G. C. Murphy Co.

National Labor Relations Board - Board Decisions

May 14, 1968

171 N.L.R.B. 370 (N.L.R.B. 1968)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. C. Murphy Company and Food Store Employees
Union, Local No. 347, Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO. Case 9-CA-4237
May 14, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On January, 17, 1968, Trial Examiner James. V.
Constantine issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not
engaged in other unfair labor practices alleged in
the complaint. Thereafter, the Respondent filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief, and the Charging Party filed cross-
exceptions to the Trial Examiner's Decision and a
supporting brief, and an answering brief to the
Respondent's exceptions.
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, the exceptions, cross-ex-
ceptions, and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to
the extent consistent herewith.
1. The Trial Examiner found, and we agree, that
Supervisor Wallace created the impression among
employees that the Respondent was engaging in
surveillance of their union activities, and that Su-
pervisor Nehls coercively interrogated them about
their union activities, in violation of Section
8(a)(1) of the Act.
I The Respondent's request for oral argument is hereby denied as the
record, the exceptions, cross-exceptions, and briefs adequately present the
issues and the positions of the parties.
The Charging Party excepts on the basis that it was not afforded an op-
portunity at the hearing to adduce certain evidence regarding the super-
visory status of floorgirls. We find no merit in this exception, as examina-
tion of the record reveals that ample opportunity to adduce all relevant
He also found, and we agree, that on March 31,
1967, and again about April 7 and 14, Supervisor
Roberts coercively interrogated employee David-
son, and about April 7 threatened Davidson with
discharge and loss of hours if the Union were
selected, in violation of Section 8(a)(1) of the Act.
In the same conversation, Roberts also told David-
son that the Respondent could bring in three boys
and "work them 10 hours a piece ... to keep peo-
ple from thinking they were getting away with
something." Contrary to the Trial Examiner, we
find that this latter statement, occurring in the con-
text of the other coercive remarks found above,
was also a threat which constituted an additional
violation of Section 8(a)(1) of the Act.
2. The Trial Examiner found that the Respon-
dent's rule prohibiting solicitation of employees on
"store premises during working hours by any per-
sons ... for any reason except for major charities,"
violated Section 8(a)(1) of the Act. We agree that
this rule is unlawful, but for the following reasons.
As this rule may be read to prohibit union solicita-
tion by an employee in nonselling areas of the store
even during an employee's nonworking time, it is
"at best ambiguous and the risk of ambiguity must
be held against the promulgator of the rule rather
than against the employees who are supposed to
abide by it."2 We therefore find that by maintaining
this no-solicitation rule the Respondent violated
Section 8(a)(1) of the Act.3
The Trial Examiner also found that a sign which
required solicitors to obtain an authorization card
from the Parkersburg, West Virginia, Chamber of
Commerce, would, if posted, be in violation of Sec-
tion 8(a)(1) of the Act. We disagree. Signs of this
nature, posted in retail establishments, are
customarily directed to the public only and not to
employees. So here, there is no evidence that this
rule, unlike the rule found invalid above, was in-
tended to govern solicitation by employees. Nor
was it enforced against them. There is, furthermore,
no contention, and no evidence, that alternative
channels of communication with Respondent's em-
ployees, available to union organizers, were in-
adequate, and that the Respondent was for this
reason required to permit the use of its facilities to
nonemployees for organizational purposes.'
Moreover, a violation based on this rule was not al-
leged in the complaint.
evidence was afforded the parties , and that the Charging Party has not been
prejudiced.
2 N.L.R. B. v. Miller , 341 F.2d 870, 874 (C. A. 2), enfg . 148 NLRB 1579.
See Marlene Industries Corporation , 166 NLRB 703; Davis Wholesale
Co., Inc., 165 NLRB 271.
' See N . L.R.B. v . The Babcock and Wilcox Co., 351 U. S. 105; S. & H.
Grossinger's Inc., 156 NLRB 233.
171 NLRB No. 45
G. C. MURPHY COMPANY
3. The Trial Examiner found that assistant store
managers kept Union Organizer Gunnoe under ob-
servation at all times when he was in the store, and
that this constituted surveillance in violation of Sec-
tion 8(a)(1) of the Act. We disagree. Gunnoe
visited the Respondent's store about two or three
times a week contacting employees on the selling
floor. As the Respondent could have lawfully
prohibited Gunnoe 's conduct in this respect al-
together, we find that the less restrictive measure,
of keeping him under observation, adopted to
prevent any intrusion upon its efforts to carry on its
business , was also lawful .' For the same reason, we
agree with the Trial Examiner that the Respon-
dent 's attempts to expel Gunnoe from the store,
after he distributed union literature on the selling
floor , did not violate Section 8(a)(1) of the Act.
We shall , accordingly , dismiss these portions of the
complaint.
4. The Trial Examiner found that the Respon-
dent 's six floorgirls were supervisors and that
threats and interrogations made by Floorgirls
Wigal , Gorby , and Morris were violative of Section
8(a)(1) of the Act. We do not agree . Floorgirls
work under the direction of four assistant
managers , who are admitted supervisors . Although
floorgirls receive more pay than do other em-
ployees , they spend 50 to 60 percent of their time
selling . In addition , they relay assistant managers'
instructions to the approximately five to eight em-
ployees who work in their area ; remind such em-
ployees to keep counters filled and signs straight;
routinely shift them from counter to counter ; assist
employees who need help ; and service charge calls,
exchanges , and refunds . They may grant permission
to employees to leave the floor temporarily, but
employees must request time off from an assistant
manager . Floorgirls prepare work schedules with
the assistant managers , but it appears that their
authority in this regard extends only to changing a
lunch schedule if more counter help is needed. In
view of the foregoing , we find that floorgirls are not
supervisors , and that any remarks they made to
other employees are not attributable to the Respon-
dent . Accordingly , we shall dismiss the allegations
of the complaint based thereon.
5. The Trial Examiner found that the Respon-
dent violated Section 8 (a)(5) of the Act . We find
merit in the Respondent 's exception to this finding.
