote of NO;
M.F.A. MILLING COMPANY
but should the Union carry this election, then
again , in due time, as I told the Aurora em-
ployees, our Attorney's would start having
discussions with the Union Business Agents.
We are required, by Law, to talk, or bargain
with them and that we would do. We would
comply with the law but under the law we are
not required to agree or accept any of their de-
mands and you must be sure to understand
that. I suggested to the Aurora Employees that
after a while the Union Business Agents would
tell them "we are not getting anywhere with
the M.F.A. People" so we must threaten them
with a strike. We need to take a "strike vote"
with you Employees. They would say "we want
to only use this as a threat to the Company" so
the strike vote would carry and then in all
probability, after a short time, the Union would
call a strike. I am sure the employees who were
here at that time can well remember my talk
and can well remember how closely it followed
my prediction of how it would be handled by
the Union.
You are going to receive a copy of this talk. I
think it would be a good idea for you to keep it
and refer back to it, especially if the Union
should carry this election. Again, I positively
don't think they will.
In closing, I want to again emphasize this: I
trust every one of you people, who are eligible
to vote in this election, will do so. I earnestly
ask each of you to vote against the Union. You
have a perfect right to vote the way you want
to,
Even though you may have signed any kind of
a pledge card or a petition to get this election,
and I am sure some of you signed that petition
in order to have the election and get rid of the
Union and their agitation. Whatever you may
have done or said in the past has no bearing
when you go to vote.
Again, I want to tell you that the Management
and Board of Directors of the Milling Com-
pany sincerely feel we have a fine organization
of people here. We like you very much. Irre-
gardless of the outcome of this election we will
continue to like you very much. We want to
continue to all be friends, but again I want to
emphasize, our strong desire that you vote NO
on this Union thing. We want you to know and
emphasize so, that the Unions are not going to
run these plants even though they might carry
this election. We want you to know the
Manager and Board of Directors and these
thousands of farmers who own and operate this
1087
organization are not going to be "pushed"
around one little bit by any Labor Union
bunch. Should a majority of you, in the elec-
tion Wednesday, vote for the Union, but I sure-
ly don't believe you will, but just in event you
did, I must again tell you this: The Union outfit
would no doubt do a lot of talking -yes, as
previously mentioned, our Attorney's would
talk with them, from time to time. We are
required to do that, by law. The Union outfit
would make a lot of noise, blustering and
shouting around and perhaps would finally try
to enforce their threats and call a strike. But
now be awfully sure you understand this.
Subject to the law, the M.F.A. Milling Com-
pany will still have the final and complete
authority and determination as to who will
work here and who will not. Likewise, the
M.F.A. Milling Company will have the au-
thority and final say as to the working condi-
tions in these plants and the wages. Now let me
make that perfectly clear- when you have these
Union Business Agents representing you they
can refuse any raise or bonus we might want to
give you-but on the otherhand they can't
require or force us to give anything that we
don't want to. Frankly, and I believe most of
you good employees feel the same way, that we
have handled this pretty good over the past
several years and that we will continue to han-
dle it this way in the future.
The Board of Directors and Management will
still continue to manage and operate these
plants and should the worst come to the worst
and the Union might carry this election and
then after a period of time they call a Strike at
these plants, as they always have, I can tell
you, for sure, they will not be able to shut
these plants down, the thousands of farmers
who own and operate them for sure have and
will continue to have the determination.
Again, my good friends, I sincerely request and
ask you to vote NO in this election against the
Union.12
On July 1 the board of directors, at its monthly
meeting, made a copy of this speech part of its per-
manent records and passed a resolution assuring
Johnson "they were fully in accord with his han-
dling of the labor situation."
The General Counsel contends that this speech
"taken as a whole, constitutes a threat to the em-
ployees in their continued job tenure." He further
urges that "the total conduct of the [Respondent]
created an atmosphere so charged with anti-union
animus that it was impossible for the employees to
' As part of his talk, J F. Johnson read a letter dated June 4, which he
had received from the president of Missouri Farmers Association, urging
the Respondent's employees to vote against the Union.
1088 DECISIONS OF NATIONAL
consider any statement made by the employer about
the union to be without threats of reprisal or force."
[Emphasis supplied.] In short, under this view the
Respondent violated the Act by merely voicing its
disapproval of the Union. Such a view may well run
counter to the first amendment and to Section 8(c)
of the Act. But this need not be decided. For in my
opinion the speech contained two specific passages
which, under applicable Board precedent, must be
considered outside the ambit of free speech pro-
tected by Section 8(c), and violative of the Act.
The first of these is Johnson's adamant insistence
that the Respondent would never under any cir-
cumstances agree to any form of union-security
clause (repeated a few days later in his letter of
June 9 to the employees). The Board with court ap-
proval has held illegal an employer's announcement
in a State (such as Missouri) where such provisions
are permissible by statute-uttered before he knew
the contents of the union's contract demands-that
he would never sign a contract which included a
union-security clause." The second is the passage
reading:
Now, if you vote against the Union there's no
question but what you will get the Bonus; if
you vote for the Union then I can't give you
the answer, for this reason. It can't be paid
without the Union's approval.
The Board has held that a supervisor's statement
that he did not know what effect a "third arty"
would have on the continuance of benefits in-
stituted by the Respondent constitutes "a threat of
loss of benefits should the Union win the elec-
tion."14 Accordingly, the above-quoted passage
must be deemed to constitute a veiled threat of loss
of benefit should the Union be victorious. I con-
clude that, in these two respects, and in the light of
all the surrounding circumstances, including the
commission of other unfair labor practices found
herein, J. F. Johnson in his above-quoted speech
exceeded permissable bounds and violated Section
8(a)(1) of the Act.
2. By Dr. Bob Johnson
Dr. Bob Johnson is, and at all material times has
been, head of the Respondent's chemical and nutri-
tion laboratories. The complaint alleges, the
Respondent stipuated, and it is found, that he is,
and at all material times has been, a supervisor as
defined in the Act.
a. Contentions of the parties
The complaint alleges , and the answer denies,
that on or about June 8 Dr. Bob Johnson inter-
" Wigwam Mills, Inc, 149 NLRB 1601, 1602, fn 2, 1616, fn 33 and 34,
enfd 351 F 2d 591 (C A 7)
" Zelrich Company , 144 NLRB 1381, 1382
Of the six or seven employees in the laboratory at that time, Johnson
probably talked to four or five.
1e The findings regarding this conversation are based on Lanmer's
LABOR RELATIONS BOARD
,ogated employees "concerning their own and
other employees', union membership and learnings
or concerted activity "; kept " under surveillance, or
create[d] the impression of surveillance of, the
concerted activities of employees "; promised an
employee benefits if he refrained from concerted
activities ; and threatened employees with reprisals
if they became or remained union members. In his
response to order on motion for bill of particulars,
the General Counsel elaborates by alleging that on
or about June 8 Dr. Bob Johnson "promised to sup-
port and endorse an employee 's claim to job tenure
and wage increases if that employee voted against
the Union" and "warned employees that [ their]
support of the Union would result in an unspecified
change in [ their] positions to their detriment."
b. The facts
On June 7, the day before the election, and June
8, the day of the election, Dr. Bob Johnson inter-
viewed some of the employees under his supervi-
sion in the laboratories, one by one.15 He admit-
tedly "asked ... every one of them, how they were
going to vote" and urged each employee so inter-
viewed to vote against the Union.
Specifically, Dr. Bob Johnson told S. Dean
Larimer, an employee under his supervision: "I un-
derstand that you have been a part of the union or-
ganization here and that you might vote for the
Union ... I would like very much to assure J. F.
Johnson, the plant manager, that the chemical lab
will vote one hundred percent for the Company."
When Larimer replied that he intended to vote for
the Union, Johnson stated: "Mr. Larimer, I think I
had better warn you that you will be much better
off if this union business does not carry. Regardless
of what you have done in the past, you can still
change your mind and vote for the Company. "16
During his interview with Glenn Tatum, an em-
ployee under his supervision, Dr. Bob Johnson
stated: "If you'll promise you'll vote against the
Union, I will stand up for you and it will be in your
favor." Tatum responded that he would make no
promise, as he had not tyet made up his mind. Dr.
Bob Johnson then said. `Well, if you take a notion
to vote against it and want to tell me any time prior
to the voting, you can do so, but it will not do any
good to tell me after you voted that your vote was
for the Company. "17
Dr. Bob Johnson commenced his conversation
with William Hamblin, an employee under his su-
pervision, by announcing that he understood
Hamblin "was one of the ones pushing the union."
Hamblin replied he had not yet decided. After
some discussion of the Union's value, Dr. Bob
testimony Dr. Bob Johnson denied making any warnings, threats, u.
promises His general denial in this regard was not convincing and is not
credited insofar as it conflicts with the more specific testimony of Larimer
11 This finding is based on Tatum's testimony. Dr Bob Johnson specifi-
cally denied promising to do anything for Tatum His denial in this respect
was not convincing and is not credited.
M.F.A. MILLING COMPANY
Johnson stated: "You will be better off if this union
is voted down. "18
c. Conclusions
It is concluded on the basis of his own admissions
that on June 7 and 8 Dr. Bob Johnson questioned
employees regarding how they intended to vote in
the forthcoming election. In the light of other un-
fair labor practices committed by the Respondent,
such conduct amounted to illegal interrogation
proscribed by Section 8(a)(1) of the Act.
Moreover, Dr. Bob Johnson indicated to both
Larimer and Hamblin that he knew of their interest
in the Union, thereby creating the impression that
their union activities had been under surveillance.
In addition, Dr. Bob Johnson promised benefits to
Tatum (albeit vague as to the exact nature of such
support) should he vote against union representa-
tion. Finally, he threatened Larimer and Hamblin
with reprisals should the Union be victorious. By
such conduct, Dr. "Bob Johnson further violated
Section 8(a)(1) of the Act in his talks with
Larimer, Tatum, and Hamblin. 'I
3. By Richard L. Matthews
Richard L. (Dick) Matthews is, and for many
years has been, the Respondent's laboratory
director. The complaint alleges , the Respondent
stipulated, and it is found, that he is, and at all
material times has been, a supervisor as defined in
the Act.
a. Contentions of the parties
The complaint as amended alleges , and the
answer denies, that on or about June 7 Matthews
"interrogated employees concerning their own, and
other employees', union membership and leanings";
that on or about June 15 and July 29 he kept
"under surveillance, or create[d] the impression of
surveillance of, the concerted activities of em-
ployees"; and that on or about June 15 and July 29
he "threatened employees with ... reprisals, if they
become or remained members of the Union."
Elaborating on these allegations in his response to
order on motion for bill of particulars, the General
Counsel further alleges that on or about June 15
Matthews "told an employee that he would be fired
if it was again reported that said employee was sup-
porting the Union" and on or about July 29 "told
an employee that he would be fired if he persisted
in discussing union matters at the plant."
b. Events in June
As previously found, on June 7 Matthews asked
18 This finding is based on the testimony of Hamblin, who impressed me
as a singularly forthright , candid , and truthful witness . To the extent that
Dr Bob Johnson's testimony conflicts , that of Hamblin is credited.
1089
Tatum his opinion of the Union; later that day he
told Tatum that: "Mr. Johnson ... had understood
that [you are] a union pusher. Then he found out
that the information was wrong." In addition,
Matthews testified under cross-examination:
Q. Did you ever discuss the Union or Union
situation with Mr. Hamblin?
A. Before the Union election I asked him
what his attitude was toward it.
