The Loudonville Milling Co.

National Labor Relations Board - Board Decisions

Aug 31, 1948

79 N.L.R.B. 304 (N.L.R.B. 1948)

In the Matter of THE LOUDONVILLE MILLING COMPANY and AMERICAN
FEDERATION OF GRAIN PROCESSORS (AFL)
Case No. 8-C--.108.-Deckled-August 31, 1948
DECISION
AND .
ORDER
On September 4, 1947, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitl d proceeding, finding that
the Respondent had engaged, and was engaging, in certain unfair labor
practices,' and recommending that it cease and desist, therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report,, attached hereto. Thereafter,, the Respondent. filed
exceptions to the Intermediate Report together- with a supporting
brief.
The Board 2 has reviewed the rulings made by the Trial Examiner
at-the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.3 The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and the entire record in
the case. To the extent that they are consistent with this Decision
and Order, the Board adopts the findings, conclusions and recommenda-
tions of the Trial Examiner .4
1. The Trial Examiner found, and we agree, that Walter Reiden-
bach's discharge on December 11, 1947, was discriminatory.
The Respondent contends that Reidenbach was discharged (1) be--
cause of the need for a reduction in force at the warehouse upon the
IThe provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act which
the Trial Examiner found were violated are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act, as amended by the Labor Management Relations Act of 1947.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the Board has
delegated its powers in connection with this case to a three -man panel consisting of the
undersigned Board Members [ Houston, Reynolds , and Gray].
3 The Respondent 's request for oral argument before the Board is denied inasmuch as
the record, including briefs, adequately presents the positions of the parties.
4 Board Counsel did not except to the Trial Examiner's recommendations that certain
allegations of the complaint be -dismissed . These recommendations are, accordingly,
affirmed
79 N. L R. B., No. 37.
304
C-
THE LOUDONVILLE MILLING COMPANY 305
"termination of the harvest season, and (2) because Reidenbach was
-less experienced and less competent than the other employees at the
warehouse. As to the first point, the harvest season ended on Decem-
ber 1, 1946, yet Reidenbach was retained until December 11, 1946, a
day after he joined the Union. The Respondent states that it retained
him from December 1 to December 11, because it did not want to dis-
charge any of its employees before. the emergency flour work was
.ended, fearing that any discharge prior to that time would precipitate
mass resignations and interfere with the completion of the emergency
flour shipments. While this may explain the retention until December
11, 1946, of Russell Lewis and Arzy Watson, who were related to most
of the other temporary employees by blood or marriage, there seems
to be no reason to suppose that this was the reason for the retention of
Reidenbach, *ho, so far as it appears from the record, was not related
to any of the other discharged employees.5
As to the Respondent's contention that Reidenbach was less efficient
than the other warehouse employees, this seems to be supported by
the record. However, it does not appear that Reidenbach was less
efficient than some of the employees who were retained to work in
the mill after December 11, 1946, particularly those who were hired
several months later than Reidenbach.e These employees were hired
for unskilled work in the mill, and were still employed-at the time of
the hearing in this case. The Respondent fails to explain why it
retained these unskilled employees in preference to Reidenbach, who
had, in fact, done some work in the mill on the emergency flour. In
the absence of such an explanation, the following circumstances, set
'forth in' the Intermediate Report, are persuasive that Reidenbach was
discharged because of his membership in the Union :
In the morning of December 11, 1946, Reidenbach's supervisor, Seig,
'asked him if he had signed a union card and warned him that he
would be laid off if he had signed a card and did not tear it up. These
statements were repeated by Seig the same morning. A few hours
later, Reidenbach admitted in Seig's presence that he had joined the
Union. Still later on the same day he was discharged.'
5 Reidenbach testified that he did some work on the emergency floes. However , in the,
absence of any evidence fixing the dates on which this work was done, we may not assume,
as the Respondent suggests in its brief , that this work was done after, rather than before,
December 1, 1946.
6 Ray Peters and Solester Swinehart
7In reaching the conclusion that Reidenbach was unlawfully discharged , we do not rely
on the Trial Examiner ' s finding that the Respondent had more warehouse employees at the
time of the hearing than it had during the period in which Reidenbach 's discharge occurred
This finding was apparently based on certain unclear testimony by Seig, which, read in the
light of exhibits introduced by counsel for the Board, fails to support the Trial Examiner's
finding. These exhibits show that at the time of the hearing there were only six employees
306 DECISIONS OF NATIONAL LABOR „ RELATIONS BOARD
2. We do not agree with the Trial Examiner's conclusion that the
discharges of Russell Lewis and Arzy Watson were discriminatory.
We shall, therefore, dismiss the complaint as to them.
Russell Lewis
,The Trial Examiner rejected the Respondent's contention that Lewis
was discharged because of his • inefficiency. In so doing, the Trial
Examiner, in our opinion, gave undue weight to the fact that the
Respondent had retained Lewis in its employ since 1944. This is
accounted for adequately, we believe, by the evidence indicating that
Lewis' work was acceptable until 1946, when his relatives began to
obtain employment at the mill. Moreover, there was uncontradicted
evidence that throughout the period of Lewis' employment by the
Respondent it had great difficulty in recruiting competent employees.
Accordingly, we do not believe that the fact of Lewis' retention until
December 11, 1946, negates the overwhelming evidence in the record
of his inefficiency, excessive breakage of flour sacks, absenteeism, loaf-
ing, gambling during working hours, and smoking in prohibited areas,
much of which was admitted by Lewis and which amply justified his
discharge.
In all other respects Lewis' case would seem to stand substantially
on the same footing as that of the 6 employees whom the Trial, Ex-
aminer, found to have been lawfully discharged.
Arzy Watson
Like the other employees who were found ,by the Trial Examiner to
have been lawfully discharged, Watson worked on the tank-construc-
tion job. While, as the Trial Examiner found, in certain minor re-
spects Watson was not as insubordinate as the other members of the
construction crew, the many witnesses who described that crew as in-
efficient'failed to except him from that appraisal. We believe, there-
fore, that the Respondent had lawful cause for discharging Watson s
In any event, while we agree with the Trial Examiner that the
Respondent, prior to Watson's discharge, must have had knowledge
of the widespread union activities among its employees, there is no,
direct evidence that the Respondent knew that Watson was a member
of the Union. In the absence of direct evidence of an Employer's
knowledge of an employee's union membership or activity, such
at the warehouse , whereas on December 11, 1946, the date of Reidenbach 's discharge, there
were seven warehouse employees , including Reidenbach.
B In our opinion , the Trial Examiner gave undue weight to the conversation between
President Be Bout and Watson, a few days before the latter 's discharge, as manifesting an
intent to retain the latter indefinitely in the Respondent 's employ.
THE LOUDONVILLE MILLING COMPANY 307
knowledge may be inferred from the circumstances surrounding ,a dis-
charge or other discriminatory action affecting such employee.,, How-
ever, we do not find sufficient basis for such an inference in the, instant
case io
3. We agree, with the Trial Examiner's conclusion that the Re-
spondent violated Section 8 (1) of the Act. However, in support of
this conclusion, we rely only on Seig's interrogation of Reidenbach,
mentioned in paragraph 1, above, and on Seig's repeated warnings to
Reidenbach on,December 11, 1946, as described by the Trial Examiner,
that Reidenbach would be laid off if he joined, or,failed to repudiate,
the Union. . .