On April 3 the Union telephoned the Respondent
asserting that it represented a majority of the selling
and production employees , excluding office cleri-
"See Heck 's t,. , 170 NLRB 178; Randall's, 157 NLRB 86, 88-92
"See Heck 's Inc., 170 NLRB 178, Heck 's, Inc, 159 NLRB 1151,
1152.
371
cals, and requesting recognition. The Respondent
refused, claiming that it doubted that the Union
"represented all the employees of our Parkersburg
store." On April 4 and 6, the Union by letter again
requested recognition and in both instances the
Respondent replied that it doubted that the Union
represented a majority of employees.
The Respondent contends that Roberts and For-
dyce, three merchandise girls, five employees
designated as office clericals, one employee who
was on leave of absence on April 3, and three part-
time employees should be included in the unit, and
that one employee who worked intermittently
should be excluded.
We agree with the Trial Examiner that Roberts
and Fordyce are supervisors and should be excluded
from the unit. We disagree, however, with the fol-
lowing unit determinations of the Trial Examiner:
(a) The three merchandise girls are on the selling
floor about 50 to 60 percent of the time selling and
checking inventory. They spend about one-third of
their time in the office, and also spend time in the
stockroom. Five employees designated as office
clericals spend the majority of their time in the of-
fice. However, they also sell, and were hired, and
worked , as sales girls before assuming their present
jobs. We find, in view of the relatively small em-
ployee complement having similar working condi-
tions and related, overlapping work functions, that
office clericals and merchandise girls share a com-
munity of interest with other unit employees, Ac-
cordingly, we find that they should be included in
the unit.6
(b) Since October 1966 and continuing through
the time of the Union's bargaining demand and the
hearing, Rheba Dahmer was on leave of absence
because of illness . During this time she received
company benefits; and no party contends that she
should be excluded. On the basis of the foregoing,
we find that Dahmer was a member of the unit on
April 3.'
(c) At the time of the demand, Louden, Wyatt,
and Archer were part-time employees, working
about 10, 16, and 20 hours per week, respectively.
During this time Queen apparently was also work-
ing for the Respondent. However, he worked only
intermittently when regular employees were absent
or ill. On the basis of the foregoing, we find that
Louden, Wyatt, and Archer are regular part-time
employees; and Queen is an irregular or casual em-
ployee." Accordingly, the unit shall include Lou-
den, Wyatt, and Archer, and exclude Queen.
' Photobell Company , Inc, 158 NLRB 738, 745, E H Sargent and Com-
pany, 99 NLRB 1318, 1320
" See Sandy 's Stores , Inc, 163 NLRB 728, Haag Drug Company, Inc,
146 NLRB 798
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) We have found that the six floorgirls are not
supervisors . As they work with, perform duties re-
lated to or the same as , share the same supervision
with, and have similar hours and working condi-
tions as other employees who are included in the
unit, we shall include them.
In conclusion , we find that the following em-
ployees constitute an appropriate unit within the
meaning of Section 9(b) of the Act: All selling and
production employees at the Respondent's Parkers-
burg, West Virginia, store, including stockroom
and restaurant employees , employees designated as
office clericals , merchandise girls , and floorgirls;
but excluding guards, the store manager, head
stockman, assistant restaurant manager , and other
supervisors as defined in the Act.
The General Counsel introduced into evidence a
list of 103 employees," prepared by the Respon-
dent. From this number, the names of only three-
Roberts and Fordyce, whom we have found to be
supervisors, and Hayden, whose exclusion by the
Trial Examiner was not excepted to-can be ex-
cluded, which leaves 100 employees in the ap-
propriate unit. On April 3, the Union had 49 cards.
Excluding the cards of Virla Poling, Mary Davis,
and Queen, who were not in the unit, we find that
the Union had, on this date, cards from only 46 of
the 100 employees in the unit . We therefore find
that on April 3, and at all times material thereafter,
the Union lacked authorization from a majority of
employees in the unit. Accordingly, as the Union
was not the representative of a majority of the em-
ployees in the appropriate unit, we find that the
Respondent's refusal to recognize and bargain was
not unlawful, and we shall dismiss the allegation
that the Respondent violated Section 8(a)(5) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, G. C. Murphy Company, Parkersburg, West
Virginia, its officers, agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concern-
ing their or other employees' union membership,
activities, and desires.
(b) Creating the impression among its em-
ployees that it is engaged in surveillance of their
union activities.
(c) Threatening to take away certain benefits if
employees join Food Store Employees Union,
Local No. 347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or
select it as their collective -bargaining representa-
tive.
(d) Maintaining a no-solicitation rule which
prohibits employees from soliciting for the Union
during their nonworking hours in nonselling areas
of the store.
(e) In any like or similar manner interfering
with, restraining , or coercing employees in the ex-
ercise of rights guaranteed to them by Section 7 of
the Act, except to the extent that such right may be
affected by an agreement requiring membership in
a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Post at its store in Parkersburg, West Vir-
ginia, copies of the attached notice marked "Ap-
pendix. "10 Copies of said notice, on forms provided
by the Regional Director for Region 9, after being
duly signed by the Respondent 's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not specifically found herein.
"The list does not include the names of Wallace , a management trainee
whom the Trial Examiner found to be a supervisor and not excepted to,
Mary Davis, excluded by the Trial Examiner and not excepted to, Virla
Poling , whose employment had terminated by April 3, or Queen , whom we
have excluded as a casual employee
10 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
G. C. MURPHY COMPANY 373
WE WILL NOT coercively ask employees
questions about their and other employees'
union membership, activities, and desires.
WE WILL NOT create the impression among
employees that we are engaging in surveillance
of their union and other activities protected by
the Act.
WE WILL NOT threaten to take away benefits
if employees join the Union or select it as their
collective-bargaining representative.
WE WILL NOT maintain a no-solicitation rule
which prohibits employees from soliciting for
the Union during their nonworking hours in
nonselling areas of our store.
