Webel Feed Mills & Pike Transit Co.

National Labor Relations Board - Board Decisions

May 7, 1975

217 N.L.R.B. 815 (N.L.R.B. 1975)

GEORGE WEBEL & PIKE TRANSIT COMPANY
George Webel d/b/a Webel Feed Mills & Pike Transit
Company and Local 217 , American Federation of
Grain Millers, AFL-CIO. Cases 14-CA-7884 and
14-CA-7952
May- 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 18, 1974, Administrative Law Judge
Herbert Silberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified herein, and
hereby orders that Respondent, George Webel d/b/a
Webel Feed Mills & Pike Transit Company, Pittsfield,
Illinois, his agents, successors, 'and assigns, shall take
the action set forth in the said recommended Order, as
modified below:
1. Substitute the following for paragraph 1(e):
"(e) Threatening to close his plant or to lay off em-
ployees in order to discourage employees from support-
ing Local 217, American Federation of Grain Millers,
AFL-CIO, or any other labor organization, in a pend-
ing Board-conducted election or otherwise."
I Employee Cawthon testified that about 3 days after the election George
Web,--I, owner of Respondent, told him that "if we had a union in the Mill
we would have to lay off some help because we would have too much
manpower " The Administrative Law Judge found that Webel's statement
was not violative of Sec 8(a)(1) because it was ambiguous without further
claril ication, noting that at the time the statement was made the Union had
already won the election The General Counsel excepts, contending Webel's
statement was not ambiguous, particularly in the circumstances of this case.
We find merit in the General Counsel's exception. Accordingly, we find the
statement violative of Sec 8(a)(1).
The Administrative Law-Judge found that the contracting out of 4 to 6
hours of unit work per day after June 1, 1974, was not substantial enough
to require Respondent to give the Union notice of the change and did not
result in any "significant detriment" to unit employees The General Coun-
sel did not except to his finding In the absence of exceptions thereto, we
adopt the Administrative Law Judge's finding dismissing that allegation of
the complaint
815
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request , bargain collectively con-
cerning rates of pay, wages, hours of employment,
and other terms or conditions of employment with
Local 217, American Federation of Grain Millers,
AFL-CIO, as the exclusive representative of all
the employees in the appropriate unit described
below and , if an agreement is reached , we will
execute a written contract incorporating the terms
of the agreement . The Union 's certification year
shall extend 1 year from the date such new bar-
gaining negotiations begin . The appropriate unit
is:
All full-time and regular part-time production and
maintenance employees and truckdrivers em-
ployed at the Employer's Rural Route 3, Pitts-
field, Illinois, facility, excluding all office clerical
employees, salesmen, professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT make or effect any changes in the
wages, hours, or other terms or conditions of em-
ployment of the employees in aforesaid collective-
bargaining unit without first giving notice to their
collective-bargaining representative and affording
such representative an opportunity to engage in
collective bargaining with respect to any such
proposed change.
WE WILL NOT layoff, threaten to layoff, or other-
wise discriminate against any employees in regard
to their hire, tenure of employment, or any term
or condition of their employment, in order to dis-
courage membership in Local 217, American Fed-
eration of Grain Millers, AFL-CIO, or any other
labor organization.
WE WILL NOT threaten to discharge employees
who engage in lawful strikes.
WE WILL NOT promise benefits to employees to
induce them to refrain from participating in any
strike.
WE WILL NOT threaten to close our plant to dis-
courage employees from supporting Local 217,
American Federation of Grain Millers,
AFL-CIO, or any other labor organization, in a
pending board-conducted election or otherwise.
217 NLRB No. 121
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT advise employees to refrain from
associating with other employees who favor or
support Local 217, American Federation of Grain
Millers, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT coercively question employees con-
cerning attendance of other employees at union
meetings or regarding employees' union sympa-
thies, activities , or membership.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of the
right to self-organization , to form , join, or assist
labor organizations , to' bargain collectively
through representatives of their own choosing,
and to engage in any other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or
all such activities.
WE WILL offer Earl Hull immediate and full
reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent posi-
tion , without prejudice to his seniority and other
rights and privileges , and WE WILL make him whole
for any loss of earnings he may have suffered by
reason of our unlawful discrimination against him.
GEORGE WEBEL, d/b/a WEBEL
FEED MILLS & PIKE TRANSIT
COMPANY
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, an individual proprietor doing business under
the trade name and style of Webel Feed Mills & Pike Transit
Company, maintains an office and place of business in Pitts-
field, Illinois, where, among other activities, he is engaged in
the manufacture, processing, and distribution of livestock
feed and related products. During the calendar year 1973,
which period is representative of the Company's operations,
Respondent purchased and caused to be shipped through
channels of interstate commerce to his place of business in
Pittsfield, Illinois, from locations outside the State of Illinois,
grain and other goods and materials valued in excess of
$50,000. The complaint alleges, Respondent admits, and I find
that he is an employer within the meaning of Section 2(2) of
the Act engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ISSUES
At an election conducted by the Board on April 30, 1974,
a majority of the Company's employees in the unit described
below designated the Union as their representative and, on
May 8, 1974, a certification of representative was duly issued.
The appropriate collective-bargaining unit certified by the
Board is:
HERBERT SILBERMAN, Administrative Law Judge: Upon
charges filed in the above-numbered cases on April 12 and
May 28, 1974, respectively, by Local 217, American Federa-
tion of Grain Millers, AFL-CIO, herein called the Union, an
order consolidating the above-numbered cases and a com-
plaint therein, dated June 28, 1974, was duly issued. The
complaint, as amended on July 25, 1974, and as further
amended during the hearing, alleges that George Webel
d/b/a Webel Feed Mills & Pike Transit Company, herein
called the -Company, has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (5) of the Act. Respondent filed an answer denying
generally that he has engaged in the alleged unfair labor
practices. A hearing in these proceedings was held on August
27, 28, and 29, 1974, in Pittsfield, Illinois. Thereafter, briefs
were filed with the Administrative Law Judge on behalf of
General Counsel and Respondent.
Upon the entire record in the case,' and from my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing:
1 P. 260 of the transcript of record is hereby corrected to change 6-D to
6-C on 11. 9 and 13
All full-time and regular part-time production and main-
tenance employees and truckdrivers employed at the
Employer's Rural Route 3, Pittsfield, Illinois, facility,
excluding all office clerical employees, salesmen , profes-
sional employees, guards and supervisors as defined in
the Act.
Thereafter, at six separate sessions held between May 14 and
June 19, the Union and the Company engaged in collective-
bargaining negotiations. However, the parties were unable to
reach an agreement and on June 20, 1974, the Union called
a strike. The complaint alleges that Respondent has refused
to bargain collectively in violation of Section 8(a)(5) by:
(a) On May 20, 1974, unilaterally changing the pay ar-
rangement for its truckdrivers from a weekly salary to an
hourly rate;
(b) Since June 3, 1974, unilaterally eliminating "a job for
a unit employee by selling one of its trucks and contracting
out the work done by a unit employee;" and
(c) On May 1, 2, 4, and 11, 1974, unilaterally changing the
working conditions of the Company's truckdrivers by impos-
ing upon them more arduous duties through the elimination
of breaks, imposition of new working rules, prohibition of
GEORGE WEBEL & PIKE TRANSIT COMPANY
lunchbreaks while driving and coffeebreaks generally, and
imposition of new cleanup duties.'
The complaint also alleges that Respondent discriminated
against employees in regard to their hire, tenure of employ-
ment, or other terms and conditions of employment "in order
to discourage employees from engaging in union and/or pro-
tected concerted activities,"by:
(a) On May 22, 1974, laying off Earl Hull and Bruce Rush;
(b) On May 23, 1974, laying off or terminating Earl Hull,
Joseph Womble, Allen Horton, and Bruce Rush; and
(c) Since on or about June 3, 1974, selling one of its trucks
which resulted in the loss of unit work.
The complaint further alleges that, by reason of the forego-
ing and other conduct specifically set forth in 13 subpara-
graphs of paragraph 5 of the complaint, Respondent has
interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act in
viollation of Section 8(a)(1).
IV THE UNFAIR LABOR PRACTICES
A. Background
The Company is solely owned by George Webel. Webel,
who is engaged in farming and raising livestock, also pro-
duces feed for livestock. Initially he produced feed only for
his own livestock, but in 1960 he expanded his operations and
began to manufacture feed for others, which activity has
grown over the years. In part, Webel operates a grain bank.
