F Strauss & Son, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1972

200 N.L.R.B. 812 (N.L.R.B. 1972)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F Strauss & Son, Inc and Retail Clerks Local No
210 chartered by Retail Clerks International Asso-
ciation, AFL-CIO Cases 15-CA-4274 and
15-RC-4703
December 8, 1972
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 29, 1972, Administrative Law Judge
Jerry B Stone issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions, and the Charging Party filed
cross-exceptions and an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our em-
ployees concerning their and other employees'
union membership, activities, and sympathies
WE WILL NOT promise employees implementa-
tion of changes, better salaries, wage increases,
better working conditions, loans or other benefits,
if said employees cease and refrain from union
activity and do not support a union
WE WILL NOT threaten our employees with
warehouse closure, or other reprisals, if they
engage in union activity or support the Union
WE WILL NOT create an impression of surveil-
lance by telling employees the names of other
employees and identifying such named employees
as union adherents
WE WILL NOT coercively direct employees to
make talks to employees on our behalf
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act
except to the extent that such rights may be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that F Strauss & Son, Inc, Monroe,
Louisiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order
Substitute the attached notice for the Administra-
tive Law Judge's notice
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Clerks Local No
210 chartered by Retail Clerks International Associa-
tion , AFL-CIO, and that, pursuant to Section 9(a) of
the National Labor Relations Act, as amended, the
said labor organization is the exclusive representative
of all the employees in the unit found appropriate
herein for the purposes of collective bargaining in
respect to rates of pay , wages, hours of employment,
or other conditions of employment
F STRAUSS & SON, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, T6024 Federal Building (Loyola), 701
Loyola Avenue, New Orleans, Louisiana 70113,
Telephone 504-527-6361
DECISION
STATEMENT OF THE CASE
JERRY B STONE , Administrative Law Judge This
proceeding under Section 9 and Section 10(b) of the
National Labor Relations Act, as amended, was tried
pursuant to due notice on May 16, 17, and 18, 1972, at
Monroe , Louisiana
The charge in Case 15-CA-4274 filed on October 21,
1971 The complaint in Case 15-CA-4274 was issued on
200 NLRB No 114
F STRAUSS & SON 813
December 15, 1971 The issues concern whether Respon-
dent engaged in acts of interference , restraint, and coercion
of employees concerning their union activities , desires, and
beliefs in violation of Section 8(a)(1) of the Act The
alleged conduct included alleged acts of interrogation,
threats of reprisals, promises of benefits , creation of
impressions of surveillance , coercively requiring an em-
ployee to address fellow employees , and conditioning loans
upon the rejection of the Union All such conduct related
to the question of employee union activities , desires, or
beliefs
The procedural facts relating to Case 15-RC-4703 are as
follows (1) The petition therein was filed on August 5,
1971, (2) the stipulation for a consent election was
executed by the parties on August 31, 1971, (3) the Board-
conducted election was held in such matter on October 15,
1971, (4) there were a sufficient number of challenged
ballots to affect the outcome of the election, (5) timely
objections to the conduct of the election were filed on
October 21, 1971, (6) the Regional Director's report on
challenges and objections to the election was issued on
December 16 , 1971, and (7) the National Labor Relations
Board , on February 25, 1972, issued its Decision and Order
in Case 15-RC-4703 (reported 195 NLRB No 112)
The issues now presented for resolution as to the
challenges are whether the challenges to the ballots of
Charles A Osborn, Louis Blake, and Victor Ogles should
or should not be sustained
The issues presented for resolution as to the objections
are whether Petitioner's objections 1, 2, 3, and 5 are
meritorious or not I
All parties were afforded full opportunity to participate
in the proceeding, and briefs have been filed by all parties
Such briefs have been considered
Upon the entire record in the case and from my
observation of witnesses , I hereby make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
herein , an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The facts are based upon the pleadings and admissions
therein Retail Clerks Local No 210 chartered by Retail
Clerks International Association , AFL-CIO , the Union is,
and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act
Based upon the foregoing, and as conceded by the
Respondent , the foregoing is concluded and found
III THE UNFAIR LABOR PRACTICES
A Preliminary Issues
Supervisory Status
The facts are based upon the pleadings and admissions
therein The following named individuals are now, and
have been at all times material herein , supervisors of
Respondent within the meaning of Section 2(11) of the
Act Thomas J Mulhearn, Jr, Herschel Pair, Leonard
Kaye, and Sherman Bush
Based upon the foregoing, and as conceded by Respon-
dent, the above is so concluded and found
B The Challenged Ballots
Introduction
The ballots of Louis Blake , Charles Osborn , and Victor
Ogles were challenged in the NLRB election held on
October 15 , 1971 The Union challenged such ballots on
the alleged ground that such persons were supervisors
within the meaning of the Act
F Strauss & Son, Inc , the Respondent , a wholly
owned subsidiary of Malone & Hyde, Inc, operates a
grocery warehouse in Monroe , Louisiana Its daytime
operations may be said to be essentially an inbound
receiving operation Its nighttime operation may be said to
be essentially an outbound shipping operation
The facts are based upon the pleadings and admissions
therein F Strauss & Son, Inc , the Respondent, a
Louisiana corporation with its principal office and place of
business in Monroe , Louisiana, is a wholly owned
subsidiary of Malone & Hyde, Inc, a Tennessee corpora-
tion It is now, and has been at all times material herein,
engaged in the warehousing , distribution, and wholesale
sale of food and related products at its Monroe, Louisiana,
facility During the 12-month period ending on December
15, 1971, which period is representative of all times
material herein, the Respondent , in the course and conduct
of its business as described above, at its Monroe,
Louisiana, facility, purchased and received products
valued in excess of $50 ,000 directly from points located
outside the State of Louisiana
Based upon the foregoing , and as conceded by Respon-
dent, it is concluded and found that F Strauss & Son, Inc,
the Respondent is, and has been at all times material
Charles Osborn
The question as to whether Osborn was a supervisor as
of the time of the election held on October 15, 1971,
involves a consideration as to whether his duties before
September 8, 1971, were those of a supervisor , whether
Osborn was promoted to a supervisory position after
September 8, 1971, and whether Osborn's duties changed
after September 8, 1971, to such an extent as to constitute
him a supervisor within the meaning of the Act
The facts relating to these issues were presented by
stipulation, and by testimony of witnesses Webb, McDo-
nald, Pair, Hilton , and Osborn Essentially, the facts
touched details occurring after September 8, 1971, but
some facts were presented as to details occurring before
September 8, 1971 Considering all of the facts and a fair
inference therefrom, the following facts may be summa-
rized
1 Said objections are set out in detail in section III D oI this Decision
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously indicated, the Employer's operation is a
warehousing operation involving the receipt and shipping
of grocery products As part of its operations, the
Employer has in its warehouse a drug room It receives in
and ships from the drug room items such as razor blades,
castor oil, hair spray, cigarettes, etc It employs approxi-
mately six employees in its drug room with three of these
employees being part-tune employees 2
The drug room is divided by a wire fence Most of the
products received and distributed are temporarily stored
on one side of the fence One of the drug room employees
reports to work around 8 a m and apparently stocks the
items received Stocking appears to be a relatively simple
and routine operation since the items are previously slotted
or designated It appears that the drug room has shelves or
bins appropriately marked or designated for items Two of
the drug room employees commence work around 8 a in,
sweep floors, and affix state revenue stamps upon
cigarettes The main force of the drug room employees
appears to work from 1 p in to 10 p in The work of these
employees is essentially that of oider pulling Invoices or
orders have been set up by an employee (during the time
involved herein-an employee named Gilbert) who does
not appear to be a drug room employee 3
Employees pick the top available order, pull the
