Farner-Bocken Co.

National Labor Relations Board - Board Decisions

Mar 3, 1970

181 N.L.R.B. 410 (N.L.R.B. 1970)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farner-Bocken Company and General Drivers,
Warehousemen & Helpers Union Local No. 383,
affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 18-CA-2769
March 3, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 11, 1969, Trial Examiner John F.
Funke issued his Decision in the above-entitled
matter, finding that the Respondent had engaged in
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 attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint, and
recommended that such allegations be dismissed.
Thereafter, the General Counsel and the Respondent
filed exceptions and supporting briefs, and the
Respondent filed a brief in answer to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications '
The complaint alleges, inter alia, that on or about
April 14, 1969, in violation of Section 8(a)(1) of the
Act, Bruce Menuey, the warehouse manager,
questioned an employee about union activity and
told an employee that, in the event of unionization,
the said employee had the most to lose
James Madsen, who on April 14, 1969, was an
employee, testified that on that date, at about 5:45
p.m. as he was leaving the warehouse, Menuey
called him back, told him that he had heard of
union activity among the warehousemen, and asked
if he, Madsen, was going to be shop steward.
Madsen further testified that he was told that if the
warehouse was organized, the owner, Farner, would
'We hereby note and correct the following inadvertent errors in the Trial
Examiner 's Decision ( 1) In the first sentence of the next to the last
paragraph of Section III, page 2, change "Madsen" to "Menuey",and
"Menuey" to "Madsen " (2) In the third sentence of the second paragraph
of "The Remedy" change "persuasive " to "pervasive "
probably close it up and that he, Madsen, had the
most to lose since he had been only recently
reemployed. According to Madsen, Menuey also
stated that he was going to call another party to
verify the reports of union activity. Menuey testified
that he could not recall having talked to Madsen
about anything that evening.
The Trial Examiner makes no specific findings as
to whether the 'conversation between Madsen and
Menuey actually took place, nor a specific
conclusion as to whether, if it did occur, it was
violative of the Act
In setting forth the facts of the case, however, the
Trial Examiner recites in full Madsen's testimony
regarding the conversation. Elsewhere in the
Decision, the Trial Examiner refers to Madsen's
testimony as containing, "the first incident relating
to the subsequent discharge. . . ." Menuey's
testimony, on the other hand, is twice characterized
by the Trial Examiner as an inability to remember
having had the conversation. Furthermore, the Trial
Examiner notes that Menuey's remark about
Madsen's being shop steward was, by Madsen's own
admission, made in a joking fashion,' thus seemingly
finding that such a remark was made. Where
Madsen's and Menuey's testimony is in conflict as
to what Menuey said on the following day, April 15,
1969, the Trial Examiner credits Madsen, though he
also specifically finds Menuey not to be a totally
incredible witness. Elsewhere, Madsen's testimony
regarding the circumstances of his dismissal is
described by the Trial Examiner as "frank." Finally,
while the Trial Examiner finds no evidence that
Menuey on April 14 knew the identity of any of the
employees who were interested in the Union, it does
not necessarily follow therefore that the Trial
Examiner also finds the April 14 conversation not to
have occurred, since it is clear that he mistakenly
characterized as jocular the only portion of that
conversation which would show such knowledge.
Apart from the findings of the Trial Examiner's
Decision, certain aspects of the record support a
conclusion that the alleged April 14 conversation
took place While Menuey testified that he could not
recall talking to Madsen, he did admit that he first
learned of union activity from Lyle Baker, a
salesman, at 5:10 or 5:15 p.m. on April 14 while he
and Baker were returning to Sioux City. Menuey
also acknowledged that he arrived at the warehouse
at about 5:30 p.m. and did not leave until five or ten
minutes before 6 p.m. These facts confirm Madsen's
testimony, which indicated that the conversation
took place at the warehouse at about 5:45 p.m.
