Davis Wholesale Co., Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1967

166 N.L.R.B. 999 (N.L.R.B. 1967)

DAVIS WHOLESALE CO., INC. 999
Davis Wholesale Co., Inc. and Food Store Em-
ployees Union Local 347 , Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO.' Case 9-CA-3764
August 3, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On April 10, 1967, Trial Examiner George L.
Powell issued his Decision in this proceeding, find-
ing that Respondent had engaged in and was engag-
ing in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Ex-
aminer's Decision, which included supporting argu-
ments, the General Counsel filed limited exceptions
and a supporting brief, and the Meat Cutters filed
cross-exceptions and a supporting brief, and an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in
this case, including the exceptions, arguments, and
briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with
the following modifications.
The Trial Examiner finds, and, for the reasons he
sets forth in his Decision, we agree that Respondent
refused to bargain with the Meat Cutters in viola-
tion of Section 8(a)(5) of the Act. The Trial Ex-
aminer finds that Respondent violated Section
8(a)(1) of the Act in several respects. We agree as
to those numbered (1) through (5). As to (6), we
agree that Manager Williams' questioning of em-
ployee Thaxton about his union activities violated
Section 8(a)(1) of the Act. However, we find it un-
necessary to pass upon the lawfulness of Respond-
ent's timing of the bonus, or Williams' statement
to Thaxton in that regard, which were not alleged as
unlawful in the complaint.
The Trial Examiner found that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discon-
tinuing (on November 8, 1965 ) its-" runs" to Camp-
bell's Creek and Cabin Creek. We agree . Although
Respondent had been contemplating the discon-
tinuance of those runs , the record shows that it had
not planned to do so until it moved its operations
from Charleston to Culloden. The changeover was
not expected to occur earlier than January 1966,
and, in fact , operations at Culloden did not begin
until April 1966 . We are satisfied that , in the cir-
cumstances set forth above , and in view of the en-
tire record , Respondent accelerated the discon-
tinuance of the runs because of the advent of the
Union , and thereby violated Section 8(a)(1) and (3)
of the Act.2
Respondent had maintained a practice of lending
money to its employees , and deducting $ 5 per week
from their paychecks until the debts were repaid.
Upon paying its employees a bonus in November
1965, Respondent deducted entire amounts owed
by employees from their bonus checks. Respondent
alleges this had been its policy. However , a prepon-
derance of the evidence establishes , and we find,
that Respondent changed its policy with respect to
deducting for loans because of the advent of the
Union and the possibility of a strike, and thereby
violated Section 8(a)(1) and (3) of the Act.3
Despite a showing that Respondent''s labor policy
with respect to its Charleston plant was much the
same as with respect to its Huntington plant, we do
not agree with the Trial Examiner that the Char-
leston employees were regarded by Respondent as
discharged from the moment they struck . Though
the Board found in a prior case4 that Respondent
made it clear to its Huntington employees that they
were considered discharged from the moment they
struck, we do not make such a finding here.
Manager Williams was the only representative of
Respondent who here dealt with the Charleston em-
ployees on strike . There is no showing that he made
any statements to strikers or to the Union which
would indicate Respondent considered them
discharged. Nor is there a showing that any of the
Charleston employees were aware of the state-
ments made to the Huntington employees . We find,
and to this extent agree with the Trial Examiner,
that the strike of December 8, 1965 , was an unfair
labor practice strike , that the striking employees
made an unconditional offer to return to work on
April 7, 1966, and that (with the exception of
Dennis Smith) Respondent failed and refused to
reinstate them for discriminatory reasons.5
Herein called the Meat Cutters.
z We find it unnecessary to decide whether Respondent's defense of
economic necessity was established by substantial evidence, as no one
seeks as a remedy the reestablishment of the runs in question.
3 We do not' agree with the Trial Examiner, however, that by so acting
Respondent impliedly severed the employment relationship
' See 165 NLRB
s In view of this finding, and in keeping with Board policy, we find no
merit in the Meat Cutters' argument that the Charleston employees are
entitled to backpay from December 8, 1965. The Trial Examiner cor-
rectly finds that the employees are entitled to backpay from April 7, 1966
(the date they offered to return to work ) to the date Respondent has made
or shall make a valid offer of reinstatement Backpay for employee But-
terick shall be computed as set forth in "The Remedy" section of the Trial
Examiner' s Decision , except that it shall also include any pay increases
which may have been given other employees during that period In all
other respects we agree with the Trial Examiner 's remedy.
166 NLRB No 119
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that Oliver Beattie is not
entitled to reinstatement because of an alleged
threat and assault on employee Thomas Gray. The
Trial Examiner finds that Respondent condoned
violence on the part of certain nonstriking em-
ployees at Huntington, and hence cannot be heard
to argue that Beattie's conduct should bar his right
to reinstantement. We do not rely upon any of
Respondent's actions or inaction at Huntington
with regard to condonation of violence. Rather we
find that the conduct of Beattie was provoked by
Gray, and is not a sufficient ground on which to
deny reinstatement to Beattie.
ORDER
when the Union represented a majority of the employees
in the same unit; by discharging employees who 'had en-
gaged in the strike, which was caused by and prolonged
by the Respondent's unfair labor practices; and by refus-
ing to reinstate the employees who were on strike upon
their unconditional offer to return to work.
All the parties were capably represented throughout
the trial of the case and an opportunity was afforded for
the filing of briefs. Briefs have been received on October
28, 1966, from the General Counsel and the Union.
Upon the entire record of the case, the briefs filed, and
from my observation of the witnesses, including their
demeanor while on the witness stand, I make the findings
of fact and conclusions of law hereinafter set forth, and
recommend that Respondent be adjudged in violation of
the Act in the particulars hereinafter specified.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Davis Wholesale Co., Inc., located at Charleston
and 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 unit description found in paragraph 1(e)
of the Trial Examiner's Recommended Order and
in the notice attached to the Decision marked "Ap-
pendix" add the words "and Culloden" after the
word "Charleston."