Farmers bring their corn to his place of business where it is
ground and enriched through the addition of proteins and
other ingredients and then the feed is delivered to the farmers
or they pick it up themselves. At present, the Company em-
ploys about 24 persons of whom approximately 13 work in
the feed mill.
Prior to 1973 the Company employed Art Crowder, a
carrier, to transport feed ingredients to the plant and to
deliver manufactured feed to customers. The Company then
owned one large truck and two small trucks which were used
about the premises and to make urgent deliveries. In Febru-
ary 1973 Webel purchased six trucks from Art Crowder
These included four bulk truks, which are used to haul bulk
feed, and two bag and bulk trucks, which are used to haul
bulk or bagged feed or both. At the time of the purchase the
six men who had been driving the trucks for Art Crowder
were hired by the Company to work for- it under the same
terms and conditions of employment that they enjoyed when
they were working for Crowder. A few weeks after the pur-
chase one of the trucks broke down and one of the six drivers
quit. Thereafter, the Company employed only five regular
drivers.' On occasions, as necessary, other plant employees
have been used to drive trucks. Thus, as of early 1973 the
Company owned six large trucks and two small trucks.
Thereafter, the Company brought two additional large bag
and bulk trucks, one in fall of 1973 and the other in April
1974. About June 1, 1974, the Company sold one bulk truck
2 It is to be noted that this allegation of the complaint is related to an
alleged violation of Sec 8(a)(5) and not to a violation of Sec 8(a)(3) or to
an independent violation of See 8(a)(1)
3 From early January 1974, to the first week in May, when he quit, a sixth
driver, Pete Butler, was employed
817
to Art Crowder, which was one of the vehicles that it had
initially purchased from Crowder. According to George We-
bel, the reason he sold the truck to Crowder in June 1974 was,
first, that the Company then owned eight large trucks plus
two small trucks and employed only five drivers so that there
was a surplus of trucks, and, second, as of that time the
Company found that it had more split loads to deliver, that
is loads of both bulk and bag feed, and had less need for bulk
trucks.
After the purchase of the trucks in February 1973, the
Company made most of its customer deliveries itself. How-
ever, it continued to use the services of Art Crowder to ship
to its plant the ingredients which were bought from outside
sources and to make long-distance deliveries such as to Kan-
sas City.
During the times material herein, in addition to George
Webel, the following persons exercised managerial or super-
visory authority on behalf of the Company: John Teuscher,
general manager; Cecil Smith, office manager and also
manager of the Company's trucking operations; Don Webel,
who since May 17, 1974, has occupied the position of mill
superintendent and prior thereto was employed as a sales-
man; and Gene Webel, who prior to May 17, 1974, occupied
the position of mill superintendent.
B. The Organizational Activities
The principal union activist among Respondent's em-
ployees was Earl Hull who began working for the Company
on June 1, 1971. Hull testified that in 1973 he, Clifford Wai-
man (who was discharged during the slack season in 1973),
and other employees solicited signatures to authorization
cards on behalf of the Union. As they succeeded in getting
only 10 signatures they decided that not enough employees
were interested in union representation and discontinued
their organizational efforts. Subsequently, in January 1974, a
renewed interest in union representation developed because
there was "a little bit of turmoil, talking about cutting the
hours down because of a lack of production which normally
starts that time of year...." Hull again obtained authoriza-
tion cards and solicited employees to sign them. The signed
cards were delivered to a union representative who filed a
petition for certification of representative with the Board
about February 22, 1974.
George Webel testified that the first knowledge he had that
employees were engaged in organizational activities came
when he received a copy of the petition in the mail. On
Monday, February 25, George Webel contacted Charles H.
Meredith, a labor relations specialist, and retained him to
represent the Company. A hearing was held in the representa-
tion proceeding, Case 14-RC-7590, in mid-March at which
Earl Hull testified for the Union. Following the hearing an
election was conducted on April 30, 1974, among the em-
ployees in the unit described above. The tally of ballots shows
that, of approximately 16 eligible voters, 11 votes were cast
for the Petitioner, 2 votes were cast against the Petitioner, and
3 ballots were challenged. The Union was certified on May
8, 1974, as the representative of the Company's employees.
The Company was opposed to the organization of its em-
ployees and General Counsel contends that conduct engaged
in by Respondent unlawfully impinged upon employees'
statutory rights.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Interference, Restraint, and Coercion
The complaint alleges 13 specific incidents of violation of
Section 8(a)(1). The evidence in respect thereto will be dis-
cussed below in the same order as they are pleaded in para-
graph 5 of the complaint.
On February 27, 1974, George Webel mailed to each em-
ployee in the bargaining unit a two -page letter urging them
to vote "`No'when the time comes." Among other things the
letter contains the following:
3. If the company doesn 't give what the union want.;
the company will not be able to operate in the event of a
strike.
ANSWER: If the employees go on strike, and we hope
this never happens, they cannot get unemployment
compensation-the employees who do not want to
strike , will be able to continue to work , and the law will
protect them-employees who go on strike, can be re-
placed with other employees, and when they are re-
placed, they have no job.
In the context of references to unsuccessful strikes at two
other companies in the area, as General Counsel argues, "the
remark about losing jobs in the letter should be seen and
viewed as a threat to discharge economic strikers." Further-
more, the letter would lead employees to believe that once a
replacement has been hired to fill the job of a striker that
employees thereafter has "no job," or, phrased differently, he
would have no rights to reinstatement. This is contrary to the
applicable law. For the reasons stated in Hicks-Ponder Co. A.
Division of Blue Bell, Inc., 186- NLRB 712, 725 (1970), affd.
458 F.2d 19 (C.A. 5, 1972), I find, in agreement with General
Counsel, that Respondent's letter of February 27, 1974, con-
stitutes a violation of Section 8(a)(1).
There is undenied testimony that, on the occasions dis-
cussed below, Mill Superintendent Gene Webel advised em-
ployees, in effect, that if the Union should win the pending
election George Webel would close the plant. Thus, Donald
Bruce Rush testified that about 3 weeks before the election
Gene Webel stated to him in the presence of another em-
ployee, Gerald Cawthon, that "George [Webel] would not
allow a union in the plant, that he'd close the doors first."
According to Rush , on another occasion, sometime in April,
Gene Webel told Rush and another employee, Dave Mulford,
that "if the union went in, George [Webel] would close the
doors, that he wouldn't allow a union in the plant." Bruce
Zumwalt testified that about 2 weeks before the election dur-
ing a discussion with Gene Webel the latter said, "I think that
he [George Webell would give the mill away before he would
allow a union in here ." In a similar vein, Earl Hull testified
that in late March 1974 he was engaged in a conversation
with two other employees, Dave Mulford and Gerald Conk-
right, about the pending election and, as Mulford said that
the Union was going to make it this time, Gene Webel came
by and remarked, "Well, if it does, George [Webel] will close
her down." Hull further testified that he heard Gene Webel
make similar statements five or six times between that date
and the date of the election. Gene Webel was not called as a
witness, although the record indicates he was in the Com-
pany's employ at the time of the hearing. George Webel
testified that he never told Gene Webel that he would not
tolerate a union and further that he did not authorize Gene
Webel to make, any statements about the subject. However,
at the time the statements were made Gene Webel was mill
superintendent and-was therefore a general agent of the Com-
pany. Accordingly, the threats described above are attributa-
ble to the Company and as they were clearly coercive the
Company thereby violated Section 8(a)(l) of the Act.
The complaint alleges that about March 1, 1974, George
Webel promised employee Gerald Cawthon a pension plan
and about March 13, 1974, Foreman Gene Webel promised
employee Earl Hull a pension plan, in both instances to dis-
courage employee support for the Union. George Webel testi-
fied that the subject of a pension plan had been under consid-
eration by management for about a year and a half and that
the conversations referred to occurred prior to February 22
when he first learned about the employees ' organizational
activities. Cawthon in his testimony did not directly fix the
date of his conversation with Webel, but was asked the fol-
lowing question by General Counsel, "Do you recall a discus-
sion you had with George Webel down below the mill early
in March?" His answer was, "Yes, sir ." Similarly, Hull did
not testify directly as to when the conversation with Gene
Webel occurred, but General Counsel put to him the follow-
ing question: "I want to call your attention now to early
March, 1974, and ask if you had a discussion with Gene
Webel at the pellet mill." Hull answered, "Are you-I have
had several discussions with him . The one that comes to mind
would be when he mentioned the pension plan to me at that
time." In both situations General Counsel , in effect, sug-
gested the dates of the respective conversations to the wit-
nesses which dates they offhandedly adopted. Where, as in
this instance, the dates when particular events took place
become significant, an affirmative answer by a witness to a
leading question which suggests the date to the witnesses, in
my opinion, has less value than the considered testimony of
a witness who fixes the date himself. Furthermore, George
Webel described other circumstances which enabled him to
recall more clearly the times when the relevant events oc-
curred. I credit George Webel that the Company learned of
the employees' organizational interest and, therefore, I find
that General Counsel has not proved these allegations of the
complaint.