merchandise needed, pack the same in boxes, and check
appropriate items on the invoices The work appears to be
extremely simple and routine in nature On occasion,
during the critical time involved herein, Gilbert passed
handling instructions through Osborn to the other employ-
ees The employees' main work is pulling orders and
packing the same in boxes
Prior to September 8, 1971, the Employer had an
"Outbound Checker" named George French in the drug
room "Outbound Checkers" possess supervisory authority,
and it is undisputed that French was a supervisor French's
rate of pay was $2 per hour Prior to September 8, 1971,
and continuing until the hearing in this matter, Osborn's
rate of pay has been $1 85 per hour The facts as to rates of
pay of the other employees is sparse Webb, a drug room
employee, receives $1 80 per hour
As indicated, all of the work involved in the drug room
appears to be extremely simple and routine in nature
Webb, whose work was that of sweeping floors and
affixing revenue stamps to cigarettes, credibly testified to
the effect that his work was so simple that it required no
supervision
Webb and McDonald credibly testified that Osborn gave
orders or instructions Webb's testimony did not reveal
whether such orders or instructions occurred before or
after September 8, 1971 McDonald's testimony was to the
effect that such orders or instructions occurred before and
after September 8, 1971 Osborn is an older employee, and
2 I credit Osborn s testimony to such effect Webb testified to the effect
that there was a total of 12 employees involved I am persuaded that Osborn
is a more reliable witness on this point However, a finding of 12 employees
would not affect the results herein
3 Whether this employee is or is not a drug room employee would not
affect the decision in this case
4 Pair daytime warehouse superintendent was overall supervisor of
some 30 employees Pair had four inbound checkers who helped him in the
supervision of such employees Pair s working hours covered the time period
the Employer has regular and part-time employees in the
drug room From all of the facts, I am persuaded that such
orders or instructions were routine in nature and in effect
represented merely instructions, orders, or advice from a
more experienced employee
The facts reveal that Osborn has no authority to hire,
fire, transfer, or suspend employees, grant wage increases,
lay off employees, grant overtime, discipline employees, or
to effectively recommend the same I note with respect to
the foregoing that the testimony of Webb suggests that
Osborn may have received authority to hire and fire
employees Thus, Webb testified to the effect that he heard
Osborn tell another employee that he had such authority
Osborn denied making such statement and I credit his
denial Considering the fact that Osborn's wages have not
been increased, I am persuaded to a credibility resolution
favoring Osborn on such issue Further, Osborn's status as
an agent cannot be established by what might appear to be
an admission by him that he is an agent The overall facts
preponderate for a crediting of the testimony of Osborn,
Pair, and Hilton to the effect that Osborn has not been
made a supervisor or granted supervisory authority, that
Osborn was told he was being considered for promotion to
French's job, that other employees were being considered,
and that the Employer was considering doing away with
the "Outbound Checker" position in the drug room
The Charging Party introduced testimony to the effect
that Osborn posted a notice, signed by him and several
other employees, which said in effect that the drug room
would be nonunion I am not persuaded that this is
evidence of supervisory authority
The issue finally boils down to whether Osborn responsi-
bly directed the work of the employees involved Consider-
ing all of the facts, the extremely simple and routine work
involved, the availability of Pair and Hilton in the
warehouse area, I am persuaded that the preponderance of
the facts reveals that Osborn has not been clothed with
supervisory authority 4
Considering all of the facts, I conclude and find that
Osborn was not a supervisor within the meaning of the Act
at the time of the election in 15-RC-4703, held on October
15, 1971 I recommend that the challenge to his ballot be
overruled
Victor Ogles
Victor Ogles works in the frozen food room in the
Employer's warehouse Ogles' fob and that of the employ-
ees who work with him is in that aspect of operation
described as outbound shipping Ogles' hours of employ-
ment are from 4 p in to 12 p m 5 The question presented is
whether Ogles is a supervisor over five or six employees
who work in the frozen food operation
It is clear that Ogles has never hired, fired, transferred, or
from approximately 8 a in to 5 p m Hilton the nighttime supervisor, was
overall supervisor of approximately 110 to 115 employees However
approximately 65 of these employees were truckdnvers and helpers who
were on the premises only 10 to 15 minutes a night Thus, Hilton had 5 to 8
inbound checkers who helped him with the supervision of the approximately
50 employees at work for most of the night hours Hilton s working hours
were from approximately 4 p in to 12 p in
5 These work hours overlap the work hours of Superintendent Pair and
Hilton but essentially cover Hilton s work hours
F STRAUSS & SON 815
promoted any employee There is no evidence to reveal
that he has such power or has the power effectively to
recommend such action Essentially , the question is
whether Ogles responsibly directs the work of the employ-
ees involved within the meaning of the Act
The outbound shipping operation in frozen food begins
with the distribution of printed orders which are brought to
Ogles by a plant clerical worker The orders are then filled
by frozen food outbound employees, checked for accuracy,
packed, and then taken to the shipping area for shipment
on trucks Ogles directs and gives instructions to the
employees involved Ogles also pulls, packs , checks orders,
operates a lift truck, and carries filled orders to the
shipping area
There is conflict in the evidence as to Ogles' authority
and functions I have considered the conflicting testimony
and find it sufficient to set forth the following facts
Ogles is paid $100 per week for work hours up to 40
hours a week Ogles is paid time and a half for hours over
40 hours per week The rank-and-file employees are paid at
hourly rates ranging from $1 60 to $1 85 per hour
Hilton and Ogles testified to the effect that Hilton set up
the work schedules for the employees and that Ogles had
no authority to deviate therefrom Rogers testified to the
effect that Ogles set up the work schedules and that if
asked by an employee to change a schedule would make a
change or not make a change without consulting with
anyone else I find Ogles and Hilton to be reliable
witnesses as to whether Hilton makes out the schedules I
credit their testimony to such effect I found Rogers to
appear most credible with respect to his testimony that
Ogles made changes in schedules without consulting with
Hilton I credit such testimony and so find the facts
Further, since the facts reveal that Night Superintendent
Hilton is in and out of the frozen food room during the
night, I am persuaded that Hilton would be aware of such
changes as were made Thus, it is clear that Ogles had
authority to make changes in work schedules
Rogers testified to the effect that Daytime Warehouse
Superintendent Pair assigned him to work in the frozen
food room, told him that he would be working under
Ogles, and told him that Ogles would be his supervisor
Navarro testified to the effect that Daytime Warehouse
Superintendent Pair assigned him to work in the frozen
food room, took him to and introduced him to Ogles, and
told him that he was responsible to Ogles-that Ogles was
his supervisor Pair testified that he did not tell these
employees that Ogles was their supervisor but told them
that Hilton was their supervisor I found Rogers and
Navarro to appear to be more credible and forthright
witnesses on this point as compared to Pair I credit their
testimony
Evidence was also adduced to the effect that employees
sought to get wage increases by speaking to Ogles, that
employees were told by Superintendent Pair on occasion
that he would check with Ogles before granting wage
increases, and that Pair checked with Hilton, Ogles, and
other employees before granting wage increases
The Charging Party and the Employer dispute whether
Ogles has the authority to grant time off to employees It is
sufficient to say that despite the conflict in the testimony of
their respective witnesses to this issue Ogles' testimony
reveals that he does grant time off to employees if he
considers their request to be a legitimate request If, as
Hilton testified , Hilton were attentive to the operation of
the frozen food room , the schedule of employees, and the
employees working in such room , it is clear that he would
be aware of such occasions If, contrary to Hilton's
testimony, he were not attentive to the frozen food room
schedule and the work of the employees , it is clear that
Ogles had in effect been delegated authority to responsibly
direct the work of the employees Under such circum-
stances, it is clear that in either event, the Employer had
