Cape County Milling Co.

in'the Matter of CAPE COUNTY MILLING COMPANY, A CORPORATION and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ' CIIAUFFEURS, WARE- HOUSEMEN , AND HELPERS OF AIIERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C44 10-ecided April 29,19 .-3 DECISION AND- ORDER On November 9, 1942, the Trial Examiners issued his Intermediate Report 'in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor_pi actices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report annexed hereto. Exceptions to the Intermediate Report were there- after filed by the respondent. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudi- cial error was committed. The rulings arc hereby affirmed: The Board has considered the Intermediate Report, the respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Ex- aminer, with the following additions : The Trial Examiner has found, inter alia, that the respondent dis- continued operation of its trucks on February 13, 1942, for the purpose of discouraging membership in the Union and dissipating the Union's majority, and in order to avoid its obligation to bargain collectively within the meaning of the Act. The Trial Examiner has further found that'the shut-down of the respondent's trucking operations'on Febru- ary 13, 1942, was in fact a temporary expedient designed to accomplish these unlawful purposes, and that the respondent thereby locked out and discriminatorily discharged nine of its employees. ' On these find- ings, the Trial Examiner recommended that the respondent be ordered to offer immediate and full reinstatement to the nine truck drivers thus discriminatorily locked out, without prejudice to their seniority and other rights and privileges. These findings and recommendations -''Of the Trial Examiner, which we affirm' and adopt, do not involve the 49 N L. R 13., No 30. 226 A CAPE COUNTY MILLING CO MPANT 227 question of the propriety of ordering resumption of business opera- tions permanently abandoned. We find, as did the Trial Examiner, that there was no such abandonment here and that, the respondent has employed a mere temporary stratagem in order to rid itself of the Union, retaining full ownership and control over its trucks, some of which have been ostensibly sold under colorable contract. Conse- quently, our order hereinafter set forth, requiring immediate reinstate- ment of the truck drivers discriminatorily locked out. by the respond- ent, is appropriate and need not be qualified because of the respondent's temporary and partial cessation of trucking operations.' ORDER Upon the basis of the above findings of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Cape County Milling Company, Jackson, Missouri, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Amer- ica, affiliated with the American Federation of Labor, as the exclusive representative of elf of the employees regularly engaged by the re- spondent at its Jackson, Missouri, mills in driving trucks, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warelousemen, and Helpers of America, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by laying off, locking out, discharging, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any terns or condition of their employment; (c) 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 organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Amer- ' See Matter of Newton Chevrolet, Inc., and International Association of 1fach,nists, Autoinothve Afachi,mts Lodge No 1001, 37 N 1, It, B 334. 850 531647-4 ,-vol 49--1ll 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ica, affiliated ivith'the American Federation'of Labor as the excluSive- representative of all of the employees regularly engaged by the respond- ent at its Jackson,, Missouri, mills in driving trucks, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Offer to • Willis Wolfenkoehler, Les Ackrnan, Joe McIntyre, Joe Brown, Sherwood Wolfenkoehler, Dewey Wolf enkoehler, Herbert Morton, Clarence Tripp, and Arthur Kilhoefner, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice'to their seniority and other rights and privileges; (c) Make whole Willis Wolfenkoehler, Les Ackrnan, Joe McIntyre, Joe Brown, Sherwood Wolfenkoehler, Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp, and Arthur Kilhoefner, for any loss of pay they have suffered by reason of their discriminatory lock-out and dis- charge, by payment to each of them of a sum-of money equal to the amount which lie normally would have earned as wages during the period from the date of his lock-out and discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period ; (d) Make whole Sherwood Wolfenkoehler, Robert Harris, and Herbert Morton, for any loss of pay they suffered by reason of their discriminatory lay-off from September 6 to September 17, 1941, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period of his lay- off, less his net earnings during said period; (e) Post immediately in conspicuous places throughout its Jackson, Missouri, Mills A and B, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's employees are free to become and remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; ' . (f) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is dismissed, insofar as it alleges that the respondent has engaged in and CAPE C-OUNTY MILLING GOIMPANY 229 is engaging in unfair labor practices within ,the meaning of Section 8 (3) of the Act with respect to James Bowman. INTERMEDIATE REPORT All- Charles K had, lei , for the Board. Air Wallace Coopea, of St- Louis. Alo, and All Albei t ill. 'Spiadltng , of Cape Giiardean , Mo, fot the respondent. STATEMENT OF' THE CASE Upon an amended charge duly filed on July 7, 1942, by International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the'American Federation of Labor, herein called•.the Union, -the National, Labor 'Relations' Board, -herein called the Board, by the Reg'ional' Director for the Fourteenth Region (St Lotus. Missouri), issued its complaint, dated August 28, 1942, against the Cape County Milling Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act. 49 Stat. 449, herein called the Act. Co{aies of the complaint, together with notice of hearing thereon. were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged: (1) that the respondent laid off three of its truck drivers' on about September 6, 1941, and refused to reinstate them until about September 17, 1941, because they joined and assisted the Union; (2) that since about September 16, 1941, the respondent has refused to bargain collectively with the Union,'which at all times since September 2, 1941, has been the duly' designated representative "of a majority of the iespondent's employees in an appropriate unit composed of all of its truck drivers; (3) that in order to discourage membership in the Union, dissipate its majority, and avoid collective bargaining, the respondent, about February 13. 1942, discontinued and has :since refused to resume the operation of its trucks, thereby locking out and discharging its 10 truck drivers; (4) that from about September 2, 1941, the respondent. among other things, warned its em- ployees against and questioned them concerning membership in and activities on behalf of the Union : advised union members to abandon collective bargaining and revert to individual bargaining; and threatened to discontinue its trucking operations if employees continued their union membership and collective bar- gaining demands; and (5) that by such acts and conduct and in other ways the respondent interfered with, restrained, and coerced its employees in the ex- ercise of the rights guar anteed in Section 7 of the Act In its answer filed September 10, 1942. the first day of the hearing herein, the respondent admitted that the three-named track drivers had been laid off-during the period alleged; that its trucking operations had been discontinued on Febru- ary 13. 1942; and that during September 1941 the Union had requested the re- spondent to bargain collectively with it as the representative of the employees in the unit alleged to be appropriate in the complaint, but denied, that it had engaged in any unfair labor practices. ' Sherwood Wolfenkoehler , Robert Ilariis , and IIeibet t Morton - Willis Wolfenkoehler . Les Ackman , Joe Mclnt',ie, Joe Brown , Sherwood Wolfenkoehler, Dewey Wolfenkoehler„ Herbert Morton , Clarence Tripp , Arthur Kilhoefner, and James Brown The foregoing names are spelled as corrected at the healing 1 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice. a hearing was held at.lackson, Missouri. ftoni September 10 to September 16. 1942, before the uudei signed, Earl S. Belhnan, the Trial Exam- iner duly designated by the Acting Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard to examine and cross-examine witnesses and to intro- duce evidence bearing upon the issues was afforded all parties. At the opening of the hearing, upon motion by counsel for the respondent, certain particulars were furnished by counsel for the Board. The complaint fund the answer were amended without objection to correct the spelling of certain names. At the close of the Board's case, the respondent moved to dismiss the complaint in its entirety. The motion was denied. The respondent then moved severally to dismiss certain ,allegations of the complaint. Those` motions were denied At the close of the hearing, the respondent renewed its motions to disiinss and ruling wag reserved thereon. Those motions, except as otherwise appears herein, inc•hereby denied. A motion was granted, without objection, to conform the pleadings to the proot as to formal matters. The parties were afforded. but waived, opportunity to argue orally before the undersigned The i espondent ,has filed a brief with the undersigned I ' Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : } INDINO'S OF FACT I THE BUSINESS OF THE RESPONDEN'r The respondent, Cape County Milling Company, is a Missouri corporation, organized in 1895. At its mill in Jackson, Missouri,' the respondent is engaged in milling, processing, selling,, and distributing flour and feed. In the course of its milling operations, the respondent secuies large quantities of materials such as wheat, corn and other grain by purchase and transportation in interstate -commerce from States outside the State of Missouri During the 12 months ending August 28, 1942, the value of the respondent's finished products was ap- proximately $250.000. About 65 percent was shipped to points outside of the State of Missouri, principally to States in the South and Southeast. The respond- ent admits that it is engaged in interstate commerce. 11. THE ORGANI'ZA'TION INVOI.Vi.p International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the respondent regularly engaged in driving trucks III THE UNFAIR IAWR PRACTICES A Chronological statement of the facts 1. The advent of the Union One Sunday during the latter parr of May 1941, a former employee of the respondent went to Richard Earl Bowman, assistant treasurer and one of the 3 The respondent's Jackson property consists of 2 mills , A and B. Mill A is ,the prin- cipal place of business Mill B, less than a mile away, is used mainly for storage. The respondent also has a grain storage depot at Burfordvilie, Missouri , some 8 miles from Jackson Unless otherwse stated, the term mill as used herein refers to Mill A. in Jackson. 