Benson Wholesale Co., Inc.

National Labor Relations Board - Board Decisions

May 11, 1967

164 N.L.R.B. 536 (N.L.R.B. 1967)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benson Wholesale Company, Inc. and Retail,
Wholesale and Department Store Union,
AFL-CIO
Benson Wholesale Company, Inc. and Elsie
Cumi Vaughn. Cases 15-CA-2718, 2718-1, and
2718-3 and 15-CA-2738.
May 11, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 7, 1966, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging 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. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint, as amended, and recommended
dismissal of those allegations. Thereafter, the
Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision, and
briefs in support thereof.
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 connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Benson
Wholesale Company, Inc., Geneva, Alabama, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN , Trial Examiner: This consolidated
complaint ' pursuant to Section 10(b) of the National Labor
Relations Act (herein called the Act), alleges that Benson
Wholesale Company , Inc. (herein called Respondent or
Company), violated Section 8 (a)(1),(3), and (5) of the Act, in
that in the course of an organizational campaign by Retail,
Wholesale and Department Store Union , AFL-CIO
(herein called the Union), it threatened, coerced, and
restrained its employees in the exercise of rights
guaranteed by Section 7 of the Act, discriminatorily
discharged four employees, and refused to bargain with
the Union. By answer duly filed, Respondent admitted
certain allegations of the complaint, but denied the
commission of any unfair labor practice.
A hearing on the issues raised was held before me at
Geneva, Alabama, on April 12 through 15, 1966, at which
time all parties were given full opportunity to adduce
relevant testimony, to examine and cross-examine
witnesses, to argue orally on the record, and to submit
briefs. Oral argument was waived. Briefs submitted by the
General Counsel and Respondent, respectively, have been
duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses while
testifying, I make the following.
FINDING OF FACT2
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Facts
1. Employees organize ; Union demands recognition which
is refused
Respondent is engaged at Geneva , Alabama, in the
operation of a warehouse which supplies groceries , frozen
foods, drugs, and related items to about 20 Pigley-Wigley
and Dixieland retail food stores located in Alabama,
Florida, Georgia , Tennessee , Mississippi , and Louisiana.
In September ,3 at a social gathering, Respondent's
employees discussed and decided to seek union
representation . Leading proponents of this movement
were Leon Holland , Jr., and Robert J. Stewart . Pursuant to
arrangements made by Stewart and some fellow
employees , John L. Parker, an International
representative of the Union , met with a group of
Respondent 's employees the evening of September 30. At
this meeting 27 employees signed authorization cards.
Parker also gave Holland some blank cards which the
latter was to get signed by employees not in attendance at
the meeting . The following day Holland obtained five such
cards, which he forwarded to Union Agent Parker, and
which the latter received on October 4.4 Each of these 32
' Issued February 28, 1966, and amended March 25 and
April 6, 1966, and is based on four charges In Case 15-CA-2718,
the charge was filed October 8, 1965, in 15-CA-2781-3, on
November 12, 1965, and in 15-CA-2718-1, on December 22,
1965 In Case 15-CA-2738, the charge was filed November 4,
1965
2 No issue of commerce or labor organization is presented The
complaint alleges and the answer admits facts which establish
these allegations I find those facts as pleaded.
' This and all dates hereafter mentioned are 1965 , unless
otherwise stated
4 Among the cards Holland forwarded to Parker was that of
Clarence Helms (G.C Exh 10d), which does not bear Helms'
signature Helms testified, however, that the card was given to
him by Holland, that he placed on the card all the handwritten
material appearing thereon; that he intended to sign it but
overlooked doing so; and that he returned it to Holland On these
facts, I find Helms' card to be a valid designation of the Union,
unless, as Respondent contends all cards are invalid because
Holland and Stewart, alleged supervisory, participated in the
organizational activity The supervisory status of Holland and
Stewart will be hereafter discussed
164 NLRB No. 75
BENSON WHOLESALE CO.
cards lists the classification of the employee as
"Warehouse" or "Warehouseman."
On October 1, Company President Benson received a
telephone call from Union Representative Parker. Parker
told Benson that a majority of the Company's employees
had joined the Union and authorized it to seek a contract;
that the Union's majority status could be established by a
card check, or by a Board election. Benson told Parker
that he did not know whether a union was the best thing
for his employees, and invited Parker to come to see him.
Parker told Benson that he would either call on him or
write a letter.5
On October 4, Parker wrote Benson a letter, which in
pertinent part reads:
This letter is a follow-up of our conversation on
'October 1, 1965, at which time I informed you that a
majority of your employees in the warehouse had
joined our Union, and requested a meeting to discuss
a contract.
I also informed you of several ways we could
determine majority status, you declined but offered to
meet with me sometimes when I was in Geneva.
This is the context of our conversation on the date
mentioned above.
I have this day petitioned the NLRB in New
Orleans, La., and am certain they will handle this
from their office.
On the same day Parker sent a representation petition to
the Regional Office, which was received and filed in that
office on October 5. The unit set forth in the petition was,
"All warehouse employees including truckdrivers
[excluding] office clericals, salesmen, guards and/or
watchmen and supervisors as defined in the Act." (Case
15-RC-3223.) The Board's files in that case, of which I
take official notice, show that a copy of the
aforementioned petition was sent by the Regional Office to
Respondent on October 5, together with a letter stating the
Board's procedure in representation cases. It is
reasonable to infer, as I do, and indeed as Respondent
admits, that the copy of the representation petition was
received by Respondent no later than October 7.6
In the meanwhile, on October 1, after his telephone
conversation with Union Agent Parker, Benson decided
that the matter might be more serious than he first
thought, and that he should seek legal advice.
5 Based on the testimony of Parker, Benson's testimony is
substantially to the same effect
6 The file in the representation case (Case 15-CA-3223) shows
that on October 5, the Regional Office sent a letter addressed to
Respondent at Geneva, Alabama, enclosing a copy of the petition
filed by the Union, on October 5 I take official notice of the
contents of the aforementioned file, and from this infer and find
that Respondent received the aforesaid letter and petition no
later than October 7.
On June 13, 1966, 1 issued an order advising the parties that I
proposed to take official notice of the Board's file in the
representation case and to draw the aforesaid inference, and
pursuant to the provisions of Section 7(d) of the Administrative
Procedure Act (5 U S 1006(d)), gave any party in interest an
opportunity to show the contrary On June 23, 1966, Respondent
filed a response contending that my order of June 13, 1966, should
be rescinded The response did not deny that Respondent had
received a copy of the representation petition on or about
October 7 On July 8, 1966, 1 issued a further order, advising the
parties that if need be, and on appropriate showing, I would
reopen the record to permit any party to show the contrary of the
fact and the inference I proposed to draw therefrom, or to permit
such a showing to be made in any other appropriate manner, and
fixed an extended period of 10 days for such showing. On July 18,
537
Accordingly, he made an appointment to meet with his
counsel, Powell, in Atlanta on Monday, October 4. At this
meeting it was decided that Olson, an attorney in Powell's
office, would be at Respondent's warehouse the following
day. When Olson arrived on October 5, Respondent had
received Parker's letter of October 4, quoted above, and
he drafted Benson's reply thereto which is dated
October 5. Respondent's letter, after referring to the
telephone conversation of October 1,7 contained the
following:
Your letter does not specify which classification
would be included in the unit that you alleged to be
appropriate. We feel that this is a matter that must be
determined by the National Labor Relations Board.
After a determination had been made of the
classifications to be excluded, we will insist that an
election be conducted by secret ballot in which our
employees have an opportunity to express their
preference. Therefore, we will not recognize your
Union as the representative of our employees without
a determination of the appropriate unit and an
election conducted by secret ballot. We therefore
suggest that if you are serious in your contention, that
you proceed with the petition you have filed with the
National Labor Relations Board.
Also on October 5, Parker sent a further letter to
Respondent, which was accompanied by a list of 32
employees who, according to the letter, were
representatives of the Union in the warehouse for the
purpose of getting other employees to join the Union The
32 employees whose names appeared on the list were the
employees from whom Parker had received authorization
cards, as set forth above. Although the record does not
show the date Respondent received this letter, it is a fair
inference that it was so received on October 6, and
certainly no later than October 7 In any event, that
Respondent received Parker's letter of October 5, and that
it made no reply thereto, is admitted. The parties
stipulated that the representation petition filed by the
Union on October 5, as above stated, was withdrawn by it
on January 12, 1966.
2. The alleged interference, restraint, and coercion
Benson admits that about mid-August he heard rumors
"that there was possibly some union activity at the
1966, Respondent filed a further response Again Respondent did
not deny that it had received a copy of the representation petition
by October 7, it merely contended that it is improper for the
undersigned to look at the file in the representation case, or draw
the inference above referred to This contention I reject as clearly
devoid of merit That the inference I propose to draw is in accord
with the actual facts is apparent from the following, appearing at
page 4 of the brief which Respondent filed with me "The same
day, October 5, 1965, at 12 30 p.m , the Union's petition was filed
in the Board's Regional Office in New Orleans, Louisiana
The next day, October 6, 1965, or the following day October 7,
1965, the employer received a copy of the petition "
7 With respect to this prior conversation, the letter stated that
Benson had told Parker "we have a good-faith doubt that an
uncoerced majority of our employees in an appropriate bargaining
unit have freely and unequivocally designated your organization
as their representative " This is obviously the lawyer talking I
have serious doubt that Benson had ever heard, much less used,
such language in his conversation with Parker, and even Benson
does not claim that he used such language According to Benson's
own testimony, all he told Parker was that he did not believe that
Parker represented the Union, or that the Union represented the
employees, and that the telephone was not the place to discuss
such matters
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse." Although Benson claims that he did not
believe the rumor, and that it was not a "serious matter in
[his] thinking," he admits that he "possibly did" mention
the matter to General Manager Cotter. While Cotter
claims that his first information concerning union activity
among Respondent's employees came from another
source, he admitted that such information reached him
about mid-September, and that he discussed it with
Benson. Cotter also admitted that when he learned of the
union activity among the employees, he told Warehouse
Manager Adair and Assistant Manager Clemmons to keep
their ears open and let him know what they heard. The
evidence shows that beginning immediately after it
learned of the union activity among its employees, and
continuing virtually to the time of the hearing in this
matter, Respondent interfered with, restrained, and
coerced its employees in an effort to dissuade them from
their support of the Union. The details of these incidents
follow:
a. About mid-September, Warehouse Manager Adair
asked employee Pollard if the latter had heard any of the
employees talking about the Union. Pollard replied that he
had not. Adair then asked that Pollard let him know if he
(Pollard) heard any union talk, and added that he had been
instructed by Cotter to fire any employee that talked about
the Union On October 2,8 Assistant Manager Clemmons,
having heard about the union meeting on September 30,
asked Pollard what the employees were trying to do.
Pollard replied that the employees had decided to
organize . Clemmons then asked if Pollard had signed a
card and what he thought about the Union. Pollard replied
that he had signed up, and thought the Union was a good
thing. Clemmons then asked Pollard if the employees
would settle the matter if the Company agreed to
discharge Warehouse Manager Adair Pollard replied that
the employees were not trying to get anyone fired.9
b. In the latter part of October, Pollard learned that the
Company had run a credit report on him . He went to
Cotter and protested this action , saying he "did not
appreciate it." Cotter told Pollard that there was nothing
he could do about it, that "the first thing those lawyers told
him to do was to run a credit report on everybody that
worked for the Company."10
c. On the afternoon of October 2 (a Saturday),
Clemmons went to the home of employee Davidson and
" The day after Benson 's telephone conversation with Union
Agent Parker
0 Based on the credited testimony of Pollard Clemmons
admitted that he discussed the Union with Pollard , and that such
discussion was after the meeting on September 30, when most of
the cards obtained by the Union were signed , that in this
conversation he told Pollard that he (Clemmons ) had heard that
all the employees were joining the Union By inference Clemmons
denied that he asked Pollard whether he had signed a union card
and what Pollard thought about the Union Although Adair
admitted that he asked Pollard if the latter had heard any
employees talking about getting a union, he denied making the
remainder of the statements attributed to him by Pollard I do not
credit Adair or Clemmons , particularly in view of Cotter's
admission that he asked both Adair and Clemmons to find out
what they could about the Union and report back to him
10 Based on the credited testimony of Pollard Cotter admitted
that he had a conversation with Pollard in which the latter
protested that the Company had run a credit report on him
According to Cotter, he told Pollard that the credit report was run
because the Company was considering the formation of a credit
union to help needy employees borrow money at reasonable
interest rates, and that the credit reports would be needed in
connection with such operation . Cotter contends that the only
asked the latter if he "had been to Daleville."11 Davidson
admitted that he had attended that meeting. Clemmons
then asked what the employees wanted Davidson replied
better working conditions, and expressed dissatisfaction
over "a lot of backriding." Clemmons then asked if
Davidson thought the employees would change their
minds "if the man who was doing the backriding was
eliminated," and if the men would consider getting out of
the Union if the Company promised some change.
