Glazer Wholesale Drug Co. of New Orleans, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1970

181 N.L.R.B. 304 (N.L.R.B. 1970)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glazer Wholesale Drug Company of New Orleans,
Inc. and Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO Local No.
P591. Cases 15-CA-3507, 15-RC-4102
February 26, 1970
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 21, 1969, Trial Examiner Max
Rosenberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the aforesaid
conduct had interfered with the Board election of
May 14, 1969, in the representation proceeding, and
recommended that the said election be set aside and
that a new election be held. The Trial Examiner
further recommended that other allegations of the
complaint be dismissed. Thereafter, the Respondent
and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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 and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations' of the
Trial Examiner, as modified herein.
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Glazer Wholesale Drug Company of
New Orleans, Inc , New Orleans, Louisiana, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. Delete paragraph 1(i) of the Recommended
Order in toto and reletter the succeeding paragraph
accordingly.
2. Delete the penultimate substantive paragraph
from the Appendix to the Trial Examiner's
Decision.
IT IS ALSO ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
IT IS FURTHER ORDERED that the election held on
May 14, 1969, in Case 15-RC-4102, be, and it
hereby is, set aside, and that said case be, and it
hereby is, remanded to the Regional Director for
Region 15 to conduct a new election when he deems
that circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1235, N L R B v Wyman-Gordon Company
394 U S 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 15 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
'In the light of the numerous violations of the Act which the Trial
Examiner has found , we find it unnecessary to pass upon nor do we decide
whether the Respondent also violated the Act when, in the circumstances
described by the Trial Examiner , Hall and Pickett absented themselves for
the purpose of having the antiunion petition notarized
In view of the Trial Examiner's finding that manager Clark knowingly
paid employees Hall and Pickett for their time off in getting a petition
notarized that sought to get the Union to withdraw its objections to the
election, Member Jenkins agrees with the Trial Examiner that this conduct
when viewed against the backdrop of Respondent ' s other unfair labor
practices "was aimed at stunting .he Union's organizational endeavors"
and was therefore violative of Section 8(a)(1) of the Act
'In adopting the Trial Examiner 's recommendation that the election in
Case 15-RC-4102 be set aside , we do not adopt his comment that, after the
appropriate posting period , the Regional Director might be persuaded that
the conduct of a second election would be administratively inadvisable
MAx ROSENBERG, Trial Examiner: With all parties
represented, this proceeding was tried before me in New
Orleans, Louisiana, on June 24 and 25, 1969, on
complaint of the General Counsel of the National Labor
Relations Board and an answer filed thereto by Glazer
Wholesale Drug Company of New Orleans, Inc , herein
called the Respondent.' Joined with the complaint are
Objections to an election conducted by the Board in Case
15-RC-4102 among Respondent's employees on May 14,
1969, which were lodged by Amalgamated Meatcutters
and Butcher Workmen of North America, AFL-CIO,
Local P591, herein called the Union, and which the
Regional Director for Region 15 consolidated with Case
15-CA-3507 for hearing by order dated June 18, 1969. At
issue is whether Respondent violated Section 8(a)(1) of the
National Labor Relations Act, as amended, by certain
conduct to be detailed hereinafter In his "Supplemental
Decision and Order directing counting of challenged
ballots and hearing on objections," the Regional Director
'The complaint, which issued on April 30 , 1969, is based upon charges
filed on March 17, 1969 and served on March 18, 1969
181 NLRB No. 50
GLAZER WHOLESALE DRUG COMPANY 305
also referred for decision by the presiding Trial Examiner
the question of whether the foregoing alleged acts of
misconduct by Respondent, which antedated the election,
so interfered with the employees' freedom of choice as to
require the holding of a second election. All parties were
afforded full opportunity to present evidence, to examine
and cross-examine witnesses, to argue orally at the close
of the hearing, and to file briefs. Briefs have been received
from the General Counsel and the Respondent, which
have been duly considered
Upon consideration of the entire record, including the
briefs submitted to me, and upon my observation of the
demeanor of each witness while testifying, I hereby make
the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent is a corporation duly organized under the
laws of the State of Louisiana At its principal office and
place of business in New Orleans, Louisiana, it is engaged
in the wholesale distribution of alcoholic beverages.