clothed Ogles with the authority to grant time off to
employees The facts reveal that , on occasion , Ogles denied
employees time off, that employees then went over his
head and obtained time off from higher-ups It is also clear
that on other occasions employees sought time off from
higher officials, Pair and others , and obtained time off
This does not take away from Ogles' authority but rather
simply reveals a fact of life that higher officials have more
authority than lower officials
Ogles and the four or five frozen food room employees
involved herein work from approximately 4 p in to 12 p m
The work of these employees , as most of the Employer's
work, is simple in nature and relatively routine As
indicated previously, Pair, daytime warehouse superintend-
ent, works from approximately 8 a in to 5 p in Pair has
four inbound checkers who help him in the supervision of
approximately 30 employees Hilton, nighttime warehouse
supervisor, works from approximately 4 p m to 12 p in
There are 110 to 115 employees who work during the night
hours However, approximately 65 employees are truckdn-
vers and helpers and are on the premises for only 10 to 15
minutes Hilton has 5 to 8 outbound checkers who help
him in the supervision of the remaining 50 employees
Because of the simple and routine nature of the work
performed by the frozen food room employees, it is
conceivable that the Employer could operate the frozen
food room with a leadman The question, however, is
whether the Employer operates the frozen food room with
a leadman or whether the Employer has clothed Ogles with
supervisory authority
The Employer's witnesses Pair, Hilton, and Ogles,
testified to the effect that Ogles did not possess any
supervisory authority As is true in most questions of
whether an individual possesses supervisory authority of
the responsible direction type, an evaluation of such
testimony and of the objective facts is required The
question is whether the individual has been clothed with
supervisory authority or not In some cases it is clear that
an individual has been clothed with supervisory authority
because of expressed delegation , oral or in writing In some
cases, the facts reveal that an individual has been clothed
with supervisory authority as a result of actual practice
Often, individuals involved in responsible positions honest-
ly do not recognize the results of the practice
Considering all of the foregoing, I am persuaded and
conclude and find that Respondent has clothed Ogles with
authority to responsibly direct the work of the four or five
employees in the frozen food room within the meaning of
supervisory authority is defined in Section 2(11) of the Act
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am persuaded that the wage differential between Ogles
and the frozen food room employees, the power to change
schedules of employees, and the power to grant time off
reveal such authority I am also persuaded that the
evidence of such authority as to changing of schedules, to
grant time off, the wage differentials between Ogles and
the employees of the frozen food room, the Employer's
reference to employees that Ogles was their supervisor and
they would be working under him, and Ogles' reprimand-
ing of employees reveals Ogles' authority to responsibly
supervise the frozen food room employees in their work
Accordingly, I conclude and find that Ogles was a
supervisor within the meaning of the Act Accordingly, it is
recommended that the challenge to his ballot be sustained
Louis Blake
Louis Blake is employed in the Employer's cash and
carry store The cash and carry store is located some three
blocks from the main warehouse operation The store is a
wholesale operation, supplying small retail grocery stores
in the area In addition to Blake, there are four or five
employees who work in the store
Leonard Kaye is the manager of the cash and carry
store Until February 1971, Kaye's office was in the cash
and carry store Around February 1971, Kaye' s office was
transferred to the main warehouse In addition to Kaye's
responsibilities for the cash and carry store, Kaye works in
the personnel office, interviews and hires employees for the
entire warehouse , runs the credit union, and fills out
weekly reports Kaye's visits to the cash and carry store
vary If his schedule permits, he visits the store three to five
times a day There are days, however, when Kaye does not
visit the store On the occasions that Kaye visits the store,
the time involved vanes according to his schedule and
needs Thus, he has spent several days, several nights, 5
minutes, or up to 3 hours in the store The time involved
appears to be as needed and as could be worked into
Kaye's schedule
Kaye hires, discharges, and disciplines employees in the
cash and carry store Kaye testified that he sets up the
work schedules of the cash and carry store employees and
lays out their work The overall facts clearly reveal that
Blake does the actual work assignments and lays out the
work Thus, Kaye indicated that when he telephoned
instructions to Blake, he was not interested in who did the
work Further, Blake's testimony ultimately revealed that
Kaye did not give specific names when giving such
instructions There is a question in my mind as to the
weight to give Kaye's conclusionary type testimony as to
his "scheduling" of work In the absence of persuasive
contradictory testimony, I credit Kaye's testimony to the
effect that he scheduled the work, at least in general effect
I do not credit Kaye's testimony to the effect that he "laid
out" the work for the cash and carry store employees It is
clear that Blake, in general effect, did the direct assignment
and determination of work laid out for the employees
In carrying out his duties, Blake opened the store, had
keys for such purpose, stocked goods, earned groceries for
customers , worked the cash register, helped customers find
merchandise, ordered merchandise , cleaned up, filled out
reports, okayed customer checks, okayed employee loans
in small amounts out of the cash register , and kept
timecards for employees
Blake had a smaller section to stock than did the rank-
and-file employees Rank-and-file employees had many
similar responsibilities to Blake 's Rank-and-file employees
appear to have stocked goods , carried groceries , helped
customers find merchandise, carried groceries for custom-
ers, and cleaned up the store
Blake's salary was $ 140 per week as compared to hourly
pay rates for rank-and-file employees varying from $190
per hour to $2 50 per hour
Blake had the authority to grant employees time off I
credit Jenkins' testimony to such effect and discredit
Blake 's and Kaye 's testimony contradictory thereof It is
clear that Blake has exercised the authority of granting
time off by granting Jenkins time off, at least for a couple
of hours, to attend to necessary business
Considering all of the foregoing and the facts in total
context, including the wage differential between Blake and
rank-and-file employees , Blake's assignment of work to
employees , Blake's keeping of timecards , and Blake's
authority to grant time off to employees , I am persuaded
that the preponderance of the facts reveals that the
Employer has clothed Blake with supervisory authority
within the meaning of the Act I note that the work is
relatively simple and routine The overall facts, however,
reveal that the Employer has clothed Blake with superviso-
ry authority rather than relying on minimal top level
supervision Accordingly , I conclude and find that Blake is
a supervisor within the meaning of the Act It will be
recommended that the challenge to his ballot be sustained
C Interference, Restraint, and Coercion
1 Interrogation
The General Counsel alleges that the Respondent
engaged in various acts of unlawful interrogation of
employees about their and other employees ' union activi-
ties, sympathies , and desires Such conduct was alleged to
have been engaged in by Respondent 's agents Mulhearn,
Pair , Kaye , and Bush during various dates in September,
October , and November 1971 The Respondent 's answer
denied such unlawful conduct and the Respondent
contends that it has not violated the law as alleged
General Counsel 's witnessess testified to specific inci-
dents during the period of time of September through
November 1, 1971, that in such incidents Respondent's
agents (Mulhheam , Pair, Kaye, and Bush) spoke to them
about the Union, asked them in effect concerning their
sympathies or beliefs , about other employees' sympathies
and beliefs , spoke about closure of the warehouse , did not
speak of assurrances against reprisals, and did not indicate
any legitimate need for the information concerning their or
other employees ' union activities or beliefs
Respondent's witnesses Mulheam, Pair, Kaye, and Bush
testified and either denied engaging in interrogation of the
6 Marvin Griffin Dunnmgs Darnell Griffin Scott Long Price
Robinson and Hall
F STRAUSS & SON 817
employees about their or other employees' union activities
or testified to the effect that they asked employees whether
the employees had any question about the Union that the
employees wished to ask them (supervisors) Respondent
witnesses further testified that such remarks as were made
about warehouse closure, etc, were made in the nature of
opinion as to what might result if the Union caused such