Subparagraph G alleges: "On or about April 16, 1974,
Owner George Webel promised an employee a better job and
a pay increase in order to discourage that employee's support
for the Charging Party." In support of this allegation em-
ployee Gerald Cawthon testified that about 2 weeks before
the election he had a conversation with George Webel and,
according to Cawthon, "he told me that I could have the
bagger or the drive, whichever I wanted " General Counsel
argues, "[I]t is clear that these positions meant an improve-
ment in Cawthon's work assignment. A violation should be
found inasmuch as the offer of advancement came during a
pre-election period when Cawthon could reasonably under-
stand, in view of the remarks of both George Webel and Gene
Webel, that advancement was available but not for union
adherents." Unfortunately, the proof does not support the
argument. First, there is no evidence in the record that the
positions of bagger or drive represented an improvement in
Cawthon's work assignment. Further, except only for the fact
that the conversation occurred 2 weeks before the election,
GEORGE WEBEL & PIKE TRANSIT COMPANY
there is no evidence in the record suggesting that George
Webel's offer was in any way related to the organizational
activities taking place in the plant or in order to discourage
Cawthon's support for the Union. Accordingly, I shall
recommend dismissal of this allegation of the complaint.
Subparagraph H alleges: "On or about April 23, 1974,
Owner George Webel promised an employee more hours of
work and an increase in pay rate in order to discourage that
employee's union activities." General Counsel relies on the
testimony of Allen Horton, who was hired by the Company
on April 8, 1974, to support this allegation of the complaint.
Horton testified that approximately 1 week before the elec-
tion George Webel call him aside and engaged him in a
conversation. According to Horton, "George asked me if I
was going to be with us-I don't know who he meant by `us'
but he was speaking for himself-if they had a strike or if the
union help went out, and I said that I didn't know, I was just
sitting there listening, and then he said that, `Well, I'll take
your hours from here on out and after this union deal is taken
care of I'll take care of you,' and then he said something about
$10,000 a year." On cross-examination with respect to the
same subject, Horton testified, "He talked about if I was
going to come in if they had a strike or if the union went out,
and that I'll take your hours from here on out and we'll figure
it up, and then at the last he said if $10,000 would be O.K.,
and I said I'd think about it." George Webel categorically
denied having had any such conversation with Horton. How-
ever, Webel testified that during Horton's employment inter-
view Horton inquired how much he would earn and Webel
answered that it would depend on the Company's needs and
the number of hours that Horton worked and that his earn-
ings would "run from seven to ten thousand ...." I credit
Horton's testimony rather than George Webel's conflicting
testimony." Accordingly, I find that, on the occasion testi-
fied to by Horton, George Webel promised Horton that if he
would work during a strike which might occur then George
Webel would "take care of' him and suggested that he would
then be in a position to earn about $10,000 a year. Such
promise of benefit to induce an employee to refrain from
making common cause with other employees constituted an
unlawful infringement upon employees' Section 7 rights and
therefore violates Section 8(a)(1) of the Act.
Subparagraph I recites: "On or about April 26, 1974,
Owner George Webel granted certain employees a free dinner
in order to discourage their union activity, which dinner was
provided at the Carriage House Restaurant in Hannibal, Mis-
souri ." The evidence shows that the dinner did not take place
on April 26, 4 days before the NLRB election, but rather on
the day after the election. Present at the dinner were George
Webel, John Teuscher, Cecil Smith, Don Webel, and Gene
Webel. In addition to the supervisory personnel there were
also present five salesmen, five mill employees who included
Gerald Conknght and Harold Shoemaker, and three rela-
4 George Webel gave his testimony in a hesitating manner and appeared
from time to time to be uncertain of the events about which he was being
questioned Also, there was a tendency on his part to give generalized
answers and facile explanations for events without specific details which
would have made his testimony more meaningful On the whole, George
Webel did not impress me as being a reliable witness who conscientiously
was seeking to answer the questions put to him straightforwardly and with-
out equivocation.
819
tively new employees, Ed Reinhart, Mike Trout, and Allen
Horton . According to General Counsel's witness Allen Hor-
ton, after the dinner was concluded George Webel asked the
group whether they would be "with us" if the Union went on
strike. Webel explained that in the event of a strike the sales-
men would drive the trucks, the balance of the employees
would work in the mill producing feed, and some farmers
would continue to patronize the Company as long as they
could get feed. George Webel testified that the meeting was
initiated by the salesmen, who were concerned about their
employment should a strike occur, and his remarks as to what
would be done in the event of a strike were made in answer
to questions addressed to him. Accepting Horton's tes-
timony, I find that it does not support-the allegation of the
complaint that employees were given a free dinner to discour-
age their union activity. Accordingly, I shall recommend that
this allegation of the complaint be dismissed.'
Subparagraph J recites: "On or about May 3, 1974, owner
George Webel threatened employees with layoff if they con-
tinued to engage in union activities." In support of this allega-
tion Gerald Cawthon testified that about 3 days after the
election in a discussion with George Webel, "he mentioned
that if we had a union in the mill that we would have to lay
off some help because we would have too much manpower."
Without further clarification this comment is ambiguous. At
the time of the conversation the Union had already won the
election. The Company did not contest the election and began
negotiations with the Union promptly. In this setting I cannot
agree with General Counsel's argument that the remark con-
stituted notice that the continued existence of the Union in
the mill would lead to layoffs. Accordingly, I shall recom-
mend that this allegation of the complaint be dismissed.
The next incidents occurred on May 4, 1974, when Joseph
Womble was applying to George Webel for a position. Ac-
cording to Womble, Webel told him that "the union has been
voted in here and . . we are going to fight it." Also, Webel
asked him whether he would work if a strike should occur.
Womble replied in the affirmative. Webel assured Womble
that he would not have anything to worry about because
Webel had talked to the local and state police. Womble asked
if he would be able to advance to a better position and Webel
replied that there would be job openings because some people
probably will leave because of the union situation. General
Counsel does not contend that this conversation constitutes
unlawful interrogation. Without considering George Webel's
contrary version of the meeting I find that this testimony on
the part of Womble does not support the allegation of the
complaint that, "Owner George Webel promised an em-
ployee a better job if the employee-refrained from supporting
the Charging Party." However, during the same interview,
according to Womble's further testimony, which I credit de-
spite Webel's denial, Webel said that Womble would "be
better off not to associate with some of the union members
that had voted in the union." I agree with General Counsel
that such suggestion constitutes an unlawful infringement
5 General Counsel argues in his brief that the presence of Horton and the
other two new employees, Trout and Reinhart, at this meeting indicates that
management considered them to be employees who would refuse to support
a strike. From this, as discussed below, General Counsel infers that when
Horton was later laid off it was because the Company believed it could no
longer rely on him to work in the face of a strike.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon employees' statutory rights. When, as in this case, an
employee is instructed not to associate with other employees
who are known to favor the Union, such instruction consti-
tutes a restraint upon and interferes with the employees' right
to engage in concerted activities for the purpose of mutual aid
and protection. Even though the remark by George Webel
was phrased in the form of a suggestion, in the context of a
discussion where Webel had informed Womble that Webel
was going to fight the Union, the remark was likely to be
understood by Womble to mean that if he were to associate
with union supporters he would displease Webel and might
be subject to reprisals. I find that the incident constitutes a
violation of Section 8(a)(1).
The last- 8(a)(1) allegation relates to an event which took
place about a week after the election. Gerald Cawthon testi-
fied that Don Webel asked him if employees Al Horton and
Joe Womble ' were going to union meetings. Cawthon re-
sponded that they were. In the context of Respondent's other
unlawful activities, described above, and discussed below,
including the unlawful discharge of Earl Hull, Don Webel's
questioning Cawthon as to whether two employees were at-
tending union meetings would suggest that Respondent was
-interestediri discovering who would support the Union in the
event of a crisis, such as a strike, and might use such informa-
tion to the disadvantage of employees who in the eyes of
management were deemed disloyal. In these circumstances
the interrogation of Cawthon concerning the union activities
of employees Horton and Womble constituted a violation of
Section g(a)(1).
