Davis Wholesale Co., Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1967

165 N.L.R.B. 271 (N.L.R.B. 1967)

DAVIS WHOLESALE CO.
Davis Wholesale Co., Inc. and Food Store
Employees Union Local #34 7, Amalgamated
Meat Cutters and Butcher Workmen of
North America, AFL-CIO. Cases 9-CA-3599
and 9-CA-3742.
June 12, 1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 3, 1967, Trial Examiner Robert E.
Mullin issued his Decision in this proceeding, finding
that 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 Respondent
had not engaged in certain other unfair labor
practices, and recommended that allegations of the
complaint pertaining thereto be dismissed.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision, which included supporting
arguments.
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 these cases 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 the entire
record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.2
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, Davis Wholesale
Co., Inc., Culloden, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as hereinafter modified:
1. In the fifth sentence of paragraph 2(f) delete
the word "by" and substitute the word "be."
2. In the fifth paragraph of the Appendix attached
to the Trial Examiner's Decision, beginning with the
second sentence, delete the words "to his former or
substantially equivalent position without prejudice,"
as these words are thereafter repeated.
3. In the seventh paragraph of the Appendix,
delete from the unit description the words "office
271
clerical guards" and substitute the words "office
clerical employees, guards."
I In fn 19 of his Decision, the Trial Examiner found that
employee Gibbs was suspended on May 28, 1965, in fn 44 he fixes
the date at May 27 The record shows, and we rind, that the
correct date is May 28, 1965 In the third and fourth from last
paragraphs of sec D, 1, of his Decision, the Trial Examiner refers
to "Lintel Crum" and "Louis Crum " The record shows this is the
same person, and the correct name is Louel In the third sentence
of fn 10 of his Decision, the Trial Examiner refers to "President
Johnson", this should read "President Davis "
2 The Trial Examiner recommends that certain of the
allegations of the complaint pertaining to Sec 8(a)(1) be
dismissed, and further that the allegation that the suspension and
ultimate dismissal of Dueird Pennington violated Sec 8(a)(3) and
(1) be dismissed In the absence of exceptions thereto, we adopt
these recommendations pro forma
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: The last hearing in
the above-captioned consolidated cases was closed on
June 13, 1966, after the taking of evidence in Case
9-CA-3599, on October 19-22, 1965, and in Case
9-CA-3742 on March 3, 1966, all of which hearings were
held in Huntington, West Virginia. The complaint in Case
9-CA-3599, issued by the General Counsel of the National
Labor Relations Board, and based on charges duly filed
and served,' alleged that the Respondent had engaged in
unfair labor practices proscribed by Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended.
Subsequent to the hearing on that complaint in October
1965, the General Counsel issued a complaint in Case
9-CA-3742,2 alleging further violations of Section 8(a)(3)
and (1) by the Respondent. A motion to reopen the record
in the first hearing and consolidate the two proceedings
was granted. Thereafter, a hearing on the issues in the
latter case was held on March 3, 1966. Subsequent to that
hearing, the Trial Examiner issued an order requiring that
the General Counsel produce for inspection by the
Respondent certain documents which had been in issue
during the original hearing. To provide the Respondent an
opportunity to cross-examine any of the witnesses to which
these documents referred, the hearing was reopened on
June 13, 1966. At that time the Respondent stated that it
did not desire any further cross-examination of the
witnesses in question.
At that same time, the General Counsel and the
Respondent moved that the above-numbered cases be
consolidated with Case 9-CA-3839, the complaint in
which had issued on March 31, 1966, and with Case
9-CB-1281, the complaint in which had issued on
February 28, 1966. This motion was vigorously opposed by
counsel for the Charging Party. After consideration of the
oral argument of counsel, the Trial Examiner denied the
motion and closed the hearing in Cases 9-CA-3599 and
3742.
' The original charge in Case 9-CA-3599 was filed on May 27,
1965
2 The original charge in Case 9-CA-3742 was filed on
November 2, 1965 On November 8, 1965, an amended charge
was filed
165 NLRB No. 39
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its respective answers, duly filed, the Respondent
conceded certain facts with respect to its business
operations, but denied the commission of any unfair labor
practices. At the hearings, all parties were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, and to argue
orally. Various motions to dismiss, made by the
Respondent at the close of the hearings, are disposed of as
appears hereinafter in this Decision. The parties waived
oral argument. Subsequent to the close of the first two
hearings the General Counsel submitted a brief. No briefs
were received from any of the other parties.3
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a West Virginia corporation, is
engaged in Huntington and Culloden, West Virginia, in the
sale of wholesale grocery items. During the 12 months
preceding the original hearing, a representative period, the
Respondent had a direct outflow of products, in interstate
commerce, valued in excess of $50,000 which were sold
and shipped directly from its location in Huntington, West
Virginia, to points outside that State. Upon the foregoing
facts, the Respondent concedes and I find that Davis
Wholesale Co., Inc., is engaged in commerce within the
meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union Local#347, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called Union, is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Introduction
In the spring of 1965, the Respondent had
approximately 80 people employed at its warehouse and
facilities in Huntington . In April and May of that year the
Union began an intensive organizational drive among those
employees. The complaint in Case 9-CA-3599 alleges that
during the ensuing weeks the Respondent engaged in
various acts of interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act and of discrimination
in violation of Section 8(a)(3). It further alleges that the
Respondent, in violation of Section 8(a)(5), unlawfully
refused to bargain with the Union on and after May 19,
1965. The complaint in Case 9-CA-3742 alleges that the
Respondent discriminatorily terminated or laid off three
named employees during the period from July through
November 1965. All of these allegations are denied in their
entirety by the Respondent.
3 As noted earlier, on June 13, 1966, the Trial Examiner denied
the motion to consolidate Cases 9-CA-3839 and 9-CB-1281
with 9-CA-3599 and 9-CA-3742 Briefs in Case 9-CA-3599 were
due on November 29, 1965, and in Case 9-CA-3742 on March 22,
1966. In neither instance did the Respondent file any brief or
memorandum prior to the due date. On October 26,1966, however,
the Respondent submitted a brief to the Trial Examiner on the
issues in all of the four above - numbered cases Immediately
thereafter the Charging Party moved that this brief be rejected on
the grounds that it was submitted long past the date when due and
Case 9-CA-3599
A. The Union Campaign; Alleged Interference, Restraint,
and Coercion; Findings and Conclusions With
Respect Thereto
In the latter part of April 19654 several employees of the
Respondent contacted a representative of the Charging
Party to secure assistance in organizing their coworkers.
Among this group were two of the truckdrivers,
Dale Gibbs and George Bias. Gibbs and Bias, along with
several of their fellow employees, signed cards authorizing
the Union to represent them, in the period from April 26 to
the first of May. Thereafter, some of the employees,
including particularly Gibbs, actively solicited their fellow
workers to sign authorization cards. Sherwood Spencer,
secretary-treasurer of the Union, and the organizer most
instrumental in the early stages of the campaign to
unionize the Respondent's employees, described Gibbs as
the union "contact man." At a union meeting held for the
Davis employees in Huntington, on Saturday, May 15,
Spencer concluded that the Union had secured cards from
a majority of employees and that he would request
recognition and bargaining on their behalf. On May 17, he
wrote a letter to the Respondent, wherein he requested
that the latter recognize and bargain with the Union. In a
letter dated May 19, the Employer rejected this demand.
The facts in connection with this issue will be discussed
more fully later in this Decision.
The witnesses for the General Counsel attributed many
acts of interference, restraint, and coercion to the
Respondent's supervisory hierarchy during the month of
May. One of those who figured most prominently in this
testimony was Edward Frazier, foreman of the night shift.
To the testimony of these employees and that of Frazier we
will now turn.
John Valentine testified that about May 4, Frazier
questioned him as to what he knew about the Union and
when he admitted having signed a card, Frazier told him
that he had made a bad mistake, that "old man Davis will
not accept the Union."5 Frazier conceded having had a
conversation with the employee along these lines, and that
he had asked Valentine what he knew about the extent to
which the employees had signed up for the Union.
According to Valentine, about 2 days later , Frazier
questioned him again , this time to ascertain whether the
employee had changed his mind about aligning himself
with the Union. Valentine testified that when he declared
that he had not, Frazier pointed out that it would be very
easy to discharge an employee such as Valentine by
accusing him of having destroyed some of the
merchandise in the warehouse, even though Frazier
himself might have done the damage. At the hearing,
Frazier asserted that he had no recollection of the second
conversation and denied having had it.
Donald Watts testified that about May 10, Frazier came
to where he was working in the warehouse to ask him what
that its purported discussion of all four of the above cases
constituted a flouting of the Trial Examiner's order denying the
motion to consolidate The motion of the Charging Party is well
founded Since the Respondent's brief was untimely filed, insofar
as it relates to Cases 9-CA-3599 and 3742, it must be, and is,
rejected for any consideration with respect to the instant
Decision
' All dates referred to hereinafter are for the year 1965, unless
specifically noted otherwise
5 Lewis A: Davis was president of the Respondent
DAVIS WHOLESALE CO.
he knew about the arrival of the Union. According to
Watts, after he acknowledged having heard about the
organizational campaign , Frazier volunteered the
comment that if Watts signed up for the Union he would be
sorry because Mr. Davis, the company president, would
close the warehouse before he would recognize the Union.
Watts testified that in two subsequent conversations on
this subject during the next 24 hours, Frazier criticized
him for having failed to discuss the matter with him earlier
and declared that, as far as the other employees on the
shift were concerned, "every man he had working for him
had crossed him but one...." Frazier acknowledged
having had some conversation with Watts on the subject of
the union campaign and that he had told the employee that
all except one of the men on his shift had signed up for the
Union. According to Frazier, during the conversation he
told Watts the name of this one employee who had refused
to sign an authorization card. He further testified that if he
had ever stated that Mr. Davis would close the warehouse
in the event the employees organized, "I don't
remember."
Charles E. Hightower testified that about May 17,
Frazier questioned a group of employees in the warehouse
about the Union. Included in the group, in addition to
Hightower, was John Valentine and Ancil Adkins.
According to Hightower, Frazier told them that because
they had signed union cards, he felt that they had backed
out on him, they had done the wrong thing and they
"would never get away with it.... that the old man would
never let the Union come in, that he would close the doors
first." The foregoing account of the conversation
attributed to Frazier was corroborated by both Valentine
and Adkins. Frazier denied that he had any conversation
about the Union on May 17, but did not specifically deny
any other aspects of this particular testimony.
Emil J. Loftis testified that on May 18, while he was
riding home from work with Frazier, the foreman
questioned him as to his knowledge of the organizational
campaign . According to Loftis, after he acknowledged that
he himself had signed a card, Frazier told him that
"Mr. Davis would not allow a union to go in the warehouse,
that he would close the doors first." Frazier testified that
he could not recall having had such a conversation.
