Arbie Mineral Feed Co.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arbie Mineral Feed Co. and General Drivers and Helpers Local Union No. 790, affiliated with International Broth- erhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America. Case 18-CA-2735 of the Act will be effectuated by the imposition of a bargaining order. ORDER April 27, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 21, 1970, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Respondent filed timely exceptions, and a brief in support thereof, to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings,' conclusions,' and recommen- dations of the Trial Examiner, with the following addi- tion. The Trial Examiner found that Respondent's conduct required the issuance of a bargaining order, citing N. L.R.B. v. Gissel Packing Co. ' We agree. Respondent's pattern of unlawful conduct, as found by the Trial Examiner, was of such a nature as to have a lingering coercive effect. Therefore, use of traditional remedies is unlikely to ensure a fair or coercion-free election. We are persuaded that the authorization cards executed by a majority of the employees in the unit represent a more reliable measure of employee desire on the issue of representation in this case, and that the policies ' Respondent's exceptions directed to the credibility resolutions of the Trial Examiner are without merit. The Board will not overrule the Trial Examiner's resolutions as to credibility, unless a clear prepon- derance of all relevant evidence convinces us that they are incorrect. On the entire"record, such a conclusion is not warranted herein Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 2). 2 We adopt the Trial Examiner's conclusion that Breuklander was discharged for his union activity and that the reason given was pretextual, but in so holding we rely primarily on Respondent's refusal, on request, to make a nondnvmg position available to Breuklander, despite Respond- ent's undisputed need for additional production workers and Breuklander, despite Respondent 's undisputed need for additional production workers and Breuklander's previous satisfactory experience with Respondent as a production employee We reach this conclusion without adopting or utilizing the Trial Examin- er's standard, i.e., that Respondent's defense to Breuklander's discharge must be without flaw and relatively unassailable ' 395 U S 575 Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respond- ent, Arbie Mineral Feed Co., Marshalltown, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to Charles Wogan and Gerald Breuklander immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section entitled The Remedy. 2. Insert the following as paragraph 2(b) and reletter the subsequent paragraph's accordingly: "(b) Notify the above=named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces." 3. Substitute the following for the sixth indented para- graph of the notice: WE WILL offer to Charles Wogan and Gerald Breuklander immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of our discrimination against them. 4. Insert the followitg as the seventh indented para- graph of the Appendix: WE WILL notify Charles Wogan and Gerald Breuklander if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after dis- charge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Rela- tions Act, as amended (61 Stat. 136), herein called the Act, was heard at Marshalltown, Iowa, on July 22 and 23, 1969. The complaint, dated May 8, 1969, based upon charges filed and served on February 18, 1969, was issued by the Acting Regional Director for Region 18 (Minneapolis, Minnesota), on behalf of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board). 182 NLRB No. 24 ARBIE MINERAL FEED CO The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices by various specified coercive conduct, including its failure to bargain with General Drivers and Helpers Local Union No 790, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called the Charging Party or the Union), as the bargaining agent of the majority of its employees in an appropriate unit and by discriminatorily discharging its employees, Charles Wogan and Gerald Breuklander, thus violating Section 8(a)(1), (3), and (5) of the Act In its duly filed answer Respondent denied the commis- sion of any unfair labor practices Upon the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I RESPONDENT 'S BUSINESS At all times material Respondent has been an Iowa corporation engaged in the production and sale of animal feed , maintaining its principal offices in Marshalltown, Iowa During the year preceding issuance of the com- plaint Respondent in the course and conduct of its business shipped goods and materials valued in excess of $50,000 directly to points outside the State of Iowa At all times material herein Respondent has been an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION General Drivers and Helpers Local Union No 790, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES Union Activity In the fall of 1968, dissatisfaction having arisen among Respondent's truckdrivers regarding a change in their wage scale, someone asked Gerald Breuklander, a truck- driver of some 2 years' tenure with Respondent, if he could contact the Union As a result of a telephone call from Breuklander to the Union's business agent, Ivan McFarland, Breuklander and fellow driver Howard Sawyer visited the union office about November 1 and asked McFarland if he would try to organize Respond ert's drivers A meeting was arranged for Sunday, November 10, at the union hall In the interim Breuklan- der talked to employees about the matter Among them was production worker Charles Wogan who, when he learned about the union meeting, asked if he could attend it too The November 10 meeting was held as scheduled Wogan and one other production worker, Gilbert Mob- 147 ley,' attended along with several of the drivers At this meeting Wogan, Breuklander, and Mobley signed union authorization cards At the request of Wogan and Mobley it was decided at this time that the organizing effort would be directed to the entire plant rather than just to a unit of truckdrivers Another union meeting for the entire plant was sched- uled for November 17 About 20 employees attended this meeting McFarland discussed the things that the Union would try to get into a contract with Respondent He also had Wogan come up to the rostrum to act as a "sort of recording secretary" to make note of various things the men might bring up 2 McFarland also passed out authorization cards at this meeting Only one employee, James C Phillips, signed The rest preferred to "think it over" because they were afraid that "If they joined the Union they would lose all their overtime and would be cut to 40 hours, and would lose their profit sharing " It was at this meeting that Wogan took a supply of authori- zation cards which he attempted to get signed in the plant He was unsuccessful because "Everybody seems to be against it " Another union meeting was held around December 1 Just a few people attended-among them were Breuk- lander, Wogan, and Mobley 3 At this time McFarland indicated that they would "have to get the men up to the meeting or else give it up " On January 5, 1969, the next union meeting was held, attended by 12 to 14 employees Three people, Robert Shively, Gerald Breuklander's son, Terry, and Charles Hanne gan,4 signed cards at this meeting The next meeting was held on January 12 Not many employees attended Those that did said that the others "were afraid to come because they were afraid they would be fired if they were seen at the union office "I Among those attending were the two Breuklanders , the discharged Wogan, Larry Fisher, and John Whaley, Jr The latter signed an authorization card at this meeting By January 17, in addition to cards he had received from people who signed them in his presence at the union hall, McFarland had received a group of cards which