2. In the seventh paragraph of the notice after
the words "WE WILL offer to the following em-
ployees full reinstatement," add the following: "(at
our Charleston or Culloden, West Virginia,
plants)."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: With Respond-
ent represented, this proceeding was heard in Charleston,
West Virginia, on April 5 and 6 and August 16 and 17,
1966, on the complaint, as amended, of the General
Counsel of the National Labor Relations Board, herein
called the Board, and the answer, as amended, of
Davis Wholesale Co., Inc., herein called the Respondent.
The complaint and amended complaint alleged that
Respondent violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended, herein called
the Act, by interfering with, restraining and coercing its
employees in the exercise of their rights guaranteed in
Section 7 of the Act; by discharging employees John
Casco, Robert Good, and Orville Thaxton because of
their sympathies for, membership in, and activities on be-
half of Food Store Employees' Union, Local No. 347,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, herein called the Union; and
by refusing to grant recognition to the Union as exclusive
collective-bargaining representative of employees of the
Respondent in a unit appropriate for bargaining at a time
FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is admitted and I find that Davis Wholesale Co., Inc.
is an "employer engaged in commerce," and that the
Food Store Employees' Union, Local No. 347, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, is a "labor organization," within the
meaning of the Act. I find that the allegations of para-
graph two and three of the complaint respecting the na-
ture, conduct, and volume of the business of Respondent,
as amended at the hearing, are true and correct.
The unfair labor practices found hereinafter are unfair
labor practices within the meaning of Section 2(6) and (7)
of the Act.
I. THE UNFAIR LABOR PRACTICES
Respondent is a West Virginia, corporation engaged in
Huntington and Charleston, West Virginia in the sale of
wholesale grocery items. This proceeding involves only
the operation at Charleston, West Virginia, yet the
Huntington plant becomes involved insofar as the fact ex-
ists that the Union commenced its organizing campaign
there in the latter part of April 1965, and as to certain
statements made by and conduct engaged in by Respond-
ent's president after the strike of December 8, 1965.
The parties stipulated that as of November 8, 1965, the
work force at Charleston consisted of 10 unit employees,
i.e., warehousemen and truckdrivers. The Union began
organizing the Charleston employees in late October. By
November 5, 1965, all 10 of the employees in the unit
signed union cards authorizing the Union to represent
them. The cards were all authenticated at the hearing by
either the testimony of the solicitor (in the case of
Brooks) or by the individual employee (See 1. Taitel and
Son, 119 NLRB 910, 261 F.2d 1 (C.A. 7); cert. denied
359 U.S. 944; Winn-Dixie Stores, Inc., 143 NLRB 848,
341 F.2d 750 (C.A.6), cert. denied 382 U.S. 830). The
omission of employer's name from certain cards did not
invalidate the cards. Knickerbocker Plastic Co., 104
NLRB 514,218 F.2d 917 (C.A. 9).
Jack Brooks, business agent for the Union, credibly
testified that on November 8, 1965, he called James Wil-
liams, manager of Respondent, on the telephone. After
identifying himself, Brooks told Williams that his labor
organization represented a majority of all the truckdrivers
and warehousemen, requested recognition and bargain-
ing, and offered to show him signed authorization cards
to prove the Union's majority. Williams at first agreed to
check the cards but during the course of this telephone
DAVIS WHOLESALE CO., INC. 1001
conversation changed his mind and asked Brooks for time
to think it over. Williams admitted all this except the part
that he at first agreed. His denial that he at first agreed to
check the cards is not credited. Later in the afternoon of
the same day at approximately 4:30 and 5:30 p.m.
Foreman Harry Young and Manager Williams, respec-
tively, began to interrogate the employees. Young asked
Oliver Beattie if he knew anything about the Union. Beat-
tie told him they all had signed. An hour later Manager
Williams asked Dennis Smith , "I heard that you all signed
up for a union, is that so? Smith replied, "Jim, I heard
they all signed, 100 percent." This was generally denied
by Williams. The denial is not credited. Foreman Young
never testified so all evidence as to him is not refuted.
The following day, November 9, 1965, Brooks wrote
a letter to Manager Williams confirming their telephone
conversation of the day before, repeating the request for
recognition and the offer to prove his majority claim.
Respondent did not reply to this letter in the month of
November.
On or about November 10, 1965, Foreman Young
asked Beattie why employees Buttrick and Smith had
signed up for the Union. Beattie places this conversation
as "maybe a couple" of days from November 8.
On November 11, 1965, three days after the
November 8, telephone conversation of Brooks,
Manager Williams stopped Respondent's long-time pol-
icy of permitting employees to make purchases of groce-
ries on credit by telling Beattie in the presence of em-
ployee Orville Thaxton, "from now on, anything you get
you have to pay cash." According to the credited
testimony of Beattie, for the 13 years that he had been
working for Respondent he had made weekly purchases
of groceries on credit. Thaxton, who had made weekly
purchases of groceries on credit for his 4-year term of em-
ployment, corroborated Beattie. Williams did not deny
this.
On November 15, 1965, having received no reply to
his telephone call of November 8 or his letter of
November 9, 1965, Brooks again telephoned Manager
Williams with reference to his request for recognition.
Williams told him he had just received Brooks' letter and
had not yet talked to his lawyer. Manager Williams again
refused to check the cards or to recognize the Union stat-
ing that he had to talk to his lawyer.
On the same day, November 15, 1965, Manager Wil-
liams called each employee into his office one at a time.