0 A CAPE COUNTY MILLING COIMvMPANiY 231 directors of the respondent' and warned him that the respondent's employees were not going to permit the hill to operate the next day. Bowman said that the information was "news" to him.' The next day, about 6 o'clock in the morn- ing at the time the first shift was due to start operating the will, Bowman went to the mill and found the null employees, including those who did not work on the morning shift, together in the waiting room. The will was not operating After ascertaining from the men as a group that they did not intend to go to work, Bow- man talked with the men individually until lie had secured a crew of 8 needed to start the hill. After the mill started, the employees who had not been willing to go to work seated themselves on the railroad track next to the null. About 8 o'clock that morning, when Sherwood Wolfenkoehler, one of the truck drivers,' i eported for work he saw the men sitting on the tracks and started to go over to them Bowman, who had immediate supervision of the respondent's trucking operations, told Wolfenkoehler not to go over to the men as they would get him in trouble Sometime thereafter, the respondent discharged several of'those who had been leaders in the walkout Also about June 7, 1941, effective as of June 1, the respondent increased the pay of its mill workers, packers, and intra-state truck drivers from 30 cents per hour to 35 cents per hour. The inter-state drivers continued to receive 30 cents an hour' Shortly, after the above increase to all of the respondent's other employees, seven inter-state truck drivers' met under a shed in front of the mill office. Sherwood \Volfenkoehler went into the office and asked Bowman to come out to discuss the situation with the drivers. This Bowman did. The drivers complained that they were getting only 30 cents an hour while the intra-state drivers and 111111 employees had been raised to 35 cents Robert Harris said that they wanted more money. It was also pointed out that the drivers had to pay money out of their own pockets for living expenses while on the road since the allowance given was too small. Bowman expressed sympathy for the men's position, but stated that he had talked to the directors and had been unable to secure an increase for them. ' Sometime in June, a few days after the foregoing meeting, several of the respondent's truck drivers went in Sherwood Wolfenkochler's car to a meeting of the Union in Cape Girardeau, Missouri, a city about 10 miles from Jackson. On that occasion at least two of the respondent's employees, Wolfenkoehler and Harris, signed applications for membership in the Union. The attempt to form it local in Cape Girardeau failed, initiation fees were refunded, and no charter was issued Sometime thereafter, about the last of August, Cletes Dodge, a busi- ness representative of the Union, saw Harris and Wolfenkoehler in Jackson and, finding that the respondent's truck drivers were still interested in membership in the'Union, left application blanks. ' There are two, other members of Bowman's family involved in this case, his father, J. R. Bowman, and his son, James. J. R Bowman is the respondent's treasurer and one of its six dnectors James Bowman drove one of the trucks Wherever the name Bowman is used Lerem without first name or initials it designates Richard Earl Bowman. 'There is no evidence that at that time any union Ras attempting to oiganire in Jackson, a city of 4,100 population ° The truck di ivei s had not participated in the walkout On the a%ei age, S or 9 of the respondent's approximately 10 or 12 truck di fivers served ]ai_ely as inter-state drivers, driving for the most part large trailer trucks, 'They were Sherwood Wolfenkoehler, Willis Wolfe nkoehler, Dewey R'olfenkoehler, Her- bert Morton, Robei t alai ris, Marvin Goelunan, and Lawrence Call The foregoing three Wolfenkoehiers are brothers and are sometimes hereinafter referred to as the three Wolf- enhoehlers When only the name Wolfenl,oehler is used, it designates Sherwood Wolf- enkoehler. I 232 DEiCISIONS OF NATIONAL LABOR RELATION S BOARD On September 2, 1941;° Dodge met several-of the ' respondent's truck drivers at a filling station in Jackson At that time Dodge received applications for membership in the Union from the three Wolfenkoehlers , Morton , Harris, Call, and Milford Crader.lo Later that day, Wolfenkoehler , Morton and Dodge met Goehman down town in Jackson and secured his application. 2 The events surrounding the lay offs Sometime between September 2 and September 6, Bowman and Call had a discussion concerning the desirability of unions. The discussion took place in the mill office and T. A. Cosgrove, the respondent's secretary and accountant, who is also one of the respondent's directors, was present During 'this discus- sion Bowman told Call that while a union might work satisfactorily in a big city, a union was not any good in a small place like Jackson which would not stand for a union. Bowman illustrated his point by stating that Call had three children working in the shoe factory in Jackson, and that if it union attempted to-organize it,, that factory would be moved or closed." After Harris had,signed his union application on September 2 but before he was laid off on September 6, Bowman saw him in the mill garage and asked him if there was going to be a meeting at his home. Harris replied that lie supposed that there was.'2 Bowman then told Harris that he could save himself a lot of trouble if he would take Wolfenkoehler and Morton and go to the office and ask for a 5 cent an hour increase which he wiis sure would be granted. While Harris told Wolfenkoehler'of his conversation with Bowman, they did not go to the office to ask for a raise and the meeting was held at Harris' home on September 7. Shortly before the meeting, Bowman met Willis Wolfenkoehler it by one of the trucks and asked him if he was going to the meeting at Harris'. Upon receiving no reply, Bowman said, "Take a fool's advice and stay at honfe." is I O The undersigned is convinced that the eight applications wei e seemed on September 2 Except for the testimony of Dodge, the testimony is consistent that applications were signed at a.filling-station -before the lav offs of September 6, and that the fist union meeting at Harris' home did not occur until after those layoffs Only one meeting was held at Harris' home and it was held on September 7. Dodge testified that he secured the applications at the meeting at Harris' home. The' dates on six of the applications were filled in by Dodge. However, two of the applications, those of Call and Goehman, bear the dates "Sept. 2, 1941" in the sane handwiiting as the respective signatures The undersigned does not accept the respondent's theory presented in its brief that the cards were actually signed at Harris' home as testified by Dodge and that earlier dates were then falsely entered to make it appear that the signing had taken place before the three drivers were laid off. In view of the consistent testimony of the other Board wit- nesses that the cards were signed at a filling station befoie the lay offs and the dates on the cards of Call and Goehman, the undeisigned is convinced that Dodge was mistaken as to the place where lie received the cards. As appears below, the Union had a majority in the appropriate unit fiom September 2 to December 7, 1941. io Ciader left the respondent s employ the following week. ii The above finding is made upon testimony of Call which the undersigned believes Bowman testified that he did not recall such -a conversation. Cosgrove testified that lie had never heaid'Bowman make any statement about union matte's to any truck driver 13 The first meeting of the Union was to take place at Harris' home on Sunday, Sep- tember 7, to discuss wages and a contract i3 The findings as to the above conversations are made upon testimony of Harris and of the two Wolfenkoehlers which, the undersigned accepts Dowman admitted that he had made a remark to Willis \Wolfenkoehler similar to that set out above, but testified that he had not known the purpose of the meeting or that any of the drivers had joined the Union. He testified that he had heard that some sort of grievance meeting' was to be Held but could not recall how he had received the information Bowman admitted asking Harris if lie was going to be invited to the "big feed" to be held at IIarits' home CAFE COUNTY MILLING COOMPAi1'T 233 When Bowman wrote out Sherwood Wolfenkoehler's check for the week end- - mg'September 6,' he said to Wolfenkoehler, "I am sorry I cannot use you any more" When Harris got his pay, Bowman told him that he no longer had a job Harris mentioned that he owed the mill $7, but Bowman replied that he did not have any job with which to pay it Harris then left his truck keys. Morton was also laid off that same week end n On September 16, two representatives of the Union, Donald Hungate and Dodge, held a conference with Bowman and Cosgi owe at the mill office. Hungate asked why the three drivers had been discharged, pointing out that they were among the drivers with greatest seniority. - Bowman said that they had been laid off rather than discharged and that the action had been taken because work was slack and because they had been unwilling to do every kind of work. Bowman said that he would let the Union know what lie could do about putting them back to work Hungate asked Bowman how many truck drivers he employed and Bowman replied that the respondent employed 11. Hungate in- formed Bowman that the Union had a majority of the truck drivers signed up and„that it'would later submit a proposed contract. On September 17, the-respondent wrote the Union concerning the meeting of the preceding day, stating that the three drivers had been "temporarily laid off on account of insufficient work." The letter concluded with the following paragraph : - It was not our intention then, and it is not so now, to lay them off perma- nently, but as soon as work justifies it, we expect to again call them into service. On the same day, the respondent wrote letters to Harris, Morton, and Wolfen- koehler, each 'of which read as follows : As stated to you at the tine you were laid off on account of insufficient work, we expected you to report for work again as soon as our business justified it 15 We received a number of orders this morning and it seems that we are going to need'your services and we would like for you to report for work tomorrow. Thereupon the three drivers returned to work. and telling Hai ris that he thought a 5 cent increase would be granted if he went to the respondent's president He denied that Wolfenkoehler and Morton had been mentioned duiing the conversation Bowman, who was not a ciedible witness, was particularll unconvincing in his testimony conceinmg what lie knew and aid about the meeting at Harris' home. On the other hand, Harris, who was at the time of the healing seiviug as the local manager of a common cairier trucking fiim, which was then serving the respondent and whose financial interest in the outcome of the healing was limited to possible back pay from September 6 to 17, was coil racing From his testimony, the undersigned is persuaded that Bodman specifically, suggested that Morton and Wolfen- koehler accompany Hairis in asking for an increase. In view of the concerted activities during the pieceduig months, the smallness of the community and Bowman's testimony that a former employee had warned him in May of the impending walkout of the mill employees, it is evident from the above credited testimony of Harris that Bowman had concluded that Harris, Morton, and Wolfenkoehler were leadeis In organisational actiNi- ties among the truck drivers. ii The above findings are based upon testimony of Hai ris and Wolfenkoehler as to what was said to them at the time they were laid off. Morton did not testify. Bowman's .testimony that he told the drivels that woik was slack was not convincing. . 