had been solicited by Breuklander away from the hall and had been delivered to McFarland at the union office by Breuklander's wife With these cards in hand, on January 17 McFarland had a letter typed to Respondent requesting recognition as the bargaining agent of the Respondent's production and maintenance workers and truckdrivers The letter also offered to ' At this time Mobley was a rank and file employee During the last week of November he was promoted to the supervisory position of production foreman at a 40 cent per hour increase Y Several of the men apparently raised some question about Wogan s so acting He indicated to them in effect that if they wanted to take over the assignment they were welcome to it 3 Mobley s attendance at this meeting is somewhat unusual considering that he was now a supervisor " Hannegan s employment status is in issue and will be discussed later s Charles Wogan had been discharged on December i As indicated his discharge is alleged to be discriminatory within the meaning of the Act and will be discussed later 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submit the authorization cards of the employees for an impartial examination and verification of their authen- ticity McFarland took the letter and went to Respond ent's plant intending to deliver it personally to Respond- ent As to what happened when he got there he testified credibly and without denial as follows I went up to the window and asked the secretary if I could see Mr Jim Bagnall and she told me it was Mr Jim Bagnall standing beside me So I turned around and introduced myself and I tried to hand the letter of recognition to Mr Bagnall which he refused to accept, and I told him he should read it because I represented a majority of his people and I was asking for recognition, and he said he didn't believe it and (I) should take it to the National Labor Relations Board At this point McFarland returned to his office As to what happened then the parties stipulated as follows after Union Representative McFarland returned from the Company's offices he came back to his office and sent a letter to the Region 18 of the NLRB, Minneapolis, and sent along with that letter a copy of the representation petition which he has already filed and which Mr Wilson has put into evidence," and then a list of the people that he had authorization cards from, and the authorization cards which have already (been) put in evidence by the General Counsel, marked as General Counsel's Exhibit 2, and, further, that the cards were received by the Region 18 of the NLRB in Minneapolis on the morning of January 20, 1969 Interference, Restraint, and Coercion Larry Fisher, a reluctant witness' called by the General Counsel, testified that in mid-November 1968 as he was coming out of the breakroom" he overheard Charles Wogan tell Plant Superintendent Kenneth Penrod that he had "signed up" for the Union at its first meeting in reply to Penrod's inquiry of Wogan if he was a member of the Unions In his testimony Wogan corrobo- " Enigmatically the filing date shown on the RC petition is January 20 1969 The petition besides calling for a bargaining unit of all production and maintenance employees specifically included plant opera tors laborers truckdrivers warehousemen working foremen or lead men and excluded office clerical employees professional employees sales personnel guards and supervisors The description of the unit in the complaint does not specifically include truckdrivers but it is clear that Respondent does not question their inclusion in the unit since the RC petition included them and so did the Union s letter demanding recognition Moreover in the list of unit employees submitted by Respondent to the Board s Regional Office by letter on January 27 1969 truckdrivers were included ' On the stand Fisher admitted that he had not wanted to testify and had appeared at the hearing only after being subpenaed When asked by the General Counsel why he did not want to testify he answered I didn t feel I had anything to say that would be helpful for you or Mr Bagnall but like I told you the Company has been real good to me and I really appreciate it Also referred to as the lunchroom On cross examination Fisher was asked about his testimony on direct when he and Chuck and Penrod were talking He answered I warn t talking to them I was standing there by them which rated the fact that Penrod had asked him if he had joined the Union to which he had replied that he had signed a union card According to Wogan's version, however, he did not indicate to Penrod when he had signed the card and testified that this interrogation took place in the mixing room Fisher also testified about a discussion in the break- room in late November involving himself, Wogan, and Foreman Dick Moore10 as follows Well my best recollection, Chuck and I asked Dick what he thought of the union, and he told us, we asked his personal opinion of it, and he said, well, he has had dealings with unions before, and he thought as far as we were concerned, it wouldn't be too good, it was too small, not enough employees, and if the Union did get in, we would probably be losing a lot of our benefits like our Christmas bonus, you know, like our profit sharing and other things like that Moore also told them at this time that they "would probably get cut down to 40 hours "11 On cross-examina- tion Fisher admitted that Moore had not told them that they "shouldn't belong to the Union" and added that "he always said it was up to us guys whether we wanted to or not He said `I can't say either way about it "' Wogan corroborated the foregoing testifying in addi- tion that Moore said "that the way the Company felt about the Union they probably wouldn't like to go along with it " He also told the employees that the Company "would be cutting on the hours and the Christmas parties and the Christmas bonuses" and that the employees would be losing money in the long run Wogan also testified credibly and without denial about a conversation with Moore in the breakroom after the first union meeting as follows Dick asked me what happened at the meeting, and I told him that I signed a card, and saw it, and, then, he went on to tell us that the Union wouldn't do any good, that they would lose all the overtime and cut down on the profit sharing and several other things Gerald Breuklander (the alleged discriminatee herein) testified that he had had several conversations with Moore about the Union He described one in particular that occurred in the lunchroom in the presence of his son Terry, Robert Shively, young Whaley, Larry Fisher, and Robert Shafer According to Breuklander they were "just talking about the Union, what benefits it had " Moore did not think it had any and indicated that if was substantially in accord with his testimony on direct When asked later on cross whether it was Moore or Penrod that Wogan was talking to on this occasion he answered If I remember right it was Dick (Moore) he was talking to 11 At first Fisher limited the participants in this discussion to the above three Later he added Breuklander testifying if I remember right Jerry Breuklander was in there talking to Dick and I don t remember just all what happened because I wasn t paying any attention to it Fisher s lack of memory here and elsewhere in his testimony was indicative of his admitted reluctance to testify 11 At this time the plant was working a 48 hour week ARBIE MINERAL FEED CO. the Company found out that the employees "were push- ing the Union (they) would be fired for it." Moore also, said that he had had dealings with unions before and stated that unions "didn't give . . . any benefits" in a plant like Respondent's. According to Breuklander's further testimony Moore told him (apparently privately) that if the Company found out he was trying to get the Union in he "would wind up getting fired for it." In his testimony Breuklander admitted that he had made several efforts to get Moore