closing down by strikes Kaye's testimony as a whole,
however, was contradictory in nature Thus Kaye also
testified as is revealed by the following credited excerpts
from his testimony concerning his conversations with
Marvin Griffin and other employees
A Basically like some of the other ones, I told him
the same thing, that I had a wife and three children I
said I needed my job I said, "Marvin, you are out here
working You basically need yours That's the main
reason you are working " I told him people like he and
I were involved in this thing that was coming up I told
him somebody like Mr Strauss didn't have to worry
about it He had enough money It was people on our
level who would have to worry about how things would
go in the future
Q OK Did you say to him that, "If the Union got
in, that Mr Strauss would close the [deleted] down"
A I told him if the Union came in that Mr Strauss
would walk out and leave it I don't remember the
exact term
Q Did you ask him who was for the Union
A I asked him how some of the other fellows felt
and if he thought they had any questions or anything
that we would answer them for them
Considering the total testimony of the witnesses as
regards the incidents concerning Kaye and alleged unlaw-
ful interrogation, I find the testimony of General Counsel's
witnesses Dunnmgs, Scott, Shaw, Griffin, Robinson, and
Hall as to such incident to be more reliable and credible
than I do Kaye's testimony to the extent inconsistent
therewith I credit the testimony of General Counsel's
witnesses as indicated
Based upon such credited testimony, I find that the facts
reveal that the Respondent, by Kaye, unlawfully ques-
tioned employees Dunnings (the week before October 15,
1971), Scott (on September 24), Shaw (2 weeks before
October 15, 1971), Griffin (the week before October 15,
1971), Robinson (on October 13, 1971), and Hall (on
October 12, 1971), about their and other employees' union
activities and desires, that such interrogation was not
revealed to be based upon legitimate interest or need of the
Respondent, that assurances of nonreprisals because of
such information requested was not made, that the
accompanying statements of warehouse closure and
related remarks were coercive, and that the said question-
ing of employees about their and other employees' union
sympathies and beliefs was coercive in nature Such
conduct is clearly violative of Section 8(a)(1) of the Act It
is so concluded and found
The evidence as to Respondent's unlawful interrogation
by Kaye concerning employees' union activities and
desires is overwhelming I see no need to resolve the
question of whether further similar violative conduct was
engaged in by Supervisors Pair, Mulhearn, and Bush Such
a finding of violative conduct of unlawful union interroga-
tion by such agents would only be cumulative in nature
and would not affect the remedy herein
2 Threat of warehouse closure
The General Counsel alleges in effect that the Respon-
dent engaged in various acts of unlawful threats to close
the warehouse operation if the employees selected a labor
organization to represent them 7 Respondent denies the
alleged violation Such conduct was alleged to have been
engaged in by Respondent's agents Mulhearn, Pair, and
Kaye
General Counsel's witnesses8 testified to specific inci-
dents during the period of time from September 15 to
October 14, 1971, and to speeches by Mulhearn in
September and early October 1971, that in such incidents
Respondent's agents (Mulhearn, Pair, and Kaye) spoke to
them about the Union and during the conversation told
them in effect that if the employees selected the Union as
their representative, the Respondent would close the
warehouse Respondent' s witnesses , Mulhearn, Pair, and
Kaye, testified in effect that on such occasions they
expressed an opinion that if the Union went out on strike,
this might cause the warehouse to be closed Kaye testified
concerning these incidents as has been set forth with
respect to the interrogation issue
Considering the total testimony of the witnesses as
regards the incidents concerning Kaye and the alleged
threats of warehouse closure, I find the testimony of
General Counsel's witnesses Dunnings, Scott, Shaw,
Marvin Griffin, Robinson, and Hall as to such incidents to
be more reliable and credible than I do Kaye's testimony
to the extent inconsistent therewith I credit the testimony
of General Counsel's witnesses as indicated 9
Based upon such credited testimony, I find that the facts
reveal that Respondent, by Kaye, threatened employees
that the Respondent would close its warehouse operation if
they selected the Union as their collective-bargaining
representative Such threats occurred in Kaye's conversa-
tions with Dunning during the week before the election on
October 15, 1971, with Scott on September 24, with Shaw
within a week or two before the election on October 15,
1971, with Marvin Griffin during the week before the
election on October 15, 1971, with Robinson on October
13, 1971, and with Hall on October 12, 1971 Such conduct
is clearly violative of Section 8(a)(1) of the Act and it is so
found
The evidence as to Respondent's unlawful threats of
warehouse closure by Kaye is overwhelming I see no need
to resolve the question of whether further similar violative
conduct was engaged in by Supervisors Mulhearn and Pair
except in respect to the objection issue relating to
Warehouse Superintendent Pair
7 The complaint used the term plant closure The Respondent
operation is that of a warehouse operation The facts are clear that the
matter was litigated as a threat to close the warehouse operation
8 Ellis Darnell Griffin Dunnmgs, Marvin Griffin, Scott, Shaw,
Robinson and Hall
9 I have considered Robinson s use of the word plant as to the threat
of closure Considering the total evidence I am persuaded that this is
merely an inarticulate language problem
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The witnesses to the issue as to whether Warehouse
Superintendent Pair threatened employees with warehouse
closure were Dunnings and Pair I found Pair's testimony
as to such issue more persuasive and objective than
Dunnings' The totality of the conversation does not reveal
a threat of warehouse closure but reveals an opinion that
job loss or warehouse closure might be caused by a strike
Such conduct is not violative of Section 8(aXl) of the Act
I see no need to resolve issues of further alleged similar
conduct A finding of further unlawful threats of ware-
house closure would only be cumulative in nature and
would not affect the remedy herein
3 Promises of benefits
(a) The General Counsel alleges and Respondent denies
that Respondent, by Mulheam, "on or about October 11,
1971, orally promised an employee the implementation of
changes, a better salary and better working conditions if
said employee ceased or refrained from union activity "
The witnesses to this issue were Ellis and Mulhearn I
found Ellis to appear to be a more forthright, objective,
and truthful witness than Mulhearn Much of Mulhearn's
testimony was presented on the basis that he did not
remember or recall the specifics However, Mulhearn
proceeded to give some specific denials I am not
persuaded, however, that he testified fully and frankly
about the events
I credit Ellis' testimony to the effect that he and
Mulhearn talked about the problems at the company on
October 11, 1971, that Ellis mentioned that employees had
a problem with shipping clerk Bramble, and that Mulhearn
told him in effect that there would be changes in the
warehouse especially among the supervisors I also credit
Ellis' testimony to the effect that Mulhearn told him that
the Respondent could guarantee the employees better
salaries and working conditions then the Union could I
discredit Mulhearn's testimony contradictory of the above
facts
The foregoing conduct of Mulhearn, on October 11,
1971, constitutes promises of benefits to dissuade an
employee from supporting a union Such conduct is
violative of Section 8(a)(1) of the Act It is so concluded
and found
(b) The General Counsel alleges and the Respondent
denies that Respondent, by Mulhearn, "on or about
October 14, 1971, orally offered an employee unspecified
favors if said employee voted against the Union "
The witnesses to this issue were Horne and Mulhearn
Horne's testimony was to the effect that Mulhearn told
him that he had been good to Home, that if the employees
voted the Union out that things would go right on being as
they had been all the time There was other testimony by
Home having possible bearing on issues not of a promise
of benefit type Mulhearn testified to the effect that he told
Home that whether the employees had a union or not the
employees would be treated fairly As indicated, aspects of
Mulhearn's testimony cast doubts upon its reliability
Horne, as a witness, appeared truthful I am persuaded,
however, that Home's testimony as to alleged promise of
benefits is not reliable to reveal all that was said Under
such circumstances, I am not persuaded that Horne's
testimony reveals that Respondent, by Mulheam, promised
Home unspecified favors if he voted against the Union It
will be recommended that the allegation of unfair labor
practices in such regards be dismissed
(c) The General Counsel alleges and the Respondent