15 Harris and Wolfenkoebler both testified that no such statement was made to them at the time they were laid off. The undersigned accepts their testimony. While it can be argued, as counsel for the Board did dining the lieainig, that the three drivers were actually discharged on September 6 rather than laid off, a determination of which actually took place is not material to the issues herein as the effect and the remedy would be the same in either event Since the term "lay-off" is used in the complaint, the matter is so considered herein. ' 234 DECISIONS OF ]STATIONAL LABOR RELAT I'OIVIS BOARD 3. The first attempts to bargain On September 26, Dodge called at the mill and presented a proposed contract to Bowman and Cosgrove The contract, which had alieady been signed by Flungate for the Union, provided among other things for a union shop.; lay-offs according to seniority; a week's vacation with pay after a year of service; 50 cents an hour for driving within a radius of 50 miles of Jackson aucl 21/ cents per mile for driving beyond that radius, plus 1 cent per hundred for unloading; meals and lodging while away,from home: a minimum of 4 hours pay when re- porting for work unless previously notified not to report ; and time and one-half when driving on an hourly basis for all work in excess of 9 hours'in any one day or 54 hours in any 1 week Dodge asked Bowman to look over the.contract to see what he thought of it. After Bowman and Cosgrove had read the contract, Bowman asked if he was expected to sign then Dodge replied that he could have some time. Bowman stated that he would like to study the contract more thor- oughly and present it to the directors This was agreeable to Dodge who said lie would return later, probably the following week. Shortly thereafter, the re; spondent telephoned its attorney, Albert M Spradling, whose office is at Cape Girardeau and who is paid an annual retainer by the respondent, and asked him to come to Jackson to look over Elie contract Spradling said he could not, and asked that the contract be mailed to him. This was done - On October 1, 1941, without any notice to the Union the respondent announced a general wage increase. The mill workers and intra-state drivers were in- creased from 35 cents an hour to 40 cents and the packers from 35 cents to 421/ cents. At the same time the inter-state truck drivers who had continued to receive only 30 cents an hour were increased to 40 cents. Thus by its uni- lateral action the respondent gave to its truck drivers approximately half of the hourly wage increase which the union was seeking for them. When Bow- man gave the drivers the increase he asked if they were satisfied About October 2, Dodge returned to discuss the contract with the respondent. He met with Bowman and Cosgrove, both directors of the respondent, in the mill's private office Bowman said that the respondent (lid not like the con- tract and would not sign it He stated that the wage scale asked was too high and that he had asked the drivers and they had told him that they were satisfied with their pay. While the wage scale was the principal topic of dis- cussion, Bowman indicated that the contract in general was not satisfactory to the respondent. Among the provisions specifically objected to were those providing for a minimum reporting time, seniority, vacations with pay, and the union shop. Neither Bowman nor Cosgrove made any suggestions for changes in the contract. Dodge asked Bowman if he would draw up a contract similar in form but with the changes the respondent thought necessary or if he would tell him what changes lie wanted so the Union could re-draft the contract. Bowman replied that he did not know anything about drawing up contracts, but that if the Union drew up one which was satisfactory, the respondent would consider signing it 10 When Dodge left he said he would return again on a later (late. After the foregoing conference, Spradling saw Bowman in Jackson and in the course of their discussion told Bowman not to sign any contract until it was first determined whether or not the Union actually had a majority." 10 The undersigned does not credit Bow man's testimony that upon vakious occasions union representatives told him that counter pioposals were not necessary. 17 The finding that Spradling iaised the majority question with Bowman after. the October 2 meeting is made upon Spradling's testimony The findings as to what tran- spired at the meetings of September 16, September 26, and October 2 are made upon an analysis of the testimony of all the participants , each of whom -test! fled about each CAPE COUNTY MILLING COMPANY 235 During a period of approximately 3 or 4 weeks beginning about September 20. the Union conducted a strike at a mill similar to that of the respondent's located in Scott County, Missouri. On' October 4, Spradling and Bowman went to Charleston; about 50 miles from Jackson, as spectators to an injunction proceeding being brought by the Scott County Milling Company against the Union, although neither of them had any connection with that company of that case n On a street corner near the court house after they had left the court room, Bowman and Spradling met Hungate and Dodge. Hungate asked Bowman how he was getting along and if he had signed the contract.. Bowman replied that lie had not. Hungate then asked if lie was going to present a counter-proposal Bowman thereupon introduced Spradling as the respondent's attorney and said to talk with him about it. SpradliIng stated that the respondent did not know whether the Union then represented a majority and even if it did there were provisions in the contract which were not sat isfactoi y Spradling stated that the respondent could not afford to pay the wage scale provided and would not accept a closed shop Hungate explained that wages could be negotiated and that the provision in>theacontract called for a union shop'rather than a closed shop, explaining the difference. Hungate and Spradling differed sharply on the desirability of the union shop provision. Hungate asked Spradling to submit a counter-proposal and Spradling replied that if the Union drew up a contract which the respondent liked, consideration would be given to signing it Hungate answered that lie could use all of the paper in Cairo and probably not get a contract that the respondent Would like. Spradling said that that was just his "hard-luck" but to go ahead and try if he wanted to, because the respondent would not consider tile contract Which had been presented. Hungate then said that the matter might have to be taken to the Boaid since the Union. as a majority representative, had it right to expect a counter-proposal As the group broke up, Spindling said that Hungate could go ahead and shoot his "biggest gun" while he was at it" During the week of October 6 to 11, four additional employees were added to the respondent's truicking pay roll. These four employees were engaged primarily meeting In, the main, the findings follow the testimony of Dodge, who nrrpiessed the undersigned as a tinthtul witness His testimony as to the meeting of September 26 was corroborated by Mitigate. Bowman's testimony was particularly confused as to what took place at the meetings other than the one on September 16 The most significant conflict in the testimony as to the above three meetings concerns whether or not the respondent demanded proof of the Union s majority at any or all of these meetings Bowman, whose testimony on this point was not consrneirg, maintained that lie had demanded proof of the Union's majouty at eveiy meeting beginning with the one on September 16, and liad repeatedly icceived the ieply that the cards had been left in Cairo. Cosgiove corroborated Bowman's testnnony in this icspect as to the meeting of September 1G but characteuzed the subsequent meetings as involving, respectively, merely the presentation of the contiact on September 26 and its return on October 2 as unsatis- factory. Dodge and Ilungate denied that any question of a majority had been raised or any request that the Union show its authorization had been made at any of the above three meetings That the Union would have evaded that issue at that time, if it had been raised, is unlikely since at the time the contract was presented on September 26 the Union had 7 of the 11 truck driver's, and it had 7 of the 12 drivers when the contiact was discussed on October 2 From the suirounding cucumstances, the credible testimony of Dodge and Hungate, and the testimony of Spradling that it was upon an occasion after the meeting of October 2 that lie first saw Bowman and told hint not to sign any contract until the majority question had been determined, the undersigned is convinced that, at, no time was, any question of the Union's majority raised at any of the abot e three meetings U Spradling testified as to his presence there, "Well, at that time I knew about the controversy here and that secured to be a similar pioposition down there .11 >s The above findings are based upon an analysis of the testnnony of Sriradhng, Bow- man, Dodge, and Hungate. 