WE WILL NOT in any like or similar manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act, except to the ex-
tent that such right may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All our employees are free to become , remain, or
refrain from becoming or remaining , members of
Food Store Employees Union, Local No. 347,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, or any other labor
organization.
G. C. MURPHY COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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
684-3686.
menced by a complaint issued on June 21, 1967, by
the General Counsel of the National Labor Rela-
tions Board, through the Regional Director for Re-
gion 9 (Cincinnati, Ohio). That complaint, based
on a charge and two amended charges, filed respec-
tively on April 4, 6, and 25, 1967, by Food Store
Employees Union, Local No. 347, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO , names G. C. Murphy Com-
pany as the Respondent.
In substance the complaint alleges that Respon-
dent has violated Section 8(a)(1) and (5), and that
such conduct affects commerce within the meaning
of Section 2(6) and (7) of the Act. Respondent has
answered admitting some facts but putting in issue
the commissions of any unfair labor practices.
Pursuant to due notice this case came on to be
heard, and was tried, before me on September 19,
20, and 21, 1967, at Parkersburg, West Virginia.
All parties were represented at and participated in
the trial , and were afforded full opportunity to ad-
duce evidence, examine and cross-examine wit-
nesses, submit briefs, and present oral argument.
Briefs have been received from the parties.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, a Pennsylvania corporation, is en-
gaged in various parts of the country in selling
diverse types of merchandise at retail. Only its store
located in Parkersburg, West Virginia, is involved
in this proceeding. During the 12 months preceding
the issuance of the complaint herein Respondent
had a gross volume of retail sales exceeding
$500,000. During the same period it purchased
products valued in excess of $50,000 directly from
points outside the State of West Virginia. I find that
Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to as-
sert jurisdiction over Respondent in this proceed-
ing.
II. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union, Local No. 347,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, herein called Local
347 or the Union, is a labor organization within the
definition of Section 2(5) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner : This is
an unfair labor practice case brought under Section
10(b) of the National Labor Relations Act, herein
called the Act. 29 U.S.C. 160 (b). It was com-
III. THE UNFAIR LABOR PRACTICES
This case involves the issues of whether Respon-
dent
(1) Threatened to discharge employees should
Local 347 be selected as their collective-bargaining
representative;
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Solicited an employee to withdraw member-
ship in, and support of, Local 347;
(3) Engaged in surveillance of protected con-
certed activity by employees;
(4) Interfered with the rights of representatives
of Local 347 to visit Respondent's premises;
(5) Coercively interrogated employees concern-
ing, their union activities and those of other em-
ployees of Respondent;
(6) Maintained, enforced, and gave effect to an
illegal no -solicitation rule; and
(7) Refused to recognize and bargain with Local
347 as the exclusive bargaining representative of its
employees in an appropriate bargaining unit.
IV. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
About March 31, 1967,' Lee Roberts, whom I
find to be a supervisor under Section 2(11) of the
Act, asked employee James M. Davidson if David-
son had signed for the Union. The latter replied
that he had not. I find this question is coercive.
About a week later Roberts again asked David-
son the same question. When Davidson replied in
the negative , Roberts commented that " I reckon
you know if the Union gets in they can cut your
hours ." Mentioning that employees " were not al-
lowed to date," Davidson asked if Respondent
would "use that as an excuse to fire" him if he
"signed for the Union." Roberts replied, "I reckon
you know they have a reason, an excuse ." In the
same conversation Roberts mentioned that Respon-
dent could bring in three boys and work them "10
hours a piece ... to keep people from thinking they
were getting away with something"; and that if the
Union got in Respondent could cut Davidson's
hours. I find that the foregoing conversation, except
for the allusion to the three boys, is coercive; but I
find no violation in that part of the talk mentioning
the three boys.
About April 14 Roberts asked Davidson what
went on at a union meeting the previous evening.
Davidson commented that "There was just a bunch
of junk." I find that this questioning is coercive as
no legitimate purpose has been shown for such an
inquiry.
In late February or early March Ralph Wallace,
whom I find to be a supervisor under the Act
(because he has the "same status in the store as
that of an assistant manager," according to his af-
fidavit in evidence as Joint Exh. 1), told employee
James M. Davidson that he, Wallace, had received
a call from someone in McKeesport, Pennsylvania,
reciting a list of persons who had signed for the
Union, that Jay Wigal, who works in the Parkers-
burg store, also knew the names of those who
"signed for the Union" and that Wigal had "turned
them in." Then Wallace asserted that he could ob-
tain $10 for each person's name on the list which
he "turned in" and became rich thereby. I find this
conversation by Wallace is coercive. On another
occasion, Wallace refused to sign a union card at
the invitation of Davidson, giving as the reason
therefore that he, Wallace could not sign because
he was a management trainee. I find nothing coer-
cive in this latter conversation.
About February 24 Supervisor Ralph Wallace ac-
costed employee Carolyn Hurst as she was leaving
the store with employee Carol Ann Adams. Wal-
lace asked them if they knew that Jay Wigal, whom
I have found elsewhere herein to be a supervisor,
had turned in to Store Manager Meyer the names
of Adams, Hurst, and all others "for signing for the
Union." I find this is coercive as it gives the impres-
sion that Respondent is engaged in surveillance of
protected activities.
About February 12 Floorgirl Jay Wigal, whom I
have found to be a supervisor under Section 2(11)
of the Act, telephoned employee Barbara Ann
Miller and asked Miller if the latter had heard
about the Union. When Miller replied that the
unionman had been to her home about 2 nights
ago, Wigal asked if Miller had signed a union card.
Miller said that she had not. Then Wigal said she
hoped that Miller would not sign, but added it was
up to Miller to decide after thinking it over. Then
when Wigal ascertained that Miller had not in-
formed Assistant Manager Nehls that Union
Representative Gunnoe had come to Miller's home,
Wigal said, "You should." Wigal admits some of
the foregoing. To the extent that Wigal denies some
of the above, I do not credit her but, rather, I credit
Miller. I find that Wigal 's utterances to Miller are
coercive and , therefore, violate Section 8(a)(1) of
the Act.