Madsen also testified that Menuey indicated in the
The record does not support such a finding Madsen did testify that
Gary Wince , an employee , had mentioned the union stewardship in a
joking manner , but this was clearly unrelated to the alleged conversation
between Madsen and Menuey The Trial Examiner apparently relied upon
this testimony , and to that extent, was mistaken There being no other
support for the finding made by the Trial Examiner, we do not adopt his
characterization of Menuey 's remark
181 NLRB No. 56
FARNER-BOCKEN CO. 411
conversation that he was going to call another party
to verify the reports of union activity, and Menuey
admitted in subsequent testimony that he phoned
Gary Wince that evening and asked him about
union activity. In addition, Madsen's testimony that
Menuey told him on April 14 that he, Madsen, had
the most to lose corresponds to the similar
statement made by Menuey in a speech the
following morning Moreover, Madsen's credited
testimony regarding the April 15 speech indicates
that Madsen was therein singled out as an organizer
when Menuey said to the warehousemen, that, ".. .
Olie (Madsen) . . . and some of his friends are
trying to organize a union." While such a statement
seemingly reflects the suspicion, if not the
knowledge, on the part of Menuey, that Madsen
was involved in the union campaign, there is nothing
in the record to indicate that between Menuey's
conversation with Baker, when Menuey first learned
of union activity, and the following morning's
speech, Menuey learned of any special role played
by Madsen in the campaign. It seems likely, then,
that Menuey at least suspected Madsen from the
outset
In view of all the foregoing, we find that on April
14, 1969, Menuey questioned Madsen about union
activity in general and more specifically about
Madsen's role therein, threatened him with plant
closure, and told him that he, Madsen, had the most
to lose. Accordingly, we find that the Respondent,
by this Act, further violated Section 8(a)(1) of the
Act.
National Labor Relations Board" shall read
"Posted pursuant to a Judgment of the United
States Court of Appeals enforcing an Order of the
National Labor Relations Board."
3. Add, as the first paragraph of the notice, the
following:
WE WILL NOT interrogate our employees
concerning union activity.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner Upon a charge and
four amended charges filed April 17, April 23, May 1,
May 5, and May 15, 1969, respectively,' by the
above-named labor organization, herein the Union,
against Farner-Bocken Co , herein the Respondent, the
General Counsel issued complaint alleging Respondent
violated Section 8(a)(1)(3) and (5) of the Act.
The answer of Respondent denied the commission of
any unfair labor practices
This proceeding, with all parties represented was heard
by me at Sioux City, Iowa, on July 16, 1969 At the
conclusion of the hearing the parties were given leave to
file briefs and briefs were received from the General
Counsel and Respondent on August 15.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
ADDITIONAL CONCLUSION OF LAW
By questioning an employee on April 14, 1969,
about union activity and by telling that employee on
the same date that he had the most to lose, the
Respondent violated Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Farner-Bocken Co., Sioux City, Iowa,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Add, at the beginning of paragraph 1(a) of the
Trial Examiner's Recommended Order, the
following:
"Interrogating any of its employees concerning
union activity."
2. Footnote 12 second sentence should be
amended to read as follows:
"In the further event this Order is enforced by a
judgment of the United States Court of Appeals, the
words in the notice reading "Posted by Order of the
Respondent is an Iowa corporation engaged in the
wholesale sale and distribution of candy, cigars, cigarettes
and related items and maintains its principal place of
business at Carroll, Iowa The plant involved in this
proceeding is located at Sioux City, Iowa. Respondent
annually sells and distributes merchandise valued in excess
of $50,000 to points and places outside that State of Iowa.
Respondent is engaged in commerce within the meaning
of the Act
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. Violations of Section 8(a)(1) and (5)
In April some 15 employees were employed at
Respondent's Sioux City warehouse Bruce Menuey was
the manager and Gale Huselbus was his assistant. There
were also four clerical employees; four salesmen and eight
employees in the warehouse, one of whom was a part-time
employee.' These employees not only performed general
warehouse work but also drove Respondent's trucks in the
delivery of merchandise. It was these employees whom the
'Unless otherwise specified all dates refer to 1969
'It was stipulated at the hearing that the eight employees in the
warehouse on April 14 were Larry Brower, Edwin Terreault , Michael
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union organized and for whom it demanded recognition
on April 15.