Q. You mean ... while all this mess with
the Union was going on you never mentioned it
to Mr. Larimer?
A. ... I asked several of them about what
their attitude towards the Union was and any
direct conversation with Dean [Larimer] on
that I don't recall.
Q. How many guys did you ask about what
their feelings were about the Union?
A. There was Hamblin, Taylor-there
would be half a dozen.
Q. When was this?
A. This was just a day or two before the
election.
From the above frank admission of Matthews it is
found that, on June 7 or 8, he interrogated em-
ployees concerning their attitude toward the Union.
In the context of other unfair labor practices com-
mitted by the Respondent, I conclude that such
conduct violated Section 8(a)(1) of the Act. And
his statement to Tatum on June 7 intimated that the
Respondent had its eyes on Tatum's union activi-
ties , thereby fostering the impression of surveil-
lance. This further violated Section 8(a)(1) of the
Act.
c. Events in July
Tatum testified that on July 29 Matthews ap-
proached him in the plant and stated that he had
been informed by some other foreman that Tatum
"had been up in the mill visiting." He added: "We
don't know which side of this thing you are on
[but] it wouldn't make any different anyway
because Mr. Morris [the Respondent's plant su-
perintendent] had fired a half-dozen a few days
before that .weren't union members. If Dr. Johnson
had gotten this information before I did, you would
already have been fired .... Someone has thought
the union would be good for the mill, but it has
made it hard on everybody." Matthews gave a
somewhat different version. According to
Matthews, he was told by the Respondent's plant
superintendent, Arthur Morris, that Tatum "had
been visiting with some of the people in the mill ...
19 The General Counsel also introduced evidence regarding Dr. Bob
Johnson's interview with Tom Watts , another employee . As it would be
merely cumulative in any event, I deemit unnecessary to make any findings
with reference to the Johnson-Watts conversation
350-999 0 - 71 - 70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[and] interfering with their work up there."
Matthews informed Tatum what he had been told,
and pointed out that there was work of Tatum's
"that was unfinished that he should take care of."
Matthews further testified that, although he had
never previously warned Tatum about visiting, he
had warned others.
I credit Matthews' version of this incident as the
more accurate. Accordingly, contrary to the con-
tention of the General Counsel, I am convinced
that Matthews was not exhibiting discrimination
against Tatum on this occasion, but on the contrary
was merely carrying out his normal obligation to
maintain discipline and production among the em-
ployees under his supervision. Accordingly, I find
that the General Counsel has failed to prove that
Matthews' conduct on July 29 further violated Sec-
tion 8(a)(1) of the Act.20
4. Union animus
The above-described unfair labor practices, espe-
cially J. F. Johnson's speech of June 6 and 7,
together with his letters of June 9 and 10 and July
25 set forth in part below, establish that, since at
least June 6, 1966, the Respondent has entertained
a strong and deep-seated hostility toward the
Union.2 This conclusion is not related critically,
but merely as a statement of fact. The Respondent
had, of course, a legal right to exhibit antagonism
toward the Union, so long as it took no action
proscribed by the Act. 22 But , as the United States
Court of Appeals for the Fifth Circuit has said:
"Antiunion bias and demonstrated unlawful hostili-
ty are proper and highly significant factors for
Board evaluation in determining motive."23 Let us
bear this in mind in considering the remaining is-
sues in this case.
C. The Refusal To Bargain
1. The appropriate unit and the Union's majority
The complaint alleges , the answer admits, and it
is found that:
(a) All production and maintenance employees,
laboratory employees, and truckdrivers employed
at the Respondent's Springfield and Aurora, Mis-
souri, plants, excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
tie purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
(b) On or about June 8, 1966, a majority of em-
ployees in the above-described unit, in a Board-
conducted election, selected the Union as their
representative for the purpose of collective bargain-
ing with the Respondent with respect to wages,
hours, and other working conditions (Case
17-RC-5089).
(c) On or about June 16, 1966, the Union was
certified as the exclusive bargaining representative
of the employees in the above-described unit. The
Union now is, and at all times since then has been,
such representative.
2. Conduct before the meetings
On June 9, the day after the Union won the elec-
tion , J. F. Johnson wrote a letter to the employees
which read, in pertinent part:
From the result of the election, we would as-
sume several of you are now Union members.
You have a perfect right to be a Union
member if you want to, but, we want to again
tell you and emphatically so, that not now, or
at any time, will it be necessary for you to be a
member of any Labor Union to be employed
by the M.F.A. Milling Company. Your job,
whatever it may be, will not be jeopardized in
the least by your not joining the Union if you
don't want to.
I am sure you understand, and we want you to,
that even though a great many of you voted
against the Union, now all of you who were
eligible to vote in this election, are represented
by the Union. This is the Law . Be sure to un-
derstand that even though, according to the
Law, the Union now represents you, still you
do not have to be a member if you do not want
to.
In line with the Law, the result of this election
will govern for at least one year. At that time,
should as many as 30% of the employees of the
M.F.A. Milling Company, who are presently
effected by this Labor Union election result, be
dissatisfied with the Labor Union, then, they
could at that time, petition the NLRB for
another election.
We mention this because already several of
you employees have asked us about this and
20 The General Counsel introduced evidence tending to indicate that on
or about March 7, 1967, shortly before the hearing commenced , Matthews
suggested to Hamblin that Hamblin "take his name off" and added that Dr
Bob Johnson had just found out Hamblin was only working 2 days per
week Although the General Counsel was permitted to amend the com-
plaint in several respects at the beginning of the hearing , he neither sought
nor obtained an amendment to cover this alleged incident of March 7,
1967 As it is therefore not in issue , I shall make no findings with regard
thereto
21 The General Counsel introduced additional " background " evidence of
the Respondent 's union animus, including the testimony of witness Jerry
Huff concerning the preelection conduct of Herman Spencer, a supervisor
I am convinced that the Respondent 's antipathy toward the Union has been
amply demonstrated by the conduct of J. F . Johnson and Dr Bob Johnson,
related above Accordingly, I deem Huff's testimony cumulative and will
refrain from unduly enlarging this Decision by further findings with regard
thereto
22 N L R B v McGahey, d/bla Columbus Marble Works, 233 F 2d 406,
409 (CA 5)
23 N L R B v Dan River Mills, Incorporated, Alabama Division , 274 F.2d
381,384(C A 5)
M.F.A. MILLING COMPANY 1091
just how long they might have to be under the
Union.
On the following day, June 10 , J. F. Johnson wrote
to the managers 4 as follows:
For your information we are enclosing a copy
of the News Article which appeared in the
Springfield Daily News this morning, Friday,
June 10, 1966:
1 think this again pretty plainly states the posi-
tion of the M.F .A. Milling Company in regard
to the Union situation . It is rather surprising
though how difficult it seems for people to un-
derstand }just what our position is. Even yester-
day, as clearly during the past week or several
days, as we have stated what our position
would be, we understand one of the managers
was inquiring if we would still be doing our
own hiring of employees.
We want to emphatically again state that the
M.F.A. Milling Company Management will still
be completely in charge of the management of
this organization . As stated , we will , of course,
fully comply with the Law but - under the Law,
we will still be doing all of our own hiring and
all other things that we normally handle. Ac-
tually, the only difference is that now our At-
torney's will be talking, from time to time, or
negotiating , or bargaining , or whatever it might
be termed, with Union Representatives about
various things pertaining to the employees who
were eligible to vote in this election. Under no
circumstances though will we sign what might
be termed a Union Contract , a Closed Shop
Contract , or anything like that. Even in talking
with the Union Representatives, it is not neces-
sary , by Law, that our Attorney's agree or give
in to any of the requests or demands of the
Union Representatives.
We want to again , emphatically , state that we
will comply with the Law, fully, but that in so
doing we will still completely handle the
management and operation of this organiza-
tion.
Should you have any comments , questions, or
suggestions , they will be most welcome.
Enclosed were copies of a newspaper clipping from
the Springfield , Mo,. Daily News dated June 10. At
the top was a three-column banner headline: "WE
WILL COMPLY WITH LAW, SAYS MFA
MILLING HEAD." There was also a subheading:
"But Employees Don't Have to Join Union-John-
son." The article read:
MFA Milling Company employes need not
belong to the Hod Carriers and Laborers Local
676 to work at the firm 's plants in Springfield
and-Aurora, but they have a right to do so, J.
F. Johnson, general manager of the company,
said Thursday.
Johnson told the Daily News: "The MFA
Milling Company recognizes that legally, now
the union represents all of the employes who
were entitled to vote in this election, and we
will fully comply with the law in this respect."
Although conceding defeat, he said the
union won the election Wednesday by a very
thin margin.
"The official count, and for the record,
showed 142 votes for the union- 129 votes
against it. There were 10 votes which were
challenged by the union. These votes were not
counted," Johnson said. -
He continued: "Any votes which were chal-
lenged were held up, separately, by the NLRB
representative until the votes were counted.
Should there have been enough of these chal-
lenged votes to have changed the result of the
election, then the NLRB representatives would
have determined whether or not they were
eligible votes."
"Obviously, the union must have known that
these votes were against them else they would
have not challenged them, so technically, the
vote was 142 for the union and 139 votes
against it. On this basis, the union would have
actually won by only three votes. As stated, the
union legally won this election even though by
a very thin margin."
Johnson said the MFA company has about
415 employes and the 142 persons who voted
for unionization actually represented about 35
percent of the firm's total employes.
"We want to again emphatically state that it
is not necessary for any employe ... to belong
to the labor union to work here. They have the
right to do so if they want to. It could be that
some of the ones who voted against the union
might now choose to become union members.
"They can if they want to-they don't need
to. On the other hand, it could well be that
several, even a great many of the ones who ac-
tually voted in the election for the union; are
not members of the union and might not ever
be. Just because they voted for the union
doesn't necessarily mean they are members or
that they will be," the MFA general manager
said.
Although recognizing the union's victory,
Johnson said: "We must be perfectly frank ...
and say that this (company) is an organization
that is owned and 'operated by thousands of
2' According to the Respondent 's attorney , "these are managers of the
various exchanges out in the field and not ... supervisory personnel of any
[employees in] in the unit here involved."
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
farmers for the purpose of making their own
feeds.
"It has been the policy of the board of
directors and management through the years to
operate this organization to the very best of
their ability and knowledge for the interest of
these farmers and this we shall continue to do.
"We shall comply with the laws, but at the
same time, we must again emphatically state,
as previously mentioned, we will be recogniz-
ing the best interests of these thousands of
good farmers and that we shall not be dictated
to or `pushed' around in any way whatsoever
by these labor union business agents in a way
that might be, in our best judgment, against the
best interest of these farmers."
Johnson concluded: "We would like to ex-
press our sincere appreciation for the tremen-
dously fine response we have received from all
over this area from people expressing their ap-
preciation for the stand and attitude of the
management of the MFA Milling Company in
regard to this union situation."
On or about June 20 the Union requested the
Respondent to bargain collectively with respect to
terms and conditions of employment of the em-
ployees in the above-described unit.25
3. The meetings
On June 28 J. A. Clouse and Raymond Prater,
agents of the Union, met with Jean Paul Bradshaw,
Esq., and O. J. Taylor, Esq., the Respondent's at-
torneys. This meeting, like all subsequent negotiat-
ing sessions , was held during normal working hours
at the offices of the Respondent's attorneys. The
Union's representatives submitted a proposed con-
tract, which omitted wage scales, certain fringe
benefits, and effective date. They asked permission
to use the plant bulletin boards; that the proposed
contract, when finalized, be made retroactive to
June 28; that the Respondent supply the Union
with certain specified information; and that the
members of the employee bargaining committee-
who were to attend the next negotiating session-
be paid by the Respondent for working time lost
from their jobs while present at bargaining
meetings. There was a short discussion between
Bradshaw and Prater regarding the Union's
proposed union-security clause, and a brief
reference by Clouse to the treatment accorded
Larimer, an employee who had recently been trans-
ferred from one job to another.