Davidson replied that he did not think any of the men
would change their minds. In this conversation Clemmons
also told Davidson that he was sorry the men decided to
sign the union cards before discussing the matter with the
company officials, and that in view of the fact that it had
been started, he (Clemmons) did not know whether the
Company would proceed with plans for expansion of the
warehouse and its equipment.
d. About November 10, Cotter spoke with Davidson
while the latter was at work. Cotter first spoke of improved
work procedures, and then asked Davidson "how the
union activity was going." Davidson replied that it was "as
strong as it had ever been." Cotter then told Davidson of
the plan to enlarge the warehouse, to carry tobacco items
which the Company had not heretofore sold, that someone
would be needed to look after such an operation, and if
Davidson would do what he could to get the men to change
their minds about the Union, the Company would
appreciate it and Davidson might get more money and a
supervisory job in time to come 12
e. On Sunday morning, October 3, Warehouse Manager
Adair went to the home of employee McGowan allegedly to
check on the condition of a dog McGowan was keeping for
him. Adair brought up the subject of the Union and asked
McGowan what the employees wanted. When McGowan
stated that the employees wanted more pay and fewer
hours, Adair replied that employees would never get it;
that before Benson would accept the Union, he would
"close the doors." Adair also told McGowan that he
(Adair) "didn't appreciate" the employees going to the
union meeting without letting him know, and that if the
Union got in, he (McGowan) would not be in charge of the
drug room, he would just be working there. 13
f. In the early afternoon of Sunday, October 3,
Assistant Warehouse Manager Clemmons went to the
home of employee Leon Holland and told the latter that he
reference to "union " was "credit union ," and that while he may
have told Pollard that the Company had been advised to get credit
reports, he did not "say anything about lawyers " There is no
evidence that a credit union was ever put into operation I credit
Pollard
" Where the union meeting had been held on September 30
z Based on the credited testimony of Davidson As stated
supra, I do not credit Clemmons Cotter admitted that he
discussed expansion plans with Davidson , and told the latter that
when these plans were accomplished additional supervisors
would be needed who would be selected from the existing work
force Cotter denied that he promised Davidson more money or a
supervisory job if he would withdraw from the Union Under the
circumstances , I credit Davidson
" Based on the credited testimony of McGowan, Adair
admitted that he talked with McGowan about the Union at the
latter 's home on October 3, that he told McGowan the employees
did not need a union, and pointed to all the benefits the employees
were receiving without a union He denied telling McGowan that
Benson would close down if the Union came in He did not deny
telling McGowan that the latter would not be in charge of the drug
room , but would only be working there, if the Union came in To
the extent that Adair 's testimony conflicts with that of McGowan,
I credit the latter
BENSON WHOLESALE CO. 539
"wanted to talk about the mess we was in " When Holland
asked "what mess," Clemmons replied, "well the Union."
Clemmons then asked Holland, if the Company fired
Warehouse Manager Adair, and made some promises,
would Holland withdraw from the Union? Later that day
employee Holland received word that Print Shop Foreman
Jack Helms, an admitted supervisor, wished to see him.
Together with employees Robert Stewart, James McNeil,
Benjamin Shirah, and former employee I. D. Griffin,
Holland went to Helms' home where Helms joined them in
the car. Helms told the group that he had a 3-hour
conversation with Cotter that morning concerning the
reason the employees desired union representation, and
that he had told Cotter the problem was Warehouse
Manager Adair; and that Cotter had asked him (Helms) to
talk to the employees and find out if the employees would
drop the Union if Respondent discharged Adair and
promised to improve working conditions. Helms also
stated that Cotter wished to talk with the employees about
the matter.14
g. On October 5, the day after he conferred with
counsel in Atlanta, Respondent discharged Holland and
Stewart, the two most active proponents of the Union.
Respondent concedes that both men were discharged
because they refused to abandon their union activities, but
contends that the discharges did not violate the Act,
because Holland and Stewart were supervisors.15 That
afternoon President Benson read a prepared speech to the
assembled employees.16 Benson first referred to the
efforts of the Union to organize the employees, to which he
expressed his opposition and his purposes to "use every
legal means to keep it out." Benson then told the
employees that " union 's [sic] exist on trouble"; that their
only purpose is to get the dues from employees, and
added, "I don't think this union can do any of you any good
and can only lead to trouble for everybody." Benson then
told the employees that Holland and Stewart, whom he
referred to as supervisors, had been discharged that
morning because they refused to cease their activities on
behalf of the Union.
h. Ray Neal,Ausley, who had signed a union card,
worked for Respondent in the warehouse. Prior to their
marriage on December 8, his wife Sarah (who was then
Sarah Howell) worked in the accounts payable division in
Respondent's office. At the time of the events hereafter
related, Respondent was aware that Ray and Sarah were
engaged to be married, and it was giving some
consideration to waiving its rule that a husband and wife
could not both work for the Company. On October 7,
Cotter had Sarah come to his office and, among other
things, told Sarah that the men in the warehouse were
trying to get a union ; that he had fired Holland and Stewart
because as supervisors they could not take part in the
Union and they refused to get out of it; that he wanted to
see Ray out of the Union, and since she probably had more
influence over him than any other person, he was asking
her to prevail on Ray to abandon the Union; that if Ray was
interested in getting out of the Union, he should see him
(Cotter), or Personnel Manager Wood and they would tell
him how to go about it so that no one would know it. At
Sarah's request, Cotter telephoned the drug room so that
Sarah could arrange to have lunch with Ray that day.
Later that afternoon, Cotter again sent for Sarah and
asked whether she had seen Ray and what the latter had
said. Sarah told Cotter that Ray said he wanted to think
about the matter, and Cotter told her to keep trying to
persuade Ray to abandon the Union. About a week later,
Cotter stopped Sarah as she was leaving work and asked
what success she was having in persuading Ray to
abandon the Union. Sarah told Cotter that Ray had refused
to discuss the matter with her. Several weeks later, Cotter
again had Sarah come to his office. On this occasion he
asked how Sarah's father felt about the Union. Told that
her father was against it, Cotter asked Sarah if she would
have her father urge Ray to abandon the Union. Sarah
agreed to and did discuss the matter with her father, but
the latter declined to interfere. On November 4, employee
Jerry McGowan was discharged because allegedly as a
supervisor he refused to abandon his union activities."
That afternoon Cotter again engaged Sarah in
conversation, telling her that Respondent had made
McGowan a supervisor because a supervisor could not
participate in union activity, and that McGowan had been
discharged because he had been caught talking to "an
outside man," and that she should tell Ray about
McGowan's discharge, and that he should be "thinking
about it." "s
i. In the month of October, Malcolm Ausley, foreman of
the truckdrivers, an admitted supervisor, went to the home
of his brother Wilmer Ansley, the father of employee Ray
Neal Ausley. Malcolm asked Wilmer to get Ray to
withdraw from the Union, saying that he had helped Ray
get his job at the warehouse, and that "the big wheels ...
were on his back about it." Malcolm added that all Ray
need do was go "to Lawyer Kelly's and sign a card or a
paper and get out and nobody would know nothing about
it." Wilmer agreed to and did communicate Malcolm's
request to Ray. On November 4, the day Jerry McGowan
14 Based on the composite of the credited testimony of Holland,
Stewart, McNeil, Shirah, and Griffin Helms' testimony is
substantially in accord, except that, according to Helms, he only
asked Holland whether he would talk about the matter to Cotter,
and that Holland agreed to do so if he had a witness To the extent
that Helms' testimony is in conflict with that of the
aforementioned witnesses, I do not credit it
iz For the sake of continuity, I defer to a subsequent section
hereof a discussion of the supervisory status of Holland and
Stewart
16 The full text of the speech is in evidence as an exhibit, and
will not be set forth here
i' McGowan's discharge is alleged in the complaint to have
been in violation of Section 8(a)(3) of the Act His supervisory
status is hereafter considered
'" Based on the credited testimony of Sarah Ausley Cotter
admitted that he talked with Sarah Ausley on several occasions
about Ray and the Union As to some of the details of these
conversations he corroborates Sarah Ausley, as to others he said
he had no recollection Cotter denied that he urged Ausley to
prevail on Ray, or have her father prevail on Ray to abandon the
Union, and claimed that his only request to her was to urge Ray to
vote for the Company in the election I do not credit Cotter In the
first place, if Cotter's only purpose was to urge Ray to vote against
the Union he could have, and I beheve would have, talked to Ray
directly Secondly, his testimony is inconsistent with
Respondent's admitted union animus and its course of conduct as
revealed by this record Thirdly, at the time of these
conversations, no election had been scheduled, indeed none was
ever scheduled And finally, I am not unmindful of the fact that
Ray, as the record shows , is still employed by Respondent, and
that when Sarah Ausley testified in this proceeding she must have
done so with the realization that her testimony might incur the
displeasure of her husband's employer, and place his continued
employment, and therefore her own livelihood, in jeopardy She
would not have done so, I am convinced, unless she felt impelled
to tell the truth
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discharged, or on the following day, Malcolm again
went to Wilmer's home and told the latter that McGowan
had been discharged, and that Ray was "next to be fired if
he didn't get out of the Union." Wilmer communicated this
statement to Ray.19
j. In the early part of October, President Benson
approached employee McNeil at his work station and
asked McNeil to get some of the men together and prepare
a list of what the employees wanted; that he would be
reasonable about it and was sure the men would be.
Several days later, as McNeil was preparing to leave his
work in the warehouse, Cotter approached and stated that
he (McNeil) could lead the men and that he should get out
over the weekend and see what he could do about getting
the men to drop the Union.2°
k. During the week of October 10, Personnel Director
Wood had Jerry McGowan come to the rear platform of the
warehouse. There Wood stated that he (Wood) wanted to
tell McGowan how he could get his union card back, and
that it would not take over 30 minutes . Wood also told
McGowan that if he (McGowan) made the first move, the
other employees in the drug room, where McGowan
worked,)would follow him, and asked McGowan to talk to
other employees about getting out of the Union. McGowan
told Wood that he wanted a few days to think it over.
Several days later Wood again sought out McGowan and
asked if the latter had changed his mind. McGowan told
Wood that he had decided not to get out of the Union.21
Approximately 10 days later , McGowan was called into
an office where President Benson , General Manager
Cotter, and Assistant Warehouse Manager Clemmons
were present. Cotter first referred to the discharge of
Holland and Stewart because they were allegedly
supervisors who refused to abandon their union activity,
and then told McGowan that additional supervisory
positions had been created, and still others would be.
McGowan was asked if he wanted a job as "supervisor,"
Cotter stating that in such a position Mc Gowan could not
participate in union activities. McGowan stated that he
would like the job because it would pay more money. Later
11 Based on the credited testimony of Wilmer Ansley Malcolm
Ausley admitted that he visited his brother, and that the Union
and Ray's connection therewith were discussed He denied that
he made the statements attributed to him by Wilmer Ansley I do
not credit his denials
20 Based on the credited testimony of McNeil Benson, on
direct, testified that "he had no conversation with [McNeil] about
the Union." On cross, after first saying that it was McNeil who
made statements about the Union, Benson admitted that
"perhaps I did make some statements [ to McNeil ] about the
Union, or with reference to the Union " Cotter denied that he
asked McNeil or any other employee to use his influence to get
employees out of the Union, but admitted that he told McNeil that
the latter was influential with other employees According to
Cotter, the only thing he told McNeil was that the Respondent
would like to have McNeil and other employees vote for the
Company . To the extent that the testimony of Benson and Cotter
conflicts with that of McNeil, I do not credit it
21 Based on the credited testimony of McGowan Wood
admitted that he had a conversation with McGowan concerning
withdrawing from the Union , at the time and place indicated by
McGowan, but testified that he went to the back platform where
he met McGowan only because he received word that McGowan
wanted to see him, and that it was McGowan who asked how he
could get his union card back It is significant that Wood admits
that the conversation concluded with McGowan stating that he
would let Wood know what he decided about withdrawing from
in the day, Cotter approached McGowan in the latter's
work area and told him that while McGowan could talk
employees out of the Union, he (Cotter) could not, and
adding that he knew that one employee, at least, would
follow McGowan.22 On November 4, McGowan was
discharged admittedly because he refused to abandon his
activities on behalf of the Union.
