Ipava Farmers Elevator Co.

National Labor Relations Board - Board Decisions

Jul 6, 1965

153 N.L.R.B. 1303 (N.L.R.B. 1965)

IPAVA FARMERS ELEVATOR CO. 1303
All our employees are free to become or remain, or to refrain from becoming or
remaining , members in good standing of International Brotherhood of Electrical
Workers, Local Union No. 558, or any other labor organization.
JOE WHEELER ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
876-3311, Extension 5357, if they have any questions concerning this notice or com-
pliance with its provisions.
Ipava Farmers Elevator Co . and Local 15, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America. Case No. 38-CA-241 (formerly 100-CA-6691). July 6,
1965
DECISION AND ORDER
On April 12, 1965, Trial Examiner Arthur Christopher, Jr., issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engagin g 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The General Counsel filed a
brief in support of the Trial Examiner's Decision.
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 [Members Fanning, Brown, and Jenkins].
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 recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
1 The Respondent has excepted to the Trial Examiners credibility resolutions, but we
are not persuaded that a clear preponderance of all the relevant evidence is contrary to
the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc, 91 NLRB
544, enfd . 188 F. 2d 362 (CA. 3).
153 NLRB No. 103.
1304 DECISIONS OF NATIONAL LABOR RELATIO =NS BOARD
Order the Recommended Order of the Trial Examiner , as modified
herein , and orders that the Respondent , Ipava Farmers Elevator Co.,
Cuba, Illinois, its officers , agents, successors , and assigns , shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified:
1. Add the following as paragraph 2(c) to the Trial Examiner's
Recommended Order, the present paragraph 2(c) and those subse-
quent thereto being consecutively relettered :
"(c) Notify Marvin Melvin, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948 , as amended, after
discharge from the Armed Forces."
2. Amend paragraph 2(d) and ( e) (relettered as 2(e ) and (f)) to
strike the title "Regional Director " and substitute therefor "Officer-
in-Charge ." In paragraph 2(d) (relettered 2(e) ), substitute "Sub-
region 38" for Region 13."
3. The telephone number for Subregion 38, appearing at the bottom
of the Appendix attached to the Trial Examiner's Decision , is amended
to read: Telephone No. 673-9287.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Arthur Christopher, Jr , in
Peoria, Illinois, on February 1, 1965, on complaint of the General Counsel and
answer of Ipava Farmers Elevator Co., herein called the Respondent. The issues
litigated were whether the Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. At the hearing the General Counsel and
the Respondent were represented by counsel, and were afforded full opportunity to
be heard , to examine and cross -examine witnesses , and to present evidence. The
General Counsel and the Respondent waived oral argument but thereafter submitted
briefs.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Illinois corporation , is engaged in the storage and processing of
grain, and in the retail and wholesale distribution of grain, fertilizer, seed, farm sup-
plies, and other related products at Ipava, Table Grove, New Philadelphia, and Cuba,
Illinois. Only the Cuba, Illinois, facility, which is operated under the trade name
Cuba Farmers Elevator Co., and hereinafter called Cuba, is involved herein. During
the past calendar year the Respondent, in the course of its retail operations, sold and
distributed products whose gross value exceeded $1 million. During the same
period, the Respondent received from outside the State of Illinois products valued in
excess of $50,000.
I find that the Respondent is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Local 15, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union or
the Teamsters, is a labor organization within the meaning of Section 2(5) of the Act.
IPAVA FARMERS ELEVATOR CO. 1305
M. THE UNFAIR LABOR PRACTICES
The Facts
The principal issues in this proceeding are whether the Respondent (1) violated
Section 8(a)(1) of the Act through the alleged conduct of Gaylord Robertson, an
admitted supervisor, in interrogating employees concerning their union activities and
threatening them with discharge or other reprisals if they joined or voted for the
Union, (2) violated Section 8(a)(3) and (1) by Robertson's alleged discharge of
Marvin Melvin on September 21, 1964, because he had supported the Union and
voted for it at the September 8, 1964, Board-conducted election, and (3) violated
Section 8 (a) (3) and (1) by Robertson's alleged discriminatory deprivals of overtime
pay to Marvin Henderson during the beginning of Respondent's 1964 bean season
operations.
As stated above, the Respondent is engaged in grain processing and storage, and the
retail and wholesale distribution of grain and other farm and related supplies at Cuba.