The second meeting took place on July 7. The
Respondent was represented as before; the Union
by Prater, Clouse, and an employee committee.
Taylor reported that the Respondent would not
permit the Union to use the plant's bulletin boards,
and would not pay employee members of the
negotiating committee for time lost while attending
bargaining sessions ; indeed frowned on their
absence from their jobs. He furnished the Union's
representatives with some of the information they
had requested, and stated that other data was being
prepared. The Union's representatives then orally
announced their proposed wage scale, and certain
figures relating to fringe benefits, which had been
omitted from the Union's written proposals.
On July 22 the Union retained Benjamin J.
Francka, Esq., as its attorney. He wrote to Taylor
and Bradshaw that day, so advising them. In this
letter Francka complained that certain information
requested by the Union had not been supplied and
that Bradshaw's office was not a satisfactory place
in which to hold bargaining sessions . He further
complained in the letter of "the cancellation of and
difficulty of scheduling bargaining sessions," and
demanded that "it will be necessary that someone
be at the sessions with authority to reach an agree-
ment." Finally, Francka in his letter renewed the
Union's request "that the employees who spend
time on the bargaining committee, be paid for the
time spent." On the same day Bradshaw replied by
letter, pointing out that the information requested
was now available and would be "turned over to
you at the next bargaining session ." Bradshaw in his
answer rejected suggestions that future bargaining
sessions be held elsewhere, and denied there had
been unwarranted cancellations of scheduled
meetings. As to lack of authority, Bradshaw stated:
"Mr. Taylor and I have been given the authority to
negotiate with you [although] we cannot make the
ultimate decision." He rejected any suggestion that
J. F. Johnson personally attend bargaining sessions.
He also refused the request that the employee
members of the bargaining committee be paid for
the time they spent negotiating.
On July 25 J. F. Johnson sent a letter to all em-
ployees, containing a copy of his letter dated June 9
(set forth above). It read in pertinent part:
Seemingly, the question continues to be raised
as to whether or not you need to join the
Labor Union, or, if you will have to join the
Labor Union, to be employed here at the
M.F.A. Milling Company.
The answer to that question is very emphati-
cally "NO." You do not have to be a member,
nor, will you have to be a member, to be em-
ployed here.
Perhaps some of you have misplaced or thrown
away our letter dated June 9, 1966. We are en-
closing a copy of this letter.
25 This finding is based on an allegation of the complaint not specifically
denied in the answer
M.F.A. MILLING COMPANY 1093
Some of you have asked me the last day or two
again about whether or not you would have to
join the Union. This has promoted me to write
you this letter, to again, very clearly, state the
position of the M.F.A. Milling Company on
this question.
On July 29 there was a third negotiating session.
The Respondent was represented as before; the
Union by Prater, Clouse, and an employee. The
parties began to go through the Union's proposals
item by item . They reached tentative agreement on
some items , disagreed on others, and still others
were passed over at that time; some changes in lan-
guage were made.26
The fourth bargaining session was held on August
11. The Respondent was represented as before; the
Union by Francka, Clouse, Prater, and two em-
ployees. The parties resumed discussion of the
Unions proposed contract, item by item, beginning
where they had left off on July 29. Tentative agree-
ment was reached on some further items , on other
matters the parties failed to' agree , and some addi-
tional deletions and additions were made. With re-
gard to seniority, the Respondent's negotiators
stated that J. F. Johnson had said no; that the mill
had been"down on its humpers" when he came
there, he had got it running, and "he didn't intend
to' let anyone interfere." With respect to
truckdrivers, Bradshaw suggested the item be
passed over "because he didn't have a past recol-
lection of what Mr. Johnson had said about that
particular provision ." Bradshaw also indicated that
he had to have further conversations with Johnson
in order to determine his position on a number of
matters . Bradshaw asked which provisions the
Union considered most important. In response,
Francka listed wages, union security, seniority, and
grievance-arbitration. Bradshaw answered that "he
had not had enough discussion with Mr. Johnson to
negotiate these items." The session then came to an
end. On that same afternoon, Bradshaw conferred
with J. F. Johnson, and together they went through
the entire contract proposed by the Union, item by
item.
On the next day, August 12, the parties met for
the fifth time , each party being represented as on
the previous day. With regard to union security,
Bradshaw reported that Johnson "said positively
and absolutely no to any type of union security '
and quoted Johnson as explaining: "he didn't invite
the union in ... he didn't think it amounts to
anything, [and] he isn't going to do anything that
will ... force people ... to be members." In con-
nection with seniority, Bradshaw stated that "Mr.
Johnson didn't feel he could be hampered in any
way in determining who was going to fill what job
. management had to be free to make these deci-
sions ." With respect to wages, Bradshaw rejected
any kind of increase, on the ground that the
Respondent could not do so without raising the
price of its products to its members. Francka asked
if the Respondent was claiming inability to pay
higher wages, pointing out that, if so, the Union was
"entitled to facts and figures ... on which they
were basing that claim ." Bradshaw replied that this
was not a claim that the Respondent could not in-
crease wages , but only that it was unable to do so
without increasing its prices, and quoted Johnson as
saying that "he was the person who would have to
be the judge of that, and knew better than anyone
else as to what ... [wages] could be paid to main-
tain the operation. And that it was strictly to his
decision as to what would be paid." Bradshaw
asked Taylor: " I am giving them the correct an-,
swers, am I not?" and Taylor replied: "At least Mr.
Johnson's attitude." Clouse asked if the Respon-
dent was willing to sign a contract leaving wages as
they were; Taylor countered by inquiring whether
the Union would be willing to sign such a contract.
Francka asked if the Respondent had any counter-
proposals. Bradshaw replied in the negative, ex-
plaining: "Mr. Johnson thinks that everything is all
right at the plant." There followed a discussion of
the advisability of seeking Federal mediation.27
The sixth meeting took place on August 19. The
Respondent was represented as before; the Union
by Francka, Prater, Clouse, and an employee. Mr.
O'Connell, of the Federal Mediation and Concilia-
tion Service, was in charge of the session. Other
than affording the parties an opportunity to restate
their respective positions, the meeting was not
productive of any further progress toward agree-
ment 28
The parties met for the seventh time on Sep-
tember 23. Bradshaw alone represented the
Respondent. The Union was represented by
Francka, Prater, Clouse, and several employees. A
representative of the Federal Mediation and Con-
ciliation Service was also present. At the outset,
Francka handed Bradshaw a letter. After reviewing
negotiations to date, it stated:
. In view of the fact that we appear to be
stalemated, first, because of Johnson's refusal
to agree to any proposals made on the major
areas affecting wages, working conditions,
hours, and secondly, because we are
zc The findings regarding the sessions of June 28 and July 7 and 29 are
based on Prater's testimony , corroborated in part by that of Bradshaw.
The minutes of the monthly meeting of the Respondent 's board of
directors held on August 3 contains the following : "The manager discussed
at some length the labor situation stating that so far as he knew there was
actually not much change. He mentioned that the attorneys for the M.F A.
Milling Company had held some meetings or discussions with the labor
union representatives."
_" The findings regarding the meetings of August I 1 and 12 are based on
the testimony of Francka and Prater, corroborated in part by that of
Bradshaw.
19 The minutes of the monthly meeting of the Respondent 's board of
directors held on September 7 contains the following "The manager com-
mented on the labor situation .. He stated there actually was not much
change from the month ago other than seemingly the meetings with our at-
torneys had about dwindled out. He further stated he believed the em-
ployees were losing interest in the Union as time goes along."
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unacquainted with his specific objections, we
are hampered in making any counter-proposals
and have had none to date from the company.
It appears to the writer that it would expedite
matters considerably, if Mr. Johnson par-
ticipated in the negotiations and at least pro-
vided us with more information concerning his
reasons for rejection of proposals made by the
union, or what he proposes.
During the course of our negotiations the
absence of any proposal by the company has
been mentioned several times and at present
we have received no proposals of any nature
from the company. We would respectfully sug-
gest that a counter proposal by the company
might facilitate the eventual development of a
collective bargaining agreement.
In the meantime , we propose that we im-
mediately commence negotiations either on
the contract as a whole, or item by item,
discussing our proposals and your proposals, if
the company chooses to make any, so that we
might eventually hammer out a contract, sec-
tion by section, paragraph by paragraph, sen-
tence by sentence, and word by word.
Also, in view of the fact that the union is now
representing the MFA mill employees in all
matters concerning wages, hours, and working
conditions, we request the following additional
information concerning these employees. You
supplied to us a list of employees as of July 1,
1966. We must request the following addi-
tional information concerning the employees
covered within the unit for which the union is
the certified collective bargaining agent: The
names of all employees as of the date of the
certifications, who were not included in the list
supplied, and the names and addresses and
date of employment of all persons employed
from the date of certification to date who were
not included in the list supplied. We also
request the names of and the date and reason
for termination of employment of employees
whose jobs have been terminated since the
date of certification. This information concern-
ing employees is limited only -to those em-
ployees within the unit described in the Board
certification, and represented by Laborers
Local 676. Also, we request that the union be
notified in the future of the following informa-
tion: The name and address of each new em-
ployee, the date of his employment and the
I The findings regarding the sessions of August 19 and September 23
are based on the testimony of Francka and Prater.
On October 6 the Respondent held its annual membership meeting. J. F
Johnson informed those present that the Union had won a Board-con-
ducted election at the Springfield and Aurora plants and read the article,
quoted above, which appeared in the Springfield newspaper following the
election . He stated that the Respondent 's attorneys "were continuing to
capacity in which the employee was employed.
Also, we request that in the, future, the union
be supplied with the name and address of all
employees whose employment is terminated as
well as the date of and reason for termination.
Again, this information is limited to those em-
ployees in the unit for which the union is the
certified collective bargaining agent.
Bradshaw said he would show the letter to Johnson.
There followed a discussion of the Union's request
for Johnson's presence at future meetings, and its
request for information. Either Prater or Clouse
asked if the Respondent had any proposals.
Bradshaw replied in the negative , stating -that John-
son "feels that things are operating satisfactorily
and wants to leave them just as they are." Francka
answered that the Union was concerned with the
welfare of the employees, a majority of whom ap-
parently felt that things were not all satisfactory,
and that they needed the Union's help. Bradshaw
further quoted Johnson as saying that, although "he
has got to negotiate, with us ... he doesn't have to
agree to any ... particular contract proposal," and
that the Union "should have organized something
that the public generally wanted and not something
the farmer owns." Francka suggested further
discussion of the Union's grievance proposal, to
which Bradshaw responded that "he didn't see any
point of pursuing, a grievance structure if we had no
contract to start with.'.' Bradshaw also stated that if
the Union went on strike, it would probably not be
a successful one. Clouse responded: "You are the
one who always bring up the strike, not us. We
don't want a strike. "29
The eighth bargaining session was held on Oc-
tober 8. The Respondent was represented by Taylor
alone , the Union by Francka, Clouse, Prater, and
some employees. A representative of the Federal
Mediation, and Conciliation Service attended. The
Union's representatives requested,the information
described in Francka's letter of September 23;
Taylor responded that he,would obtain-this infor-
mation for the Union. Francka said "Let's see ex-
actly where we have been able to agree so far" and
started reading certain items from the Union's
proposed contract. After he had read about four or
five, Taylor said: "Maybe we have had a misun-
derstanding here. We are not really negotiating
these items. This was merely language, that Mr.