1. As heretofore stated, Respondent discharged Holland
and Stewart on October 5, because they refused to cease
their union activities. Later that afternoon, employee
Shirah was called into the office of Warehouse Manager
Adair. Present, in addition to Adair, were Personnel
Manager Wood, and General Manager Cotter. Cotter told
Shirah about the discharge of Holland and Stewart, and
offered him Holland's job with a 20-cent hourly increase in
pay, which Shirah accepted. In this conversation Cotter
told Shirah that if the Union could be put off for a year,
Respondent could defeat the efforts of the employees to
obtain union representation. Shortly thereafter Shirah
attended a union meeting . The following day Shirah was
called into President Benson 's office and asked why he
had attended the union meeting the preceding night and
what had transpired there. Benson also told Shirah that as
a supervisor the latter could not attend union meetings,
and Shirah has not done so since.23 Also during the month
of October, General Manager Cotter summoned Shirah to
his office and asked the latter if there was anybody in the
warehouse he (Cotter) could get to talk to all the boys and
settle the matter of the Union. In this conversation, Cotter
stated that several employees had withdrawn from the
Union and gotten their cards back.24
in. On October 28, the Company gave a dinner for
certain of its employees.25 Employees present were Shirah
and Kirkland, who had replaced Holland and Stewart,
respectively, and McGowan, Free, and Shiver. Cotter told
these employees that they were being made supervisors in
particular departments: Shirah and Kirkland in the
shipping unit ; Shiver in the frozen food and dairy unit;
Free in the receiving unit ; and McGowan in the drug room
unit . The employees were also told that they would not
have to punch a timeclock and would get a weekly salary
the Union This would seem unnecessary if, as Wood testified,
McGowan was asking how he could get his union card back
Wood's course of conduct is consistent with that pursued by
Cotter and Benson, as I above found To the extent that Wood's
testimony is in conflict with that of McGowan, I credit the latter
22 Based on the credited testimony of McGowan Cotter, when
he testified, was only asked one question concerning his
conversation with McGowan, namely, whether he had "ever
instructed Jerry McGowan to talk any employee into withdrawing
from the Union," to which question Cotter answered No " I do
not regard this as a complete denial of the statements attributed
to Cotter by McGowan To the extent that it is a denial, I do not
credit it
21 Respondent contends that Shirah became a supervisor
within the meaning of the Act when he assued the job formerly
held by Holland The General Counsel contends that the attempt
to invest Shirah with supervisory status was a subterfuge This
issue will hereafter be dealt with
14 Based on the credited testimony of Shirah, who was
employed by the Respondent at the time of the hearing in a
position which Respondent contends is supervisory in character
Benson, though testifying after Shirah, was not asked about and
did not deny the statements attributed to him by Shirah Although
Cotter denied that he made the statements attributed to him by
Shirah, I do not credit his denials
2', Management officials attending this meeting were Cotter,
Wood, and Clemmons
BENSON WHOLESALE CO. 541
of $100, rather than an hourly rate, which would be an
increase in pay.26
Each employee was given and signed a formal job
description of his duties which described the individual as
being the "supervisor" of, and having "direct control and
authority over all employees in his particular crew."27
Each of these employees except Kirkland testified that
after signing the aforesaid job description there were no
changes in their duties, and that they continued to do the
same work, in the same manner as they had at all times
previous; and that they never hired, fired, or made any
effective recommendations with respect thereto. They did,
however, testify to the following incidents, upon which
Respondent places considerable reliance as showing that
supervisory authority was conferred: (1) Shiver testified
that shortly after October 28, he told Assistant Warehouse
Manager Clemmons that he wanted a full-time man,
instead of a part-time one; that several days after
Clemmons brought a man and asked Shiver "to talk to
him"; after doing so Shiver told Clemmons that he wanted
the man, and the man came to work the following day.
(2) Shirah testified that Personnel Manager Wood had
informed him the two warehouse crews were unequally
balanced as to experienced help and directed that one of
the more experienced men in Shirah's group be
transferred to Kirkland's group, and one of the lesser
experienced men in Kirkland's group be transferred to
Shirah's group; that he (Shirah) selected the man that was
to be transferred out of his group and agreed to take the
man that was selected for transfer from Kirkland's group.
(3) Free testified that he was asked to talk with two men
the Company was considering hiring, that he did so, but
made no recommendation, and both men were hired; that
he did recommend that one employee in his group be given
a 10-cent rather than a 5-cent hourly rate increase, and
that this was done. (4) McGowan testified that after
October 28, he recommended that an employee be
transferred from the shipping crew to the drug room crew,
and that such recommendation was disapproved.28
to Shiver testified that prior to being placed on the weekly
salary, his weekly earnings at an hourly rate were generally $70 to
$80 McGowan testified that with overtime his weekly earnings
when on hourly rate were in excess of $100 Payroll stubs issued
to Shirah show that in the 3 weeks prior to being placed on weekly
salary his earnings, at an hour rate of $1 75, were $108 73,
$139 56, and $138 92 Free testified that his hourly rate was $1 65,
and that he worked and was paid for overtime, but he did not state
whether such earnings were more or less than $100 weekly
Kirkland did not testify
27 The job description signed by McGowan read as follows
DRUG ROOM SUPERVISOR
Employee has complete supervisory control of all
employees assigned to the Drug Room unit
By virtue of this responsibility the supervisor has the
authority to interview and recommend the hiring of new
employees, the authority to recommend the discharge of
unsatisfactory employees , the authority to carry out
disciplinary action, and the responsibility to see that
Company policies are adhered to in the supervisors
particular unit
The supervisor also has the authority to recommend raises
for individuals under his supervision
Responsible for all merchandise received and sent out of
the drug room
Supervise the pulling of orders and designates the
employee to pull a particular section of an order
Designates the slot that the incoming merchandise will be
placed in
Responsible for the complete drug room inventory and for
the physical layout of the merchandise
Supervises the unloading of trucks , the sending out of,
n. Prior to February 8, 1966, Respondent had no formal
funeral leave policy, employees being permitted to take
time off for that purpose, without pay. By letter dated
February 8, 1966, addressed "To all Company
Employees," Respondent announced a funeral leave
policy, effective February 15, 1966, pursuant to which
permanent full-time employees would be granted leave of
2 days with pay in the event of a death in the immediate
family.29 The leave was to be computed on the basis of an
8-hour day at the employee's regular rate of pay. Also in
February 1966, Respondent admittedly granted a general
wage increase to all employees involved. The only
evidence in the record concerning this wage increase is
the fact that it was given.30
o. On March 24, 1966, General Manager Cotter made a
speech to the assembled employee S.31 Cotter referred to
the hearing in this matter, scheduled for April 12, and that
many of the employees would be, called to testify, probably
to identify the union cards "which you signed." After
telling the employees that if called they should testify
truthfully, Cotter stated:
Many employees have told us that they were told the
purpose of the card was to get an election and that
this is the only reason they signed the cards.
Then, after telling the employees that cards obtained on
the representation that their only purpose was to get an
election would not be valid authorizations , and that such
information would be helpful to Respondent in the defense
of this case, Cotter concluded by stating:
In the event if you were told that the purpose of the
card was to get an election and this was reason [sic]
you signed it, I would appreciate your signing the list
that will be available in you [sic] department.
Although, as noted above, Cotter told the employees that
Respondent had been advised by many employees that
they were told that the only purpose of the union card was
to get an election, he admitted that no employee had given
him such information at any time prior to March 24,
1966.32 Cotter also testified that with the advice and
completed orders, the stocking and pricing of all
merchandise
Supervises the working up of damaged merchandise and
the shipment of this merchandise back to the proper
company
Confers with salesmen on the inventory of their goods in
the Drug Room Unit and of the damaged [sic] incurred to the
merchandise furnished by their Company
Supervises the clean-up of the Drug Room area
Performs related duties as required
The job descriptions signed by Shirah, Kirkland, Free, and Shiver
were virtually identical with the appropriate changes in language
required for the different jobs
L" The General Counsel contends that the five employees who
signed the job descriptions on October 28, and Bobby Seay who
was designated a supervisor on December 15, to succeed
McGowan who was discharged on November 4, had never been,
and were not thereby invested with supervisory status, and that
the attempt to confer such status was merely a pretext designed to
remove from the unit employees who were among the strongest
supporters of the Union This issue will hereafter be discussed
t" Immediate family was defined as husband , wife, mother,
father, sister , brother, or child
;0 The General Counsel contends that the wage increase and
funeral leave policy were violative of Section 8(a)(5) and (1) of the
Act
" The full text of the speech was received as an exhibit.
't Thirty- two union cards were received in evidence as having
been properly authenticated Thirteen of these were proven by
the employees who signed the cards None were asked what, if
anything , they were told about the purpose of the card
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistance of counsel, he drafted the speech he made to
the employees on March 24, 1966.33
3. The 8(a)(3) allegations
The General Counsel contends that Leon Holland,
Robert Stewart, William J. McGowan, and Elsie Cumi
Vaughn were discharged because of their activities or
suspected activities on behalf of the Union. As heretofore
stated, Respondent admits that it discharged Holland,
Stewart, and McGowan because of their union activity, but
contends that no violation of Section 8(a)(3) resulted,
because each was a "supervisor " within the meaning of
the Act. The only facts, therefore, that need be considered
in connection with their discharge, are those which bear
on their status as supervisors , which facts I now set
forth.34
a. Leon Holland
Holland had worked for Respondent continuously since
July 1956. Initially he worked as a laborer, but after about
18 months was assigned to the warehouse as a selector or
picker. The warehouse is divided into several sections or
departments, including frozen foods, drugs, and groceries.
The employees in the grocery section of the warehouse are
divided into two crews , each consisting of approximately
six "selectors" or "pickers," a checker, and a loader. On
October 5, Holland was the checker in one crew and
Stewart the checker in the other. Customer orders, after;
being processed in the office, are forwarded to the
warehouse manager's office, where they are stacked in the
order of receipt. The selector or picker takes the oldest
order, and selects from the storage place in the warehouse
the groceries called for by the order. The selector puts the
merchandise into a so-called "buggy" that runs on a
conveyer, pulled by a mechanical chain, which takes the
buggy to the loading dock. As the buggy passes the frozen
foods, dairy, and drug departments, merchandise from
those departments, destined for the same customer, is
added thereto. When the buggy reaches the loading dock,
the checker checks the contents of the buggy against the
invoice to make certain that the order has been accurately
filled; price-marks all merchandise from the grocery
department; provides the necessary trading stamps and
advertising material; and forwards the buggy to the loader
who is charged with properly placing the merchandise on
the right truck and in such a way as to be accessible for
unloading at a particular stop. At the time of his discharge,
Holland's hourly rate of pay was $2.35 The selectors in his
crew were paid an hourly rate which varied from $1.30 to
$1.50. The loader was paid $1.35 an hour. Holland filled
out daily work cards showing the time spent in each
category on the reporting form , always filling in his time
under the category entitled "Outbound checking" and
making no entries in the column entitled "Supervision."36
Respondent does not contend that Holland had the
authority to hire or fire. The chief basis for its contention
that Holland had supervisory authority is that he was
charged with and did responsibly direct the function of
filling customer orders and seeing that the merchandise
was properly loaded on trailers for transportation to the
retail stores . The factors upon which Respondent relies in
support of its contention are basically (1) that Holland for a
period of time carried a key to the warehouse, though he
has not done so since about 1960; (2) that Holland has at
times initialed timecards of employees in his crew to
correct an error thereon, or the failure to punch in or out;
(3) on at least one occasion when he was unable to find
anyone with higher authority, Holland authorized a
member of his crew, who claimed to be unable to work, to
punch out and leave for the day; (4) his crew frequently
worked late hours, or reported for work earlier than the
normal 7 a.m. reporting hour, and that before 7 a.m., or
after 6 or 7 p.m ., no other representative of management
was present at the warehouse ; (5) because of his
knowledge of the workload, and his experience with
respect to the time required to accomplish Respondent's
policy to promptly fill and ship all orders, Holland kept the
men working until this was accomplished , and told the
selectors and the loader in his crew what time to report for
work the following day; (6) when a new employee was
hired for the shipping crew, he would be taken to Holland
and told that he was to work for the latter, and that it was
Holland 's job to train the man; and (7) that beginning
sometime in 1960 or 1961, Respondent began paying an
incentive bonus to certain supervisory employees, and that
such a bonus was, for a period, paid to Holland. This bonus
was paid quarterly, based on profits. About 1963, because
it was felt that payment of a bonus to an hourly employee
might present problems under the overtime provisions of
the Fair Labor Standards Act, the bonus was abolished as
to Holland, and his hourly rate increased to compensate
for the loss. At this time, according to President Benson,
Holland was told that the elimination of the bonus had no
effect on his duties , being simply an adjustment in wages
in lieu of the bonus.
" As additional violations of Section 8(a)(1) of the Act, the
General Counsel relies upon statements allegedly made by Office
Manager Tew , an admitted supervisor , to employee Elsie Cumi
Vaughn, who, the General Counsel contends, was discriminatorily
discharged on October 6 The evidence with respect to such
alleged 8 (a)(1) violations , will be set forth in connection with
Vaughn 's discharge Suffice it to say, at this point , that I make no
8(a)(1) findings on the basis of Vaughn' s testimony
" The facts with respect to the discharge of Vaughn will be
stated after the facts relating to the status of Holland , Stewart,
and McGowan
'' Stewart who was the checker on the other crew, and who
according to Respondent , performed the same duties and had the
same authority as Holland , was paid $1 60 an hour, and the
selectors in his crew were paid $1 50
w The card shows 15 categories of work , namely , unloading
cars, unloading trucks (backhaul), unloading other trucks, fork
truck operation, hand piling stock, selecting, loading, repack
work , supervision , clerical inbound checking , outbound
checking , sweeping , cleaning , maintenance , recoopenng, and
other work President Benson testified that this form was used
only to gather information for a service to which Respondent
subscribed which reported back a comparison of Respondent's
operations with 18 other firms similarly engaged , from the point of
view of costs of operation and efficiency, and the allocation of
costs to the departments He at first testified that it was not the
function of the form to distinguish between supervision and actual
work, and that "there is no place on the report for supervision
separate from work " When asked why, in view of the last quoted
statement, the report carried the heading " supervision," Benson
first asked to see the form, and then stated , " that could be the
manager of the warehouse or the assistant manager We don't
record those two men on our report " At best , Benson 's testimony
on this point is unclear I do not credit it, in view of the fact that no
showing was made with respect to the type of report the
warehouse manager or his assistant made, the fact that according
to Benson the purpose of the report was to ascertain costs of
operating the department , and for a comparison thereof with
similar operations by other employers the cost of "supervision"
had to be accounted for and charged to the particular department.