to sign up with the Union. Robert Shively, another witness called by the General Counsel, testified that in late November 1968 as he was cleaning out the pellet mill on the night shift Moore came up to him and started talking to him about the Union. Moore told him that if the Union got in the employees would lose their overtime work. Shively also testified about a conversation with Penrod in January after Union Representative McFarland had sought recog- nition from Respondent as follows: I was over by the pellet mill again and Mr. Penrod called me up from what use to be the mineral room, which nobody was, present, and told me if I didn't quit talking about the Union we would be cut down to 40 hours and we wouldn't get no overtime, and I says we was pretty busy at the time, I said they can't get the feed out in 40 hours, and he said they would go to a third shift. Moore in his direct testimony admitted having had "discussions" with Fisher "about the Union activities at the plant" but claimed that Fisher initiated these discussions saying he wanted Moore's opinion "about the Union coming in." About what he told Fisher at this time Moore testified as follows: I told him that if the Union come in there was a possibility that we could lose some of our benefits, we could go down to a 40-hour week, but that doesn't mean that we will, and anything I did tell him I didn't want him to change his mind in any way, he still had to make up his own mind. It just was my own personal opinion. Although testifying that Breuklander had attempted to recruit him for the Union, Moore denied initiating or starting any discussions with Breuklander about the Union. He also denied telling Breuklander that he would be discharged if he was discovered pushing the Union. In his testimony Penrod answered in the affirmative when he was asked by Respondent's counsel if in the last 2 months of 1968 and early 1969 any of the employees "approached (him) to discuss the matter of a union at the plant." He testified that there were at least three such occasions involving mostly younger employ- ees who had not been "employed there too long." One of these12 was Robert Shively about which he testified as follows: Well, we was talking, I was trying to tell him, I didn't think we needed a union, it wouldn't help us any, we could lose this and lose that, I couldn't 12 The only one discussed by Penrod in his testimony 149 say that we would, maybe we would gain and maybe we wouldn't, but I wouldn't see where we would gain any. Penrod also denied ever having had any discussion with Wogan or Fisher that he could "recall." 8(a)(1) Conclusions On the basis of the foregoing testimony and consider- ing Fisher's obvious reluctance to testify to anything adverse to Respondent's interest (which tends to lend credence to anything he did so testify) I find that (1) Penrod coercively interrogated Wogan regarding his union membership; (2) Moore in late November threat- ened employees with loss of overtime, Christmas bonus- es, and other benefits if the Union got in;13 and (3) Moore made similar threats to Wogan after the first union meeting and also coercively interrogated Wogan as to what happened at that meeting. I also credit Shively's virtually undenied testimony that after the Union's demand for recognition Penrod threatened him with loss of overtime if the Union came in. Considering the threats of discriminatory action by Respondent as found above, I also find in accordance with Breuklander's testimony that Moore threatened that employees would be discharged if the Company found out they were pushing the Union. The complaint alleged that Respondent (1) advanced the date of its 1968 Christmas party, (2) advanced the time that it granted 1968 bonuses to its unit employees, and (3) granted pay increases to various employees in January 1969 all for the purpose of discouraging the employees' union activity. Evidence offered by Respondent that the date of the 1968 Christmas party was set almost a year previously clearly refutes (1) above. As for the other allegations the most that the evidence, does is to raise a suspicion that Respondent's purpose was as alleged. I shall make no finding of unfair labor practices on the basis of the foregoing. Discrimination 1. Wogan Charles Wogan worked for Respondent from July 1967 to December 5, 1968, when he was discharged. His union activity and the leading part he played in the union campaign have already been noted. One night in September 1968 when Wogan was on the night shift his wife came to the plant and informed him that they 11 I deem it immaterial whether Moore voiced his comments in the positive or the conditional or whether he qualified them as being his personal opinions Nor would the fact that Moore did not initiate the conversations about the Union insulate Respondent from the legal effect of any coercive comments Moore made therein Moreover, Moore's telling the employees that their belonging to a union was a matter of their own choice does not nullify or neutralize the coercive effect of the threats he had lust made If anything his comment in this respect had a tendency to accentuate the coerciveness of his remarks. In effect he was saying, "Its your choice if you want to be stupid enough to join a union and jeopardize the economic benefits you are enjoying in your employment " 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had to go out and get her car which she had left out on the highway between Des Moines and Marshall- town with a flat tire. According to Wogan's testimony Foreman Moore suggested that they could use the compa- ny truck and drive down to change the tire after the shift ended at 2 a.m.14 This they did, accompanied by Moore. Before they left the plant, Wogan filled the truck with gasoline from; the company pump. According to Wogan's further testimony, his wife's car was parked about 30 miles out of Marshalltown. When they got there they had to take the spare, which was flat, to a truckstop to be fixed. When they got back to the plant Wogan refilled the gas tank from the company pump to determine how much gas he had used and put the truck in the plant after Moore had unlocked the door. The next day, according to Wogan's direct testimony, he went to see Bagnall , to tell him that they had used the truck and to pay for the gasoline. This interview took place in the reception area. Bagnall did not like the idea of their having used the truck and indicated that he did not want it taken for such a purpose again. He also told Wogan that "it would be $7" for the use of the truck. Wogan did not have $7 on him .and Bagnall apparently said he would take it out of Wogan's check. On cross-examination Wogan testified that he thought the charge made for the use of the truck "was quite a bit" and told Bagnall so. Wogan also categorically denied on cross-examination that he had said that the Company had "cheated" him but he admitted that he had let it generally be known about the plant that he "didn't think it was fair that they would charge . . . that much" for the use of the truck. ' About this matter Bagnall testified that he told Wogan that his taking of the truck was a violation of company policy and that "nobody ever used the company trucks without permission." Bagnall also testified about a sec- ond conversation he had with Wogan about this matter as follows: Approximately 2 weeks later I learned that he had been informing the other plant personnel and the truckdrivers, as well, that we had been unfair with him on what we had charged him, for using the truck to go to Des Moines, and he had been making derogatory remarks about the company and me in particular and the management. Accordingly , Bagnall talked to Wogan again in the con- ference room and told him that he "was unhappy about what (he) had heard concerning the comments about management and the company" and told Wogan that he "wanted them to stop at once." At the end of the interview , according to