236 DECISIONS OF NAT110\AL LABOR RELATI'O\1 S '-BOARD in loading and unloading wheat and did little, if any, actual driving' One of them worked only 1 week., The second worked until approximately the end of November, the third until about the middle of December and the fourth until January. - During the week following the above discussed chance meeting in Charleston on October 4, Dodge saw Bowman for a few minutes, in front of the mill. Dodge asked Bowman if the respondent had drawn up any kind of a contract or would consider the one which the Union had presented Bowman said the respondent had riot drawn up a contract, and still did not like the Union's contract. Dodge suggested that Bowman and he go over the contract together to make any sug- gested changes Bowman said that would be a waste of time During the con- versation, Bowman pointed out that the Union.had not demonstrated its repre- sentation of a majority.21 - Sometime during or shortly after the strike at the Scott County mill, which terminated about the middle of October, Bowman questioned Morton as to the possibility of the Union striking the respondent's trucks One of the respondent's salesmen stationed in Arkansas had reported to Bowman that one of the respond- ent's customers had reported to him that one 'of the respondent's truck drivers ,had made the statement that the Scott County mill was shut down and that the respondent also would-be shut down in a few days Morton denied to Bowman that he had made such a statement to any customer, but admitted that be had- to] d "them all he had joi;ied the Union." 22 4. The later attempts to bar grin and sir rounding events No meeting took place between the respondent and the Union from early October 1941 to January 30, 1942.' On December 15, after telephone calls from Dodge requesting a conference, Spradling wrote Dodge that his physician had advised, him ,not to undertake any kind of work until after the first of the year, at which time he would be glad to confer: On January 3, 1942. in a telephone conversation between Dodge and Spradling, a meeting was arranged for January 7 In a letter to Dodge, dated January 5, Spradling confirmed arrangements for the meeting concerning "certain truck drivers" and requested that the Union bring to the meeting its evidence of its authority to represent the truck drivers. That meeting was never held, being called off by the Union. In the meantime, during the last of December and early in January, Bowman had several discussions presented below concerning the Union, and one of the union truck drivers, Marvin Goehman,.was given a position as a night watchman at Mill A during the week ending January 3.'' A few days before Goehman was given the position, Call, who had asked for a position as night watchman in Mill B the preceding June before the truck drivers had been increased from'30 cents 21 Such extra employees are customai ilv taken on during the period when wheat is being hauled They largely assist in loading and unloading wheat. The hauling of wheat is a seasonal activity beginning in the summer with the hauling of wheat from farms to storage depots Later, the wheat is hauled to and between various storage -facilities of the respondent 's three nulls This wheat hauling is a process which continues from summer into early winter. 21 On October 24, 1941, the Union filed its original charge in the instant matter, alleging that the respondent had refused to baigaur with the Union, and was interfering with the nght of its employees to self-organization 22 The above finding is based on Bowman's testmmonv. 23 Counsel for the Board stated at the hearing that the Board was not contending that the respondent had engaged in any dilatory practices in arranging meetings with the Union 24 The loss of Goehman as a truck driver left the Union with only 5 members out of it employees then in the appropriate unit, as is set out below. CAPE COUNTY MIL'LIN'G COMPANY 237 an hour to 40 cents an hour, had tried out the job as night watclmian in Mill A for about 3 days because Bowman had repeatedly asked him to do so. Call had not liked the work, and had been returned to a position as truck driver from which he later secured a leave of absence about January 242' Sometime before he took his leave of absence, Bowman sent Call to see his brother-in-law about a position then open in another firm in Jackson. Call decided after investigating the pro- position which Bowman's brother-in-law had to offer, that he preferred to remain with the respondent. About the time that Bowman had insisted that Call try out the job as night watchman,' approximately January 1, Bowman had a con- ^ersation with Call in which he said that it looked like the Union was working around but that he did not know how many members it had Call replied that he belonged to the Union and that he thoi ght all the drivers did. In a conversation just before Christmas, Bowman asked Joe Brown, who was then driving Bowman's personally owned truck, whether,he would promise -not to join the Union if given a position as a track driver for the respondent. Brown replied that if the Union got it union shop lie would join rather than lose his job. Early in January, about the time Goehinan became a night watchman, Bowman told Brown that if Goehman did not accept the job as night watchman be was not going to be permitted to continue to drive a truck. Later, sometime before the middle,-of January, just before Cosgrove, the son, of the respondent's-secretary, was recalled to the army and Brown was given Cosgrove's position as truck driver, Bowman said to Brown that he surely hated to see Cosgrove leave; that "we have already got rid of two or three of them" ; and that as long as "we can keep them below the majority we are all right." n On January 30, a meeting between the respondent and the Union. which a Field Examiner of the Board had cooperated in arranging, was held in the mill office. Spradliug, Bowman, and Cosgiove represented the respondent. I-lungate and Dodge represented the Union; IIungate's secretary attended as an observer During the meeting which lasted about 2 hours, most of the pro- iisions of the contract, which Dodge had submitted on September 26, were discussed since the respondent had not prepared counter-proposals During the discussion, Spradliug indicated that 3 of the 16 paragraphs were satisfactory to the respondent These- paragraphs provided, respectively, that the purpose of the agreement was to improve relationships between the parties; that equip- ment be mechanically safe to operate; and that drunkenness, dishonesty; negli- gence, incompetency, insubordination, or too great an accident frequency would 12:. It is unnecossai y to determine whether Call remained an eniplovee on leave , as con- tended b3 the P.o,nd, or ceased to be an employee because lie started drinking heavily, as contended by the respondent Ills exclusion or inclusion in the appropriate unit in determining the Union's maioiity is immaterial, since piior to February 3 the Union lacked a inalouts' even if Call weie included By February 4 after three new members were secured, the Union regained its majoiily even if Call be excluded fioin the calculation - The watchman's position involved above was actually on the pay roll of the Law- rence w ai ehouse Company, although Call remained on the pay roll of the respondent dnrnig his liy-out period The Laivience Warehouse Company leases and operates the respondent's storage facilities. CosgiOse, the respondent's secretary, is the resident manager, for the warehouse company It is evident that Cosgiove and Bowman deter- mined who Mere to be emploied by the warehouse company as watchmen and that from the standpoint of labor relations Goehman's shift from his position as a truck driver to a position as a night watchman, even though the latter position was on the pay roll of another corporation , was deteuuined upon and brought about by two diiectors of the respondent. 21 The above findings and an additional finding made below as to a conversation between Brown and Bowman aie made upon testinionv of Brown which the undersigned believes. Bowman denied making any of the statements attributed to him by Brown i i '238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute causes for,discharge Early in the'discpssion, when Article 2 providing _ for a union shop was reached, Spradling questioned whether the Union had a majority and asked for evidence of its authority to represent the truck drivers Hungate replied that the authorizations had been left in Cairo. Spradling then said that while the Union alight have had a majority, it then no longer did, pointing out that Harris had left the respondent's employ and that Goehniai had been transferred to a position as night watchman." After Hungate stated that the Union would be glad to have its majority status determined by a, Board election, the discussion of the provisions of the contract continued. As to the union shop provision, the respondent took' a strong stand against it and the Union took an equally strong stand for it Among the other pro- visions objected to by the respondent was that prodding for seniority, on the ground that the respondent would have to retain inferior men during lay of;., The most extensive discussion centered about Ai title 12 with its several sub- divisions concerning wages. The respondent objected to any payment on mileage basis and made no specific offer to increase the 40 cents all hour rate then in effect, whereas the Union asked 50 cents an hour for driving, within a 50-mile radius of Jackson and 2t/> cents per mile for driving beyond that radius. The respondent contended that living costs in Jackson did not justify any wage increase, and Bowman stated that lie knew that the men w ei e satisfied because he had asked then and had received their assurances to that effect The re- spondent advanced no counter-proposals at any time during the meeting The last several paragi apps of the contract were not discussed and the meeting ended indeterminately without arrangements being made for a future meeting29 On February 3 Joe Brown and Clarence Tripp joined the Union and Les Ackman joined on February 4 All three were legular truck drivers.g0 Upon several occasions from about January 31 until about the time he joined the Union on February 4, Bowman had conversations with Ackman. In the first of these conversations Bowman asked Ackman if lie had joined the Union and Ackman said that lie had not yet joined Bowman told Ackman that if he believed in him he would "lay off that Union " Bowman al' o said that befor e lie "would go Union" and let them tell him what to do, "I will shut every ' damn truck down I have." Bowman asked Ackman who the ring leaders of the Union were and Ackman replied that he did not know Bowman then said it would "all cone out in the wash " About the time Ackman joined the Union, Bowman again asked him if lie bad joined. Ackman ieplied he had not and Bowman said in substance. that lie had better not as it would affect the Union's majority and before he would "go Union" lie would shut down the trucks." Sometime shortly before the trucks ceased to operate. Bowman bad a con- N;ersation with Joe Brown in which he told Brown that if someone had not lied to him the Union was "below the majority mark yet" On February 12, following conferences on February 11 during which the Union had given-the Board's Field Examiner, Warren A. Silver, its applications and the respondent had furnished its, payroll, Silver conferred in Pradling's As is found below, the Union did not have a majority in the appiopriate unit at the time of the meeting 29The,above findings conceimng the•meeting• of January 30 are-made upon,an amaiysis of the testimony of the six who attended , namely ; Spradling, Cosgrove, Bowman, Ilun- gate, Dodge , and Edna Mae Reid "As is found below, their joining gave the Union a majority on and after February 3. n The above findings and findings made below as to conversations between Bowman and Ackman are based upon testimony of Ackman which the undersigned credits., Bow- man denied making the remarks. CAPE COUNTY MILLING COMPAa^Y 239 private office in Cape Girardeau with Sptadling, Bowman, and Cosgrove while -representatives of the Union waited in an outer office Silver indicated that he though the respondent and the Union ought to t'ry to get together. Spradling said that it was a simple matter if the Union would give the names of its ineinbers and agree to an open shop, and that the parties could then come to an agreement on wages Silver stated tbat the Union did represent a majority. Spradling insisted that since Silver had the names of the union members and the respondent's pay roll, lie should tell the respondent the names of the union members then employed. Silver said that he could not reveal the names of the union members any more than he could give the Union the pay roll furnished by the respondent. Silver then proposed that an election be held to determine the Union's majority. Spradling replied that there was no necessity for holding an election since Silver could simply give him the names ,of the union members and if there was an actual majority that would be the end of the matter. Before Silver and the union representatives left Spradling's office, Spradling had a private talk with Silver in which he told Silver that the respondent was, going to discontinue its trucking business. He explained that the "discontinu- ance was not due to this labor controversy, but due to an expected shortage in rubber and the difficulty we would encounter in buying, trucks and keeping theirs in repair " Silver replied that while such difficulties would likely occur the respondent ought to operate its trucks as long as it was possible to do so. This was the first occasion upon which any representative of the respondent had stated to any representative of the Union or of the Board that the respondent was contemplating shutting down its trucking operations. 5 The shut down of the trucks and developments thereafter On Friday, February 13, the respondent shut down most of its trucks. That afternoon when Sherwood Wolfenkoeliler brought in his truck, Oscar Loos, the iespondent's shipping clerk, told him that there was no use to "gas up" as the trucks weie going to be locked up Later when Bowman paid off Wolfenkoehler and Morton lie said, "Boys see what Social Security can do for you now" When Acluman got in late that afternoon, Loos told him to put his truck under the shed because he would not be driving it. When Bowmman handed Ackman his check he said, "You think you are mighty damned smart and the boys think they are mighty damned smart." That same afternoon when Bowman checked out Tripp foi a run of some 700 miles he asked him where his union card was. Tripp replied that Bowman did not see any button oil his cap On Saturday, February 14, Brown returned from his run. When Bowman checked him in, he made no explanation as to why the trucks were being discon- tinued Tripp returned froni his long run Sunday evening and checked in Monday niormmng, February 16 At that'lime. Joe McIntyre. one of the truck drivers who had not joined the Union, told Tripp that "the rest of•the trucks were tied up, the Union tied them up" Shortly after the shut down, BownSan told Peter Mollenhour. the respondent's mechanic, whose duty it had been to keep the trucks in repair, that lie did not know how long the trucks would be shut down Bow- man offered to let Mollenhour use the respondent's garage free of charge with lights furnished if he wished to operate a garage and repair business of his own. "At no time on February 12 did the respondent and the Union repiesentatives meet in joint conferences. I n Earlier that day and also sometime prior thei eto, Bowman had told Tripp that he did not know how much longer the trucking operations weie going to continue , as getting -tires and equipment was becoming complicated i 240 DECISIONS OF NATIONAL LABOR. RELATION'S BOARD Bowman also said thiit if and when the trucks operated again, the respondent would want Mollenhour to return to work on the trucks if he was then available. Except for the local pickup truck which James Bowman " continued to chit e, ' all the respondent's other trucks, nine in number, were parked under an open shed next to the mill on and after February 16 A tew weeks thereafter the Union commenced picketing. The picketing continued for sevemal weeks. About the time the picketing ceased, evidently late in March 1942, J R Bow- man, the respondent's treasurer and one of its six directois. picked up driver. Ackman in his car. During a brief conversation, Bowman told Ackman that hey believed that if all the boys got together and went up to talk to Earl Bowman and "did right" that Bowman would start the trucks. Ackman slid not follow the suggestion . About this same time, J R Bowman had a conversation with Sher- wood Wolfenkoehier whom he also had picked up in his car He asked Wolfen- koehler what the boys were trying to do and if they were trying to put the respondent out of business He also said that he chid not know what the boys were asking for, and Wolfenkochler replied that Earl Bowuutu had the contract J. R. Bowman then-asked why the boys (lid not buy or lease' time trucks mitt Wolfenkoehler said that they could nor Bowman told Wolfenkoehlei that the respondent would sell or lease the trucks to the diivers but that it was not going to start running them again unless the Union made it."" On April 10, 1942, the respondent gale a general Increatse to its employees of 2i/ cents an hour. ]'his increased the null workers from 40 cents to 42i/-. cents an hour and the packers troiii 421/'.-. cents an bout to 45 cents an bout. 1; Coucludniq fiudiil(/s 1 Interference , restraint and coercion From the entire course of conduct set lot th above, the undersigned conclndrs and finds that, through the several conversa tions Ii oni about September 1941 to March 1942 held by Richard Earl Bowman and J R Bowman with various of the respondent's employees. the respondent waived its employees against and questioned them concerning membership in and activities on behalf of the Union; advised union members to abandon collective bargaining and revert to individual bargaining ; and threatened to discontinue its trucking operations if employees continued their Union membership and collectiie bargaining demands, and thereby interfered, restrained, and coerced its employees iii the exercise of the right guaranteed in Section 7 of the Act 2 The lay offs of.Sopteniber 1941 As to the lay off of Sherwood Wolfenkoehler. Robert llaiii ,i id Herbert Mor'- ton,'the complaint alleges, and the answer denies that they were laid off on September 6, 1941, and refused reintateuient until September 17, 1941, because they joined and assisted the Union The respondent contends in its brief that they were laid off because "there was not available foi them sutheient work of the type which'they desired " i ''Bowman was replaced £oi seieiat weeks apparently about the roue of file I)Wkehng by Bill \liederhoff, who had lormerly worked in the null but who had not driven a truck The position on the pickup tiuck was not ofreied to any of the then unemployed unuin drivers ' The above findings are made upon the testimony of Ackman, and Shernood NVolfen-' koehler which the undersigned accepts. J R Bowman testified that lie did not reniembei Such conversations; that his memory was not as good as it used to he, and that lie often did offer people rides in his car. CAPE COUNTY A11LLING COAMPAiI'Y 241 Work for truck Urn ore was not slack at the time of the lay offs. In fact, the average hours worked rose from about 40 hours the week before the lay offs to about 50 hours the week of the lay offs Further, the hauling of wheat, which began in the summer and contained into the early winter was a steady process which required extra help. The respondent's pay-roll record showing the hours worked by persons engaged in trucking and wheat hauling' reveals that during the period of August, September and October, 1941, the number of employees engaged in such work during any given week was on the average about 12 During the week of the above lay offs, it was only 8. The only other week in the three months when the number fell below 11 was the week ending September 27 when the number was 10 Bowman testified that the three men laid off hall 'practically refused" to haul wheat and that had they not so refused the work available would have been divided up among the drivers as was customary The interstate drivers were undoubtedly dissatisfied because they were receiving only 30 cents an hour when hauling wheat while their helpers were receiving 35 cents an hour and the `undeis'gned is convinced that the respondent knew that the three drivers laid off 'were not the only ones thus dissatisfied. nor the only ones who preferred inter- state hauling of flour to hauling wheatF In any event, none of the three flatly refused to haul wheat, and it is clear that none was given a choice between hauling wheat and being laid off Nor was any reason given for the lay offs or any probable duration thereof indicated at the time the men were laid off. As the facts above found show, the lay offs occurred at a time when Bowman knew that the truck drivers were planning to meet at Harris' home. Shortly before the lay offs, he questioned Harris about that meeting and suggested that the three men laid off, Harris, Morton, and Wolfenkoehler, whom Bowman evi- dently,believed to be leaders in self-organization among his employees, could save a lot of trouble by going to the office to ask for a 5 cent an hour increase which he was sure would be given About this time, Bowman advised Willis Wolfen- koehler in reference to the meeting to take a fool's advice and stay at home He also pointed out to Calt the undesirability of a union in a small place like Jackson Harris, Morton, and Wolfenkoehler did not take Bowman's advice as to how to save a lot of trouble On the contrary the first meeting of the Union was held on September 7 at Hams' hone The day before that meeting, Bowman in-' definitely ]aid off Harris, Morton, and Wolfenkoehler, each of whom had joined the Union on September 2 In view of all the surrounding circumstances, the respondent's explanation of the lay offs is not convincing. The undersigned con- efides and finds that the respondent land oft Robert Harris. Sherwood Wolfen- koehler and Herber t Morton oil September 17, 1941, because each of them joined and assisted the Union. I ' The undersigned finds that the respondent, by laying off Robert Harris, Sher- wood Wolfenkoehler, and Herbert Morton, on September 6,-1941, and thereafter refusing to reinstate them until' September 17, 1941, discriminated in regard to the hire and tenure- of employment of Harris, Wolfenkoehler, and Morton, and thereby discouraged