At all dates material herein, Cuba employed from three to four male employees, and
one female office employee-bookkeeper, all of whom worked under Robertson, who
managed the facility.
Melvin was employed as a millroom operator at Cuba and had worked for the
Respondent about 1i/2 years at the time of his separation. Melvin's duties consisted
of grinding and mixing feed in the millroom. He was employed at a starting wage of
$70 per week and, on September 1, 1963, was given a raise of $5 per week.
Melvin left on his vacation on July 17, 1964,1 and returned to work on July 27.
Melvin testified that on July 31 he had a conversation with Robertson in the latter's
office about 5 p.m. which was the plant's closing time. Robertson, according to
Melvin, explained that the employees would thereafter be paid on an hourly basis
with overtime after 40 hours. Robertson also told Melvin, "They was trying to get
a union in the plant," remarking further, "We won't have no union." Melvin, who
was the only employee present in the office at the time, replied that he had a with-
drawal card from the Union and "I will have to vote for it if it comes to a vote, and
if you want to get rid of me over that, that [sic] is the time to do it." Robertson
answered that he would let it ride and see how it conies out. Robertson denied
Melvin's testimony. I credit Melvin's testimony concerning this conversation because
he impressed me as being forthright and the more trustworthy witness.
Ray Carpenter, business agent for the Union, credibly testified that he made his
first contact with employees of the Respondent at the Cuba elevator during the last
week of July. At that time he talked to Marvin Henderson and Jim Rench. He
later talked with Melvin after the latter had returned from his vacation. At the time
Carpenter contacted Henderson the latter had already signed a Teamsters taro.
Melvin later signed a union card on August 4. Between July 10 and the last day in
July, Carpenter had contacted approximately 25 employees of the Respondent, most
of whom were employed at the other facilities not involved in this proceeding
A day or two after signing the union card Melvin had another conversation with
Robertson who asked him, "Mel, how is the Union?" Melvin replied, "I signed that
card last night " Whereupon Robertson asked Melvin, "How many sia'ied it?"
Melvin replied that he would not do anythingagainst the Union nor would he talk in
its behalf. Robertson answered, "Well, we are not going to have no union. We will
close the place ... and sell the two big trucks." Melvin again replied, "If you want to
get rid of me, now is the time to do it." Robertson concluded the conversation by
stating, "We will just let it ride because I think there will be enough votes against it."
Robertson testified that he recalled this conversation with Melvin but denied that he
had asked Melvin any question about the Union, or had made any threats. Robertson
spoke to Melvin about two more times between the date of the first conversation and
September 18, the date of the election. In the first of these later conversations
Robertson came into the millroom and asked Melvin how the Union was going.
Melvin, who was alone at the time, replied that he did not know. Robertson there-
upon asked Melvin what did Charlie Wust and Marvin Henderson think about the
election. Melvin replied again that he did not know because he had never talked
with them about it. In the second of these conversations, Robertson asked Melvin if
he had heard anything about the election and Melvin stated that he did not know any-
thing about it. Robertson testified that he recalled a conversation with Melvin in
which he had explained the basis for computing an employee's overtime rate but again
denied asking Melvin at any time any questions about the Union, or how the election
'All dates shown are 1964 except where otherwise indicated Melvin had been a mem-
ber of, and had withdrawn from, the Teamsters Union prior to the beginning of his em-
ployment with Respondent.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was coming, or how employees felt about the Union. I credit Melvin's version of
these conversations because as stated above, he impressed me as being the forthright
and the more trustworthy witness
Melvin voted in the Board election held on September 18 and testified that he
voted for the Union, learning about the election results around 8 p m. Melvin was
told by Merle Richardson, an employee at Ipava, that only two of the three employees
at Cuba had voted for the Union.