Wayne Will testified that he was secretary-treasurer
and business representative of the Union and that on
April 7 he was contacted by Gary Wince,3 who asked him
to meet with the warehouse employees. A meeting was
arranged for April 14 at the union hall. According to
Wayne Will seven warehouse employees appeared and
after discussing the Union for an hour or more all seven
signed applications cards. (G. C Exhs. 4-a through 4-g.)
The temporary part-time employee, Larry Brower, was
not present
James T. Madsen, employed on April 7 as a driver by
Respondent, testified that at about 6 p.m on the
fourteenth he returned his truck to the warehouse. As he
was leaving the building he saw Menuey who called him
back and told him he had heard the warehouse men were
organizing a union and that he, Madsen, was going to be
shop steward.' Menuey then told him that if the plant was
organized Farner, the owner, would probably close it up
and that he Madsen, had the most to lose since he had
only recently been reemployed
The next morning Menuey called a meeting of the
warehousemen at about 8 a m. Madsen's testimony as to
what Menuey said reads-
A. I punched in at approximately 8 00 o'clock Bruce
Menuey came out and asked Gary Wince, who was
foreman, at that time, if all personnel was present, and
everybody was there, so he called us all together and
had a meeting. And he was talking about it. He said,
"I understand Olie, Olie is my nickname, and some of
his union friends are trying to organize a union. He
says, "I can't figure Olie out. He came back several
times to get his job back." And Gale Huselbus
interrupted and asked me if I had joined, had been a
member of the Teamsters Union at any time, and I
said one time at Continental Baking Company. Then
Bruce stated that Mr. Farner, if we would join a union,
that he would close up within six months
TRIAL EXAMINER: Who said this, Bruce Menuey?
THE WITNESS. Yes
A. (Continuing) And then he said that policies that
all money that is owed to the company, we had a policy
down there we could draw money on our check, that all
charge accounts would have to be paid up by the
following pay day. And that if the union would come in
that this policy would cease, and then approximately 20
minutes later after this meeting the phone rang in the
Heger , Conrad Benson , Daniel Black , James Madsen, Steve Eby, and
Gary Wince Brower was the part-time employee but his status does not
effect the issues herein Madsen was discharged on April 15, before the
demand for recognition was made
'Respondent contends Wince was a supervisor The evidence ( I do not
regard Menuey 's pretrial affidavit received as G C Exh 5 as evidence of
the facts set forth therein ) indicates that Wince was a working foreman in
the warehouse , that he received 40-45 cents more than the average
warehouse employee and Daniel Black testified that Wince told the other
warehousemen what to do In view of the fact that most warehouse
operations in a warehouse of this size , storing standard products and
operating regular driving routes I do not find it reasonable to conclude
that the directions given by Wince required the exercise of the independent
responsibility , judgment or discretion contemplated by the statute I have
also considered the fact that the 15 employees at the store and warehouse
were supervised by Menuey and his assistant I doubt that further
authority was required I find that Wince was not a supervisor within the
meaning of the Act. (Wince was not called by any party )
'Madsen admitted that this remark was made in a joking fashion
back room, and Gary answered. And Gary informed
me that I was supposed to see Bruce in his office.
Q. (By Mr Hansing) Let me interrupt for a minute
Before you go on with your testimony, Mr. Menuey,
said, did he say anything else when he addressed all of
the employees9
A He also made the statement that if we did join
the union that our hours would be cut down to 40 hours
a week, and that he and the supervisor personnel would
fill in extra, would put in extra hours to get the job
done.
Menuey added that all special loans for emergency
purposes would be discontinued and that Wince and
Madsen had the most to lose
Daniel Black , another employee, also testified as to
Menuey's talk and in substance substantiated Madsen. He
testified that Menuey told them that Farner would
probably close the plant in 5 months if it went union; that
Wince and Madsen had the most to lose, that hours would
be cut to 40 per week and that there would be no more
charges
Menuey's testimony, as might be expected, does not
agree with that of Madsen and Black . Menuey testified
that he first learned of union organization on the
afternoon of April 14 while driving with Lyle Baker, a
salesman for Respondent Baker told him the "men in the
back" were talking union and seemed interested and
Menuey's response was that when they had a taste of it
they would drop it. Menuey could not remember having
any conversation with Madsen after his return to the plant
at about 6 p m. Later that night he called Farner,
Respondent's president, in Carroll to tell him of the
rumors and Farner told him to forget it, to let the men
come to him and to keep his nose clean. The next
morning Menuey spoke to the employees' and his version
of his remarks reads:
A. I said that, and I am not positive whether I
mentioned Lyle's name or not, but I said I had been
informed by a salesman, "That you gentlemen are a
little interested in a union , and I would like to know
why." Nobody said anything I said that I thought they
should be, before they went into this thing too far,
consider both sides of the thing, and some of the
benefits and the things that we gave them, and some of
the benefits and things that the union would possibly
give them. And about that time Mr. Eby spoke up.
