Anderson Elevator Co.

In the Matter of DAVID ANDERSON, HAROLD ANDERSON AND MARGARET ANDERSON, INDIVIDUALLY AND AS CO-PARTNERS, DOING BUSINESS UNDER THE NAME AND STYLE OF ANDERSON ELEVATOR COMPANY and FLOUR, FEED & GRAIN ELEVATOR WORKERS FEDERAL UNION #19140 (A. F. OF L. ) Case No. C-1766.-Decided January 0, 1941 Jurisdiction : grain storing industry. Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. ' Mr. Norman F. Edmonds, for the Board. Marshall, Melhorn, Davies, Wall cC Bloch, by Messrs. Leland L. Lord and Henry D. Bloch, of Toledo, Ohio, for the respondents. Mr. Clyde M. Valentine, of Toledo, Ohio, for the Union. Mr. Harold Weston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Flour, Feed and Grain Ele- vator Workers Federal Union #19140, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated November 2, 1940, against David Anderson, Harold Anderson and Margaret Anderson, individually and as co- partners, doing business under the name and style of Anderson Elevator Company, Maumee, Ohio, herein called the respondents, alleging that the respondents had engaged in and were engaging iri unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint,accompanied by a notice of hearing were duly served upon the respondents and the Union. Regarding the unfair labor practices, the complaint alleged, in substance, that on July 13, 1940, and at all times thereafter, the 29 N L It. B, No. 24. 128 DAVID ANDERSON 129 respondents refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, al- though the Union had been designated representative of a majority of such employees ; that on or about August 6, 1940, the respondents' grain elevator employees went out on strike because of the respond- ents' refusal to bargain collectively with the Union ; and that by refusing to bargain collectively with the Union, and by persuading their employees on July 13, 1940, and thereafter, to enter into indi- vidual contracts of employment with the respondents governing wages and other working conditions, by threatening George Restle, on or about July 21, 1940, with discharge because of his membership in and activity on behalf of the Union, by making similar threats to other employees, by advising their employees that strikers would never again be given work by the respondents, by engaging in espionage and by other acts, the respondents interfered with, coerced, and re- strained their employees in the exercise of the rights guaranteed in Section 7 of the Act. On November 27, 1940, the respondents filed their answer admitting the allegations of the complaint with respect to the nature of their business, but denying the averments of unfair labor practices. Pursuant to notice, a hearing was held in Toledo, Ohio, on Novem- ber 18, 19, 20, 26, 27, 28, and 29, 1940, before Howard Myers, the Trial Examiner duly designated by the Board. The Board and the respondents were represented by counsel and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the hearing, on November 29, 1940, a stipulation in settlement of the case signed by the respondents, the Union, and an attorney for the Board was introduced' in evidence. On December 19, 1940, the respondents, the Union, and counsel for the Board entered into an amended stipulation in settlement of the case. The amended stipulation provides as follows : It is hereby stipulated by and between David Anderson, Harold Anderson and Margaret Anderson, individually and as co- partners, doing business under the name and style of Anderson Elevator Company, herein called Respondents, and Flour, Feed and Grain Elevator Workers Federal Union #19140 (A. F. of L.), herein called the Union, and Norman F. Edmonds, Attorney for the National Labor Relations Board (the National Labor Relations Board will be hereinafter referred to as the "Board"), that: 1. The Respondents withdraw their answer and all motions , heretofore made and filed in this proceeding and admit the alle- 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gations of paragraphs 1, 2 and 3 of the complaint herein, which allege jurisdictional facts and that the Union is a labor brgani- zation within the meaning of the National Labor Relations Act. II. Respondents are partners doing business under the name and style of Anderson Elevator Company, having their office and principal place of business in Maumee, Ohio. Since-oh or about July 1, 1940 Respondents have been engaged in the busi- ness of buying, selling and storing various types of grain at their elevator located in Maumee, Ohio. This elevator has a capacity of 3,100,000 bushels. Since on or about July 1, 1940, approximately 3,000,000 bushels of grain have been stored at 'Respondents' elevator in Maumee, Ohio. Approximately one third of this grain was purchased outside of the State of Ohio and shipped by rail and truck to Respondents' elevator in Mau- mee, Ohio. Since on or about July 1, 1940 Respondents have sold and shipped, approximately 350,000 bushels of grain from their elevator. Approximately 300,000 bushels of this grain was shipped to points outside of the State of Ohio. In the normal operation of Respondents' business, it is estimated that approxi- mately 75 percent of all the grain purchased and stored at Re- spondents' elevator in Mauinee, Ohio will be sold and shipped to points outside of the State of Ohio. III. All parties having been duly served with the Complaint, Notice of Hearing, and Second Amended Charge, waive their right to hearing and the making of findings of fact and conclu- sions of law by the Board, as set forth in Section 10 (b) and Section 10 (c) of the National Labor Relations Act. IV. It is agreed that this Amended Stipulation may be filed with the Chief Trial Examiner of the Board and when so filed, this Amended Stipulation, together with 'the Complaint, Notice of Hearing and the Second Amended Charge shall constitute the record in this case. V. All individual contracts or agreements of employment en- tered into between Respondents and their employees are hereby