ORDER
Upon the entire',record in this case,, and pursuant to Section 10 (c)
of the National Labor Relations Act, as, amended, the National Labor
Relations Board hereby orders that. the, Respondent, The Loudonville
Milling Company,, Loudonville, Ohio, and its officers, agents,, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Discouraging, membership in American Federation of Grain
Processors (AFL), or any other labor organization of its employees,
by discriminating with, regard to the hire .and tenure of employment
or any terms or conditions of employment of its employees;
(b) Interrogating employees concerning their union sympathies;
(c) Warning employees that their union membership may result
in loss of employment;
(d) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist American Federation of
Grain Processors (AFL), or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Walter Reidenbach immediate and full" reinstatement to
his former or substantially equivalent position without prejudice to.
his seniority and other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of the discrimination
B g, Matter of Brenner Tanning Co, Inc., 50 N. L. R. B. 894.
io
There is no evidence that Watson was active in the affairs of the Union. See Matter
of Boss Manufacturing Company, 78 N L R B 538
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him, by payment to him of a sum of money equal to that which
he normally would have earned as wages from the date of the dis-
crimination against him to the' date of the Respondent's offer of re-
instatement, less his net earnings during such period;
(b) Post at its plant at Loudonville, Ohio, copies of the notice at-
tached to the Intermediate Report n Copies of said notice, to be fur-
nished by the Regional Director for the Eighth Region, shall, after
being signed by Respondent's representative, be posted by it imme-
diately upon receipt thereof, and maintained for sixty (60) consecu-
tive days thereafter,, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered, by any other material ;
(c) Notify the Regional Director for the Eighth Region in writing
'within ten (10) days from the receipt of this Order, what' steps the
'Respondent has taken to comply' herewith.
- IT IS FURTHER ORDERED that the complaint be, and' it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated against
Jacob Arnhelt, Harold Watson, Ralph Chapman, Owen Watson,,Arzy
Watson, Jonti Garretson, Russell Lewis and Ralph Stull, or has inter-
fered with,' restrained; 'or coerced its employees by the speech of De-
cember 26, 1946, and the wage increase of January 1947.
INTERMEDIATE REPORT
Mr. John A. Hull, Jr., for the Board.
Stanley ,& Smoyer, by Messrs. Weller K. Stanley and Carl H. Clark, of Cleve-
land, Ohio, for respondent.
Mr. Norman D. Crane, of Buffalo, N. Y., for the Union.
t
STATEMENT OF THE CASE
Upon a charge duly filed on December 13, 1946, by American Federation of
'Grain Processors (AFL), herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Eighth Region
(Cleveland, Ohio), issued its complaint dated April 8, 1947, against The Loudon-
ville Milling Company, herein called respondent, alleging that respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8.(1) and.(3) and Section 2 (6) and (7) of the -National
Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint
11 This notice shall be amended, however, by striking from the heading the words "The
Recommendations of a Trial Examiner" and substituting therefor the words "A DECISION
AND ORDER,': and by striking the names of Russell Lewis and Arzy Watson from the
notice If this Order is enforced by a decree of a United States Circuit Court of Appeals,
there shall be inserted in the notice,.before the words "A DECISION AND ORDER," the
words, "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS
ENFORCING " '
THE LOUDONVILLE MILLING COMPANY 309
and- charge , accompanied by notice of hearing thereon, were duly served upon
respondent and the Union. -
With respect to the unfair labor practices, the complaint alleged in substance,
that respondent : (1) during and after December 1946, questioned its employees.,
concerning their union activity, urged them to abandon the Union and threatenedc
them with discharge because of their membership therein; threatened the with-
drawal of economic benefits and granted wage increases to discourage member-
.ship in the Union, and required its employees to listen to an anti-Union address ;
(2) on or about December 11, 1946, discharged 9 named employees' and thereafter
refused to reinstate them because of their membership in and activity in behalf
of the Union; and (3) by the foregoing conduct engaged in unfair labor practices
within the meaning of Section 8 (1) and (3) of the Act.
On April 17, 1947, respondent filed a motion for a Bill of Particulars. There-
after, on April 23, 1947, the motion was granted in part and denied in part by
the Regional Director for the Eighth Region: On that date, a Bill of Particulars
was submitted by counsel for the Board.
Respondent 's answer, filed on April 30, 1947, admitted the allegations of the'
complaint with respect to the nature of its business, but denied the commission
of any unfair labor practices, stating affirmatively that each of the nine alleged
to have been discriminatorily discharged had been discharged for good cause.
Pursuant to notice, a hearing was held from May 5 to 15 and from June 2 to
4 at Loudonville, Ohio, before the undersigned Trial Examiner, Martin S. Bennett,
duly designated by the Chief Trial Examiner The Board and respondent were
represented by counsel and the Union by its representative. All parties partic-
ipated in the hearing and were afforded full opportunity to be heard, to, examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the opening of the hearing, counsel for respondent moved for further particu-
lars, namely those particulars denied by the Regional Director prior to the hear-
ing. The motion was denied. Motions by counsel for the Board to amend the
Bill of Particulars and to conform the pleadings to the proof with respect to
formal matters were granted without objection. Various motions by respondent
to dismiss the complaint and to strike the testimony of certain witnesses were
denied with leave to renew in part Upon the request of the parties, the under-
signed took a view of respondent's plant and offices. At the conclusion of the
hearing, counsel for the Board and for respondent argued orally before tlie-under-
,signed, and were afforded an opportunity to file briefs and/or proposed findings
of fact andiconclusions of law with the undersigned. A brief and proposed find-
ings and conclusions have been received from respondent'
On_-4ugust 25, 1947, after the close of the hearing, respondent riled with the
undersigned a motion to correct certain typographical errors in the transcript,
' Their names are :
Jacob Arnholt Ralph Roy Chapman Jonti Garretson
Russell Lewis Walter Reidenbach Ralph Stull
Harold Watson Owen Watson Arzy Watson
2 On April 29, the undersigned also ruled upon the motion which had in the interim
been referred to him. However, as appears below, the Bill of Particulars had already been
furnished by counsel for the Board in response to the order of the Regional Director
3 The undersigned rules as follows with respect to the proposed findings and conclusions.
Proposed findings 1, 2, 3, 4, 5, 6, 7, 13, 20, 24, 25, 27, 28, 31, 32, 33, 35, 36, 37, 38, 40, 41,
42, 43, 44, 45, and 46 are accepted. Proposed findings 8, 9. 10. 11, 12, 14, 15, 16, 17. 18, 19,
21, 22, 23, 29, 30, 34, 39, and 42, and proposed conclusions 1, 2, 3, 4, and 5 are rejected
as defective either in whole or in part. Proposed finding 26 is construed to embrace union
membership within its purview and is rejected.
809095-49-voI 79-21
310 DECISIONS OF NATIONAL LABOR.-RELATIONS-BOARD
and, according- to the -motion, served copies thereof on the other-parties., The
motion is hereby received in evidence as Trial Examiner's Exhibit 2 and is
granted.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Loudonville Milling Company, an Ohio corporation, has its principal office
and place of business at Loudonville, Ohio, where it is engaged in the milling of
wheat, corn, oats, and other grains. The principal product milled is flour.