On the following day, February 13, Assistant
Manager Nehls told Miller that he understood that
the unionman had been to Miller's home and asked
her what the unionman told her. Although Nehls
added that Miller did not have to answer if she so
preferred, Miller did tell Nehls the substance of the
conversation she had with Union Representative
Gunnoe. Later that same day Supervisor Wigal told
Miller, "I thought you told me you didn't sign for
the Union." When Miller asked how Wigal knew,
Wigal said that "the boss" had told her. The
foregoing is Miller's version of these incidents,
which I credit. Insofar as Respondent's evidence is
not consonant with such findings , I do not credit it.
And I further find that the remarks of Nehls and
Wigal are coercive within the contemplation of
Section 8 (a)(1) of the Act.
' All dates mentioned hereafter refer to 1967 except where differently
noted
G. C. MURPHY COMPANY _ 375
Wigal and Nehls each spoke to Miller about the
Union in February , but I find that neither Wigal nor
Nehls said anything therein exceeding the permissi-
ble limits of Section 8(c) of the Act . Hence, the
contents of those conversations need not be
reiterated here.
On other occasions Nehls asked Miller what was
new with the Union . These inquiries are not coer-
cive , and I so find . Once Nehls kiddingly told Miller
that he saw her boyfriend in the store when Union
Representative Gunnoe passed by Nehls in the
store . Since this was made in jest, I find it is non-
coercive and does not violate Section 8(a)(1) of
the Act. Sarkes Tarzian, Inc., 157 NLRB 1193,
1197-98.
About April 5 Hazel Gorby, a floorgirl whom I
have found to be a supervisor , asked employee Bar-
bara Ann Miller what Miller thought about the
Union. About April 14 Gorby asked Miller whether
Miller had attended the union meeting the previous
night . Respondent 's evidence inconsistent therewith
is not credited. Hence, I find that Gorby's conduct
violates Section 8 (a)(1) of the Act.
About the first week of March, Floorgirl Leona
Morris, whom I have found to be a supervisor
under Section 2(11) of the Act, said to employee
Augusta Jo Peters, "I hear you're for the Union."
Peters replied it was none of the business of Morris.
After further talk, Morris told Peters that "We'd
have to have an election " and that Peters "would
lose [her] benefits ." About this part of March,
Store Manager Meyer also spoke to Peters, but I
find nothing objectionable under the Act in this
latter conversation . It is therefore unnecessary to
recite it here . However , I find that the statements of
Morris are coercive and violate Section 8(a)(1) of
the Act . Respondent 's evidence contrary to this last
finding is not credited.
About March 25 Supervisor Leona Morris twice
discussed the Union with employee Augusta Jo
Peters . During the course of their first talk Morris
asked Peters whether Peters signed a union card. I
find this last question is coercive . Respondent's
contrary evidence is not credited.
About April 1 employee Peters overheard Super-
visor Nehis instruct Supervisor Leona Morris to re-
port to him any "strange men" passing out papers
in the store so that he "would see what they could
do about having them arrested ." I find that this
conversation does not violate Section 8 ( a)(1) of ,
the Act as it does not reasonably allude to union
activity.
About February 24 Supervisor Ralph Wallace
said to employee Adams, "Do you know that Jay
Wigal turned in your names to Mr . Meyer, she
turned all of your names in." I find this is coercive
and thus transgresses Section 8(a)(I) of the Act as
it implies illegal surveillance of protected activity.
About April 4 Supervisor Wigal asked employee
Carol Ann Adams if anyone had been to the home
of Adams . When Adams answered affirmatively,
Wigal asked what Adams thought of the Union and
also mentioned that the employees enjoyed good
benefits , a Christmas bonus, and vacation with pay.
A few minutes later Supervisor Jackson spoke to
Adams, but I find nothing offensive to the Act in
Jackson 's remarks . However , I find Wigal 's conduct
coercive within the meaning of Section 8(a)(1) of
the Act . Wigal admits some of the foregoing. To
the extent that she denies it, I do not credit her, but
I credit Adams.
In late February Supervisor Wigal told employee
Hurst that " If the Union goes through your Christ-
mas bonuses will be taken away from you and you
will only have 3 weeks paid vacations ." Respon-
dent 's contrary evidence is not credited . I find that
Wigal 's statement is coercive as it constitutes a
threat of reprisals if the Union is selected.
About April 4 Respondent held a meeting for
employees in the assembly room at 4:30 p.m. The
store closes at 5 p . m. Assistant Store Manager
Harry Nehis directed employee Davidson to attend.
At the meeting Store Manager George Meyer told
the employees that the Company sought and had
petitioned for an election ; that there would be an
election; that they should not worry "about the out-
siders ' harassment"; that they did not have to sign a
card or pay any money to work at G. C . Murphy's;
that those who had signed cards for the Union did
not have to vote for the Union ; and that some of
the girls had been threatened or forced to sign
cards for the Union . Although such expressions by
Meyer depict antiunion hostility , I find that they do
not amount ' to coercion and, therefore , that they
are not prohibited by Section 8(a)(1) of the Act.
Respondent in 1967 had in force certain rules at
its Parkersburg store . One set , denominated "Rules
for Women Employees," among other things pro-
vides that "SOLICITATION of employees shall not
be permitted on store premises during working
hours by any persons, employees or outsiders, for
any reason except for major charities . This will be
done under the direction of the Company."
General Counsel 's Exhibit 6(a). Another,
designated as "Rules for Managers and All Male
Employees ," inter alia forbids solicitation in the
identical language quoted in the previous sentence.
(G.C. Exh. 6(b).) I find these rules are invalid
because they discriminate against union solicitation
while allowing the same conduct by major charities.