Bradshaw and I felt could be included in a contract
if one were ever agreed upon. We had to take these
back to the company and apparently Mr. Johnson's
decision on these items that we had tentatively
agreed to have never been reported to you." °
Francka then presented to Taylor two revised drafts
negotiate or talk with labor union representatives from time to time." A
motion was passed "fully and solidly endorsing the position and stand of
the management and Board of Directors in regard to the labor situation."
30 This finding is based on Francka's testimony, corroborated in part by
that of Prater. Bradshaw denied that Taylor ever made such a statement
but Bradshaw was not present during this particular meeting and his denial
is therefore not credited. Taylor did not testify.
M.F.A. MILLING COMPANY 1095
of certain of the Union's proposals, and agreed to
redraft the Union's proposed contract, incorporat-
ing certain changes discussed by the parties.
On November 3 Francka sent to Bradshaw and
Taylor a redraft of the Union's proposed contract,
omitting wage rates, and a separate document con-
taining the Union's revised wage demands-sub-
stantially less than the original demands. The cover-
ing letter read, in pertinent part:
. we call to the company's attention the
absence of any reply to the requests made in
our letter of September 23, 1966, and we
renew those requests.
The Union also requests negotiation of the
grievance arising from the unwarranted action
of the company in discriminating against Dean
Larimer, a member of the Union negotiating
committee by transferring him from the labora-
tory and assigning him to most unsatisfactory
and difficult work, because of his union activi-
ties and request that he be returned to the
laboratory and not discriminated against in the
future.
The Union also requests that the company pro-
vide collective bargaining representatives with
adequate authority to negotiate . It will be re-
called that every time a suggestion is brought
u^o , it is necessary to go back and check with
Mr. Johnson before any decision can be
reached in neogitations. This has prevented
any effective bargaining and has resulted in in-
numerable delays.
As we mentioned before , we do not feel that
we are in a position to demand .Mr. Johnson's
presence , but we do request that the Company
provide a collective bargaining representative
who can negotiate for the Company and make
decisions for the company . The continuous
need to check back with Johnson on every
item indicates the absence of such authority in
the representatives designated by the company
to negotiate . The question has been frequently
proposed as to whether or not Mr. Johnson
should be present . We again mention to you
that this is a decision for the company to make,
but if Mr. Johnson refuses to delegate the
necessary authority to you or anyone else, the
union's position is that his presence is necessa-
ry if the company is going to provide a
representative with adequate authority to bar-
gain as required by law.
*
. The meeting for November 5, is scheduled
for your office, however, in view of the press of
business which you have each day during our
last two meetings, the Union is requesting that
in the future, another meeting place be agreed
upon. In this connection, it is requested that
either we find a neutral place for the meetings,
or that they be alternated between the Union
office and your office.
The ninth negotiating session took place on
November 5. The Respondent was represented by
Bradshaw and Taylor, the Union by Clouse, Prater,
and some employees. There was no mediator
present. The Respondent's negotiators, who had
received the Union's revised proposals 2 days earli-
er, stated that "they had not had a chance to go
over the contract, neither had they had a chance to
go over it with Mr. Johnson. "31
The parties held their 10th bargaining meeting on
November 10. The Respondent was represented as
at the previous session , the Union by Francka,
Clouse, and some employees. No mediator at-
tended. Bradshaw stated that he had gone over the
Union's new proposals with Johnson, who said
"that they all contemplated some change in the
status quo and as a result were unsatisfactory to
him and ... unacceptable." Francka asked what
changes the Respondent would consider, to which
Bradshaw replied that they had no authority to
discuss anything which contemplated a change.
Francka asked for the information set forth in his
letter of September 23; Taylor and Bradshaw
promised to obtain it for him. One of the Union's
representatives raised the Union 's claim that
Larimer had been discriminated against. Taylor
asked if Larimer's wages had been deceased. When
informed that no wage reduction was involved,
Bradshaw and Taylor stated that more difficult
work or more onerous hours were intangible mat-
ters about which nothing could be done. Francka
then requested the Respondent's negotiators to go
through the Union's new proposals, paragraph by
paragraph, to determine which ones were accepta-
ble. This was rejected by the Respondent's
representatives with the statement that if the parties
could not agree on major items, there was no point
to such a procedure. Francka repeated his earlier
request that Johnson attend, because the union
representatives felt that Bradshaw and Taylor
lacked adequate authority. This was refused.'
On December 5, as noted above, the Union filed
the instant charges. On December 16 Francka
wrote to Bradshaw and Taylor. The letter read, in
pertinent part:
I have been asked by my clients to convey to
you their request for a collective bargaining
meeting at the earliest possible date to discuss
further, the grievances concerning the dis-
crimination against Larimer and others, and
the various discharges that have been made by
a' The findings regarding this meeting are based on Prater 's undenied
testimony.
32 The findings regarding this negotiating session are based on Francka's
testimony.
The minutes of the meeting of the Respondent 's board of directors held
on December 1 contains a notation that J. F. Johnson "stated the labor
situation , including the negotiations or discussions by our attorneys with
the labor union people continued about the same."
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the M.F.A. Milling Company. We also renew
our request for the information requested in
our letter of September 23, 1966.
... we renew our request that you submit to us
any counter-proposals that the M.F.A. Milling
Company may have.
Francka never received any reply. Up to March
22, 1967, the parties had not scheduled any addi-
tional negotiating sessions. As noted above, on that
day the hearing herein was temporarily recessed to
give the parties an opportunity to engage in further
collective bargaining.
4. Contentions of the parties
The complaint alleges and the answer denies that
from about June 20 the Respondent has "failed and
refused ... to meet and discuss and negotiate in
good faith with the Union" with respect to the
working conditions of the employees in the above-
described unit. The General Counsel elaborates on
this allegation in his response to order on motion
for bill of particulars, as follows: (i) The Respon-
dent, after June 20, committed violations of Section
8(a)(1) and (3) of the Act, as set forth elsewhere
in the complaint; (ii) the Respondent failed to
"provide its negotiators with sufficient authority to
negotiate and agree to and enter into a collective-
bargaining agreement"; (iii) on July 25 the Respon-
dent "attempted to have its employees begin a
movement to decertify the Union"; (iv) the
Respondent "engaged in surface bargaining, mak-
ing no reasonable effort to compose its differences
with the Union, refusing to discuss or consider the
Union's proposals or mandatory subjects for bar-
gaining, refusin g to submit proposals or counter-
proposals, and failing to furnish relevant informa-
tion to the Union upon request"; (v) on October 8
and November 10, the Respondent "revoked all
tentative agreements which it had previously agreed
to"; and (vi) since December 16 the Respondent
"has failed and refused to answer or respond to the
Union's request for bargaining."
The Union i* ' in substantial accord with the
General Counsel's position, but goes somewhat
farther. In addition to the matter alleged by the
General Counsel, the Union urges that the Respon-
dent also violated its duty to bargain in good faith
by failing, upon request, to (i) furnish the Union in-
formation to substantiate its claim that it was im-
possible to raise wages without increasing the costs
of its products to its members; and (ii) discuss the
merits of the Union's grievance concerning the
treatment of Larimer.
The Respondent, while conceding that Bradshaw
and Taylor lacked final authority to execute a col-
lective-bargaining contract binding on the Respon-
dent, insists that they were clothed with sufficient
authority to negotiate such a contract. It contends
that they did in fact make tentative concessions or
"counter-proposals," and denies that these were
revoked. It maintains that the Respondent's
representatives "never declined to discuss these is-
sues and always explained its position." In sum, it
urges that "This is simply a case in which the
parties have not yet been able to agree upon all the
terms of a contract between them."
5. Conclusions
a. Authority of the Respondent's negotiators
The General Counsel and the Union take the
position that the only individual clothed with suffi-
cient authority to negotiate a collective-bargaining
contract on the Respondent's behalf was J. F.
Johnson. The Respondent, conversely, maintains
that Johnson had no authority to negotiate; that this
power was lodged only in Bradshaw and Taylor.
Indeed, both Johnson and Bradshaw so testified.
But their testimony in this regard was conclu-
sionary, vague, and confused To discover accu-
rately the true state of affairs we must examine the
behavior of the individuals concerned.
It should be recalled that Johnson, as general
manager, is the highest-ranking officer in the
Respondent's active management. The negotators
for both parties were always keenly aware of this.
On August 11, at the close of the fourth session,
Bradshaw acknowledged that "he had not had
enough discussion with Mr. Johnson to negotiate
these items" (the four considered most important
by the Union) and that same day reviewed with
Johnson the entire proposed contract, item by item.
On the next day, the Respondent's representatives
reported Johnson's attitude as to each of the four
items the Union considered important. At the
seventh session on September 23, after Francka
handed Bradshaw a letter, Bradshaw responded
that he would show it to Johnson. When asked if
the Respondent had any proposals, Bradshaw's
reply took the form of quoting Johnson. On
November 5, at the ninth session, the Respondent's
negotiators stated that they had not had a chance to
go over the Union's revised contract proposals with
Johnson. At the beginning of the next (10th) ses-
sion on November 10, Bradshaw 'reported that he
had gone over the Union's new proposals with
Johnson, and related Johnson's attitude with regard
thereto. This pattern of conduct amply demon-
strates, and it is found, that from the beginning
Johnson ietained substantial control over the
negotiations, while insulating himself from direct
contact with the Union's representatives.33 The
33 In this connection pit should also be noted that it was Johnson alone
who (up to February 2, 1967) reported to the board of directors and the
membership on the progress of negotiations
M.F.A. MILLING COMPANY 1097
Respondent's representatives lacked sufficient
authority to negotiate meaningfully, without
frequent interruptions to check back with Johnson.
In short, they were little more than conduits whose
principal function was to convey Johnson's policy
statements from time to time. This created a
serious impediment to effective bargaining and is,
in my opinion, indicative of the Respondent's bad
faith. 84
tion to substantiate its alleged inability to raise
wages without increasing product prices. It may
well be that such an obligation might spring from a
proper request.36 But this need not be decided here.
On the record before me, I am unable to find that
the Union's request was presented with sufficient
clarity and specificity to apprise the Respondent of
the precise nature of the information sought.
Therefore, no obligation to comply arose.
b. Delay in supplying information
On September 23 the Union, in writing,
requested that the Respondent supply certain
specifically described information concerning em-
ployees in the appropriate unit. At the next bar-
gaining meeting , on October 8, the request was re-
peated. Taylor promised to obtain the information
for the Union. On November 3, Francka wrote to
the Respondent's representatives:
We call to the company's attention the absence
of any reply to the requests made in our letter
of September 23, 1966, and we renew those
requests.
Again, on November 10, Francka asked the
Respondent's representatives for the data, and they
repeated their promise to provide it. On December
16 Francka wrote: "We also renew our request for
the information requested in our letter of Sep-
tember 23, 1966." This request met with stony
silence. At the hearing, more than 6 months after
the original request, Bradshaw had this to say about
it:
There is no objection to furnishing the material
... there is no disposition to withhold it. It is a
problem rather, of getting the office personnel
out there to grind it out.