Melvin, as was customary, arrived at work on September 19 at approximately 6.50
a m. Shortly afterwards he encountered employees Hendeison and Charles Wust,
and told them he had learned the prior evening that only two employees had voted for
the Union. He obtained from Henderson the address of Union Business Agent Car-
penter and remarked to Wust and Henderson that he would see if he did not have
to work that morning in order to see Carpenter. He further remarked that he did not
think that two employees voting for the Union was "much good" and he intended to
learn what Carpenter had to say about it. A few minutes later Robertson arrived,
and before he opened the office, Melvin stated to Robertson, "Bud I do not want to
work this morning " Robertson made no response. Melvin thereupon turned his
keys over to Wust for the purpose of unlocking the mill, and thereafter drove to
Canton to see Carpenter. Robertson's version of the foregoing incident is that Melvin
did not report for work, turning his keys into Robertson with the statement, after the
other two employees had proceeded to an inner office to sign in, that he was going to
Canton "to get this mess straightened out." Henderson and Wust corroborated
Melvin's foregoing testimony in all essential matters. I credit Meivm's testimony
concerning the September 19 event described above, and find that Melvin's statement
to Robertson in essence was a request for leave for a half day and Robertson's failure
to respond was reasonably construed by Melvin to amount to approval of the request.
Melvin returned to the mill about 10 a.m. from Canton where he talked to the
union business agent After briefly telling Henderson and Wust about his discussion
with Carpenter, Melvin stopped at the office to obtain his check. Upon being told by
Shirley Keefauver that his check had not been signed, Melvin decided to wait a few
minutes for Robertson's return. Thereafter he obtained his check after Robertson
signed it and remarked to the latter that he "could not do no good" at Canton.
Robertson replied, "I could have told you that. You should have thought about that
yesterday " Melvin had been scheduled to work only during the morning, in which
event he normally would have been paid at noon As he planned to haul coal for
his personal use from a nearby town, he found it necessary to take the entire day off
and not work at the mill in view of his Canton trip. He credibly testified that he
had no intention of quitting his job on September 19 when he did not sign in, and I
so find.
Melvin reported for work the following Monday, September 21, at the customary
time and entered the office, accompanied by Wust and Henderson As the three men
proceeded to sign in, Robertson told Melvin, "Wait a minute." After the other two
employees had signed in -and departed, Melvin asked Robertson, "... don't you want
me to punch in?" Robertson replied, "No, I am going to start eliminating you guys "
Melvin retorted, "You learnt me one thing, not to tell anybody the truth " Robertson
answered, "You learnt me something too You could have voted against that union
if you wanted to." Robertson denied making these statements to Melvin. Upon
leaving the office, Melvin passed Wust and Henderson and in response to their ques-
tion what was wrong, stated, "I just got canned " Wust and Henderson confirmed
Melvin's testimony with respect to his latter statement. I credit Melvin's version as
to the conversation that occurred on the morning of September 21 for the reasons
heretofore stated.
With respect to the termination of Melvin, Bookkeeper Shirley Keefauver testified
that Melvin, in the course of a conversation about 2 days before the election while
the two were alone, told her that he had stated to Robertson that he would give
Robertson "an opportunity to fire him by [Melvin's] jeopardizing something out there
in the mill room, but he would not quit." Keefauver could not recall whether she
said anything in response to Melvin's statement. She further testified that she did
not ask Melvin what he was going to do in the millroom to provoke his discharge.
Keefauver also testified concerning a second conversation she had with Melvin earlier
the same week while they again were alone in the office On that occasion, according
to Keefauver, Melvin told her that if the Union won the election, he would quit the
next day and "go down to Trone's." a competitive firm of the Respondent located
in Cuba, Illinois Again Keefauver could not recall what response she made to
Melvin's statement, and she further testified that she did not tell Robertson about it
until after Melvin's termination. Robertson, in his testimony, made no reference
to such a conversation with Melvin as alleged by Keefauver. Melvin denied the
statements attributed to him by Keefauver. Keefauver's testimony, in my opinion, is
IPAVA FARMERS ELEVATOR CO. 1307
incredible and not worthy of belief in the face of Melvin's denial that he made such
statements and the clear evidence of his continuous support of the Union and the
fact that he reported for work on the Monday following the election.
Marvin Henderson testified that he was employed in February 1964 as a truck-
driver to haul grain from the bin at Cuba to elevators located at Nevada, Illinois. In
addition to truckdriving, he also performed other work around the elevator as
required, and occasionally worked in the millroom. Henderson signed a Teamsters
authorization card on July 21.