According to the credited testimony of employee John
Casto. "He called me in and asked me did I know
anything about the strike." Casto replied, "No, not as of
yet I don't." Williams then asked Casto if he [Williams]
had done anything wrong or". . . why we wanted a
union." Casto told him that at Huntington "the biggest
majority voted for a union," and, "As you know here
[Charleston] it's a 100 percent." Casto said, "The men
must have a reason." Williams then told him "they'll
probably be a layoff ... it will probably cause a layoff."
This was the day before Williams laid off John Casto. On
this same date of November 15, 1965, Manager Williams
asked employee Orville Thaxton if he had heard anything
about going on strike. Thaxton replied that he did not
know when a strike was scheduled. Manager Williams
then gave Thaxton his annual bonus stating that he would
need it if they struck. Williams, in his conversation with
employee Roger Buttrick in the same period, said he had
heard that the employees were going on strike and that
.. he thought that things had been going pretty
smooth until he got that call from the Union, and he said
it nearly floored him."
To none of the employees questioned by Manager Wil-
liams or Foreman Young was an explanation given for the
interrogation. There were no statements that they didn't
care whether or not the employees were Union members.
At no time did they express impartiality. And Williams
never told them he wanted to know if they joined the
Union in order to satisfy himself as to the Union's majori-
ty status as their bargaining representative.
Respondent's defense with respect to the allegations of
violations of Section 8(a)(1) relating to the interrogations
set out above, consisted of Manager Williams' specific
denial of John Casto's statement that he (Williams) told
Casto "they'll probably be a layoff ... it will probably
cause a layoff." He aslo denied knowledge of whether
John Casto, Thaxton and Good were" . . . really for or
against the union," and to this extent at least denied the
interrogation. Also he testified he was instructed not to
talk to the employees about the Union and he followed
these instructions and hence to this extent he also denied
the allegations of interrogation. As noted, Foreman
Young was never called as a witness to deny or explain
the testimony involving him.
ANALYSIS AND CONCLUSIONS ON 8[A][I]
At the outset there is the credibility issue to resolve in
precise areas where Manager Williams contradicted the
testimony of witnesses for the General Counsel. In all of
these situations I credit the witnesses for the General
Counsel as against Manager Williams.
Williams' demeanor while testifying was not convinc-
ing. Further, his testimony in large important parts was
vague, inconclusive and lacking in the candor necessary
to carry conviction in these dynamic controversies. He
impressed me as endeavoring wherever possible to
present the best possible face for his Employer to the ex-
tent that where precise evidence, if adduced, would ap-
pear to go against his cause he became vague and general.
An illustration of the enormity of his incredibility is the
following record testimony. As background to better un-
derstand the testimony, it should be remembered that he
is the manager of a wholesale grocery operation involving
10 warehousemen and truckdrivers who were under the
direct supervision of Foreman Young. He sought to con-
vey the impression that he was in the dark as to what his
employees were doing although he admitted to receiving
the telephone call on November 8, 1965, in which Brooks
requested recognition and bargaining based on 100 per-
cent card showing; he knew President Davis had refused
to recognize the Union at Huntington; and he knew that
the Union had filed Section 8(a)(1), (3), and (5) unfair
labor practice charges on November 23, 1965. The Trial
Examiner questioned him:
Q. Do you know why your warehouse people and
truckdrivers struck on the 8th of December?
A. No, I don't.
Q. You don't know why they struck?
A. No, I don't.
Q. How long have you been manager at the plant?
A. Almost 17 years.
Q. 17 years?
A. Right.
Q. And your employees just go on strike and you
don't know why?
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That's right.
Q. Did you talk to them?
A. No.
Trial Examiner: Very well, you may be excused.
Manager Williams did not impress me as being as incom-
petent and dull as the above testimony would indicate.
In contrast to his demeanor and incredible testimony,
the witnesses for the General Counsel testified frankly
and without fear or favor. Accordingly the above
evidence, and other following evidence, is based upon
credited evidence of the General Counsel's witnesses and
admissions by Respondent 's witnesses.
Therefore, I find the facts to be those set out above and
find that General Counsel sustained his burden of proof
that Respondent violated Section 8(a)(1) of the Act in the
following conduct:
(1) The questioning of employee Beattie by Foreman
Young on November 8, 1965, if he knew anything about
the Union, without first laying down the safeguards
necessary so as not to interfere, coerce, or restrain
Respondent's employees in the exercise of their rights
guaranteed by Section 7 of the Act.'
(2) The similar questioning of employee Smith on
November 8 by Manager Williams.
(3) The questioning of Beattie on November 10, 1965,
by Foreman Young as to why Buttrick and Smith signed
up for the Union.
(4) The sudden stopping without reason, of an em-
ployee benefit 3 days after knowledge of the Union's 100
percent strength in the unit given rise to the inference that
the purchase of groceries on credit was stopped in retalia-
tion of the employee's joining the Union and hence it had
a tendency to interfere with, coerce, and restrain the em-
ployees.
(5) The questioning of John Casto on November 15,
1965, by Manager Williams in his office about the
Union's plans to strike; asking him why he wanted a
union ; and threatening him with layoff.
(6) The questioning of Thaxton on the same day by
Williams; and giving Thaxton his bonus telling him he
would need it if the employees struck. If the money were
due and payable it must be paid without tieing it in with
strike activity. If it were not yet due, which would seem
to be the case from the way it was paid, then paying it in
relation to the strike tends to be a private inducement or
solicitation to withdraw from the Union and hence an il-
legal interference.
Discontinuance of the Runs and the Layoffs
On November 16, 1965, the day after Manager Wil-
liams had questioned emplcyee John Casto, Williams
called him into his office telling him "you 're laid off ...
. You're the youngest man ... you're laid off for lack of
work."
Robert Buttrick, who had been taking orders at the
Campbell's Creek area for approximately a year, was told
around November 20, 1965, by Manager Williams, as
Buttrick was straightening up the paint rack, "Buttrick,
he said, I forgot to tell you, we have discontinued the
Campbell's Creek run and you will not be going up there
on it each Tuesday to take orders." Shortly thereafter his
pay was cut a nickel an hour.