At that late date, this assertion is singularly uncon-
vincmg.35
It is found that the information sought by the
Union in its letter of September 23 was necessary
and proper to assure adequate representation of the
employees in the appropriate unit, and that ac-
cordingly,the Union was entitled to prompt com-
pliance with its often-repeated demand therefor. It
is further found that the Respondent has shown no
adequate excuse for its delay of more than 6
months in complying and that such delay must be
regarded as unconscionable and intentional dilatory
tactics. This conduct strongly indicates the Respon-
dent's deliberate attempt to frustrate effective col-
lective bargaining and its lack of good faith in deal-
ing with the Union.
The Union contends that the Respondent was
also remiss in its statutory duty to bargain in good
faith by failing, upon request, to furnish informa-
34 There has been some mention of authority to ratify any agreement
which the negotiators might reach I consider it unnecessary to determine,
at this time, where ultimate authority resides to enter into a final and bind-
ing cont€act on behalf of the Respondent
' On April 12, 1967, after the close of the hearing, the Union received
c. Refusal to process the Larimer grievance
As related above, on November 3 the Union
made a written request for negotiation of the
grievance concerning the Respondent's transfer of
Larimer. The matter was raised again by the
Union's representatives on November 10. When in-
formed that Larimer's wages had not been reduced,
the Respondent's representatives brushed the
matter aside as dealing only with intangibles.
Francka, in his letter of December 16 to Bradshaw
and Taylor, reiterated the Union's request for
discussion of this grievance, and enlarged it to
include other employees beside Larimer. The
request was ignored.
Despite, the Union's repeated request, no steps
have ever been taken by the Respondent to process
Larimer's grievance or to discuss with the Union's
representatives the reasons behind Larimer's
transfer. Such callous disregard for the statutory
rights of its employees demonstrates beyond doubt
the Respondent's lack of good faith.31 Indeed, the
Respondent's refusal to discuss this matter upon
request, standing alone, constitutes a violation of
Section 8(a)(1) and (5) of the Act.
d. Withdrawal of agreements
As has been previously related, the parties
reached some tentative agreements during the third
and fourth bargaining sessions (July 29 and August
11). And on October 8, at the eighth bargaining
session, Francka attempted to review "where we
have been able to agree so far." Taylor stopped him
before he had finished, saying, "We are not really
negotiating these items." Thus, he in effect vitiated
the tentative agreements entered into before then.
At the 10th meeting, on November 10, Francka
suggested going through the Union's new proposals,
paragraph by paragraph. The Respondent's
representatives, however, took the position that
such a procedure would be fruitless because the
parties could not agree on major items. As a result,
there are now no agreements of any kind, even ten-
tative, between the parties.
In the context of the circumstances related
certain information requested, and this was supplemented on April 21,
1967 Presumably, this brought the matter up to date
" See International Telephone and Telegraph Corporation v N.L R B,
382 F 2d 366, 370-371 (C A 3)
17 N L R B v Ogle Protection Service, Inc, 375 F 2d 497,501 (C A 6)
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-including the illegal refusal to process the
grievance regarding Larimer-I am convinced, and
find, that the attitude of the Respondent's represen-
tatives on October 8 and November 10, instead of
narrowing the area of disagreement, had the op-
posite effect. Such conduct tended to frustrate bar-
gaining efforts and was clearly inconsistent with a
genuine desire to resolve the differences between
the parties.
e. The break in negotiations
On December 12, as set forth previously,
Francka made a written request of the Respon-
dent's negotiators "for a collective bargaining
meeting at the earliest possible date." [Emphasis
supplied.] He has never received any reply. At the
hearing Bradshaw, while testifying that in his
opinion there was no impasse, explained the
Respondent's reason for not replying to the letter of
December 16, as follows:
At that time these proceedings had already
begun before the Board, and they had told us
[in the Union's letter of September 23] there
was a stalemate reached.
In view of the well-settled principle that the en-
dency of charges before the Board does not relieve
an employer of his statutory obligation to bargain'38
I consider Bradshaw's excuses unacceptable.
It is found that the parties have never reached a
genuine impasse. It is further concluded that on
December 16, 1966, the Respondent, without ex-
planation or adequate reason, broke off negotia-
tions with the Union and did not resume them until
the beginning of the hearing herein on March 22,
1967. The Respondent thereby failed and refused,
upon request, to meet and confer with the Union at
reasonable times and intervals for the purpose of
collective bargaining in violation of Section 8(a)(1)
and (5) of the Act.3
f. Statements of attitude
So far, we have examined only the conduct of the
Respondent vis-a-vis the Union's representatives.
Let us now turn to an analysis of the Respondent's
communications with its managers and employees.
In his speech to the employees before the elec-
tion, J, F. Johnson stated:
Should a majority of you, in the election Wed-
nesday, vote for the Union ... I must again tell
you this ... now be awfully sure you un-
derstand this ...
. the M.F.A. Milling Company will have the
authority and final say as to the working condi-
tions in these plants and the wages.
On June 7, the day before the election, Johnson in-
formed Tatum, as described above, that he "wasn't
';K N,L R B v Taormina, 207 F,2d 251, 254 (C A 5), and Texas Coca-
Cola Bottling Company, 146 NLRB 420,431
' Compare Exchange Parts Company, 139 NLRB 710, enfd 339 F 2d
829 (C A 5), rehearing denied 341 F 2d 584
going to give the Union five minutes of his time or
sign a contract either." On June 9, the day after the
election , Johnson sent a letter to the employees
pointing out that in a year , should 30 percent or
more of the employees in the unit be dissatisfied
with union representation , they could then petition
the Board for another election . On the following
day, June 10, Johnson wrote to the Respondent's
managers . In this letter he described the effect the
Union's victory would have:
We want to emphatically again state that the
M.F.A. Milling Company Management will still
be completely in charge of the management of
this organization .. .. Actually, the only dif-
ference is that now our Attorneys will be talking
from time to time . with Union representa-
tives about various things pertaining to the em-
ployees ....
We want to again , emphatically , state that we
will comply with the Law, fully, but that in so
doing we will still completely handle the
management and operation of this organiza-
tion . [ Emphasis supplied.]
He enclosed a newspaper article which quoted him
as saying , among other things: "we shall not be dic-
tated to or `pushed ' around in any way whatsoever
by these labor union business agents." On July 25,
while negotiations were underway , Johnson mailed
to all employees additional - copies of his letter of
June 9, which as previously stated reminded them
of their right to seek a new election after a year. On
September 23, the same day on which the negotia-
tors met for the seventh time , Raymond Leo Cur-
bow was hired as an employee by Arthur Morris,
plant superintendent . During the hiring interview
Morris stated to Curbow:
. that the fellows had voted in the union at
the mill and I could join or I didn't have to.
They didn 't care, but they were not union and
never will be . [ Emphasis supplied.]
I find that this remark reasonably conveyed to Cur-
bow the Respondent 's resolve never to sign any
contract with the Union, despite the Union's choice
as bargaining agent by a majority of the em-
ployees 40
Considering all these statements , it is concluded
that Johnson was determined not to engage in any
genuine bargaining and not to sign any agreement
with the Union because he feared that this would
be tantamount to surrendering the Respondent's
freedom of action , that is, its power to " completely
handle the management and operation of this or-
ganization ," and to "have the authority and final
say as to the working conditions in these plants and
the wages ." These expressions of attitude ac-
cordingly furnish additional indications of the
"Compare Overnight Transportation Company v. N.L R.B , 372 F.2d
765, 769 (C.A 4), where the court held that an employer 's statement: "we
are not union and we are not planning on being union " colored the em-
ployer's conduct
M.F.A. MILLING COMPANY 1099
Respondent's rejection of the principle of collective
bargaining and its lack of good faith.
g. Ultimate conclusions
In the light of the above, it is concluded that, at
all times since the Union's demand of June 20, the
Respondent has approached the bargaining table
with a closed mind and a fixed intent not, under
any circumstances, to sign any kind of a contract
with the Union. Indeed, while the Respondent's
representatives were meeting with the Union's
representatives and going through the motions-of
negotiating, Johnson and Morris were attempting to
undermine the employees' confidence in the Union,
and thereby to dissipate the Union's strength. The
conclusion is inescapable that, at all times since
June 20, 1966, the Respondent has failed and
refused, upon request, to bargain in good faith with
the Union. Such conduct was violative of Section
8(a)(I) and (5) of the Act.41 This conclusion is
buttressed by the finding, hereafter, that the
Respondent discriminated against Larimer and
Hamblin because of their support of the Union.
D. The Discrimination Against Larimer
1. The facts
S. Dean Larimer began working for the Respon-
dent in 1953, at the age of 18. For the first 6
months he worked in the warehouse as a mixer.42
He was then transferred to the chemical laboratory
as a part-time worker while attending college. Dur-
ing this period he had some trouble with his back.
After about 3 years of this, he quit the Respon-
dent's employ to teach school. For the next 4 years
Larimer taught in various schools, but also worked
in the Respondent's chemical laboratory intermit-
tently during several of the summers. He then
resumed working in the Respondent's warehouse,
operating the mixer on the second shift, but was
soon returned to the chemical laboratory. This
period of employment lasted only a few months,
and for about the next 4 or 5 years he was em-
ployed elsewhere. In November 1964 Larimer
resumed working for the Respondent in the
warehouse. After a few weeks he was again as-
signed to the mixer and about 3 months later he
was again transferred to the chemical laboratory,
but nevertheless remained on the warehouse
payroll.
In April 1966 Larimer was one of a group of em-
ployees who helped to organize on the Union's be-
half. He attended union meetings.41
As related above, on June 8 Dr. Bob Johnson
stated to Larimer: "I understand that you have
been a part of the union organization here" and in
the same conversation threatened "you will be
much better off if this union business does not car-
ry." About an hour later Larimer told Ira Hall, the
Respondent's warehouse foreman, why he was in
favor of the Union. Hall replied: "You had better
not be a part of it. I think you will only mess your-
self up by having anything to do with the Union "44
Later that day Larimer acted as one of the Union's
observers at the election.
On Friday, June 10, Dr. Bob Johnson ordered
Larimer transferred back to the warehouse. This
decision was transmitted to Larimer that afternoon
by Matthews. When Larimer asked for an explana-
tion, Matthews replied that "they needed all the
production help that they could get in the mill."
Approximately 3 weeks before this conversation,
Larimer had had further trouble with his back, fel-
low employees had helped by carrying the heavier
samples for him. Matthews was aware that Larimer
"had had back trouble for a number of years."
In accordance with instructions, on Monday
morning, June 13, Larimer reported to the
warehouse and was put to work there. On the next
day, June 14, Larimer slipped while unloading a
100-pound sack of bran from a boxcar, fell off the
dock to the ground, and the sack of bran fell on
him. This accident aggrevated his back trouble. He
underwent intermittent medical treatment for his
back from this time on.
After about 2 weeks of absence due to this inju-
ry, Larimer worked half days for a week, then full
time for 2 weeks, and then was absent again for 2
weeks because of his back condition. During the
time he was working, on or about July 19, Hall was
talking with Marvin Upchurch, an employee, about
the Union. Larimer, passing by, joined the discus-
sion, during the course of which Hall stated to
Larimer: "I told you you would only mess yourself
up by having anything to do with it, and that is what
you have done. 1145
After the 2-week absence mentioned above,
Larimer returned to work in the warehouse until
October 12. On that date his back hurt so severely
that he left work and again consulted a physician
About a week later, equipped with a brace
prescribed by his doctor, Larimer worked for 5
a' In this posture of the case, it is unnecessary for me to pass upon the
contention of the General Counsel and the Union that (1) the Respondent
never at any time made any kind of counterproposals and (2) this con-
stitutes further proof of absence of good faith
4' All of the jobs held by Larimer were at the Springfield plant.