During the year 1946, respondent purchased grains valued in excess of $750,000,
of which amount more than 10 percent was shipped to the plant from points
located outside the State of Ohio. During the same period, respondent milled
and sold flour and other products valued in excess of $1,000,000, of which amount
more than 90 percent was shipped to points outside the State of Ohio.4
Respondent concedes a,3id the undersigned finds that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Grain Processors (AFL) is a labor organization
admitting to membership employees of respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
1. Respondent's plant and premises ; the building of the tanks
Respondent 's principal operation is conducted in a large flour mill located on
the outskirts of the village of Loudonville. Approximately three quarters of a
mile distant are the company offices together with a small warehouse 'where
some'flour and feed are stored and where animal feed is prepared . On December
11, 1946, when the nine discharges took place, respondent had approximately 44
employees , thus reducing the number of employees it has since ' relained in its
employ.
Early in 1946 , respondent decided that its several grain storage tanks located
adjacent to the mills were inadequate, and desiring to eliminate charges for
grain storage incurred in the neighboring city of Mansfield , contracted- in March
1946 with the Columbian Steel Tank Company of Kansas City , Missouri, for
the erection of three 70 -foot steel storage tanks . Columbian furnished the
drawings in accordance with which foundations were laid by respondent, pro-
4 Subsequent to the close of the hearing, the parties entered Into a stipulation which is
hereby received in evidence as Trial Examiner's Exhibit No. 1 The stipulation set forth
(1) a controlling interest in the stock of respondent corporation was purchased on or
about June 20, 1947, after the close of the bearing, by The Standard Milling Company of
Chicago, Illinois, (2) this transfer of stock was made with the knowledge on the part of
the transferee of the pendency of the instant matter before the Board, and (3) with the
exception of the replacement of President H. H. BeBout by his son L E. BeBout, no change
in personnel was contemplated.
THE LOUDONVILLE MILLING COMPANY .- 311
vided one of its supervisors, Henry Emerich, to direct erection of the steel tanks,
and sold respondent the steel sections to be used in erection of the tanks;
respondent, however, was to provide the men for the construction crew.
After March, work started on the foundation of the tanks, and some addi-
tional employees were hired by respondent for this purpose. On September 6,
1946, Emerich arrived in Loudonville to supervise the actual erection of the steel
sections. The erection of the tanks took somewhat longer than had been antici-
pated, due to the inefficiency, neglect of duty, and absenteeism of the construction:
crew. Emerich left Loudonville on November 9, at which time the tanks were
substantially completed but for the hoppering of the bottoms of two of the three
tanks and some work which was required on the tank conveyors.
All but two. Arnholt and Reidenbach, of the nine alleged to have been dis-
criminated against worked, at least part of the time, on the erection of the tanks.
2. Emergency flour
It is respondent's contention that after the bulk of the work on the tanks
had been completed, it was desirous of eliminating from its employ the inefficient
workers who had been engaged on that project. However, shortly before the
near completion of the tank job on November 9, the following occurred. Since
early in 1946, a government regulation had been in effect which required all flour
mills, in order to conserve grain, to produce only flour which was 80 percent white,
this flour being commonly referred to as "emergency flour." This order was
rescinded by the President of the United States during the last week in August
11,140, and shoi tly thereafter, on September 3. respondent resumed operations on
its standai d grades of flour. Respondent's custpniers, howevei, tound them-
selves with quantities of this emergency flour on hand which was either' unsale-
able or unuseable inasmuch as fully extracted or 100 percent flour had once
more become available. Accordingly, respondent agreed to accept return of this
flour from its customers and during the month of September returns of this flour
began to accumulate in respondent's mill and continued to do so for a number
of weeks. The government then contracted to take this emergency flour off
respondent's hands and export it for foreign relief. Respondent immediately
took steps to arrange the shipping out of this emergency flour in accordance with
the instructions of the government commencing on or about November 1. Most of
it required repacking and resacking; part of it remained in the original 10 and
25 pound bags which were placed in 100 jute bags, but the large portion of
the original bags was reopened and the flour sent through the mill and then
resacked. The last of this emergency flour was loaded by respondent on box cars
on or about December 9 and 10.
It is respondent's contention that it retained a number of the inefficient tank
crew employees whom it would have otherwise discharged on completion of the
tank work for the purpose of handling this emergency flour, and that upon the
completion of this work, respondent, on December 11, discharged the nine em-
ployees named above, eight of whom had been working in or about the mill and
the other at the warehouse adjacent to the office.5
3. The union campaign
There is no evidence of any union organizational activity among the employees
of respondent prior to the campaign set foith below. On Saturday evening,
Owen' Watson remained on tank construction until his discharge on December Ii In
addition , one other mill employee wsa also discharged at this time.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 7, 1946, Norman Crane, vice president of the Union, came to the home
of employee Russell Lewis and discussed the question of the organization of
respondent's employees. He gave Lewis a number of union cards and Lewis pro-
cured the signature of an employee on the 9th and also solicited the signature
of another employee. Lewis gave some of the cards to employee Jonti Garretson
on the 9th who obtained a number of signatures between December 9 and 11, both
within and without the mill, and by the evening of December 11, had 21 signatures.
These 21 included the 9 who were discharged on the afternoon of December 11.
It is the contention of respondent that it had no knowledge of the union activi-
ties among its employees until after the discharges of December 11 had been
carried out ; that upon the substantial completion of the shipments of emergency
flour, President BeBout and Plant Superintendent McLoud immediately selected
a group of employees to be released; and that the first news that a labor organi-
zation had been organizing among the employees was not received until several
days thereafter. With respect to this contention, it must be noted that the plant
is a small one with few workers, fluctuating from approximately 28 to 40 in
number with but one admittedly supervisory employee, George McLoud, in charge
as plant superintendent. Not only were cards signed by a majority of the men,
some of them on the plant premises, but the following events also transpired.
On December 11, before the discharges were carried out at the close of the day,
millwright Dwaine Simmons spoke to Arzy Watson, whose discharge is discussed
below, asked who was the "big shot" in the Union, and added that all signers
of union cards would be discharged. During the same day, Simmons also spoke
to Owen Watson, another dischargee, and asked what he knew of the Union,
repeating that all signers of cards would be discharged but that he did not believe
Owen would be among them'
On December 9, head packer Paul Jones was asked by Russell Lewis, another
dischargee, to sign a union card. Jones at first agreed but later in the day
stated that respondent would discharge anyone who signed.'
On the afternoon of December 10, Loading Foreman Elmer Harman was over-
heard by Roy Chapman, another dischargee, speaking to employee Frank Sprang
and stating that it would not benefit the men to join the Union as hours would
be cut and net earnings would not be increased.'
It is respondent's further contention that these three men, Simmons, Jones,
and Harman are not supervisory employees for whose conduct it is to be held
responsible. But Jones is listed in the company records as head packer and
Harman as loading foreman, and each received several cents more per hour than
the men who work with them. Simmons interpreted blue prints for the men,
did some surveying, had charge of general repairs, and received a wage rate
in excess of that paid to the plant laborers. All three were long term employees
O The testimony of Arzy Watson and Owen Watson which the undersigned credits.
Arzy Watson favorably impressed the undersigned with his demeanor . In fact, he was
opposed to the bringing of the instant proceeding , as he testified on cross -examination by
respondent. Simmons denied the statement attributed to him by Owen Watson and alleged
that Arzy Watson asked him, Simmons , if the leaders of the Union were to be discharged.
His testimony herein is rejected.