BENSON WHOLESALE CO. 543
I credit Holland's testimony that he was never told by
any management official that he had supervisory authority
over his crew, and that when President Benson announced
to the warehouse employees the promotion of Clemmons
to the position of assistant to Warehouse Manager Adair,
he told the employees that Clemmons and Adair were their
supervisors and that they should go to them with any
problems they might have.37
b. Robert Stewart
Stewart was first hired by Respondent in 1962, as a
selector in the warehouse, and worked in that capacity for
about 1-1/2 years, when he was assigned as outbound
checker. This was the same job as that held by Holland,
Stewart and Holland having a separate crew of selectors
and a separate loader. When Stewart became outbound
checker, no increase in pay was involved, his hourly rate
remaining at $1.35, but by subsequent increases had
reached $1.60 at the time of his discharge. As was the case
with Holland, Stewart's job was to check and price-mark
the orders forwarded to the loading dock by the selectors
in his crew, and see that a trailer of sufficient capacity was
available at the dock so that the loader could properly load
the goods for delivery to the customer. Like Holland,
Stewart filled out a daily workcard making his entry
beside the column entitled "outbound checking," and he
made no entry in the column entitled "supervision."
According to Stewart, whom I credit, he was never told
that he had any authority over the men in his crew.
Stewart admitted that if a selector expressed the need of
getting off from work, and neither the warehouse manager
nor his assistant was present, he might tell the man he
could go, but if either Adair or Clemmons was present, he
would send the man to them. Respondent does not
contend, nor is there any evidence, that Stewart had
authority to hire or fire or to recommend such action.
c. William J. (Jerry) McGowan
McGowan was first employed by Respondent in 1962
and assigned to the drug room to fill drug orders , where he
and Earl Yancy were the only employees. His hourly rate
of pay was then $1.15. Sometime in 1963 Yancy quit, and
McGowan was told by Warehouse Manager Adair that he
(McGowan) was a supervisor , pointing out that McGowan
told the other men in the drug room when to come to work
and what to do. McGowan admitted that he told the men
when to come to work , 311 but that he did not consider that
this made him a "supervisor ." Aside from this incident
there is no evidence that McGowan was told at any time
prior to October 11 , 1965, that he had any supervisory
authority . On October 19, McGowan was called to the
office where General Manager Cotter told him that the
Company "had already made some supervisors and was
going to make some more," and asked if McGowan wanted
such a job. McGowan replied in the affirmative, saying
that he wanted the money. McGowan was told that he was
getting a 20-cent-per-hour raise, which increased his
hourly rate to $1.75. With overtime, McGowan's gross
weekly earnings were then in excess of $100. Cotter also
told McGowan that he could not engage in union activity;
as McGowan expressed it, "I couldn't help them or I
couldn't hurt them." Later the same day, Cotter, as set
forth supra, again talked to McGowan and asked that he
talk to the employees with a view of getting them to
abandon their union activity. Shortly thereafter, Personnel
Manager Wood asked McGowan to prepare a list of the
latter's duties at that time. McGowan prepared and
furnished such a list to Wood. According to McGowan,
whom I credit, these were the same duties he performed
since he was first employed by Respondent.39
d. The discharge of Elsie Cumi Vaughn
Vaughn was initially employed by Respondent in May
1964, as an IBM clerk in the office, at an hourly rate of
$1.25. She was admittedly a satisfactory and valued
employee, and in July 1964 was selected for training as a
keypunch operator for a new IBM system then being
installed. When she assumed the latter duties she was
given an increase in pay. Although Vaughn was aware of
the union activity in progress at Respondent's warehouse,
she was not a part of the unit involved, and it is undenied
that she took no part in such activity. About mid-
September, Vaughn was given another increase in pay,
raising her to $1.45 an hour. At this time Vaughn had a
rather lengthy conversation with Office Manager Tew,
who had overall supervision of Respondent's clerical staff.
Tew told Vaughn that she was pleased with her work, but
asked if Vaughn was seeking employment at Fort Rucker.
After Vaughn admitted this was so, Tew told her that
Respondent could not compete with the wage scale at Fort
Rucker, but detailed other advantages that Vaughn would
have if she continued at Respondent, and added if it was
just a matter of money, that she would give Vaughn an
additional 15-cent increase to remain. Vaughn promised to
consider the matter.
On October 5, Vaughn did not report for work, but sent
a message to Respondent that her mother was ill and she
would have to take her to a doctor. About 8 a.m. on that
day, Personnel Manager Wood observed Vaughn, without
her mother, in a filling station where her car, headed in the
direction of Fort Rucker, was being filled with gas.
Knowing that Vaughn was seeking employment at Fort
Rucker, Wood, upon reaching Respondent's office, told
Office Manager Tew what he had observed. The following
day, when Vaughn reported for work, she was discharged.
No mention was made at this time about what Wood had
observed at the filling station , nor was Vaughn asked for
any explanation. Up to this point, the evidence with
respect to Vaughn's discharge is not controverted.
11 Benson testified that when Clemmons was promoted he told
the employees that Clemmons would share the responsibilities of
Warehouse Manager Adair, and that problems they had been
taking to Adair, they could now take to Adair or Clemmons It is
not clear to me whether Benson intended by this to deny
Holland's testimony in this regard To the extent that there is such
conflict, I credit Holland
18 According to McGowan's uncontradicted testimony it was
necessary that the drug room crew work the same hours as the
warehouse crew, so that the drug items of an order would be
filled, priced, and sent to the loading dock with the remainder of a
particular customer order, for shipment at the same time, that he
ascertained from Holland or Stewart when the warehouse crews
would be working, and told the other men in the drug room so that
he and they would be at work when needed
19 The list McGowan furnished Wood described his duties thus
pull orders, haul in off dock, clean up, wait on salesmen ; work up
damaged merchandise, send damaged merchandise back to
supplies, break down deals, count out list, go get orders, stock
and price merchandise , get buggies , push orders out, unload
trucks, carry orders to Frozen Food Department, line out shelves
According to Wood, he asked McGowan and other employees to
prepare such a list so that he might prepare formal job
descriptions
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the remainder of the evidence upon which the
General Counsel relies represents such a sharp credibility
issue, it can be fairly stated only by presenting both
versions.
Vaughn testified that when she was discharged, she was
told that the reasons were that she "had been absent
excessively and ... was looking for work at Fort Rucker."
Although Vaughn disclaimed knowledge as to the number
of occasions she was absent, she admitted that there were
several such occasions , including one occasion that she
left work early claiming to be ill, but used the time to go to
Fort Rucker to look for work. One evening several weeks
after her discharge, Vaughn went to the home of J. B.
Purvis, a representative of the bank which had financed
Vaughn's car, to tell Purvis that because she had lost her
job at Benson's she would be unable to make the payments
until she secured other employment. It should be noted
that when Vaughn testified, this was the only reason she
gave for going to see Purvis, and that she made no mention
of having received any message that Purvis wished to see
her. Vaughn did not say what understanding, if any, she
reached with Purvis about the car, but testified that Purvis
asked if she had engaged in the union activity then current
at Respondent's plant, and stated that he had been told by
Mrs. Tew that Vaughn had been fired for her union
activity. According to Vaughn, Purvis suggested that she
go see Tew, saying that he would not want Tew thinking
Vaughn had engaged in union activity, if such was not the
case.
Vaughn proceeded from Purvis' home to the home of
Mrs. Tew where she told the latter that she had learned
that day that the Company had discharged her because
they felt that she was engaging in union activity, that she
was not seeking her job back, but wanted Tew to know
that she had no part in the union activity. According to
Vaughn, Tew stated that the Company had many reasons
for believing that Vaughn had engaged in union activity,
pointing out that Vaughn 's sister was active in trying to get
a union at the local shirt factory, and that Vaughn had
been frequently seen at I. D. Griffin's service station, and
it was known that he was active in trying to get
Respondent ' s employees organized. Tew then asked
Vaughn if she had attended any union meetings, to which
Vaughn replied in the negative. According to Vaughn, Tew
then stated that before Vaughn was fired she and other
supervisory personnel in the office had considered
whether they should be open about it and ask Vaughn if
she had engaged in union activity, but concluded that
would be unwise, and that the best thing to do was simply
discharge Vaughn, and if Respondent was ever called
upon to justify its action, it could rely upon Vaughn's
absentee record. According to Vaughn, she then asked
Tew if Holland and Stewart had been discharged because
they were supervisors and had engaged in union activity,
and that Tew replied that she knew that Holland and
Stewart were not supervisors, but that the Company had to
do something to keep the Union out as long as they could;
that she did not think a union was necessary in a place as
small as Benson's, and that she had told President Benson
that she would not work in a place that had a union.
According to Vaughn, Tew volunteered that the Company
had made Shirah, Free, McGowan, Shiver, and Kirkland
supervisors to prevent them from voting if there should be
a union election, and that the employees in the warehouse
were being questioned to find out why they wanted a
union. Vaughn testified that she then asked Tew why the
Company had reported to the State that excessive
absenteeism was the reason for her discharge when this
was not the fact, and that Tew replied that she was sorry if
Vaughn had been done an injustice, that they would
permit her to draw her unemployment and would
recommend Vaughn for a job elsewhere, or would take her
back to work, but she assumed Vaughn would not want to
come back. Tew then asked Vaughn if anyone had tried to
get her to sign a union card, and if she knew on
September 30, that the employees were having a union
meeting that night. When Vaughn admitted that she did
know about the union meeting before it was held, Taw
asked why she had not told someone in the Company
about it.
Purvis, a witness called by Respondent, testified that on
some date which he could not recall, he was driving by
Vaughn's home, and knowing that Vaughn had been
terminated by Respondent, and that she was about 3
months in arrears in her car payments, stopped to see
her;40 not finding Vaughn at home, he left a message with
her mother, asking that Vaughn come to see him.
According to Purvis, this was the only statement he made
to Vaughn's mother, and he specifically denied that he told
her what he wished to talk with Vaughn about, or that he
had been told by Tew that Vaughn had been fired for, union
activity.41 According to Purvis, when Vaughn came to see
him, they discussed the delinquency in her payments, and
in view of her anticipation of a job at Fort Rucker, he
agreed to refinance the car. Purvis testified that in the
course of their conversation Vaughn mentioned that when
she was discharged by Benson, she was given no reason,
and admits that he then asked Vaughn if she had
participated in union activity. Purvis also admits that
when Vaughn stated that she had not engaged in union
activity, he suggested that she go to see Tew and try to find
out the reason for the discharge, saying she was entitled to
that information. Purvis denied that he had ever spoken to
Tew about Vaughn' s termination.
Tew admits that Vaughn came to see her on the
occasion referred to and that the subjects referred to by
Vaughn were discussed. However, she denied that she
(1) asked Vaughn whether she had participated in union
activity, or whether she had signed or been asked to sign a
union card; (2) told Vaughn that it had been decided to rely
on her absentee record in an attempt to obscure the fact
that her union activity was the real reason for the
discharge; (3) told Vaughn that Holland and Stewart were
not in fact supervisors, but were being called such in order
to justify their discharge; (4) that other employees would
be classified as supervisors for the purpose of removing
90 The parties stipulated that the Bank made the loan to
Vaughn in May 1965, with the first payment due June 10, 1965,
and successive payments on the 10th of each month thereafter,
until paid , and that the payments due September 10 and
October 10 , were not paid on time Following the close of the
hearing, I received a further stipulation from counsel , which they
requested be made a part of the record, to the effect that neither
the September nor the October payment had been made as of late
October 1965 I had so understood the stipulation reached at the
hearing In any event, I now approve the last mentioned
stipulation and the record is clarified accordingly Said
stipulation , which I have marked "Trial Examiner 's Exhibit 1." is
filed with and made a part of the record
4i Mrs Emma Vaughn testified that Purvis had told her Tew
had been in the bank and told him that Vaughn "was involved in
this union business ," and that he wanted to find out all he could
about it , and asked that she come to his home that night I find it
unnecessary to resolve the conflict
BENSON WHOLESALE CO. 545
them from the unit and to prevent their voting in the event
of an election; or (5) that the Company was determined
that the Union must be defeated and that the best way to
accomplish this was to stall as long as possible. Tew also
denied that she had ever discussed with Purvis the Union
or the reason for Vaughn's discharge
4. The alleged refusal to bargain
The facts with respect to the Union's demand for
recognition and Respondent's refusal, are set forth supra.