denies that Respondent, by Kaye, "on or about October
12, 13 and 14, 1971, and on each of said dates, orally
promised an employee individually a wage increase if the
employee did not select a labor organization to represent
them" The witnesses to this issue were Marvin Griffin,
Gibson, Robinson, Hall, and Kaye
Griffin, Gibson, and Kaye testified to an incident on
October 14, 1971, wherein Kaye had a conversation with
Griffin about a 50 cents an hour raise The testimony of
Griffin, Gibson, and Kaye is substantially similar except
Griffin's allusion to Kaye's asking whether the Union
could give him a 50 cents an hour raise Gibson's testimony
does not allude to this and Gibson's testimony is
corroborative of Kaye's I discredit Griffin's testimony to
such effect The credited facts are revealed by the
following credited excerpts from Kaye's testimony
A Yes, sir We talked about in terms of what he
was making and it related back to one item that came
out in Mulheam's talk about before we were petitioned
there was a meeting in Memphis that Mr Mulhearn,
Mr Jones, Mr Inman and Mr Hyde were at and they
were trying to bring our warehouse salaries to the same
level as the salaries of the other warehouses
Q You told him about that9
A Yes, sir
Q Did you say anything else9
A Yes, sir
Q What9
A I told him-at that time I handled some of the
payroll reports-he was making $1 90 an hour and one
figure that came out of this talk was 50 cents an hour
would be an increase I told him that if we weren't
petitioned that he would be making $2 40 right now
and I also felt that strong about it that if we came
through this that if he didn't get a raise like that that I
would pay it out of my pocket I felt that when the
company came out with this policy, I felt that they
would win and that was my way of expressing I had
faith in what the company said
Considering all of the foregoing, I am persuaded and
conclude and find that Kaye, on October 14, 1971, told
Griffin in effect that he had not received a 50 cents an
hour raise increase because of the pendency of union
activity and the NLRB election petition, that Kaye felt
that the Respondent would win when it came out with
the policy of the raise, and that he was therefore
guaranteeing the raise out of his own pocket Thus,
Kaye told Griffin in effect that if the Respondent won
the election or union activity ceased, he would receive a
raise Accordingly, I am persuaded and conclude and
find that Respondent, by Kaye, on October 14, 1971,
promised Griffin benefits based upon Respondent's
winning the N L R B election and the cessation of
union activity Such conduct is violative of Section
8(a)(1) of the Act It is so concluded and found
Robinson and Kaye had a conversation a day or two
F STRAUSS & SON 819
before October 15, 1971, which was partially concerned
with raises What occurred as to conversation about
raises is revealed by the following credited excerpts
from Kaye's testimony
I told him that I knew from that meeting in Memphis
that everybody was going to receive a pay increase I
told him that at the time that our hands were tied as
long as there was any type of Union activity going on
It was against the law for us to alter anything that was
in effect
Considering the foregoing, I am persuaded and conclude
and find that Respondent, by Kaye, on October 13 or 14,
1971, promised a raise to Robinson upon the cessation of
union activity Such conduct is violative of Section 8(a)(1)
of the Act It is so concluded and found
Employees Hall and Kaye had a conversation about
raises on October 12, 1971 I find Hall's testimony as to the
incident more fully objective and factual and credit it over
Kaye's where in conflict What occurred is revealed by the
following credited excerpts from Hall's testimony
Well, he asked me, "How do you feel about the Union
coming m9"
I told him I didn't know He said he had been talking
to some of the guys to get them to go right and he also
said that he would guarantee a raise but he didn't know
exactly how much and he said if the Union came in,
they would close the warehouse down and he didn't
want to lose his job because he had a family to take
care of
Considering the foregoing, I conclude and find that
Respondent, by Kaye, on October 12, 1971, promised Hall
a raise if the Union did not come in Such conduct is
violative of Section 8(a)(1) of the Act It is so concluded
and found
(d) The General Counsel alleges and Respondent denies
that Respondent, by Kaye, "on or about October 13, 1971,
orally promised an employee that unspecified improve-
ments in working conditions would be made if the
employees did not select a labor organization to represent
them "
The witnesses to this issue were Robinson and Kaye
From my observation of the witnesses, I found Robinson
to appear to be a more believable witness on this issue than
I did Kaye I credit Robinson's testimony and discredit
Kaye's testimony to the extent that it is inconsistent with
Robinson's
What occurred on October 13, 1971, is revealed by the
following credited excerpts from Robinson's testimony
Well, he said, "If the Union didn't come in, there was
going to be some changes made," and he said, "As you
can see now, there are some changes being made We
have gotten rid of Jim Bramble and there will be some
more changes made " He said he would guarantee that
there would be some more changes, if you give them a
chance and he also said-
Considering the foregoing, I conclude and find that
Respondent, by Kaye, on or about October 13, 1971,
promised Robinson that Respondent would make desira-
ble changes if the employees did not select the Union as
their collective-bargaining representative Such conduct is
violative of Section 8(a)(1) of the Act It is so concluded
and found
4 Oral conditioning of granting of loan
The General Counsel alleges and Respondent denies that
Respondent, by Kaye, "on or about September 20 and
October 1, 1971, orally conditioned the granting of a loan
by Respondent's credit union to two employees upon the
employee's rejecting the Union "
The witnesses to this issue were Scott, Bouie, and
Kaye 10 It is sufficient to say that I found Scott and Bouie
to appear more truthful witnesses on this issue than I did
Kaye I credit their testimony and discredit Kaye's
testimony to the extent it is inconsistent therewith
Scott and Kaye had conversations about a loan from the
credit union on September 20 and 24, 1971 What occurred
is revealed by the following credited excerpts from Scott's
testimony
I called him on September 20 and asked him if I could
borrow some money, $200, and he told me he had to
check me out before he could let me have money,
whether I was for the company or for the Union and I
gave the name of a couple of guys, which way I was
going, David Woods, Dutchward Major and Jim
Bramble, so Friday, the 24th, he went out to the
warehouse to talk with me He had the check He told
me that a lot of guys were coming and saying they were
for the company and then he found out they were not
for the company and that if he could find out I was
lying to him in any kind of way, I wouldn't be able to
get no money from him He asked me who I knew was
for the Union, what guys I talked to in the warehouse
and, you know, I told him I didn't know I hadn't
talked to too many guys And he told me that it was
serious business if the Union came in and they would
close the place down and there wouldn't be any
shipments The reason he told me was that he didn't
want to lose his job because he had a wife and three
kids I told him I didn't want to lose my job He said
well, you know, he asked me who I knew was for the
Union, so I told him a couple of guys I talked to I
didn't want to say a thing about them He told me not
to worry He said they would do something with the
trucks before they do something with me I told him
Alfred Strawder He told me he already knew that He
knew that Charlie Hill was for the Union but Charlie
Hill could take care of himself He asked about John
Wooten and I told him that I didn't know Sometimes
John talked for the company, sometimes he talked for
the Union, so he told me he didn't believe I was lying to
him He gave me the check He told me to go out in the
warehouse and try to bung some of the guys over to
vote for the company
Considering the foregoing, I conclude and find that
Respondent, by Kaye, orally conditioned the granting of a
loan from the credit union to employee Scott on September
io Smith s testimony also concerned a loan but was not presented as part
of litigation of this issue In this case the General Counsel clearly revealed
with each witness what issues the witness was presented for
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 and 24, 1971 Such conduct is violative of Section
8(a)(l) of the Act It is so concluded and found
Employee Bouie and Supervisor Kaye had a conversa-
tion on September 23, 1971, about a loan from the credit
union What occurred is revealed by the following credited
excerpts from Bouie's testimony 11
A As far as I can remember the conversation, I
asked him if I could borrow $175 and he said that he
had to be sure I was for the company before he could
lend it to me He said there were a lot of fellows against
the company and did I know about it And he said if I
could prove I was for the company, I could have the
loan
Q What else did he say?