Ralph O. Chaney and Ancil Adkins testified that about
May 19, Frazier questioned them and several of the other
employees about the organizational drive and suggested
that the Employer knew who had signed up for the Union.
According to Chaney, at one point , when Adkins asked
Frazier, "Don't you think we need a union ?" the foreman
6 Donald Watts testified that about May 26, Frazier told him
that 83 percent of the Respondent's employees had signed up for
the Union Watts' testimony as to this conversation was credible
and it was neither denied nor contradicted by Frazier
r The quotation is from Frazier' s testimony.
8 There was some confusion as to the approximate date of this
incident However, the credible testimony of Lindsey Finley,
Charles Hightower, and John Valentine was that it occurred
about the second week in May
0 It was also alleged by the General Counsel that for a short
period in May, Frazier discriminatorily reduced the hours of many
of the employees on the night shift. The testimony in support of
this allegation , however, was not convincing Whereas
Donald Watts, Estel Loftis, Emil Loftis, and William Pack
testified that that month they were sent home on several
occasions before the end of the shift, Lindsey Finley, another
employee, testified that he believed that his hours had been cut
"very little" that month Thurman Johnson, superintendent of the
273
answered in the negative and then went on to ask them
why everyone on the night shift had "crossed him," as he
expressed it, by signing up for the Union.6 Frazier then
asked Chaney why he had signed a union card. When the
employee told him that it was to get more pay and less
hours, Frazier told him that if he was dissatisfied with the
hours he could find another job, that insofar as the Union
was concerned "The old man won't stand still for it ... he
would close the doors first...." At the hearing, Frazier
could not recall the conversation on the particular date to
which Chaney and Adkins testified. On the other hand, he
conceded, "I have said that Mr. Davis would close the
doors before he would accept the Union."7
There was testimony that during the spring of 1965 it
was customary for the employees on the night shift to be
given a coffeebreak if they had completed the loading of
nine trailers by 3 a.m. Several employees testified that
about the second week in May," Frazier discontinued the
practice for several nights on the ground that most of the
men had failed to support him and had signed up for the
Union. According to Charles Hightower, during the middle
of the shift on the night in question , Ancil Adkins asked
Frazier whether they would have the usual coffeebreak
that night. Hightower testified that Frazier replied, "Well,
I decided to give you a coffeebreak if you loaded nine
trucks.... Now, I have decided to take it away from you
for what you have done to me." Ancil Adkins, one of the
employees present, testified that he asked the foreman
what he meant by the comment. According to Adkins,
Frazier then replied, "You think I don't know that every
damn man in this building signed for a union except three
of them?" The employees testified that although Frazier
eliminated the coffeebreak for several nights in a row, he
thereafter resumed the practice. At the hearing, Frazier
denied ever having canceled the coffeebreak for
discriminatory reasons and testified that the only time he
failed to accord the privilege to the employees was on
those occasions when they had failed to load the requisite
number of trailers. On the other hand, he never
specifically denied the conversation on the subject which
the foregoing named employees attributed to him. It is my
conclusion that Frazier's conversation with the employees
occurred substantially as they testified and that their
foreman did tell them that he was eliminating the
coffeebreak because of the manner in which the night-shift
personnel had endorsed the Union."
Thomas E. Templeton testified that on May 21,
Superintendent Thurman Johnson10 stopped him as he
was about to leave the warehouse and asked him whether
warehouse, and President Lewis Davis testified that May and
June were generally the slowest months of the year as far as their
business was concerned Frazier testified that the only cut in
hours which the employees experienced in May was due to lack of
business Some of the timecards were introduced by the
Respondent for this period, most of them with reference to
Estel Loftis These offered no support to the assumption of that
witness that his hours during May were less for discriminatory
reasons Accordingly, it is my conclusion that the General
Counsel failed to establish by a preponderance of the evidence
the blanket allegation contained in paragraph 6 of the complaint
that the Respondent reduced the working hours of employees in
order to discourage their union activities
10 Johnson was also a vice president of the Respondent. At the
hearing in this matter he was referred to at times as the
"supervisor" of the warehouse and at other times as the
"superintendent." When on the stand, President Johnson
testified that Johnson was the superintendent of the warehouse.
The latter title is used hereinafter in this Decision
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was going to the union meeting that night. According to
Templeton, after he responded to this question with the
statement that he did not know whether he would or not,
his superior declared, "Son, you better think it over before
it's too late." At the hearing, Johnson conceded that he
had had a conversation with the employees on the date in
question and that it had occurred substantially as
Templeton had testified."
During the latter part of May and during the ensuing
months of June, July, and August, a number of the
employees signed withdrawal statements which had been
prepared by the Company and which declared that the
signatory did not desire to have the Union represent him.
The Respondent contends that each of these declarations
was the result of a voluntary act on the part of the
employee. The General Counsel, on the other hand,
alleges that some of them were secured by coercive tactics
on the part of Foreman Frazier.
Donald Watts testified that about May 26, Frazier asked
him whether he would sign a statement that he was
withdrawing from the Union. According to Watts, Frazier
told him at the time that Superintendent Johnson had left
orders that the employees were to sign such statements
and that failure to do so could result in dismissal. Watts
testified that he suggested that under those circumstances
Frazier would probably have to discharge him because he
had no desire to withdraw from the Union. According to
the employee, at that point, Frazier told him that if Watts
would sign a withdrawal statement he (Frazier) would
assure him that he would keep his job. Watts testified that
although he resisted signing such a statement that
evening, he did, as Frazier also requested, relay to several
of his coworkers that the supervisors wanted them to sign
the company-prepared withdrawal slips. Watts likewise
testified that on a subsequent occasion , some weeks later,
when Frazier again raised the subject and suggested that
he sign a withdrawal card, he accompanied the foreman to
Mr. Davis' office and signed such a card.12
John Valentine testified that after a conversation with
Watts he asked Frazier_ about the withdrawal statements
and that the foremen thereupon presented a prepared
statement to him for his signature.''' According to
Valentine, as the foreman did so, he told Valentine, "This is
to secure your job...." The employee testified that after
he had executed the statement, Frazier said to him,
"Things will probably get better now since you signed this
Slip."14
Frazier denied that he had coerced anyone into signing
these withdrawal statements. According to the foreman,
he merely made available for the employees on his shift
the opportunity to execute these statements after they had
expressed a desire to get out of the Union. In this
connection Frazier testified that a supply of the
withdrawal statements was kept in Mr. Davis' office and
that on a number of occasions he escorted employees to
that office to provide them with a chance to sign their
names. Frazier further testified that several of the
employees came to him and asked for the slips.
Frazier was an outspoken opponent of the Union from
the outset of the attempt to organize the Respondent's
employees. Whereas he denied some of the comments and
remarks attributed to him in the testimony set forth above,
he conceded that much of it was substantially correct. The
employees who testified as to their various conversations
with him on the subject impressed me as credible.
Consequently, and in view of the numerous admissions
which Frazier made as to what he had said to employees
on the subject of unions, I conclude that their version of
these conversations, as related earlier herein, is the more
plausible. Moreover, and in view of the numerous threats
of economic reprisal which Frazier predicted would befall
the employees on his shift if they succeeded in bringing a
union into the warehouse, it is not surprising that
thereafter many of these same men told Frazier that they
wanted to sign one of the statements which the Company
made available whereby they could express their desire to
withdraw from the Union. Although Frazier denied that he
had any authorization from management to speak as he
did,') his action in connection with the withdrawal
statements and his outspoken remarks against the Union
constitute conduct for which the Respondent must be held
responsible. N.L.R.B. v. American Casting Service, Inc.,
365 F.2d 168, 173 (C.A. 7).
Accordingly, and in view of the above findings, it is my
conclusion that the Respondent violated Section 8(a)(1) of
the Act by the following action and conduct of Foreman
Edward Frazier: (1) His interrogation of Valentine on
several occasions as to that employee's union activities
and his statement to the employee in this context that it
would be easy to fire him on a fabricated charge that the
11 James E Belcher testified that about May 25 he asked
Charles Christian, foreman of the day shift, whether he thought
the employees would get a bonus that year and how large it would
be According to Belcher, Christian thereupon stated that the
bonus would be smaller than he had originally assumed it would
be and added, "You boys asked for it to be smaller, and it
was " Christian testified that he could remember no such
conversation with Belcher Belcher conceded that there was no
mention of the Union at any time during this conversation From
other testimony it appears that customarily the decision as to
whether the employees would participate in an employee profit-
sharing plan, or bonus, was never made until the latter part of
August when the Company closed its fiscal year In view of
Belcher's concession that Christian did not mention the Union
during his conversation with the employee, the statement of the
foreman was , at worst, ambiguous In any event , I conclude that
the evidence does not sustain the allegation in paragraph 5(d)(1) of
the complaint to the effect that Christian informed an employee
that if the Union were successful the Respondent would decrease
the bonuses paid the employees
12 The withdrawal statement which Watts eventually executed
was received in evidence. It is dated July 6, 1965
11 It was conceded that these statements were prepared by the
Respondent and read as follows
This is to advise I do not want Food Store Employees Union
to represent me with Davis Wholesale Company, Inc I sign
this on my own free will
Employee
"Valentine testified that this incident occurred 2 to 3 months
after the Union began its organizational drive The signed
withdrawal slip of this employee was offered in evidence by the
Respondent It was dated July 29, 1965
15 President Lewis Davis testified that after he learned that a
union was soliciting the support of his employees, he instructed
Superintendent Johnson and the foremen that they were not to
say anything to the employees about the Union However,
Mr Davis could not recall whether the employees were ever
informed that the supervisory staff had received orders of this
character Under these circumstances, any instructions of the
type to which Mr Davis testified in no way immunized the
Respondent from the responsibility which the Board and the
courts have attributed to an employer for the antiunion conduct of
foremen and supervisors
DAVIS WHOLESALE CO.
employee had damaged company property; (2) his
interrogation of Watts as to whether the latter had signed a
union card and his declaration to Watts that those who
signed such cards would be sorry because Mr. Davis
would "close the warehouse before he would recognize the
Union", (3) his subsequent conversation with this same
employee in which he stated that all the men on the shift
except one, whom he named, had signed union
authorization cards, thereby creating the impression of
having engaged in surveillance of the employees'
organizational activities; (4) his discontinuance of the
coffeebreak for several nights for the stated reason that
most of the employees on that shift had failed to support
him by signing up for the Union; (5) his interrogation of
Hightower, Valentine, and Ancil Adkins about May 17
when he told the employees that he felt that those who had
signed union cards had deserted him and that they "would
never get away with it . that the old man would never let
the Union come in, that he would close the doors first";
(6) his interrogation of Emil Loftis about May 18 as to that
employee's knowledge of the organizational campaign and
his statement at the time that "Mr. Davis would not allow a
union to go in the warehouse, that he would close the doors
first"; (7) his declaration to Ralph Chaney and
Ancil Adkins about May 19, after questioning them about
the union campaign, that the men on his shift had "crossed
him," by signing up for the Union, that those who did not
like the Respondent's hours and working conditions
should look for another job, and that the president of the
Company "won't stand still for [a union] ... he would
close the doors first"; (8) his solicitation of a union
withdrawal statement from Donald Watts and his
declaration to the employees that failure to execute such a
statement could result in discharge;'[' and (9) his
solicitation of a similar union withdrawal statement from
John Valentine on the ground that such action would help
Valentine secure continued employment and his forcast,
after the employee executed the statement, that "Things
will probably get better now since you signed this slip.""