Several days after signing the card, on July 23, Henderson attended a meeting
called by Robertson in his office at 5 p.m., after the close of the workday. Employees
Jim Rench, Charles Wust, Keefauver and Manager Robertson were present. Robert-
son discussed several matters, including the efficient utilization of personnel at the
mill, the handling of employee complaints with respect to the computation of wage
payments, etc., and stated that he had heard rumors that the Union was trying to get
into the elevator. Henderson testified that Robertson also stated "that anyone caught
helping the Union would be discharged." Robertson denied that he made the latter
statement. Rench admitted, however, that he was not paying much attention to what
was said at the meeting and testified that he was "absolutely certain" that Melvin, who
at that time was out of town on vacation, was present. Rench further testified that
Robertson stated at the meeting "that he did not want a union in there." Robertson
also denied making the latter statement and testified on cross-examination that he
said he "did not think a union was needed." Wust could not recall Robertson's exact
words expressed at the meeting but recalled his mentioning the rumors concerning
the Union's attempt to organize the elevator. As I have previously found that
Keefauver and Robertson were not credible witnesses, I further find, in the circum-
stances, the only credible testimony concerning what was said at the July 23 meeting
is that of Henderson who was forthright in all his testimony and that Robertson made
the statement attributed to him by Henderson.
Henderson credibly testified that during the last of August or the first of September
he and Robertson engaged in a conversation in the course of which the question of
the Union came up. Robertson stated that he did not know what good the Union
could accomplish. Henderson replied that he believed that "it would raise the pay "
In the ensuing remarks Robertson told Henderson that he had "never worked for a
union" and did not believe that he would in the future. Robertson confirmed Hender-
son's testimony in all essential respects and testified that Henderson started the discus-
sion about the Union.
Henderson testified that he voted for the Union in the September 18 election.
Shortly thereafter the usual practice under which Henderson obtained his instructions
as to truck deliveries and pickups directly from Robertson, was changed For a
period of 2 or 3 weeks, Henderson's instructions were relayed from Robertson
through Wust notwithstanding the fact that all three men frequently were in close
proximity when such instructions were given Robertson denied that such a change
in practice occurred and testified that the only peison to whom he had delegated such
authority was Jim Rench Wust confirmed Henderson's testimony, which I credit
with respect to the change in the method of giving instructions to Henderson immedi-
ately after the election, and I so find
The grain processing at Cuba involved a considerable amount of seasonal work
necessitated by the different periods when the farmers harvested their varied crops.
The mill achieved its busiest periods during the wheat, bean, and corn harvesting
seasons. The 1964 wheat season commenced about July 1 and lasted several weeks.
The 1964 bean season, which was late beginning due to weather conditions, started
about the first week in October and lasted a "couple of weeks " The corn season
generally began about the middle of November. As the farmers, during the afore-
mentioned three busy periods, would deliver their cut grain faster than the Cuba
employees could unload the farm vehicles, the latter were required to work after the
regular closing hour until the last truck had been unloaded. The unloading of grain
at the Cuba elevator, together with the extra hours required of the Cuba drivers
making deliveries to other elevators, resulted in more overtime work generally being
available during the three peak seasonal periods than at other times.
With respect to the assignment of overtime at Cuba during the wheat season, the
Respondent permitted the workers to "pair off," i.e., two men worked one night and
the other two worked the following night The employees kept a record of the sched-
uling themselves. After each employee had worked a total of 40 hours, he was paid
at the rate of time and a half for any hours in excess of 40 in a week. Henderson was
paired off with Wust because both were truckdrivers at that time and lived in the same
town and rode to and from work together, a fact known to Robertson.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the early part of the 1964 bean season, i.e., during the workweek ending
October 2, Henderson testified that Robertson told him to punch out after he had
made his return trip to the elevator shortly after 5 p.m. Henderson protested to
Robertson that he rode with Wust who was working overtime. In addition to Wrist,
two relatively new employees, DeFord and Mason, who were hired in September
1964, were assigned overtime the same evening. The next night or two, Robertson
again directed Henderson to punch out at 5 p.m. as well as Mason. Henderson
further testified that he was never told to punch out during the 1964 wheat season.
He also testified there was more overtime available during the 1964 bean season as
compared with the wheat season earlier the same year. Henderson was paid over-
time during the latter part of the bean season due to the fact that he was making
longer truck hauls to a town more than 100 miles distant as compared to his shorter
hauls to a town 18 miles from Cuba during the early part of the season. Robertson
testified that his policy was to assign overtime as equally as possible, but as truck-
drivers frequently were delayed in returning to the Cuba elevator, it was difficult to
anticipate the time of their return. He denied that he had discriminated as to the
assignment of overtime to any employee during the 1964 bean season. In this regard,
I credit Henderson's testimony for the reason heretofore stated and find that Robert-
son directed him to punch out at approximately 5 p.m. on two nights during the
workweek ending October 2, 1964, despite the availability of overtime work.