7 This finding is based upon the credited testimony of Lewis. Jones was an evasive wit-
ness who strove to evade giving testimony concerning the nature of the duties of the
packing crew . His denial of this Incident is not credited.
8 The testimony of Chapman which the undersigned credits. Both Harman and Sprang
testified but were not questioned concerning this conversation . Harman testified that he
did not hear of the union campaign until 1 or 2 days after the discharges . Harman, how-
ever, contradicted himself with respect to his testimony and was an evasive witness. His
testimony herein is rejected.
THE LOUDONVILLE MILLING COMPANY 313
who would customarily relay to the men instructions' they received directly from
either President BeBout or 3lcLoud, thus directing the men in the performance
of their duties. In fact, in one instance, an employee was discharged after
Harman recommended his discharge. Although these three are most accurately
described as working foremen because they did work along with the men whose
work they directed, and respondent may not be held liable for their statements
as such under the doctrine of respondent superior, the conclusion is inescapable
from their statements, as set forth above, that the brief union campaign in so
small a plant inevitably received considerable publicity prior to December 11
and had at least come to the attention of three working foremen who were
situated directly beneath the plant superintendent in the table of organization.0
B. The discharges: interference, restraint, and coercion
1. Walter Reidenbach
The discharge of Reidenbach is distinguishable from those of the other eight
herein involved, inasmuch as he was the only one not employed at the mill
or on the tank construction crew. Reidenbach, who for 20 years had been a
farmer in the Loudonville area, was hired by Earl Seig, foreman in charge of
the uptown warehouse located adjacent to the company offices, ° and started
work at the warehouse on or about July 15, 1946, as a warehouse hand. His
duties included the unloading of wheat and grain brought by farmers and assist-
ing with the operations of the grain grinder.
On or=about September 1, 1946, Virgil Smail who.:had been emplgygd- at the
warehouse as a truck driver, resigned from respondent's employ." Foreman
Seig then asked Reidenbach, as the latter testified, if he "wanted a permanent
job . . . driving a truck." Reidenbach accepted and from that time until his
discharge on December 11, 1946, regularly drove the warehouse truck. On
Tuesday, December 10, Reidenbach was sent to the mill to obtain a load of
bran. While there, his membership in the Union was solicited by employee
Jonti Garretson and Reidenbach signed a union card.
On the following day, December 11, Reidenbach testified that he was spoken
to on several occasions by Foreman Seig with respect to the Union. While in
the warehouse office, in the morning, Seig asked Reidenbach if he had signed
any of the union cards that were being distributed. Reidenbach replied in the
negative, whereupon Seig stated that all who had signed, would be "laid off."
Later that morning, Seig summoned Reidenbach to the office and stated, "If you
signed that card, you better get it and tear it up, because . . . if you don't you
will get.laldloff.','. Still.later,,while Reidenlaach-was, about-to,drive away on an
0In arriving at these conclusions , the undersigned has not relied upon the testimony of
employee Jesse Watson who testified that on several occasions shortly after December 11,
Superintendent McLoud discussed the Union with him and interrogated him concerning
his membership therein. Watson, in the opinion of the undersigned , was an unreliable
witness who contradicted himself repeatedly and his uncorroborated testimony has been
rejected. It is found, however, as both Watson and McLoud testified, that several days
after December 11 Watson on his own initiative informed McLoud that he was a member
of the Union.
10 Seig is admittedly a supervisory employee with authority to make recommendations
concerning the hiring and firing of employees and whose recommendations generally meet
with success
11 Respondent had one truck at the warehouse which was used for various local and out-
of-town deliveries as well as on errands for the mill and warehouse.
I
314 DECISIONS OF NAT{ONAL LABOR RELATIONS BOARD
errand, Seig came out to the truck and repeated substantially the same remarks
as on the two earlier occasions.''
Between 10: 30 and 11: 00 that morning, Dave Kline and Reidenbach unloaded
a shipment of flour which Reidenbach had brought on the truck. During this
task, Reidenbach stated to Kline, as the latter testified, that he "had a notion
to join the Union." Kline replied that he had joined whereupon Reidenbach
admitted that he too had joined!' Shortly before noon, Reidenbach entered
the warehouse office and discovered Kline and Foreman Seig there. Kline
then told Reidenbach, in Seig's presence, that he and Seig had signed
union cards and that Reidenbach might as well admit he had signed the card
inasmuch as he had previously told Kline of so doing. Reidenbach then asked
Seig if he had signed a card. Seig, whose back at this moment was turned,
but who was present throughout the entire talk, said nothing but merely turned
around and grinned
At about 4: 50 that afternoon, according to Seig, he was called to the plant
office and was instructed by President H. J. BeBout to discharge Reidenbach.
Seig returned to the warehouse and gave Reidenbach a check for his pay which
had been made out by the office bookkeeper. Reidenbach protested, saying that
he did as much work as any one ; Seig replied that that was not the reason for
the discharge. Reidenbach then protested that an error was being made if he
was discharged because of the Union. Seig replied that it was not because of
the Union but for "lack of work;" inasmuch as respondent had too many
employees.
Conclusions
I Respondent's contentions are in effect that (1) Reidenbach was an unsatis-
factory employee and (2) he was laid'off due to lack of work. As to the first
contention the only logical conclusion is that, assuming Reidenbach was an un-
satisfactory employee, respondent did not apparently. regard ' him • as such at
the time. Thus, although Reidenbach may have been hired, as respondent con-
tends, as a seasonal harvest hand, he was nevertheless, in September, offered'
a permanent job as a truck driver, although respondent then had in its employ
in' the, warehouse an experienced -truck, driver, Elmer Young. In -fact, Young
indoctrinated Reidenbach- in his duties as truck. driver. In addition, although
according to Foreman Seig, the;harvest rush was concluded by December 1, and
the warehouse then resumed its regular hours rather than the -longer hours
that were worked during the harvest rush, Reidenbach was not released at that
time, although Young was, available, but was kept on until the day after he
joined'the Union. Finally, Reidenbach's competence as a worker is demonstrated
12 These findings are based upon the clear and forthright testimony of Reidenbach who
favorably impressed the undersigned. In addition , as appears below, Seig gave inconsistent
testimony. • Although Seig strove in his testimony •to show that Reidenbach was an unsat-
isfactory worker, he nevertheless assured Reidenbach , on discharging him that the perform-
ance of his duties had nothing to do with,the discharge. , Seig's denial that he had those
conversations with Reidenbach on,December 11, is not credited.
The testimony of employees Dave Kline and Elmer Young that Seig did not talk to Reid-
enbach• during the morning of December 11, is of little value. Young admitted that toilet
and washroom facilities were located in the plant office building , some distance away, that,
he was not near the warehouse office all the time, and that he was frequently busy mixing
food and waiting on customers. His co-worker Dave Kline admitted that a conversation,
in the office could not be heard from the rear of the warehouse , that Seig could have stepped
out of the warehouse without Kline being aware of that fact, and that one 's ability to see
people entering and leaving the warehouse office would depend upon where one was stand-
ing in the warehouse.
13 In fact, Kline had not joined and was opposed to the Union , as he testified.
THE LOUDONVILLE MILLING COMPANY 315
by the assurance from Seig, when discharging him, that there was nothing
wrong about his work and that he was being released only for lack of work.