It was likewise a violation of Section 8(a)(1) on the part
of the Respondent, in the context of threats such as those
uttered by Frazier, for Superintendent Johnson to question
Templeton as to whether the employee planned to attend a
union meeting that night and then to admonish Templeton
that he "better think it over before it's too late."
"I N L R B v. Austin Powder Company, 350 F 2d 973, 975
(C A 6),,H W. Elson Bottling Company, 155 NLRB 714
"The General Counsel also alleged in paragraph 5(c)(x) of the
complaint that Frazier had falsely accused several employees of
drinking alcoholic beverages prior to reporting for work in an
attempt to dissuade them from engaging in union activity In
support of this allegation the General Counsel offered in evidence
letters dated May 28, which Superintendent Johnson sent to
Ancil Adkins, Charles Hightower, and Jerry White In these
letters, Johnson reprimanded them on the ground that the
preceding night they had reported for work showing the effect of
having drunk intoxicating liquor and threatened them with
discharge in the event there was a repetition of the alleged
misconduct Adkins and Hightower testified with respect to this
incident, as well as Frazier Both Adkins and Hightower conceded
that they had drunk beer prior to reporting for duty on the night in
question Adkins stated that each of them had drunk two bottles
In this connection, however, neither Adkins nor Hightower was
entirely plausible More particularly was this true of Adkins, who,
at one point, testified that he had never been intoxicated on beer
275
B. The Suspensions of Dale Gibbs, Dueird Pennington,
and George Bias; Contentions of the Parties; Findings and
Conclusions With Respect Thereto
On May 28 the Respondent suspended Dale Gibbs, for 2
weeks without pay, allegedly for having threatened a
fellow employee. On May 31, the Respondent suspended
Dueird Pennington for 1 week without pay, allegedly for
threatening another employee. On June 16, George Bias
was suspended for 3 days without pay, allegedly for having
failed to complete an accident report. The General
Counsel contends that all of these suspensions were
discriminatory. These allegations are denied in their
entirety by the Respondent.
All three of the foregoing were truckdrivers. All of them
had been active in the union campaign from its outset.
Gibbs had secured almost 30 signed authorization cards
from his coworkers in the warehouse. Spencer, the union
representative in charge of the campaign, described Gibbs
as the Union's "contact man." Similarly Pennington and
Bias had engaged in extensive organizational efforts
among their fellow employees on behalf of the Union.
Superintendent Johnson testified that he suspended
Gibbs after he received a report that the latter had
threatened Raymond Varney when Varney had refused to
sign a union card. Shortly before Gibbs' suspension,
President Davis and Johnson called Gibbs to the office for
questioning. According to the employee, he gave the
following account to his superiors: A short time before he
had asked Varney, a leadman in what was known as the
IBM room, to sign a union card. The latter replied to this
request with an obscene epithet18 and Gibbs reacted to
Varney's remark with the statement that he "didn't
appreciate [Varney's] answer at all" and that he "could
knock the-out of [Varney].", Johnson testified that he
investigated the charge that Gibbs had threatened Varney.
The latter, however, was not present at the time Davis and
Johnson called Gibbs before them, and no action was
taken against him for the role he had played in the
exchange with Gibbs. At the hearing, Mr. Davis was called
to the stand by the General Counsel as an adverse witness.
In connection with this matter, Mr. Davis testified that
Varney would be called as a witness by the Respondent
before the hearing was concluded. In fact, however,
even after having drunk as many as 15 to 20 bottles of it. Frazier
testified that he detected the odor of alcohol, or beer, on their
breath when these men came to work on the night in question,
that he reprimanded them at the time, and that after discussing
the matter with Johnson, the latter sent each of the employees a
written reprimand. The Respondent, of course, was free to
enforce any rules it felt essential to the proper maintenance of
order and efficiency in the operation of its business A rule that
forbade an employee from reporting for duty while in any way
under the influence of intoxicants was certainly reasonable. In
view of the concession on the part of the two employees who
testified about this incident that they had, in fact, indulged in a
certain amount of drinking prior to reporting at the warehouse
that night, I conclude that as to this allegation the General
Counsel has failed to establish by a preponderance of the
evidence that the enforcement of this rule by the Respondent was
discriminatory
'" The phrase, as quoted by Gibbs, appears at p 107 of the
transcript
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Varney was never thereafter called by the Respondent and
no explanation was offered for the failure to do so.19
The suspension of Pennington presented a situation
similar to that involving Gibbs. Pennington testified that
about May 27, Johnson called him to the office to question
him as to whether he had told Tom Ball , another
employee, that if Ball did not sign a union card he would
"string him up ." 20 Pennington denied that he had made
any such threat and told Johnson that all he had done was
to ask Ball whether he would sign up for the Union as had
many of the other employees , and that when Ball refused,
he told him that that was his privilege . Ball was not
present during this conference in Johnson ' s office.
Nevertheless , immediately thereafter Johnson handed
Pennington a letter which stated that he was being
suspended for 1 week on the ground that he had
threatened another employee with bodily harm.21
Johnson gave very little testimony on this incident, other
than to state that he had suspended Pennington for having
made threats of bodily harm to Tom Ball. The latter
employee was never called as a witness by the Respondent
and no explanation was offered for the nonappearance of
this individual at the hearing. Pennington testified that
about a week after his return to work , he questioned Ball
as to whether the latter had ever reported to the Company
any threat by Pennington . According to Pennington, Ball
denied to him that he had ever made such a complaint.
About June 13, George Bias had a minor accident in
which the damage to the truck he was driving was limited
to a broken headlight. According to the employee, upon
returning to the terminal he reported the accident to
Foreman Christian who told him to fill out a report form.
The following morning he handed the completed form to
Christian , stating as he did so that he had filled it out the
best he could and asking that Christian help him if it was
incomplete . Bias testified that the next evening when he
returned to the warehouse , Superintendent Johnson
accosted him and angrily declared that he had not filled
out the reports properly. According to Bias,
that evening I come in , Thurman Johnson, he
throwed it down in front of me and acted like
something wild, . . . talked to me like a dog, worse
than I would talk to my own dog.... He said, ain't you
got enough sense to fill an accident report out? I told
him, I said , Thurman , I done the best I could . He said,
that 's not good enough . He said , you get it or else.
That same evening, Bias secured the rest of the
information needed to complete the report on the accident
and turned it over to the Respondent 's office. On June 15,
Johnson handed him a letter stating that he was being
suspended without pay from June 16 to 18 and that he was
not to report for work until June 21. The letter stated that
this action was being taken on the ground that Bias had
failed to complete the accident report ,22 and he had said
that he was not interested in doing so because it would be
the Company and not him that would be sued . Bias, on the
other hand , credibly denied that he had ever made such a
statement to Johnson or anyone else. At the hearing,
Respondent 's counsel asked no questions of Johnson as to
this incident and the superintendent gave no testimony as
to the circumstances which prompted him to suspend Bias.
''The letter suspending Gibbs was dated May 28, 1965, and
signed by Johnson The superintendent stated in this letter that
Gibbs was being suspended without pay for 2 weeks beginning on
May 28 and that he was not to report back for duty until June 14
20 The quotation is from Pennington 's testimony.
21 The suspension was for the period from May 31 to June 7
It is my conclusion that the General Counsel has proved
that these suspensions were discriminatorily motivated.
Whereas the Respondent denied that it had any
knowledge of the union activity of any of these employees,
the record is replete with evidence that during the weeks
preceding these suspensions the Respondent's
supervisory hierarchy of Johnson and Frazier had engaged
in interrogation , threats, and other conduct hereinabove
found to be unlawful interference , restraint , and coercion.
It is inferable on this record alone, and I so find , that the
Respondent was well aware that Gibbs, Pennington, and
Bias were among the most active union supporters in its
labor force. Apart from this finding however, the letters of
suspension to both Gibbs and Pennington state that the
conduct for- which they were being suspended "occurred
in a discussion about labor union ." From the language of
the letters alone, it is manifest that Gibbs and Pennington
were engaged in protected concerted activity at the time in
question . As found earlier , the Respondent never called to
the witness stand either Varney or Ball, the two whom
Gibbs and Pennington allegedly threatened. The latter two
employees credibly testified that in their conversations
with Varney and Ball they made no threats , and the
Respondent never produced any witness to prove the
contrary . Consequently , the Respondent cannot now
assert that in suspending these employees after an
investigation, it did not violate the Act. The situation here
is governed by the decision of the Supreme Court in
N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 22-23,
where the Court stated:
We find it unnecessary to reach the questions
raised under § 8(a)(3) for we are of the view that in the
context of this record § 8(a)(1) was plainly violated,
whatever the employer ' s motive.... In sum, § 8(a)(1)
is violated if it is shown that the discharged employee
was at the time engaged in a protected activity, that
the employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the
course of that activity, and that the employee was not,
in fact , guilty of that misconduct.
On the basis of the foregoing findings and in the light of
the interference and coercion found earlier herein, I
conclude that the suspension of Gibbs and Pennington
violated not only Section 8(a)(1) but Section 8 (a)(3) as well.
Further, because of this background and the severity of
the penalty meted out to Bias, I further conclude that the
Respondent 's real motive for suspending him, under the
circumstances set forth above, was to penalize him for his
identification with the Union. Accordingly, by his
suspension the Respondent also violated Section 8(a)(3)
and (1). I so find.
C. The No-Solicitation, No-Discussion Rule; Findings and
Conclusions With Respect Thereto
On May 28, the Respondent posted the following notice
on the employee bulletin board:
NOTICE TO ALL EMPLOYEES
It has come to the attention of this company that labor
union activities are interfering with working schedule
" There was no contention that the suspension was because
the accident was Bias' fault , or that he failed to report the
accident Initially, Bias did fail to obtain the name of the driver of
the other vehicle involved , but he did secure the name of the
trucking company that owned the vehicle On the evening of
June 14, he obtained the rest of the information needed , but the
following day , the Respondent suspended him.