D. The Refusal To Bargain
The Union won an election in a unit of Respondent's pro-
duction and maintenance employees , including truckdrivers,
on April 30,1974. A certification of representative was issued
on May 8, 1974. Negotiations began soon thereafter. The first
session was held on May 14 and the last of six sessions was
held on June 19. Representing the Company at these meet-
ings were Charles Meredith, a labor relations consultant, and
General Manager John Teuscher. Representing the Union
was International Representative Lloyd Freilinger and an
employee committee composed of Earl Hull, Delbert Ruble,
and Bruce Zuniwalt . The parties were unable to reach an
agreement and the Union called a strike which began on June
20. While General Counsel contends that Respondent has
engaged in the violations of Section 8(a)(5), discussed below,
there is no contention that Respondent failed to negotiate in
good faith and there is no contention that the strike is an
unfair labor practice strike.
Two days after the election , on May 2, without prior notice
to the Union , the Company distributed to its truckdnvers the
following notice:
2. No employee shall leave any truck running when not
necessary.- -
3. No truck shall be left unattended.
4. Drivers on the delivery schedule shall not stop for
coffee, personal errands or other reasons except for their
scheduled lunch period. At such times, the motor will be
turned off and the cab locked.
5. Any truck carrying a product shall deliver the product
before taking a lunch break.
Fuel costs and delivery costs must be reduced.
Items 1,4, and 5 represent changes in the drivers' operating
instructions which adversely affected their conditions of em-
ployment. In addition, driver Delbert Ruble testified without
contradiction that on the day after the election he and
another driver, Pete Butler, were informed by Cecil Smith
that "George [Webell said no coffee breaks ...." Prior
thereto the drivers customarily were permitted two 10-
minute coffeebreaks which they took whenever they had the
opportunity.
It is well settled that good-faith compliance with Section
8(a)(5) of the Act presupposes that an employer will not make
unilateral changes in wages or working conditions without
affording the employees' statutory representative an oppor-
tunity to bargain collectively with the employer about such
changes. N.L.R.B. v. Katz, Benne, etc. d/b/a Williamsburg
Steel Products Co. 369 U.S. 736 (1962); N.L.R.B. v. Cromp-
ton-Highland Mills, Inc., 337 U.S. 217, 221, 225 (1949). Such
unilateral action "tends to subvert the union's position as the
representative of the employees ...." N.L.R.B. v. Insur-
ance Agents' International Union, AFL-CIO [Prudential Ins.
Co.], 361 U.S. 477, 485 (1960).
In defense of its action Respondent in his brief argues: "By
promulgating modest new rules for its truck drivers to help
conserve fuel, the Company did no more than initiate de
minimus changes , solely for economic reasons, which had
admittedly no significant adverse impact upon the drivers
themselves." Contrary to Respondent, the above-described
changes in the conditions of work of the drivers are not de
minimus Meal and coffee breaks are significant conditions of
employment and rules in regard thereto are with great fre-
quency incorporated in collective-bargaining agreements.
Furthermore, the opportunity to use a company vehicle for
personal transportation is a meaningful employment benefit.
As the Supreme Court has pointed out unilateral action by
an employer "will rarely be justified by any reason of
substance."6 Accordingly, I find that the changes made by
Respondent in the conditions of work of its drivers as pro-
mulgated on May I and 2, 1974, constituted violations of
Section 8(a)(5).7 It is immaterial that when the Company
made the above-described changes in the conditions of work
of its drivers the Board had not yet certified the Union and
TO: All Truck Drivers
During the past few weeks, we have noticed several
things happening in our truck delivery area. We must,
therefore, advise you that effective Friday, May 3, the
following rules will be in effect.
1. No truck may be driven to the employee's home for
lunch, errands or at night, except with written authori-
zation in advance signed by Cecil.
6 N.LR.B. v. Katz, supra, 747
7 Delbert Ruble testified that on the first Saturday after the April 30
election he was assigned the chore of sweeping the mill premises and on the
second Saturday after the election he was assigned to move concrete blocks
and steel posts-tasks which he had never previously been asked to perform.
As General Counsel did not adduce evidence describing the nature of the
work the Company's truckdnvers had been accustomed to do prior to the
election when they were not engaged in driving their vehicles, this tes-
timony by Ruble is insufficient to establish that an unlawful unilateral
change in a condition of his employment had been effected.
GEORGE WEBEL & PIKE TRANSIT COMPANY
the parties had not yet met for the purposes of collective
bargaining . After the election on April 30 Respondent knew
that the Union had been designated as the representative by
a majority of its employees . Thereafter it could not lawfully
make any changes in the terms and conditions of employment
of its employees without advance notice to the employees'
representative and without affording the representative an
opportunity to bargain about the subjects.'
At the first bargaining session , held on May 14, 1974, the
Union, among other things, proposed changing the wage ba-
sis for the truckdrivers from a weekly salary to an hourly rate
of about $4 per hour, which would represent a significant
increase in the drivers ' earnings, and with overtime after 8
hours' work per day and for work performed on Saturdays
and Sundays . According to Lloyd Freilinger , after some dis-
cussion, Meredith said that the Company would respond at
the next meeting . Meredith, on the other hand , testified that,
because he believed that the Company's pay arrangement for
its drivers might have been in violation of the Wage and Hour
Law, he responded that the Company was willing to pay the
drivers an hourly rate instead of a salary . According to Mere-
dith, "I said, `The first thing is let's put them on hourly rate,
time and a half after 40, and in the consequence of negotia-
tions we'll develop what their new rates should be and
whether they should get time and a half over eight or over
forty, but now we're on hourly rate, and we agree with you."'
The Union answered that they still wanted to talk about time
and a half after 8 hours of work . According to Meredith's
further testimony, he replied, "'When we get our counter-
proposals ready, we can get into that , but this has to be done
and we think its to the mutual advantage of both of us to do
it.' No one hit the ceiling or no one raised cane. We went on
to another subject." I do not credit Meredith to the extent
that his testimony suggests that an agreement was reached,
whether explicitly or implicitly , which provided for a change
in the method of paying the drivers from a salary basis to an
hourly basis. Not only would such testimony conflict with
Freilinger's testimony , which I credit,9 but also with Mere-
dith 's own minutes of the meetings. These minutes make no
reference to any such agreement and in part state that after
Freilinger had presented the Union's proposals at the May 14
meeting, "The Company will agree to study and review the
Union's proposals and on Monday, May 20 , at 9:30 a.m., at
the same location , the Company will have a contract proposal
to offer covering only the body of the contract and no eco-
nomic items will be considered until the framework of the
contract is agreed upon." Between the May 14 bargaining
session and the next meeting on May 20 , the Company
changed the pay arrangement for its drivers from a weekly
salary to an hourly rate and published the following notice to
its drivers with respect thereto:
As you are aware the volume of orders and shipments
has dropped sharply because of unsettled beef and pork
price conditions.
8 Laney & Duke Storage Warehouse Co., Inc., 151 NLRB 248,
266-267, affd. 369 F 2d 859 (C.A. 5, 1966)
9 Freilinger gave his testimony in a thoughtful, careful manner and im-
pressed me as being a reliable witness.
821
It is impossible for the Company to continue to keep
you on for the full week when business does not justify
it.
In computing your weekly rate, the method used was
40 hours of straight time and the remaining 14 hours at
time and one-half, or a total of 61 hours. For those
employees who are earning $150.00 a week this means
that your hourly rate is $2.45. Effective Monday, May
20, you will be paid on your hourly rate, and the Com-
pany use you as much as it is practical to do so; however,
they will reserve the right to send you home if business
does not justify your continunig on the job.
General Counsel argues that "although the actual eco-
nomic impact on the drivers is potential," the real impact of
Respondent's unilateral change lay in the fact that at the very
outset of the negotiations, Respondent seized the-opportunity
to implemment a unilateral change, and to embarrass the
Union not only by making the change but by refusing to
retract the change or to negotiate about it once Respondent's
misconduct had been brought to its attention. Respondent's
conduct was calculated to disparage the Union in the eyes of
unit employees and to undercut the Union's position as the
employees' selected collective-bargaining representative." I
agree with General Counsel.
