General Mercantile & Hardware Co.

National Labor Relations Board - Board Decisions

Jun 10, 1971

191 N.L.R.B. 20 (N.L.R.B. 1971)

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Mercantile & Hardware Co. and Warehouse
and Distribution Workers Local Union No. 688, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. Case
14-CA-5729
June 10, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On February 11, 1971, Trial Examiner John M. Dyer
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations, Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Beard adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
General Mercantile & Hardware Co., St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
In its exceptions and brief , Respondent seeks the admission into evi-
dence of a series of exhibits which were not formally offered at the time of
the hearing. The General Counsel has filed a memorandum opposing the
receipt of these documents into evidence . The exhibits in question are
ordinary business records maintained and kept by Respondent , and there is
no explanation offered as to why such documents were not available at the
time of the hearing. Accordingly, absent a showing that these documents are
newly discovered or previously unavailable evidence , we hereby deny Re-
spondent's motion that these exhibits be admitted into evidence and made
a part of the record.
Respondent contends that the Trial Examiner exhibited bias and preju-
dice towards Respondent by the manner in which he treated the testimony
of Respondent 's witnesses. After a careful examination of the record, we
conclude that Respondent 's contention is unfounded . Furthermore, it is
established Board policy not to overrule a Trial Examiner 's credibility reso-
lutions unless , as is not the case here, the preponderance of all the relevant
evidence convinces us that they are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
take the action set forth in the Trial Examiner 's recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CAsE
JOHN M. DYER, Trial Examiner: The Warehouse and Dis-
tribution Workers Local Union No. 688, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called the Union or Teamsters),
filed the charge in this case on August 10, 19701 alleging that
General Mercantile & Hardware Co. (herein called Respond-
ent, the Company, or Mercantile) violated Section 8(a)(1) and
(3) of the Act by interrogation and threats and the discharges
of Michael C. Walker, Roy W. Howard, and Michael Long.
The Regional Director issued his complaint on September 21,
alleging, inter alia, the supervisory status of General
Manager William T. Poe and Warehouse Superintendent
Thomas Wilson, and that both individuals had violated Sec-
tion 8(a)(1) by various threats and statements. It was further
alleged that the three individuals named above had been dis-
charged on August 7 in violation of Section 8(a)(3) of the Act
and not reinstated.
Respondent's answer admitted the service of the charge
and the jurisdiction of the Board but stated it was without
knowledge as to the status of the Union' and denied the
supervisory status of Wilson. Although admitting the dis-
charges, Respondent denied they were in any way caused by
the union- predilections of the three employees. As to the
8(a)(1) allegations, Respondent stated that the acts and state-
ments of William Poe might have been misinterpreted but
that Wilson was not a supervisor and Respondent was not
responsible for any statements he may have made.
On August 5, a petition was filed with the Regional Office
by the Union for a unit of Respondent's warehousemen ex-
cluding office clerical and professional employees, guards,
and supervisors. Following the execution of a consent elec-
tion' agreement, an election was conducted on September 9
with the result that three votes were cast for the Union, three
against, and seven ballots were challenged. Three of the bal-
lots were challenged by the Union on the basis that the in-
dividuals were clerical employees, and the Union's fourth
challenge was to the ballot of Thomas Wilson on the basis
that he was a supervisor. The three remaining challenges were
made to the ballots of Howard, Long, and Walker by the
Board agent since their names were not on the eligibility list.
On October 27, the Regional Director issued his report in
which he found that the persons challenged as clericals were
plant clericals who should be in the unit and that their ballots
should be counted. However, since four challenged ballots
remained, the Director ordered the ballots held since the
status of the alleged 8(a)(3)'s and the supervisory status of
Wilson were contested issues which would be decided in Case
14-CA-5729. The Director therefore ordered Case 14-RC-
6535 consolidated with Case 14-CA-5729 for hearing, rul-
ing, and decision by a Trial Examiner and that therefore Case
14-RC-6535 be severed and transferred to the Director for
further processing.
The hearing was held in St. Louis, Missouri, on November
17 and 18, and all parties were afforded full opportunity to
participate in the proceeding, and to examine and cross-
examine witnesses. General Counsel and the Respondent
have each filed briefs which I have considered. Respondent's
1 Unless stated otherwise all dates herein occurred in 1970
The status of the Union was conceded at the hearing.