Employee Carl Williams had been doing the "Wed-
nesday run" to Campbell's Creek and Cabin Creek for
about 5 years. He made deliveries on orders taken on
Tuesday. He credibly testified that "about a week after"
November 8, 1965, this Wednesday run was discon-
tinued. He further testified that these Wednesday runs
would amount to "about $1,300.00 a week in orders, and
this amount had remained the same for "close to 2 years."
It so happened that he could see the amount of the orders
as he made his deliveries. On the other hand, Manager
Williams, although testifying that Respondent maintained
records on a month-to-month basis, only testified in
general terms that the times were slack and there was a
lack of work and business.
November 26, 1965, was the day Robert Good and Or-
ville Thaxton were laid off at the close of business. This
also was the day on which the Union's charges of unfair
labor practices were served on Respondent. Thaxton
credibly testified that Manager Williams told him, "Well,
I'm going to have to lay you and Bob [Good] both off for
lack of work." Thaxton later passed the word to Good
that he had been laid off. The following Monday,
November 29, 1965, Good telephoned Manager Wil-
liams who confirmed the fact that he had been laid off.
They were told that if business picked up at any time they
would be eligible to be recalled but have never been re-
called The last time Respondent had laid off a man, ac-
cording to the credited testimony of Harold Casto, was in
August 1964, when James, who had worked only a few
months in 1964 as a replacement for a quit, was ter-
minated and not replaced. The timing of these abrupt
discharges without adequate explanation give rise to the
inference that they were made in order to discourage pro-
tected unicn activity
The Board has consistently held that the abruptness of
a discharge and its timing are persuasive evidence as to
motivation. N.L.R.B. v. Montgomery Ward & Co., Inc.,
242 F.2d 497, 502, cert. denied 355 U.S. 829. See also
Dazzo Products, 149 NLRB 182; Jefferson Stores, 148
NLRB 1291; Marriello Fabrics, Inc., 149 NLRB 333;1.
Posner, Inc., 145 NLRB 1190; M. Lowenstein & Sons,
Inc., 150 NLRB 737; Maphis Chapman Corporation,
151 NLRB 73; Marydale Products Co., 133 NLRB
1232. See also Lively Service Company, 127 NLRB 290,
enfd. 290 F.2d 205.
Respondent's defense with respect to discontinuing the
runs and to the layoffs is that economic circumstances
justified them and the layoffs were then made in the order
' "SEC 7 Employees shall have the right to self-organization , to form,
join , or assist labor organizations, to bargain collectively through
representatives of thei r own choosing, and to engage in other concerted
activities for thA purpose of collective bargaining or other mutual aid or
protection , and shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of em-
ployment as authorized in section 8(a)(3)
"SEC 8. (a) It shall be an unfair labor practice for an employer-
"(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7,
"(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership
in any labor organization-
"(5) to refuse to bargain collectively with the representatives of his em-
ployees, subject to the provisions of section 9(a) "
DAVIS WHOLESALE CO., INC. 1003
of seniority. The three layoffs were made in the order of
seniority, but, inasmuch as Respondent did not present its
records as the evidence of its economic position, it can be
inferred that the Respondent's records would not support
its position. See 2 Wigmore, Evidence §285 (3rd ed.
1990); Ellenville Handle Works, Inc., 142 NLRB 787,
796; Detray Plating Works, Inc., 155 NLRB 1353. See
also Missouri Transit Co., 116 NLRB 587, 588, enfd.
250 F.2d 261 (C.A. 8), with particular reference to in-
ferences to be drawn from a litigant's failure to produce
pertinent records. Carl Williams' credited testimony that
the runs had remained the same for "close to 2 years" is
all the evidence in the record that is credited.
The General Counsel has met his burden of proof. I
find the runs were discontinued and the layoffs were
made in order to discourage the employees' union activi-
ties, to undermine the Union, and to intimidate the em-
ployees. Within a week after the Union's request for
recognition and bargaining, Respondent had engaged in
violations of Section 8(a)(1) above, had threatened John
Casto with a possible layoff, and had laid him off. Eleven
days later, on the day of service of unfair labor practice
charges, Respondent laid off Thaxton and Good. Thus 30
percent of the employees were laid off for an "economic
necessity" which was not established by substantial
evidence and which did not arise until the Union entered
the picture. The timing of the discontinuance of the runs
further illustrates Respondent's unfair labor practice
motivation being timed to serve as an object lesson to em-
ployees not to join or support the Union at pain of
economic reprisal. Accordingly, I find Respondent's
reason to be a pretext, and the discontinuance of the runs
and the layoffs to be in violation of Section 8(a)(1) and (3)
of the Act. Finally, it is noted that no lawful purpose is
served to make such layoffs in accordance with seniority.
THE LOAN POLICY
Employee Dennis Smith credibly testified that in
November 1965, he still owed $55 of a $70 loan he had
made from Respondent which he was repaying at the
agreed on rate of $5 per week when the $55 balance of the
loan was deducted from a bonus check because of an im-
pending strike. The stub of the check shows the deduc-
tion was made on November 12, 1965. Manager Williams
testified that Respondent always deducted money owed
from a bonus, and this was Respondent's defense as to
this.
As noted above, the bonus was paid at the time of
questioning the employees as to a possible strike and with
reference to the fact that in case of strike they would need
the money. A strike is not a quit and an employer may not
consider them to be the same. An attempt to consider a
strike to be a quit is, in effect, to discharge the employee
for striking inasmuch as the employment relationship is
severed. By deducting the debt from the bonus on ac-
count of the strike the Respondent is notifying its em-
ployees that the employment relationship is
severed-that he is fired. Accordingly as this affects the
wages of Smith, and as it was done to discourage his
union activities, it violates Section 8(a)(1) and (3) of the
Act.