Bagnall 's further testimony, after Wogan had turned around and was walking through the door , he said he "wouldn 't take the damn thing anyway." Thereafter Wogan's attitude did not improve. About the circumstances of his discharge on December 5, Wogan testified as follows: . . . On December 5 when I went to work, I had my check stub and we were looking at them, and Larry Fisher noticed that he had gotten paid $1 more than I did , and we got talking about it and Larry and Dick both said I should go up and see Ralph and see what had happened. So I went upstairs and I talked to Ralph about it, asked him if he could show me if they made a mistake or what happened, and he brought back my timecard and said if I could get any more time than what they got, they would pay me for it. I said, "that isn't what I asked you, I just asked you why they got more pay than I did." He didn't say, so I got up and went back to work, and on the way out Terry Breuklander and Jim Philips were setting there , they was going to see Ralph about something , and they asked if I found out anything . . . about why they got paid an hour more than I did . I said , "no, I think it is a bunch of crap,'," and I went on downstairs to go to work . . . then, I got a call that said I was supposed, to go back upstairs, and when I got up there they asked me to wait in the reception area and then they called me back to Mr. Bagnall's office and Ralph was there and Jim said because of my language and my poor attitude that they couldn't keep me around any more. According to Wogan's further testimony he was also told that since he was so friendly with Moore they would "just as soon (he) didn't come down here any more." He thereupon went to his locker followed by Bagnall who stood there and watched Wogan as he cleaned it out. About this matter Bagnall testified that when he saw Wogan walking out of Rich's office on December 5 he went in to see what had been the reason for Wogan's visit. About what he learned at this point Bagnall testified as follows: Chuck had come up to the office and accused the Company of cheating15 him out of 1 hour's pay. He demanded to see timecards of his foreman and Larry Fisher, and he was shown his own time- card and it was proven to him that the time was, that he was paid for the hours that he worked plus 4 hours off for evenings and dinner.16 According to Bagnall's further testimony up to this time Wogan had "previously accused the Company over a period of time of cheating " him. . . ." Citing as an example the truck incident. In its brief Respondent attacks the credibility of Wogan in some detail on the basis of his having testified that he saw his name and that of Breuklander heading a list of union members on Bagnall 's desk in mid- November 1968.18 Respondent also attacks Wogan's 15 On cross-examination Bagnall testified that the word "cheating" was not his but was the choice of Ralph Rich " Moore testified that Wogan asked him if it would be all right 1fl This was for the Christmas party. if he borrowed the truck and that he told Wogan that he thought On direct examination the word "cheating " was posed to the it would as long as he told Executive Vice President James Bagnall witness by counsel as part of his question. about it and made it right with him the next day 11 An analysis of the evidence Respondent offered on this point ARBIE MINERAL FEED CO. credibility on the question of the mileage he drove the truck the night he took it with Moore's permission to fix his wife's flat tire, and on the basis of Wogan's "remarkable memory as to names, dates, places" per- taining to the 8(a)(1) allegations in the case. As for the latter, his testimony about the Section 8(a)(1) aspects of the case was either undenied or almost entirely of a corroborative nature with other testimony offered by the General Counsel particularly that of Fisher whose reluctance to testify and resulting credibility has already been commented on. As for the former, there would appear to be a discrepancy of some 35 or 40 miles between the mileage Wogan estimated that he drove the truck and that shown by Respondent on the basis of actual map distances. "I In the last analysis there is little dispute as to the circumstances of Wogan's discharge and Respondent's reasons for it as I understand them. In this connection Respondent apparently contends that Wogan was dis- charged for (1) taking the truck without permission; (2) saying he "wouldn't take the damn thing again any- way" in front of a receptionist; (3) complaining to fellow employees that the Company was unfair to him in charging him $7 for the use of the truck;20 (4) running a mixer improperly thereby causing a motor to burn out;21 and (5) questioning a discrepancy between his pay and that of fellow employees who worked the same hours he did whereby he sought to be shown their timecards to compare with his own and that when his request was refused he commented to other employ- ees within the hearing of an office secretary that he thought the matter "was a bunch of crap." At the time of Wogan's discharge Respondent had no knowledge as to whether Wogan "had signed a union card or not," and further that "the first formal notice" that the Company received regarding the efforts of the Union to organize Respondent's employees was on January 17, 1969. Considering first Respondent's apparent claim that it had no knowledge of Wogan's union activity or interest at the time of his discharge my first observation is that neither a claimed lack of knowledge of Wogan's having "signed a union card" or a lack of "formal" notice as to the Union's campaign is really a denial of knowledge by Respondent of the union campaign and Wogan's part in it. However , assuming, arguendo, that Respondent by its limited denial is actually claiming a complete lack of knowledge regarding the union cam- paign and Wogan's part in it, I think that the evidence clearly shows that Wogan's testimony in this respect is not credible and I do not credit it 1B Wogan testified that his wife's car was "about 30 miles" out of Marshalltown and that he had to take the spare to be fixed at a gas station "about 2 miles away " Doubling both these distances as a round trip requires and adding the products together shows a total of about 64 miles that Wogan estimated he drove the truck that night Respondent claims he drove about 100 miles. 20 I credit Wogan's denial that he accused the Company of "cheating" him,, The evidence shows that in late October 1%8 Wogan had a mixer motor burn out on him for which Respondent did not reprimand more than to admonish him to be more careful in the future 151 is substantial enough to permit the opposite inference which I hereby draw. Thus we have credited testimony that Supervisor Moore was aware of Wogan's having signed a union card and presumably about what happened at the Novem- ber 10 union meeting as a result of his having asked Wogan about it. We also have Penrod learning in mid- November as a result of his interrogation of Wogan that the latter had signed a union card at the first union meeting. In addition to this knowledge legally attributable to Respondent it seems a reasonable infer- ence that when Mobley became a supervisor his newly acquired loyalty to Respondent would have resulted in a disclosure to Respondent of his intimate and first- hand knowledge of the union activity of the employees from its inception including that of both Wogan and the other discriminatee, Breuklander. Indeed, in effect Mobley admitted having made such a disclosure but claimed that it was not until January 6 that he did so. Having found that Respondent had knowledge of Wog- an's union activity at the time of his discharge let us now consider the merits. It is clear that an employer can discharge an employee for any reason or no reason at all without running afoul of the Act as long as the exercise of Section 7 employee rights is not involved. But where even part of an employer's