membership in the Unigir, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 10 James Bo w nian is not included in.the above figures, except dui ing one week *+ Hauling wheat involved niany short trips with a large aurount of loading and unloading 242 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to bargain collectively . a. The appropriate unit The complaint alleges that the appropriate unit consists of "all of the em- ployees engaged by - the respondent at its mill in driving, trucks " The respond- ent's answer states that the respondent is without sufficient knowledge to form a belief concerning the appropriate unit. The respondent made no contention ,for any other unit at the hearing and no other labor organization was seeking a different unit. The respondent had 10 trucks , and employed at any one time during the period material herein from 10 to 13 drivers who gave a substantial portion of their time to driving those trucks. The union attempted to organize only such regular truck drivers aB There is no evidence that any confusion existed at any time during the discussions ' between the Union and the respond- ent as to the appropriate unit. The undersigned finds that all of the employees engaged by the respondent at its Jackson, Missouri, mills 39 in driving trucks, at all time.,, material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages , hours of employ- ment, or other conditions of employment and that said unit insures to the employees of the respondent the full benefit of their right to self organization and collective bargaining and otherwise effectuates the liolicies of the Act. b. Representation by the Union of a majority in the appropriate unit On September 2, 1941, as is found above, 8 of the respondent's truck drivels in the appropriate unit joined the Union. At that time there were 11 drivers in the unit" During the week ending September 12, one of the union drivers, Crader, ceased his employment with the re,^pondeut The three drivers laid off from September 6 to September 17; Wolfenkoehler, Harris and Morton, are found herein to have been di scriminatorily laic] off They continued to remain members of the Union within the appropriate unit. Tripp, who slid not join the Union until February, was hired about September 15 Thus when repre- sentatives of the respondent and the Union met on September 16 and on September 26, 7 of the 11 drivers in the appropriate unit were then members of the Union. A twelfth driver, Kilhoefner, was hired during the week ending October 4 Assuming he was hued by October 2, 7 of the 12 drivers then employed were members of the Union at the time the respondent and the Union met on October 2. Thereafter during the week ending October 25, a thirteenth driver within the unit was added when a former truck driver, Cosgrove, re- turned from 'the army. From that time until one of the union members, Harris, quit about November 8, 7 of the 13 drivers were members of the Union. From Fifteen persons here emploied as regular driveis at diffeient tines during the period from September 2, 1941, to the time of the shut down in February 1942. They were the three wolfenkoehleis, liclntyie, Call, Hairis, Morton, Ackman, Goehman, Tripp, Kilhoefner, Brown. Cinder, Coseroce. and Bow>}ian The various periods during which each was within the appropriate unit and the number of drivels in the appropriate unit at various tunes appeals in the next section of this report Employees lined to help during wheat hauling did little, if any, actual truck diming and are not included in the appropriate unit -'In a claiification of the allegation as to appropriate unit, counsel for the Board stated at the hearing without objection that the teen `mill" included both Mill A and Mill L' in Jackson The local delivery and pick up-truck operated out of a retail depart- ment in ,lull B and the other trucks operated out of Trill A "The 11 in the unit on September 2 were the three Wolfenkoehleis, McIntyre, Call, Harris, Dorton, Ackman, Goehm.rn, Bowman and Crader. Of these, all but McIntyre, Bow inan and Acknr.in joined the Union on Septembel 2, 1941. CAPE COUNTY MILLING COMPANY 243 the week ending November 8 to the week ending December 6, a non union driver, McIntyre,; was ,not in the respondent 's employ. During the , 4 weeks prior to his reemployment , 6-of the 11 drivers were members of the Union. Upon McIntyre's reemployment , during the week" ending December 13, and con- tinuing until the week ending, January 3, 6 of the 12 drivers were members of the Union. During the week ending January 3 ,, a union driver , Goehmari, was transferred to, a ,position as night watchman .41 After his transfer the Union had 5 members out of 11 drivers unt il another union driver , Call, took a leave of absence about January 24 42 On February 3, two more of the drivers within the unit, Brown and Tripp, joined the Union., Ackman joined on February 4. Thereupon , 7 of the respondent's 10 truck drivers within the unit were members 'of the Union. While the Union had as members less than -a majority of the truck drivers thenworking. at the time of the January 30 meeting , it had a majority at the time of the conferences of September 16, September 26, and October 2, and had regained-its majority on February 3, 1942. ' Hence, even if it be conceded that the Union temporarily lost its collective bargaining status from December 7, 1941, to February 3, 1942, as a result of its loss of majority , the ultimate result reached herein would not be affected since the refusals to bargain which are found below occurred on October 2, 1941, and, on February 12, 1942, respectively, at both of which times the Union clearly had a majority. The undersigned finds that on and at all times after September 2, 1941, except from December 7, 1941, to February 3, 1942, the Union was the duly designated representative of the majority of the employees in the aforesaid appropriate unit; and that, by virtue of Section 9 (a) of the Act , the Union was at all times material herein and is the exclusive representative of all the employees in such unit for the purpose of collective bargaining with the respect to rates of pay , wages, hours of employment , or other conditions of employment. , C. The refusal to bargain At 'the conference 'on September 16, the Union claimed to represent a majority of the respondent's employees and stated that a proposed contract would be submitted. The Union's majority was not questioned at that time. On September 26 'a proposed contract was presented which sought among other things wage increases and a union shop. Time was asked for its con- sideration and this request was granted On October 1, the respondent, by unilateral action, increased the wages of its track cli•iveis by approximately one third. This increase was about one half what the Union was asking. On October 2, at its third meeting with the Union, the respondent stated that the drivers were satisfied with their wages and objected to all of the provisions of the contract. The, respondent would not suggest changes or offer any counter proppsals although asked to do so. It would only consider signing a contract it the Union presented one which it liked. By'the foregoing course of conduct, considered in the light of the respondent's other activities during September 1941, the respondent refused to bargain with the Union on October 2, 1041. At the chance meeting in Charleston on October 4, the respondent's attorney for-the first time raised the question of the Union's majority status. Opposi- 41 No other driver had ever been so transferred. 42 As is pointed out above, it is immaterial whether or not Call be considered within the unit during his leave of absence, since in any event, the Union had less than a majority of the truck drivers as members at the time of its meeting with the respondent on January 30 _ 53111 4 7-4:;-v of 40-17 '244 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD tion was also expressed to the union shop provision and to wage increases. Tlie following week, in a brief meeting in -front of the mill between Dodge and Bowman, the respondent again raised a question of majority and expressed dissatisfaction with the contract. No further meetings were held, for 'reasons from which no adverse inferences are drawn herein, until January 30, 1942 Early in the meeting on that date, the respondent again questioned the Union's majority status, 'naming certain union' men -who, had left,' the. respondent's employ. However, dismission proceeded' with the' terms of the Contract The respondent accepted only' a few' provisions clearly favorable to it. It refused to grant any''concessions, insisting that it could not increase wages and that the truck drivers had stated that they were satisfied with their present wages' The Union strongly urged the union shop provision, but the respondent was opposed to the 'union shop The last few provisions in the contract were mot discussed. ' Prior to the meeting of February 12 in -Spradling's' office, the 'Union and the respondent furnished to the Board's Field Examiner the information neces- sary to make a payroll check. On February 12, the Field Examiner informed the respondent that the Union represented a' majority of,-its truck drivers The respondent would not accept the statement of the Board's agent, but 'insisted that' the names of the Union's members be revealed to it This the Field Examiner stated he was not permitted to do and, in the alternative, proposed an election. The respondent would not agree to an election, and thereafter informed the'Field Examiner for the first time that it intended to 'discontinue the operation of ' its trucks. This-it did the following day. By its actions on February,12 and thereafter the respondent refused to bargain with the Union."' _., The undersigned concludes and finds that on October 2, 1941, on 'February 12, 1942, and at all times thereafter, the respondent- refused to bargain col- lectively with the Union as the exclusive representative of its employees in an appropriate unit, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7, of the Act 4. The lockout The complaint alleges and the answer denies that in order to discourage membership in the Union, dissipate its majority, and avoid collective bar- gaining, the respondent, on about February 13, 1942, discontinued and has since refused to resume the operation of its trucks, thereby .locking ,out.tand discharging its truck drivers in violation of the act.