A He said that there was Charlie Hill and some
other guys out there and they knew that they were
against the company and if I could prove that I was for
the company I could get the money I told him that I
was for the company because I had won about 30 guys
over to the company and he said would you make a
speech, you know, but I interrupted him before he said
this and I told him not to let the guys out there know I
was for the company because my car was out in the lot
and the tires might get cut I got about 30 guys to vote
for the company He said, "Would you make a
statement in this meeting we are having on this affair9"
And I told him, "I would "
He told me there were some guys at the meeting that
I probably would win over for the company, so I made
a statement at the meeting
Q You made a statement on behalf of the
company at this meeting?
A Right
Q You hadn't obtained any loan before you went
to that meeting?
A After I told hum I would, he took a check out
and began writing it but I would need a co-signer
I note that the facts reveal that the loan was made to
Bouie and handled in an expedited manner, not done
ordinarily except in emergency Thus, as for loans granted
in the regular cause of business, such loans were approved
by a committee of three In emergency situations, loans
could be approved by a committee of two There was no
evidence that this loan was of the emergency type
However, this loan was approved by a committee of two
Considering all of the foregoing, I conclude and find that
Respondent, by Kaye, orally conditioned the granting of a
loan from the credit union, on September 23, 1971, upon
the employees' being for the Company and against the
Union Such conduct is violative of Section 8(a)(1) of the
Act It is so concluded and found
5 Coercion of employee to make speech
(a) The General Counsel alleges and the Respondent
denies that Respondent, by Kaye, "on or about October 1,
1971, orally coerced an employee into addressing other
employees on behalf of Respondent" The witnesses
presented to this issue were Bouie and Kaye 12 The facts as
to this issue have already been set forth (See section III, C4
above) with respect to issue concerning the oral condition-
ing of loan Such facts reveal that Respondent, by Kaye,
on September 23, 1971, coerced employee Borne to address
other employees by conditioning the granting of a loan
upon the employee's proving his loyalty to the Respondent
Such conduct is violative of Section 8(a)(1) of the Act It is
so concluded and found
(b) The General Counsel alleges and Respondent denies
that Respondent, by Mulheam, "on or about October 7,
1971, directed an employee to inform other employees of
said threatened plant closure "
The witnesses to this issue were Darnell Griffin and
Mulhearn I found Griffin to be a confused witness I
credit Mulheam's denial of the alleged improper conduct
referred to by Griffin in his testimony Accordingly, it will
be recommended that this allegation be dismissed
6 Creation of impression of surveillance
(a) The General Counsel alleges and the Respondent
denies that Respondent, by Mulhearn, on or about
October 14, 1971, in a discussion with an employee,
created the impression of surveillance by identifying three
employees as union adherents
The witnesses to this issue were Home and Mulhhearn
Mulhearn denied that he identified any employee as a
union adherent in his conversation with Home Further-
more, Home's testimony does not reveal that Mulhearn
identified any employees as union adherents Home's
testimony appeared to indicate that Mulhearn had talked
to some other employees who had indicated to Mulhearn
that they were for the company The facts do not support a
finding of violative conduct as alleged Accordingly, it will
be recommended that the complaint allegation in such
regard be dismissed
(b) The General Counsel alleges and the Respondent
denies that Respondent, by Pair, on or about October 4,
1971, created the impression of surveillance by naming
certain employees as union adherents to an employee
The witnesses to this issue were Marvin Griffin and Pair
Pair's testimony is substantially similar to that of Griffin
excepting Pair places his remarks about other employees
and dynamiting of a truck in a separate conversation from
the interrogation incident
I am persuaded that Griffin was a more truthful and
objective witness than Pair I credit Griffin's testimony
over Pair's where such testimony is in dispute What
occurred is revealed by the following credited excerpts of
Griffin's testimony
Q When was the first one9
A It was about three weeks before the election
Q You were taking some boxes downstairs?