Respondent raises certain unit questions which must be
resolved before it can be determined whether the Union
had majority status in, and made its bargaining demand
for, an appropriate unit.
a. The unit questions
With respect to the scope of the unit, Respondent
contends that the employees in its printshop, a truck
mechanic, two rack service employees, as well as the
warehousemen and truckdrivers for whom the Union made
its demand, should be included in the unit, and that the
Union's failure to include them rendered inappropriate the
unit for which it made demand. The General Counsel
argues that the printshop and rack service employees
should be excluded from the unit, but in his brief advances
no contention regarding the truck mechanic. In the
alternative he argues that a unit limited to the warehouse
employees, and excluding truckdrivers and printshop
employees, would also be appropriate.
The evidence with respect to the functions, duties, and
interrelationship of the various classifications of
employees discloses the following:
The employees in the warehouse proper who are hourly
paid receive, unload, and place in the warehouse all
incoming merchandise, fill orders, and load them on the
trucks for transportation to the retail stores.42 These
employees spend all of their working hours at the
warehouse, and are under the supervision of the
warehouse manager and his assistant. The truckdrivers
transport the merchandise from the warehouse to the
retail stores, some of which are over 300 miles distant,
where they may assist in the unloading. The truckdrivers
are salaried, spend virtually all of their working time away
from the warehouse, and are separately supervised.43
There is no evidence of interchange between the
warehouse employees and the truckdrivers. The truck
mechanic works under the same supervision as the
truckdrivers, is salaried, and devotes his entire time to
maintaining the trucks in mechanical repair 44 The
mechanic works in a building in downtown Geneva, some
distance away from Respondent's warehouse.
The rack employees are salaried. Virtually all of their
working time is spent away from the warehouse. Their
duty is to visit the retail stores after the trucks deliver
drugs, cosmetics, and related items, and there shelve and
display those items. They carry no merchandise with
them, do no selling, travel in their own automobiles for
which they receive an expense allowance. The rack
employees do not punch a timeclock, and are under the
supervision of a Mr. Hornsby, who is Respondent's buyer
of the type of merchandise which these employees shelve,
rack, and display.
The printshop employees lay out, prepare, and print
circulars and related advertising material for the retail
stores. There are some full-time and some regular part-
time employees in the printshop, who have their own
supervisor (Jack Helms). All of these employees, except-
the supervisor, are hourly paid. Although the printshop
employees work in a separate building from' the
warehouse, such building is on the same grounds, and is
located about 30 yards behind the warehouse proper.
Paper used in the printing process is stored in the
warehouse until needed in the printshop, at which time
warehouse employees take it from its storage place to the
receiving dock, and the printshop employees move it to the
printshop. The printshop employees punch the same
timeclock, located in the warehouse proper, as do the
employees who work in the warehouse building. There is
no evidence of interchange between the warehouse and
the printshop employees.45
Regardless of the nature of their work, all employees of
the Company, including supervisors and management
personnel, receive the same benefits in the way of
pensions, insurance, vacations, etc.
b. Numerical composition of the unit
At the beginning of the hearing, I overruled
Respondent's motion to quash a subpoena duces tecum as
directed to it by the General Counsel. Among the records
covered by said subpena were those showing the names
and job classifications of the employees in the unit alleged
in the complaint. From such records the employee
complement of the unit could have been readily
ascertained. Respondent, however, declined to comply
with the subpena. I then stated that the General Counsel
would be permitted to establish any element of his case
with respect to which the subpenaed documents would be
relevant, by secondary evidence which Respondent would
not be permitted to controvert, and that all appropriate
inferences would be drawn from Respondent's failure to
produce the subpenaed documents. With this background,
I proceed to a consideration of the evidence dealing with
the total number of employees in the various
classifications, and the total number of employees who
had designated the Union as their bargaining
representative.
Although Respondent stated its intention "to put into
evidence the names of all employees that we think should
be included in the unit," it did not do so. Such evidence
was, for most part, developed by the General Counsel
through General Manager Cotter, when the latter was
examined pursuant to the provisions of rule 43(b) of the
Rules of Civil Procedure.46 General Manager Cotter
42 Separate crews perform these functions Thus, there is a
crew which only receives, unloads, and places incoming goods in
the warehouse. There are separate crews for the filling of orders
in the Drug Room, Freezer Room, and Dairy Room Other crews
fill orders for merchandise from the grocery department
49 Their supervisor is Malcolm Ansley, who is referred to supra
44 How long Respondent has employed a truck mechanic does
not appear Supervisor Ansley testified that he could not recall
whether the mechanic was employed on October 1 (when the
Union made its demand), or whether he was first employed
thereafter
45 Supervisor Helms testified that one employee began work for
the Company in the warehouse, and subsequently transferred to
the printshop, and that if he had a vacancy in the printshop he
would consider a qualified person from the warehouse I do not
regard this as interchange between the groups
4' The only exception relates to the rack employees The
testimony as to those two employees was developed through
President Benson
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that all 32 of the employees named on the list
sent to the Company by the Union on October 5 (G.C.
Exh. 4) were employed by Respondent in the receiving or
shipping operations of the warehouse'47 on October 1, the
date the Union made its demand. There is no evidence that
any other employees worked in the shipping or receiving
operations of the warehouse at any relevant time. Cotter
also testified that as of October 1, Respondent employed
11 truckdrivers; he did not mention the truck mechanic,
and in view of Supervisor Ausley's testimony that he did
not recall whether such an employee had yet been
employed by Respondent, I do not count the mechanic in
determining the total employee complement. Cotter
additionally testified that on October 1, there were four or
five employees in the printshop, and Benson testified that
there are two rack employees that Respondent contends
should be included in the unit. On the basis of this
evidence, I find total employment in the several
classifications mentioned on October 1, were as follows:
Receiving and shipping operations in the warehouse, 32;
truckdrivers, 11; printshop, 4;48 rack employees, 2. Thus
the total employee complement in all the classifications, as
of October 1, was 49. In a subsequent section hereof, I
shall set forth my findings as to which of these
classifications should be included in the unit , and the
Union's majority status therein.
B. Contentions and Concluding Findings
1. The interference, restraint, and coercion
I find and conclude that Respondent violated Section
8(a)(1) of the Act by the following conduct heretofore set
out in detail:
a. Adair's interrogation of Pollard as to whether there
had been any talk about the Union, and his request that
Pollard report back on any employee discussion of the
Union that he might hear.
b. Adair's statement to Pollard that he (Adair) had been
instructed by General Manager Cotter to fire any
employee that talked about the Union.
c. Clemmons' interrogation of Pollard as to whether
Pollard had signed a union card and what he thought of the
Union. On the entire record, this interrogation, as well as
the interrogation hereafter referred to, was plainly not for
the limited purpose of ascertaining Respondent's duty to
deal with the Union, as contemplated by the Board's
decision in Blue Flash Express, Inc., 109 NLRB 591.
d. Cotter's implied admission to Pollard that
Respondent had obtained credit reports on all employees,
and which he implied would be used by the Company in
connection with its efforts to counter the Union's
organizational campaign. In context, and in light of
Respondent's other conduct, herein found, and which was
known to the employees, it was a statement that
Respondent intended to prevent the employees from
exercising their Section 7 rights, and hence constituted
interference, restraint, and coercion.
e. Clemmons' interrogation of Davidson as to the
latter's attendance at union meetings , and whether the
employees would get out of the Union if Respondent
promised certain changes; as well as by his statement
expressing doubt that Respondent would proceed with
certain expansion plans because the employees sought
union representation.
f. Cotter' s interrogation of Davidson as to the progress
of the Union' s campaign , and the statement that Davidson
might get more money and in time a supervisory job if he
would do what he could to get the men to change their
minds about the Union.
g. Adair's statement to McGowan that the employees
would never get what they sought through the Union; that
before Benson would accept the Union he would close the
doors.
It. Clemmons' interrogation of Holland as to whether
the latter would withdraw from the Union if the Company
discharged Adair, and by similar interrogation of
employees Stewart, McNeil, and Shirah, by printshop
Supervisor Helms.
i. The statement by Benson, in his speech to the
employees on October 5, "I don't think this union can do
any of you any good and can only lead to trouble for
everybody." The Board has consistently held such it
statement to be coercive and violative of Section 8(a)(1) of
the Act. See Cleveland Woolens, a Divis ion of Burlington
Industries, 140 NLRB 87, 94; Owens-Corning Fiberglass
Corporation, 146 NLRB 1492, 1503, and the cases there
cited.49 Moreover, assuming arguendo, that this
statement , standing alone, was not coercive, I nonetheless
find and conclude that in the context of Respondent's
other flagrant and extensive unfair labor practices, as
herein detailed, the entire speech including particularly,
not only the above statement, but the parts where the
employees were told unions exist on trouble, and that
Holland and Stewart had been discharged because they
refused to abandon their union activity, was violative of
Section 8(a)(1), because it was delivered with the intent
and purpose, and had the effect of and could be reasonably
interpreted by the employees as, an attempt to interfere
with their exercise of their organizational rights. Kayser-
Roth Hosiery Co., Inc., 158 NLRB 28; Overnight
Transportation Company, 154 NLRB 1271; Cleveland
Woolens, 140 NLRB 87, footnote 5.
j. Cotter's solicitation of Sarah Ausley to prevail upon,
and to ask her father's assistance in prevailing upon, her
husband, employee Ray Neal Ausley, to withdraw his
41 This included Frank Williams who performed janitorial
services in the warehouse
48 Because of Respondent's failure and refusal to produce
employment records, I have in all cases , used the lesser of
Cotter's estimates For the same reasons , I have used Cotter's
testimony as to the number of printshop employees , rather than
the testimony of Supervisor Helms A further reason for not using
the figures testified to by Helms is that for the most part he was
apparently speaking of employment figures as of the day he
testified (April 14, 1966), rather than as of October 1, when the
Union made its demand
49 I am aware that the courts considering the questions have, in
disagreement with the Board , held that the aforementioned
statement is not coercive See Surprenant Manufacturing
Company v N L R B, 341 F 2d 756, 760 (C A 6), N L R B v
Threads, Inc, 308 F 2d 1, 9 (C A 4), N L R B v Southwire
Company, 352 F 2d 346, 348 (C A 5), N L R B v Sagamore Shirt
Company, d/b/a Spruce Pine Manufacturing Co , 365 F 2d 898
(C A D C.) However, as a Trial Examiner of the Board, it is my
"duty to apply established Board precedent which the Board or
the Supreme Court has not reversed " (Insurance Agents'
International Union, AFL-CIO, 119 NLRB 768, 773) See also
Iowa Beef Packers, Inc , 144 NLRB 615, 616, and the cases there
cited This is particularly true here, in view of the Board's
pronouncement with respect to such statements, that
notwithstanding the contrary decision of the courts "we
respectfully adhere to our position " See Sagamore Shirt
Company d/b/a Spruce Pine Manufacturing Company, 153 NLRB
309
BENSON WHOLESALE CO.
support of the Union; and his solicitation of Sarah Ansley
to tell her husband that McGowan had been discharged
because he refused to desist fromt union activity , and that
he (Ausley) should be thinking about that.
k. Benson 's interrogation of Shirah as to why he had
attended a union meeting and what had transpired there.
In view of my conclusion, hereafter explicated, that Shirah
was never invested with supervisory authority , Benson's
further statement to Shirah that the latter could not attend
union meetings , was also unlawful.
1. Designating McGowan, Shirah, Kirkland, Free,
Shiver , and Seay as supervisors , without conferring actual
supervisory authority upon them, for the purpose of
prevailing upon them to abandon their union activity, and
preventing them from voting in any Board election that
might be held.
m. In the context of the facts of this case , Cotter's
appeal to the employees , in his speech of March 24,
wherein he solicited employees to indic ate whether they
signed union cards on the representation that such cards
were only for an election , was coercive , and therefore
violative of Section 8(a)(1). Respondent 's extensive efforts
to avoid its bargaining duty, above detailed , consisting
inter alia of its solicitation of employees to withdraw from
and abandon their support of the Union, its attempts to
persuade the employees to in effect bargain with it without
the intervention of the Union, the statement to at least one
employee that he might get more money and a supervisory
job if he would do what he could to get the men to change
their mind about the Union , the discharge of three of the
most active proponents of the Union for the pretextuous
reason that they were supervisors who refused to abandon
their union activity , the pretextuous designation of other
union supporters as supervisors for the purpose, as I have
found, of stopping them from continuing with their support
of the Union, and the direct threat to discharge Ansley if
he did cease his support of the Union , particularly in view
of Cotter 's admission that no employee had told him that
he signed a union card only to get an election , convinces
me, and I so find and conclude , that this speech was but a
continuation of Respondent 's past efforts to appeal to the
employees to abandon their support of the Union , and was
delivered with that intent and purpose . It was simply
another way of asking the employees , to reject the Union
through the device of signing the requested document
which , had it proved effective , would have destroyed the
Union 's bargaining rights and accomplished Respondent's
objective of avoiding its bargaining obligation.