DAVIS WHOLESALE CO.
and other matters. Therefore, all employees are
notified that there is to be no labor union activities or
discussion during working hours on the company
property at any time. Failure to observe these rules
will be grounds for immediate discharge.
Sincerely,
Davis Wholesale Company, Inc.
/s/ Thurman L. Johnson
Thurman L. Johnson, Supervisor
The employees testified that prior to the posting of this
notice they had never before, in the course of their
employment with the Respondent, had such a rule at the
warehouse.23 Both Superintendent Johnson and Mr. Davis
testified that the warning was necessary in order to
prevent the employees, while on duty, from gathering in
groups throughout the warehouse to discuss the issues in
the union campaign. According to these officials the
decision to post the notice in question was made solely to
eliminate this problem which, they stated, had become
acute during the latter part of May.
The Respondent, of course, was free to promulgate rules
regulating the activities of its employees during working
hours. Moreover, since, as has been stated many times,
"working time is for work" (Peyton Packing Company,
Inc., 49 NLRB 828, 843, enfd. 142 F.2d 1009 (C.A. 5), cert.
denied 323 U.S. 730), such rules are presumptively valid,
"in the absence of evidence that the rule was adopted for a
discriminatory purpose." Walton Manufacturing
Company, 126 NLRB 697, 698, enfd. 289 F.2d 177 (C.A. 5)
(citing Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793).
On the other hand, the term "working hours," customarily
includes rest periods, coffeebreaks, and other types of
mid-shift recesses. Insofar as the Respondent's rule
forbade discussion of the union issue by its employees
even during such times, the rule was invalid and a
violation of Section 8(a)(1). Stoddard-Quirk Manufacturing
Co., 138 NLRB 615-623; Miller Charles and Company, 148
NLRB 1576, 1580-81, enfd. 341 F.2d 870 (C.A. 2);
Minneapolis-Honeywell Regulator Company, 139 NLRB
849,851-852.
More particularly, however, the motive which prompted
the establishment of the rule must be examined. The
testimony of Davis and Johnson, the warehouse officials
adverted to above, was that the rule was required in order
to prevent the employees from wasting company time in
their discussion of the organizational campaign. On the
other hand, apart from their testimony, no other evidence
was offered to establish that the advent of the Union had
brought a disruption of production and plant discipline.
The rule prohibited only prounion activity. Yet, at the
same time that its strictures applied to such conduct,
Foreman Frazier freely engaged in the solicitation of
antiunion withdrawals, all on company time and with full
knowledge of President Davis and Superintendent
Johnson. The Respondent offered no explanation for this
disparate treatment.24 Consequently, the testimony of
Davis and Johnson as to the need for the rule is wholly
unpersuasive when considered against the background of
interference, restraint, and coercion which characterized
the Respondent's reaction to the arrival of the Union in the
23 Bias and Pennington were two of the employees who testified
to this effect This testimony was uncontradicted The
Respondent made no attempt to prove the contrary
24 Here it might be said, as the Board found with respect to a
similar issue ,". . the rule was posted, not in furtherance of any of
277
weeks that preceded the promulgation of the no-talking,
no-discussion rule. Moreover, during this same period, the
Respondent, as found earlier herein, discriminatorily
suspended several of its employees. In the light of such
facts, I conclude that the "Respondent's sudden adoption
of its rule evidenced a concern about union activity among
employees and that the rule was posted solely to stifle the
Union's organizing campaign." Ward Manufacturing, Inc.,
152 NLRB 1270, 1271. Since its establishment and
promulgation were for a discriminatory purpose, the
Respondent's action in this regard was a violation of
Section 8(a)(1).
D. The Evidence as to the Alleged 8(a)(5) Violations;
Findings and Conclusions with Respect Thereto
1. The appropriate unit
On May 17, 1965, Sherwood Spencer wrote the
Respondent Company that the Union represented "a
majority of the eligible employees, excluding salesmen,
office employees, guards and supervisory employees in
your plant." On behalf of the Union, Spencer requested
recognition and bargaining. In the same letter Spencer
stated, "We are prepared to deliver to you [or] to your
representative signed authorization cards showing our
majority so there can be no good-faith doubt as to our
majority status." On that same day, Spencer telephoned
the Respondent and sought to talk with Lewis A. Davis,
the president. The latter was ill at the time, but the
following day, Donald L. Davis, secretary-treasurer of the
Respondent, returned the call. Spencer repeated the
request contained in his letter and offered the company
official an opportunity to check the Union's card majority.
Mr. Davis declined the Union's request for recognition and
did not request to see the authorization cards or any other
proof of its majority.
On May 19, President Lewis Davis wrote the following
letter to Spencer:
We have your letter of May 17th and this will
acknowledge your phone conversation with
Mr. Donald L. Davis of the eighteenth advising you
had sent us the letter.
It is the Company's position that your union does
not represent a majority of our employees and there
has been no agreed description of an appropriate
bargaining unit . We believe that any question of
representation and appropriate unit can only be fairly
determined in an election conducted by the National
Labor Relations Board.
On May 21, Spencer replied to Davis with a letter in
which he stated that the Union felt that the appropriate
bargaining unit should include all production workers,
truckdrivers, loaders and helpers but exclude clerical
employees, supervisors, salesmen , guards and
professional employees. In this same letter Spencer
renewed his offer to prove the union majority by
presenting the authorization cards it had secured to Davis
for his examination or to any person the Company might
designate.
On June 1, President Davis wrote Spencer that the
Company had asked for a Labor Board election because a
Respondent 's legitimate interests of serving production, order,
and discipline, but to impede and thwart the Union's organization
of its employees " Electra Plastic Fabrics, Inc , 157 NLRB 1023,
1024
299-352 0-70-19
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of employees had reported having been
threatened by_ union advocates in connection with the
signing of the authorization cards and because he did not
believe the cards reflected the true sentiments of the
employees. Davis concluded the letter with the statement
that Spencer's description of the proposed unit was "not
sufficient or proper."'S
On June 7, Spencer replied to President Davis in a letter
wherein the union representative denied that any threats
had been made by its supporters or advocates. Spencer
protested the Company' s suspension of several
employees, alleged that the Company was trying to get its
employees to withdraw from the Union, and stated that as
a result the Union would be compelled to file additional
charges against the Company."' In closing, Spencer
renewed his offer to establish the union majority by a card
check.
Subsequent to the date of Spencer's last letter the
record reflects no further exchange of correspondence
between the parties.
The General Counsel alleged that "all employees
employed by Respondent at its place of business in
Huntington, West Virginia, excluding salesmen, office
clerical employees, guards, professional employees and
supervisors as defined in the Act," constitute an
appropriate unit for bargaining. This, of course, is
essentially the same unit as that described by the Union in
its letters of May 17 and May 21, wherein it set forth its
demand for recognition and bargaining.
In its answer, the Respondent denied the
appropriateness of the unit defined in the complaint
However, it offered no oral argument on the question, and
filed no brief subsequent to the hearing. Thus, other than
to voice its total opposition to the Union's unit request and
the appropriateness of the unit described in the complaint,
the Respondent has never revealed the specifics or
particulars on which it bases this objection. Nor has it, at
any time, stated what the Employer would consider an
appropriate bargaining unit for its employees.
The unit sought by the Union, and alleged by the
General Counsel as appropriate, is a plant unit with the
conventional exclusions. As such, the Board has stated
that since it is "one of the unit types listed in the statute as
appropriate for bargaining purposes, [it] is presumptively
appropriate, and should, other things being equal,
prevail...." Beaumont Forging Company, 110 NLRB
2200, 2201; Hygrade Food Products Corporation, 85
NLRB 841, 848. In its letter of May 21, the Union further
defined the unit which it sought to represent as "all
production workers, truckdrivers, loaders and helpers,"
exclusive of the same employees listed above. The Board
has frequently found that a unit so described is
appropriate. Santangelo & Co., 154 NLRB 1649, 1651;
Yankee Distributors , 152 NLRB 1018, 1025. In the light of
the Board decisions, there appears no valid objection to
the all-employee unit sought by the Union in its demand
for recognition and alleged as appropriate by the General
Counsel. Accordingly, I conclude that an appropriate unit
at the plant here involved consists of all the employees at
the Respondent's warehouse, exclusive of salesmen, office
clericals, guards, professional employees and supervisors
as defined in the Act.27
The parties stipulated as to the offer of a document
produced by the Respondent which listed its complete
payroll for the period from May 17 to 19, 1965. The
foregoing list, marked as General Counsel's Exhibit 2,
contains the names of 81 individuals. To the eligibility of
those listed for inclusion in the unit found appropriate we
will now turn.
The following groups of individuals on the list are among
those who should be excluded from the aforesaid unit: The
executives and supervisors: President Lewis A. Davis, Vice
President and Superintendent Thurman Johnson,
Secretary-Treasurer Donald L. Davis, Day Foreman
Charles Christian, Night Foreman Edward Frazier, and
two other supervisors , namely, James D. Morrison and
Francis O. Keeton;28theofficeclericals: Maxine McGinnis,
Phyllis Rice, Site Osborn, and Pauline Blair (Giordano
Lumber Co., Inc., 133 NLRB 205, 206); the salesmen:
A. O. Knipp, R. A. Blankenship, Herman McCallister,
J. O. Williams, Herbert Scites, Byron Conrad, and
Everett Christian (Taunton Supply Corp., 137 NLRB 221,
222; Giordano Lumber Co., Inc., ibid.; The Russel
Company, 107 NLRB 668, 669).29
The IBM room: The payroll lists eight individuals in
what is known as the IBM room. These are
Ronald Montcastle, John Mayfield, Thomas Ball, Dallas
Brammer, Leonard Cremeans, Kyle Lewis, Kelsey Elkins,
and Raymond Varney. These men are engaged in the
operation of electronic computer and business machines
of the type now used in large warehouses for processing
orders, maintaining inventories, and related matters. The
IBM room is located in the rear of the warehouse building
and away from the main office of the Company where the
office clericals are employed Superintendent Johnson
described the IBM employees as plant clericals They
work in two shifts, are hourly paid, punch the same
timeclock, work the same hours, and have the same fringe
benefits as do the warehouse employees.30
John Valentine, a warehouse employee, testified credibly
and without contradiction that occasionally an IBM
employee will replace a warehouse employee who is off
work for illness or some other reason. Also a number of the
IBM employees were either truckdrivers or
2s About May 18, 1965, the Respondent filed a petition for an
RM election On July 30, 1965, the Regional Director for Region 9
dismissed this petition on the ground that no question of
representation existed because a complaint alleging violations of
Section 8(aX5) had been issued concerning the Employer
26 On May 27, the Union filed the original charge in Case
9-C A-3599
27 Whereas at the time of the original hearing the Respondent's
warehouse was located at Huntington, in April 1966, the
Respondent moved its operations to a new facility located at
Culloden, West Virginia, about 25 miles distant from its original
site
28 Counsel for the Respondent conceded that all of the
foregoing named individuals were supervisors
29Two other employees , Robert Ball and Elmer Christian.
perform some selling duties Superintendent Johnson testified
that they work as truckdrivers about 2 days a week and are route
salesmen about 3 days a week The regular full- time salesmen
receive a salary plus commission and do not punch a timeclock In
contrast with the regular salesmen , Johnson testified that Ball and
Christian punch a timeclock even on those days when they are out
on their routes. Further, while acting as salesmen, although they
receive commissions, they are still paid by the hour Finally, and
of even greater significance as to their appropriate classification,
on the Respondent's payroll listing ((, C Exh 2) they are carried
as truckdrivers For these reasons, I conclude and find that Ball
and Christian should be included within the unit.