191 NLRB No. 6
GENERAL MERCANTILE & HARDWARE CO.
motion to dismiss various portions of Case 14-CA-5729 is
disposed of by this Decision.
At the inception of the hearing on November 17, a joint
motion was made by Respondent and the Union to sever Case
14-RC-6535 and return it to the Regional Director on the
basis that , for the purposes of that case only, Respondent
would agree that Thomas Wilson is a supervisor and that his
ballot should not be counted . The moving parties urged that
the election could possibly be resolved if the Regional Direc-
tor would then open the ballots of the three alleged clerical
employees the Regional Director had found were properly in
the unit. If these three ballots were against the Union, then
the Union could not win the election even if the three alleged
8(a)(3)'s were found to be 8 (a)(3)'s and entitled to vote, since
the most that could, result would be a tie. If, however, one or
more of the three employees had voted for the Union, then
the results of the election would have to await a decision as
to whether one or more of the alleged 8(a)(3)'s was entitled
to vote. By so acting it would be possible to resolve the
representation case, but if opening the three ballots did not
resolve it, no harm was done since the final resolution would
depend on the decision in the unfair labor practice case. Thus
some time might be saved and no time could be lost in deter-
mining the outcome of the representation proceeding.
I granted the motion since, with Respondent 's admission
for the representation case that Wilson was a supervisor and
not entitled to vote , it was possible to resolve the election and
dispose of that case. The motion was granted over the objec-
tion of counsel for the General Counsel, who at this point was
also acting as counsel for the Regional Director . One of his
arguments against the severance was that the Trial Examiner
would be ordering the Regional Director to open and count
the ballots . In this regard the Trial Examiner stated in the
record that he had no such authority and was not ordering
the Regional Director to open and count the ballots but was
giving the Director an opportunity to further process the
representation case and possibly bring it to an early conclu-
sion, certainly earlier than awaiting decision in the unfair
labor practice case.
Counsel for the General Counsel asked for a short recess
so that the Director could consider taking an interim appeal
to the Board from this ruling. An interim appeal was taken
but copies of the statement of the request for appeal were not
given to Respondent , the Union, or to the Trial Examiner
until approximately 10 a.m . CST on November 18. At that
time the Trial Examiner stated on the record that service had
just been made during a recess and there appeared to be
material misstatements of fact in the request for appeal and
that the Trial Examiner felt the appeal request did not set out
the full considerations which were before the parties at the
time of the ruling. The Trial Examiner noted that the parties
had the right to file in opposition to the General Counsel's
request and, in view of the statements made, might ! invite the
Board to view the transcript before ruling on the matter.
The hearing was concluded during the late afternoon of
November 18, and counsel for the General Counsel acknowl-
edged he had no other evidence to produce in regard to the
supervisory status of Wilson . At approximately 2:30 p.m.
EST on November 18, a telegram was sent to the parties
advising ' that the Board had reversed the Trial Examiner's
ruling on the motion granting severance . This telegram was
not received until after the hearing was concluded. Therefore
Case 14-RC-6535 is reconsolidated with Case 14-CA-5729
and is presently before the Trial Examiner.
In resolving credibility where issues are contested, inde-
pendent facts have tended to establish the ephemeral nature
of Respondent's stated reasons why it discharged the three
employees . Some of the facts on which the 8 (a)(1) allegations
21
are based are admitted . The timing of the discharges as well
as the self-contradictory nature of Respondent 's testimony as
to when and why the decision was made underlie the finding
that Respondent violated the Act. I have discredited to some
extent the testimony of various Respondent witnesses such as
Poe and Tillie Ellebrecht because of these inconsistencies and
contradictions which will be set out below.
On the entire record in this case, including my evaluation
of the reliability of the witnesses based on independent facts
and contradictions and to a minor extent on my observation
of their demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is a corporation with its warehouse and sole
place of business located in St. Louis , Missouri , where it is
engaged in the sale and wholesale distribution of hardware
and related products . During the past year Respondent pur-
chased goods valued in excess of $50,000 which were shipped
directly to its St. Louis warehouse from points outside the
State of Missouri and at the same time sold goods valued in
excess of $50,000 which it shipped directly to places outside
the State of Missouri.