[C]ompliance with the statutory obligation to "confer in
good faith with respect to wages, hours, and other terms
and conditions of employment" presupposes that the
employer will not change wages or working conditions
without first giving his employees' representative an op-
portunity to consult and to bargain with him about the
proposed change. Failure to afford such opportunity to
his employees' representative is the equivalent of an an-
ticipatory denial of the representative's request to
negotiate about the subject and hence a constructive
refusal to bargain. This follows from the fact that the
statutory duty to bargain collectively presupposes that
an employer will not impede or frustrate the bargaining
process which is the almost inevitable result of a unilat-
eral change in the terms and conditions of employment
whereby the employees' representative is presented with
a fait accompli. Furthermore, unilateral action by an
employer which denies to a labor organization effective
participation in a significant area of the bargaining rela-
tionship tends to subvert the organization's position as
the representative of employees and thus to interfere
with the right of the employees to bargain collectively
through representatives of their own choosing."
Accordingly, I find that the Company's change in the
method of paying its drivers without affording the Union an
opportunity to bargain about the subject constituted a viola-
tion of Section 8(a)(5).
The final allegation with respect to the alleged violations
of Section 8(a)(5)reads: "Since on or about June 3, 1974, the
Respondent unilaterally and without prior notice to and bar-
to sere was no evidence that any driver suffered a loss in weekly earn-
ings, but, the potential for such loss exists if, as was suggested by the notice,
the hours of work should be reduced.
" The Orion Too], Die and Machine Company, 195 NLRB 1080, 108,7
(1972).
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining with the Charging Party, eliminated a job for a unit
employee by selling one of its trucks and contracting out the
work done by a unit employee." The evidence is that on June
1, -1974, the Company sold a bulk truck to Art Crowder. The
Company then owned eight large trucks and two small trucks
and employed five drivers. Therefore, the sale of one truck
did not, as alleged in the complaint, eliminate a job for a unit
employee. In his brief General Counsel argues: "Respondent
did not notify or bargain with the Union about its decision
to eliminate one of its 6 driver positions . . . . Consequently,
it was undisputed that Respondent unilaterally undertook the
action which amounted to transferring out one of the unit's
6 driver jobs, together with truck, to Crowder." The difficulty
with this argument is that it is unsupported by the record
evidence. The Company as of the date of the sale had only
five regular drivers, not six. After the sale-the Company still
employed five regular drivers. Accordingly, no driver posi-
tion was eliminated by the sale of the truck. However, in
addition to its regular drivers, the Company, from time to
time and as needed, assigned other plant personnel to drive
trucks. Cecil Smith testified that prior to June 1, 1974, when
the truck was sold to Crowder all local deliveries from the
plant to its customers were made by company personnel and
Art Crowder was not employed for such purpose, although
Crowder was used for all incoming shipments and long-haul
deliveries. However, after June 1, according to Cecil Smith,
Crowder began making customer deliveries of about one and
a half loads per day which represented about 4 to 6 hours
work for a single employee. Smith further explained that such
customer deliveries by Crowder resulted in the reduction of
late trips by company employees and served to accomodate
customers by expediting deliveries of feed to them.
I find that as of June 1 the sale of the truck did not serve
to eliminate a job for a unit employee. However, after June
1 the Company used Art Crowder to make some deliveries for
it, which theretofore had been performed by unit personnel,
and as an average would have required 4 to 6 hours work per
day by a single employee. Such contracting out was not suffi-
ciently substantial to require the employer to give advance
notice to the Union. The action did not affect any specific unit
'job although the unit as a whole was deprived of approxi-
mately 4 to 6 hours of work per day. In view of all the
circumstances, including the fact that the Company's use of
Art Crowder to make some local deliveries after June 1 did
not result in any "significant detriment"" to employees in
the appropriate unit, I shall recommend dismissal of this
allegation of the complaint.13
E. The Alleged Discriminations
The complaint alleges that the Company about May 22,
1974, unlawfully laid off Earl Hull and Bruce Rush and that
on May 23 the Company laid off or terminated Earl Hull,
Bruce Rush, Joseph Womble, and-Allen Horton.
Since March 1974 Earl Hull and Bruce Rush alone worked
on the night shift producing feed. On Saturday, May 18, in
the Company of John Teuscher, Don Webel went to the home
of Earl Hull and delivered to him a notice of layoff signed by
John Teuscher, manager. The notice reads as follows: "Earl
Hull [sic] has notified the Company that he will need to be
off several evenings this coming week. With the current drop
in business volume it is, therefore, not possible to operate the
night shift for the coming week. Those employees on the
night shift will be laid off and recalled when business volume
justifies."14 On that Monday Bruce Rush was notified in
person by Don Webel that he too was laid off. Subsequently,
each of the four persons who is alleged to have been dis-
criminatorily laid off or terminated received a letter from
George Webel dated May 23, 1974, which reads as follows:
We regret to inform you that the current unsettled
cattle and hog market makes it impossible to continue at
our present level of operations. Our production is down.
Effective on Monday, the 27th of May,-we are elimi-
nating the night shift operations and at that time we will
lay-off for an indefinite period the four (4) most recently
hired employees who are doing production work only.
There seems little hope that we will be needing your
services, and if you will be able to secure other employ-
ment, we would advise that you consider it seriously.
We regret that this action is necessary.
General Counsel argues that these layoffs were directed
against employees who supported the Union "in order to
discourage employees from engaging in union and/or pro-
tected concerted activities." Respondent contends that its
business is seasonal , that a slack period begins in early sum-
mer, and that the layoffs in this case were economically justi-
fied because of the decline in business. Furthermore, Re-
spondent argues that the layoffs were made strictly in
accordance with seniority, that the four most recently hired
production employees were laid off (two maintenance em-
ployees with less seniority than Hull and Rush were re-
tained), and that the layoffs in May 1974 followed patterns
established in prior years.
It is undisputed that the Company's operations are subject
to seasonal fluctuations. The slowest period is fate spring and
summer . General Manager John Teuscher testified that the
seasonal drop in business in 1974 was greater than in previous
years. Two exhibits were introduced in evidence by Respond-
ent (Exhs. 2 and 3) which purport to substantiate this conclu-
sion. Respondent did not adequately analyze and explain the
figures on these exhibits either at the hearing or in his brief.
I find that the exhibits are not helpful in determining whether
the seasonal drop in business was greater in 1974 than in
previous years.l5
12 There is no basis for finding on the evidence in this record that had the
Company not contracted out the 1-I /2 delivery loads per day after June I
it would have saved a job for one of the employees who had been laid off
in May It would appear from Smith's testimony that the work contracted
out would have had to bedone on an overtime basis, rather than as part of
the Company's regulai daily routine
13 Westinghouse Electric Corp., 153 NLRB 443, 446 (1965); American Oil
Company, 171 NLRB 1180 (1968), Union Carbide Corporation, 178 NLRB
504 (1969)
14 Earl Hull testified, without contradiction, "I had asked Don Webel the
previous week for a night off the following week because my mother was
going to be in the hospital for an operation." Don Webel responded that he
could have the night off.
15 In a pretrial affidavit George Webel averred: "We have not had a layoff
comparable to the present one in- the past In June or July 1973 we did
terminate several people The reason for the four layoffs this year lies in the
fact that we have more employees in the mill."
GEORGE WEBEL & - PIKE TRANSIT COMPANY
As happened in 1974, in 1973, and in earlier years, the
night shift was discontinued in the spring. In 1973 Earl Hull
and Bert Scranton were the employees on the night shift.
When the night shift was discontinued, Hull was transferred
to the day shift as the pellet `mill operator and Scranton quit
the Company's employ.16 In addition, in 1973, Clifford Wai-
man, a day-shift employee, who was on vacation when the
night shift was discontinued, was discharged; Delbert Ruble,
a truckdriver, was laid off for 2 weeks; and Bill Miller was
laid off for 1 week and then quit after his return to work.
As issue in the case concerns the duties and status of Mike
Trout, who was hired on March 17, 1974, and Ed Reinhart,
who was hired on March 25, 1974. According to George
Webel, they were hired to do maintenance work and occa-
sionally to do production work on a fill-in basis. Since they
were hired Reinhart has done only maintenance work and has
not learned to operate any machines. Trout, who is an electri-
cian, in addition to doing electrical work, operates the bagger
when the assigned operator is absent. Trout and Reinhart are
paid on a basis of the tonnage of feed produced in the mill.
The only other employees who are paid on such basis are
John Teuscher, Cecil Smith, Gene Webel, Don Webel, and
Gerald Conkright. All other employees are paid by the hour
or by the week. Trout and Reinhart earn considerably, more
than the other mill employees. According to Bruce Zumwalt,
a member of the Union's negotiating committee, Trout de-
voted about 2 days per week to electrical maintenance work
and the balance to production work while Reinhart, except
that, he "worked in the drive once in awhile," did only main-
tenance work and did not operate any production equipment.