motivation for discharge is grounded in opposition to an employee's Section 7 rights that discharge is discriminatory within the meaning of Section 8(a)(3) of the Act regardless of whether adequate independent cause existed for the discharge at the time. While it is not within my province or that of the Board to evaluate the sufficiency or adequacy of an employer' s reasons for discharging an employee, such evaluation is often required in weighing various aspects of a case. Thus it seems here that Respondent is relying on relatively innocuous conduct to impose the drastic penalty of discharge-which of course is Respondent's right if it is that kind of an employer. The trouble is that if Respondent is indeed such a strict disciplinarian type of an employer, the question is why was Wogan not discharged in September or early October when his dereliction was so much more serious than his relatively mild expression of dis- gust directed to a couple of fellow employees in answer to their inquiry some 2 months later. In late September or early October it appears that Wogan had taken a company truck without permission22 and, if Respondent's version is to be believed, thereafter accused the Compa- ny of cheating him in the amount it charged him for ZY There is no indication in the record whether or not Bagnall was initially aware of the fact that Wogan not only had his supervisor's permission to take the truck but his assistance also. However, that such is the impression that Respondent would create seems implicit in the following statement in Respondent 's brief: It should be noted that at the time the truck was taken and when Mr Bagnall reprimanded Charles Wogan, Mr Wogan did not state to Mr Bagnall that he had permission from Mr Moore to take the truck At the time the taking of the truck was reported to Mr Jim Bagnall , Mr Bagnall advised Mr Wogan that this was in violation of company policy and that nobody used the company trucks without permission from Mr Bagnall 152 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD using it In addition , when confronted about the matter Wogan responded directly to Respondent 's chief execu- tive with a remark hardly calculated to be polite This kind of conduct to a strict employer conceivably would be grounds for summary discharge 23 But Wogan was not discharged then Of course , at this time Wogan was not active in trying to get a union into the plant Then 2 months later , when Wogan was active on behalf of the Union, he is discharged for what clearly must be considered a most minor incident In my opinion the evidence fully supports the inference that Respondent was waiting for some slip by Wogan that would present the opportunity to discharge him and that the reason for Respondent ' s purpose was to have a pretext to conceal its antiunion motive I so find 2 Breuklander Gerald Breuklander started as a plant employee of Respondent in 1966 or 1967 and worked until January 24, 1969 , at which time he was discharged from his then position of truckdriver His union activities have been noted About what occurred on the job on January 21, 1969 , Breuklander testified as follows I left with a load of feed that morning and I stopped out at Schaeffer ' s truck stop and washed my windshield and one of the other drivers was out there , Ron Crouse , he was going west, too, and we run together at Carroll, and he had trouble with his windshield wipers, and we stopped at that rest area and I stopped to see if I could fix it , and I couldn 't and he was going to Internation- al, and he said as long as I was coming back that way that evening to stop and see whether he had got his truck fixed or not , and if he hadn't he wanted a ride back with me So I stopped and he was there , so on my last stop of hauling feed I got two cans of beer offered me When I got to Carroll I had one can of beer that I was drinking and I had one left and I offered him one and he didn't take it , and we just come back to Marshalltown According to Breuklander' s further testimony he got the beer at a farm on his last stop of the day After he and the farmer unloaded the truck the farmer brought the beer out It was a six pack He and the farmer drank four of them and because the farmer did not know what to do with the remaining two he told Breuk- lander to take them with him The following day, Wednesday , January 22 , Breuklan der "took another load of feed out and peddled it and came back in that night " When he got back there were no loading orders posted for him as there customarily were He asked Moore for an explanation but Moore said he did not know anything about it Breuklander then called John Lumsden , the dispatcher, Za It will be recalled that in addition to all this it was about this time that Wogan was also apparently guilty of having allowed the mixer motor to burn out by overloading it who said that all he knew about it was that Bagnall had told him to hold Breuklander ' s load Breuklander thereupon called Bagnall who told him to come in the next morning that he ' would talk about it " About what happened the next morning Breuklander testified as follows I went in to see Mr Bagnall and he explained to me how good my work record and stuff, that I had done a good job for him, but that they couldn 't keep me , he just had a report that I had been drinking in the truck , and he would give me the best recommendation that he could give in thew world for another job and that was it At this time Breuklander denied to Bagnall that he had been drinking in the truck He also asked Bagnall if he could be transferred back to the plant for work there since he could no longer drive a truck According to Breuklander ' s undenied and credited testimony Bag- nall ` said he would have to think it over and he thought it over a minute but that he couldn't do it, he said it was a poor time to let anybody go, but he just couldn't do it " He also ' said he would be going back on his word, or something to that effect" which Breuklander did not understand About an incident that occurred the previous summer Breuklander testified credibly and without denial as fol- lows I was in the tavern across the street and I went over to the plant for something and they had some feed that had to go out to some farm out there about 4 or 5 miles, and Jim Bagnall was downstairs, and Kenneth Penrod and Ralph Rich , and I was asked if I could take the feed and I told them I wasn 't in too good shape , I don't recall which one said "could you drive" or something like that, and I said "Yes," and so they loaded the feed on my truck and I called my wife and she went with me to deliver that two or three ton of feed, whatever it was Along this same line Howard Sawyer , a truckdriver of some 4 years' tenure with Respondent , testified credi- bly and without denial about an occasion one day in late 1967 when he was at the Carolina Tavern across the street from the plant having a few beers on his return from an all-night trip to Nebraska He had had four or five beers when he got a telephone call from Bagnall who wanted to know if he was in any condition that he "couldn 't drive a truck," Sawyer said, "No, sir, but I had a few beers " Bagnall wanted him to haul some soy beans from Des Moines and suggested he could get one load that day and finish hauling the rest later and that it was up to Sawyer as to when he hauled the subsequent loads According to Sawyer he not only hauled the imtial load that day but hauled two more loads finishing the assignment after the night shift had ended Bagnall testified that company policy does not permit drinking on the job which with respect to truckdrivers means while driving and unloading That the Respondent does not tolerate drinking while driving is well known to the drivers, according to Bagnall , including Breuklan- ARBIE MINERAL FEED CO der who was so informed when hired According to Bagnall's further testimony on direct examination, on a prior occasion he had discharged truckdriver