A He asked me what side of the fence I was on
and I said, The wrong side, I guess "
He said, "That's what they think, you are on the
wrong side "
Q When was the second conversation
A The second I was unloading a truck
11 I found Bouie to appear a more truthful and objective witness than 12 Price testified to facts of a similar nature but was not presented as a
Kaye I credit Bouie s testimony over Kaye s where such testimony is in witness for this issue Price s testimony concerned Pair s conduct for which
conflict there was no complaint allegation
F STRAUSS & SON 821
Q How long after the first conversation
A How long? About a week or two-about a week
Q All right You are unloading a truck What did
you all say"
A He asked me again, "What side of the fence are
you on" I said, "The wrong side " He said, "There is
no way I can change your mind?" I said, "No"
He said he would like to get me, Harvey, Charlie,
Nils Ward, Jr, Roy and Charles Ashley, I believe it
was, and put some dynamite in a truck and blow us all
up
Considering all of the foregoing, I am not persuaded that
the facts reveal that Respondent, by Pair, a week or two
before October 15, 1971, created the impression of
surveillance by naming the individuals named Rather, the
gist of the conversation indicates that Pair had been unable
to change the minds of the employees named as to their
union desires Such conduct is not indicative of surveil-
lance or the creation of the impression of surveillance
Accordingly, it will be recommended that the allegation of
violative conduct in such regard be dismissed
(c) The General Counsel alleges and the Respondent
denies that Respondent, by Pair, on October 8, 1971,
created the impression of surveillance of its employees'
union activities by orally identifying a certain employee as
prounion and stating that said employees were calling on
other employees at their homes
The witnesses to this issue were Dunnmgs and Pair
Dunnmgs placed the event as occurring a week before the
election on October 15, 1971 Pair could not remember
when the event occurred What occurred is revealed by the
following credited excerpts of both Dunnmgs' and Pair's
testimony
Excerpts from Dunnmgs' testimony
A Well, Mr Pair came up to me at about 3 30 in
the afternoon He seemed a little bit excited He felt
like the company was losing the election to the Union I
said, "I don't know what makes you feel like that"
He said, "Well, the Union had a man going out at
night soliciting votes for the Union " And he wondered
if I could talk to some of the new men that were
wandering around, they seemed like they didn't know
which way they were going, try to get them to come
over to the company And he felt that we were losing
this thing He said he was a little too old to go out and
look for another job and there was a possibility the
place would be closed down if we lost the election
Q If the company lost the election
A If the company lost the election
Excerpts from Pair's testimony
A I told him if the Union was voted in, there
would be a possibility of a strike, and if there was a
strike, our trucks probably couldn't cross the picket
lines, and if our trucks couldn't cross the picket lines,
our customers couldn't receive groceries, therefore they
would have to go some place else to get groceries, and if
the customers get groceries some place, that would
mean possibly I wouldn't have a job and possibly he
wouldn't have a job either If we weren't shipping
groceries, we wouldn't have a job
A After I told him that there was a possibility of a
strike and we wouldn 't ship groceries and we might not
have a job, I told him that this employee was caught
making home visits and he was for the company
Q Who was it9
A Lionel Taylor
Considering the foregoing, I am persuaded that Respon-
dent, by Pair, on or about October 8, 1971, created the
impression of surveillance of employee union activities
The indication that Taylor was caught clearly supports and
persuades for such finding Such conduct is violative of
Section 8(a)(1) of the Act It is so concluded and found
(d) The General Counsel alleges and the Respondent
denies that Respondent, by Kaye, on or about October 8,
1971, orally created the impression of surveillance of its
employees' union activities advising an employee he had
heard he was going for the Union
The witnesses to this issue were Smith and Kaye I am
persuaded that Kaye's version of what occurred is more
reliable than Smith's I credit Kaye's version of facts and
discredit Smith's testimony inconsistent therewith The
facts are revealed by the following credited excerpts from
Kaye's testimony
He came downstairs asking for a loan and I told him
that I had heard from our salesmen in his area that he
was talking about the Union when he was delivering
and I told him that I didn't want to hear anything like
that in the store that he worked
Considering the foregoing, I conclude and find that the
General Counsel has not established that Respondent
violated Section 8(a)(1) of the Act as alleged
7 Threats
(a) The General Counsel alleges and Respondent denies
that Respondent, by Mulhearn, "on or about October 7,
1971, orally threatened to reduce an employee's work
opportunities if said employee did not campaign against
the Union "
The witnesses to this issue were Darnell Griffin and Pair
As a witness to this issue, Griffin appeared to have
confused a number of events into one I found Mulhearn's
testimony as to this issue appears more objective and
factual I discredit Griffin's testimony to the effect that
Mulhearn threatened to stop letting him catch trucks 13
unless he worked against the Union I credit Mulhearn's
denial that he made such threat as indicated
Considering the foregoing, I conclude and find that the
General Counsel has not established that Mulhearn
threatened Griffin with loss of opportunity in loading
trucks unless he worked against the Union The allegation
13 A moonlighting type job of working on trucks for truckdnvers (not
employed by Respondent) making deliveries at Respondents warehouse
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of violative conduct in such regard will be recommended to
be dismissed
(b) The General Counsel alleges and the Respondent
demes that Respondent, by Mulhearn, "on or about
October 11, 1971, orally informed an employee that if the
Union came in its employees would be out of a job "
The witnesses to this issue were Ellis and Mulhearn Ellis
testified to having a conversation with Mulhearn on
October 11, 1971 Ellis' testimony covered a number of
subjects including the closure of the warehouse if the
Union came in I note that the General Counsel has alleged
a number of specific incidents concerning threats to close
the warehouse if the Union won Findings of violative
conduct in such regard have already been made I find
nothing else in Ellis ' testimony to reveal a different and
specific threat that employees would be out of jobs if the
Union came in In fact, Ellis' testimony reveals that
Mulhearn assured hum that no one would be fired because
of the Union Accordingly, I find and conclude that the
General Counsel has not established that Respondent, by
Mulheam, made a threat (not of warehouse closure) that
employees would be out of a job if the Union came in
(c) The General Counsel alleges and the Respondent
denies that Respondent, by Pair, on or about October 8,
1971, threatened an employee with job loss if a labor
organization were selected as the representative of its
employees
The witnesses to this issue were Dunnings and Pair The
facts relating to this issue have been set forth in section III
C 6(c) It is sufficient to say that the totality of the
conversation does not reveal a threat that Respondent
would cause the job loss but indicates the opinion that job
loss might be caused by a strike Considering the totality of
the conversation, I am not persuaded that the General
Counsel has established that Respondent made a threat of
job loss, as alleged, in violation of the Act It is so
concluded and found
(d) The General Counsel alleges and Respondent denies
that Respondent, by Mulhearn, "on or about October 14,
1971, orally threatened an employee with loss of has job if
he voted for the Union "
The witnesses to this issue were Smith and Mulhearn
Smith's testimony was conclusionary in effect I am not
persuaded that it has value in determining the fact to this
issue I credit Mulhearn's testimony to the effect that he
did not threaten Smith with loss of job if the Union came
in, that he answered Smith's question and concern about
warehouse closure and indicated that the warehouse would
not be closed unless there were a strike, and if so that he
and Smith would be out of a job
Considering the foregoing, I find and conclude that the
General Counsel has not established such to be violative
conduct as to this issue
(e) The General Counsel alleges and the Respondent
denies that Respondent, by Kaye, "on or about October
15, 1971, orally threatened an employee with unspecified
reprisals for refusing to disclose how he would vote in the
election "
The witnesses to this issue were Dummugs and Kaye It is
sufficient to say the Dummngs' testimony concerned
whether Kaye engaged in interrogation about Union
activities and desires and as to threats of warehouse
closure Findings have already been made in such regard I
find nothing in Dunnings' testimony to reveal threats of
unspecified reprisal of a type other than warehouse closure
Accordingly, it is recommended that this allegation of
violative conduct be dismissed
(f) The General Counsel alleges and Respondent denies
that Respondent, by Pair, on or about October 4, 1971,
threatened physical harm to said employee and other
union adherents
The witnesses to this issue were Marvin Griffin and Pair
Considering the testimony of the two witnesses, I do not
believe and do not credit Pair's testimony that the remarks
of a "threat" type occurred at a different time than the
questioning of Griffin as to which side he was on The facts