Zumwalt further testified that at the first bargaining session
he complained that maintenance was not being attended to.
In regard thereto at the hearing he was questioned as follows:
Q. Did Mr. Meredith or Mr. Teuscher then make any
response to that when you made those comments about
safety and about maintenance?
A. Yes.
Q. What did they tell you?
A. They told me that this stuff was being corrected
since Ed Reinhart and Mike Trout had been hired.
Q. Did they say that that's what they were hired for,
to take care of this maintenance-and these safety prob-
lems? -
A. They said that Mr. Trout was hired as electrician,
and Reinhart was hired as maintenance.
Q. I see. Well, did they say that that's what they were
hired for, to take care of this unsatisfactory maintenance
situation?
A. Yes, I think they did.
Q. Did they say anything about Reinhart and Trout
correcting some of these unsafe conditions at the plant?
A. Yes.
Q. Did you disagree with that when they made those
comments?
A. No, I didn't, but I thought that there should be
more done than what had already been done.
16 Hull testified that Scraton quit because he found another job On
cross-examination Hull modified this testimony by explaining that Scranton
"was gone for a short time and then came back, and then he left again "
823
Q. Did you feel that they should have hired another
maintenance man?
A. No.
Q. You thought Reinhart and Trout were sufficient to
take care of it?
A. Yes.-
Q. Well, sitting here now, Bruce , would you say that
you are satisfied that these two fellows were hired as
maintenance men?
A. Just Reinhart.
Q. Why would you exclude Trout?
A. He was hired as an electrician is what I was told.
Q. Oh, I see. Trout as an electircian and Reinhart as
maintenance man?
A. Yes.
I find, contrary to General Counsel, that Trout and Reinhart
are qualified maintenance workers, and that, when they were
hired by Respondent, the Company had considerable main-
tenance and repair work to do and further that General Coun-
sel has not established that any of the four alleged dis-
criminatees had similar qualifications or could have
discharged the duties performed by Trout and Reinhart.
The record in this case is inadequate for me to determine
whether in 1974 the summer business slump was greater than
in 1973 or whether in, 1974 there was more employees on the
payroll so that even if business fell only to the same extent as
in, 1973 the Company had valid justification for laying off a
greater number of employees than in 1973 . It is noted, how-
ever, that in the summer of 1973 the night shift was discon-
tinued, two employees were terminated, two other employees
were laid off for short periods of time, and one of them later
quit. Thus, it would appear that there were legitimate eco-
nomic reasons for laying off some employees in 1974.
In his brief, General Counsel argues:
The motivations behind Webel's manpower manipula-
tions in the Spring of 1974 were not those of strictly
economic dollars and cents factors, but rather of anti-
union considerations, underscored by the fact that he
hired new employees like Trout, and Reinhart, and then
Womble, and Horton as seasonal slack season was rap-
idly approaching-counting on all four of these to be
strikebreakers. Respondent was training his salesmen
and supervisors how to run the trucks so he could sur-
vive a strike involving his truckdriver employees.17
While it is appropriate for General Counsel to speculate as to
the motivation for Respondent's conduct, the evidence in the
record is insufficient to support a finding that the four men
were hired as strikebreakers. In particular, it is undisputed
that when these employees were hired there was substantial
maintenance work to be performed in the plant and Trout
and Reinhart were specially qualified to perform such
work.18 General Counsel also contends that other employees
in the plant were qualified to do maintenance and repair work
17 A few days after the election some effort was made to teach salesmen
and supervisors to drive trucks The record is silent as to the extent of this
endeavor and whether it went beyond a single day
is Prior to the employment of Trout and Reinhart Respondent had used
contractors to do its repair and maintenance work and both Trout and
Reinhart previously had worked for such contractors in Respondent's plant
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and therefore there was no reason for Respondent to retain
Trout and Reinhart in preference to more senior employees
when layoffs became necessary . There are several defects to
this argument. The record indicates that only Don Hull, and
Gene Webel had done plant repair and maintenance work in
the past. However, since Respondent acquired its truck fleet,
Don Hull has been devoting full time to vehicle repairs. Gene
Webel who had been mill superintendent was reassigned to
operate the pellet mill and there is no indication as to the
extent to which Gene Webel performed repair and mainte-
nance work in the past. In addition , the record is silent as to
whether Don Hull and Gene Webel possess the same range
of skills as Trout and Reinhart.
I. Horton and Womble
Allen Horton was hired on April 8, 1974. At his employ-
ment interview he informed George Webel that he was quali-
fied to drive trucks. For the "first couple of weeks" after his
hire he drove a truck most of his working time. Later he was
shown how to do other tasks about the mill and progressively
did less driving so that during the last 2 weeks before his
layoff he did almost no driving.
During his employment interview George Webel men-
tioned that there was a union campaign in progress and in-
quired whether Horton was afraid. Horton assured Webel
that he was not afraid and informed Webel that he had never
had dealings with a union.19 About a week before the elec-
tion, George Webel spoke with Horton about the possibility
of a strike and promised Horton that should there be a strike
he would "take care of" Horton and suggested that Horton
then would be in a position to earn about $10,000 a year. On
several other occasions before the election George Webel
asked Horton whether he was "going to be with us" in the
event of a strike to which Horton's replies were, "I really
don't know."20 Horton also attended the dinner meeting,
discussed above, the night after the election.
Horton testified that when he received his notice of layoff
he asked Don Webel why he was being laid off and Webel
replied, "Well, I really can't tell you that, I'd be sticking my
neck out if I did."
Horton 's union activities were minimal . Before the election
he attended one or two union meetings and after the election
he attended five or six union meetings.
Joseph Womble was hired on May 8, 1974. Womble testi-
fied that during his employment interview George Webel
inquired if he would come to work in the event of a strike and
he replied in the affirmative. Webel assured him that he
would not have anything to worry about because Webel had
talked to the local and state police. During the interview
Womble inquired what the opportunities for advancement
would be and Webel responded that probably some people
would leave because of the union situation which should
create job openings. Womble further testified that during the
interview George Webel said that the Union-had been voted
in, and "We are going to fight it." George Webel also sug-
i9 Horton also testified that during the employment interview Webel said,
"Well, you know what I feel about the union."
20I credit Horton despite George Webel's testimony that he did not recall
any conversation where he asked Horton whether he would work during a
strike
gested to Womble that he would be better off "not to associ-
ate with some of the union members that had voted in the
union." Womble attended one or two union meetings before
his layoff and engaged in no other union activity.
About a week after the election, Don Webel asked Gerald
Cawthon whether Horton and Womble were going to union
meetings and Cawthon responded that they were.
Respondent's defense as to Horton and Womble simply is
that with the onset of the summer business slump these two
employees, who were the last hired, were selected for layoff.
Various factors suggest that their layoffs may have been dis-
criminatorily motivated, such as, the suggestions by George
Webel that he expected them to work in the event of a strike
(although they were laid off before the strike occured), We-
bel's possible disappointment when he learned , in conse-
quence of Don Webel's interrogation of Cawthon, that they
had attended union meetings , and the indications he gave the
two men when they were interviewed for employment that
their positions were not temporary. However, these factors do
nothing more than develop a suspicion that the layoffs may
have been unlawful. Of overriding consideration is that Gen-
eral Counsel has not overcome the evidence adduced by Re-
spondent that in the summer of 1974, as in prior years, busi-
ness volume declined and in response to such economic
pressure, also as in prior years, he effected a layoff and Hor-
ton and Womble who had the least seniority were laid off. It
is noted also that their union activities were minimal . I shall
recommend that the allegations that Horton and Womble
were discriminatorily discharged be dismissed.21
2. Earl Hull and Donald Bruce Rush
Earl Hull was hired by the Company on June 1, 1971, as
a pellet mill operator . He initiated the organizational cam-
paign at the Company's mill, he testified for the Union in the
representation proceeding, he acted as the union observer at
the April 30, 1974, election, and he was a member of the
Union's negotiating committee.
In the spring of 1973 Hull was working on the night shift.
