Lipscomb Grain & Seed Co.

In the 'Matter of LIPSCOMB GRAIN & SEED COMPANY and UNITED GRAIN PROCESSORS FEDERAL LOCAL No. 20692 Case No. C-662.-Decided November 03, 1938 Grain and Seed Processing Industry-Settlement : stipulation providing for 'reinstatement of and payment of back wages to employees, and recognition of union-Order: entered on stipulation. Mr. Bernard L. Alpert, for the Board. Neale cb Newman, by Mr. Ben M. Neale, and Mr. Charles Newman, Of Springfield, Mo., for the respondent. Mr. Earl F. Dietz, of Kansas City, Mo., for the Union. Mr. Langdon West, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges filed by United Grain Proc- essors Federal Local No. 20692, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated April 27, 1938, against Lipscomb Grain & Seed Company, Springfield, Missouri, herein called the respondent, alleg- ing 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. The complaint and notice of hearing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices the complaint alleged, in substance, that the respondent terminated the employment of and refused to reinstate eight named employees because they joined and assisted the Union; that although on May 15, 1937, and all times thereafter, the Union was the representative of a majority of the re- spondent's employees in an appropriate unit, the respondent refused to bargain collectively with it; and that the respondent, by the afore- 9 N. L R. B., No. 101. 1157 1158 NATIONAL LABOR RELATIONS YOwitll mentioned acts and by distributing anti-union literature among its employees and by other acts, interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. The complaint further alleged that 14 named employees responded to a strike call made by the Union , because of the respond- ent's aforesaid unfair labor practices. ,On,May 5, 1938, the 'Regional Director duly postponed the hearing and granted the respondent an extension of time in which to answer the complaint. On May 9, 1938, the respondent filed its answer in which it admitted the material allegations concerning the nature and scope of its business , but denied the allegations of unfair labor practices. Pursuant to notice , a hearing was held on May 23 and 24, 1938, and June 1, 1938, at Springfield , Missouri, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union participated in the hearing and were rep- resented by counsel . Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties. During the hearing on May 23, 1938, counsel for the Board and counsel for the respondent entered into a stipulation setting forth facts concerning the nature and scope of the respondent's business. This stipulation was i•eceivecl in evidence without objection. On May 24, 1938, the hearing was adjourned indefinitely to allow the parties to negotiate concerning the terms of a stipulation in settlement of the case . On June 1, 1938, the hear- ing was reconvened ; the Trial Examiner granted a motion made without objection by counsel for the Board to amend the complaint and the charges to include the name of J. D. Armstrong among those allegedly discharged. The Trial Examiner subsequently granted the respondent's motion to withdraw its answer and to substitute a new answer in which all the allegations of the complaint, as amended, were achnitted. Thereafter, a stipulation in settlement of the issues, entered into on May 25, 1938, by the respondent , the Union, and counsel for the Board was received in evidence without objection by the Trial Examiner. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The above-mentioned stipulation in settlement of the issues pro- vides as follows : It is hereby stipulated by and between Lipscomb Grain and Seed Company, respondent herein, United Grain Processors Fed- eral Local No. 20692, a party herein, and the National Labor DECISIONS _ ND ORDERS 1159 Relations Board, that upon the record herein, and upon this stipulation, if and when approved by the National Labor Rela- tions Board, an Order may forthwith be entered by said Board, providing as follows : 1. Respondent, Lipscomb Grain and Seed Company, will cease and desist : . (a) From in any manner interfering with, restraining or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the National Labor Relations Act; (b) From discouraging membership in the United Grain Processors Federal Local No. 20692, or in any other labor organization of its employees: by discharging, demoting, threatening, or refusing to reinstate any of its employees, for joining or assisting United Grain Processors Federal Local No. 20692, or any other labor organization of its employees; (c) From in any other manner discriminating against any of its employees in regard to hire and tenure of employment, or any terms or conditions of employment, for joining or assisting United Grain Processors Federal Local No. 20692, or any other labor organization of its employees; (d) From attempting to bargain and bargaining individ- ually with its employees, and