Virgil Carter for drinking while driving On cross-examination of Bagnall it was brought out that Carter's discharge had occurred some 2 years previously when Carter "came in really loaded one night"24 after he had been warned about having liquor on his breath On redirect Bagnall further testified that some time during the sum mer of 1968 Breuklander came into the lockerroom with liquor on his breath on an occasion when his truck was in the garage Bagnall asked him if he had been driving the truck and Breuklander said, "No " Bagnall replied, "I am glad to hear that because we don't want you driving that truck if you had one drop to drink >f Conclusions as to Breuklander As in the case of Wogan I believe that the preponder- ance of the evidence in the record as a whole supports the inference that Respondent was relying on a pretext to mask its real antiunion motive in discharging Breuklan- der First, one must consider the leading part that Breuk- lander played in instigating and promoting the Union's organizing campaign Directly connected with this of course are the threats of reprisals made by Respondent to the employees about their participation in the union campaign including particularly the threat to Breuklander of the ultimate reprisal-that of the loss of his job In this posture of the evidence it would seem that any cause advanced by Respondent as the reason for Breuklander's discharge would have to be without flaw and relatively unassailable I do not believe that the reason given for Breuklander's discharge meets this requirement The difficulty with Respondent's defense is the double standard it applied to its policy regarding drinking by its truckdrivers Obviously when it suited Respondent's purpose the imbibing of a few beers was no impediment to its drivers operating its trucks on the public highways While there is a distinction between drinking beer while actually driving a truck and drinking it b6fore or between driving stints, the distinction lacks validity as far as Respondent's ethical or economic position here is con- cerned As for Carter's discharge it affords no particular support for Respondent since there is a vast difference between drinking a beer or two while working or driving and appearing for work as a driver or attempting to so work while "really loaded " Added to these considerations are Bagnall's protesta- tion to Breuklander at the time of his discharge that he was a good employee and would be given a good recommendation and his somewhat inconsistent refusal to consider Breuklander for a plant job even though Respondent apparently needed help as attested by Bag- 24 Oddly on direct examination Bagnall had testified that if a man came to work drunk he would be discharged but added that it just hasn t happened to my knowledge 153 nail's comment that it was a poor time to let anyone go and the subsequent hiring of two new plant employees Refusal to Bargain I The bargaining unit It will be recalled that on January 17 Union Represent- ative McFarland made a demand on Respondent for recognition as the bargaining agent of Respondent's production and maintenance employees and truckdri vers 25 Such a unit with the usual exclusions I find to be an appropriate bargaining unit within the meaning of the Act Respondent is in agreement as to the inclusion of 22 employees in the bargaining unit as of the time recognition was demanded by the Union 28 In addition to the agreed 22 the General Counsel would also include Charles Hannegan and Charles Wogan whose inclusions are opposed by Respondent On the other hand Respond ent contends and the General Counsel denies that John Lumsden should b& included in the unit 2 Hannegan Hannegan , called as a witness by the General Counsel, was a current employee of about 2 years' tenure with Respondent who testified that his job title was "mainte- nance working supervisor "27 As such his duties were to repair machinery and "keep the place running " He holds an electrician ' s license, can install and repair plumbing, and he does carpentry work He is responsible for the installation , repair , and maintenance of `two mixers, a pellet mill, shakers , sewing machines, automat- ic sacker," among other things All of his time is spent on these duties, according to Hannegan , 211 for which he is paid at an hourly rate of $3 40 He had his own workshop in the plant which contains work benches, a welder, a cutting torch , and tools He also has an office off the workshop where he keeps all of the electri cal equipment and supplies he has on hand Whenever he needs it, he has held which is normally supplied by Marvin Cross whose regular job is that 2 Quite apart from McFarland s oral demand Respondents refusal to accept the Union s letter of demand precludes any claim that no valid demand was made City Electric Company 164 NLRB 844 848 1 21 The evidence shows and I finSi the following 22 employees to be in the unit Terry Lee Breuklander Marvin Cross Ronald Crouse Lynn Finders Larry Fisher Mark Huisman Stanley Hunt Omer Keese Eugene Kinney David Long Robert Long James Phillips George Piper Howard Sawyer Robert Shafer Robert Shively Dewey Snyder Allen Stephens Gordon Kent Warren John Henry Whaley John William Whaley and Gerald Breuklander 2' Elsewhere he testified credibly and without denial that after the Union came into the picture he attended a few union meetings Then he became concerned about his job status and asked Ralph Rich just what his title was- a maintenance man or a supervisor? Rich informed Hannegan that he was a maintenance man 28 He so testified on direct It appears however from Bagnall s undenied and credited testimony that in addition to his mechanical ability he also is capable of operating all of the machines he maintains and as a result instructs othei employees how to use them In this connection he makes recommendations is to who is capable of operltmg the machinery 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of custodian-i. e., 'janitor. His method of getting assist- ance from Cross is simply to tell him that he needs Cross' help. If he needs more than one man to assist him at any given ' time he places a request for him to Supervisor Keith Penrod. He is responsible directly to Bagnall. While he never hires or fires, according to Bagnall's testimony he makes recommendations as to whom Respondent should or should not employ for a particular job which recommen- dations are followed. In this connection Bagnall named three employees Respondent hired on the recommenda- tion of Hannegan-Marvin, Cross, Dennis Hannegan, and Bill Collins.29 He also testified that Cross' pay was increased on Hannegan's recommendation. Apart from these broad assertions by Bagnall there was no other testimony or evidence in this connection. From the undenied and credited details supplied by Hannegan in his testimony regarding the foregoing, it would appear that the part that Hannegan played in them was negligible to say the least. Thus it appears that Hannegan had appealed to .Ralph Rich for another man to help him with the maintenance work because it "was piling up." So Respondent hired Bill Collins for Hannegan to train as his assistant. Hannegan did not know Collins before he was hired nor did he make any recommendation to management that Collins be hired. Hannegan's only part in the hiring as noted , was his request for someone to assist him because the work "was piling up." Subsequently, when it became apparent to Hannegan that Collins (who knew nothing about plumbing or electricity and had no special mechanical ability) "just wouldn't pan out for a maintenance man," he told his superiors so and Collins was laid off or quit-Hannegan could not remember. As for the details of Cross' hiring Hannegan testified as follows: Well, George Piper, the custodian, was retiring, so they needed a man to fill his place and I had heard about Marve through George, and that's how he come down to fill out an application. According to Hannegan's