THE AUTHORIZATION CARDS
Jack Brooks, business agent, credibly testified that em-
ployee Harrison signed his union authorization card on
November 2, 1965, and that employee Pauley signed his
authorization card on November 5, 1965. Each of the
remaining eight employees testified as to the circum-
stances under which they signed them. The remaining
eight cards are hereby found to have been authenticated
and to have been signed voluntarily on the following
dates: Dennis Smith, October 27, 1965; Oliver Beattie,
November 5, 1965; John Casto, October 27, 1965; Or-
ville Thaxton, November 1, 1965; Harold Casto,
November 1, 1965; Roger Buttrick, November 3, 1965;
Carl Williams, November 1, 1965; and Robert Good,
November 1, 1965.
THE APPROPRIATE UNIT
Manager Williams credibly testified that the groups of
warehousemen and truckdrivers are both hourly paid;
they both are under the direction of Foreman Harry
Young; they both share the same company fringe-benefit
plans to include hospitalization, life insurance, and profit-
sharing plans. Both groups have the same amount of va-
cation, depending upon years of employment. Both
groups punch the same timeclock. And both groups are
on the same payroll and are paid on the same day. The
truckdrivers make only local runs returning each after-
noon to the warehouse. They do warehouse work daily.
On the other hand the warehousemen drive trucks on oc-
casion. Thus there is a clear community of interest among
the truckdrivers and the warehousemen. The General
Counsel contends that an appropriate collective-bargain-
ing unit, as alleged in paragraph 9 of the complaint, is:
All truckdrivers and warehousemen employed by the
Respondent at its Charleston, West Virginia,
warehouse operation, excluding office clerical em-
ployees, salesmen, guards, and supervisors as
defined in the Act.
This is the same unit for which recognition and bargaining
was sought by the Union.
Although the Respondent at the trial stipulated that
Buttrick was properly within the unit, Manager Williams
testified contrariwise, generally that Buttrick was "in
charge" when Young was not around. However, Williams
admitted, on cross-examination, that Buttrick never hired
or fired anyone; never recommended such action; never
recommended any wage increases; was never told that he
had any authority to excuse anyone from work and that
when "in charge" it was on a sporadic basis only. I find
that Buttrick was not a supervisor within the meaning of
the Act but, rather, was an employee in the unit. I further
find that the unit sought is an appropriate unit within the
meaning of Section 9(b) of the Act. Santangelo & Co.,
154 NLRB 1649; Yankee Distributors, 152 NLRB 1018.
It is unnecessary that the unit sought is the only
appropriate unit, the ultimate unit, or the most
appropriate unit. Primrose Super Market of Salem, Inc.,
148 NLRB 610; Morand Brothers Beverage Co., 91
NLRB 409; A.S. Beck Shoe Corp. 92 NLRB 1457; S.S.
Logan Packing Company, 152 N LRB 421.
THE REFUSAL TO BARGAIN
During the trial of the case I had been asked to and I
hereby take judicial notice of the fact that the Union filed
charges against Respondent at its location in Huntington,
West Virginia, which charges culminated in complaints in
Cases 9-CA-3599, 9-CA-3742, and 9-CA-3839. These
cases went to hearing before Trial Examiner Mullin who
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued his decision on January 3, 1967. I also take judicial
notice of the fact that the Respondent filed charges
against the Union in Case 9-CB-1281 concerning activi-
ty engaged in at the Huntington plant. The latter case,
likewise, was heard before Trial Examiner Mullin who is-
sued his decision thereon also on January 3, 1967. While
I am not depending upon any of his decisions in deciding
the instant case, the parties are on notice that I have
promised to examine the record in those cases to apprise
myself if there was evidence therein that would be helpful
in the instant case and, if so, to reopen the instant case for
further testimony in that regard. I have examined the
aforesaid voluminous records and I find the record in the
instant case to be sufficient without additional evidence
and base my Decision solely upon it.
To recapitulate, the credited evidence adduced at this
hearing has established that union organizing activities
first began at Respondent's plant in Huntington, in the
latter part of April, 1965, and began in Charleston in late
October of the same year. By November 5, 1965, in
Charleston, the Union represented all of the employees
in an appropriate collective-bargaining unit, set out
above, by virtue of signed union authorization cards, and,
on November 8, 1965, the Union through its Agent
Brooks so informed Respondent through its manager,
Williams, by a telephone conversation. In this telephone
conversation Brooks asked for recognition and bargaining
defining the unit. Brooks offered to show Williams signed
authorization cards to prove the Union's majority and
although seeming to agree to check the cards, Williams,
during the course of the telephone conversation, changed
his mind and asked Brooks for time to think it over. Any
valid doubts Williams might have had as to the majority
were dispelled later that same day when employee
Dennis Smith replied to a question by Williams if they
had all signed up for the Union by Smith replying "they
all signed, 100 percent." Also, on the same day, Foreman
Young asked employee Oliver Beattie if he knew
anything about the Union and was told in reply that all of
the employees had signed up for the Union. On the fol-
lowing day, November 9, 1965, Brooks wrote a letter to
Manager Williams confirming the telephone conversation
again repeating the request for recognition and the offer
to prove majority status. There was no reply to this letter.
On the following day, November 10, 1965, Respondent
indicated its knowledge of the fact that the employees in
the unit had signed up for the Union when Foreman
Young asked employee Beattie why employees Buttrick
and Smith had signed up for the Union. On the following
day, November 11, 1965, which was just 3 days after the
November 11, 1965, which was just 3 days after the
November 8 telephone conversation, Respondent uni-
laterally put into effect certain changes in working condi-
tions by putting to an end the long established practice of
permitting the employees to make purchases of groceries
on credit. Employees Thaxton and Beattie credibly
testified to this action. Again on November 15, 1965,
Brooks telephoned Manager Williams with respect to his
request for recognition. At no time did Williams express
doubt that the employees had selected the Union to
represent them.