Q (By Mr Wolle) One of the people on the list9
A. One of the people on the list, yes.
Mr Eby piped up and said something to the effect of
all of the things the union was going to do for them,
and this was the first inkling that I had that some of
them must have talked to some union personnel
So Mr. Eby and I had a little run into just two or
three days beforehand, or four days beforehand He left
an order in a truck out in the alley and the order had
been stolen, so I was a little short-tempered about him,
and he started to tell me all the things the union was
going to do for him, and I simply directed a statement
to Mr Eby saying, "Mr. Eby, you are forgetting you
have quite a little bit to lose," meaning we wouldn't
'Before he called this meeting Menuey again talked to Farner who told
him he should explain Respondent 's position, tell the employees that
business was not good at that time and that "we were going to do what we
thought we could for the employees " Menuey also called Wince that night
and asked him if he were one of the men interested in the Union Wince's
reply, according to Menuey, was that he would rather not talk about it
FARNER-BOCKEN CO. 413
have to put up with the things he had done at this time
if we were under union And I talked to the rest of the
guys, simply stating the fact that ours was not a real
healthy business. I had no list of wholesalers or
anything, as was previously stated I named a couple of
wholesalers who were having trouble making it in
business.
Q. Sioux City wholesalers9
A. No; ones I read about in the Tobacco Journal,
who stated they were having problems keeping their
doors open. We were not any different. I left it open
several times for questions to try to get these people to
talk up, and nobody would say anything, except for
Steve Eby, who had told me what the union was going
to give him
I could see where we were getting nowhere, we were
not going to have a friendly conversation on it. I just
quit.
Menuey denied that he asked the employees how they had
voted at the meeting on the previous night or that he told
Madsen and Wince they had the most to lose
The remaining facts as to the refusal to bargain are not
in dispute. On the fifteenth the Union sent the following
letter to Respondent (G.C. Exh. 2):
April 15, 1969
Farner-Bocken Company
1523 Center Street
Sioux City, Iowa 51103
Attention. Mr. Bruce Menuey, Manager
Dear Sir
This is to confirm what apparently you already
know, namely that this Union represents your
warehouse, service, and truck driver employees in the
Sioux City location This is an appropriate unit for
collective bargaining under the Taft-Hartley Act, as
amended.
If there is any doubt as to this representation, we
will be happy to permit a cross-check of membership
and authorization cards of each of the employees by a
disinterested person
Since you have already discharged one employee,
interrogated the others about their union activities, and
made threats concerning their union representation, we
assume that you are ready to commence bargaining
about a contract concerning their wages, hours, and
working conditions at the earliest possible time.
Please advise when you wish to meet for the purpose
of negotiating such a contract covering these employees
with this Union.
As a matter of courtesy, you are being advised that
the undersigned Union has this day filed Unfair Labor
Practice Charges with the National Labor Relations
Board, based on your illegal conduct to date.
Sincerely,
TEAMSTERS LOCAL
UNION NO. 383
By. Wayne L. Will,
Sec'y-Treas.
WLW:pc
Cert. Mail - Ret Rec Req.