'With respect to the second contention, Reidenbach was not, as respondent con-
tends, a seasonal harvest hand at the time of his discharge. Although he was
hired in July, when the harvest season commenced, and performed duties as a
harvest hand, he was offered and accepted a permanent job as a truck driver in
September. This position existed prior to the harvest and before it was filled
by Reidenbach and is still in existence with Elmer Young filling it at the present
time, having been transferred from his other duties. Furthermore, although,
-respondent contends in its brief that respondent reduced its warehouse force
by one man upon the discharge of Reidenbach, the testimony of Seig shows that
at the time of the instant hearing, respondent had one more employee in its
warehouse force than it had during the previous year.
With respect to the events that took place on December 11, it has been found
above that Reidenbach was' threatened by Seig that morning with discharge if
he did not tear up his union card. There is no question that later that same
day Reidenbach, who had previously admitted to employee Kline that he had
joined the Union, was -asked by Kline in Seig's presence, to again admit that he
had signed a [union] card" Seig, who admitted grinning when this took place
and who did not reply to Reidenbach's question whether he, Seig, had signed a
card, attempted to explain this by saying that he did not know what subject
they were discussing and he did not ascertain the subject matter until December
12, when he allegedly asked Kline if he, Kline, was referring to a union card on
the previous day. In view of the patent unreality of Seig's explanation of this
•conversation, the opportunity of Kline who was strongly opposed to labor organi-
zations to inform Seig of what he had ascertained concerned Reidenbach's union
activities,'s and finally, Seig's interrogation of Reidenbach that morning, the
undersigned rejects Seig's explanation herein and it is found that on December
11, prior to the discharge, Seig was aware that Reidenbach was a member of
the Union.
In view-of the above, coupled with the lack of substance to respondent's con-
tentions with respect to the discharge of Reidenbach, the undersigned is impelled
to conclude that Reidenbach was discharged on December 11, not for lack of
work as stated'by respondent, but rather for his union membership, thereby
discriminating in regard to his hire and tenure of employment. It is further
found that by the interrogation of Reidenbach by'Foreman Seig on December 11,
respondent has'interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act.
-2. The other discharges
a. Their employment history
With the exception of Russell Lewis, who entered respondent's, employ in
October 1944, the other dischargees entered respondent's employ between March
and November 1946. Save for Chapman and Arnholt, all are related through
blood or marriage and- come from the same area in West Virginia. All were
discharged at the close of work on December 11, 1946, as was the case with
Walter Reidenbach, whose case has heretofore been set forth.
14 This, according to Kline, was his idea of a joke.
15 Kline was one of a group of older employees in the plant and had been in respondent's
-employ for 41/s years at the time of the hearing.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The alleged inefficiency of the workers
It is apparent, as contended by respondent, that progress of the actual con-
struction of the tanks was painfully slow. As noted above. Supervisor Henry
Emerich of The Columbian Company arrived in Loudonville on or about Sep-
tember 6, and departed November 9.16 Emerich credibly testified as to the slow-
ness of the tank erection, the insubordination and the laziness of the crew,
gambling during working hours, and violation of plant rules by employees, in-
cluding smoking in prohibited and dangerous areas; the record also shows the
consistent absence of a number of workers on the crew. This was corroborated
by considerable testimony upon the "part of other witnesses, and it is clear that
respondent's contentions for the most part as to misfeasance and nonfeasance of
duty on the part of its workers are supported by the record.17
c. The discharges
Arzy Watson entered respondent's employ on or about July 25, 1946, and was
assigned to laboring duties and the grading and tending of lawns, although on
occasion he would work in the mill proper. He is a man 65 years of age and
was not assigned to dangerous work on construction of the tanks. He joined
the Union on December 9 or 10. As in the case of the other members of this
group, it is respondent's contention that Watson was hired for temporary work,"
that he was shiftless and inefficient, and that he was discharged upon comple-
tion of the shipments of emergency flour when respondent could at last reduce
its staff as it had long planned.
The record, however, in large measure does not support respondent' s position
in this respect. Thus, Emerich testified that of his entire construction crew Arzy
Watson was the only one who was ready for work when the morning and noon
whistles blew and that Arzy, unlike the others, notified him when he was to
he absent. It must also be borne in mind that Emerich complained regularly to
President BeBout about his crew, and discussed. the ability of the men with
BeBout. Furthermore, according to employee Thomas Allenbaugh, who also
did outdoor cleaning work in the vicinity of the tanks, Arzy was the only one in
the crew who did not curse Millright Simmons. Finally, 2 or 3 days prior to De-
cember 11, President BeBout had a conversation with Arzy which is highly signifi-
cant. He approached -Watson while the latter was clearing brush and cutting
trees and stated that he desired Watson to grub out an old stump, to do some
grading so that a,lawn could be built, and to get it done before the weather,
became inclement.19 He also told Watson that in the spring he desired.,some
hedgerows, already existing there, to be straightened out, and further stated
that he would furnish Watson a "couple of men" for the project. According to
18 The period between March and September was spent in excavation and the digging of
tunnels to be used in connection with the tanks.
11
Although the term "tank construction crew" was used throughout the entire proceeding
and did include the majority of the dischargees herein involved, it was never made clear,
although there were others, just who else was on the crew.
1s
Respondent contended that of the nine dischargees all but Russell Lewis and Walter
Reidenbach were expressly told when hired that the work was to be temporary work only.
11 This was apparently grading and construction of a lawn in the area surrounding the
newly erected tanks.
THE LOUDONVILLE MILLING COMPANY •317
Watson, the project outlined by BeBout would have taken a crew of three men
approximately 2 months 20
Not only is this conversation silent as to any intention to terminate Watson,
but assuming , as respondent contends, that Watson was originally hired for tem-
porary work, this talk shortly before the discharge manifests an intention to
retain him in respondent's employ indefinitely. In addition, although President
BeBout testified that respondent was desirous all through the summer and fall
of 1946 of reducing its pay roll and respondent adduced considerable testimony
to the effect that eight of the nine dischargees herein involved were told when
hired that they were hired for temporary work, the record shows that during the
summer and fall of 1946, despite the announced desire to reduce its staff, respond-
ent was hiring additional help Thus, Ray Peters and Solester Swinehart were
hired in October and were not told that,they were temporary employees. There
were also others who were hired in July and December 1946, although in most
cases these others left respondent's employ prior to December 11.
The above facts impel the conclusion that absent an intervening factor Arzy
Watson would not have been discharged on December 11, and the undersigned is
further unable to credit respondent's contention that it had no knowledge of the
widespread union activities existing among its employees prior to effecting the
,discharge zi Under the entire picture the undersigned is of the belief and finds
that Arzy Watson was not discharged for the reasons assigned by respondent but
because of his union activities, thereby discriminating with respect to the hire
and tenure of his employment.
Russell Lewis entered respondent's employ in October 1944, and was assigned
to trucking flour on the first floor from the bottoms of the chutes to the railroad
-box cars. After a period of time, he was transferred to the upper floor of the
plant where he trucked newly sacked flour to the chutes. When construction of
the tanks commenced in the fall of 1946, Loading Foreman Elmer Harman asked
Lewis if he would volunteer for work on the tanks, promising that on completion
of the project lie could return to his former position?- On or about October 24
,he was transferred back to time mill and unfid his discharge on December 11
trucked flour on the upper floor to the chutes as he had done formerly.
He was a lending protagonist of the Union, having received cards from,the
anion representative on December 7, solicited the membership of a number of
employees, signed up one employee, and finally delivered to the union representa-
tive the signed cards procured by employee Jonti Garretson.