During the annual period material to this proceeding,
Respondent received alcoholic beverages valued in excess
of $50,000 at its establishment in New Orleans which were
shipped directly to it from points located outside of the
State of Louisiana The complaint alleges, the answer
admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The complaint alleges that, on or about March 12,
1969,2 Respondent's Manager Sam S. Clark, who is
admittedly a supervisor within the meaning of Section
2(11) of the Statute, engaged in a series of acts which
interfered with, restrained and coerced Respondent's
employees in the exercise of their rights guaranteed in
Section 7 and thereby violated Section 8(a)(1).' The
General Counsel also pleads that, on or about the same
date, Warehouse Foreman Cleveland J. Fontanille, whose
supervisory status is also conceded by Respondent,
indulged in additional acts of misconduct which were
offensive to Section 8(a)(1) 4 Finally, the General Counsel
asserts that the foregoing activities of Clark and
Fontanille warrant setting aside the election For its part,
Respondent denies the commission of any labor practices
proscrih.d by the Statute and urges that the election
results be allowed to stand.
'All dates herein fall in 1969
'At the hearing , the General Counsel amended the complaint to add the
allegation that, on or about June 17, Clark encouraged and assisted
employees in the solicitation , circularization and-formalization of an
antiunion petition in violation of Section 8(a)(l)
'Without opposition , the undersigned Trial Exayimer granted the
General Counsel' s motion, made at the hearing , to delete paragraph 8(g) of
the complaint which alleged that "On or about March 13, 1969,
[Fontanelle ] created an impression of surveillance by orally informing an
employee that Respondent had a list of names of the employees who
B Background and Procedural Issue
It is undisputed and I find that, beginning around
March 3, the Union launched an organizational campaign
among Respondent's employees by distributing
authorization cards to the men outside Respondent's
warehouse By letter of March 6, the Union notified the
employees who had signed the designations that a meeting
had been scheduled for March 11 to discuss its
organizational efforts. The letter added that a petition for
a representation election would be filed with the Board as
soon as a sufficient number of signed cards had been
obtained from the employees The meeting attracted the
attendance of approximately 10 to 12 of the men
The Union petitioned the Board for an election on
March 12 and, on March 16, a second meeting was
conducted among the interested employees. On March 17,
the Union lodged unfair labor practice charges against
Respondent alleging that, between March 12 and March
14, Supervisors Clark and Fontanille engaged in various
acts of misconduct violative of Section 8(a)(1).' The same
day, that labor organization executed a document entitled
"Request to Proceed," in which it asked "the Regional
Director to proceed with the above-captioned
representation case [Case 15-RC-4102], notwithstanding
the charges of unfair labor practices filed in Case
15-CA-3507 " Pursuant to a Decision and Direction of
Election issued by the Region on April 18, the balloting
was conducted on May 14. The ensuing tally of ballots
disclosed that, of approximately 21 eligible voters, 9 cast
their votes for and 9 voted against the Union, with 3
ballots challenged On May 16, the Union filed 4
Objections to conduct of the Respondent which allegedly
affected the outcome of the election 6 In a Supplemental
Decision issued by the Region on June 4, 2 of the
challenges were overruled and a hearing was directed on
the outstanding Objections. Thereafter, on June 18, the
Regional Director promulgated a revised tally of ballots
which revealed that the Union had lost the election by a
vote of 9 to 11. On the same date, he issued an order
consolidating Cases 15-CA-3507 and 15-RC-4102 for
hearing.