Respondent admits and I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Respondent is a wholesale hardware company operated
principally for independent hardware retailers . Presumably
the Company was formed by a number of St. Louis independ-
ent hardware retailers and has continued to grow as other
independent dealers requested information on buying goods
through or from Mercantile . A number of the independent
retailers became stockholders and some of them are members
of Mercantile's board of directors and its officers. The board
of directors and officers of Respondent meet once a month
usually on the fourth Thursday and quarterly stockholders'
meetings are held . The officers and directors are not in day-to-
day control of the Company since they run their own inde-
pendent businesses . However, they have a general manager,
William Poe, who manages all phases of the business includ-
ing contacting possible new customers.
The Company is located in a four-story and basement
warehouse with offices on part of the first floor. The remain-
der of the first floor is occupied by the receiving and shipping
department and storage of some of the merchandise. The
general manager and several clerical employees , including
Tillie Ellebrecht who identified herself as the office super-
visor, occupy the offices. In addition to Mrs. Ellebrecht, 1 or
2 other employees in the office, and Mr. Poe, Respondent
employed approximately 13 people at the time of the election.
All of the 13 were employed full time in the warehouse proper
with the exception of Colleen Marion , whom the Regional
Director found to be a plant clerical since a substantial part
of her employment was in the warehouse.
William Poe was hired, as Respondent's general manager in
April 1969 . In addition to being in complete charge of the
operations of the warehouse and office, he was also to solicit
new business . In this regard'he answered telephone or letter
inquiries from independent hardware retailers who inquired
about buying through Mercantile, and went to visit hardware
retailers to solicit their business . This traveling, Poe es-
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timated, might keep him away from the warehouse as much
as 2 days out of Respondent's 5-day week. Poe also estimated
that while he was at the warehouse he spent about 60 percent
of his time in the office and the remainder in the warehouse.
This estimate was in direct conflict with that of Howard who
estimated that Poe stayed in the office approximately 99 per-
cent of his time while he was at the warehouse. The truth
probably lies somewhere between these two estimates.
The Company keeps a daily running inventory on a num-
ber of items such as the Black & Decker tools and the General
Electric light bulbs. A few of the men, such as Howard, had
specific primary jobs. It was undisputed that Poe had as-
signed Howard to take care of the Black & Decker orders
each morning and in this assignment Howard kept the run-
ning inventory, filled orders for the tools, and noted what was
sold each day. Thomas Wilson had a similar assignment for
the General Electric light bulbs in addition to his supervisory
assignment . The Black & Decker tool section was on the third
floor and the General Electric light bulbs was on the second
floor. Most of the men worked as order fillers and restocked
merchandise and some of the men, such as Long and Walker,
also worked on shipping and receiving. In addition to pri-
mary assignments the men were supposed to help out in
stocking shelves, filling orders, etc., as the need arose. If their
primary job was done they were to go to Wilson to be told
what to do next. Respondent appeared to make an effort to
establish that Howard's Black & Decker assignment was of
a recent vintage, but it is clear from the bulk of testimony that
Howard had those duties prior to May 15.
Respondent admits that when General Manager Poe was
not at Respondent's warehouse, Tom Wilson was in charge
of the warehouse and gave orders and work assignments to
employees. Respondent maintained , in regard to the unfair
labor practices case, that Wilson's power was not that of a
supervisor within the meaning of the Act. I find below that
Wilson was a supervisor within the meaning of the Act.
There was undisputed testimony that Respondent, in
preparation for the monthly board meetings and the quarterly
stockholders' meetings, "iced-up" several tubs of beer. It was
also undisputed that employees consumed the "leftovers" on
the premises after these meetings until May 15. It was also
clear that at other times beer was brought on the premises or
a stock of beer was maintained on the premises and was
consumed on the premises at lunch and at some break peri-
ods.
In May there was an altercation of some sort between
Michael Long and one of the female office employees. The
problem brought about a special meeting of the board of
directors held May 15. At that meeting Howard, Long, and
Walker, who is Howard's brother-in-law, and some other
employees were interviewed by the board of directors. How-
ard, Long, and Walker, testified that they were questioned
regarding the practice of drinking beer on the premises and
agreed they were told that there was to be no more consump-
tion of beer at the vgarehottse. One of the three asked whether
dischar=wain'prospect as a result of this meeting and was
told by the directors that it was not, that the employees were
good workers. The employees were informed of no other
restrictions or any change in their status as employees at that
time or later. It is undisputed that they were not told they
were on probation, or given any terms of probation. The sole
restriction which applied to all employees was that beer
would not be drunk on Respondent' s premises thereafter.