Considerable testimony was adduced by respondent to show how large a num-
ber of flour sacks Lewis had broken by careless handling with resultant loss
10 The credible testimony of Watson who has previously been found a reliable witness
BeBout did not deny this conversation. According to him there was no further work for
Watson at the time of his discharge.
n It will be recalled that this is a small plant employing from 28 to 40 employees and
that the majority of these people had indicated their union adherence. Under such cir-
cumstances, it is only logical to infer, that knowledge of the union activities most have
come to the attention of management.
ii This was denied by Harman. In testifying concerning this incident, however, Harman
contradicted himself several times. He stated (1) that President BeBout instructed him
to send Lewis to the tanks because of his inefficiency in breaking flour sacks ; ( 2) he did
not ask Lewis to work on the tanks , (3) lie might have asked Lewis to work on the tanks ;
and (4) that Lewis did volunteer to work on the tanks His denial is rejected.
G
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the company , his gambling during working hours and untidy personal habits,
and, in effect, his general unsatisfactoriness as an employee . It was respond-
ent's contention , as President BeBout testified , that there had always been com-
plaints concerning Lewis throughout his tenure as an employee , and that he
had proved unsatisfactory on all jobs on which be had been tried . Thus, according
to McLoud , for a full year prior to Lewis' discharge , he had complained to BeBout
concerning Lewis' purported habit of tossing his used tobacco cud out of the
window. And finally , that respondent released Lewis when the emergency flour
shipments were complete."
There are , on the other hand , a number of factual inconsistencies which• are"
apparent when respondent's purported attitude to and treatment of Lewis are
considered . It will be recalled that Lewis was hired in 1944, well prior to the
tank construction project in 1946 when respondent increased its staff and was
beset with a scarcity of help . And although respondent's witnesses alleged that
Lewis had always been an unsatisfactory employee , there is no evidence of any
disciplinary action taken against him in the period prior to erection of the tanks.
Respondent also adduced testimony to show that Lewis was so careless in
dumping flour bags down the chute that his percentage of breakage was much
higher than that of other employees and that as a result , respondent transferred
him from the mill to the tank construction crew in order to cut down its losses on
breakage . Paradoxically, however, Lewis was transferred back to the mill on
or about October 24 and from then until December 11 resumed his former job
of dumping flour sacks down the chutes . This was done * by respondent , despite,'
the testimony of Plant Superintendent McLoud that if a man were unsatisfactory
he would be sent to another job. McLoud attempted to explain this by stating
that upon being transferred to the mill , Lewis personally assumed the job of
dumping flour without instructions or asking permission to work there. In view
of the extremely unsatisfactory work performance attributed to Lewis by re-
spondent 's witnesses and McLoud's policy set forth above of sending an unsatis-
factory employee to another job, the undersigned finds implausible - and rejects
McLoud 's explanation that he p 'rmitted Lewis to assume a position from which
he had been transferred because of his alleged inefficiency therein"
Although the case is closed , in view of Lewis' long tenure with respondent,
respondent's treatment of Lewis which was inconsistent with its contention that
he was and always had been an extremely inept employee , Lewis' leading role
in the union campaign , the general knowledge of the union campaign in the
plant, and the fact that respondent was hiring employees shortly prior to De-
cember 11 , as appears above, the undersigned is persuaded and finds that Lewis
23 It was respondent 's position that these shipments were made under a permit which`a
exempted the shipper from an embargo levied on certain railroad shipments and that this
was a reason for haste in completing the shipments on or about December 10 or 11. An
exhibit introduced in support of this contention shows, however, that the embargo Itself
was lifted on December 9 and that unlimited shipments could be made after that date.
Although , as found above , respondent was desirous of shipping its flour in all haste, its
contention with respect to beating the deadline under an exception to the embargo is not
supported by the record.
21 As construction of the tanks was almost complete at this point a number of men were
being transferred into the mill and it is apparent that another could readily have been
assigned to this particular task . McLoud claimed that as Lewis had but a few days more
to work after his transfer , he permitted him to stay in the dumping job. The fact is that
Lewis remained there for over 6 weeks.
I
THE LOUDONVILLE MILLING COMPANY 319
was discharged by respondent on December 11, 1946, not for the reasons assigned
by respondent , but rather for his union activities, thereby discriminating with
respect to his hire and tenure of employment.23
Owen Watson entered respondent's employ on May 6, 1946, and was assigned
to a work gang engaged in sending sacks of flour down chutes to railroad box
cars. About 2 weeks later, he was transferred to the tank construction crew
and worked on that assignment until his discharge on December 11; in fact,
on that date, he was the only employee, in addition to Millwright Simmons,
who was still, engaged in work on the tanks, the others in the crew having
been transferred to work on the emergency flour . Owen testified that on
December 11, a month's work remained on the tanks, with bolts to be painted
and conveyers to be installed. According to Simmons, the tanks were complete
on December 11 but for some machinery to be installed by him. He testified
that cold weather set in and halted his work shortly after December 11 and
that he completed the job in 3 weeks during the spring of 1947.
On December 9, Owen signed a Union card at the request of employee Jonti
Garretson, and as set forth above, on December 11, Simmons questioned him
concerning the Union and announced that all who had signed cards would be
discharged.
The record indicates, as Construction Superintendent Emerich testified, that
Owen was a very satisfactory worker at the outset of the construction work
in September and that President BeBout at that time told Emerich of his inten-
tion to make Owen a foreman's BeBout when questioned concerning this inci-
dent, claimed that Emerich had "kidded" Watson concerning a promotion. In
view of Emerich's testimony, however, which the undersigned deems the more
reliable, BeBout's version of this incident is rejected. In addition, Watson un-
controvertedly testified that on one occasion, while on the tank job, President
BeBout praised his work and stated that he would have an easier job later on.
Significantly, however, Emerich further testified that the quality of Owen's
work steadily deteriorated as work on the tanks progressed because he fell
under the influence of the remainder of the crew, which, as set forth above, was
Inefficient, careless , and insubordinate , and which consisted in large part of his
relatives , and that he, Emerich, reported this to President BeBout. Although,
in view of the findings heretofore made, respondent's treatment of Owen Watson
is suspicious , upon the entire picture the undersigned is persuaded and finds
that the evidence is insufficient to support the allegations of the complaint.
Jacob Arnholt entered respondent's employ on November 5, 1946, and was em-
ployed in hauling feed and flour to box cars at the mill. He worked, in part at
least , on the emergency flour and testified that the shipments of this flour were
about complete when he was discharged on December 11. His membership in
the Union was solicited by Jonti Garretson and Arnholt signed a union card
at the mill on December 10.
25 In arriving at these conclusions , the undersigned has not relied upon testimony that
respondent extended itself in Lewis' behalf by assistance in the financing of an automobile
and by purchasing a small house which it leased to Lewis, after Lewis' wife had asked
respondent for assistance in finding living quarters . As noted elsewhere herein , respondent
frequently loaned its employees money for personal reasons.
26 Watson erroneously testified that his statement was made about 1 week before his
discharge on December 11. Emerich, however, left Loudonville on November 9 and the
conversation must have preceded that date. In the opinion of the undersigned, the date
set by Emerich is probably the correct one.