from drawing and giving effect to individual contracts of employment with its employees; (e) From distributing literature to its employees subversive to the National Labor Relations Act. 2. Respondent, Lipscomb Grain and Seed, Company, will, take the following affirmative action to effectuate the policies of the National Labor Relations Act : (a) Offer to Charles Bridges, Wess Fischer, E. D. Buckley, Joseph Barnes, Delmar Hayes, Clarence Shipman, Henry Her- ner, Hugh Wood, Jeff Brewer, immediate and full reinstate- ment to their former positions, without prejudice to any rights and privileges previously enjoyed by them; (b) Place William Witherspoon, Hubert Crabtree, J. D. Arm- strong, Walter Gardner, E. J. McMullen, Arch Jones, Hubert Mason, Herbert Walker, John Birenbaum, Bonnie Hannah, Floyd Gist, Hadley Copenhaver, Floyd Hunt, on a preferred waiting list for re-employment in accordance with their sen- iority rights; 1160 NATIONAL LABOR RELATIONS BOARD (c) Make whole to Hubert Crabtree, John Birenbaum, Bon- nie Hannah, Arch Jones, Delmar Hayes, E. D. Buckley, Charles Bridges, J. D. Armstrong and E. J. McMullen, by payment to them of a sum equal to that which they would normally have earned from the date of their discharge to the date of the offer of re-instatement, less the amount earned by them since their discharge, said amounts. being agreed upon and stipulated by the parties, as hereinafter set forth, payment to be made ,within ten days from the issuance of the Board Order : Hubert Crabtree--------------------------------- $640.00 John Birenbaum--------------------------------- 462.00 Bonnie Hannah__________________________________ 447.00 Delmar Hayes___________________________________ 498.00 Arch Jones-------------------------------------- 417.00 'E D. Buckley ----------------------------------- 461.00 Charles Bridges--------------------------------- 552.00 J. D. Arinstrong --------------------------------- 799.00 E. J McMullen---------------------------------- 305.00 (d) Make payment in the agreed sum of Two Hundred Dol- lars ($200.00) to the following employees : John Edwards, Wil- liam Witherspoon, Walter Gardner, Hubert Mason, Herbert Walker, Floyd Gist, Hadley Copenhaver and Floyd Hunt, pay- ment to be made within ten days from the issuance of the Board Order. (e) Bargain with the United Grain Processors Federal Lo- cal No. 20692, as the exclusive agent of the employees of the respondent, in respect to rates of pay, wages, hours of employ- ment, and other conditions and terms of employment, and when such an agreement is reached reduce same to writing to be operative for a definite term. (f) Post and keep visible in a prominent place in the office of the respondent's Springfield plant, for a period of thirty (30) days after receipt, a copy of the Order of the Board to be entered in this proceeding. It is further stipulated and agreed that after the making of said order by the National Labor Relations Board, said Board may submit, without further notice to the parties hereto, a con- sent decree to the United States Circuit Court of Appeals for the Eighth Circuit, which said decree shall provide for the affirmance and enforcement in full of each and every provision contained in the Order which it is hereinbefore provided that the National La- bor Relations Board may make herein; and the several parties hereto hereby consent to the entry of said decree by said Court of Appeals. DECISIONS AND ORDERS 1161 On June 3, 1938, the Board issued its order approving the- above stipulation, making it part of the record in the case, and transfer- ring the proceeding to the Board for the purpose of I entry of • a `deci - sion and order by the Board pursuant to the provisions of the stipula- tion. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a Missouri corporation, is engaged in the manu- facture and sale of feeds and other products, with its principal office and place of business at Springfield, Missouri. It also has plants located at Liberal, Irwin, Iantha, Sheldon, and Asbury, Missouri. This case is concerned with the respondent's operations at its Spring- field Plant. The raw materials used by the respondent in its operations are corn, mill feeds, flour, cotton seed meal, salt, soy bean meal, molasses, oyster shell, and alfalfa meal. During the year 1937 the respondent pur- chased and shipped to its Springfield Plant about 73,779,000 pounds of raw materials, of which about 40 per cent were shipped from points outside the State of Missouri. During the same year the respondent shipped from its Springfield Plant 1,100 carloads of finished products, of which about 28 per cent were shipped to points outside the State of Missouri. During the years 1935 and 1936 the out-of-State shipments amounted to about 45 per cent and 38 per cent of the total, respectively. We find that the-above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. IT. THE LABOR ORGANIZATION INVOLVED United Grain Processors Federal Local No. 