30 In contrast with the office clericals who come to work at
8 a in and have only one shift, the IBM employees are on two
shifts, the first of which begins at 7 a in , the same starting time as
that for the warehousemen and truckdrivers
DAVIS WHOLESALE CO.
warehousemen before their transfer to the IBM room."'
Superintendent Johnson is responsible for the IBM room
as well as all the rest of the warehouse employees and the
truckdrivers. The Union endeavored to organize these
employees, along with the rest of the men in the
warehouse and the truckdrivers. Four of the eight men in
the IBM room signed authorization card S.32 There is no
evidence that any other labor organization seeks to
represent them separately. In view of the foregoing
considerations and the obvious community of interest
which the IBM employees have with the rest of its
employees in the warehouse and the truckdrivers, I
conclude and find that they should be included within the
unit . The Sheffield Corporation, 134 NLRB 1101, 1103-05.
The General Counsel contends that Dallas Brammer
and Raymond Varney, both of whom are employed in the
IBM room, should be excluded as supervisors.
Superintendent Johnson described both of them as
leadmen, Brammer on the day shift, and Varney on the
night shift. Ronald Montcastle, an IBM employee on the
day shift, described Brammer as his "boss," stated that
Brammer gave him all his orders as to what to do, assigned
him overtime work, and told him when to go home.
Kelsey Elkins, an IBM employee on the night shift,
testified similarly with respect to Varney's duties.
According to Elkins, it was Varney who assigned him his
work, scheduled his hours, and told him when to work
overtime. Leonard Cremeans, another shift employee in
the IBM room, testified to the same effect as to Varney's
duties. Neither Varney nor Brammer was called to testify
by the Respondent. The testimony of the foregoing named
employees was credible and in no way was it contradicted
or denied. Accordingly, on the basis of the foregoing
findings, it is my conclusion that both Varney and
Brammer are supervisors within the meaning of the Act
and, therefore, should be excluded from the unit.
Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 435
(C.A. 8); N.L.R.B. v. Syracuse Stamping Company, 208
F.2d 77, 79 (C.A. 2). 33
After the exclusions necessitated by the foregoing
findings have been made, and based on the Respondent's
payroll for the period May 17-19, 1965, the roster of
employees within the appropriate unit as of that period is
as follows:
Johnny Merritt
C. R. Peterson
Ronald Montcastle
John Mayfield
Michael Stephens
Charley B. Smith
Paul Bias
Gordon Simpson
John Bias
B. E. Hayes
Frank Atkinson
Mack Perry
31 E g , Cremeans and Montcastle
32 Viz, Ronald Montcastle, Leonard Cremeans, Kyle Lewis,
and Kelsey Elkins
33 The General Counsel also contends that William David Davis,
a son of Lewis Davis, president of the Respondent, should be
excluded from the unit on the ground that he enjoyed special
privileges as an employee The evidence disclosed that
William Davis was a student during part of his employment period
but during the month of May 1965, he appears to have been a
regular employee The General Counsel relies in support of his
contention that young Davis was a favored member of the staff
upon citation of certain testimony given by Superintendent
William Clark
Louis Crum
Thomas Templeton
Isaiah Bledsoe
William Jones
Ernest Ferguson
Roy Lewis
James Adkins
Jarrell Bowyer
James Belcher
Charles Brammer
Clinton Bledsoe
Thomas Ball
Elmer Christian
Dave Johnson
William Baker
Robert Ball
Norris Adkins
Burnie Crabtree
John Lucas
Ottie Adkins
Dueird Pennington
O'Neal Adkins
Dwight Conrad
Leonard Cremeans
279
Dale Gibbs
George Bias
Harold Duffer
Kyle Lewis
Donald Watts
Ray Merritt
William Pack
Kelsey Elkins
Estel Loftis
Ward Smith
Ralph Chaney
Richard McCormick
Lindsey Finley
Homer Ward
John Valentine
Charles Hightower
Marvin Vititoe
Charles McCaw, Jr.
Emil J. Loftis
Ancil Adkins
Eura Delano Keenan
John Woodrum
Jerry W. White
William David Davis
From the above listing it appears that during the period
from May 17 to 19, 1965, there were 61 employees in the
appropriate unit.
The General Counsel produced 31 witnesses who
testified as to their having signed union authorization
cards prior to May 17, 1965. The authenticated cards of
the following employees were received in evidence after
the named employee had been called to the stand and
subjected to both direct and cross-examination with
respect to all relevant facts as to the circumstances in
which the card was signed:
Ancil Adkins
Norris Adkins
Ottie Adkins
James Belcher
George Bias
Paul Bias
Jarrell Bowyer
Burnie Crabtree
Louel Crum
Ralph Chaney
Leonard Cremeans
Harold Duffer
Thomas Duncan
Kelsey Elkins
Lindsey Finley
Dale Gibbs
Charles Hightower
Dave Johnson
Roy Lewis
Kyle Lewis
Emil Loftis
Estel Loftis
John Lucas
Ronald Montcastle
William Pack
Duetrd Pennington
Johnson as to the hours worked by William Davis In this
connection Johnson testified that the son occasionally came to
work late and would leave early in the afternoon when the print
shop was caught up with its work In none of this testimony,
however, was there any evidence that Davis was paid for any
hours except those when he actually worked Under these
circumstances, I conclude that the General Counsel has failed to
prove that William David Davis enjoyed a special status to such
an extent that he should be excluded from the unit International
Metal Products Company, 107 NLRB 65,66-67: Giordano Lumber
Co , supra, 207, fn. 7. Accordingly, he will be included as one of
the employees in the bargaining unit.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael Stephens34 Homer Ward
Thomas Templeton Donald Watts
John Valentine
In addition to the foregoing named employees who
appeared and testified that they had executed
authorization cards, the signed authorization cards of 11
other employees were identified by their coworkers. These
witnesses testified as to the circumstances in which these
cards were signed, and thereafter they were cross-
examined, in some instances at considerable length, as to
their testimony in this connection. This convincingly
established that these cards had been secured without
coercion or misrepresentation and reflected the free will of
the signatories. The Respondent offered no evidence that
would dispel this conclusion.35 The 11 cards so described
were signed by the following named employees on various
dates, all prior to May 17, 1965:
James Adkins Eura Delano Keenan
O'Neal Akdins Charles McCaw
Charles Brammer Richard McCormick
Dwight Conrad Ward Smith
Ernest Ferguson, Jr. Marvin Vititoe
Jerry White
From the above listing it appears that prior to May 17,
1965, there were 42 employees who had signed cards
authorizing the Union to represent them. Thus, at a time
when there were 61 employees in the appropriate unit, the
Union had secured cards from 42 of that number. With
authorizations from almost 70 percent of the employees,
the Union had a clear majority in the appropriate
bargaining unit on May 17, 1965, when it made its request
for recognition and on May 19, when the Respondent in its
letter of that date, rejected this demand.
2. The alleged refusal to bargain
The General Counsel contends that the Respondent
unlawfully refused to bargain with the majority
representative of its employees on and after the date when
the Union made its first written demand for recognition
and bargaining. In its answer, the Respondent entered a
general denial to this allegation. However, it offered no
oral argument at the close of the hearing and thereafter
filed no brief.
34 Michael Stephens signed an authorization card on May 5 At
some time thereafter he concluded that he did not want the Union
to represent him, and wrote the Union a letter requesting that his
union authorization card be canceled . This letter was dated
May 19 Stephens testified that he prepared it at his home that
evening He sent this letter of revocation by registered mail on
May 20 It was received by the Union on May 21 Upon its receipt
by the Union, this constituted a presumptively valid revocation of
Stephens ' union authorization However , until the time when his
revocation reached the union headquarters, Stephens' original
authorization remained effective It must, therefore, be counted in
determining the total number of valid authorizations which the
Union had from May 17-19, 1965 Jas. H. Matthews & Co v
N L R B , 354 F 2d 432,438 (C A 8), Tinley Park Dairy Co , d/b/a
Country Lane Food Store, 142 NLRB 683,685-686.
35 The Respondent called three witnesses, Clinton Bledsoe,
William Baker, and William Jones, who testified as to various
statements made to them by fellow employees that had
endeavored to secure their support for the Union. Thus, Bledsoe
testified that on one occasion Dueird Pennington, a coworker, told
him that if he did not sign up for the Union he would lose his job,
Baker testified that coemployees Dale Gibbs and Davis Johnson
had made similar remarks to him, Jones testified that
In his testimony at the hearing President Davis stated
that at the time the Union made its demand for recognition
and offered to prove that it had authorization cards from a
majority of the employees, he did not believe that the
Company could rely on such cards as adequate proof.
Superintendent Johnson testified that the Respondent
wanted the Union to prove its majority in a Labor Board
election. Both Davis and Johnson testified that they were
totally unaware that any organizational campaign was in
progress until the very eve of the Union's demand for
recognition. According to Johnson he learned about the
Union's arrival when employee Tom Ball telephoned such
a report to him late on the night of May 15. Johnson
testified that on the following day he relayed this
information to President Davis. Both he and Davis
testified that until that weekend they knew nothing about
any union activity among the men.
This testimony, however, was largely implausible and is
not credited. Earlier herein, it was found that during the
first week in May and only shortly after the first employees
had signed up for the Union, Night Shift Foremen Frazier
began a campaign of interference and coercion as to the
organizational efforts of the men on his shift. The
Company was plainly responsible for Frazier's action and
conduct. Moreover, it is most unlikely that his activity was
unknown to Johnson or Mr. Davis. Whereas, Johnson may
have had a report from employee Ball on the night of
May 15 to the effect that a union was endeavoring to
organize the warehouse, on this record, I find incredible
Johnson's further testimony that this information
constituted the first knowledge he had that a union
campaign had begun among the Company's employees.