General Manager Poe went on vacation around July 16
and was gone until July 28. Howard, Long, and Walker had
talked about, the Union previously and during Poe's vacation
discussed it further., Howard visited the Union's headquarters
and received some literature which he distributed at Re-
spondent's premises and, together with Long and Walker,
talked to other employees concerning the Union. After some
indication of prounion sentiment Howard got authorization
cards from the Union and distributed them to some em-
ployees. Howard, Long, and Walker and several other em-
ployees signed union authorization cards which Howard col-
lected and returned to the Union. From their testimony it
seems clear that Howard was the main union protagonist and
that Walker and Long were assisting him in trying to con-
vince other employees of the merits of union organization.
On August 6, Union Agent Chrostowski visited Respond-
ent's warehouse and talked to General Manager Poe. Accord-
ing to Poe, Chrostowski said that he represented the Team-
sters local and had signed up everybody in the warehouse.
Poe expressed doubt of that and asked to see the cards but
was told he could not. Chrostowski said that Poe could accept
the fact that the Union represented the warehouse employees,
or have someone else verify the signatures on the authoriza-
tion -cards, or have an election by the Labor Board. Poe
replied that he did not accept Chrostowski 's claim and they
would have to have an election. Chrostowski said he had filed
a petition with the Board and Poe would hear from the
Board.
After Chrostowski left. Poe went out in the warehouse and
told Tom Wilson what had occurred and ask if Wilson had
signed a card. Wilson denied doing so, saying if they had a
card with his name it was forged. Poe testified that thereafter
he talked to every employee who was present and asked
whether the employee had signed a union card.
According to Howard, Poe said that someone from the
Union, had told him they were trying to organize and that
everybody had signed cards authorizing the Union to repre-
sent them. Poe said he thought it was somebody off the street
and wanted to find out if what he was talking about was true.
Poe asked if Howard had signed a card and Howard said yes
he did. Poe asked him the source of the union cards but
Howard, didn't reply and Poe asked why Howard didn't let
him know about it. Howard replied that he just wanted to
play it cool. Poe also asked Long if he had signed a union card
and Long admitted he did. Poe then asked who brought the
cards and Long said he couldn't tell him that. Tweedy, who
was working with Long, told Poe he had not signed a card.
Shortly thereafter Howard was walking through the ware-
house and came upon Orville Lammars and Tom Wilson
talking and heard Wilson say to Lammars that they were
going to close the place down if it went Union. As Howard
walked by, Wilson turned and pointed his finger at Howard
and said "I'll see you walking the street." Wilson did not deny
making these statements and in fact admitted telling Lam-
mars he thought the place would close down if the Union ever
got in. Respondent contends that Wilson, is not a supervisor
and that his remarks were his personal feelings and were not
an expression by the Company or something for which Re-
spondent should be liable.
The workweek at Respondent runs from Thursday until
Wednesday. The checks are usually prepared on Thursday
for the preceding week and the men are paid late Friday
afternoon.
On Friday, August 7, Howard and Long each received two
paychecks and a notice which stated:
As a result of taking beer without authorization from the
lunch room, drinking on the job and insubordination
with the warehouse superintendent and assistant super-
intendent, the individual members of the Board of Direc-
tors of this company have instructed me to notify you
that your employment is terminated, effective August 7,
1970. Your final pay check is enclosed herewith.
GENERAL MERCANTILE & HARDWARE CO.
Respectfully,
Bill Poe,
General Manager.
Michael Walker, who had worked for the Company since
November 1969 filling orders and working in shipping and
receiving, left on military leave on Wednesday, July 22, and
did not work at Respondent thereafter. He returned from his
military leave on August 8, and a letter from Respondent was
awaiting him which gave the same reasons for discharge as
the notice to Long and Howard quoted above, with the excep-
tion that Walker had been paid in full prior to going on
military leave and received no further pay with his separation
notice.
It is clear that in asking the employees whether they had
signed union cards and inquiring of some the source of the
cards and by not giving employees the guarantees and safe-
guards established as necessary by the Board for such situa-
tions in Struksnes Construction Co., Inc., 165 NLRB 1062,
Respondent, by General Manager Poe, was invading em-
ployees' Section 7 rights and violating Section 8(a)(1) of the
Act, and I so find and conclude.