Special Delivery
On April 18 Respondent replied through its attorney,
Charles R. Wolle, by letter (G. C. Exh. 3) reading:
April 18, 1969
General Drivers, Warehousemen and Helpers
Local No. 383
1021 1/2-4th Street
Sioux City, Iowa 51101
Attention: Mr. Wayne L. Will, Sec'y-Treas
Dear Sir-
Our law firm represents Farner-Bocken Co., and we
wish to reply to your letter of April 15, 1969
Our client has a good faith doubt that the employees
you refer to in your letter wish to be represented by, or
are represented by, your Union. The "appropriate unit"
you refer to is indefinite; we do not think any such unit
would be appropriate
We do not think the "cross-check of membership
and authorization cards," which you suggest, would be
an accurate way of determining the question of
representation, and we are unwilling to adopt that
suggestion.
We reject your claims of improper, conduct Because
of our client's good faith doubt on your claim of
representation, we are not planning to' meet with you
for the negotiations you are suggesting.
Our firm will be representing Farner-Bocken in
connection with any charges you have filed with the
National Labor Relations Board.
Very truly yours,
Charles R. Wolle
For the Firm
CRW:mg
cc:
Farner-Bocken
Tobacco, Inc.
The position of the parties with respect to bargaining was
fixed by this correspondence Among the contentions
advanced by Respondent, apart from its doubt of the
Union's Majority status, was that it never understood
what the Union meant by warehouse, service and
truckdrivers and that the unit was therefore ambiguous
Three further incidents, two alleged as violations of the
Act, occurred. On April 26 John Norgaard, a
management trainee of Respondent, spoke to the
employees in the warehouse and allegedly promised them
benefits for not joining the Union. I not only find that
Norgaard promised no direct benefits conditioned upon
rejecting the Union but that he, at that time, did not enjoy
supervisory status and was neither an agent of nor
authorized to speak for management.
On May 12 the Union called a meeting for the seven
employees at Respondent who had signed application
cards and only Madsen, discharged April 15, appeared
This terminated union activity at the Sioux City
warehouse.
The complaint further alleges that on or about May I
Respondent granted a general wage increase to discourage
union membership. The wage records of Respondent
(Resp. Exh 1) disclose that wages were granted to five
unit employees in May; one on May 16, three on May 10
and one on May 31.
0n April 21 the Union wrote Respondent (Resp Exh 2 ) stating its
position on the unit was flexible
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Violation of Section 8(a)(3)
The complaint alleges that Respondent discharged
James Madsen on April 15 because he engaged in union
or other concerted activities
Madsen had been employed from September, 1967,
until December 6, 1968.' On the evening preceding his
departure from employment he had been out drinking at a
Sioux City bar with two of Respondent's salesmen. The
drinking concluded when the bar closed, a not
unreasonable quitting time. The next day he reported for
work "under the weather" and feeling "grumpy" and had
an argument with Gale Huselbus, assistant to Menuey,
who suggested he take the day off. Madsen said he had a
better idea, quit and punched out These, according to
Madsen's frank and uncontradicted testimony, were the
circumstances under which his employment terminated.
Madsen made at least two applications for
reinstatement with Menuey and was reemployed by
Menuey in early April. (The date was fixed by Menuey as
April 7 ) The first incident relating to the subsequent
discharge on April 15 is Madsen's testimony as to his
conversation with Menuey on the evening of April 14 in
which Menuey asked him about the Union and inquired if
he would be shop steward, supra Menuey had no
recollection of such a conversation.
On the morning of April 15, shortly after Menuey's
discussion of the Union with the warehousemen, Madsen
was called to Menuey's office. There he was asked by
Menuey if he had ever filed for unemployment insurance.
Madsen replied that he had but had gotten another job
and forgotten about it. Menuey then told him that Cy
Huselbus, assistant to Farner, had just called from Carroll
and told him he had just seen Madsen's name on the
payroll and that he would have to be discharged because
of the circumstances under which he had left in December.
Menuey also told him it was not because of the Union
deal.
Madsen testified that after he spoke to the employees
on April 15 he received another call from Farner asking
what Menuey was doing on the payroll' and whether he
had not left under adverse circumstances. Farner then told
Menuey that Madsen had left because he had been
intoxicated, and then filed for unemployment
compensation and that he should be discharged.
Farner testified that on April 14 when Menuey first had
knowledge of union activity and called him, he did not
know that Madsen was on the payroll. He was notified of
this by his payroll check on April 15 and then decided, in
view of Madsen's past record and his filing for
unemployment, he should be discharged.