Concluding Findings
The Respondent asserts in its brief as its affirmative defense that Marvin Melvin
voluntarily quit on September 19. Respondent's manager, Robertson, however, testi-
fied that Melvin was terminated on that date because of his refusal to punch in for
work that morning. As to Marvin Henderson, Respondent further asserts that he
obtained his fair share of overtime as a truckdriver on the road and contends that he
was denied overtime at the elevator on the two nights in question because of his
failure to return to the elevator from his trips prior to 5:30 p.m.
The General Counsel argues that both the discharge of Melvin and the deprival of
overtime to Henderson reflect Robertson's displeasure at the outcome of the election
and constituted attempts by the Respondent to punish them for their support of the
Union in the election and simultaneously destroy the Union's majority in the Cuba
unit. As indicated hereinabove, Melvin and Henderson were the only employees
of the Respondent who voted for the Union, with the result that the Cuba unit was
the sole employee group that selected the Union as its bargaining representative.
I find no merit in the Respondent's contention that Melvin voluntarily quit his
employment on September 19. It is clear from the testimony that Melvin was a good
employee. During the entire period of his employment he had never been criticized
by Robertson or any other management representative because of unsatisfactory
work performance. Indeed, Robertson testified that Melvin's work had been satis-
factory and he had been a pretty good employee until September 19. Melvin's
actions on that date and the following Monday, when viewed in all the surrounding
circumstances, compel the conclusion that he was anxious to retain his job Upon
learning that he and Henderson were the only two employees who had voted for the
Union on September 18, Melvin became deeply disturbed and confused as to what
the results of the election meant insofar as his job tenure was concerned. This was a
natural consequence in the light of Robertson's antiunion bias and oft-expressed
threats. It was imperative from Melvin's point of view that he talk with Carpenter,
the union business agent, and obtain his explanation as to the effect of the election
upon his job status I find that Melvin's statement to Robertson that he wanted to
take the half-day off, his failure to sign in, and his tender of his keys to Wrist for the
purpose of unlocking the mill, did not amount to a voluntary quitting of his employ-
ment. I further find that Robertson's silence in the face of Melvin's request, and his
failure to either deny the request or express his disapproval, constituted approval of
Melvin's request for the day off.
The argument that Melvin was discharged because of his refusal to sign in that
Saturday morning likewise is not tenable The Respondent had no expressed policy
with respect to employee requests for leave. Although the Cuba employees generally
requested leave in advance of the date they expected to be absent, Henderson credibly
testified that on two occasions he was absent on leave, without prior notice to Robert-
son, to attend to personal business and was not penalized as a result. I therefore
find that even if Melvin had failed to report on September 19 and had not requested
advance approval of his request for leave, there would not be a sufficient basis for
his discharge. I further find that the reason asserted by Robertson for Melvin's dis-
charge was a pretext.
IPAVA FARMERS ELEVATOR CO. 1309
Even though Robertson knew, prior to the election , that Melvin was a union
member and was loyal to the Union , he found it unnecessary to discharge him at that
time because of his prounion support because , as recited above, Robertson preferred
to await the outcome of the election . At that time he was confident that the election
results would be favorable from the Respondent 's point of view , irrespective of how
Melvin voted.
In view of all the foregoing , including the timing , Robertson 's antiunion bias and
threats to Melvin, evidence that Melvin had been a good employee , and the absence
of any expressed policy of Respondent relating to emergency leave, I conclude that
Melvin's termination was due to a determination on the part of Robertson to rid
Respondent of Melvin and punish him for his support of the Union and at the same
time destroy the Union 's majority in the Cuba unit.2 Accordingly , I find that Melvin's
discharge was violative of Section 8(a) (3) of the Act.