320 DECISIONS OF NATIONAL LABOR RELATIONS , BOARD
It was apparently the contention of the counsel for the Board that respondent
took steps to keep Arnholt in its employ, thus controverting the contention of
respondent that Arnholt was a temporary employee whom it discharged on
December 11, upon completion of the shipments of emergency flour. In support
,thereof, Arnholt testified that his automobile broke down about 2 weeks prior to
December 11 and in a conversation he held with President BeBout, the latter
,suggested that he purchase a reliable vehicle so that he could get to work.- As in
the other discharges, respondent contends that Arnholt was discharged for lack
of work when the flour shipments were finished.
Upon the above, the undersigned is of the opinion and finds that there is no
substantial and persuasive evidence to support the allegations of the complaint
herein.
Ralph Chapina1it entered respondent's employ on December 19, 1946 He was
assigned to the tank construction crew, but after 2 weeks, having been heckled
by his co-workers on the crew, he requested and received a transfer to the mill
where he trucked flour until his dischargeon December 11 for lack of work.
According to Chapman, lie was not told, when hired by President BeBout, that
his job .would be temporary.2' His membeiship in. the Union was solicited by
Jonti `Garretson and he joined on December 10
The only evidence in support of the Board's contention would appear to be that
-(1) -Chapman was riot told that-he was being hired for temporary work and (2)
the contention, decided adversely to the Board above, that emergency flour ship-
-ments:were not substantially complete on December 11. Assuming the first con-
tention to be correct, nevertheless, in' view of the substantial completion of the
shipments of emergency flour on December 11,,,the undersigned finds that there is
a lack of substantial and persuasive evidence to support this allegation of the
complaint. -
Harold Watson entered respondent's employ on March 15, 1946. He was as-
signed to gardening and landscaping work for approximately 1 month and was
'then transferred to the tank construction crew:- About 10 days before December
11, he was transferred to the mill and worked on emergency flour until his dis-
charge on the 11th for lack of work, His membership in the Union was solicited
by Garretson and he signed a union card on December 9. Watson testified that
when hired he was told by President BeBout that he desired to keep Watson on
landscaping work "steady," and that'BeBout- desired a• married man who would
not leave the job. A number of respondent's witnesses testified, however, that
Watson was one of those hired for temporary work and was so told. The record
further indicates that in May, at Watson's request, President BeBout agreed to
move -Watson's furniture and belongings to Loudonville from the town of New-
comerstown in the, company truck.
Assuming the above to indicate that President BeBout extended himself to
assist Watson in his moving problem, the fact still remains that Watson worked
for :i number of months on the tank construction crew And, as found above,
there is consideiable'evidence in the record as to the unsatisfactory nature
of the work performed by this crew. and on one occasion, according to Emerich,
be was-cursed by Watson. Furthermore, as Watson testified, the shipments of
emergency flour were substantially complete on December 11. It is accordingly
found that there ist lack. of substantial and persuasive evidence to support this
,allegation of the complaint.
27 This was denied by several of respondent' s witnesses including President BeBout.
THE LOUDONVILLE'MILLING COMPANY 321
Ralph. Stull entered respondent's employ, according to its records, on August
13, 1946, and was assigned to the tank construction crew and thereafter to truck-
ing of emergency flour. Stull was not available at the time of the instant
hearing, and the record indicates little other than the dates and the nature of
his employment which, as in the case of the others, was terminated by discharge
on December 11. It is, therefore, found that there is no substantial evidence in
support of this allegation of the complaint.
Jonti Garretson entered respondent's employ on or about June 17, 1946, and
was assigned to wink on the tunnels then being dug tor use with the storage
tanks. In the latter part of October, he was transferred to the mill where he,
worked on the loading gang ti ucking flour to the boxcars.d8 He was one of the-
prn,cipal`prohigonists of the Union, having been interested theiein by employee
Russell Lewis who gave him some blank membership cards on December 9.
Garretson signed up a large number of the employees and also signed a card-,
personally on December 10. As in the other cases, he was selected for discharge
on December 11 and released for "lack of work "
Garretson contended that when hired he was informed that he would have
"steady" work ; this, however, was contraverted by a number of respondent's
witnesses , including President BeBout, who testified that Garretson was told
when hired that his work would be temporary. The following evidence was also
offered by counsel for the Board, apparently in support of the contention that
respondent's treatment of Garretson was that of a valued employee-who would
not, in the normal course of events, have been released by respondent.
Thus Garretson testified that approximately 2 weeks after entering respond-
ent's .mnplo} in June l94(i President BeBout granted him the use of the company"
truck to move his furniture and belongings ; that about 3 weeks thereafter he
borrowed $200 from the company through President BeBout in order to purchase
ar automobile ; and that approximately 2 weeks prior to his discharge he bor-
rowed another $75 at which time BeBout told him that he was a good worker.
The testimony of Assistant General Manager Lawrence BeBout, which the under-
signed credits herein, indicates that on the basis of an inspection of respondent's
cfcial records the later loan of $75 was made in October. It is also true that'
respondent as a policy matter regularly and, frequently made, loans to its
employees.
Garretson further alleged that about-8 or 10. weeks after 'entering respondent's
employ, President BeBout told him that he would be transferred, to the mill
from the tank construction crew because of. his excellent work. According to
BeEdut, and his testimony was supported by that of a number of witnesses who,
came into contact with Garretson's work, he transferred Garretson to the mill
because of his carelessness on the construction crew. Garretson denied that
he gambled and slept during working hours, swore at other employees, and
was guilty' of general inefficiency and carelessness, as, attributed to hum 1Sy 'a
number of 'employees called as witnesses for respondent,- although he did admit'
that oh one occasion he was warned by BeBout concerning the destructive inannei
in which lie dumped flour "° '
In view of the above, and as it has been found that, respondent had'an-actual
need for rediicing its Staff on December, 11, the undersigned is of the opim,oit
28 Garretsbn erroneously testified that the transfer took place in August
20 According to BeBout this warning took place several days befoie Garretsen ,s dischargra-
on December'11' ' '
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and finds that the evidence is not sufficient to show a discriminatory motive on
the part of respondent in effecting Garretson's discharge."
3. Interference , restraint and coercion
Counsel for the Board also introduced evidence of several incidents alleged,
to have interfered with, restrained, and coerced the employees of respondent in,
the exercise of the rights guaranteed by Section 7 of the Act.
On or about December 26, 1946, President BeBout summoned his employees
in small groups to the plant office during working time for which they were
paid and there read a prepared speech. A perusal of the speech, a copy of
which was introduced in evidence, discloses that it is a temperate expression
of opinion on the subject of union organization. Although it manifestly is an
argument in opposition to the joining of a labor organization, it contains no
economic threats or promises of economic benefits and, as the undersigned finds,
is non-coercive. In view thereof, it will be recommended that this allegation
of the complaint be dismissed 8'
The complaint further alleges that respondent engaged in conduct violative.
of the Act by requiring its employees to listen to the above anti-Union address.