" The General Counsel introduced evidence tending to show that on
May 20 William Russell threatened Larimer that because of his union ac-
tivities he would be transfeiied to the waiehouse I do not deem it neces-
sary to make any tindings with regard thereto because, in my opinion, the
General Counsel has failed to produce convincing evidence that Russell
was, at that time , a supervisor within the meaning of the Act
'" The findings regarding the Larimer-Hall conversation are based on
Larimer's testimony. Hall denied that he had any conversation with
Larimer concerning the Union His denial in this respect is not credited
as These findings are based on Larimer's testimony Hall admitted talking
to Upchurch about the Union on this occasion, but denied that Larimer
took part in the discussion . His denial in this respect is not credited
Upchurch did not testify
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours on a Saturday morning, but had to give up
because of the pain. He has not worked for the
Respondent since.
Two or three weeks after that, Larimer went to
see Morris and asked if he could be given a job in-
volving less lifting which he could handle. Morris
gave a noncommittal answer. A similar interview
took place during the last week in February 1967,
with a similar response by Morris. Meanwhile, as
noted above, the Union on November 3 had
requested that Larimer be returned to his laborato-
ry fob.
2. The General Counsel's case as to the transfer
The complaint alleges that on or about June 10
the Respondent transferred Larimer "to more
onerous and physically taxing and less desirable job
tasks" and since then has failed and refused to rein-
state him to his former, or a substantially
equivalent, job, because of his "membership in, ad-
herence to, and activities on behalf of the Union."
The answer contains a denial; however in its brief
the Respondent concedes.
It is undisputed that Mr. Larimer, who had
been employed in the chemical laboratory as a
sample tester, was transferred to the
warehouse on or about June 13, 1966, and that
he has not worked in the laboratory since that
date.
In this posture of the case, to establish a violation,
the General Counsel need prove only that (1) the
warehouse work was a more onerous task than the
chemical laboratory job and (2) the transfer was
discriminatorily motivated.
Before the transfer, Larimer's duties included
grinding samples and occasionally mopping the
laboratory floor. The laboratory is heated in winter
and air conditioned in summer. For approximately
2 hours each day (usually the first part of the morn-
ing) he performed an operation known as in-
gredient sampling. This involved leaving the labora-
tory, climbing into loaded, or partly loaded, box-
cars, and taking samples from 100-pound sacks
Samples were obtained by inserting a probe to ob-
tain a "core" of the product, then emptying the
sample into a container. Forty sacks were sampled
from each car and at least one-third of these were
required to be taken from below the top third of
the sacks; thus sacks had to be moved around. At
the end, the full container-then weighing 30 to 40
pounds-was carried back to the laboratory. This
part of Larimer's job (the ingredient sampling)
therefore required stooping, bending, and crawling
around inside boxcars, and carrying loads up to
about 40 pounds. After the transfer, Larimer spent
most of his time in the warehouse lifting 100-pound
sacks, stacking them, and placing them on forklifts.
In addition Larimer on occasion drove a truck or
operated a forklift. The warehouse is neither heated
in winter nor air conditioned in summer . From the
above description it is clear, and I find, that work-
ing conditions in the laboratory were more pleasant
than those in the warehouse , and that Larimer's job
tasks were physically more taxing after his transfer
to the warehouse than they had been previously in
the chemical laboratory 46
We turn now to the General Counsel's case as to
motivation for the transfer In view of the Respon-
dent 's strong antagonism toward the Union,
Larimer 's prounion sentiments (which by virtue of
his acting as observer at the election became
known not only to the Respondent but to the em-
ployees as well), the preelection warnings to
Larimer of dire consequences to follow his union
adherence , the timing of the transfer so soon after
the election, and the July 19 remark of Hali that
Larimer had messed himself up by aiding the
Union, I conclude that the General Counsel has
established a prima facie case that the transfer of
June 13 was motivated, in substantial part, by the
Respondent 's desire to penalize Larimer for his
union activities and make an example of him before
the other employees.
3. The Respondent's defense as to the transfer
With regard to Larimer's transfer, Dr Bob John-
son, who made the decision, testified.
Q. Was the transfer of Mr. Larimer to the
warehouse made for reasons of punishment or
discrimination of union activity"
A. Absolutely not.
If this testimony were to be believed it would, of
course, furnish a complete defense to these allega-
tions. According to Dr Bob Johnson, Larimer was
transferred "because he was needed back in the
warehouse" as a result of sharply increased produc-
tion in the mill in the spring of 1966. 25 percent
more volume than in the same months of 1965
While at first blush this explanation appears
reasonable, more detailed analysis indicates its in-
herent weakness:
1. On other occasions when the Respondent
desired more warehouse help, it hired men off the
street or made use of newspaper advertising. The
record shows only one prior instance where an em-
ployee was transferred into the warehouse from the
laboratory.
2. Dr. Bob Johnson testified that Larimer's "spe-
cial qualification" for the warehouse job was his
"experience"; as he put it Larimer "had been in
there and lasted." But this had been many years
ago, when Larimer was considerably younger
Moreover, Dr. Bob Johnson admitted that the
warehouse job required a strong back, yet manage-
ment knew that Larimer had recently had back
trouble in a job which required less lifting."
,h In this regard I accept the evaluation of Larimer, Tatum, Hamblin, and
Matthews and reject that of Hall
" Matthews admitted that, at the time of the transfer, he knew of
Lartmer's bad hack While Dr Bob Johnson denied such knowledge, his
denial was not convincing and is not credited
M.F.A. MILLING COMPANY 1101
3. When the Union later called on the Respon-
dent to explain the reasons for Larimer's transfer,
the Respondent refused to do so.
4. Larimer was discriminated against even after
the transfer. Thus, he testified credibly:
Q. How did their [other warehouse em-
ployees'] work differ from yours ...?
A. . . . their work differed from mine in that
I was given all of the hard jobs, all that I could
do of the hard jobs.
* * *
Q. (By Mr. Gordon) Why do you say that?
A. Because I got to unload all of the salt
cars, the phosphorous, Calcium and things that
were in paper sacks and genarally known as
harder to handle, and dirtier, and so forth.
Q. How did this differ from what the other
men did?
A. They would get to handle the ingredients
that were easier to handle that were in sacks
that were not lined, so flat on the boxcars'
floors, and did not have to be hauled so many
on a cart and piled so high.
Q. All the time?
A. Most of the time. There was a few occa-
sions where I got to do some of the other jobs.
Q. Did the other men ever do any of the
other heavier work?
A. I had a new partner every day, we
worked in pairs.
Larimer further testified, and I find, that when he
asked Hall "if he was trying to give me all of the
bad jobs," Hall replied: "not necessarily," and
laughed. It is concluded that, after Larimer's
transfer, he was harassed and that this was at-
tributable to the Respondent's vindictiveness
toward him because of his support of the Union.
5. Finally, Larimer's absence from the chemical
laboratory created a vacancy there. A new full-time
employee, Bernard Snodgrass, was soon hired and
trained to take Larimer's place and to perform all
the duties Larimer had previously performed.48
For the above reasons, it is concluded that the
Respondent's defense is weak and unconvincing
and cannot overcome the General Counsel's strong
prima facie case. Accordingly, it is found that by
transferring Larimer to more onerous work on June
13, in 'substantial part because of his union activi-
ties, and by thereafter harassing him, the Respon-
dent violated Section 8(a)(1) and (3) of the Act.
4. The refusal to reinstate
a. Contentions of the parties
As a separate violation of Section 8(a)(1) and
(3) of the Act, the complaint alleges and the
;' This finding regarding Snodgrass' duties is based on the testimony of
Larimer, Tatum, and Hamblin
41 In so finding, I reject tanmer's opinion that he was able to do so In
answer denies that, since on or about October 12,
the Respondent has failed and refused "to rehire"
Larimer "and transfer him to less physically taxing
job tasks, as necessitated by a severe and per-
manent physical disability ... caused by [an] ac-
cident arising out of, and occurring during, the
course ... of his employment" At the hearing, the
General Counsel took the position that the dis-
criminatory transfer of Larimer on June 13 was the
proximate cause of the accident he sustained on
June 14. This is based on the argument that the
Respondent transferred Larimer to the warehouse
"so that his back condition would become so dis-
abling as to force him to leave." The General
Counsel also maintains that since October 12
Larimer has been physically able to perform the
functions of ingredient sampler. In his brief, the
General Counsel speaks of the Respondent "failing
to reinstate [Larimer] on and after October 30."
Presumably this refers to a failure to reinstate him
to his former job in the laboratory, not to his more
recent one in the warehouse.
The Union contended at the hearing that, since
about 2 weeks after the accident, Larimer has been
physically capable of doing the job of ingredient
sampling, but not warehouse work. While it is not
altogether clear, the Respondent apparently de-
fends its refusal to reinstate Larimer on the, ground
that, after his accident, he was unable to perform
either job.
b. Conclusions
As the Respondent discriminatorily transferred
Larimer from his laboratory job, it would normally
be under a statutory duty to restore him to that job.
But we must take into account the accident
sustained by Larimer on June 14. I cannot agree
with the General Counsel that there was a causal
connection between the accident and unfair labor
practice. On the contrary, I find that-for the pur-
poses of this proceeding-the Respondent was in
no way responsible for the accident.
The doctor's reports contained in the record and
some of the testimony of Larimer himself establish
that, since the accident of June 14, Larimer has
been unable to perform any job which requires
heavy lifting, stooping, or bending. The warehouse
work clearly requires such activities. Whether the
ingredient sampling duties were too much for
Larimer to handle after his accident was a subject
which was explored at the hearing. Based on the
opinions of Hall and Matthews, it is found that
since June 14, 1966, Larimer has been physically
incapable of performing the function of ingredient
sampling.49 As this function was, until March 1,
1967, an integral part of his duties in the laboratory
job to which he sought reinstatement, it is con-
this connection, I note that on January 17, 1967, Larimer signed a claim
for compensation stating, among other things, that he had suffered 19
weeks of temporary disability to date
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluded that during this period the Respondent had
ample reason to refuse reinstatement, and ac-
cordingly did not thereby violate its statutory duty.
On or about March 1, 1967, according to
Matthews' undenied testimony, the function of in-
gredient sampling at the Springfield plant was trans-
ferred from the laboratory to the warehouse, to
conform with the longstanding practice at the Au-
rora plant. Thus, since about March 1, 1967,
Larimer's former job in the laboratory has not
required heavy lifting, stooping, or bending, and
has been within his physical capabilities. At the
time this change took place it therefore became in-
cumbent upon the Respondent to restore Larimer
to the laboratory job from which it had previously
illegally transferred him. It is found that the
Respondent's failure to do so constitutes a further
violation of Section 8(a)(1) and (3) of the Act.
E. The Discrimination Against Hamblin
2. Contentions of the parties
The complaint alleges, and the answer denies,
that on or about June 15 the Respondent "imposed
more onerous and less desirable work rules" upon
Hamblin, and since then "has failed and refused to
revoke said work rules" because of his "member-
ship in, adherence to, and activities on behalf of the
Union." In his response to order on motion for bill
of particulars, the General Counsel elaborates by
alleging that on or about June 15 Matthews "ad-
vised ... Hamblin, that he would no longer be per-
mitted to smoke in the employee restroom." In his
brief, the General Counsel maintains that Respon-
dent thereby subjected Hamblin "to ridicule and
harassment ... as a consequence- of his union sup-
port."