When the night shift was discontinued that year Hull was
transferred to operate the pellet mill on the day shift. That
position had become vacant because Clifford Waiman, the
day-shift pellet mill operator, was terminated. About March
25, 1974, Earl Hull was again assigned to the night shift, this
time as the mixer operator. Hull testified that Joe Weber who
21 In his brief General Counsel argues: "In fact , Webel never explained
why he hired Womble in the first place, at a time when he knew his spring
slack season was soon coming up. . None of the Webels ever offered any
reason at all why Respondent would have gone to the trouble of hiring
Womble, as its slack season approached, if he was going to lay him off in
gust a couple of weeks ." In advancing this argument General Counsel over-
looks the following testimony of George Webel given on both his direct and
cross-examination On direct examination, George Webel testified with re-
spect to the employment of Horton and Womble, "We had a lot of cleaning
on the roof that we had let go from last fall and a lot of work around the
mill needed cleaning , which we do every spring." On cross-examination, in
response to a question concerning the kind of job for which Womble was
hired, George Webel testified: "Just mostly clean-up work and odd jobs.
There wasn't any definite time . I said we'll have to see how things work out,
how long a job he'd have or if we'd have work. It is seasonal At that time,
why, he told me that he didn't have a job and I thought, well, he could come
and help us out a few days or see how it goes, if we needed somebody we'd
go ahead."
GEORGE WEBEL & PIKE TRANSIT COMPANY
had been the mixer operator on the night shift suffered an
accident and was laid off and Gene Webel explained to him
that he was transferred to the night shift because he was "the
youngest qualified man for the job."
Respondent's explanation for selecting Hull for layoff is
fraught with suspicious inconsistencies and anomalies. On
May 18, he was notified that the night shift was being discon-
tinued because purportedly he had notified the Company that
he would be off several evenings that week. However, in fact,
Hull had obtained permission to take only one night off.
At the May 20 bargaining session when Meredith was
pressed to explain why the night shift had been laid off, he
gave the following reasons: (1) an employee had requested
time off; (2) there was going to be a shutdown for some
repairs; and (3) as a result the Company felt that it could
dispense with the night shift.
In contrast, George Webel testified that the reasons for
Hull's layoff (and also for the layoff of Donald Bruce Rush
who worked on the night shift with Hull) were: (1) the night
shift was 25 percent less productive than the day shift; (2) he
did not know whether it was the fault of the' pellet mill
operator, Rush, or the mixer operator, Hull, "but it got to be
about every morning there for awhile" that the night-shift
employees left the dies plugged so that the day-shift em-
ployees then had to spend 3 to 4 hours cleaning the dies; (3)
business volume was the lowest in several years; and (4) Hull
and Rush had the least seniority. With regard to the night
shift's alleged poor production, George Webel testified that
the matter had been called to his attention and he had in-
structed Gene Webel to speak to Hull about the subject.
Plant Manager John Teuscher testified that he had recom
mended to George Webel that the night shift should be dis-
continued. He was prompted to do so because (1) its produc-
tivity was low and (2) as a result of economic uncertainties
and reduced business volume the Company's needs could be
produced on one shift. Teuscher was uncertain as to whether
he spoke to Earl Hull about his low productivity on the night
shift. Teuscher's further testimony shows that: (1) as early as
late March he was aware of the low productivity of the night
shift; (2) his investigation indicated that it was due to plugged
or choked dies in the pellet mill machine, which probably was
caused by improper regulation of a steam valve by the opera-
tor, Donald Bruce Rush; (3) he had instructed Mill Superin-
tendent Gene Webel "to bring production up" and he himself
had instructed Rush regarding the regulation of the steam
valve; and (4) he had observed no deficiency in Hull's work.
Upon further examination by Respondent's counsel and in
partial contradiction of his earlier testimony, Teuscher testi-
fied that he had come to the conclusion that production on
the night shift was bad because the employees either were
loafing or lacked skill in operating the machines.
Donald Bruce Rush was hired by the Company in August
1973. He was transferred to the night shift in October 1973
and worked on the night shift continuously until he was laid
off. Rush signed a union authorization card at the request of
Earl Hull and attended most of the union meetings. However,
he 1 estified that he had no reason to believe that the Company
considered that he was more active in the Union than anyone
else. He further testified that in January 1974 Gene Webel
spoke to him about his poor production in connection with
the operation of the pellet mill machine.
825
I find, as in the cases of Horton and Womble, that there
are factors which suggest that the Union's successful organi-
zational campaign in the face of the Company's opposition
might have had some influence upon the decision to lay off
Donald Bruce Rush. However, as Rush had been working for
the Company for less than a year when he was laid off, as he
was not active in the Union's campaign or affairs, and as the
night shift on which Rush had been working for most of the
time that he was employed by the Company was discontinued
for legitimate economic reasons, I fmd that General Counsel
has not sustained the burden of proving that unlawful union
considerations motivated or influenced Rush's layoff.
I reach a different conclusion in the case of Earl Hull. Hull,
at the time of his layoff in May 1974, had been employed by
the Company continuously for more than 3 years. His work
was satisfactory and in previous years he had not been laid
off even though in 1973 he had been working on the night
shift when that shift was discontinued. Also, of significance
in assessing Respondent's motivations are the variety of rea-
sons, some of which were demonstrated at the hearing to have
been baseless, given for Hull's layoff. In the first instance Hull
had been notified that he was being laid off because of his
personal need to be absent from work for several evenings
during the week that the layoff became effective. The evi-
dence is that Hull had previously arranged with Don Webel
to take only one night off in order to be with his mother who
was going to the hospital for an operation. Second, at the May
20 bargaining meeting, Meredith advised the union represen-
tatives that the night shift was discontinued because, among
other reasons, it had to be shut down for repairs. Neither
George Webel nor John Teuscher testified that such reason
in any manner contributed to the decision to discontinue the
night shift. Third, both George Webel and John Teuscher
testified that they considered that the night shift was highly
unproductive and that Hull bore some responsibility. How-
ever, Teuscher also testified that Hull's work was satisfactory
and the fault, if any, was in the manner Rush regulated a
steam valve.
Respondent did not explain why it could not find a position
for Earl Hull on the day shift in 1974 as it had done in 1973.
It is noted that, on the day before Earl Hull was laid off, Gene
Webel was newly assigned to operate the pellet mill on the
day shift, the very position Earl Hull held before his transfer
to the night shift in March 1974. The circumstances, particu-
larly, Respondent's strong opposition to the organization of
his employees, Respondent's knowledge of Hull's union lead-
ership, the inconsistent reasons advanced for selecting Hull
for layoff, and the fact that Hull had not been laid off during
the summer slumps in the years 1971, 1972, and 1973, lead
me to conclude that but for his union activities Earl Hull
would not have been laid off in May 1974.22 Accordingly, I
fmd that Respondent discriminated against Earl Hull by lay-
ing him off on May 18, 1974, in order to discourage member-
22 While it is undisputed that in the late spring and summer there is a
seasonal decline in the Company's business and that in 1973 there were
some layoffs, Respondent offered no correlation between the decline in its
business in 1974 and the number of employees it reasonably should have laid
off in order to adjust its labor requirements to its lower business volume. The
fact that Hull was working on the night shift when it was discontinued in
1974 does not necessarily justify his termination because in similar circum-
stances he was not terminated the previous year
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in the Union and thereby violated Section 8(a((3) of the
Act, and that by such conduct Respondent also interfered
with, restrained, and coerced its employees in the exercise of
their organizational rights guaranteed in Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act.
3. Sale of a truck
The complaint alleges a violation of Section 8(a)(3) based
on the following: "Since on or about June 3, 1974, the Re-
spondent sold one of its trucks which resulted in the loss of
unit work." This allegation is not sustained because at the
time of the sale the Company owned and operated eight large
trucks plus two small trucks and employed only five full-time
truckdrivers. Thus, after the sale, the number of trucks the
Company owned was four more than the number of full-time
drivers it employed. The evidence, discussed above, shows
that after June 1, 1974, the Company began using Art
Crowder to make certain deliveries which amounted to ap-
proximately 1-1/2 loads per day and if those deliveries had
been made by Respondent's employees it would have in-
volved approximately 4 to 6 hours additional work per day.
However, the use of a carrier to perform some delivery work
previously performed by company employees was not the
result of the sale of the truck, as alleged in the
complaint.23 Furthermore, even if Art Crowder would have
been unable to make customer deliveries for Respondent ab-
sent the purchase of the truck from Respondent on June 1,
1974, General Counsel has not proved that the sale of the
truck to Art Crowder was done in order to encourage or
discourage membership in any labor organization or that it
resulted in discrimination against employees in regard to hire,
tenure of employment, or any term or condition of employ-
ment. Accordingly, I shall recommend the dismissal of this
allegation of the complaint.
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV, above,
occuring in connection with his operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship 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.