In the event an employer has an honest doubt as to the
Union's purported majority, or the unit which the Board
would find appropriate, it is well settled that he may insist
on a formal representation proceeding and a Board-
conducted election to resolve such doubt before being
obligated to bargain. Joy Silk Mills, Inc., 185 F.2d 732,
741-742 (C.A.D.C.), cert. denied 341 U.S. 914; Hammond
& Irving, Inc., 154 NLRB 1071, 1073. On the other hand,
"there is no absolute right vested in an employer to
demand an election." N.L.R.B. v. Trimfit of California,
Inc., 211 F.2d 206, 209 (C.A. 9). Moreover, this is a
completely untenable position for an employer to assume
should the evidence develop that he did not entertain any
real doubt of the Union's majority and that his insistence
George Bias, a fellow employee, told him that if he signed up for
the Union in May he would get in free, but that if he did not join
then he would be out of work Whereas, as found earlier,
Pennington , Gibbs, and Bias were prominent among those
soliciting their coworkers to support the Union, David Johnson
played no active role On the other hand, there is no evidence that
any of them were agents of the Union or authorized to bind it in
any way In any event , the testimony of Bledsoe , Baker , and Jones
has no relevance as to the validity of the authorization cards
received in evidence and discussed earlier herein, for none of the
three ever signed any such cards Moreover, their testimony can
not be used to destroy the validity of, or the weight to be accorded,
any of the cards which were received in evidence Each of these
cards is "clear and unambiguous on its face and recites expressly
that the signer authorized the Union to represent him for the
purposes of collective bargaining " Jas H Matthews & Co v
N L R B , 354 F 2d 432, 437 (C A 8) Under these circumstances,
and in the absence of any evidence of fraud, deceit, or coercion, it
must be concluded, and I so find, that the cards received in
evidence were signed by employees who knew what they were
doing and executed the authorizations because they wanted the
Union to represent them
DAVIS WHOLESALE CO.
on certification was motivated largely by a desire to gain
time to destroy the Union's support. Salley Plywood
Company, Inc., 94 NLRB 932, 968, enfd. 199 F.2d 319
(C.A. 4), cert. denied 344 U.S. 933; N.L.R.B. v.
Southeastern Rubber Mfg. Co., Inc., 213 F.2d 11, 14-15
(C.A. 5).
It is clear that the Union here involved was, at all times
relevant, ready to demonstrate its majority status to the
Respondent's officials. In his initial letter of May 17,
Spencer, the union representative, stated that he was
"prepared to deliver to you [President Davis] or your
representative signed authorization cards showing our
majority...." On May 21, in another letter, Spencer
renewed this offer and stated that the Union would present
its cards to Davis for his inspection or to any third person
whom the Company might designate. Plainly, the Union
was ready and willing to establish its majority status but
when it offered the Respondent every opportunity to
examine the evidence, the latter rejected the offer.'36
President Davis, the Respondent's principal official at
the hearing, asserted that the Company's reluctance to
accept the cards as proof that the Union had a majority
was vindicated when a substantial number of the men
subsequently signed statements that they no longer
desired the Union to represent them. Nineteen such
withdrawal statements were offered in evidence. All of
them were signed after May 19 when the Respondent
wrote the Union that it was rejecting the demand for
recognition." The Respondent retained possession of all
of them and not one was ever forwarded to the Union.38
Earlier herein it was found that several of these were
signed by employees after Foreman Frazier solicited their
signatures and after he told employee Donald Watts that if
Watts did not sign the slip he would be fired. It was also
found that Frazier offered a withdrawal slip to employee
John Valentine with the explanation that Valentine's
signature on the slip was necessary to insure his continued
employment. In view of such facts, which make it manifest
that several of these withdrawal statements were secured
in large measure through the Respondent's unlawful
interference and coercion, the Company may not now rely
on this type of evidence as justification for its reluctance to
believe that the Union actually had enlisted the support of
a majority of its employees. Whereas at the hearing
Superintendent Johnson voiced the same doubts as had
Mr. Davis about the reliability of the cards which the
36 "Where, as in this case, the Union had proof of its majority
status readily available and the Employer chose not to learn the
facts, it `took the chance of what they might be "' NLRB v
Elliott-Williams Co, Inc, 345 F 2d 460, 464 (C A 7), citing
NLRB v Remington Rand, inc , 94 F 2d 862, 869 (C A 2), cert
denied 304 U S 576, 585; N.L R B v Dahlstrom Metallic Door
Company, 112 F.2d 756 (C A 2).
31 Four employees signed these statements in May, two in June,
twelve in July, and one in August Michael Stephens , an employee
who signed one of these statements about May 21 , also wrote the
Union a letter of revocation during this period That letter has
already been discussed, fn 33, supra Insofar as the record
discloses , Stephens was the only employee who, in addition to
signing one of the company slips , wrote directly to the Union
38 Since these withdrawal statements were never forwarded to
the Union , they bear no relevance to the question of the Union's
majority status at the time it requested recognition on May 17,
1965 "A principal 's revocation of his agent 's authority is
ineffective until communicated to the agent " Jas H Matthews &
Co v. N L R B , 354 F 2d 432, 438 (C.A 8), Restatement (second),
Agency, § 119 (c), 1958
se "In cases such as this, where the employer 's unfair labor
281
Union claimed it had , he conceded that the Company
made no effort to accept the union offer that it examine the
cards or have an impartial observer check them.
The Respondent 's claim that it had a bona fide doubt as
to the Union ' s majority must be considered in the light of
the foregoing facts, and , most particularly , in view of the
numerous findings of unlawful interference , restraint, and
coercion on the part of Foreman Frazier in the month of
May prior to the union demand . Equally revealing as to the
Respondent ' s good faith is the fact that in the period
subsequent to the Union ' s request for recognition on
May 17, additional 8(a)(1) violations were committed, not
only by Frazier, but by Johnson as well . Further, as found
earlier, the Respondent violated Section 8(a)(3) by its
discriminatory suspensions of Gibbs„ Bias, and
Pennington and Section 8(a)(1) by the posting of the no-
solicitation rule of May 28 . Thus, while the Respondent
asserts that in good faith it doubted the Union ' s majority,
contemporaneously , its supervisory staff was conducting a
campaign that was designed to destroy the Union's
support among the employees.39
In the light of the foregoing facts, I conclude and find
that when the Respondent received the Union's request
for recognition and bargaining, set forth in Spencer 's letter
of May 17, 1965, the employer did not have a good-faith
doubt as to the Union ' s majority standing with the
employees As a result , there was no valid justification for
the Respondent 's position set forth in its letter of May 19,
1965, wherein President Davis stated that the Company
would refuse to recognize or bargain with the Union until
the latter won a Board-conducted election .411
I conclude that the Company 's response to the Union, in
the context of the illegal antiunion activity found above,
was based, not on a bona fide doubt as to the Union's
majority , but rather on a rejection of the principles of
collective bargaining and a desire to gain time within
which to dissipate the union majority. By its rejection on
May 19 , 1965, of the Union 's request , and its continuing
refusal to recognize the Union thereafter , the Respondent
violated Section 8 (a)(5) and (1) of the Act. Joy Silk Mills,
Inc. v. N.L .R.B., 185 F.2d 732, 741 -742 (C.A.D.C.), cert.
denied 341 U.S. 914 ; Bilton Insulation , Inc. v. N.L.R.B.,
297 F.2d 141 (C.A. 4); Irving Air Chute Company, Inc. v.
N.L.R.B ., 350 F .2d 176, 181-182 (C.A. 2); Allegheny Pepsi-
Cola Bottling Company v . N.L.R.B ., 312 F .2d 529, 532
(C.A. 3).
practices are clearly established, both before and after the
demand for bargaining , the good faith of his doubts of the union
majority may properly be regarded with some suspicion "
N L R B v Cumberland Shoe Corp , 351 F 2d 917, 921 (C A 6),
N L R B v Philamon Laboratories Inc , 298 F 2d 176, 180
(C A 2)
40 In the letter of May 19 , the Respondent also based its refusal
to recognize the Union on the stated ground that " there has been
no agreed description of an appropriate bargaining unit " On
May 21, in another letter to Davis, the Union endeavored to clarify
further its description of the unit In a letter dated June 1, Davis
wrote that the Union 's "description of a proposed unit is not
sufficient or proper " As found earlier , neither then , nor later, did
the Respondent ever state what it considered an appropriate unit
In view of these facts, the Respondent cannot now urge, with
any merit , the contention that the Union's original letter
inadequately described the unit The Board has held that in these
circumstances, an employer "by [his] refusal to consider the
Union's request for recognition and its offer to prove its majority
. foreclosed any clarification by the Union as to the scope of its
requested unit " Hamilton Plastic Molding Company , 135 NLRB
371, 373, set aside on other grounds 312 F 2d 723 (C A 6)
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 9-CA-3742
In the complaint issued in the above-numbered case, the
General Counsel alleged that the Respondent
discriminatorily discharged Dueird Pennington on
June 24, 1965, and Dale Barnett on October 2, 1965, and
discriminatorily laid off Larry Blankenship on
November 4, 1965. These allegations are denied in their
entirety by the Respondent.
A. Dueird Pennington
Earlier herein, it was found that Pennington was
discriminatorily suspended for a period of 1 week from
May 31 to June 7. On June 24, Pennington was again
suspended for 2 weeks and at the conclusion of that period
he was terminated. The General Counsel contends that
this last suspension and discharge were also
discriminatory. The Respondent denies this allegation and
avers that the employee was terminated for lying
On June 14, at a point some distance from the
warehouse and as the result of sheer happenstance,
Superintendent Thurman Johnson observed a passenger
in the company truck which Pennington was driving.
Pennington testified that the following day, when Johnson
questioned him as to the identity of his passenger, he told
the superintendent that it was his cousin. According to
Pennington, Johnson also asked whether he realized what
the rule was in connection with hitchhikers and that he
replied in the affirmative.
Shortly thereafter, the following notice, dated June 16,
was attached to the timecards of all the truckdrivers. It
read as follows:
TO ALL TRUCK DRIVERS:
THIS IS TO REMIND YOU OF OUR COMPANY
POLICY IN REGARDS TO HAULING PASSEN-
GERS IN COMPANY TRUCKS.
TRUCK DRIVERS ARE NOT PERMITTED TO
HAUL ANYONE AT ANYTIME OTHER THAN
COMPANY PERSONNEL.