20692 is a labor organ- ization affiliated with the American Federation of Labor, admitting to membership employees of the respondent at its Springfield, Missouri, plant. III. THE APPROPRIATE UNIT We find, as alleged in the complaint, that the employees of the respondent at its Missouri plant, exclusive of supervisory and clerical employees, salesmen, and watchmen,, constitute a unit appropriate for the purposes of collective bargaining, and that such unit insures to the employees the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 1162 NATIONAL LABOR RELATIONS BOARD IV. REPRESENTATION OF A MAJORITY WITHIN THE APPROPRIATE UNIT We find that on May 15, 1937, and at all times thereafter, a ma- jority of the employees in the appropriate unit designated the Union -as their representative for the purposes of collective bargaining; and- that-at all times thereafter,, the -Union was the representative for the purposes of collective bargaining of a majority of the respondent's -employees in the appropriate unit. By virtue of Section 9 (a) of the Act, therefore, it was the exclusive representative of all the respond- -ent's employees in the said unit for the purposes of collective bar- gaining in respect of rates of pay, wages, hours of employment, and -other conditions of employment. ORDER Upon the basis of the above findings of fact and stipulation and the entire record of the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Lipscomb Grain & Seed Company, Springfield, Missouri, shall: 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its -employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in the United Grain Processors Federal Local No. 20692, or in any other labor organization of its -employees by discharging, demoting, threatening, or refusing to reinstate any of its employees, for joining or assisting United Grain Processors Federal Local No. 20692, or any other labor organization ,of its employees; (c) In any other manner discriminating against any of its em- ployees in regard to hire and tenure of employment, or any terms or conditions of employment, for joining or assisting United Grain Processors Federal Local No. 20692, or any other labor organization of its employees; (d) Attempting to bargain and bargaining individually with its employees, and from drawing and giving effect to individual contracts of employment with its employees; (e) Distributing literature to its employees subversive to the National Labor Relations Act. DECISIONS AND ORDERS 1163 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Charles Bridges, Wess Fischer, E. D. Buckley, Joseph Barnes, Delmar Hayes, Clarence Shipman, Henry Herner, Hugh Wood, Jeff Brewer, immediate and full reinstatement to their former positions, without prejudice to any rights and privileges previously enjoyed by them ; (b) Place William Witherspoon, Hubert Crabtree, J. D. Arm- strong, Walter Gardner, E. J. McMullen, Arch Jones, Hubert Mason, Herbert Walker, John Birenbaum, Bonnie Hannah, Floyd Gist, Had- ley Copenhaver, Floyd Hunt, on a preferred waiting list for reem- ployment in accordance with their seniority rights; (c) Make whole Hubert Crabtree, John Birenbaum, Bonnie Han- nah, Arch Jones, Delmar Hayes, E. D. Buckley, Charles Bridges, J. D. Armstrong and E. J. McMullen, by payment to them of a sum equal to that which they would normally have earned from the date of their discharge to the date of the offer of reinstatement, less the amount earned by them since their discharge, said amounts being agreed upon and stipulated by the parties, as hereinafter set forth, payment to be made within ten days from the issuance of this Order : Hubert Crabtree----------------------------------------- $640.00 John Birenbaum----------------------------------------- 462.00 Bonnie Hannah ---------------------------------------- 447.00 Delmar Hayes------------------------------------------ 498.00 Arch Jones---------------------------------------------- 417.00 E. D. Buckley------------------------------------------- 461.00 Charles Bridges----------------------------------------- 552.00 J. D. Armstrong---------------------------------------- 79900 E. J. McMullen------------------------------------------ 305.00 (d) Make payment in the agreed sum of $200 to the following em- ployees : John Edwards, William Witherspoon, Walter Gardner, Hubert Mason, Herbert Walker, Floyd Gist, Hadley Copenhaver, and Floyd Hunt, payment to be made within ten days from the issuance of this Order; (e) Bargain with the United Grain Processors Federal Local No. 20692, as the exclusive agent of the employees of the respondent, in respect to rates of pay, wages, hours of employment, and other con- ditions and terms of employment, and when such an agreement is reached reduce the same to writing to be operative for a definite term ; (f) Post and keep visible in a prominent place in the office of the respondent's Springfield Plant, for a period of thirty (30) days after receipt, a copy of this Order.