cancelled and terminated, subject to all rights and benefits that may have accrued to such employees up to the date of the signing of this Amended Stipulation; however, such employees may enter into individual contracts or agreements of employ- ment with the Respondents, provided they give notice in writing to the Respondents of their desire to enter into such contracts or agreements within 15 days from the date of the posting of the notice (referred to in paragraph 2 (e) hereof) of the cancel- lation of these contracts. No individual contracts or agreements will be entered into with any of such employees after the expira- DAVID ANDERSON 131 tion of the 15 day period. Nothing herein contained shall be construed to prevent Anderson Elevator Company from entering into lawful individual contracts or agreements of employment with other of their employees. VI. Respondents hereby agree that they will not discourage membership in the Union or any other labor organization of their employees by discriminating in regard to hire and tenure of employment or other terms or conditions of employment. VII. The Parties hereto agree that the Board upon the basis of the record in this case may make the necessary findings of fact to establish jurisdiction and enter the following Order: ORDER Upon the basis of the record in this case, an Order may forth- with be entered by the Board providing as follows : 1. The Respondents shall not : (ti) Interfere with; restrain or coerce in aiiy manner, any of their employees in the exercise of their rights guaranteed un- der Section 7 of the National Labor Relations Act; or coerce, intimidate, persuade, or urge any of their employees to enter into individual contracts of employment with them governing wages and other working conditions; - (b) Enter into any individual contracts or agreements of em- ployment with any of their employees which will in any manlier restrain, limit, prohibit, or put a premium in any way on the exercise of an employee's right to strike. - (c) Enter into any individual contracts or agreements of em- ployment with any of their employees which will not assure such employees of their freedom to exercise their rights as guaranteed in Sectio117 of the National Labor Relations Act. 2. The Respondents shall: - (a) Offer, to John Long and George Cunningham immediate and full reinstatement to their former or substantially equivalent positions without prejudice to the former rights or privileges previously enjoyed by them; (b) Place each of the employees listed below, who make writ- ten application for employment within 15 -clays from the date of the posting of the notice referred to in paragraph 2 (e) below and for whom employment is not now available, on a preferred list to be offered employment as the need for employees arises in the operation and maintenance of its elevator, feed mill and marine leg, in addition to those presently employed or having seniority therein. 4i ;00 2--42-N of 21)-10 - 132 i DECISIONS OF NATIONAL LABOR RELATIONS BOARD Preferred List Lawrence Culbertson Leo Hoen- Win. Hoen Melvin Gallant Chas. Simpson Marion Vaughn Fred Madden Albert Pack Ray Overmeyer ' Geo. Hart (c) In order to effectuate the policies of the National Labor Relations Act pay over to the individuals listed below the amounts set opposite their names : George Restle------ -------------------------------- $635 64 Herbert Vogel 1-------------------------------------- 528.80 Romaine DeStatte--------------------------------- 200 00 Robert -DeStatte----------------------------------- 200 00 Melvin Gallant -------------------------------------- 100 00 Provided, however, that if Melvin Gallant decides at his option not to make application for employment as provided in para- graph 2 (b) above he shall be paid an additional sum of $100. (d) Immediately cancel and terminate all individual contracts or agreements of employment entered into between Respondents and their employees subject to all rights and benefits which may have accrued to such employees to the date of such cancellation and termination, provided however such employees may enter into individual contracts or agreements of employment with Re- spondents which do not violate the provisions of this Order, if such employees give notice in writing to Respondents of their desire to enter into such contracts or agreements within fifteen (15) days from the date of the posting of the notice referred to in paragraph 2 (e) hereof. Nothing herein contained shall be construed to prevent the Respondents from entering into lawful individual' contracts or agreements of employment with other of their employees. (e) Immediately post and 'keep visible on their bulletin board adjacent to the time clock for a period of sixty (60) days notices advising their employees that Respondents will not engage in any of the practices prohibited in paragraphs 1 (a) through 1 (c) above (such notice to contain the specific provisions of Section 7 of the National Labor Relations Act) and will take the affirmative action set forth in paragraphs 2 (a), 2 (b)' and 2 (d) above. DAVID . ANDERSON 133 VIII . It is understood and agreed that the entire agreement is contained within the terns of this Amended Stipulation and that there is no verbal agreement of any kind which varies, alters or adds to this Amended Stipulation, and that compliance by the Respondents with the foregoing Order shall be a final and com- plete disposition of the allegations set forth in the Complaint in the above entitled matter, and that the Respondents shall not be compelled to ,reinstate or place on a preferred list to be offered employment any persons other than those listed in paragraphs 2 (a) and 2 (b) hereof. - IX. It is further understood and agreed that this Amended Stipulation is subject to the approval of the Board and shall become effective immediately upon'the granting of such approval. X. In the event an Order of the Board is entered iii accord herewith, all parties consent to the entry by