- The'respondent contends that it permanently discontinued its trucking operations because of anticipated shortages in tires and truck equipment; it further contends that the presence of, the Union on the scene was merely an "unfortunate coincidence." From the sequence of events detailed heretofore, the undersigned does not 'believe that the relationship of the Union to the shut-down was merely coin- 43 It is noteworthy that less than two months later the respondent granted an approxi- mately 5 percent general wage increase to its employees. "In view of the respondent's course of conduct set out above, the undersigned does not believe that the i espondent raised the question of the Union's, majority In good 'faith.' On the contiary, the undersigned believes and finds that the question of majority' wae"pa'ssed over until the respondent was fully informed of-the Union's demands ; that the respondent ,thereafter pursued a policy calculated to destroy the Union's majority status; and that after it had been assured by the Field Examiner on February 12 that the Union did 'represent a majority, the respondent chose to dissipate that majority by shutting down its ti ucks rather than to test that, majority by an election CAPE COUNTY ^ MILLING COMPANY . _ 245 cidental. As shown above, in the early part of September 1941, Bowman sought to impede the Union's organizational efforts by means of anti-union statements and proposals to various employees. When the members of the Union' failed to heed the respondent's warnings, the respondent, on September 6, 1941, peremptorily laid off three of the most active Union members. On Oc- tober 1, 1941, at a time when the Union, as the duly designated collective bargaining representative of the truck drivers, was seeking an increase in wages, the respondent, disregarding the Union's position and demands, unilater- ally announced a substantial wage hicr ease to the drivers. Thereafter the trespondent illegally warded off the Union's contract demands, thereby indi- cating its rejection of the collective bargaining principle. In December, 1941, Bowman sought to exact from a prospective employee, Brown, a promise that the latter would not join the Union Later, in January, 1942, be indicated to Brown the'respondent's desire to rid itself of the Union In the,early part of February 1942, Bowman again sought to dissuade employees from becoming members of the Union and indicated that before he would recognize the Union he would "shut every damned truck down The incidents here reviewed, as well as others indicating the anxiety with which the respondent followed the Union's organizational progress, plainly indicate that this subject matter was constantly before the respondent. Al- though Spradling and other witnesses for the respondent denied that during various discussions, which allegedly occurred among the respondent's officials prior to February 13, any mention what'wer was made of the Union, the undersigned finds it impossible to credit those denials, and infers and finds that the Union and its activities were major subjects of conversation by the respond- ent throughout this entire period. Witnesses for the respondent testified that for some time prior to the shnt- do sin -,there had lbeen discussion of the situation in relation to tires, trucks, and gasoline, and that difficulties in continuing to operate the trucks had been contemplated. The testimony as to the time and extent of such dis- cussions is contused The most definite testimony is that of Spradling, who testified that his first discussion of the subject was'with Piesident McCombs and his daughter, both erectors of the respondent, on Februaiy 1, 1942, at his home in Cape Girardeau a° Spradling testified that thereafter two meetings were held with the directors of the respondent in Jackson about February 6 and 11. No minutes were kept of any such meetings and no record appears in the minutes of any regular directors' meeting of any discussion of or decision to discontinue the trucking department No cost :ni:rl^ sis of the trucking department, which was then' carrying about 25 or 30 percent of the respond-' ent's products and which had been in operation since about 1920, appears to have been presented, toi-the, directors; likewise no comparative cost analysis of railroad rates was made While during the period before the shut-down there was wide-spread public discussion of the probability that automotive transportation would have to be curtailed in the future because of rubber and material shortages, the respond- ent was confronted with no immediate problem in that respect. Almost all the tires on its trucks and trailers were in good condition, and spare tires were carried Furthermore, the respondent had a supply of 24 tires in stock, of which 10 were new, the rest being recapped and repaired. The trucks them- selves were mechanically in good condition, two having practically new motors, This' \u as two days after the meeting on January 30 with the Union. I I '246 DEC'ISIONS OF NATSONAL LABOR RELA'T1OTNS BOARD one of which had not been driven since its installation 48 There were no restrictions upon the purchase or use of gasoline . Clearly the respondent could have continued to operate its rtrucks . Further , the respondent made no effort to determine what its competitors were planning to do . if anything , nor did it, wait until national policies relative to ties, trucks, and gasoline rationing had been developed . The respondent waited only until the day after the Board's Field Examiner assured it that the Union represented a majority of the respond- ent's drivers From the entire record , and especially the events outlined above, the under- signed is convinced and finds that the respondent discontinued the operation of its trucks - on February 13, 1942, for the purpose of discouraging member- ship in the Union , dissipating its majority, and in order to avoid collective bargaining under the Act. The sole question which remains for consideration with reference to this shut-down, is whether the shut-down was permanent or temporary in nature. The evidence shows that the shut-down was in fact a tempos ary expedient hast- ily executed' to accomplish the respondent 's unlawful purposes of ridding itself of the Union . In addition to the matters already related, the following events support the above conclusion. On January 31, 11142 , the respondent spent $234 for license tags for its 10 trucks and 6 trailers. Some time after February 13, the date of the shut- down, respondent paid an insurance premium of $1,055 52. renewing its insurance on its trucks and trailers covering public liability , property damage, fire and theft, and an additional premium of $160 for cargo insurance It was not until April 25, 1942 , that the respondent cancelled its public liability , property damage, and cargo insurance. , The respondent has, since the discontinuance of its trucking operations, attempted to meet, the problem of transpoa hug its pi oduo:bi in various ways, including a slight increase in the use of railroad , facilities . Trucks have been hired on a- per-bushel basis to haul wheat . To keep its customers in Arkan- sas, the respondent has authorized its salesmen to hire local trucks to deliver flour from a railroad center. In Memphis, a jobbing concern makes deliver- ies for the respondent. In western Kentucky , the respondent made one of its salesmen a jobber, transferring to him one of the respondent's newest trucks upon a basis which amounted to loaning him the truck; thereafter the re- spondent made available a second truck to this jobber on , the same basis At the time of the hearing , seven of the respondent's trucks stood parked ,under an open shed. It had been necessary shortly before the hearing for a mechanic to go over the trucks to prevent further deterioration . The respond- ent has made no attempt to sell its trucks. Admittedly under its present make-shift arrangements the respondent is not now able to serve some of its customers who cannot be served by rail." 40 Bowman testified that there were 24 tires in stock. However, he insisted that the tires ,on the trucks were poor and that the trucks were mechanically in bad condition. The testimony of the respondent's former mechanic and the testimony of several' of the tiuck dilvers, whicli testimony the undersigned credits, was to the contrary 47 The salesman had insisted that the territory could not be served'by rail Actual sales contracts were signed which 'provided for no down payment on trucks. The provisions were such that the trucks were the sole security for the notes At any time the return of the trucks would completely liquidate any, obligation assumed At the time of the' hearing no payment had been made on either truck. m There is nothing in national regulations covering truck, tires, and gasoline - rationing to prevent the transportation. by the respondent of flour by truck, especially where customers cannot be served by rail. CAPE COUNTY MILIJING COMPANY 247 The increase in the respondent's rail shipments for the 6 months from March to August 1942 was only 66 percent above that for the same period in 1941. This was only about one-sixth of the increase in shipments by rail which would have been necessary to absorb the approximately 30 percent of the respond- ent's shipments formerly carried by truck.4° On or veiy shortly after Febinary 13, 1942, the respondent's mechanic, Peter Mollenhouer, learned for the first time from several of the warehouse employees that the respondent had shut down its trucks; thereafter he received this infor- mation ft oat Bowman. Mollenhouer asked Bowman how long the trucking opera- tions were to be discontinued. Bowman replied that lie did not known. Although Mollenhouer had been in the respondent's employ for only about four months at that time, Bowman offered Mollenhouer free use of the respondent's shop and "lights", so that Molienhoner could take in outside work. Bowman also informed Mollenhouer that if and when the trucks operated again, the respondent wouldi want Mollenhouer to return to work on the trucks Thereafter Mollenhouer per- lornied some work on the brakes of the trucks and made other minor repairs. •cTfie Union begati^picketing respondent's operations toward the end of February 1942. As related heretofore, about the time the picketing ceased, evidently ]ate in March 1942,. J. It. Bowman, the respondent's treasnter and one of its six directors informed truck driver Ackman that if the drivers "got together," ap- proached Earl Bowman, and "did right", the respondent would resume operation of its trucks On the bads of the entire record and in view of the respondent's various efforts to dislodge the Union, the evident haste with which it decided to discon- tinne the operations of its trucks, the make-shift and clearly unsatisfactory nature of its attempted'substitutes for its trucking operations, the statements of Earl and J R Bowman, the respondent's failure to make any attempt to dispose of its trucks, the continuance of its full insurance until April 25, and the various other factors already set forth, the undersigned concludes and finds that on February 13, 1942, the respondent did not discontinue its trucking operations permanently but rather lucked out its truck drivers for purposes repugnant to the Act. The undersigned therefore finds that in order to discourage membership in the Union, ,and dissipate its majority, and to-avoid collective bargaining, the respond- ent, about February 13, 1942,'° temporarily discontinued and has since refused to resume the operation of its trucks, and that the respondent thereby locked out and discharged Willis Wolfenkoehler, Les Ackman, Joe McIntyre, Joe Brown, Sherwood Wolfenkoehler, Dewey Wolfenkoeller, Herbert Morton, Clarence Tripp, and Arthur Killioefner. The undersigned further finds the respondent did not discontinue the operation of its local delivery truck on February 13, 1942, and therefore (lid not lock out and discharge James Bowman The undersigned finds that the respondent, by locking out and discharging on February 13, 1942, and subsequently refusing to reemploy Willis Wolfenkoehler, Les Ackman, JoellcIntyie, Joe Brown, Sherwood Wolfenkoehler, Dewey Wolfen- koehler, Herbert Morton, Clarence Tripp, and Arthur Kilhoefner, discriminated in regard to their' hire and tenure of employment and thereby discouraged mem- bership in the Union and interfered with, restrained and coerced its employees in the exercise of the tights guaranteed in Section 7 of the Act. " From March to August 19-11 inclusive, 197 cars of merchandise were shipped by rail. In the same months of 1942 , the first 6 months after the trucks were shut down, that figuro totaled only 210 The cars were loaded to about the same capacity during each of the foregoing periods. r" The evidence 'shows that the trucks were shut clown as they returned to the mill during a 3-day period beginning February 13. 