This disparate treatment of unions violates Section
8(a)(1) of the Act , and I so find . Cf. Pace, Inc., 167
NLRB 1089 . I do not reach the question of whether
they are also invalid because they impliedly
prohibit soliciting during nonworking hours
because it is not clear from the text whether solicit-
ing during nonworking hours is prohibited.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Expulsion of Union Representative Woodrow
Gunnoe
1. General Counsel's evidence
a. The version of Jack L. Brooks
Jack L. Brooks is a business representative of
Local 347 and assisted in the campaign to organize
Respondent 's store at Parkersburg , West Virginia.
On April 7 he accompanied Gunnoe as the latter at
the store gave out literature announcing a union
meeting . Soon Supervisors Meyer , Jackson , Nehls,
and Hubert came to them . Meyer told the union-
men to stop distributing literature as Respondent
had a no-solicitation sign which was posted in the
store . Although Gunnoe asked to see the sign,
Meyer replied that he did not have to show
anything . However , neither Gunnoe nor Brooks saw
it posted . Then Hubert and Nehls each grabbed
Gunnoe by an arm and Jackson and Meyer pushed
Gunnoe from behind toward the steps . Soon the su-
pervisors let go of Gunnoe . Then Gunnoe and
Brooks went to the store 's restaurant for coffee.
It was not long before two policemen arrived at
the restaurant and talked to Gunnoe and Brooks.
The officers refused to make an arrest absent a
warrant and so informed Meyer.
b. Gunnoe's testimony
Woodrow R. Gunnoe is a business representative
of the Union, Local 347. In January 1967 he began
organizing the employees at Respondent's Parkers-
burg store. During the campaign he obtained
signatures to 31 cards. See General Counsel's Ex-
hibits 2-22 to 2-53, excluding General Counsel's
Exhibit 2-45, the card of employee Poling.
During February and March Gunnoe entered
Respondent's store two or three times a week.
Beginning February 14 Gunnoe was always fol-
lowed, when in the store, by one of Respondent's
assistant store managers , i.e., by Nehis, Jackson,
Hubert, and, on two occasions only, Watson. Occa-
sionally Store Manager Meyer also followed Gun-
noe. When Gunnoe was in the store about March
16 Hubert told him, "From now on, we're going to
be living right with you ... while you're in the store
. somebody else will pick you up when you get"
to another floor in the store. And Jackson did so.
Gunnoe protested this following of him to both Hu-
bert and Jackson, insisting he was making
purchases but to no avail.
On April 7 Gunnoe passed out literature at the
store. See Charging Party's Exhibit 2. He had also
passed out literature at the store on April 4. On this
latter date Gunnoe refused to stop although or-
dered to do so by Assistant Store Manager Harry J.
Nehls.
On April? Union Representative Gunnoe, ac-
companied by Union Representative Brooks, in the
basement selling floor of the store, gave out flyers
announcing a union meeting . Supervisors Meyer,
Hubert, Jackson, and Nehls followed Gunnoe as he
did this. Prior to this Gunnoe came into the store
about once a week. On each occasion the said su-
pervisors followed him as he walked around the
store.
2. Respondent's evidence
Store Manager Meyer instructed his assistant
managers to keep under surveillance Woodrow
Gunnoe whenever Gunnoe came into the store dur-
ing February , March , and April.
On April 7 Store Manager Meyer was called to
the sales floor . Upon arriving he observed Union
Representative Gunnoe passing out union literature
during store hours . Thereupon Meyer asked Gun-
noe to stop it because the store had a no-solicita-
tion rule proscribing this conduct. Since Gunnoe
ignored him, Meyer then told Gunnoe that the
latter would be arrested if he did not cease dis-
tributing literature . Then Gunnoe replied, "Go
ahead and have me arrested ." Thereupon, Meyer
directed Assistant Store Managers Nehls and Hu-
bert each to get on one side of Gunnoe while
Meyer went behind and pushed Gunnoe. At the
same time Nehls and Hubert took Gunnoe by the
arms . Meyer stopped pushing when Gunnoe started
to shout and yell . Meyer thus unsuccessfully at-
tempted to escort Gunnoe out of the store.
In the meantime Meyer had someone call the po-
lice. When the police came they told Gunnoe he
was not allowed to solicit in the store . One Jack
Brooks was with Gunnoe at the time . But no arrest
was made . However , Brooks asserted he would file
an assault charge . Soon thereafter Gunnoe and
Brooks left the store . Meyer "attempted to have
[Gunnoe ] arrested in front of the employees."
A no-solicitation rule was posted on the stairway
to which the public has access , according to
Respondent 's witnesses . See Respondent 's Exhibit
2.
3. Concluding Findings
Admittedly Store Manager Meyer instructed his
assistant store managers to keep Gunnoe under ob-
servation at all times when Gunnoe was present in
the store, and admittedly they carried out Meyer's
command to them. This amounts to surveillance
and I so find. Further, I find this surveillance is un-
lawful as Gunnoe did not engage in any conduct,
prior to April 4 and 7, reasonably warranting the
inference that his activities would be illegal, or un-
protected, or otherwise reprehensible. It is there-
fore unnecessary to resolve a conflict in the
evidence as to what was said to Gunnoe by the
store's assistant managers prior to April 7 when
they accosted him in the store.
G. C. MURPHY COMPANY
Secondly, I find that Respondent has an illegal
no-solicitation rule. See General Counsel 's Exhibits
6(a) and 6 ( b). Nevertheless this illegality did not
vest Gunnoe with any right to distribute union
literature in the store during working hours . Admit-
tedly he distributed on the selling floor during
working hours . His remedy was to file a charge with
the Board , and, if it were found meritorious, an ap-
propriate remedy would be adopted . Cf. Walker
Electric Company , 142 NLRB 1214, 1215. He could
not engage in self-help by distributing without per-
mission . Since Gunnoe was not endowed with any
right to distribute literature during working hours at
the store , absent an NLRB order conferring this
right on him, it was lawful for Respondent to ask
him to stop such activity and to use reasonable
force to expel him from the store . But cf. G & H.
Towing Company , 168 NLRB 589.