On June 16, Pennington was summoned to a meeting
with Johnson, President Davis, and Attorney
John A. Jenkins, Jr., counsel for the Respondent.41 At this
meeting Pennington was interrogated by company counsel
as to why he had permitted a nonemployee passenger to
ride in his truck. According to Davis, Jenkins told the
employee that the Company wanted to know the full story
before making a decision on the matter, that, whereas
there was a rule prohibiting the carrying of passengers, it
was conceivable that the employee's action could be
justified if an emergency of some character was involved.
Davis testified that up to that point Pennington had
refused to discuss the matter, but that thereafter he
proceeded to tell them that the incident had arisen as an
emergency; the passenger was his cousin, one
Carson Jeffers; Jeffer's brother had had an accident; and
Jeffers was on the way to a hospital to donate blood so that
his brother could have a transfusion. According to Davis,
notwithstanding Pennington's account of his cousin's
brother having been in an accident, the employee was
unable to give the name of the relative who had been
injured, the extent of the injuries incurred, the name of the
hospital involved, and numerous other details that
Pennington, presumably, should have known.
41 Pennington testified that he thought this meeting occurred
on June 15. However, the other witnesses testified that it was held
By letter dated June 24, the Company notified
Pennington that it had investigated the hitchhiking
incident; it had been unable to confirm his account of the
circumstances under which he had picked up Jeffers
whom he described as his cousin; it was the Company's
conclusion that Pennington falsely represented that he did
not know about the company prohibition on carrying
hitchhikers; and as a result he was being suspended
without pay until July 5 The letter further requested that
Pennington supply the Company with any additional
information he had which would confirm the account he
had given previously with respect to Jeffers. Finally, the
letter stated that in the event Pennington failed to comply
with this request it would be assumed that the information
he gave the Company as to the reasons for providing
Jeffers with transportation were false and that, in such
event, he would be discharged.
Pennington remained off work throughout that period of
his suspension. He did not, however, supply the Company
with any further information about Jeffers. About July 5,
he endeavored to return to work, but was told by
Thurman Johnson that he could not do so until he
ascertained the whereabouts of Jeffers and supplied the
Company with the information requested earlier.
On July 12, the Respondent wrote the following letter to
Pennington:
On July 5, 1965, you were present at the company
offices and failed to furnish any of the information
requested in our letter of June 24, 1965, to you. You
stated that you had been in contact with your first
cousin, Carson Jeffers, and that he had promised to
come to the company office and explain the
circumstances of his being in a company truck
operated by you without authority. Jeffers did not
appear. -
The company will give you a further opportunity to
clear up the matter if you care to do so. If you will
furnish us the address of Carson Jeffers, his sister's
name, or the name and address of his brother who was
supposed to have been in the hospital, we will
continue our investigation in the matter.
Johnson testified that the letter was mailed to the last
home address which Pennington had given the Company
and that it was never returned by the post office.
Pennington denied that he ever received the letter. On
cross-examination, however, he conceded that the
address on the letter was that of the small town in which
he was then living. In this connection, as in other
testimony with respect to the circumstances surrounding
the incident to which the Respondent attributed his
termination, Pennington's account was not convincing.
Pennington testified that about the third week of July he
returned to the plant to ask Johnson for a layoff slip.
According to the employee, Johnson told him that he had
been fired and that the Company did not give layoff
statements to those who had been discharged. Pennington
testified that he then asked for information as to when he
had been discharged and that Johnson answered, "You
were fired to start with."
Johnson denied that he had made the last remark
attributed to him by Pennington. According to Johnson, he
told the employee on this occasion that he had never been
laid off, but that he was then being discharged because he
had failed to furnish the information which the Company
had requested that he supply.
on the following day and their recollection in this regard appears
to be the more accurate
DAVIS WHOLESALE CO.
The General Counsel offered several witnesses in
support of the contention that the Respondent's rule on
carrying passengers in the company trucks was more
honored in the breach than in the observance. Thus,
Ottie Adkins testified that he had never seen a notice like
that which the Respondent published in June and that in
several years of experience as a truckdriver for the
Company he had frequently let his two sons ride with him
Adkins, however, was most implausible on this last phase
of his testimony. Whereas he denied that Johnson had ever
warned him about the rule on passengers or threatened
him with discharge for violating it, Johnson credibly
testified that on one occasion he had admonished Adkins
severely for having permitted his son to ride with him and
that at the same time he warned Adkins that if he ever
again let anyone but company personnel ride in his truck
he would be discharged. Dave R Johnson, also a
truckdriver for several years, conceded that he knew that
the Company had a rule banning the carrying of
hitchhikers, but he further testified that it was never
enforced. Superintendent Johnson, on the other hand,
testified that the Respondent's ban on the carrying of
anyone in the trucks other than company personnel had
been in effect for a long while, that it was dictated by the
insurance carrier's requirements and related liability
problems, and that it was brought to the attention of the
drivers both at meetings and in periodic notices.
I conclude that the Respondent did, in fact, have a rule
prohibiting the carrying of noncompany passengers in its
trucks, such a rule, of course, being necessitated by
insurance carrier requirements and the tort liability issues
involved. Pennington was not convincing insofar as he
testified that other drivers frequently carried passengers
and that he did not know that there was any prohibition of
this practice. Nor was it impressive to hear him testify, as
he did, that he felt that it was his business, and not the
Company's, if he picked up a rider. Pennington's account
of the story which he imputed to his cousin Jeffers was not
persuasively related at the hearing. In any event, it is not
necessary to decide whether Jeffers actually told
Pennington the story of need and hardship which
Pennington gave to the company officials as the reason for
having offered Jeffers a ride in the Respondent's truck.
From his own testimony, it is apparent that Pennington's
account of his attempt at being a good samaritan really had
nothing to do with his decision to offer Jeffers a ride. Thus,
he testified at the hearing that on the occasion in question
he stopped along the highway, invited Jeffers into the
truck, and that after he resumed driving along the
highway, and not until then, Jeffers related the story of his
brother's hospitalization which Pennington gave to the
company officials as the reason for having offered his
cousin a ride.
Pennington was a known union adherent and had been
active in the organizational campaign .4' Also, as found
above, he had already been the object of a discriminatory
suspension arising out of his union activities. On the other
hand, Pennington did, in fact, violate a company rule
which prohibited carrying nonemployees in the
Respondent's trucks and later, when questioned about the
matter, he gave the Respondent's officials an alibi in
justification for his indiscretion that they had every reason
to believe was largely fabricated. In view of the union
42 He was not, however, as the General Counsel contends in his
brief, the principal organizer for the Union, for, as found earlier,
Gibbs had a substantially more active role in that connection.
283
animus which the Respondent's officials had displayed
during the preceding weeks and the earlier discrimination
practiced against Pennington, it may be assumed that
these same officials resented the employee's connection
with the Union. Nevertheless, Pennington's union
activities did not accord him any immunity from the
company rules which applied to all other employees. As
the Board stated in another case: "Cornett was a union
leader, and the Respondent may well have welcomed the
opportunity of getting rid of him, but neither his activities
nor the Respondent's attitude gave him privileges greater
than those of other employees." Lloyd A. Fry Roofing
Company, 85 NLRB 1222, 1224. In view of the above
findings, I conclude on this record that the General
Counsel has not established by a preponderance of the
evidence that Pennington was discriminatorily terminated.
Accordingly, it will be recommended that the complaint be
dismissed insofar as it alleges that the Respondent's
dismissal of Pennington violated Section 8(a)(3) and (1) of
the Act.
B. Dale Barnett
Barnett was hired as a warehouse employee late in July
1965. He was discharged on October 2, according to the
General Counsel because he had signed a union card,
according to the Respondent because of his poor work
record
Barnett worked in the warehouse on the night shift
under Foreman Frazier. He was classified as an order filler
and started at $1.25 an hour. About 6 weeks after his
employment he was given a 10-cent-an-hour raise. On
September 21, in the presence of several coworkers,
including Donald Watts, Barnett signed a union card.
At quitting time on the morning of October 2, Frazier
told Barnett that he was being laid off. When the employee
asked the reason, Frazier told him that he did not know,
that Barnett would have to secure that from
Superintendent Johnson. Several days later, Barnett
sought out Johnson to inquire as to the reason for his layoff
and to learn whether there was any likelihood of
reemployment. Johnson told Barnett that he had been laid
off because he had not done a good job, he had misdirected
an order for $40 to $50 worth of shotgun shells, and he had
placed certain loads on the wrong truck. Johnson
concluded the discussion with the statement that it was
too late for Barnett to do anything about securing
reinstatement.4I
Donald Watts, a witness for the General Counsel,
testified that on the morning of October 2, Frazier told him
that he had dismissed Barnett, whom he described as one
of Watts' "buddies." According to Watts, when he
questioned the foreman as to the reason for the discharge,
Frazier told him it was because Barnett had signed up for
the Union. Watts further testified that the following night,
in another conversation with Frazier during which there
was some mention of the shortage of help on the shift, the
foreman told him "Well, the reason I had to let your help
go, as we talked the other night, was because he had
signed that union card." Frazier denied that he had any
such conversations with Watts. This denial, however, was
most unpersuasive. Frazier was the most vocal of the
Respondent's entire supervisory staff in expressing his
49 The foregoing findings are based on the credible testimony of
Barnett which, in this respect, was neither contradicted nor
denied by Frazier or Johnson
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dislike for the Union and in giving vent to numerous
forcasts as to what the Company and President Davis
would do if the Union ever succeeded in organizing a
majority. His numerous threatening remarks in this vein
and his intense interest in the employees' organizational
activities have been set out earlier in this Decision. Watts'
testimony in this connection was credible and Frazier's
denial was not. Accordingly, I conclude that the
conversations between Frazier and Watts, to which the
employee testified, occurred substantially as Watts
related them.
Johnson and Frazier testified at considerable length as
to Barnett's alleged inadequacies. Frazier testified that
Barnett made many mistakes in filling orders, he
frequently corrected him, and the last 4 or 5 weeks of his
employment he had had to speak to Barnett in this regard
almost every day. Johnson testified that Frazier frequently
told him he was having difficulties with Barnett, and that
even during August and September, shortly after his
employment, Frazier had reported that Barnett was an
inefficient employee. According to Frazier, Barnett's
mistakes started as soon as he came to work and
continued throughout his employment.
On the other hand, Barnett testified that Frazier had
criticized his work on only three occasions. The first time
was 2 or 3 weeks after he had gone to work when,
according to the employees, Frazier told him to speed up
his order filling as much as possible. Barnett testified that
about a month later Frazier told him that he should be
doing a better job. According to the employee, about 2
weeks later, Frazier admonished him in a similar vein, but
thereafter, and until his discharge, no one ever criticized
his work.