As noted heretofore it has been found that respondent has discriminated with,
respect to the hire and tenure of three employees as well as engaged in other
conduct violative of the Act. In accordance with a recent decision of the
Circuit Court of Appeals for the Second Circuit,32 it appearing that no similar
opportunity was granted to the labor organization to address the employees
concerned, and in view of the compulsory nature of attendance at the speech
for which time the men were remunerated, and the entire picture as set forth
above, it is found that by requiring its employees under the above circumstances
to listen to a speech on the subject of union representation, respondent has
interfered with, restrained and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
Respondent granted a wage increase of 10 cents per hour to its employees
on or about January 1, 1947, and the complaint alleges that this was granted in
order to discourage membership in the Union. The record indicates, however,
that respondent at its regular Board of Directors' meeting, held during October
1946, took up, as was customary , the question of a wage increase and voted
in favor of one to be granted in January 1947 in order to offset the increase
in the cost of living to its employees. In this state of the record, the undersigned
finds that the evidence is not sufficient to sustain the allegations of the complaint
herein.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of respondent set forth in Section III, above, occurring in con-
nection with the operations of respondent described in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
80 On one occasion , according to BeBout , Garretson told him that he had been away for
a few days ; that he had discussed a union with some people ; and that he did not want to
belong to a union. Garretson did not testify concerning such a conversation.
81 N. L. R . B. v. Virginia Electric and Power Co., 314 U . S. 469 , 477; N. L. R. B. v. Amer-
ican Tube Bending Co ., 134 F. ( 2d) 993 ( C. C. A. 2 ), cert. den. 320 U. S. 768. -
12 N. L. R. B. v. Clark Bros . Co., 163 F. (2d) 373 ( C. C. A. 2 ), decided July 29, 1947.
it,,'„THE' LOUDONVILLE MILLING COMPANY;'
V. THE REMEDY
323
Since It has been found that respondent has engaged in certain unfair labor
practices, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that respondent has discriminated with respect to the hire
and tenure of employment of Walter Reidenbach, Arzy Watson, and Russell
Lewis, by discharging them because of their concerted or union activities. The
undersigned will therefore recommend that respondent offer each of them imme-
diate and full reinstatement to his former or substantially equivalent position 88
without prejudice to his seniority or other rights and privileges, and make each
of them whole for any loss of pay he may have suffered by reason of such dis-
crimination, by payment to each of them of a sum of money equal to that which
he would have earned as wages from the date of such discrimination to the date
of offer of reinstatement, less his net earnings 84 during such period.
It has also been found that respondent did not discharge Jacob Arnholt, Harold
Watson, Ralph Chapman, Owen Watson, Jonti Garretson, and Ralph Stull in
,violation of Section,8 (3) of the Act, and it will therefore be recommended that
the complaint be dismissed as to them. It will further be recommended that
the complaint be dismissed insofar as it alleges that the contents of the speech
by President BeBout on or about December 26, 1946, and the wage increase of
January 1947, were in violation of Section 8 (1) of the Act.
Inasmuch as the discharge of an employee for reasons of union affiliation or
activity has been regarded as one of the most effective methods of defeating the
exercise by employees of their right to self-organization, the undersigned is of
the belief that there is real danger that the commission of unfair labor practices
generally is to be anticipated from respondent's unlawful conduct in the past.
It will therefore be recommended that respondent be required to cease and
desist from in any manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act 8s
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
. 1. American Federation of Grain Processors, affiliated with the American
Federation of Labor, is a labor organization within the meaning of Section 2
(5) of the Act.
2. By discriminating with regard to the hire and tenure or employment of
Walter Reidenbach, Arzy Watson, and Russell Lewis, thereby discouraging
membership in the Union, respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
1+ In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but If such position is no longer in existence, then to a substantially equiva-
lent position." See Matter of The Chase National Bank of the City of New York, an
Juan, Puerto Rico, Branch, 65 N. L. R. B. 827.
34 See Matter of Crossett Lumber Company, 8 N. L R. B. 440, 492-8.
35 N. L. R. B. v. Entwistle Manufacturing Co., 120 F. (2d) 532. 536 (C. C. A. 4) ;
N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350-353 (C. C. A. 7).
. sa See N. L. R. B. V. Express Publishing Co., 312 U. S. 426; May Department Stores Co. V.
N. L. R. B., 326 U. S. 376.
324- DECISIONS OF-NATIONAL -LABOR-RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the *Act.
5 Respondent has not discriminated with regard to the hire and tenure of
employment of Jacob Arnholt, Harold Watson, Ralph Chapman, Owen Watson;'
Jonti Garretson, and Ralph Stull.
6. Respondent has not interfered with, restrained, or coerced its employees by
the contents of the speech of December 26, 1946, and by the wage .increase of
January 194
RECOMMENDATIONS
` Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that respondent, The Loudonville Milling Company,
Loudonville, Ohio, its officers, agents, successors, and assigns shall:
- 1.' Cease and desist from :
(a) Discouraging membership in American Federation of Grain Processors
(AFL), or any other labor organization of its employees, by discriminating
with regard to the hire and tenure of employment or any terms or conditions of
employment of its employees ;
(b) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form labor organizations, .to
join or assist American Federation of Grain Processors (AFL), or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective,
bargaining or other, mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. , Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
;, (a). Offer Walter Reidenbach, Arzy Watson, and Russell Lewis immediate
and full reinstatement to their former or substantially equivalent positions with-'
out prejudice to their seniority and other rights and privileges, and make each of
them whble for any loss of pay he may have suffered by reason of the discrimina-
tion against him, by payment to each of them of a sump of monev equal to that
which he normally would have earned as wages from the date of the discrimina-
tion against hun to the date of respondent's offer of reinstatement, less his net
earnings during such period;
(b) Post at its plant at Loudonville, Ohio, copies of the notice attached hereto
and marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being-signed by respondent' s repre-
sentative, be posted by it immediately upon receipt thereof and maintained for
sixty (60) days thereafter in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps shall be taken
by respondent to insure that said notices are not altered, defaced, or covered by
any other material;
(c) Notify the Regional Director for,the Eighth Region in writing, within ten
(10) days from the receipt of this Inteimediate Report, what steps respondent
has taken to comply herewith.
THE LOUDONVILLE MILLING COMPANY 325:
It is further recommended that unless on or before ten (10) days from the
date of-reeeipt of, this Intermediate Report, respondent notifies said Regional'
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an ordei requiring respondent to take the
aforesaid action.
It is further recommended that the complaint be dismissed insofar as it alleges
that respondent'has engaged in unfair Gabor practices by discriminating with
regard to the hire and tenure of employment of Jacob Arnholt, Harold Watson,
Ralph Chapman, Owen Watson, Joiiti Garretson, and Ralph Stull, or has inter-
fered with, restrained, or coerced its employees by the contents of the speech of
December 26, 1946, and the wage mnciease of January 1947.
As provided in Section 203 46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies uporm, together with the original and six
copies of a brief in support thereof ; and any party umay, within the same period,
file an original and six copies of a brief in support of the Intermediate Report-
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203 85. As further provided in said Section
20346, should any party desire permission to argue orally before the Boaid,
request therefor must be made in writing to the Board within ten (10) da.s
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203 48 of said Rules
and Regulations, be adopted by time Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived:
for all purposes.
MARTIN S BENNETT,
Trial Examiner.
r):,toa September 4. 1947.
APPENDIX A
'NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organ-
izations , to join or assist AMERICAN FEDERATION OF GRAIN PROCESSORS (AFL),
or any other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection
809095-49-vol. 79-22
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wmL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without preju-,
dice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
WALTER REIDENBACH
ARzY WATSON
RUSSELL LEWIS
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire and tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
THE LOUDONVILLE MILLING COMPANY,
Employer.
Dated -------------------- By ---------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must-not
be altered , defaced , or covered by any other material.