B. The Supervisory Status of Thomas Wilson
Thomas Wilson has worked for Respondent 12 to 14 years
and, prior to Poe becoming general manager, had been a
supervisor with the Company. Wilson was continued in a
supervisory category after Poe became general manager. Poe
testified that he had clarified Wilson's status further at a
meeting he held with the employees in June. Poe's testimony
was that he told the men that Wilson was the boss in the
warehouse and what he said was to go, and the men were to
bring any questions they might have to Wilson or himself.
Further, he told Wilson that when he was away and if it was
necessary, Wilson could fire someone and that he would back
him up and in his absence Wilson was the one to give instruc-
tions to the men in the warehouse. During his testimony, Poe
attempted to undercut this somewhat by saying that he gives
a lot of direct orders to the men rather than through Wilson
and is in complete control of the office and warehouse when
he is present.
Poe admitted that the term warehouse superintendent and
assistant superintendent, which he had used in the discharge
notices to the three individuals, were meant to be Tom Wilson
and Henry Heiman rather than himself and Wilson as Re-
spondent's counsel stated earlier in the hearing. Heiman was
a long term employee having worked approximately 12 years
for Respondent and was the only other man to work on Black
& Decker and only in Howard's absence. Poe, in a letter to
the Missouri Division of Employment Security referring to
the discharge of Michael Long, stated that while he (Poe) was
on vacation, from July 16 through 27, Long refused to pre-
form work ordered by Wilson, Respondent's foreman. Wil-
son was also referred to as a warehouse foreman in a list of
employees and their duties prepared by Respondent. The men
were instructed to call Tom Wilson if they were going to be
late or absent and were to report to him for assignment when
their primary duties were performed. Wilson was paid more
than the other employees but was on an hourly basis with
overtime.
Respondent appears to say that the only true supervisor in
the plant was General Manager Poe. However, Respondent
admits that Poe was gone from the warehouse for extended
periods of time when Wilson was in sole charge of the ware-
house. For instance, Wilson was in charge of the warehouse
from July 16 through 28 while Poe was gone on vacation.
And from Poe's own statement Wilson had authority to fire
employees. While it is true that a large percentage of the work
done by the employees was on an assigned basis, Wilson had
23
discretion as to whom to assign , and where, when their pri-
mary responsibilities had been filled. From the nature in
which the warehouse was run it is only reasonable to con-
clude that Wilson did possess supervisory authority which he
exercised mainly in Poe's absence, but to some extent while
Poe was present at the warehouse. The Company, and Poe in
particular, held Wilson out to the employees as their super-
visor as the only one in charge of the warehouse for extended
periods of time and told the men they were to follow Wilson's
orders. I conclude and find that Thomas Wilson is a super-
visor within the meaning of the Act, and that Respondent is
responsible for his threats issued to Lammars and Howard,
as noted above, which I find and conclude were violative of
Section 8(a)(1) of the Act.
C. The Discriminatory Discharges
General Counsel's case is based on a combination of the
union activity of the three men, one of them being the broth-
er-in-law of the main union protagonist, Howard, the notifi-
cation to the Company of the Union's status on August 6,
followed immediately by interrogation and coercion of the
employees and the precipitate discharges the following day,
August 7. Respondent admits' that Howard, Long, and
Walker were never informed that they were on probation and
that none of the Respondent's executives or supervisors dis-
cussed the men's attitude or job performance with them or
criticized them in any way between May 15 and August 7.
The first inkling of any jeopardy for their jobs may have been
Poe's interrogation of their union activities, but nothing
about job performance or attitude was said then. All that the
men received to explain their discharges was the separation
notice given to them on August 7. Nothing was stated in that
letter about probation, only taking and drinking beer and
insubordination to Wilson and Heiman.
Respondent maintains that the men were on probation
even though they were not informed of it. Respondent pre-
sented no evidence of any taking or drinking of beer after
May 15.
Poe testified that when he returned from his vaction he was
informed that there had been an altercation between Wilson
and Howard during the vacation and was told by Wilson that
while he was gone things had gone on as they had before, that
the men had not given him any cooperation and had con-
tinued to refuse to follow his orders. Poe could not recall a
single specific instance which Wilson had mentioned as in-
dicating that the men were not following his orders. Wilson
could think of no specific instance where the men did not
follow his orders or refused to follow them after May 15. He
testified he could recall none, "No I wouldn't say there was
because we really didn't have much to do with each other
after the fight because I wouldn't ask them to do anything."
When pressed, Wilson mentioned a problem he had in getting
assistance while'moving sleds into the plant. On further prob-
ing he admitted that this happened the previous December.