The position of Respondent is that there should be a
Board election to establish majority status. The position
of the General Counsel is that Respondent not only vio-
lated Section 8(a)(1) and (3) of the Act as found above but
also clearly demonstrated by the above acts its lack of
any good-faith doubt about the Union's majority status
under the Joy Silk Mills Doctrine, 185 F.2d 732
(C.A.D.C.) cert. denied 341 U.S. 914, and hence that
Respondent violated Section 8(a)(5) of the Act. There is
merit to this position and I so find. Instead of granting
recognition to the Union which represented 100 percent
of its employees in the unit , or requesting an election
based on a good-faith doubt of majority and thereafter not
interfering with the employees , Respondent engaged in
stalling and in the coercive conduct found above. This ef-
fort to undermine the Union's majority status reveals
Respondent's lack of a good-faith doubt of the Union's
majority status.
I find that at all times since November 8, 1965, the
Union has been the exclusive bargaining representative
of the employees in the aforesaid appropriate unit within
the meaning of Section 9(a) of the Act.
By refusing on and after November 8, 1965, to recog-
nize and bargain collectively with the Union as the exclu-
sive representative of the employees in the aforesaid ap-
propriate unit , the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act. Overnite Transportation,
308 F.2d 284 (C.A. 4); Geigy Co. 211 F.2d 553 (C.A. 9);
Crean d/bla Grand Food Market, 139 NLRB 73;
Madsen Wholesale Co., 139 NLRB 863.
THE STRIKE AND RELATED ACTIVITIES
On December 8, 1965, the employees struck. The
seven employees remaining in the unit after the layoff of
John Casto, Thaxton, and Good all participated in the
strike. They picketed Respondent's premises with signs
saying "Local 347 Food Store Employees on Strike."
Also, "Davis Wholesale Company Employees on strike."
These signs have been carried since December 8, 1965.
The employees at the Huntington plant of Respondent
also struck on the same day, December 8, 1965. I find the
strike was caused by the above unfair labor practices of
Respondent and at the outset was an unfair labor practice
strike. National Furniture Manufacturing Co. Inc. 130
NLRB 712, 725; Sea View Industries Inc., 127 NLRB
1402,1426,1435-36.
THE EVENTS FOLLOWING THE STRIKE
In order to put the events following the strike of
December 8, 1965, in their proper context, it is necessary
to go back for a moment to November 8, 1965. Manager
Williams testified that following the demand for recogni-
tion and bargaining made by Agent Brooks on November
8 he passed that information on to President Davis, who
was in Huntington. Williams admitted that he knew that
the same labor organization involved in Charleston was
attempting to organize the employees of Respondent in
Huntington; that they had made a similar demand for
recognition in Huntington; and that they had not been
recognized in Huntington either. He also knew the
Huntington demand and refusal to recognize had been
made sometime before the demand was made in Char-
leston . After testifying that he had had two telephone
conversations with Agent Brooks and had received
Brooks' letter dated November 9, 1965, he went on to
testify as follows:
Q. Well, then, was it your position after talking to
the Union that you wanted the employees to vote for
the Union?
A. Well, actually it was out of my hands, see, I
couldn't bargain with them.
DAVIS WHOLESALE CO., INC.
Q. Who's hands was it in?
A. I suppose Mr. Davis.
Although the organization of the employees by the
Union at Huntington, took place six months earlier than
that at Charleston, the strike on December 8, 1965, took
place at both plants.
Lewis Davis, president of Respondent, told certain
striking employees, in substance, that they were fired
when they went out on strike and they were no longer his
employees . Davis, whose office was in the Huntington
plant, told it many times to the Huntington employees
while they were on strike. For example on December 13,
1965, he told this to employee Paul Christian. On
December 11, 1965, President Davis told some of the
employees that the day they walked out of the gate they
were fired and would never work for him again. Dennis
Holley testified to this conversation. Thomas Templeton
testified that President Davis told him and other em-
ployees the same thing on three different dates, i.e.,
December 9, 11, and 21, 1965. And Union Business
Agent Ronald Skaggs testified that he heard it on
December 13, 1965. As noted above, the employees at
Charleston were likewise going to be treated as dis-
chargees the moment they struck because, as shown in the
situation of Smith, Respondent was deducting debts owed
by them from money payable to them not in accordance
with the previous agreement as to method of pay.
In addition to Manager Williams' admission that the
labor policy was in the hands of President Davis, the
common labor policy at both Huntington and Charleston
is further indicated by a letter written by Respondent's
counsel to the Secretary-Treasurer of the Union on
December 20, 1965. The letter sets forth the Respond-
ent's position with respect to why it refuses to recognize
the Union "either in Huntington or at Charleston." The
letter is as follows:
Kelly-Hatfield Building
Telephone 525-7667
Huntington , West Virginia
25716
December 20, 1965
Mr. Sherwood M. Spencer
Food Store Employees Union
Post Office Box 2751
Charleston, West Virginia 25330
Dear Sir:
Referring to our telephone conversation several
days ago and the matters in your letter of December
10 to Mr. James K. Williams of the Davis Wholesale
Company, it is the position of the Company that your
union does not represent a majority of the employees
in an appropriate bargaining unit either in Hunting-
ton or at Charleston. Your continued refusal to per-
mit a fair and honest election to be conducted by the
National Labor Relations Board is proof positive
that you do not have a majority status. The conduct
of your union staff people and the few Davis em-
ployees who went out on strike in personal violence,
property destruction, threats and other hoodlum con-
duct make it quite apparent that your union is deter-
mined to assert its presence as a result of a rain [sic]
1005
of terror. Accordingly, the company has authorized
us to reject your demand for recognition.