further testimony Piper had told him that Cross "would probably be a pretty good man for the job." He also testified that Cross filled out his application in Rich's office and when asked why Cross had filled out an application in Rich's office he answered "Because that's where you go to see about a job." Hannegan further testified that Cross is directly responsible to him and that if Cross wants a raise he asks Hannegan for it. Nevertheless Hannegan also testified that he did not set Cross' wage and that he did not know what Cross' rate was nor could he remem- ber when Cross last got a raise explaining that he did not "even remember how long he has been there now. I have my own work to take care of, not somebody else's." It also appears from Hannegan's testimony that 79 Bagnall also claimed that currently Respondent had "two new personnel working that were recently hired by him" (presumably Hanne- Piper trained Cross for his job working with Cross "for a couple of weeks." The foregoing constitutes the only details regarding Hannegan's connection with the hiring and employment of Collins, Cross, or Dennis Hannegan. Rich did not testify, and, as already indicated, Bagnall supplied no details whatsoever. On the foregoing evidence (including Rich's failure to confirm to Hannegan that he was a supervisor when Hannegan asked him just what his title was-"a maintenance man or a supervisor,"), I conclude and find that Hannegan was not a supervisor within the meaning of the Act. In my opinion what we have in the case of Hannegan is a highly skilled employee who simply exercises the control of a skilled worker over less capable employees and in no demonstra- ble sense shares the power of management. See Ross Porta-Plant, Inc., 166 NLRB 494. As pointed out by the court in N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4), cert. denied 359 U.S. 911, "[T]he employer cannot make a supervisor out of a rank-and-file employee simply by giving him the title and the theoretical power to perform one or more of the enumerated supervisory functions." Having found that Hannegan is not a 'supervisor within the meaning of the Act I include him in the bargaining unit. 3. Lumsden I agree with the General Counsel that Lumsden should not be included in the unit because he shares insufficient community of interest with unit employees. The evidence shows that his only connection with the unit employees is the limited function of routing the trucks. Otherwise he rarely leaves the upstairs office where he works at various duties among which is taking telephone orders. Unlike the unit employees he is on a salary and is under different supervision than the unit employees. Accordingly, I exclude him from the unit. Having found that Wogan was discharged in violation of the Act it is clear that he is to be included in the unit and I so find. City Electric Company, supra. Thus by adding Hannegan and Wogan to the 22 already included in the unit we have a unit composed of 24 employees. 11 4. The cards At the time McFarland demanded recognition from Respondent he had 14 authorization cards from employ- ees in the unit-a clear majority if the authorizations are considered valid. Respondent attacks the validity of the cards for various reasons. In its campaign to organize Respondent 's employees the Union reduced the initiation fee from $25 to $5. Even then four of the signers30 did not pay the $5 on signing. At least one of the four, Larry Fisher, claimed on the witness stand to have not paid because he changed his mind about joining the Union after gan) but that he didn't "even know their names" conjecturing 30 Larry Fisher, Eugene Kinney , Howard Sawyer, and John Whaley, 11 " that the name of one of them is Rose Sr ARBIE MINERAL FEED CO. 155 he signed the card. In this connection the bylaws of the Union provide as follows regarding dues and initiation fees: B. Initiation fees for membership in this organiza- tion shall be $25.00 dollars, provided, however, that such initiation fee may be waived or reduced in connection with a particular unit or industry or the organization of unorganized employees at the discretion of the Local Executive Board. It is Respondent's contention apparently that because the Union failed to show the specific action of the local executive board authorizing the reduction of the initiation fee from' $25 to $531 the offer of the $5 fee to the employees nullifies the cards. It seems to me that this is an internal affair of the Union over which Respondent can raise no issue regarding the validity of the cards. If Respondent's position is that whether duly authorized or not by the Union the reduction in the initiation fee from $25 to $5 nullifies the cards, it is mistaken. See Gafner Automotive & Machine, Inc., 156 NLRB 577, 578. As for the failure of some of the signers to pay the $5 at the time of signing I see no reason to invalidate the cards either. By its very terminology the fee is an initiation fee and its payment certainly can be deferred until the time that formal initiation ceremony is about to take place or even afterwards for that matter. Nor does the testimony of Fisher that he changed his mind about joining the Union after he signed the card invali- date it. The coercive conduct engaged in by Respondent here in opposition to its employees' rights under the Act could be expected to change their attitude about joining the Union, making such testimony incompetent to negate a loss of union membership or support. Cf. Patent Trader, Inc., 167 NLRB 842. Respondent also attacks a group of cards because the name of the Union was not filled in at the time of the signing. Even if the International's name did not appear on the cards here as it did (which was sufficient to avoid invalidation of the cards, see Glass Fiber Molding Co., 104 NLRB 383; Knickerbocker Plas- tics Co., 104 NLRB 514), it would seem that under the circumstances here there could be no question that the employees knew perfectly well what union they were signing authorization cards for.. Respondent's further contention that the card of James C. Phillips should not be counted because he, printed his name on it in the place where his signature should have been is also rejected. McEwen Manufacturing Com- pany and Washington Industries, Inc., 172 NLRB No. 99. Finally Respondent contends that the card of Stanley H. Hunt has not been properly identified for receipt in evidence and should not be included in the card computation. Hunt's card had been offered in evidence with a group of other cards that had been received by McFarland from Breuklander's wife. Over objection I received them on the commitment of the General Counsel that he would establish t,y other witnesses the actual signing of the cards. Breuklander testified that Hunt had given him a card that was already signed and filled out telling Breuklander that he "had been carrying it for a while," having filled it out for Hannegan. In his testimony Hannegan confirmed that he had signed up Hunt along with Howard Sawyer and Robert Long on January 6-the date appear- ing on Hunt's card. Later on during the same day, according to Hannegan's further testimony, he was called into the office and told by Bagnall that there was a tape recorder in operation and that everything said would be recorded. He was then told "that they were shocked to hear that one of their supervisors had filled out an application card fpr the union." He was'also told that he had no business joining the Union and that "they could fire him or take him to court." When he left the office he went downstairs and locked in his drawer the three signed cards he had obtained. When he saw the signers he gave them back their cards telling them that he "didn't have anything to .do with that now." Sawyer and Long tore their cards up. Hunt took his with him. On this evidence I conclude and find that Hunt's card was sufficiently identified for receipt in evidence and for use in computing the number of valid cards in possession of the Union when demand for recognition was made. In so ruling I am so mindful of my admonition to the General Counsel that I would not count any of the cards not identified as to the details of their signing. I believe, contrary to Respondent, that Hanne- gan's testimony considered with that of Breuklander meets this requirement. See McEwen Manufacturing Company, etc, supra. In any event even without Hunt's card it appears on the basis of the foregoing that with 13 valid authorizations on January 17 the Union repre- sented a majority of the employees in an appropriate unit and I so find. I further find that by Respondent's failure and refusal on and after January 17 to recognize the Union, Respondent refused to bargain in violation of Section 8(a) (5) of the Act. This conduct in the context of the other unfair labor practices by Respondent clearly requires the issuance of a bargaining order. Gissel Packing Co., Inc., et al., 395 U.S. 575. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY 31 At the hearing McFarland offered to produce the minutes of the executive board action regarding this matter "If he (could) find it They were not produced Having found that Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1), (3) and (5) of the Act, I shall recommend that it cease 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act I shall recommend that Respondent upon request , be ordered to bargain with the Union concerning rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement I shall also recom mend that Respondent offer Charles Wogan and Gerald Breuklander immediate and full reinstatement to their former or substantially equivalent positions and that they be made whole for any loss of pay from the dates of their discharges to the date of the offer of reinstatement less tlieir net earnings during that period Loss of pay shall be computed and paid in accordance with the formula adopted by the Board in F W Wool worth Company 90 NI RB 289, and with interest thereon at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co 138 NLRB 716 The unfair labor practices committed by Respondent involved conduct in derrogation of the principles of good faith collective bargaining The inference is thus warranted that Respondent maintains an attitude of oppo sition to the purpose of the Act with respect to the protection of employee rights in general Accordingly I shall recommend that Respondent be ordered to cease and desist from infringing n any manner upon the rights guaranteed in Section 7 of the Act Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following CONCLUSIONS OF LAW I Arbie Mineral Feed Co at all times material herein has been an employer within the meaning of Section 2(2) of the Act 2 General Drivers and Helpers Local Union No 790, affiliated with International Brotherhood of Team sters, Chauffeurs , Warehousemen and Helpers of America, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act 3 By interfering with restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (l) of the Act 4 By discriminating against it employees , as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act 5 By failing and refusing to bargain in good faith with the Union as the representative of all production and maintenance employees including truckdrivers employed by Respondent in Marshalltown , Iowa, exclud ing all office clerical employees , guards, professional employees and supervisors as defined in the Act (an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act), Respond ent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2 (6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding , I recommend that Arbie Mineral Feed Co , its officers , agents, successors , and assigns, shall 1 Cease and desist from (a) Discouraging membership of its employees in Gen- eral Drivers and Helpers Local Union No 790 affiliated with International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America, or any other labor organization , by discriminatorily discharging or in any other manner discriminating against them in regard to their hire, tenure of employment or any term or condition of employment (b) Refusing to bargain collectively with General Driv- ers and Helpers Local Union No 790, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , as the exclusive representative of the employees in the above unit (c) Illegally interrogating its employees about their union activities membership, or sympathies (d) Threatening its employees with loss of overtime, Christmas bonuses, jobs, or other reprisals because of their union activities (e) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self-organization , to bargain collectively through rep resentatives of their own choosing , or to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection , or to refrain from any or all such activities 2 Take the following affirmative action which I find will effectuate the policies of the Act (a) Offer to Charles Wogan and Gerald Breuklander immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole in the manner set forth in the section entitled "The Remedy " (b) Upon request , bargain collectively with General Drivers and Helpers Local Union No 790, affiliated with International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America, as the exclusive representative of Respondent 's employees in the appropriate unit described herein and embody in a signed contract any understanding reached (c) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Recommenced Order ARBIE MINERAL FEED CO. (d) Post at its plant in Marshalltown, Iowa, the attached notice marked "Appendix. "32 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.33 IT IS FURTHER RECOMMENDED that unless on or before 20 days from the receipt of this Decision the Respondent notifies said Regional Director, in writing, that it will comply with the ,foregoing Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. 32 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 31 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 18 , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " ' APPENDIX NOTICE To EMPLOYEES ' POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in General Drivers and Helpers Local Union No. 790, affiliated with International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminatorily discharging employees or in any other manner dis- criminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with the aforesaid' union as the exclusive bargaining representative of all production and maintenance employees including truckdrivers employed by us 157 in Marshalltown, Iowa, excluding all office clerical employees, guards, professional employees and supervisors, as defined in the National Labor Rela- tions Act. WE WILL NOT illegally interrogate our employees concerning their union activities. WE WILL' NOT threaten our employees with loss of overtime, Christmas bonuses, jobs, or other reprisals for engaging in union activities or joining the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the right to self-organization, to form, join, or assist the aforesaid Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. WE WILL offer Charles Wogan and Gerald Breuk- lander immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay suffered as a result of our discrimination against them. WE WILL upon request meet and bargain collec- tively with General Drivers and Helpers Local Union No. 790, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employees in the above- described appropriate bargaining unit, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. All our employees are free to become or remain, or refrain from becoming or remaining, members of the aforesaid Union, or any other labor organization Dated By ARBIE MINERAL FEED Co. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 316 Federal Building, 110 South Fourth, Minneap- olis, Minnesota 55401, Telephone No. 612-725-2611.