VI THE REMEDY
Having found that Respondent has engaged in unfair labor
practices,, I shall recommend that he cease and desist there-
from and that he take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully laid off its em-
ployee, Earl Hull, on May 18, 1974, I shall recommend that
Respondent offer him immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any loss
of earnings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money equal
to that which he normally would have earned from the afore-
said date of his layoff to the date of Respondent's offer of
reinstatement, less his net earnings during such-period. The
backpay provided for herein shall be computed on the basis
of calendar quarters, in accordance with the method pre-
scribed in F W. Woolworth Company, 90 NLRB 289 (1950).
Interest at the rate of 6 percent per annum shall be added to
such net backpay and shall be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
I have found that Respondent has failed to bargain collec-
tively in good faith with the Union as the representative, duly
certified by the Board, of an appropriate collective-bargaining
unit of his employees. To insure that the employees in the
appropriate collective-bargaining unit will have the oppor-
tunity to enjoy the full benefits that may be derived from their
selection of a bargaining agent as contemplated by the Act,
I recommend that the initial year of certification be deemed
to begin on the date that the Company commences to bargain
in good faith with the Union as the recognized bargaining
representative of the employees in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962);
Commerce Company d/b/a Lamar Hotel, 140 NLRB 226,
229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied
379 U.S. 817 (1964).
Respondent's unlawful layoff of Earl Hull and Respon-
dent's other unfair labor practices go to the very heart of the
Act and reflect a failure and refusal fully to accept the proce-
dures of collective bargaining contemplated by the Act and
a purpose to defeat self-organization of employees. The unfair
labor practices committed by Respondent are potentially
related to other unfair labor practices proscribed by the Act,
and the danger of their commission in the future is to be
anticipated from Respondent's conduct in the past. The pre-
ventive purposes of the Act will be thwarted unless the
recommended Order herein is coextensive with the threat.
Accordingly, in order to make effective the interdependent
guarantees of Section 7 and thus effectuate the policies of the
Act, an order requiring Respondent to cease and desist from
any manner infringing upon the rights of employees guaran-
teed in the Act is deemed necessary. N.L.R.B. v. Express
Publishing Company, 312 U.S. 426 (1941); N.L.R.B. v. Ent-
wistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
23 There is testimony in the record to the effect that after June 1, 1974,
when Art Crowder began to make customer deliveries for Respondent he
used the truck that he had purchased from Respondent This fact, however,
is insufficient to prove that but for the sale of the truck the Respondent
would not have used a carrier to make these same deliveries. First, there is
no evidence that Crowder did not own, or could not have acquired, a
suitable vehicle to make the deliveries for Respondent even had he not
purchased the truck from Respondent on June 1, and, second, it was not
shown that there was no other carrier available to make such deliveries.
1. By changing the method of paying its truckdrivers and
by changing other conditions of employment of its truckdriv-
ers after April 30, 1974, when a majority of the employees in
the appropriate unit described below at a Board-conducted
election designated the Union as their collective bargaining
representative, without affording the Union the opportunity
to bargain about such matters, the Company has engaged in,
GEORGE WEBEL & PIKE TRANSIT COMPANY
and is engaging in, unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
2. By discriminatorily laying off Earl Hull on May 18,
1974, thereby discouraging membership in the Union, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
3. By reason of the foregoing conduct and by reason of
Respondent's threats to discharge employees who engage in
lawful strikes; Respondent's promises of benefits to an em-
ployee to induce the employee not to participate in any possi-
ble strike; Respondent's threats to close the plant should the
Union win a pending Board-conducted election; Respon-
dent's advice to an employee not to associate with other
employees who favored the Union; and Respondent's coer-
cive questioning of an employee about whether other em-
ployees had attended union meetings, Respondent has inter-
fered with, restrained, and coerced employees in the exercise
of the rights guaranteed them in Section 7 of the Act and
thereby has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(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.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in these proceedings and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER24
Respondent, George Webel, d/b/a Webel Feed Mills &
Pike Transit Company, Pittsville, Illinois, his agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Making or effecting any change in the wages, hours, or
other terms or conditions of employment of employees in the
collective-bargaining unit described below without first giv-
ing notice to their collective-bargaining representative and
affording such representative an opporl unity to engage in
collective bargaining with respect to any such proposed
change. The appropriate collective-bargaining unit is:
All full-time and regular part-time production and main-
tenance employees and truckdrivers employed at the
Employer's Rural Route 3, Pittsfield, Illinois, facility,
excluding all office clerical employees, salesmen, profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Laying off or otherwise discriminating against em-
ployees in regard to their hire, tenure of employment, or other
term or condition of their employment in order to discourage
membership and Local 217, American Federation of Grain
Millers, AFL-CIO, or any other labor organization.
(c) Threatening to discharge employees who engage in law-
ful strikes;
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
827
(d) Promising benefits to employees to induce employees to
refrain from participating in any strike.
(e) Threatening to close his plant in order to discourage,
employees from supporting Local 217, American Federation
of Grain Millers, AFL-CIO, or any other labor organization
in a pending Board-conducted election or otherwise.
(f) Advising employees not to associate with other em-
ployees who favor Local 217, American Federation of Grain
Millers, AFL-CIO, or any other labor organization.
(g) Unlawfully interrogating employees as to whether other
employees have attended union meetings or regarding em-
ployees' union sympathies, activities, or membership.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment with Local 217, American Federation of
Grain Millers, AFL-CIO, as the exclusive representative of
all the employees in the collective-bargaining unit described
above and, if an agreement is reached, execute a written
contract incorporating the terms of the agreement. The cer-
tification year shall extend 1 year from the date such new
bargaining negotiations begin.
(b) Offer to Earl Hull immediate and full reinstatement to
his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any loss
of earnings he may have suffered by reason of Respondent's
unlawful discrimination against him 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, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at his place of business in Pittsfield, Illinois, copies
of the attached notice marked "Appendix. 1121 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 14, after being duly signed by the Respondent, shall be
posted by him immediately upon receipt thereof, and be
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the complaint
of violations of Section 8(a)(1), (3), and (5) be dismissed
except insofar as specific findings of violations of those sec-
tions have been made above.
25 In the event that the Board's Order in enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgement of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively concern-
ing rates of pay, wages, hours of employment, and other
terms of conditions of employment with Local 217,
American Federation of Grain Millers, AFL-CIO, as
the exclusive representative of all the employees in the
appropriate unit described below and, if an agreement is
reached, we will execute a written contract incorpora-
ting the, terms of the agreement. The Union's certifica-
tion year shall extend 1 year from the date such new
bargaining negotiations begin. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees and truckdrivers employed at
the Employer's Rural Route 3, Pittsfield, Illinois,
facility, excluding all office clerical employees, sales-
men, professional employees, guards, and supervisors
as defined in the Act.
WE WILL NOT make or effect any changes in the wages,
hours, or other terms or conditions of employment of the
employees in aforesaid collective -bargaining unit with-
out first giving - notice to their collective -bargaining rep-
resentative and affording such representative an oppor-
tunity to engage in collective bargaining with respect to
any such proposed change.
WE WILL NOT layoff, or otherwise discriminate against
any employees in regard to their hire, tenure of employ-
ment, or any term or condition of their employment, in
order to discourage membership in Local 217, American
Federation of Grain Millers, AFL-CIO, or any other
labor organization.
WE WILL NOT threaten to discharge employees who en-
gage in lawful strikes.
WE WILL NOT promise benefits to employees to induce
them to refrain from participating in any strike.
WE WILL NOT threaten to close our plant to discourage
employees from supporting Local 217, American Feder-
ation of Grain Millers, AFL-CIO, or any other labor
organization, in a pending Board -conducted election or
otherwise.
WE WILL NOT advise employees to refrain from as-
sociating with other employees who favor or support
Local 217, American Federation of Grain Millers,
AFL-CIO, or any other labor organization. ^^i
WE WILL NOT coercively question employees CgAI~em-
ing attendance of other employees at union meetings or
regarding employees ' union sympathies , activities, or
membership.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the right to
self-organization , to form, join , or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing , and to engage in any other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any
or all such activities.
WE WILL offer Earl Hull immediate and full reinstate-
ment to his former job or, if such job no longer exists,
to a substantially equivalent position , without prejudice
to his seniority and other rights and privileges, and WE
WILL make him whole for any loss of earnings he may
have suffered by reason of our unlawful discrimination
against him.
GEORGE WEBEL, d/b/a WEBEL FEED
MILLS & PIKE TRANSIT COMPANY