1. The 8(a)(3) violations
a. The discharge of Holland and Stewart
Respondent concedes that it discharged Holland and
Stewart because of their union activity , but contends that
no violation resulted because they were supervisors, as
that term is defined in Section 2(11) of the Act.50 Whether
an individual has been vested by his employer with the
requisite authority to make him a "supervisor" must, of
so Section 2(11) of the Act provides
The term " supervisor" means any individual having
authority , in the interest of the employer, to hire , transfer,
suspend , lay off, recall , promote , discharge, assign , reward,
or discipline other employees , or responsibly to direct them,
or to adjust their grievances , or effectively to recommend
such action , if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature,
547
course, be determined upon the facts of each case. Certain
principles , however , have been judicially established. A
rank-and-file employee is not transformed into a
supervisor merely by investing him with a "title and
theoretical power to perform one or more of the
enumerated functions." N.L.R.B. v. Southern Bleachery &
Print Works, Inc., 257 F.2d 935, 939 (C. A. 4), cert. denied
359 U.S. 911 . And although the powers enumerated in
Section 2(11) of the Act are to be read in the disjunctive,
that Section contains "the requirement of independence of
judgment in the conjunctive (i.e., in connection) with what
goes before." Poultry Enterprises, Inc. v. N.L.R.B., 216
F.2d 789, 802 (C.A. 5). Thus a "supervisor" must display
true independent judgment in performing one or more of
the functions enumerated in Section 2(11), for the
performance of such functions sporadically or merely in
"routine," "clerical ," or "prefunctory" manner does not
elevate a rank-and-file employee to the rank of a
supervisor. N.L.R.B. v. Southern Bleachery & Print Works,
supra; Poultry Enterprises, Inc. v. N.L.R.B., supra;
N.L.R.B. v. Lindsay Newspapers, Inc.. 315 F.2d 709, 712
(C.A. 5). Nor will the existence of independent judgment
alone suffice, for always "the decisive question is whether
[the particular individuals ] have been found to possess
authority to use their independent judgment with respect
to the exercise by them of some one or more of the specific
authorities listed in § 2(11) of the Act ...." N.L.R.B. v.
Brown & Sharpe Manufacturing Company, 169 F.2d 331,
334 (C.A. 1). Applying these principles to the applicable
evidence in this record , I find and conclude that neither
Holland nor Stewart was a supervisor within the meaning
of the Act. The totality of the following factors compels me
to that conclusion:
1. The warehouse manager, and his assistant had
supervision over all receiving and shipping functions of the
warehouse . Thirty-two being the total employee
complement engaged in such operations , two supervisors
would not appear to be too minimal a quantity of
supervision, having in mind that the work is largely
manual and routine . On the other hand , if Holland and
Stewart were supervisors , the level of supervision is
inordinately high ,51 having in mind the nature of the work
and the fact that it was performed in close proximity to
Adair and Clemmons , admitted supervisors.52
2 Prior to the day of their discharge, neither Holland
nor Stewart was ever told of their alleged supervisory
status. Indeed President Benson , in a speech to the
warehouse employees announcing the appointment of
Clemmons as assistant warehouse manager, told those
employees that Adair and Clemmons were their
supervisors , and specifically instructed them to go to
Adair or Clemmons with any problems they might have.
3. While it is in no sense controlling , it is certainly a
factor to be taken into consideration , that Holland and
Stewart were hourly paid and compensated for overtime,
while the admitted supervisors (Adair , Clemmons, Jack
Helms, and Malcolm Ansley) were paid a salary and
received no overtime.
but requires the use of independent judgment
51 Each shipping crew consisted of four pickers , a checker, and
a loader If Holland was a supervisor , only five employees worked
under his supervision
Sz
The record shows that an office shared by Adair and
Clemmons is located in the warehouse near where the shipping
crews work In fact the shipping crew employees pick up the
shipping orders in this office
298-668 0-69-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The work of the selectors and the loaders in the
shipping crews is of a manual , routine, and repetitive
nature which required no close supervision on the part of
Holland or Stewart, and the work performed by the latter
consisted simply of checking to see that the items called
for by the invoice were present in the specified quantity,
and to price-mark the merchandise , according to
information available in a catalogue . This is nothing more
than routine clerical work not involving the exercise of
independent judgment in the sense contemplated by
Section 2(11) of the Act. Even when Holland or Stewart
found it necessary to call to a selector 's attention that an
error in the type or quantity of merchandise had been
made, this was only for the purpose of making the
necessary correction, and did not call for the exercise of
"independent judgment ." Holland and Stewart spent their
entire time in the performance of routine manual duties no
different from those performed by the shipping clerk
involved in Miami Paper Board Mills, Inc., 109 NLRB 167,
169; Southern Paperboard Corporation, 84 NLRB 822,
824; and South Florida Liquor Distributors, Inc. of Tampa,
113 NLRB 109, 110-111, which the Board there found to
be nonsupervisory in character .53 The fact that Holland at
one time received a bonus paid to other supervisors and
carried a key to the warehouse ; that the shipping crews
worked late into the evening , or came to work in the early
hours of the morning when neither Adair nor Clemmons
was present , and he initialed timecards for, or on occasion
allegedly granted time off to, an employee (a factual
dispute unnecessary to resolve ), is not conclusive as to his
supervisory status.54 At best Holland and Stewart, by
reason of their tenure and experience , acted as straw
bosses or leadmen. That Congress never intended such
employees to be embraced within the term "supervisor,"
is made plain by the Senate Report on the bill which was
thereafter enacted.55
Accordingly, as I have found that Holland and Stewart
were not supervisors , their discharge by Respondent,
admittedly because of their union activity, was violative of
Section 8(a)(3) and (1) of the Act. I so find and conclude.
b. The discharge of William J. McGowan
Although there are some factual differences in the
status of McGowan at the time of his discharge, and the
status of Holland and Stewart at the time of their
discharge, which I shall discuss, I nonetheless find and
conclude that McGowan was not a supervisor within the
meaning of Section 2(11) of the Act, at the time of his
discharge, and as it is conceded that McGowan was
discharged because of his refusal to abandon his activities
on behalf of the Union, it follows that his discharge was
13 Grand Forks Grocery Company, 121 NLRB 1271, is plainly
distinguishable from the instant case . The shipping clerk there
involved assigned work to employees and directed its
performance , reprimanded employees, selected those to perform
overtime , enforced the work schedule designed to assure
employees a 49-hour week But for this shipping clerk the only
persons with supervisory authority over the warehouse would
have been the Company's president and his assistant
54 See Frederick Steel Company, 149 NLRB 5, 10, where the
alleged supervisor carried a key to the plant, and frequently
carried out the orders of his supervisor when the latter was away
from the plant , Miami Paper Board Mills , supra, where the
shipping clerk had authority to grant employees time off, and
South Florida Liquor Distributors, supra, where the shipping
clerk did occasionally authorize employees to leave early
violative of Section 8(a)(1) and (3) of the Act. I so find and
conclude.
For the reasons heretofore stated in discussing the
supervisory status of Holland and Stewart, McGowan was
clearly not a supervisor within the meaning of the Act,
prior to the events of October 19, and October 28, because
the facts heretofore detailed, show that his work was of
routine nature not involving the exercise of independent
judgment. At best, McGowan, like Holland and Stewart,
because of his tenure and experience in the drug room,
was the straw boss, or leadman over the less experienced
employees. His authority over the employees in his group
was of a "minor" nature, not of the character Congress
intended to include in the term "supervisor." See the
Senate Report quoted supra. The only issue with respect
to McGowan, is whether, by the events of October 19 and
28, heretofore detailed, Respondent so changed
McGowan's duties and responsibilities, that supervisory
authority was, in fact, conferred upon him. This issue, I
find and conclude, must be answered in the negative for
the following reasons:
1. Unquestionably, an employer may, in the exercise of
his business judgment, confer supervisory authority upon
rank-and-file employees without in any way violating the
Act. However, when such action is taken in an atmosphere
of union hostility, in order to distinguish a pretext from a
bona fide action, the Board will "scrutinize closely the
surrounding factors [including the timing of such action]
to determine whether or not supervisory authority was in
fact delegated to the employees concerned" (Cherokee
Brick and Tile Company, 100 NLRB 612, 615). And the
burden is upon the party alleging supervisory status to
prove that it in fact exists. The Detroit Edison Company,
123 NLRB 225, 230; Riss & Company, Inc., 127 NLRB
1327, 1330. In the instant case, Respondent's union
animus is clearly established. Benson told the employees
in his speech on October 5, that Respondent was
"opposed to the Union," and that it intended to "use every
legal means to keep it out ." In implementation of that
purpose, as I have found , it discharged Holland and
Stewart, the two employees most active in the effort to
secure union representation, because they refused to
abandon their union activity, and directed towards its
employees a campaign of restraint and coercion designed
to destroy the Union's majority status among the
employees.
2. On October 19, McGowan was not told in what
respects the duties of his new supervisory position would
differ from the duties he theretofore performed.
3. At the October 28 meeting McGowan, as well as
Free, Shiver, Kirkland, and Shirah, 56 were given and
required to sign formal job descriptions. These job
55 See S R 105, 80th Cong , p 4, where it is stated,
The committee has not been unmindful of the fact that
certain employees with minor supervisory duties have
problems which may justify their inclusion in the act It has
therefore distinguished between straw bosses, leadmen,
setup men , and other minor supervisory employees, on the
one hand, and the supervisor vested with such genuine
management prerogatives as the right to hire or fire,
discipline , or make effective recommendations with respect
to such action
56 Respondent makes no contention that Free or Shiver were
theretofore supervisors Shirah and Kirkland replaced Holland
and Stewart , respectively There is no evidence that their actual
duties and responsibilities were any different from those of
Holland and Stewart prior to their discharge on October 5
BENSON WHOLESALE CO.
descriptions do purport to vest some supervisory authority
in the aforementioned employees. However, I credit the
testimony of McGowan, Shiver, Free, and Shirah,57 that
their duties after October 28, were no different than in the
past.58 True, some of these men did testify that after'
October 28, prospective employees were sent to them for
interview ; that they were told that they did not have to
take those applicants; that a proposed wage increase was
discussed with them; and that at least on one occasion,
one of these men asked that an employee be transferred
out of his unit . The evidence fails to show, however, that
any recommendation these alleged supervisors may have
made had any real significance. In fact, Free testified that
two men he had recommended for hire were not hired, and
that with respect to two applicants that were sent to him
for interview, he made no report or recommendations to
management , but these men were hired.59
4. Respondent has made no showing that would justify
a three-fold increase in the supervisory staff.60
Employment in the warehouse, as the evidence shows,
remained stable. The work performed by the warehouse
crew is entirely manual, routine, and repetitive in nature.
There is nothing to indicate the necessity for close
supervision over a small number of employees. From
Cotter's own testimony concerning the work performed by
the 32 employees named by the Union as its supporters, it
appears that McGowan, as an alleged supervisor in the
drug room, only had three employees under his
supervision,61 and Shiver, as supervisor in the frozen food
department, only had two.62
Upon consideration of the entire record, I am convinced
that at no time material was McGowan a supervisor within
the meaning of Section 2(11) of the Act, and therefore his
discharge by Respondent on November 4, admittedly
because McGowan refused to abandon his activities on
behalf of the Union, was violative of Section 8(a)(3) and (1)
of the Act. I so find and conclude.
Consideration of the entire record also convinced me
that McGowan, Shiver, Kirkland, Free, and Shirah were
not invested with supervisory status in October '63 and that
the attempt to invest them with that status was simply a
subterfuge having for its purpose the suppression of union
activity by those known union adherents. I so find and
conclude. Such conduct plainly interfered with and
restrained those employees in the exercise of their
Section 7 rights, and was, therefore, violative of Section
8(a)(1) of the Act, as found supra. See Steere Broadcasting
Corporation, 158 NLRB 487, 496.
c. The discharge of Elsie Cumi Vaughn
If the discharge of Vaughn had to be decided on the
basis of the General Counsel's evidence without the
Vaughn-Tew conversation, I would have no hesitancy in
concluding that the evidence is insufficient to establish
'r Kirkland did not testify.
's For example, Free, when asked what his duties were prior to
being told that he was a supervisor, answered, "I checked freight
and filled out the receipts " When asked what his duties were
after he was told that he was a supervisor, answered, "I check
freight and fill out the receipt "
'' Free did admit that he recommended an individual for a raise
of 10 cents rather than 5 cents There is no showing, however, that
this was anything other than the general wage increase which
Respondent gave to all employees
so Prior to October 1, as I have found, the only supervisors in
the warehouse were Adair and Clemmons If supervisory
549
that her discharge was discriminatorily motivated. It is
true that the timing of her discharge, the absence of any
warning, the complete absence of evidence that a
replacement had been obtained for Vaughn who,
according to Respondent, was in a position requiring
punctual and reliable attendance, are all suspicious
circumstances , but suspicion is not an adequate substitute
for proof. The uncontradicted fact remains that Vaughn
did not engage in any union activity, and there is nothing to
indicate that the Company knew or had any reason to
suspect that Vaughn, who was not among the employees
the Union was trying to organize and represent, was
engaging in such activity. Vaughn admitted that she had
been absent on some occasions; on one occasion she had
feigned illness to get off from work to go to Fort Rucker
about a job. Respondent knew of Vaughn's interest in
obtaining other employment and while it regarded her as a
competent employee whom it wanted to retain, it was
fearful that it might lose her services on what it regarded
as insufficient notice. On October 5, Vaughn admittedly
sent word that she could not be at work that day because it
was necessary that she take her mother to a doctor, but
she was seen shortly thereafter by an official of the
Company getting gas for her car, which was headed in the
direction of Fort Rucker, and her mother was not with her.