It is my opinion , and I find , that the General
Counsel 's version as to Respondent 's attempt to
escort Gunnoe out of the store is accurate . Respon-
dent 's evidence , while not widely divergent from
that of the General Counsel on this aspect of the
case , is not credited to the extent that it differs
from the General Counsel 's. Nevertheless, I find
that no more than reasonable force was used by
Respondent to remove Gunnoe from the store
when he persisted in distributing literature on the
selling floors in the store during working hours.
Hence I find no violation of Section 8(a)(1) of the
Act in Respondent's attempt to expel Gunnoe or in
its attempt to have Gunnoe arrested as a trespasser.
Cf. Clyde Taylor Co., 127 NLRB 103, 109; D. C. In-
ternational , Inc. v . N.L.R.B., 66 LRRM 2577, 2579
(C.A. 8).
In view of the foregoing findings, it is unnecessa-
ry to find whether Respondent posted a no-solicita-
tion sign which was received in evidence as
Respondent 's Exhibit 2. If material , I find that such
sign was posted ; but I further find that such sign
transgressed Section 8(a)(1) of the Act by impos-
ing an unlawful restriction , i.e., obtaining an
authorization card issued by the Greater Parkers-
burg Chamber of Commerce upon the Union's
right to campaign among Respondent 's employees
during nonworking hours . Cf. Hill v. Florida, 325
U.S. 538 ; Lovell v . City of Griffin, 303 U.S. 444;
Thornhill v. Alabama, 310 U.S. 88; Hague v . C.I.O.,
307 U .S. 496.
C. The Refusal To Recognize and Bargain With
Local 347
1. The appropriate unit
There is no history of collective bargaining for
any of the employees involved in this case. How-
ever, a unit appropriate for collective bargaining
with department stores may be a segment or sub-
division, rather than all, of the store employees. Ar-
nold Constable Corporation, 150 NLRB 788; Stern's
377
Paramus, 150 NLRB 799; Lord & Taylor, 150
NLRB 812. Courts have accepted this policy of the
Board. Saks & Company v. N.L.R.B., 385 F.2d 301.
Cf. Famous-Barr Company, 168 NLRB 393. On the
basis of those decisions I find appropriate for the
purposes of collective bargaining under Section
9(a) of the Act
All selling and production employees at
Respondent's Parkersburg, West Virginia,
store, stockroom employees, and restaurant
employees, excluding guards, the store
manager, restaurant manager, office clerical
employees, and supervisory employees as
defined in Section 2(11) of the Act.
Further I find that on April 3, when the Union
demanded recognition, there were 80 employees in
said unit, determined as follows. The maximum
number is 103 as disclosed in General Counsel's
Exhibit 9. There are to be deducted from said 103
the following employees:
Arch Lee Roberts, head stockman of Respon-
dent's store in Parkersburg, West Virginia, trains
new employees, assigns employees to jobs, gives
employees instructions, is responsible for the opera-
tion of the stockroom, and can recommend that
someone be hired or fired. I find he is a supervisor
under Section 2(11) of the Act. He will be ex-
cluded from the appropriate unit.
I find Joyce Wyatt and Barbara Louden are
casual employees who work about 10 hours (in
Louden's case ) and 16 hours (in Wyatt's case) a
week. Thus, I further find that they have no com-
munity of interest with the regular employees in the
unit. Hence , I find that they should be excluded
from the unit . B. J. Carney Company, 157 NLRB
1285, 1287. Also I find that Ann Archer worked in
the personnel office as a casual employee, and does
some work on the cashier and wrap stations of the
selling floor. Hence, I find that she should be ex-
cluded from the unit as a casual employee and as
an office clerical.
Rheba Dahmer, who works in the stockroom, has
been on sick leave since October 15, 1966, and has
been receiving company benefits during such
period. She has been suffering from a nervous dis-
order. I find that there is no reasonable prospect of
her returning to work and, therefore, she should be
excluded from the unit, especially since she has
been replaced.
Betty Brown was personnel directress until
December 1966, when she gave up these duties
because of ill health. She was then transferred to
her present position of payroll clerk. Mrs. Jay
Wigal replaced Betty Brown as personnel directress
about December 1966, and Mrs. Keller in the mid-
dle of January 1967. I find that Betty Brown should
be excluded as an office clerical.
In April the floorgirls were Hazel Gorby, Jay
Wigal, Grace Baker, Leona Morris, Emma Lou El-
lis, and Mary Hickenbottem. Among other things
they change merchandise on the counters and
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepare work schedules for employees in their area.
Their duties are described in General Counsel's Ex-
hibits 7 and 8. Each floorgirl covers an area con-
taining several counters serviced by five to eight
employees . They also respond to calls for assistance
or help made by employees . I find they are super-
visors under Section 2 ( 11) of the Act and will ex-
clude them from the unit.
Mildred Fordyce is assistant manager of the
restaurant . I find that she responsibly directs em-
ployees at all times and , in addition, is in charge of
the restaurant when the manager is absent. The
manager is off every Wednesday afternoon and
Friday evening , as well as when he takes a vacation.
Accordingly, I find that Fordyce is a supervisor
under Section 2 ( 11) of the Act. She will be ex-
cluded from the unit.
During March and April Leland ( Dick) Queen
worked as an extra. However , I find he belongs in
the unit because he has a community of interest
with the employees therein.
Ralph Wallace , a management trainee, has been
found to be a supervisor . Accordingly , he will be
excluded from the unit . Huberta Coal Co., Inc., 168
NLRB 122.
Respondent has four office clericals working in
the office area . They are supervised by George E.
Meyer , the store 's manager . Such clericals may be
called to sell on the selling floor if they are needed
there ; otherwise they perform only clerical duties,
which occupies about 90 percent of their time.
Mary Null is a bookkeeper ; Gladys Limely is a
cashier; Betty Brown is a payroll clerk who works
in the payroll department ; and Margie Roberts and
Lorna Marshall are office clericals . Four of them,
i.e., all but Betty Brown , work in the office area.