Robertson 's obvious displeasure at the outcome of the election is reflected further
in his treatment of Marvin Henderson during the several weeks immediately follow-
ing the election Henderson 's remark to Robertson , early in September, that he
believed the advent of a union in the mill might serve to improve wages was a suffi-
cient basis for Robertson to conclude that Henderson was the second employee who
voted for the Union. This is demonstrated by Robertson 's "cold treatment" of
Henderson during this period, i e , the relaying of Henderson 's driving directions
through his fellow employee , Wust , despite the close proximity of the three men at
times, and Robertson 's departure fiom customary practice when, on two evenings
during the workweek ending on October 2 , he curtly directed Henderson to "punch
out" rather than work overtime during the beginning of the peak period of the heavy
bean season.
The Respondent has offered no satisfactory explanation in asserting its defense as to
why the existing permissive attitude of allowing its employees to work out their own
rotation arrangement as to overtime was changed . Its argument in its brief that
Henderson was denied overtime the two nights in question partly because of his
failure to return to the elevator before 5 30 p m is not meritorious I credit Hender-
son's testimony that he returned shortly after 5 p in., and surely between 5 and
5:30 p.m.
The Respondent further asserts that Henderson , as a truckdriver , got his fair
share of overtime on the road . But the denial of overtime to Henderson at the ele-
vator occurred early in the bean season when he was making short -haul trips and
consequently returned to the elevator at approximately 5 p.m. Moreover , there is
no showing that the Respondent 's practice of equalizing overtime at the elevator
ever was varied because a truckdriver may have obtained more than his share of
overtime as a result of his truckdriving duties.
Therefore , I further find that Robertson 's deprival of overtime to Henderson on
the two evenings in question constituted acts of reprisal for his support of the Union
and were violative of Section 8(a) (3) and (1) of the Act.3
I also find that the Respondent violated Section 8(a)(1) of the Act by interrogat-
ing its employees as to their union membership and sympathies and threatening to
close the mill and sell its large trucks rather than have a union in the plant F
IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE
Respondent 's activities as set forth in section III, above, occurring in connection
with the operations of Respondent set forth in section I, above , have a close, inti-
mate, 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 (a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily discharged Marvin Melvin in vio-
lation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respondent
offer this employee immediate and full reinstatement to his former or substantially
2M. Snower & Company, 83 NLRB 290 . See English Mica Company, 92 NLRB 766
3 Sterling Cabinet Corp ., 109 NLRB 6 : and Westinghouse Pacific Coast Brake Company,
89 NLRB 145.
4 N.L R.B. v. Irving Taitel et al, d/b/a I. Taitel and Son, 261 F 2d 1 (C.A. 7) ; and
Joslin Dry Goods Company, 118 NLRB 555, 58G.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent position , without prejudice to his seniority and other rights and privileges,
and that Respondent make him whole for any loss of earnings he may have suffered
by reason of the discrimination against him by paying him a sum of money equal to
the amount that he would normally have earned as wages from the date of the
discrimination to the date of offer of reinstatement less his net earnings.5
Having also found that the Respondent discriminatorily deprived Marvin Henderson
of customary overtime during the workweek ending October 2, 1965, I shall there-
fore recommend that the Respondent make Henderson whole for any loss of pay he
may have suffered in such period through loss of overtime work, by payment to him
of a sum of money equal to that he normally would have earned through overtime
work in such period, based upon the amount of overtime hours of work performed
by his partner in such work period
The backpay with respect to both Melvin and Henderson shall include interest at
6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
The above discharge and deprival of overtime strike at the heart of rights guaran-
teed employees by the Act and are closely related to other conduct abridging rights
guaranteed employees by Section 7 of the Act . There is reasonable ground to antici-
pate Respondent will infringe upon other rights guaranteed employees in the future,
unless appropriately restrained . I shall therefore recommend an order requiring
Respondent to cease and desist from infringing in any manner upon the rights guar-
anteed employees by Section 7 of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By discriminatorily discharging Melvin, as found above, Respondent has
engaged in and is engaging in an unfair labor practice within the meaning of Sec-
tion 8 ( a) (3) of the Act.
4 By discriminatorily depriving Henderson of overtime pay, as found above,
Respondent has engaged in and is engaging in an unfair labor practice within the
meaning of Section 8(a) (3) of the Act.
5. By interfering with, restraining , and coercing employees in exercising the
rights guaranteed them by Section 7 of the Act , including the discharge of Melvin
and the deprival of overtime to Henderson for engaging in union activities, and
interrogations and threats , Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7 ) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended , it is rec-
ommended that Respondent , Ipava Farmers Elevator Co , Cuba, Illinois, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees about their union activities or threaten-
ing them with reprisals for engaging in such activity.