In regard to the alleged fight or altercation between himself
and Howard, Wilson said that this had taken place in Janu-
ary.
Poe admitted that there had been no drinking on the job
that he knew of following the May 15 meeting , although he
did admit, as one of the employees testified, that on an occa-
sion after May 15 he had asked one or more of the men to
have a beer with him on the premises when they were helping
set up the room for a board of directors' meeting.
Respondent offered evidence from some of the board of
directors that they had encountered an unfriendly attitude
from the three employees at the plant, but none mentioned
a specific instance or occurrence and there was no time refer-
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence or indication that any happening was taken up with Poe
or any of the three.
There is an area of some agreement . Howard stated that he
had been told by Poe that his first duty every morning was
to clear up the Black & Decker orders and that he continued
to follow this standing order of Poe's by doing so every morn-
ing. -He said that there might have,been occasions while he
was working on Black & Decker when Wilson would ask him
to come down and perform some other job and that he would
have refused to do so replying that his main job according to
Poe's order was to first complete work on the Black & Decker
orders. Respondent seems to intimate that a refusal by How-
ard to,follow such a direction was insubordination to Wilson.
If there was an ambiguity in the orders, or as to what had
priority, Wilson never sought to have it clarified by Poe for
Howard and himself. It seems logical that Howard was fol-
lowing a standing order given to him by Poe. A listing of
employees and their job duties prepared by Respondent ap-
pears to bear out Howard's understanding (G.C. Exh. 7). It
states: "Wayne Howard-Fills Black & Decker orders.
Keeps Black & Decker inventory cards up to date in office.
Helps fill regular orders as time permits. "
Wilson's testimony, though vague and general, indicated
that he had previously asked Howard and some of the others
to perform some tasks but that they would work at his direc-
tion for just a short while and then leave and go someplace
else. Wilson felt the three were unsatisfactory and did-not
really ask them to do much work after the altercation with
Howard in January.
Poe testified that following his return from vacation and
being informed that things were still continuing in the old
way, he contacted various directors over several days and got
the approval of a majority to discharge the three and this took
place before he had any knowledge of union activity by the
three. Some of the directors testified that they were contacted
by Poe regarding the discharges but there was no credible
accurate recollection as to when the contacts were made. Poe
testified that on, the afternoon of Wednesday, August 5, he
told Tillie Ellebrecht to make up two checks for the men, that
the three were being discharged on Friday. Mrs. Ellebrecht
testified she was told on Wednesday night by Poe to prepare
final checks for Walker," Long, and Howard, as they would
no longer be with the Company. Mrs. Ellebrecht's, testimony
in the main was based on her routine and what she, thought
must have happened rather than on memory. Where her
testimony was based on memory it was not reliable. Thus she
testified that the two checks for Howard, and Long were
prepared at the same time, and that all the checks would be
signed by the same two directors who first came to the ware-
house after the checks were prepared. She also testified that
the differences in amounts in the two checks, to 'the same
individual would be caused by amounts due the Company
from the individual for purchases which were deducted after
she checked the records. Because of her routine she was sure
that all the checks were prepared by Thursday morning. The
checks for the full week for Howard and Long were numbers
1512 and 1516, respectively, and were signed by Board Mem-
bers Mueller and Hamlin . The checks for the 2-day period of
Thursday and Friday were numbered 1526 for Howard and
1527 for Long and were signed by Board Members Frick and
Hamlin.
'The checks themselves disprove several assertions of Mrs.
Ellebrecht in that they were not signed by the same board
members and were not prepared for the individuals at the
Emphasis supplied.
° She would not have been told to prepare checks for walker since he was
on military leave and had been paid in full before going on leave.
same time. General Counsel's Exhibit 7 is an alphabetical
listing of the warehouse employees prepared by Respondent.
Noting the names, it becomes apparent that the payroll
(weekly) checks were prepared in alphabetical order and that
the completion of checks for those listed thereon would have
ended with Tom Wilson at check number,1523. Without the
checkbook itself or the stubs it is impossible to determine
whether any paychecks were prepared for office personnel or
Mr. Poe before the checks for warehouse employees or after-
wards, or whether they are paid on a weekly basis or not. But
it is evident that other checks were issued between the regular
paychecks for the warehouse employees and the terminal
checks, 1526 and 1527, for Howard and Long. The fact that
a different director signed those two checks further demon-
strates they were not prepared when the regular paychecks
were prepared but at a later time. Further, the checks were
for 2 days' pay and nothing had been deducted for any pur-
chases. Indeed, if the checks had been prepared as Mrs. Elle-
brecht testified she would probably have checked to see if any
amounts were due before beginning the preparation of all the
payroll checks.