The Respondent's defense is that "Hamblin was
properly, and in good faith, warned that he was
violating the plant rules, and there was no dis-
crimination whatsoever involved."
1. The facts
William Hamblin began working for the Respon-
dent in about 1965. Since sometime in 1966 he had
been employed in the chemical laboratory on a
part-time basis. He attended a union meeting about
May 1966 and obtained signatures of some of his
fellow employees on union authorization cards. He
also acted as'one of the observers for the Union at
the election held on June 8. As previously related,
just before the election Dr. Bob Johnson told
Hamblin he understood that Hamblin "was one of
those pushing the Union" and then threatened:
"You will be better off if this union is voted down."
About a week after the election, Matthews ap-
proached Hamblin at his work place and stated that
it had been reported to him that Hamblin had been
taking a smoke in the men's restroom adjoining the
chemical laboratory. Hamblin admitted that he had
done so. Matthews warned that if this were re-
ported again "he wouldn't have any choice" but to
discharge Hamblin. He added "that things were
`hot,' so to speak, with all the union trouble ... and
everything." 0
Up to the time of this conversation, Hamblin had
openly taken smoke breaks, from time to time, in
the men's restroom next to the chemical laborato-
ry.st For a number of weeks after this conversation,
Hamblin refrained from smoking - in the men's
room, although other employees in the laboratory
continued to do so openly. According to Hamblin's
credited testimony, other employees "walked by
me going to take their smoke and kidded me and
laughed along with me and teased me because they
knew I wanted a cigarette as much as they did."
"The findings regarding this conversation are based on Hamblin's
testimony Matthews related a somewhat different version Hambhn's ver-
sion is credited as the more accurate
3. Conclusions
The statement of Matthews quoted above
represented a departure from past practice-the
record contains no prior instance when an em-
ployee was either warned about smoking or forbid-
den to smoke. Moreover, this was accompanied by
a warning that repetition would automatically result
in discharge. As Hamblin was the only employee to
whom this change was announced, the result was to
impose on him harsher working conditions than
those imposed on his fellow employees. Thus, in a
real sense, he was discriminated against.
In connection with the Respondent's defense,
Matthews testified that employees "can take a
smoke break so long as it does not .interfere with
the determination they are making and it does not
go into a bull session. I ask them that they not
bunch up when they do it." He further .testified that
on the occasion in question Morris informed him
that Hamblin "and some of the other lab boys-Mr.
Hamblin was identified by name as being involved
in smoking in the mill restroom and indications
were that it continued and had gone into a bull ses-
sion type of thing." The weakness of this defense is
that a "bull session" necessarily involves more than
one person. Although the employees concerned
were identified as "lab boys" and therefore under
Matthews' jurisdiction, neither Morris nor
Matthews made any attempt to identify them as in-
dividuals or to reprimand anyone other than
Hamblin. The defense therefore is not only uncon-
vincing but serves to strengthen the impression that
Hamblin, and Hamblin alone, was singled out for
The Respondent maintains no written rules concerning smoking Su-
pervisors knew that employees of the laboratory, from time to time,
smoked in the men's restroom, but did not object
M.P.A. MILLING COMPANY 1103
punishment while others equally guilty were
ignored. The conclusion is inescapable either that
Hamblin never actually violated any plant rule re-
garding smoking, or, if he did, that his violation was
seized upon as a pretext to conceal the real reason
for the revocation of his smoking privileges.
Why then was such special treatment accorded
Hamblin? The reason is not hard to find when we
recall the Respondent's strong union animus and
Dr. Bob Johnson's threat to Hamblin just before the
election. By publicly acting as a union observer,
Hamblin made himself a logical target for the
Respondent's retaliation. It is clear that the
Respondent, by taking away his smoking privileges,
penalized him for his support of the Union. The
Respondent's antiunion motivation is underscored
by Matthews' mention, during the conversation
concerning smoking, of "union trouble." It is
further indicated by the almost simultaneous dis-
crimination against Larimer-another union ob-
server. Accordingly it is concluded that since on or
about June 15, the Respondent has discriminated
against Hamblin with regard to the imposition and
enforcement, of work rules because of his ad-
herence to the Union, thereby violating Section
8(a)(1) and (3) of the Act.
F. The Alleged Discrimination Against Jones
1. The facts
George A. Jones has worked for the Respondent
since about 1941. His job was described by his su-
pervisor as "general maintenance work." He and
five or six others are employed in the maintenance
department under the supervision of Orville Knight,
maintenance superintendent. One employee, Fred
(Shorty) Gullett, devotes his working time exclu-
sively to painting.
Jones was the first employee of the Respondent
to contact the Union. He attended a union meeting
and obtained signatures on union authorization
cards from his fellow employees.
On or about October 20 or 25, Jones openly
wore a union button on his cap while at work. He
was the only maintenance department employee to
do so, although six or eight employees in other de-
partments did so. About a week later Gullett was
being assisted on a painting job (a grain elevator
over 1100 feet high) requiring a scaffold, when his
assistant quit. A swinging scaffold, such as was then
in use, requires two men (one on each end) to raise
and lower it; Gullett could not continue without a
helper. Knight assigned Jones to assist Gullett on
the scaffold. Jones refused, stating that he was
afraid of the height. Knight replied that he "would
never force anybody to go high" and apparently
abandoned the grain elevator project, at least tem-
porarily. Instead, he assigned Gullett and Jones to
painting the outside of another building.52 This was
done with a brush, on a ladder 8 or 10 feet high.
During this period Jones, in addition, continued his
former duty of tending the boiler in the morning
and evening. After a few days of this painting,
Jones removed his union button. After about a
week, Jones was taken off the painting job and
restored to his former duties'53
2. Contentions of the parties
The complaint alleges and the answer denies that
on or about October 31 the Respondent transferred
Jones "to more onerous, less desirable and more
dangerous job tasks," and until November 14 failed
and refused to reinstate him "to his former, or [a]
substantially equivalent position" because of his
membership in, adherence to, and activities on be-
half of the Union." According to the General
Counsel in his brief, Jones' duties "do not include
painting," and by assigning him to paint the
Respondent "exerted pressure on George Jones to
force him to quit or quiet down his union senti-
ments or to show other employees the omnipotence
of the Company and the futility of seeking help
through unionism."
Conversely, in its brief the Respondent contends
that painting "was a routine part of Mr. Jones' du-
ties in the maintenance department" and "similar
to work he had previously performed." The
Respondent, in its brief, also denies knowledge of
Jones' prounion activities.
3. Conclusions
At the threshold we are met with the question
whether the painting work assigned to Jones late in
October was, as alleged, "more onerous, less
desirable and more dangerous" than other work as-
signments given to Jones. On this subject, Jones
testified:
A. I am no painter and I never was what I
would call a painter. I dislike it because it is
messy with me, I get it all over myself and my
clothes, and the feed dust, and all the dirt gets
into that and it is real-to me it is real dirty
work.
*
Q. Did it hurt your eyes?
A. No, sir. It sure messed my glasses up.
I am convinced that, in so testifying, Jones was in-
dulging in some exaggeration and magnifying his in-
convenience. Viewed objectively, I deem these
complaints' almost de minimis.54
51 This finding is based on Knight's testimony Jones related a somewhat
different version To the extent that they differ, I credit Knight's version as
more accurate than that of Jones
53 The painting job had not then been completed Knight testified that
the weather got too bad for outside painting
54 Contrast Metalab-Laberaft, Division of Metalab Equipment Company,
148 NLRB 709, enfd 367 F 2d 471 (C A, 4), cited by the General Coun-
sel
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, Knight testified credibly, and
I find, that 6 years earlier and again at the end of
1966 (after the above-described incident) Jones
spent about a week painting two 80,000 gallon
molasses tanks and one 40,000 gallon tank; about 4
years earlier and again about 2 years earlier he had
spent about 4 days each time painting two small
boilers, and also spent about a week painting the
boilerroom walls and ceiling. Knight also testified
credibly that on occasion he had assigned other
maintenance workers to painting. In view of Jones'
classification as a general maintenance worker, and
his other experiences painting in and around the
plant, it is concluded that the assignment to paint
the outside of a building late in October was not
beyond the scope of Jones' normal duties. Nor has
the General Counsel established that this painting
job was substantially more onerous, less desirable,
or more dangerous than other work assigned, from
time to time, to Jones or other employees in the
maintenance department. The allegation of dis-
crimination against Jones therefore has -not been
proved. In view of this determination, I deem it un-
necessary to rule upon the Respondent's defense
that it was unaware of Jones' union activities.
Upon the above, findings of fact and upon the en-
tire record in this case, I make the following:
CONCLUSIONS OF LAW
1. M.F.A. Milling Company is, and at all materi-
al times has been, an employer within the meaning
of Section 2(2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Laborers International Union of North Amer-
ica, AFL-CIO, Local Union No. 676, is, and at all
material times has been, a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
laboratory employees and truckdrivers employed at
the Respondent's Springfield and Aurora, Missouri,
plants, excluding office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The above-named labor organization was, on
June 16, 1966, and at all times since has been, the
exclusive representative of all employees, in the
above-described unit for the purposes of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing, on and after June 20, 1966, to
bargain collectively with the above-named labor or-
ganization as the exclusive representative of all em-
ployees in the above-described unit, the Respon-
dent has engaged in and is engaging in unfair labor
ss The letter, among other things, requested the name, etc , of each new
employee hired in the future and of each employee terminated in the fu-
ture While this information was belatedly supplied (presumably up to
practices within the meaning of Section 8(a)(5) of
the Act.
6. By discriminatorily transferring S. Dean
Larimer to more onerous work on June 13, 1966,
by thereafter harrassing him by failing and refusing
to reinstate him to his former position on and after
March 1, 1967, and by discriminating against Wil-
liam Hamblin with regard to the imposition-and en-
forcement of work rules, thereby discouraging
membership in the above-named labor organiza-
tion; the Respondent has engaged in- and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
7. By the above-described conduct, and by other.
conduct interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
8. The above-described unfair labor practices
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce,
and constitute unfair labor practices-affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act.
9. The General Counsel has failed to establish,
that the Respondent discriminated against George
A. Jones within the meaning of Section 8(a)(1) or
(3) of the Act, or that by the conduct of Richard L.
Matthews on or about July 29, 1966, it committed
any unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
THE REMEDY
As the violations of the Act found to have taken
place are persuasively related to other unfair labor
practices proscribed by the Act, the danger of their
commission in the future is to be anticipated from
the, Respondent's past conduct. It will therefore be
recommended that the Respondent cease and de-
sist, not only from the unfair labor practices found,
but also from in any other manner infringing upon
the rights of its employees guaranteed in Section 7
of the Act.