the appropriate Cir- cuit Court of Appeals, upon application without notice to the parties, of a decree enforcing an Order of the Board in the above form and waive their right to contest any application by the Board for the entry of such a decree. XI. It is understood and agreed that in the event this Amended Stipulation is not approved by the Board as written, the pro- visions hereof, including any and all waivers herein made shall be null and void and shall be without prejudice to the respective claims of the parties hereto and the parties shall be relegated to the position they were in immediately prior to the execution thereof. On December 30, 1940, the Board issued its order approving the amended stipulation , making it part of the record, and transferring the proceeding to the Board for the purpose of entry of a decision and order by the Board. - Upon the. above stipulation and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS David Anderson, Harold Anderson and Margaret Anderson are partners doing business under the name and style of Anderson Ele- vator Company,1having their office and, principal place of business in Maumee, Ohio. Since on or about July 1; 1940, the respondents ,have been engaged in the business of buying, selling and storing vari- ous types of grain at their elevator located in Maumee, Ohio. During this period, approximately 3,000,000 bushels of grain have been stored in the'respondents' elevator, about one-third of which was purchased outside the State of Ohio. During this same period, the respondents 134 DECISIONS OF NATIONAL LABOB RELATIONS BOARD have sold and shipped approximately 350,000 bushels of the grain stored in their elevator; about 300,000 bushels of which were shipped to points outside the State of Ohio. In the normal operation of the respondents' business, it is estimated that approximately 75 per cent of all the grain purchased and stored at the respondents' elevator in Maumee, Ohio, will be sold and shipped to points outside the State of Ohio. The respondents admit that they are engaged in interstate commerce within the meaning of the Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact, amended stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that David Anderson, Harold Anderson and Margaret Anderson, individually and as co-partners, doing business under the name and style of Anderson Elevator Company, their agents, successors, and assigns : 1. Shall not : (a) Interfere with, restrain or coerce in any manner, any of their employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act; or coerce, intimidate, persuade, or urge any of their employees to enter into individual contracts of employment with them governing wages and other, working conditions ; (b), Enter into any individual contracts or agreements of employ- ment with any of their employees which will in any manner restrain, limit, prohibit, or put a premium in any way on the exercise of an employee's right to strike; (c) Enter into any-individual contracts or agreements of employ- ment with any of their employees which will not assure such em- ployees of their freedom to exercise their rights as guaranteed in Section 7 of the National Labor Relations Act. 2. Shall : (a) Offer to John Long and George Cunningham immediate and full reinstatement to 'their former or substantially equivalent posi- tions without prejudice to the former rights or privileges previously enjoyed by them; (b) Place each of 'the employees listed below, who make written application for employment within 15 days from the date of the posting of the notice referred to in paragraph 2 (e) below and for whom employment is not now available, on a preferred list to be offered employment as the need for employees arises in the operation DAVID ANDERSON 135 and maintenance of its elevator, feed mill and marine leg, in addition to those presently employed or having seniority therein. Preferred List Lawrence Culbertson Leo Hoen Wm. Hoen Melvin Gallant Chas. Simpson Marion Vaughn Fred Madden Albert Pack Ray Overmeyer Geo. Hart (c) In order to effectuate the policies of the National Labor Rela- tions Act pay over to the individuals listed below the amounts set opposite their names : George Restle------------------ ------------------------ $635 64 Herbert Vogel------------------------------------------ 528 80 Romaine DeStatte-------------------------------------- 200.00 Robert DeStatte---------------------------------------- 200.00 Melvin Gallant----------------------------------------- 100.00 Provided, however, that if Melvin Gallant decides at his option not to make application for employment as provided in paragraph 2 (b) above he shall be paid an additional sum of $100. (d) Immediately cancel and terminate all individual contracts or agreements of employment entered into between Respondents and their- employees subject to all rights and benefits which may have accrued to such employees to the date of such cancellation and termi- nation, provided however such employees may enter into individual contracts or agreements of employment with Respondents which do not violate the provisions of this Order, if such employees give no- tice in writing to Respondents of their desire to enter into such con- tracts or' agreements within fifteen (15) days from the date of the posting of the notice referred to in paragraph 2 (e) hereof. Nothing herein contained shall be construed to prevent the Respondents from entering into lawful individual contracts or agreements of employ- ment with other of their employees. (e) Immediately post and keep visible on their bulletin board adjacent to the time clock for a period of sixty (60) days, notices advising their employees that Respondents will not,engage in any of the practices prohibited in paragraphs 1 (a) through 1 (c) above (such notice to contain' the specific provisions of Section 7 of the National Labor Relations Act) and will take the affirmative 'action set forth in paragraphs 2 (a), 2 (b) and 2 (d) above.