(b) Discouraging membership in the Union or any other labor organization by
discharging or otherwise discriminating in regard to hire or tenure of employment of
any employee.
(c) Discouraging membership in the Union or any other labor organization by
depriving , or otherwise discriminating in regard to, the overtime pay of any employee.
(d) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization , to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activity for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act •
(a) Offer Marvin Melvin immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other privileges
5 F. W. Woolworth Company, 90 NLRB 289.
IPAVA FARMERS ELEVATOR CO. 1311
previously enjoyed and make him whole for any loss of pay he may have suffered
by reason of his discharge , in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Make Marvin Henderson whole for any loss of overtime pay he may have
suffered by reason of the deprival of overtime , in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Preserve and , upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards , personnel records and reports, and all other records necessary to analyze the
amount of backpay due and all other rights under the terms of this Recommended
Order.
(d) Post at its operation at Cuba, Illinois , copies of the attached notice marked
"Appendix ." 6 Copies of said notice , to be furnished by the Regional Director for
Region 13 of the Board , shall, after being duly signed by Respondent , be posted
immediately upon receipt thereof and maintained by it for 60 consecutive days there-
after in conspicuous places including places where notices to employees are custom-
arily posted . Respondent shall take ieasonable steps to insure that such notices are
not altered , defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Decision , what steps Respondent has taken to comply herewith.T
6In 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 De-
cision and Order".
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that-
WE WILL NOT interrogate employees about employees ' union activities in a
manner constituting interference , restraint , and coercion in violation of Section
8 (a)( 1 ) of the Act.
WE WILL NOT threaten our employees with reprisals for engaging in union
activity.
WE WILL NOT discourage membership in any union by discharging or other-
wise discriminating in regard to hire or tenure of employment of any employee.
WE WILL NOT discourage membership in any union by discriminatorily
depriving our employees of overtime.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self -organization , to form, join, or
assist labor organizations , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activity for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities.
WE WILL offer Marvin Melvin immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other privileges , and make him whole for any loss of pay he may have suf-
fered by reason of his discharge together with interest at the rate of 6 percent.
WE WILL make Marvin Henderson whole for any loss of overtime pay he
may have suffered by reason of the deprival of overtime , together with inter-
est at the rate of 6 percent.
All our employees are free to become or remain members of any labor
organization.
IPAVA FARMERS ELEVATOR CO,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
1312 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
NOTE.-We will notify Marvin Melvin if serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Fourth
Floor, Citizens Building, 225 Main Street , Peoria, Illinois, Telephone No. 673-9283.
Russell-Newman Mfg . Co., Inc. and International Ladies' Garment
Workers Union, AFL-CIO. Cases Nos. 16-CA-2116 and 16-CA-
p138. July 6,1965
DECISION AND ORDER
On April 22, 1965, Trial Examiner Boyd Leedom issued his Decision
in the above-entitled proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the complaint and rec-
ommending that the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to the Trial Exam-
iner's Decision and supporting briefs. Respondent filed exceptions
and an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 finds merit in certain exceptions of the General Counsel
and Charging Party. Accordingly, the Board adopts the findings,
conclusions, and recommendations of the Trial Examiner only to the
extent consistent herewith.
3 Pour days before the hearing herein, Respondent received notice from the General
Counsel that certain amendments to the complaint would be proposed . At the hearing,
Respondent requested a continuance in order to prepare a defense to those amendments.
The Trial Examiner denied the motion, with the understanding that Respondent would
submit as an offer of proof the evidence that it would have introduced at a delayed hear-
ing on the issues raised by the amendments . After the close of the hearing, Respondent
submitted such offer of proof accompanied by a motion to reopen the hearing to introduce
the evidence proffered . The offer of proof was rejected and the motion to reopen the
hearing was denied by the Trial Examiner. Assuming the truth of the facts alleged in
the offer of proof, the evidence which Respondent offers is merely cumulative and in no
way would alter the result reached herein. Moreover , the information in support of
Respondent 's assertions was substantially contained in Respondent 's own records or within
its own knowledge and required no extensive investigation . Therefore , no prejudice could
have occurred from the denial of a delay . Accordingly , we shall deny Respondent's
motion to reopen the hearing.
153 NLRB No. 105.