All five, however, are trained to do each other's
work ; and all five were promoted from the selling
department to their clerical jobs . I find all four
(Brown has already been excluded ) are office cleri-
cals and should be excluded from the unit.
Sharon Kalt, Anna Pepper , and Hilda Terrel are
employed as merchandise girls . Thrift Drug Com-
pany of Pennsylvania , 167 NLRB 426 . They work
both on the selling floor and in the office. About a
third of their time is devoted to the selling floor. I
find they are office clericals and should be ex-
cluded from the unit.
Mary Davis was not on the payroll on April 3, as
she had been hired in 1966 as an extra and had not
worked for Respondent since late January 1967,
when she was laid off for lack of work . I find that
she had no reasonable prospect of working for
Respondent on April 3. Therefore , she will be ex-
cluded from the unit.
Joan Hayden was on sick leave on April 3. She is
now assigned to work in the office, on the selling
floor, and in the stockroom . As of September 19
(the date of the hearing), she has returned and is
working in the stockroom . However , I find she was
not in the unit on April 3.
2. The Union's majority status
Edward G . Procious is Respondent 's director of
employee and public relations and, as such , has ju-
risdiction over labor relations matters of the Par-
kersburg , West Virginia , store . In the middle of
February he first learned that Local 347 was or-
ganizing the employees at the Parkersburg store
when the store's manager , George Meyer, so in-
formed him by telephone . In that call they
discussed the "organization attempt taking place. '
Among other things , Meyer asked Procious
whether Meyer should recognize Local 347 if it
presented a demand on Meyer for such purpose.
Replying, Procious instructed Meyer " to refer the
individual to" Procious.
On April 3 Union Representative Spencer
telephoned Meyer , claimed a majority , and asked
for recognition in an appropriate unit. Meyer told
him to get in touch with Procious, and at the same
time refused to recognize Local 347.
On April 3 Sherwood Spencer then telephoned
Procious asking for recognition and asserted that
his Union represented a majority of the selling and
production employees in the Parkersburg store, and
excluded office clericals , the manager , guards,
assistant managers , and supervisors from the unit.
However , Procious replied that he had a good-faith
doubt that Spencer "represented all of the em-
ployees of our Parkersburg store ." Thereupon,
Spencer offered to show Procious the union cards
which such employees had signed . Instead of ac-
cepting this opportunity , Procious filed an RM peti-
tion with the Board the next day because he felt
there should be an election . Procious testified that
he did not examine the proffered cards solely
because he doubted a majority and not because
Spencer was located in another city at the time of
the demand for recognition. Although in this same
conversation Spencer asked for a conference with
Procious, the latter refused and suggested that
Spencer file a petition for an election.
When Spencer made the above demand and Pro-
cious replied by doubting a majority , Procious not
only did not know how many employees had signed
union cards but made no attempt to ascertain the
number thereof; in fact, according to Procious, "in
doubting this majority in relation to a numerical
figure , [ I] had no basis to go on ," and that he, Pro-
cious, questioned that majority solely "on the basis
of what Mr. Spencer told me.'
Spencer also wrote to Procious on April 3
recapitualting the conversation recited above.
( G.C. Exh . 3.) This letter was received on April 4.
Procious replied to this by a letter dated April 5,
claiming a "sincere doubt of majority " and notify-
ing Spencer that an RM petition had been filed on
April 4. (That petition is numbered 9-RM-478. See
Ch.P. Exh . 1.) (G.C. Exh . 4a.) That RM petition
( Ch.P. Exh . 1) was later dismissed.
G. C. MURPHY COMPANY
-'.bout April 6 Spencer called Procious, reiterat-
ing that the Union wanted recognition and claiming
to represent a majority , but Procious again stated
that he wanted an election because he did not be-
lieve the Union had a majority . Again Spencer of-
fered to prove his majority , but Procious declined
to accept this, and stated that he did not have to
tell why he questioned that majority as long as he
was sincere in so doubting.
Employee Barbara Ann Miller signed a union
card (G.C. Exh. 2-2) on February 10. About
February 14 employee Augusta Jo Peters signed a
union card. (G.C. Exh. 2-3.) Employee Tresa Sue
Poling signed one about March 18 (G.C. Exh. 2-4),
and Deanna Deem about February 25 (G.C.
Exh. 2-5).
Employee Nancy E. Guinn signed a union card
about February 9. General Counsel's Exhibit 2-6.
Mary Myrtle Hutchinson signed about February 6
(G.C. Exh. 2-7), Ethel Ellars about February 15
(G.C. Exh. 2-8), Kathryn Coleman about March 15
(G.C. Exh. 2-9), Norma Fleak about February 21
(G.C. Exh. 2-10), Carol Ann Adams about Februa-
ry 20 (G.C. Exh. 2-11), Linda Trescott about May
13 (G.C. Exh. 2-12).
Employee Nancy G. Taylor signed a card about
March 10 (G.C. Exh. 2-13); Sharon Ann Low
about February 24 (G.C. Exh. 2-14); Carolyn
Hurst about February 20 (G.C. Exh. 2-15); Eva
Drain about February 27 (G.C. Exh. 2-16); Estella
Guinn about February 9 (G.C. Exh. 2-17); Barbara
Brookover about March 18 (G.C. Exh. 2-18); Le-
land Queen about March 24 (G.C. Exh. 2-19);
Christine Smith about May 13 (G.C. Exh. 2-20);
Judy Helmick about May 6 (G.C. Exh. 2-21).
In addition other employees signed union cards
in evidence as General Counsel 's Exhibits 2-22 to
2-53 except 2-28 (that of Mary Davis). Mary Davis
was not in the unit on April 3.
I find that the foregoing cards were properly ob-
tained and that nothing in the record impugns their
validity. Further, I find that on April 3, when the
Union demanded recognition from the Respondent,
Local 347 had cards from a majority, i.e., 52, of the
employees in the appropriate unit.