of this issue have already been set forth in section III C
6(b) It is sufficient to say that Pair questioned Griffin as to
which side he was on, receiving an answer by Griffin that
he was on the wrong side, asked Griffin if there was a way
he could change his mind, received a further negative
answer from Griffin, and then told Griffin that he would
like to get him, Harvey, Charlie Nils Ward, Jr, Ray and
Charles Ashley and put some dynamite in a truck and blow
them all up
Considering the foregoing, I would note that Pair's
expression about dynamite and blowing employees up
reveals strong opposition to the employees' failure to be for
the company and against the Union It has value in
determining whether the "interrogation" of union activity
is violative or not I am not persuaded, however, that Pair
intended the remarks about dynamite seriously and I am
not persuaded that Griffin or others would believe such
remarks about dynamite to be an intended threat Under
such circumstances, I conclude and find that the General
Counsel has not established the alleged violative conduct
of a threat of physical harm to employees because of their
union activities or beliefs It will be recommended that the
allegation involved in this issue be dismissed
D The Objections to the Election Case
15-RC-4703
(1) Petitioner's Objection 1 sets forth "on or about
October 1, 1971, and continuing thereafter, the employer
gave employees money if they would vote against the
Union This employer conduct interfered with the employ-
ees' freedom of choice and thereby constitutes objectiona-
ble conduct "
The Regional Director, after investigation of the objec-
tions herein, issued a complaint in Case 15-CA-4274,
issued a Report on Objections, and recommended consoli-
dation of the two cases for hearing on the grounds that the
objections conduct was encompassed in the issues in the
complaint The complaint issue related to Objection 1 as
the issue concerning the oral conditioning of the granting
of loans by Kaye for the Respondent's credit union to
employees upon the employees' rejecting the Union Such
conduct is discussed in III C 4 Such conduct has been
found to be violative of Section 8(a)(1) of the Act
Accordingly, it is found that the Employer, on September
20-24, 1971, by orally conditioning loans from its credit
union to employees based upon their rejecting the Union
F STRAUSS & SON 823
and supporting the Company, interfered with the employ-
ees' freedom of choice as to their representation election
desires and such constitutes objectionable conduct It is
recommended that Objection 1 be sustained 14
(2) The Petitioner's Objection 2 is as follows "on or
about August 30, 1971, and continuing to the date of the
election, the employer promised the employees a 50 cent
per hour wage increase and improvements in other benefits
and working conditions if the Union were defeated This
employer conduct interfered with the employees' freedom
of choice and thereby constitutes objectionable conduct "
The evidence as to this issue has been set forth in section
III C 3(a), (b), and (c) above Findings of conduct violative
of Section 8(a)(1) as such conduct have been made
Accordingly, it is found that Objection 2 is supported by
the evidence and is found to be meritorious, and such
conduct is found to have interfered with the employees'
freedom of choice in the representation election held on
October 15, 1971 It will be recommended that Objection 2
be sustained
(3) The Petitioner's Objection 3 set forth that "on or
about October 1, 1971, and continuing thereafter, the
employer, through its warehouse manager, told employees
that the warehouse would close if the Union were
successful in an election This employer conduct interfered
with the employees' freedom of choice and thereby
constitutes objectionable conduct "
As previously indicated, the Regional Director encom-
passed this issue in the complaint issues The complaint
issues included conduct by Supervisor Kaye with respect to
threats of warehouse closure if the employees selected a
union Such conduct has been found to be violative of
Section 8(a)(1) of the Act Accordingly, it is found that
Respondent, during the pertinent time period following the
filing of the Representation petition and prior to the
election held on October 19, 1971, engaged in conduct
which interfered with the employees' freedom of choice in
such election It will be recommended that Objection 3 be
sustained
(4) Petitioner's Objection 5 sets forth that "Beginning on
September 1, 1971, and continuing until the date of the
election, the employer threatened those employees who
supported the Union with discharge because of their union
participation This employer conduct interfered with the
employees' freedom of choice and thereby constitutes
objectionable conduct "
I find no evidence to support this issue other than the
evidence relating to threats of warehouse closure A threat
of plant closure is tantamount to a threat of discharge The
facts concerning Kaye's threats of warehouse closure if the
employees selected the Union as their collective-bargaining
representative have previously been found Such conduct
has been found to be violative of Section 8(a)(1) of the Act
Accordingly, it is found that the Employer by such threats
of warehouse closure, during the period of time following
the filing of the petition and the election held on October
15, 1971, engaged in conduct which interfered with
14 The conduct found to be objectionable is sufficiently related to the
conduct objected to Further within the purview of Carter Lee Lumber Co
119 NLRB 1374 the Regional Director properly refined the issue of
objectionable conduct as the complaint issues
15 In the event no exceptions are filed as provided by Sec 102 46 of the
employees' freedom of choice in such election It will be
recommended that Objection 5 be sustained
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III
A, above , occurring in connection with the 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 of commerce
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act
Upon the basis of the above findings of fact and upon
the entire record in the case , I make the following
CONCLUSIONS OF LAW
1 F Strauss & Son, Inc , the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 Retail Clerks Local No 210 chartered by Retail
Clerks International Association, AFL-CIO, the Union, is
a labor organization within the meaning of Section 2(5) of
the Act
3 By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) of the Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 15
ORDER
Respondent, F Strauss & Son, Inc, its officers, agents,
successors , and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning their
and other employees' union membership, activities, and
sympathies
(b) Promising employees implementation of changes,
better salaries, wage increases , better working conditions,
loans, or other benefits if said employees cease and refrain
from union activity and do not support a union
(c) Threatening employees with warehouse closure or
other reprisals if they engage in union activity or support of
the Union
(d) Creating an impression of surveillance by telling
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees the names of other employees and identifying
such named employees as union adherents
(e) Coercively directing employees to make talks to
employees on behalf of Respondent
(f) In any other manner interfering with, restranung, or
coercing Respondent's employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Post at Respondent's facility at Monroe, Louisiana,
copies of the attached notice marked "Appendix " 16
Copies of said notice on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(b) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of the receipt of this
Decision what steps the Respondent has taken to comply
herewith i7
16 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
17 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 15 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith
It is ordered that those allegations of the complaint of
alleged violative conduct not specifically found to be
violative herein be dismissed
With respect to Case 15-RC-4703, it is ordered that the
challenges to the ballots of Victor Ogles and Louis Blake
be sustained and that the challenge to the ballot of Charles
A Osborn be overruled It is further ordered that an
appropriate Certification of Representation be issued 18
The appropriate bargaining unit for which the Certifica-
tion of Representation should be issued is
All fulltime and regular parttime employees at Employ-
er's Monroe, Louisiana, operations, including ware-
house employees, cash and carry employees, including
cashier, stockers, loaders, unloaders, order pullers,
truck spotters, forklift operators, packroom employees,
garage employees, including mechanics and utility
service employees, warehouse equipment maintenance
and sanitation employees, truckdrivers and produce
truck helpers, and warehouse clerical employees, but
excluding all other employees, including office clerical
employees, professional employees, salesmen, data
processing employees, advertising and printing depart-
ment employees, cash receivable clerk, watchmen
and/or guards, inbound and outbound checkers and all
other supervisors as defined in the Act
18 The revised Tally of Ballots resulting from the counting of additional
ballots after the Board s Decision and Order in Case 15-RC-4703 issued on
February 25 1972 (reported 195 NLRB No 112) reveals 76 ballots for
Petitioner and 74 ballots against petitioner The ballot of Osborn, therefore,
would not affect the results of the election Further since the results of the
election will not be affected by such ballot and since the tally therefore
reveals the Union to have received a majority of the valid ballots cast, it will
serve no useful purpose to order the election set aside as a result of the
objectionable conduct found herein