JEJ:le
Your very truly,
Jenkins & Jenkins
By
cc: Mr. Lewis Davis
Mr. James K. Williams
In view of the fact that: (1) the same Union was at-
tempting to organize the employees of Respondent at its
plants in Huntington and Charleston ; (2) the employees
of both plants went out on strike on the same day,
December 8, 1965; (3) Williams admitted that the situa-
tion at Charleston was in the hands of President Davis;
Respondent's counsel recognized the common labor pol-
icy in Huntington and Charleston; and (4) the employees
at Charleston were going to be treated as if they quit
when they struck, the Trial Examiner concludes that the
statements made to the employees by President Davis at
Huntington, West Virginia are applicable as company
policy with respect to the employees at Charleston, West
Virginia, and they too were fired when they went out on
strike.
THE OFFER TO RETURN TO WORK BY THE STRIKERS
The Union made an unconditional offer, by its Secreta-
ry-Treasurer Spencer, for all striking employees to return
to work on April 7, and that thereafter, on April 7, the
striking employees did return to work as indicated by the
telegram. None were taken back. With one exception,
Respondent failed to reinstate not only those employees
who struck on December 8, 1965, but also the three in-
dividuals laid off in November.
The exception to the failure by Respondent to reinstate
any of the striking employees is Dennis Smith. He
testified that he received a letter similar to one Respon-
dent's counsel put in evidence as Respondent's Exhibit
3, in which Respondent acknowledged his offer to return
to work and told him he would be ". . . placed on layoff
status and, according to your request, recalled to work as
soon as work is available." That letter was dated April 7,
1966. In addition, Smith testified that he received a letter
from Respondent recalling him to work at the Charleston
plant at 7 a.m. on April 18, 1966. Smith reported at the
requested time and has been working since.
President Davis, maintaining that there were no jobs at
Charleston when the strikers returned there to work, ad-
mitted that toward the end of April 1966, Respondent
started its operation at Culloden, some nineteen (19)
miles from Charleston on the road to Huntington. He has
from 20 to 23 truckdrivers there and about 40
warehousemen. He admitted that some of the
truckdrivers and warehousemen were hired after the
strike began in December 1965. Also he admitted that
some truckdrivers had left Respondent's employment
since the opening of the Culloden warehouse, and that
new drivers have been hired there. Also he admitted that
warehousemen have left Respondent since the opening of
the Culloden warehouse and that new warehousemen
have been hired. He transferred his Huntington em-
ployees to Culloden and transferred certain employees
from Charleston. All of the runs that originally were out
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Charleston are now out of Culloden . Davis testified
that some truckdrivers and warehousemen were hired
after the strike began and that he didn 't know the number,
but testified that his payroll records would contain that in-
formation.
I find that the unconditional offer to return to work
having been made by the unfair labor practice strikers,
the burden then rested upon Respondent to reinstate all
of the striking employees to their former positions,
discharging , if need be , replacement hires. (See E.V.
Prentice Machine Works, Inc, 120 NLRB 417, 449.) As
Respondent did not reinstate the returning strikers on
April 7, 1966, nor meet the burden of explaining the legal
reasons why it did not , it violated Section 8 (a)(3) and (1)
of the Act. On April 18, 1966, Respondent recalled
Dennis Smith thereby removing him from the remedy
provided hereinafter from that day on. When the Char-
leston operations had been transferred to Culloden after
the unconditional offer to return to work had been made
by the strikers , Respondent was under a duty to give jobs
to the unfair labor practice strikers at the new location,
being, as it was, in the vicinity of Charleston, West Vir-
ginia.
OLIVER BEATTIE
Respondent contends that Beattie is not entitled to
reinstatement so long as there is an assault charge pend-
ing against him. The facts of this situation are obtained
from the credited testimony of Beattie although con-
tradicted in some aspects by employee Thomas Gray
On or about February 10 or 12, 1966, Thomas Gray,
while traveling down the street in a truck of Respondent's
made a gesture , of extending the middle finger of his ex-
tended hand with the other fingers closed in a fist , at Beat-
tie and some other strikers as they were standing on the
corner. Beattie walked down to where Gray had then
stopped and asked Gray to join the pickets. Gray got
"smart ." Beattie told him "you get out of the truck and I
will knock your ass off." Gray did not get out of the truck.
Gray got Manager Williams, and swore out an assault
charge against Beattie The charge had not come to trial
as of the hearing date of August 17, 1966 some six
months later.
The General Counsel introduced evidence showing
that Respondent condoned acts of misconduct by non-
striking employees and hence was using the assault
charge against Beattie as a pretext for not reinstating him
with the real reason being his union activities . Thus, Gray
had been arrested on a warrant during the strike for con-
duct against strikers yet he still was in Respondent's em-
ploy. Further , he was accompanied to the Justice of the
Peace's office by Respondent's secretary-treasurer where
the wife of Respondent's president posted Gray's bond.
On another occasion Gray drove one of Respondent's
trucks into the rear of the car of striker Kelsey Elkins.
Respondent's vice president posted bond for Gray in that
matter in which Gray pleaded "no contest " and was fined
$35. Gray was not fired, yet President Davis knew of the
two Gray incidents . Davis also knew. that employee Her-
man McCallister had pointed a shotgun at strikers; that
employee Ralph Porter had a gun around the pickets; and
that charges had been filed against employee James
Myers for brandishing a shotgun at striking employees.
These employees were not fired. Obviously Davis dis-
criminated between violent conduct of strikers and non-
strikers. In so doing he established the fact that conduct
such as that engaged in by Beattie is really no bar to em-
ployment . His recourse to this conduct as an excuse to
ket.p from employing Beattie is a pretext with the real
reason being Beattie 's union activities . Hence there is no
merit to Respondent 's contention that Beattie should be
denied reinstatement.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act in the par-
ticulars set forth in the Recommended Order . For the
reasons which are stated in Consolidated Industries, Inc.,
108 NLRB 60, 61, and cases there cited , I shall recom-
mend a broad cease -and-desist order . Where the recom-
mendation is to make an employee whole for any loss of
earnings suffered as a result of discharge or other dis-
criminatory action , the sum to be paid him shall be com-
puted in accordance with the formula stated in F.W.
Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum , as provided in Isis
Plumbing & Heating Co., 138 NLRB 716. The backpay
period of John Casto begins on November 16, 1965; of
employees Robert Good and Orville Thaxton begins on
November 26, 1965 ; and of the remaining seven em-
ployees in the unit begins on April 7, 1966. The backpay
period of Dennis Smith ends on April 18, 1966. As em-
ployee Roger Buttrick was cut in pay a nickel an hour
shortly after November 20, 1965, he should be made
whole for this loss in pay , because of the discriminatory
termination by Respondent of the Campbell 's Creek run
until the strike of December 8, 1965, and, from April 7,
1966, his backpay should be computed at the rate of pay
he was earning before his pay cut.
Where the recommendation is to cease and desist from
practices violative of Section 8(a)(1) and (5) of the Act,
the appropriate affirmative action includes bargaining
upon request with the Union , in order to effectuate the
policies of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law and upon the entire record in the case, it is
recommended that Davis Wholesale Co., Inc., its of-
ficers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in order to discourage membership in Food
Store Employees Union Local 347, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, or any other labor organization.
(b) Interrogating any employee concerning such union
activity by him or other employee.
(c) Threatening its employees with discharge or other
reprisals if they become or remain members of the Union
or give any assistance or support to it.
(d) Altering its working conditions for the purpose of
defeating the organizational efforts of its employees or of
Food Store Employees Union Local 347, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO.
(e) Refusing to bargain in good faith with Food Store
Employees Union Local 347, Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO , in a unit composed of:
DAVIS WHOLESALE CO., INC. 1007
All truckdrivers and warehousemen employed by the
Respondent at its Charleston, West Virginia,
warehouse operations, excluding office clerical em-
ployees, guards, salesmen, and supervisors as
defined in the Act.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist Food Store Em-
ployees Union Local 347, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of col-
lective bargaining or mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer to the employees, whose names appear in the
Appendix attached hereto, reinstatement to their former
positions or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges
previously enjoyed; and make each such employee whole
for any loss of pay he may have suffered by reason of the
Respondent's discrimination against him, in the manner
described in the "Remedy" section of this Decision.
(b) Notify the employees named in the Appendix if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Services.
(c) Upon request, bargain collectively with the Union
as the exclusive representative of the employees in the
appropriate unit of "all truckdrivers and warehousemen
employed by the Respondent at its Charleston, West Vir-
ginia, warehouse operations, excluding office clerical em-
ployees, guards, salesmen, and supervisors as defined in
the Act," with respect to rates of pay, wages, hours of
work, and other terms and conditions of employment, and
embody in a signed agreement any understanding
reached.
(d) Preserve and 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 amounts of backpay due and the rights of em-
ployment under the terms of this Order.
(e) Mail a copy of the attached notice marked "Appen-
dix" 2 to each employee, and post copies at the Respond-
ent's plants in Charleston, West Virginia, and Culloden,
West Virginia. Copies of said notice, to be furnished by
the Regional Director for Region 9, shall be signed by a
representative of the Company. The posting shall take
place immediately upon receipt thereof and maintained
by Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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.
(f) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps it has taken to comply herewith.3
2 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and_ Order."
3 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 the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT discourage membership in Food
Store Employees Union, Local 347, Amalgamated
Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, or any other labor organization, by
discriminating as to the hire, tenure, or any other
term or condition of employment of any of our em-
ployees.
WE WILL NOT question our employees with
respect to their union activities in such a manner as
to interfere, coerce, or restrain them in the exercise
of their rights guaranteed by Section 7 of the Act.
WE WILL NOT discharge, or otherwise discriminate
against employees in order to discourage member-
ship in or support of Food Store Employees Union,
Local 347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any
other labor organization.
WE WILL NOT threaten our employees with layoffs
or other reprisals if they become or remain members
of the Union or give any assistance or support to it.
WE WILL NOT alter our working conditions for the
purpose of defeating the organizational efforts of our
employees or of Food Store Employees Union,
Local 347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or the ef-
forts of any other labor organization of our em-
ployees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor or-
ganizations, to join or assist the aforesaid union, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other such mutual aid
or protection and to refrain from any or all such ac-
tivities.
WE WILL offer to the following employees full
reinstatement to their former or substantially
equivalent positions, without loss of seniority or
other rights and privileges, and make them whole for
any pay they lost because of the discrimination
against them with interest.
Luther Harrison Harold Casto
Robert J. Pauley Roger Buttrick
Oliver Beattie Carl Williams
John Casto Robert Good
Orville Thaxton
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole Dennis Smith for any pay he
lost because of the discrimination against him with
interest.
WE WILL pay Roger Buttrick a sum of money
equal to the wages he lost by reason of the discon-
tinuance of the Campbell ' s Creek run on or about
November 20, 1965, until December 8, 1965, with
interest.
WE WILL, upon request , bargain collectively with
Food Store Employees Union , Local 347, Amalga-
mated 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 terms and conditions of em-
ployment and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All truckdrivers and warehousemen employed
at our Charleston , West Virginia , warehouse
operations , excluding office clerical employees,
guards, salesmen , and supervisors as defined in
the Act.
All our employees are free to become, remain or refrain
from becoming or remaining , members of Food Store
Employees Union , Local 347, Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO.
Dated By
DAVIS WHOLESALE CO.,
INC.
(Employer)
(Representative ) (Title)
NOTE: We will notify those employees named above if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , Room 2407,
Federal Office Building, 550 Main Street , Cincinnati,
Ohio 45202 , Telephone 684-3663.