3. Respondent 's doubt of majority
An emplo er is under a statutory onus to recog-
nize and bargain with a labor organization
representing a majority ( based upon cards) of em-
ployees in an appropriate unit ( Section 8(a)(5) of
the Act ) unless he entertains a good -faith doubt of
majority ; and this is so even though the union may
in fact en oy majority status . N.L.R.B. v. Heck's,
Inc., 386 F.2d 317 (C.A. 4); Aaron Brothers Com-
pany of California, 158 NLRB 1077. And the bur-
den is on the General Counsel to establish affirma-
tively the union 's majority and the existence of bad
faith on the employer 's part . John P. Serpa, Inc.,
379
155 NLRB 99. However, a violation of Section
8(a)(5) will be established when the General Coun-
sel sustains the burden of showing (a) that the
union has been designated by an uncoerced majori-
ty of employees in the unit who signed cards, and
(b) that the employer did not question the majority
in good faith. Sandy's Stores, Inc., 163 NLRB 728.
Recently the Court of Appeals for the Fourth
Circuit has held in two cases that cards are unrelia-
ble evidence of a majority, that an employer may
question such cards, and that an election under
Section 9 of the Act is the preferred method of
ascertaining majority. N.L.R.B. v. S. S. Logan
Packing Co., 386 F.2d 562; N.L.R.B. v. Sehon
Stevenson & Co., Inc., 386 F.2d 551. Judged by the
criteria pronounced by the Fourth Circuit in those
two cases , I would find that Respondent's refusal to
recognize and bargain with Local 347 is justified,
even though that Union enjoyed majority status
based on a card count. But as a Trial Examiner I
am constrained to follow Board Decisions, not
reversed by the Supreme Court, when they clash
with those of Circuit Courts of Appeals. Iowa Beef
Packers, Inc., 144 NLRB 615, 616-617. Applicable
Board precedent holds that an employer who does
not question in good faith an actual majority based
upon cards violates Section 8(a)(5) of the Act.
Sandy's Stores, Inc., 163 NLRB 728.
Upon the record unfolded in this case I am of the
opinion, and find, that the General Counsel has
established want of good faith on Respondent's part
in questioning the Union's majority. The foregoing
conclusion is based upon the entire record and the
following subsidiary facts which I find:
(a) Respondent engaged in unfair labor prac-
tices directed toward thwarting or frustrating the
Union's organizational efforts. It is sufficient to cite
but two examples upon this segment of the case.
(1) Respondent's supervisors illegally interrogated
employees concerning the Union. (2) Further,
Respondent kept Union Representative Gunnoe
under constant surveillance whenever he entered
the store.
(b) Respondent instructed Store Manager
Meyer, long before a demand was made upon him
for recognition, that if a demand was submitted to
him he should reply by questioning the Union's
majority and referring the Union to higher com-
pany officials at its Pennsylvania headquarters.
(c) When the Union, pursuant to Meyer's direct-
ing it to get in touch with Procious in Pennsylvania,
did so, Procious questioned the Union's majority
without having made, or caused to be made, an
inquiry which would lead to a belief regarding the
Union's majority or absence thereof.
The foregoing acts in my opinion affirmatively
demonstrate that Respondent never intended to
recognize the Union regardless of any majority it
attained , and thus discloses a desire " to gain time
and to take action to dissipate the Union s majori-
ty." Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(C.A.D.C.), cert . denied 341 U . S. 914. Sprouse-
Reitz Co., Inc., 168 NLRB 378, is distinguishable.
It follows , and I find , that since the Union had a
valid majority which Respondent did not doubt in
good faith , Respondent violated Section 8(a)(5) of
the Act by failing and refusing to recognize and
bargain with it in an appropriate unit . If material, I
find that Respondent did not question the unit at
the time of the demand for recognition.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in sec-
tion III, above, found to amount to unfair labor
practices, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relation 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.
VI. THE REMEDY
Having found that Respondent has engaged in
certain conduct prohibited by Section 8(a)(1) and
(5) of the Act, I shall recommend that the National
Labor Relations Board order it to cease and desist
therefrom and that it take specific affirmative ac-
tion, as set forth below, designed to effectuate the
policies of the Act. However, I find that Respon-
dent has not displayed an utter disregard of the Act
which would require an extensive remedy or broad
Broad order in this case. Accordingly, I shall
recommend that the Order in this case be limited to
enjoining the conduct found to constitute unfair
labor practices and similar or like activities.
Upon the basis of the foregoing findings of fact,
and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. Local 347 is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer as defined in Sec-
tion 2( 2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By engaging in the conduct set forth in this
paragraph, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act: (a) coercively interrogating its employees
concerning their and their fellow employees' union
membership, activities, and desires, (b) engaging in
surveillance of employees' protected activities; (c)
creating the impression among its employees that it
was engaged in surveillance of their union activi-
ties; (d) threatening to impose less favorable work-
ing conditions and loss of certain benefits should
the employees select Local 347 as their collective-
bargaining representative; (e) promulgating a no-
solicitation rule which discriminates against Local
347; and (f) coercively asking an employee not to
sign up with Local 347.
4. Since on or about April 3 a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act consisted of all
selling and production employees at Respondent's
Parkersburg, West Virginia, store, including
stockroom and restaurant employees, but excluding
guards, the store manager , restaurant manager, of-
fice clerical employees, and supervisors as defined
in Section 2(11) of the Act.
5. Since on or about April 3 Local 347 has
represented a majority, and has been the exclusive
bargaining representative, of all the employees in
the aforesaid appropriate unit for purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act; and Respondent was on that date,
and has been since , legally obligated to recognize
and bargain with Local 347 as such.
6. By refusing to recognize and bargain collec-
tively with Local 347 in regard to the employees in
said appropriate unit on or about and since April 3,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of
the Act.
7. The above-described unfair labor practices af-
fect commerce within the meaning of Section 2(6)
and (7) of the Act.
8. Respondent has not committed any other un-
fair labor practices as alleged in the complaint.
[Recommended Order omitted from publica-
tion.]