B. Conclusions
1. Violations of Sections 8(a)(1) and (5)
I find that on April 14, when seven of the
warehousemen signed application for membership with the
Union, the Union represented a clear majority of the
employees in a unit appropriate for the purpose of
collective bargaining. I find the appropriate unit to be:
'This is the date shown as his termination of employment on the records
of Iowa Employment Security Commission (Resp Exh 3)
'The Sioux City payroll was forwarded, according to testimony, to
Carroll for payment and it was Madsen 's first pay period which went to
Carroll for certification
All warehouse, service and truck driver employees of
Respondent at its Sioux City, Iowa, warehouse;
excluding office clerical employees, professional
employees, guards and supervisors as defined by the
Act.
It is true that the Union's letter demanding recognition
did not specify the exclusions but I cannot find that a
demand for warehouse, service and truck drivers as
ambiguous. Whether or not Menuey found the description
ambiguous I do not believe Respondent's attorney could
have doubt as to the employees for whom recognition was
sought. This is particularly true since the other employees
at Sioux City were either salesmen or clericals. There
were no fringe groups such as driver-salesmen or
owner-operators to confuse the Respondent.'
In view of the Union's demand and Respondent's
refusal to grant recognition I find the sole issue presented
is one of credibility between Menuey and employees
Madsen and Black as to what was said at the meeting on
the morning of April 15. I resolve this issue in favor of
Madsen and Black. While I do not find Menuey a totally
incredible witness I do conclude that his testimony as to
his remarks at this meeting tended to minimize his
anti-union statements I find that he did suggest that
Madsen and Wince had the most to lose if the Union was
accepted by the employees," that he threatened that
Farner would close the plant, that hours would be reduced
and the benefits received by the employees would be
discontinued I find that these statements made to a small
group of employees dealing on familiar terms with
management had sufficient impact to make a fair election
impossible and to destroy the Union's majority status " I
therefore find that, under the decision of the U S.
Supreme Court in N L R B v. Gissel Packing Co , 395
U.S 575, decided June 16, 1969, Respondent violated
Section 8(a)(5) of the Act.
Since I have found that on April 15 the Respondent
was obligated to bargain with the Union concerning
wages, hours, rates of pay and other terms and conditions
of employment I find that the unilateral grant of wages
increases set forth, supra, constituted a violation of
Section 8(a)(5) and (1) of the Act (N.L R B v. Katz, 369
U S. 736.)
I also find Respondent violated Section 8(a)(1) of the
Act by the following statements made in Menuey's
discussion with the employees on April 15-
(1) The threat that Madsen and Wince had the most to
lose if the Union organized the plant.
(2) The threat that Farner might close the plant
(3) The threat that the hours would be reduced and that
other benefits would be discontinued.
'See Steel City Transport, Inc, 166 NLRB 84, affd Steel City
Transport Inc , v. N L R B, 389 F 2d 735 (C A 3)
'1 can only infer from this statement that Menuey threatened both
Madsen and Wince with either loss of employment or loss of benefits
Madsen was the last employee to be hired and therefore would be the first
to be laid off Wince was the highest paid employee and therefore had the
most to lose in event of reprisal or lay-off
"I find this conclusion fortified by the fact that all seven of the full time
warehouse employees not only signed applications cards with the Union
but also paid the $10 initiation fee, thus indicating a rather firm desire to
designate the Union as their bargaining representative At the next meeting
called following Menuey's talk none appeared except for Madsen who had
been discharged
FARNER-BOCKEN CO. 415
2. Violation of Section 8(a)(3)
I do not find, although the issue is not free from
suspicion, that Madsen was discharged in violation of
Section 8(a)(3), of the Act The sole evidence of company
knowledge that Madsen had signed with the Union is
Madsen's testimony that Menuey asked if he were to be
shop steward of the Union Madsen admitted that the
remark was made jokingly and there is no evidence that
Menuey on April 14 knew the identity of any of the
employees who were interested in the Union Nor is there
any evidence that Farner, who made the decision to
discharge Madsen on April 15, had any knowledge of the
identity of any employee' s union activity Farner's reason
for discharging Madsen was not an unreasonable one -
he had reported for work several months prior to his
discharge suffering from a hangover, had had an argument
with his supervisor and walked off the job. There is no
evidence that his reemployment was known to Farner until
the Sioux City payroll reached Carroll on April 15 when
Farner decided he was not eligible for reemployment. It is
true that this establishes a striking coincidence - the
discharge of an employee on the day after union activity
was made known to Respondent Coincidences, however,
do occur in the arena of human events, otherwise the word
could be stricken from the lexicons, the victim of
desuetude I shall recommend that the complaint insofar
as it alleges violation of Section 8(a)(3) be dismissed
IV THE REMEDY
Having found Respondent has engaged in and is
engaging in certain unfair labor practices I shall
recommend that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the
policies of the Act.