The three directors all testified that they signed the checks
about noon since it was their custom to get to the warehouse
about that time, but this testimony is conclusionary rather
than evidentiary, and does not accord with the fact of the
checks and the different signatures . Indeed, it is possible that
the checks were not signed until Friday since their distribu-
tion was not until Friday afternoon and none of the testimony
was that definite.
The deviation of Respondent's testimony from discernible
facts leads me to the conclusion that the decision to discharge
the three men and the preparation of these two checks oc-
curred after the visit of Union Representative Chrostowski
and after Poe had ascertained that Howard and Long had
signed authorization cards and were active for the Union. It
is clear 'that Wilson, and probably Poe, felt that Walker and
his brother-in-law, Howard, and Long were a "clique" re-
sponsible for the Union's presence at the plant. Wilson's
threat to Howard that he would see him walking the street
is an indication of that.
Respondent's defense appears contrived since the reasons
given in the discharge letter refer to events prior to May 15,
some ,3 months previous, and to no occurrences after then,
and from the fact that there was no probation given to the
men and that there were no specific occurrences of insubordi-
nation brought to light. Respondent did not demonstrate any,
instances where these three men did not perform their duties
or were criticized or, reprimanded after May 15. Respondent
attempted to place episodes that admittedly occurred in
December 1969 and January 1970 in the period of Poe's July
vacation to give some semblance of a reason for discharging
the three. In fact these were the first discharges by Poe, and
Mrs. Ellebrecht had never handled any discharges prior to
August.7. Additionally, I,doubt that Poe would have both-
ered to ask Howard,and Long about the Union and whether,
they had, signed cards if he had already issued orders for their
discharge on the following day. Indeed, the handling of the
discharge is strained if the employees were really being dis-
charged for the stated reasons or for the putative breach of
probation. It would seem that they would have been informed
of facts if there were any and told precisely why they were
being discharged.
All that is left is the union activity of the three, the discpv-
ery of it, and the immediate discharges in a context of unlaw-
ful interrogation and threats. The only possible occurrence of
drinking beer on the premises , is one in which General
Manager Poe invited one of the three to,have a beer and the
man did so, declining other similar invitations of Poe, Re-
GENERAL MERCANTILE & HARDWARE CO.
spondent did not attempt to use this as a reason for the
discharges.
From all the evidence I conclude and find that Respondent
discharged Roy Wayne Howard, Michael Long, and Michael
Walker in violation of Section 8(a)(3) and (1),of the Act.
III. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Respondent's commission of unfair, labor practices set
forth in section II, above, violated Section 8(a)(1) and (3) of
the Act, and occurring in connection with Respondent's busi-
ness operations described in section I, above, have a close,
intimate, and substantial relationship to_ trade, traffic, and
commerce among the several States and tends to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that Respondent discriminatorily ter-
minated Roy Wayne Howard, Michael Long, and Michael
Walker on August 7, 1970, because of their union sympathies,
activities, desires, and membership, I recommend that Re-
spondent offer them immediate and full reinstatement to their
former positions or, if those positions are unavailable due to
a change in Respondent's operations, then to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges. Respondent shall make them
whole for any loss of pay they may have suffered by reason
of Respondent's discrimination against them, by payment to
them of a sum equal to that which each would have received
as wages from the date of their discharge until the date Re-
spondent reinstates them, less any net interim earnings. Back-
pay is to be computed on a quarterly basis in the manner
established by the Board in F W. Woolworth Company, 90
NLRB 289, with interest at the rate of 6 percent per annum
to be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. I further recommend that Re-
spondent make available to the Board, upon request, payroll
and other records in order to facilitate checking the amounts
of backpay due and the rights of each of the three employees.
Respondent also interrogated its employees concerning their
union membership or the membership or activity of others
and threatened closure of the plant or discharge in attempts
to undermine the employees' union sentiments and stifle their
organizational activities. I therefore recommend that Re-
spondent be ordered to cease and desist from violating the
Act in the same or similar manner as the violations found
herein.