Whether Respondent was justified, on these facts, in
assuming that Vaughn had given a false reason for her
absence, and that she was, in fact, going to Fort Rucker to
seek employment, it is unnecessary to decide. While the
Board may consider the reasonableness of an alleged
justification for a discharge, the absence of such
justification, without more, does not establish the essential
ingredient of an 8(a)(3) violation, that the employer be
discriminatorily motivated. Whether Vaughn was
discriminatorily discharged or not must be decided,
therefore, by resolving the credibility issue posed by the
testimony of Vaughn and Tew'64 for if Vaughn is credited,
the discriminatory motive is established by Tew's
admissions as to the reasons for Vaughn's discharge.
Unfortunately , in determining credibility issues, a trier
of fact does not have the benefit of any test that may be
applied with absolute certainty that the result reached is
correct. Under our judicial system, all that a trier of the
facts can do is to give due consideration to, among other
factors, the demeanor of the witnesses, their candor and
frankness, their apparent bias or interest, or the lack
thereof, the probability of the truth of their testimony, and
,upon consideration of all relevant factors, give credit
where credit appears to be due. After careful
consideration of all pertinent portions of the testimony, in
light of all applicable considerations , and without imputing
any improper motives to Vaughn, I have concluded that I
cannot credit her testimony. Had Vaughn's testimony
regarding her conversation with Tew been limited to the
reasons for her discharge, perhaps I could credit it, but I
authority was in fact conferred upon Shirah, Kirkland, Free, and
McGowan, the supervisory level rose to six
bi Billy McGowan, Bobby Seay, and Ray Ausley
62 Douglas Stafford and D L. White
61 And Bobby Seay, who was purportedly made a supervisor in
the drug room on or about December 15, to replace McGowan,
who was discharged on November 4
64 The testimony of Purvis and Vaughn is of no assistance in
resolving that issue , hence I find it unnecessary to resolve the
conflict in their testimony, as to what message Purvis left with
Vaughn.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot accept the premise (which I have to accept if I
credited Vaughn), that Tew, who has been in the business
world at least 20 years, and Respondent's office manager
for the past 15 years, and whose every appearance
indicates competency, would unfold to this youthful
employee who had been in Respondent's employ only
about 19 months, and who had now been discharged,
Respondent's plan, which it must have intended to keep
confidential, to defeat the Union by means, known to even
most laymen, to be blatent violations of the Act.
Having concluded not to credit Vaughn'65 it follows that
the General Counsel has failed to establish by the
preponderance of the credible evidence, that Vaughn's
discharge was discriminatorily motivated. Accordingly, I
shall recommend that this allegation of the complaint be
dismissed.
3. The refusal to bargain
a. Conclusions as to appropriate unit
As heretofore stated, the Union's initial description of
the unit for which it requested recognition was the
"employees in the warehouse." This was modified by the
petition filed on October 5, which described the unit as
"All warehouse employees including truckdrivers," and
this is the unit alleged in the complaint to be an
appropriate unit . Respondent contends such a unit is
inappropriate because it fails to include (1) the rack
employees, (2) the printshop employees, and (3) the truck
mechanic.
The rack employees are under separate supervision,
spend virtually their entire working time away from the
warehouse performing functions entirely dissimilar to
those performed by the warehousemen and truckdrivers,
or even by the printshop employees. Aside from the fact
that they are employees of Respondent, they have no
community of interest with any other of its employees. For
this reason, I find and conclude that they should be
excluded from the unit.
Whether the printshop employees must be included to
prevent the unit requested by the Union from being
inappropriate is a more difficult question. While these
employees work in a separate building, that building is
only about 100 feet from the main warehouse, so that for
all practical purposes the two buildings comprise one
"enterprise." The printshop and the warehouse employees
punch the same timeclock which is located in the
warehouse; are hourly paid; work the same regularly
scheduled hours; and enjoy the same fringe benefits as do
the warehouse employees and the truckdrivers. On the
other hand, the printshop employees are separately
supervised; apparently enjoy a substantially greater rate of
pay than the warehousemen;66 have different skills; their
work does not appear to be related to that performed by
the warehousemen or truckdrivers, and there is no
interchange of employees among these functions. There is
' For this reason I have not detailed or relied upon Vaughn's
testimony in my consideration of the 8 (a)(1) allegations of the
complaint
" The highest rate mentioned in the record paid to
warehousemen is $2 an hour, which was paid to Holland
Admittedly, this was weighted to compensation for a bonus which
Holland had theretofore received, and probably also took into
account his long tenure of service Printshop Supervisor Helms
testified that the men under his supervision are paid up to $2 85
an hour There is no evidence with respect to the compensation of
no bargaining history, and the Union does not seek to
represent the printshop employees.
Although I find no Board decision directly in point, in
Arts & Crafts Distributors , Inc., 132 NLRB 166, 168, the
Board held that "In wholesale operations . [it]
commonly finds units of warehousemen and drivers
appropriate " See also Labatt Wholesale Grocery
Company, 130 NLRB 228. It is true that in those cases
there is nothing to indicate that the employer had a
printshop , or if it did , the manner in which it functioned.
But the cases relied upon by Respondents' are also
distinguishable because the units in those cases were
production and maintenance , which would seem broader
in scope. Indeed , in most of the cases relied upon by
Respondent , the Board made a specific finding that
because of the nature of the work they performed, the
printers involved were "production employees."68
In the instant case, because (1) the work of the
printshop employees had little, if any, relation to the work
of the warehouse employees ; (2) the printshop employees
perform work calling for completely different skills than is
required of the warehousemen and truckdrivers ; (3) are
under separate and independent supervision ; and (4) have
employment interests which are dissimilar to those of the
warehousemen and truckdrivers , I find and conclude the
printshop employees should be excluded from the unit.
With respect to the truck mechanic , the evidence shows
that he performs the usual duties incident to the
maintenance and repair of the trucks. His work is
performed in a separate building which serves as a repair
shop, located some distance from the warehouse . There is
no evidence that the mechanic does any truckdriving. It is
"established Board practice ," in circumstances similar to
those present in the instant case, to exclude service
mechanics from units of warehousemen and truckdrivers,
because "their interests are different from those of the
drivers." (Archie's Motor Freight, Inc., 130 NLRB 1627,
1629. ) To the same effect see Standard Trucking
Company, 122 NLRB 761, 762; Frederickson Motor
Express Corporation , 122 NLRB 32, 43.
Accordingly , for the reasons stated, I find and conclude
that all warehouse employees employed by Respondent at
its Geneva , Alabama, warehouse , including truckdrivers,
but excluding office clerical employees , printshop
employees , truck mechanics , rack service employees,
salesmen , guards, and supervisors as defined in the Act,
constitute an appropriate unit for collective bargaining,
within the meaning of Section 9(b) of the Act.
b. Validity of the Union's demand
As detailed above, the Union's October 1 demand upon
the employer was by telephone, repeated by letter dated
October 4, which was received and answered on
October 5, claiming to represent and requesting
recognition and bargaining for "your employees in the
warehouse." In its answer , Respondent took the position
the truckdrivers, except that they are salaried
67 Respondent cites Girton Manufacturing Company, Inc , 129
NLRB 656, Kentucky Rural Electric Cooperative Corporation, 127
NLRB 887, Litton Industries of Maryland, Incorporated, 125
NLRB 722, The Horn & Hardart Company, 147 NLRB 654,
Foremost Dairies, Inc, 124 NLRB 293, Golden Belt
Manufacturing Company, 108 NLRB 164
its I e , Girton Manufacturing, Inc, supra, Kentucky Rural
Electric, supra, Horn & Hardart Company, supra
BENSON WHOLESALE CO.
that it was in doubt as to what employees would be
included in the Union's unit demand, and that it had good-
faith doubt that the Union represented an "uncoerced
majority of our employees in an appropriate bargaining
unit ." When it wrote the aforementioned letter,
Respondent did not have, and had not yet received, a copy
of the representation petition which the Union had filed
with the Regional Office on October 5, but no later than
October 7, it did, as I have found,69 recei ve a copy thereof.
In the petition , the unit claimed was described as "all
warehouse employees including truckdrivers," which I
have herein found to be an appropriate unit . Following
receipt of said petition, there has been no communication
between the parties, and the petition was withdrawn on
January 12, 1966.
On these facts Respondent argues that the Union has
never requested, nor has it ever refused, to bargain in a
unit of "all warehousemen including truckdrivers," as
alleged in the complaint. I find this contention without
merit.
It is true, of course, that to impose a bargaining duty
upon an employer, the Union's demand must "clearly
define the unit for which recognition is sought." (The C. L.
Bailey Grocery Company, 100 NLRB 576, 579.) But in
matters of labor relations, as in many other matters, no
special formula or form of words is required. The
important question is does the employer understand that
he is being asked to bargain and what employees he is to
bargain for. It is also true that Respondent, quite
reasonably, could have been in doubt as to just what
employees the Union was referring to when it used the
phrase "employees in the warehouse," in its letter of
October 4. However, when it received the petition which
the Union had filed, which I have found that it did receive
no later than October 7, any ambiguity in the Union's prior
demands would seem to have been dissolved. But even if
some confusion remained in Respondent's mind, a simple
inquiry of the Union on that point, which good faith would
seem to require, would undoubtedly have clarified such
confusion. See N.L.R.B. v. Waukesha Lime & Stone
Company, Inc., 343 F.2d 504, 507 (C.A. 7). Instead
Respondent chose to ignore the continuing recognition
demands of the Union. A permissible inferenee70 from the
facts-and the inference which I draw-is that the alleged
defect or ambiguity in the Union' s bargaining demand was
not the reason for Respondent's refusal to bargain,71 but
rather that Respondent was determined to reject any
bargaining demand the Union made regardless of the
precision with which it may have been formulated and
communicated. Respondent's October 5 letter to the
Union, and its efforts to undermine and destroy the
Union's majority as herein found, makes this abundantly
clear.
Accordingly, I find and conclude that on October 5
Respondent had received from the Union an appropriate
demand for recognition and bargaining and that this
"' See fn 6, supra
7° The Union's demands for recognition, by telephone and the
subsequent letter of October 4, as clarified by the representation
petition filed on October 5, I find to be a continuing demand,
because there is no evidence to show that such demands were
withdrawn or abandoned, at least not prior to January 12, 1966,
when the Union withdrew its petition On the contrary, the
evidence shows that such demand was being actively pursued
See Burton-Dixie Corporation, 103 NLRB 880
71 Cf Inter-City Advertising Company of Greensboro, N C , Inc ,
89 NLRB 1103, 1111, fn 19
551
imposed upon Respondent the legal duty to bargain, if in
fact the Union had majority status, and Respondent had no
good-faith doubt of that fact.
c. The Union's majority status
The evidence shows that when the Union made its
telephonic demand on October 1, it had 27 signed
authorization cards. On October 4, and before its demand
letter of that date was sent, it received five additional
authorization cards. There is no contention, nor does the
evidence show, that any of these authorizations were
obtained by improper representations, or that they were
other than voluntary designations. I have heretofore found
that the appropriate unit consists of warehousemen and
truckdrivers, and that at the time of the demand,
Respondent had in its employ in that unit 32
warehousemen and 11 truckdrivers, or a total unit
complement of 43. The 32 authorizations which the Union
had is, of course, a majority.72 Accordingly. I find and
conclude that the Union was the duly designated majority
representative when it made its bargaining demand upon
Respondent.
d. Alleged "Good Faith" doubt of the Union's majority
Respondent's contention that it was justified in rejecting
the Union's bargaining demands, and insisting that the
Union established its majority in a Board-conducted
election, is, on the facts of this case, plainly without merit.
It is true that an employer faced with a union 's recognition
demand may insist upon a Board election as proof of its
majority, if it has a reasonable basis for a good-faith doubt
the Union in fact represents a majority. Hammond &
Irving, Incorporated, 154 NLRB 1071. But it is equally true
that an employer who refused such a demand because it
rejects the principles of collective bargaining, and
demands an election only to gain time within which to
dissipate the Union's majority, thereby violates Section
8(a)(5) of the Act. Hammond & Irving, Incorporated, supra;
Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732 (C.A.D.C.),
cert. denied 341 U.S. 914.