It has been found that Respondent refused to bargain
with the Union on April 18, 1969, and at all times since,
after the Union had been duly designated as bargaining
agent by a majority of Respondent's employees in an
appropriate unit . By so refusing and by other unfair labor
practices designed to destroy the Union's majority status,
Respondent violated Section 8(a)(5) of the Act The unfair
labor practices so found are, in the Examiner's opinion,
sufficiently coercive and persuasive to make a fair election
impossible. Accordingly it shall be recommended that a
bargaining order issue to remedy the unfair labor practices
found herein (Arrow Specialties, Inc , 177 NLRB No
92 )
Upon the basis of the foregoing findings and
conclusions- and upon the entire record, I make the
following
CONCLUSIONS OF LAW
1. By telling two of its employees that they would have
the most to lose if the Union organized the warehouse; by
threatening its employees that the plant might close if the
Union came in and by threatening them with reduction of
hours and loss of benefits if the Union came in,
Respondent violated Section 8(a)(1) of the Act
2 By refusing to bargain in good faith with the Union
concerning wages, hours, rates of pay and other terms and
conditions of employment as the designated representative
of its employees in the unit found appropriate herein
Respondent violated Section 8(a)(5) and (1) of the Act.
3 The appropriate unit is:
All warehouse, service and truck driver employees of
Respondent at its Sioux City, Iowa, warehouse;
excluding office clerical employees, professional
employees, guards and supervisors as defined by the
Act
4. Respondent did not violate Section 8(a)(3) of the
Act
5 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
It is hereby recommended that Respondent
Farner-Bocken Co , its officers, agents, successors, and
assigns, shall:
I Cease and desist from:
(a) Telling any of its employees they would have the
most to lose if the plant went Union; threatening its
employees that the plant would close if it went Union;
threatening its employees with a reduction of hours and
the loss of benefits if the plant went Union
(b) Refusing to recognize and bargain with the Union
as the exclusive bargaining representative of its employees
concerning wages, hours, rates of pay and other terms and
conditions of employment in the unit found appropriate
herein
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act-
(a) Upon request bargain collectively with the Union as
the exclusive representative of its employees in the unit
found appropriate concerning wages, hours, rates of pay
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
written agreement
(b) Post at its plant at Sioux City, Iowa, copies of the
attached notice marked "Appendix."" Copies of such
notice to be signed by the Regional Director for Region
18, after being duly signed by an authorized representative
of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive 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 such notices are not altered,
defaced or covered by any other material.
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of receipt of this
Decision what steps have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that as to all matters
alleged in the complaint not specifically found to be in
violation of the Act the complaint shall be dismissed.
"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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 18, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that-
WE WILL NOT tell any employees that they have the
most to lose if the plant goes Union
WE WILL NOT threaten our employees that the plant
might close down if it went Union
WE WILL NOT tell our employees that working hours
will be reduced and other benefits taken away if the
plant goes Union
WE WILL, upon request, bargain with the Union as
the exclusive bargaining agent concerning wages, hours,
rates of pay and other terms and conditions of
employment for employees in the following unit.
All warehouse , service and truck driver employees of
-Farner-Bocken Co., at its Sioux City, Iowa,
warehouse, excluding office clerical employees,
professional employees , guards and supervisors as
defined by the Act
FARNER-BOCKEN CO.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , 316 Federal
Building, 110 South 4th St. Minneapolis, Minnesota
55401 , Telephone 612-725-2611.