248 DECISIONS OF NATIiONAL -LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close. intimate, and substantial relation to trade, traffic, and commei ce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom, and take cer- tain affirmative action which ' the undersigned finds necessary to effectuate the policies of the Act. Having found that the respondent discriminatorily laid off Sherwood Wolfen-' Ic_oehler, Robert Harris and Herbert Morton from about September 6 to Sep- tember 17, 1941, the undersigned will recommend that the respondent make each of the aforesaid whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal "to the amount which he normally would have earned as wages during said period, less his net earnings,'' during said period., It has been found above that the i espondent 's shutting down of - its trucks, with the exception of its local delivery and pickup truck , was an action taken in pursuance of the respondent 's unfair labor practices It has also been found above that the respondent has not gone out of the trucking business but has rather locked out 9 of its truck drivers in order to discourage membership in the Union , dissipate the Union's majority and avoid collective bargaining. The normal action necessary to remedy the respondent 's unfair labor practices is to require that the respondent offer immediate and full reinstatement without prejudice to their seniority and other rights and privileges to the nine truck drivers now locked out . There are no circumstances in this case which would warrant a departure from this normal pi ocednre.s' Accordingly it will be recommended below that the respondent offer to its locked out truck drivers immediate and full reinstatement to their former or substaintially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination'against them by payment to each , of them of„a sum of money equal to the amount he normally would have earned as wages from the date of his discharge as a result of the lockout to the date of the offer of reinstatement, less his net earnings during such period Should it develop, as appears likely from the record , that any of the nine truck drivers are in the armed forces of the United States at the time of the issuance of this Intermediate Report, it is recommended that the respondent, in compliance with the recommendations herein , upon application by such employees "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- Where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of- Aineiica, Lumber and Sawmill IVoilcers, Union, Local 2590, 8 N. L. R. B.r Monies received for work performed- upon Federal, State, county, and municipal, or other work-relief projects shall -be considered as earnings. See -Republic -Steel Corporation v. N. L. R. B., 311US7 53See Matter of Newton Chevrolet, Inc. and International As+ociation of Machinists, Automobile Maehintsts Lodge No. 1001, 37 N. L. R. B. 334. -CAPE COUNTY MILLING COMPANY 249 within forty ( 40) days after their respective discharges from the armed forces of the United States , offer to each reinstatement to his former or substantially, ,equivalent position without prejudice to his seniority and other rights and privileges. In making whole any such individual for any loss of earnings he, may have suffered by reason of the respondent 's discrimination against,him, it is recommended that the respondent pay to each a sum of money equal to the amount-he normally would have earned as wages during the periods ( 1) between the date of his discharge to the date of his enlistment and (2 ) between a date, five (5 ) days after his timely application for reinstatement as provided above and the date of the respondent 's offer of reinstatement, less his net earnings during those periods. At the hearing , the undersigned expressly stated that in respect to the rein- statement of employees , it would be assumed that they had obtained substantially. equivalent employment. In the Ford Motor Company case, the Board held that the mere obtaining of substantially equivalent employment is irrelevant to con- siderations decisive of the question whether reinstatement effectuates the policies of the Act. The Board held that the decisive considerations do not vary from, -case to case, and accordingly found that it would "effectuate the policy of the Act to require the respondent to offer reinstatement to all individuals . . . found . . . victims, of discrimination, whether or not they , or any of them, may have obtained substantially equivalent employment ." For the reasons set forth by the Board in its decision in the above matter, the undersigned finds that-it is necessary, in order to effectuate the purposes of the Act , that the respondent offer reinstate- ment to those discriminated against as above indicated. Having found that the respondent has refused to bargain collectively with the Union as the exclusive representative of the majority of the employees in, an -appropriate 'unit , it will be recommended that the respondent upon request bargain collectively with the Union L' Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1 International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and, Helpers of America, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All of the employees engaged by the respondent at its Jackson, Missouri, mills in driving trucks at all times material herein constituted and now constitute a unit appropriate for the purposes of collective'bargaining, within the meaning cf Section 9 (b) of the Act. 3 International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor is, and at all times since September 2, 1941, except from December 7, 1941, to February' 3, 1942, has been the exclusive representative' of all of the employees' in the above unit, for the purposes of collective bargaining, within the meaning' of Section 9 (a) of the Act. 4 By refusing on October 2, 1941, and on Februaiy 12. 1942, and at all times thereafter, to bargain collectively with International Brotherhood of Teamsters; Chauffeurs. Warehousemen and Helpers of America, affiliated with the American, Federation of. Labor, as the exclusive representative of its employees in said unit, 63 Matter of Ford Motor Company, and International Union United Automobile Workers of America, Local No. 249, 31 N L R. B 994. "It would be recommended that the respondent so bargain ever, if no present rein- statement of the drivers were recommended herein. , 250 . DECISIONS OF NATIONAL LABOR ]RELATION'S BOARD the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act 5. By discriminating in regard to the hire and tenure of employment of Willis 'Wolfenkoehler, Les Ackman, Joe McIntyre, Joe Brown, Slierwoad Wolfenkoehler. Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp, Arthur Kilhoefner and Robert Harris, thereby discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the respondent has engaged in and Is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. I " 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in any unfair labor practices in regard to the hire and tenure of employment of James Bowman. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Cape County Milling Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, as the exclusive representative of all of the employees engaged by the respondent at its Jackson, Missouri, mills in driving trucks; (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, or any other labor organization of its employees,-by :laying off, locking out, discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employ- ment or any term or condition of their employment; (c) In any other manner interfering with, restraining, or coercing its 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) ' Upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, as the exclusive representative of all of the employees engaged by the respondent at its Jackson, Missouri, mills in driving trucks in respect to rates of pay, wages, hours of employment, or other conditions of employment ; (b) Offer to Willis Wolfenkoehler, Les Ackman, Joe McIntyre,'J66" Brown; Sherwood Wolfenkoehler, Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp, and Arthur Kilhoefner, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; CAPE COUNTY MILLING COMPANY . 251 (c) Make whole, in the manner set forth in the Section entitled "The remedy" above, Willis Wolfenkoehler, Les Ackman, Joe McIntyre, Joe Brown, Sherwood Wolfenkoehler, Dewey Wolfenkoehler, Herbert Morton, Clarence Tripp, Arthur Kilhoefner, and Robert Harris, for any loss of pay they may have suffered or may hereafter suffer by reason of the respondent's discrimination against them; (d) Post'immediately in conspicuous places throughout its Jackson, Missouri, Mills A and B, and maintatin for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a), (b) and (c) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), and (c) of these recommendations; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization ; (e) Notify the Regional Director for the Fourteenth Region in writing within ten (10)- days from the date of the receipt of this Intermediate Report what steps the respondent liad taken to comply herewith. It is further recommended that the allegations of the complaint as to James Bowman be dismissed. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the respond- ent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 2, as amended, effective October 14, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an.original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part'of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to' the Board within ten (10) days from the date of the order transferring the case to the Board:, EARL S. BELLMAN, Trial Examiner. Dated November 9, 1942.