On the basis of the foregoing findings and the entire record
I make the following:
CONCLUSIONS OF LAW
1. General Mercantile & Hardware Co. is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily terminating Roy Wayne Howard,
Michael Long , and Michael Walker on August 7, 1970, and
not thereafter reinstating them to their positions because of
their union sympathies , activities, desires, and membership
Respondent has engaged in, and is engaging in, unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
4. Respondent has engaged in, and is engaging in, unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act by interro-
25
gating employees concerning their union sympathies, activi-
ties, desires, and membership and the union sympathies, ac-
tivities, desires, and membership of other employees and
threatening that the plant would be closed or employees dis-
charged in order to stifle the employees' organizational activi-
ties and undermine their union sympathies.
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'
ORDER
Respondent General Mercantile & Hardware Co., its offic-
ers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or laying off and refusing to reinstate em-
ployees in order to discourage these employees and other
employees from being or becoming union members.
(b) Interrogating employees concerning their union sympa-
thies, activities, desires, and membership or the union sympa-
thies, activities, desires, and membership of other employees.
(c) Threatening employees that the plant would be closed
or employees discharged' because of their union activities,
sympathies, desires, or membership.
(d) In the same or similar manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist Warehouse and Distribution Workers Local
Union No. 688, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, to bar-
gain collectively with representatives of their own choosing,
and to engage in concerted activities for the purpose of collec-
tive bargaining or other-mutual aid or protection.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer to Roy Wayne'Howard, Michael, Long, and Mi-
chael Walker reinstatement in accordance with the recom-
mendations set forth in the section of this, Decision entitled
"The Remedy."
(b) Make Roy Wayne Howard, Michael Long, and Mi-
chael Walker whole for any loss of pay they may have suff-
ered by reason of Respondent's discrimination against them
in accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports,, and all other records necessary to
analyze the amount of backpay due and the other rights and
privileges accorded to Roy Wayne Howard, Michael Long,
and Michael Walker as set forth in the section of this Deci-
sion entitled "The Remedy."
(d) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(e) Post at its St. Louis, Missouri, warehouse copies of the
attached notice marked "Appendix."6 Copies of said notice,
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
, 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
(Cont)
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on forms provided by the Regional Director for Region 14,
after being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by' the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
Case 14-RC-6535
Case 14-RC-6535 is hereby severed and transferred to the
Regional Director of Region 14 for further processing.' In
Case 14-CA-5729 I have found that Thomas Wilson is a
supervisor within the meaning of the Act and that employees
Howard, Long, and Walker were discriminatorily discharged
in violation of Section 8(a)(3) and (1) of the Act. Therefore
I recommend that the challenge to Wilson's ballot be sus-
tained and his ballot not be counted and the challenges to the
ballots' of Howard, Long, and Walker should be overruled
and their ballots counted.
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."
' 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 14, in writing, within 20 days from the date
of this Order, what steps the Respondent has-taken to comply herewith."
' At this stage the Regional Director may either open and count the
ballots of Heiman, Koziatek, and Marion, the three employees he found to
be plant clericals and entitled to vote (an issue not involved in the present
proceeding) and see if'their ballots dispose of the case, as noted above
(something the Regional Director could have done over 2 months ago when
the case was originally severed), or he may defer processing the case pend-
ing the Board's decision in Case 14-CA-5729.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the Company, the Union, and the
General Counsel of the National Labor Relations Board par-
ticipated and offered evidence, the National Labor Relations
Board has found that we violated the law and has ordered us
to post this notice and we intend to carry out the order of the
Board and abide by the following.
WE WILL NOT ask our employees about their union
sympathies, activities, desires, or membership or the
union sympathies, activities, desires, or membership of
other of our employees.
WE WILL NOT threaten our employees that the plant
might be closed or employees discharged because of their
union sympathies, activities, desires, or membership.
WE WILL offer to Roy Wayne Howard, Michael
Long, and Michael Walker their former jobs with all
their rights and any backpay due them.
WE WILL NOT discharge, lay off or refuse to hire or
rehire any employee in order to try to discourage our
employees from being or becoming members of Ware-
house and Distribution Workers Local Union No. 688,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
All our employees are free to become or remain union
members.
Dated By
GENERAL MERCANTILE
& HARDWARE CO.
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
This is an official notice and must,not be defaced by any-
one.
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 compliance with
its provisions may be directed to the Board's office, 210 North
12th Boulevard, Room 448, St. Louis, Missouri 63102, Tele-
phone 314-622-4167.