The testimony of Frazier to the effect that he had
reprimanded Barnett for his ineptitude on many occasions
and almost daily during the last month before his
discharge was not as credible as the testimony of Barnett
that Frazier had admonished him about his performance
only three times during the course of his employment with
the Company. Barnett was a young man and a new
employee with only a few months' experience at the time
of his discharge. Very likely his work did leave much to be
desired. On the other hand, Johnson and Frazier testified
that their dissatisfaction with his performance had
extended over the entire period of his employment.
Nevertheless at the time of the employee's discharge,
Frazier did not give Barnett any explanation for the action,
and only told the employee that he would have to speak to
the superintendent. It was only after several days had
passed and Barnett sought out Johnson to inquire about
reemployment that the latter ascribed the immediate
reason for the termination to a mistake on the delivery of
hotgun shells.
In view of the abruptness of Barnett's discharge, the
failure of his foreman to offer any explanation for the
action at the time, and the subsequent testimony of
Johnson and Frazier that Barnett's performance had been
poor from the time of his initial employment, it is my
conclusion that the real reason for his dismissal was, as
Frazier told Watts, that Barnett "had signed up for the
Union." Although the Respondent may have had some
cause for dissatisfaction with Barnett's work, as the Court
of Appeals for the Third Circuit once observed in a similar
case, "it apparently became intolerable only after he had
joined the union ." N.L.R.B. v. Electric City Dyeing Co.,
178 F.2d 980, 983 (C.A. 3). By its termination of Barnett
the Respondent violated Section 8(a)(3) and (1).
C. Larry Blankenship
Blakenship was hired in mid-July 1965, as a warehouse
employee on the day shift under Foreman
Charles Christian. His starting rate was $1.25 an hour.
After he had been at work for about 10 weeks he received
a raise of 5 cents an hour. Shortly thereafter, and about
October 14, he signed an authorization card for the Union.
On the morning of November 4, he sought out Foreman
Christian to tell him about having signed a union card. At
the same time he explained to his foreman that he had
taken this step because of his dissatisfaction with having
received only a 5-cent raise when others who had come to
work subsequent to his hiring received a larger raise.
Christian apparently said little, if anything, to the
employee. That evening, however, and before Blankenship
left for the day, Johnson called him to his desk. According
to Blankenship's credible, uncontradicted, and undenied
testimony, Johnson then told him that he had heard that
Blankenship was unhappy, that the Company did not like
unhappy employees, and for that reason Blankenship was
being laid off, the layoff to be effective immediately and
until further notice.
Shortly after November 4, the Company hired a new
employee for the day shift in the warehouse named
Avery Ferguson and transferred Garry Gallimore, a night-
shift employee, to the day shift. On November 8, the Union
filed an amended charge in Case 9-CA-3742, alleging,
inter alia, that Blankenship had been discriminatorily
terminated. On November 10, the Respondent received a
copy of this charge by registered mail. On November 11,
he was recalled to work as a part-time employee.
Johnson testified that originally Blankenship had been
hired as a part-time employee and that he had been laid off
on November 4 because business was slack. On the other
hand, he did not contradict or deny the conversation
attributed to him by Blankenship wherein the latter
testified that the superintendent told him that he had
heard that Blankenship was a disgruntled employee and
that he was being laid off until further notice. Johnson
denied any knowledge of the employee's union activities or
whether the latter had signed a union card. The
Respondent, however, never called Christian to testify as
to the conversation which Blankenship testified he had
had with him.
From the credible and uncontradicted testimony of
Blankenship it is apparent that the employee himself
apprised Christian, his foreman, of the fact that he had
signed a union authorization. In that same conversation he
asserted that he had done so because of dissatisfaction
over a raise which he had received. At the end of his shift
that very day Superintendent Johnson summoned him to
his desk to tell the employee that he had heard that
Blankenship was unhappy, that he did not like unhappy
employees, and that he was going to lay him off until
further notice. At the hearing Johnson attributed the layoff
to a slack in business. Apart from this self-serving
declaration, however, the Respondent offered no evidence
as to business conditions during this period. In numerous
other instances during the preceding 6-month period,
Johnson and the Respondent had pursued a course of
conduct aimed at keeping the Union out of the warehouse
and destroying its majority. Under the circumstances
present here, I conclude that at the close of Blankenship's
shift on November 4, Johnson was well aware of the
conversation which the employee had had with Foreman
Christian earlier in the day, and that Johnson had learned
DAVIS WHOLESALE CO.
from Christian that Blankenship had signed a union card
because of dissatisfaction about a wage increase.
Furthermore, I conclude that Johnson's statement that he
had heard that Blankenship was "unhappy" and that he
did not like "unhappy employees" was a thinly veiled
reference to Blankenship's conversation earlier in the day
when he had told his foreman that because of his
dissatisfaction with the wage raise given him he had
gone and signed an authorization card. Finally, I
conclude and find that, in the light of the foregoing, the
real motivation for Blankenship's layoff was not a decline
in business but Johnson's displeasure about the
employee's having gone to the Union. In laying off this
employee, therefore, the Respondent violated Section
8(a)(3) and (1).44
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. All employees employed by the Respondent at its
place of business in Culloden, West Virginia, excluding
salesmen, office clericals, guards, professional employees
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3. At all times since May 17, 1965, the Union has been,
and now is, the exclusive representative of all the
employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
4. By failing and refusing at all times since May 19,
1965, to bargain collectively with the Union as the
exclusive representative of the employees in the aforesaid
unit , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
5. By discriminating in regard to the hire and tenure of
employment of Dale Gibbs, Dueird I. Pennington,
George W. Bias, Dale Barnett, and Larry Blakenship, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
6. By interfering with , restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
"Johnson testified that Blankenship originally had been hired
as a part - time employee. On the other hand, the employee
credibly testified that prior to his layoff he averaged 40 hours of
work a week Blankenship testified that subsequent to his recall
he did not work as much as he had prior to the time he was laid
off On the other hand, the General Counsel did not offer any
satisfactory corroboration for Blankenship's statement in this
connection. Consequently, it cannot now be held, and I do not
285
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
8. The General Counsel has not proved by a
preponderance of its evidence that the Respondent
interfered with , restrained , or coerced its employees in the
exercise of the rights safeguarded by the Act, except by
the specific acts and conduct found herein to have been
violative.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent discriminatorily
discharged Dale Barnett on October 2, 1965, I shall
recommend that the Respondent be ordered to offer him
immediate and full reinstatement , without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings that he may have suffered
from the time of his discharge to the date of the
Respondent's offer of reinstatement . I shall also
recommend that the Respondent be ordered to make
whole Dale Gibbs, Dueird Pennington, George W. Bias,
and Larry Blankenship for any loss of earnings suffered as
a result of their discriminatory suspensions or layoffs.45
The backpay for the foregoing employees will be
computed in accordance with the formula approved in
F. W. Woolworth Company, 90 NLRB 289, with interest
computed in the manner and amount prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716, 717-721. It will
also be recommended that the Respondent be required to
preserve, upon request, and make available to the Board
or its agents payroll and other records necessary to
facilitate the computation of backpay due.
As the unfair labor practices committed by the
Respondent are of a character striking at the root of the
employees' rights guaranteed by the Act, it will be
recommended that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Davis Wholesale Co., Inc., its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union.
(b) Discouraging membership in Food Store Employees
Union Local#347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any
other labor organization of its employees, by
discriminating in regard to their hire, tenure, or any terms
or conditions of their employment.
find, that subsequent to his return to work on November 11, 1965,
and thereafter, Blankenship was discriminatorily denied any
workhme
4' As found earlier, Gibbs was suspended from May 27 to
June 14,1965; Pennington from May 31 to June 7, 1965, Bias from
June 16 to June 21, 1965, and Blankenship was laid off from
November 4 to November 11, 1965
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Interrogating employees regarding, or in connection
with, their union membership, sympathies, or activities in
a manner constituting interference, restraint, or coercion
within the meaning of Section 8(a)(1) of the Act.
(d) Threatening employees with discharge or any other
form of reprisal because of their membership in, sympathy
for, support of, or activity on behalf of, any labor
organization.
(e) Soliciting withdrawals from union membership and
disclaimers of interest in union representation by its
employees.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right is affected by the
proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Dale Barnett immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
suffered in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
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.
(c) Make whole Dale Gibbs, Dueird Pennington,
George W. Bias, and Larry Blankenship for any loss of
pay suffered by reason of their discriminatory suspension
or layoff, by the Respondent, in the manner set forth in the
section of the Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Upon request, bargain with Food Store Employees
Union Local #347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, as the
exclusive representative of all employees in the
appropriate unit and , if an understanding is reached,
embody such understanding in a signed agreement. The
appropriate unit is:
All employees employed by the Respondent at its place
of business in Culloden, West Virginia, excluding
salesmen, office clericals, guards, professional employees
and supervisors as defined in the Act.
(f) Post at its place of business in Culloden, West
Virginia, copies of the attached notice marked
"Appendix. "46 Copies of said notice, to be furnished by
the Regional Director for Region 9, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by
the Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith 4'
IT IS FURTHER ORDERED that the complaints in Cases
9-CA-3599 and 9-CA-3742 be dismissed insofar as they
allege any unfair labor practices other than as herein
specifically found.
a'' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, 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 discourage membership of our
employees in Food Store Employees Union
Local#347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other
labor organization, by discharging, suspending, laying
off, or otherwise discriminating against any of our
employees.
WE WILL NOT unlawfully interrogate our employees
concerning their union activities or sympathies.
WE WILL NOT solicit withdrawals from union
membership or disclaimers of interest in union
representation by our employees.
WE WILL NOT threaten our employees with
discharge or any other form of reprisal because of
their membership in, sympathy for, support of, or
activities on behalf of the aforesaid Union, or any
other labor organization.
WE WILL offer Dale Barnett immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his
seniority or other rights and privileges previously
enjoyed and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL make whole Dale Gibbs, Dueird Penning-
ton, George W. Bias, and Larry Blankenship for any
loss of pay suffered as a result of the discrimination
against them.
WE WILL bargain collectively, upon request, with
Food Store Employees Union Local#347,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive
representative of all our employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment, and other conditions of
employment and, if an agreement is reached, embody
such understanding in a signed contract. The
bargaining unit is:
DAVIS WHOLESALE CO.
All employees employed at our place of
business in Culloden, West Virginia, excluding
salesmen , office clericals, guards, professional
employees and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights to self-organization, to form, loin, or assist the
above-named, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as authorized by
the Act.
DAVIS WHOLESALE CO.,
INC.
(Employer)
287
Note: We will notify the above mentioned Dale Barnett
if presently serving in the Armed Forces of the United
States of his 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, Federal Office
Building, 550 Main Street, Room 2407, Cincinnati, Ohio
45202, Telephone 684-3686.
Dated By
(Representative ) (Title)