Affirmatively, it will be recommended that the
Respondent, upon request, bargain collectively
(through properly authorized representatives) with
the Union as the exclusive representative of all em-
ployees in the appropriate unit with respect to
wages, hours, and other working conditions, and
embody any understanding reached in a signed
agreement.-It will further be recommended that the
Respondent forthwith, in response to the Union's
letter of December 16, 1966, notify it when and
where it will resume negotiations; furnish the Union
at reasonable intervals with the information
requested in its letter of September 23, 1966;55 and,
date) on April 21, 1967, additional new hires and terminations may well
have taken place within the unit since that date or might in the future take
place
M.F.A. MILLING COMPANY 1105
upon -request, meet with the Union and confer with
it concerning grievances involving employees
within the appropriate unit.56 The Union in its brief
requests, in addition, that the Respondent be
required "to reimburse the Union for all expenses
incurred,in connection with its -unfair labor prac-
tices, including ... all attorney's fees, all other and
incidental expenses including the time of union per-
sonnel used in - organizing, in negotiating, and in
litigating the matters in dispute herein." Undoub-
tedly arguments can be made that, in flagrant cases,
the Charging Party should be reimbursed for attor-
ney's fees allocatable to the prosecution of unfair
labor practice charges, for it has been recognized
that the Charging Party may have vital - private
rights in Board proceedings.",, On the other hand,
the principal responsibility for the prosecution of
such charges rests with the General Counsel, a
public official, and the Charging Party's decision to
be separately represented by- counsel of its -own is a
voluntary one on its part. Therefore, it does not
seem to me necessary to effectuate the purposes of
the Act that the Respondent be required to reim-
burse- Union for counsel fees. However, the
Respondent from the beginning of negotiations
deliberately pursued a course of conduct designed
to frustrate bargaining and make all negotiating ses-
sions a fruitless waste of time. I therefore consider
it-appropriate to require the Respondent to reim-
burse each -employee member of the negotiating
committee, except Larimer,18 for wages lost while
attending past negotiating sessions (excluding the
session held on March 23, 1967), or any future ses-
sions in which the Respondent continues to fail or
refuse to bargain with the Union in good faith,59
plus-6-percent interest.
It will further be recommended that the Respon-
dent offer S. Dean Larimer immediate and full rein-
statement to the position he held immediately prior
to June 10, 1966 (as -reconstituted on and after
March 1,, 1967), or a substantially equivalent posi-
tion, without prejudice to any rights or privileges he
previously enjoyed, It will also be recommended
that the Respondent, make Larimer whole for any
loss of earnings he may have suffered as a result of
the Respondent's discriminatory failure to reinstate
him on and after March 1, 1967,,by paying to him a
sum of money equal to the amount he would nor-
mally have earned from,that date to the date of
offer of reinstatement, less his net earnings during
the said period, to be computed on a quarterly basis
in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, including the
payment of 6-percent interest as set forth by the,
Board in Isis Plumbing & Heating Co., 138 NLRB
716. In addition, it will be recommended that the
Respondent preserve and make -available to the
Board, upon request, payroll and other records
necessary to facilitate the computation of the
backpay due.
It will also be recommended that the Respondent
notify William Hamblin, in writing, that the smok-
ing restrictions placed upon him on or about March
15, 1966, have been removed. It will further be
recommended that the Respondent post the usual
notices.60
Finatty, it will be recommended that the com-
plaint be dismissed, insofar as it alleges that the
Respondent discriminated .against George A. Jones,
or that the conduct of Richard L. Matthews on or
about July 29,,1966, violated the Act.
Upon the above findings of fact and conclusions
of law and upon the entire record in this case, I
make the following:
RECOMMENDED ORDER
It, accordingly, will be recommended -that M.F.A.
Milling Company, Springfield and Aurora,- Missou-
ri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership, in, support,of, or
activities on behalf of, Laborers International
Union of North America, AFL-CIO, Local Union
No. 676, or any other labor organization, by trans-
ferring any of its employees to more onerous work,
by harrassing any of them, by refusing to reinstate
them to their former jobs, or by discriminating
against any of them in regard to the imposition or
enforcement of work rules, or any other term or
condition of their employment.
(b) Creating or fostering the impression that it
has kept or is keeping the concerted activities of its
employees under surveillance.
-(c) Informing its employees that it would not
bargain with, or execute any collective-bargaining-
contract with, any labor organization selected by
them as-their bargaining representative. ,
(d) Informing its employees that it would never,
under any circumstances, sign a collective-bargain-
ing contract which contains any form of union-
security clause. -
(e) Threatening- its employees with loss of
benefits .should they select a labor organization as
their collective-bargaining representative: .
ss The Respondent illegally failed and refused , upon request , to process
the grievance arising from Larimer 's transfer- Normally, I would recom-
mend that the Respondent now process that grievance However, as the
same grievance is one of the subjects of the charges herein, and is disposed
of in the Recommended Order hereafter , I will not recommend that the
Respondent be now required to process this particular grievance
" International Union , United Automobile , Aerospace & Agricultural Im-
plement Workers of America , AFL-CIO, Local 283 v Scofield, et al., 382
U.S. 205,220
58 Latimer was physically unable to work at his former job during the 10
bargaining sessions described herein, and therefore cannot be considered
as having lost wages by attending
" In so doing, I note that the number of employees on the negotiating
committee attending past sessions has, in my opinion, been reasonable
'Citing H W Elson Bottling Company, 155 NLRB 714, the General
Counsel and the Union urge that, in addition, the Respondent be required
to mail a copy of the notice to each employee. I consider the Elson case
distinguishable and its remedy inappropriate here. Accordingly, the
request is denied
350-999 0 - 71 - 71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Promising benefits to its employees should
they refrain from selecting a labor organization as
their collective-bargaining representative.
(g) Interrogating its employees concerning their
union sympathies, affiliations, or activities in a
manner constituting interference, restraint, or coer-
cion.
(h) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their rights protected by Section 7 of the
Act, except to the extent that such rights may be af-
fected by an agreement in conformity with Section
8(a)(3) of the Act, as amended.
2. Take the following affirmative action, which it
is found will effectuate the policies of the Act:
(a) Upon request, bargain- collectively (through
representatives fully authorized to negotiate a con-
tract) with the above-named labor organization as
the exclusive representative of the employees in the
unit described below, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement. The appropriate unit is:
All production and maintenance employees,
laboratory employees, and truckdrivers employed
at the Respondent's Springfield, Missouri, and Au-
rora, Missouri, plants, excluding office clerical em-
ployees, professional employees, guards, and super-
visors as defined in the Act.
(b) Forthwith in response to the letter of
December 16, 1966, notify the above-named labor
organization, in writing, when and where it will
resume collective bargaining.
(c) Furnish the above-named labor organization,
in writing, at reasonable intervals, with the informa-
tion requested in the letter of September 23, 1966,
concerning hires into or separations out of the
above-described appropriate unit since April 21,
1967, and in the future.
(d) Upon request, meet with the above-named
labor, organization at reasonable times and places
and confer with it concerning grievances involving
employees' in the above-described unit.
(e) Make whole each employee member of the
negotiating committee of the above-named labor
organization (except S. Dean Larimer) for earnings
lost while attending past negotiating sessions (ex-
cluding the session held on March 23, 1967), or
any future sessions in which the Respondent should
fail or refuse to bargain with the above named
labor organization in good faith, with interest
thereon at the rate of 6 percent per annum.
(f) Offer S. Dean Larimer immediate . and full
reinstatement to the position he held immediately
s' In the event that this Recommended Order is 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 Ap-
prior to June 10, 1966 (as reconstituted on and
after March 1, 1967), or a substantially equivalent
position, without prejudice to any rights or
privileges previously enjoyed. Should he be cur-
rently serving in the Armed Forces of the United
States, notify him of his right to full reinstatement,
after discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act of
1948, as amended.
(g) Make whole S. Dean Larimer for any loss of
pay he may have suffered by reason of the Respon-
dent's failure and refusal to reinstate him on and
after March 1, 1967, with interest` thereon at the
rate of 6 percent per annum.
(h) Notify William Hamblin, in writing, that the
smoking restrictions placed upon him on or about
March 15, 1966, have been removed.
(i) Preserve, and upon request, make available
to the Board or its agents, for examination or copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful to deter-
mine or compute the amount of backpay due
hereunder.
(j) Post at its plants in Springfield and Aurora,
Missouri, copies of the attached notice marked
"Appendix." 1 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, after
being duly signed by a representative of the
Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(k) Notify the said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint
herein be dismissed, insofar as it alleges that the
Respondent discriminated against George A. Jones,
or that the conduct of Richard Matthews on or
about July 29, 1966, violated the Act.
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 Na-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
Si In the event that this Recommended Order is 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 "
M.F.A. MILLING
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in,
support of, or activities on behalf of
Laborers International Union of North
America, AFL-CIO, Local Union No. 676, or
any other union, by transferring employees to
more difficult or unpleasant work, by har-
rassing them, by refusing to reinstate them to
their former jobs, or by discriminating against
them in regard to the imposition or enforce-
ment of work rules, or any other working con-
dition.
WE WILL NOT create or foster the impression
that we spy on the union activities of our em-
ployees.
WE WILL NOT tell our employees that we will
not bargain with, or sign any contract with, any
union selected by them as their collective-bar-
gaining agent.
WE WILL NOT tell our employees that we will
never, under any circumstances, sign a con-
tract which requires them, as a condition of
employment, to become or remain members
of, or pay dues to, any union.
WE WILL NOT threaten our employees with
loss of benefits if they select a union as their
bargaining agent.
WE WILL NOT promise benefits to our em-
ployees if they do not select a union as their
bargaining agent.
WE WILL NOT question our employees about
their union sympathies, affiliations, or activities
in a manner constituting interference, restraint,
or coercion.
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, join, or assist any union, to bargain col-
lectively through agents of their own choosing,
to engage in concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities, except to the extent that such
right is affected by an agreement requiring
union membership as a condition of employ-
ment, as authorized in Section 8(a)(3) of the
COMPANY 1107
ployees, guards and supervisors as defined
in the Act.
WE WILL, at once, notify the above-named
union when and where we will resume collec-
tive bargaining.
WE WILL, at reasonable intervals, furnish the
above-named union with information
requested concerning hires into or separations
out of the above-described unit.
WE WILL, upon request, meet with the
above-named union and confer with it con-
cerning grievances involving employees in the
above-described unit.
WE WILL reimburse the employee members
of the Union's negotiating committee (except
S. Dean Larimer) for wages lost while attend-
ing past negotiating sessions, or any future ses-
sions in which we do not bargain in good faith
with the union, with 6-percent interest.
WE WILL offer S. Dean Larimer immediate
and full reinstatement to the job he held before
June 10, 1966, or a substantially equivalent
job, with all rights or privileges he previously
held. If he should now be serving in the Armed
Forces of the United States, we will notify him
of his right to full reinstatement, after
discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act of 1948, as amended.
WE WILL reimburse S. Dean Larimer for any
loss of pay caused by our failure to reinstate
him, with 6-percent interest.
WE WILL notify William Hamblin that the
smoking restrictions previously placed upon
him have been removed.
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of any union, except to the extent that such right is
affected by an agreement permitted by Section
8(a)(3) of the Act, as amended.
M. F. A. MILLING
COMPANY
(Employer)
Act, as amended. Dated By
WE WILL, ',upon request, bargain collectively
(through fully authorized agents) with the
above-named union as the exclusive represen-
tative of all employees in the unit described
below, with respect to wages, hours, and other
working conditions, and if an understanding is
reached, put' it in a signed agreement. The ap-
propriate unit is:
All production and maintenance em-
ployees, laboratory employees and
truckdrivers employed at our Springfield
and Aurora, Missouri, plants, excluding
office clerical employees, professional em-
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, 610 Federal Building, 601 E. 12th Street,
Kansas City, Missouri 64106, Telephone FR
4-5181.