Upon consideration of the entire record, I am convinced
and find that Respondent rejected the Union's bargaining
demand, not because it had a "good faith" doubt as to the
Union's majority, but because it was determined to
undermine and destroy that majority, and sought the time
in which to accomplish that purpose. As I have found,
promptly after it received the Union's recognition demand,
Respondent set upon a campaign of interrogation of
employees to abandon their support of the Union; within
the week it discharged Holland and Stewart, the two
leading proponents of the Union, admittedly for their union
activity, on the pretext that they were supervisors whom it
did not want engaging in union activity, and within a
month thereafter did the same with respect to McGowan,
7z Respondent does not seriously question the Union's
numerical majority It contends rather that, as Holland, Stewart,
and McGowan were employed in a supervisory capacity, arranged
and were present at the union meeting of September 30, when 27
of the cards were signed, and that as Holland solicited and
forwarded to the Union the 5 cards which it thereafter received,
the Union's majority was, as a matter of law, coerced, relying
upon cases such as Insular Chemical Corporation, 128 NLRB 93,
Leas & McVttty, Incorporated, 155 NLRB 389 Having found that
Holland, Stewart, and McGowan were not employed in a
supervisory capacity, this contention must be, and is, rejected
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although it did not hesitate to ask McGowan to urge
employees to abandon their union activity ; attempted to
make employees "supervisors" for the purpose of taking
them out of the unit and thus prevent their voting in an
election , if one was held , all of which , as I have found, was
unlawful under Section 8 (a)(1) and (3) of the Act. In an
atmosphere of such unlawful conduct , it is idle to speak of
good faith . Priced-Less Discount Foods, Inc., d/b/a Payless,
157 NLRB 1143.73
Accordingly , I find and conclude that by rejecting the
Union 's request for recognition , as set forth in its letter of
October 5, Respondent violated Section 8(a)(5) and (1) of
the Act. I also find and conclude that by unilaterally
granting its employees wage increases , and by instituting
the funeral leave policy, all as hereinabove found , without
prior notice to or consultation with the Union which was
then the duly designated collective -bargaining
representative of its employees , Respondent also violated
Section 8 (a)(5) and ( 1) of the Act. Purity Food Stores, Inc.,
150 NLRB 1523, 1528 , enforcement denied on other
grounds 354 F.2d 926 (C.A. 1); N.L.R.B. v. Katz, 369 U.S.
736.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All warehouse employees employed by Benson
Wholesale Company, Inc., at its Geneva, Alabama,
warehouse, including truckdrivers, but excluding office
clerical employees, printshop employees, truck
mechanics, rack service employees, salesmen , guards,
and supervisors as defined in the Act, constitute an
appropriate unit for the purposes of collective bargaining,
within the meaning of Section 9(b) of the Act.
4. At all times since October 5, the Union has been the
duly designated collective-bargaining representative of the
employees in the aforesaid unit , within the meaning of
Section 9(a) of the Act.
5. By failing and refusing, on October 5, and at all times
thereafter, to recognize and bargain with the Union as the
collective-bargaining representative of the employees in
the aforesaid unit, and by granting wage increases and
instituting a funeral leave plan, after October 5, without
notice to or consultation with the Union as the collective-
bargaining representative of said employees, Respondent
has engaged in, and is engaging in, unfair labor practices
proscribed by Section 8(a)(5) and (1) of the Act.
6. Neither Holland, Stewart, nor McGowan is a
supervisor within the meaning of Section 2(11) of the Act.
7. By discharging Holland and Stewart on October 5,
and McGowan on November 4, because of their concerted
activities on behalf of the Union, Respondent
discriminated against them in regard to their hire or tenure
of employment, discouraging membership in the Union,
and thereby engaged in , and is engaging in, unfair labor
practices proscribed by Section 8(a)(3) and (1) of the Act.
" Respondent's contention that it was justified in refusing to
bargain with the Union because it had a good-faith doubt as to the
appropriateness of any unit requested by the Union, I reject as
without merit The Board has long held and recently affirmed that
8. By the conduct set forth in section I, B, 1, above,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, and thereby engaged in, and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
10. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent was
discriminatorily motivated in the discharge of Elsie Cumi
Vaughn, and that allegation of the complaint should be
dismissed.
THE REMEDY
Having found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, and in
view of the nature and extent of the unfair labor practices
found herein to have been committed, which go to the very
heart of the Act, it will be recommended that Respondent
be required to cease and desist from in any manner
infringing upon the exercise of such employee rights.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4);
California Lingerie Inc., 129 NLRB 912, 915.
Having also found that Respondent discriminatorily
discharged Holland, Stewart, and McGowan, it will be
recommended that it offer to each of them immediate, full,
and unconditional reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights, privileges, or working conditions,
and make each of them whole for any loss of earnings
suffered by reason of the discrimination against him, by
paying to each a sum of money equal to the amount he
would have earned from the date of the discrimination
against him to the date when Respondent offers him
reinstatement as aforesaid, less his net earnings during the
period of such discrimination. Backpay with interest at the
rate of 6 percent per annum shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716. It
will also be recommended that Respondent be required to
preserve and, upon request, make available to authorized
agents of the Board, all records necessary or useful in
computing the amount of backpay due each of the
aforesaid employees.
Having additionally found that on October 5, and at all
times thereafter, Respondent unlawfully failed and
refused to recognize and bargain with the Union as the
collective-bargaining representative of the employees in
the aforesaid appropriate unit, I shall also recommend that
Respondent be required, upon request, to recognize and
bargain with the Union as such representative, and if an
understanding is reached, embody the same into a signed
agreement. It may be appropriately stated, at this point,
that even were I to conclude, as Respondent contends, but
which contention I have rejected, that the Union never
made an appropriate demand for bargaining, I would
nonetheless recommend a bargaining order. For even if no
violation of Section 8(a)(5) in a technical sense occurred,
a good -faith but erroneous doubt as to appropriateness of the unit
is not a defense to an otherwise meritorious charge of refusal to
bargain See Owego Street Supermarkets , Inc., 159 NLRB 1735,
1742 , and the cases there referred to
BENSON WHOLESALE CO. 553
the record shows that the Union, when it made its
bargaining demand on Respondent, represented an
overwhelming majority of the employees in the unit; that
immediately upon receipt of such demand, Respondent set
upon an unlawful course of conduct designed to destroy
that majority. This fact makes it amply clear that
Respondent has completely rejected the collective-
bargaining principle. Therefore, to prevent Respondent
from reaping the benefits of its own unlawful conduct, and
to effectuate the policies of the Act, it is necessary to
restore as nearly as possible the situation which would
have obtained but for Respondent's unfair labor practices.
The Board and the courts agree that in such
circumstances, to remedy the violations of Section 8(a)(1),
if not of Section 8(a)(5) of the Act, an employer who
engages in such unlawful conduct should be required to
bargain with the Union, on request. D. H. Holmes
Company, Ltd. v. N.L.R.B., 179 F.2d 876, 879 (C.A. 5);
Piasecki Aircraft Corporation v. N.L.R.B., 280 F.2d 575,
591 (C.A. 3), cert. denied 364 U.S. 933; N.L.R.B. v. Delight
Bakery Inc., 353 F.2d 344 (C.A. 6); Editorial "El
Imparcial" Inc. v. N.L.R.B., 278 F.2d 184 (C.A. 1);
N.L.R.B. v. Falstaff Distributing Co., 209 F.2d 265, 268
(C.A. 8); Lutst Truck Lines, 160 NLRB 530; Mock Road
Super Duper, Inc., 156 NLRB 983. Cf. N.L.R.B. v.
Flomatic Corporation, 347 F.2d 265 (C.A. 2).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the National
Labor Relations Board order that Benson Wholesale
Company, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees
regarding their activities on behalf of Retail, Wholesale
and Department Store Union, AFL-CIO, or any other
labor organization.
(b) Asking employees to report on the union activity of
their fellow employees.
(c) Threatening to discharge employees for talking
about Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization.
(d) Telling employees that credit reports were being
drawn on them because of their concerted activity.
(e) Soliciting employees to abandon their activities on
behalf of Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization.
(f) Threatening to abandon plant expansion plans, or to
withhold employee benefits, if its employees continue to
support a labor organization , or promising benefits to any
employee to withhold support from any labor organization.
(g) Threatening to close down its operations if the
employees select union representation.
(h) Telling employees that the Union could not do them
any good and can only lead to trouble for everybody.
(i) Pretextuously designating employees as supervisors
to prevent them from engaging in concerted or union
activity.
6) Failing or refusing to bargain collectively with Retail,
Wholesale and Department Store Union, AFL-CIO, as the
exclusive collective-bargaining representative of its
employees in a unit composed of all its employees
employed at its Geneva, Alabama, warehouse, including
truckdrivers, but excluding office clerical employees,
printshop employees, truck mechanics, rack service
employees, salesmen, guards, and supervisors as defined
in the aforesaid Act, as amended.
(k) Discouraging membership in Retail, Wholesale and
Department Store Union, AFL-CIO, or any other labor
organization of its employees, by discriminatorily
discharging, or in any other manner discriminating
against , any employee in regard to his hire, tenure, or
other term or condition of employment.
(1) Changing the wages, hours, or working conditions of
its employees in the aforementioned unit, without first
bargaining with Retail, Wholesale and Department Store
Union, AFL-CIO, as the collective-bargaining
representative of the employees in said unit.
(m) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action found
necessary and designed to effectuate the policies of the
aforesaid Act:
(a) Upon request, recognize and bargain collectively
with Retail, Wholesale and Department Store Union,
AFL-CIO, as the exclusive collective-bargaining
representative of its employees in the aforesaid unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and if an
understanding is reached embody such understanding into
a signed contract.
(b) Offer to Leon Holland, Jr., Robert J. Stewart, and
William J. McGowan, severally, immediate, full, and
unconditional reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights, privileges, or working
conditions, and make each whole for any loss of earnings
he may have suffered, in the manner set forth in the
section hereof entitled "The Remedy."
(c) Notify Leon Holland, Jr., Robert J. Stewart, and
William J. McGowan, severally, 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.
(d) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary or useful in
computing the amount of backpay due, as herein provided.
(e) Post at its warehouse in Geneva, Alabama, copies of
the attached notice marked "Appendix." 74 Copies of
said notice, to be furnished by the Regional Director for
Region 15, after being duly signed by its authorized
74 In the event that this Recommended Order is adopted by the a decree of a United States Court of Appeals, the words "a Decree
Board, the words "a Decision and Order" shall be substituted for of the United States Court of Appeals Enforcing an Order" shall
the words "the Recommended Order of a Trial Examiner" in the be substituted for the words "a Decision and Order "
notice In the further event that the Board's Order is enforced by
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.75
It is further recommended that the complaint herein, to
the extent that it alleges that Elsie Cumi Vaughn was dis-
criminatorily discharged, be, and the same is, dismissed.
79 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 15, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT coercively interrogate you regarding
your activities on behalf of Retail , Wholesale and
Department Store Union , AFL-CIO , or any other
union.
WE WILL NOT ask you to report to us on the union
activity of your fellow employees ; solicit you to
abandon your support of any union ; draw credit
reports on you because of your support of any union;
or threaten to discharge you because of your
assistance to or support of any union.
WE WILL NOT threaten to close down our
warehouse, or threaten to abandon plans to expand
the same, because you decide to select a union to
represent you.
WE WILL NOT tell you that a union can do you no
good , and can only lead to trouble for everybody.
WE WILL NOT threaten to withhold benefits from
you because you assist or support a union , or promise
you benefits to withhold assistance or support from
any union.
WE WILL NOT pretextuously designate any
employee as a supervisor to prevent or discourage
said employee from supporting or assisting any union
WE WILL NOT discharge or otherwise discriminate
against any employee because of his membership in
or support of any union.
WE WILL NOT make changes in your wages, hours,
or working conditions without first bargaining with
Retail, Wholesale and Department Store Union,
AFL-CIO, as your collective -bargaining
representative.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of the right to
self-organization , to form labor organizations , to join
or assist Retail, Wholesale and Department Store
Union , AFL-CIO, or any other labor organization, to
bargain collectively through representatives of your
own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any and all
such activities.
WE WILL, on request , recognize and bargain with
Retail , Wholesale and Department Store Union,
AFL-CIO, as the exclusive collective-bargaining
representative of our employees in a unit composed of
all employees at our Geneva, Alabama, warehouse,
including truckdrivers , but excluding office clerical
employees , printshop employees , truck mechanics,
rack service employees , salesmen, guards, and
supervisors as defined in the aforesaid Act, regarding
their rates of pay, wages , hours of employment, and
other terms and conditions of employment , and if an
understanding is reached embody the same into a
signed contract.
WE WILL offer Leon Holland, Jr., Robert J. Stewart,
and William J. McGowan, severally, reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights,
privileges , or working conditions , and make each of
them whole for any loss of pay suffered by reason of
the discrimination practiced against him , as provided
in the Trial Examiner 's Decision.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above-named or any other labor organization.
BENSON WHOLESALE
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Leon Holland, Jr., Robert J.
Stewart, and William J. McGowan, 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 discharge from the
Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.