A threshhold procedural issue is raised by Respondent's
argument that, as the charges which the Union filed on
March 17 were identical to the Objections which the
Union lodged on May 16 after its election loss, and
inasmuch as the Union filed a "Request to Proceed" with
the election on March 17 despite the pendency of the
charges, it was unfair for the General Counsel further to
process the Union's Objections because it was thereby
afforded "two bites at the apple " Respondent
consequently urges that the representation petition be
severed from the complaint proceeding, that the petition
be dismissed, and that the results of the election be
certified in its favor
The short answer to this argument is that the Union,
when it filed its petition on March 12, was entitled to
harbor the belief that the Respondent would refrain from
indulging in misconduct which would make a free and
untrammeled election impossible. While the Union may
attended the union meeting "
'Another charge in Case No 15-CA-3507-2 was filed on March 17 by
the Union claiming that Respondent violated Section 8 (aX3) of the Act by
discharging an employee named August Lewis This charge was dismissed
by the Regional Director as lacking in merit
'With the approval of the Region, the Union was permitted to withdraw
3 of the 4 Objections, leaving viable only those Objections which find their
parallel in the allegations contained in the original complaint
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have erred in thinking that it could win its
representational rights through an election in the face of
Respondent's misconduct, and hence decided to proceed
with the balloting in spite of the outstanding unfair labor
practices, this does not dictate the conclusion that it
thereby became harnassed to a single, Statutory course of
action. In Bernel Foam Products Co , Inc .' the Board
observed that there existed no legislative warrant for
imposing upon a labor organization which seeks to
represent employees an "irrevocable option as to the
method it will pursue in seeking vindication of the
employees' representation rights while permitting the
offending party to enjoy at the expense of public policy
the fruits of such unlawful conduct" Moreover, nothing
contained in the "Request to Proceed" evidences any
intention on the part of that organization to waive the
right which it otherwise possessed to press a valid
post-election claim that Respondent committed
wrongdoings which affected the results of the vote
Inasmuch as I have hereinafter found that Respondent
engaged in a series of acts violative of Section 8(a)(1) of
the Statute between March 12 and 14 which affected the
election's outcome, I find no merit in Respondent's
argument and I reject it 9
I turn next to a consideration of the facts surrounding
Respondent's charged misconduct
C. The Alleged Improper Activities of Supervisors
Clark and Fontanille Between March 12 and 14
As heretofore chronicled, the Union started its
organizational drive at Respondent's warehouse in early
March. Its initial meeting with the employees was
conducted on the evening of March 11. It is undisputed
and I find that Manager Sam Clark first became aware of
the Union's efforts at 11:30 p.m on March 11 when he
returned home from a dinner engagement and discovered
a note from his daughter informing him that someone had
called to report that his employees had attended a Union
meeting that night
Employee Linell Holly testified that he had worked for
Respondent for about 3 months prior to the March II
meeting which he attended. Shortly after he began work
on the morning of March 12, he was summoned to
Clark's office for the first time during his employment
with the company. Clark opened the conversation by
asking Holly how long he had been employed and what
his rate of pay was. When Holly answered that he had
toiled for .Respondent for 3 months and was receiving
$1 65 per hour, Clark announced that he "was going to
give me a ten cent raise and that starting next week that I
would be getting $1.75 an hour." According to Holly,
management had not apprised him at the time of his hire
that he would be awarded a wage increase after 3 months'
employment, and he believed that the added wage
increment was reflected in the paycheck which he received
on March 13, the day following his conversation with
Clark.
Holly further testified that, after Clark gave
notification of the impending wage raise, the latter stated,
"Now, I understand that you all have been having
meetings about a Union" and Clark inquired whether
'146 NLRB 1277
'Ibid at p 1280
'I would note that Respondent does not raise the claim that the
Objections lacked timeliness under the rule expressed by the Board in Ideal
Electric and Manufacturing Company. 134 NLRB 1275
Holly had any information concerning the matter. Holly
denied any knowledge of such meetings, at which juncture
Clark proceeded to spell out the existing fringe benefits
which the employees were accorded by Respondent,
including a Christmas bonus, a profit sharing plan, a
money lending program, and other forms of assistance to
the men. Although Holly had learned of these benefits
through scuttlebutt among his fellow workers, his
testimony is undenied and I find that no official of
Respondent had previously imparted this intelligence to
him Clark then asked Holly whether he was satisfied with
his terms and conditions of employment and, when Holly
responded in the affirmative, Clark "told me if I found
out anything about the Union, where the Union hall was
located, who attends the meetings, where the meetings
were taking place, who was pushing the Union and what
and where the Union hall was located, to either talk to his
office and let him know or either phone him at his home
and let him know."
Clark, who admittedly was opposed to the unionization
of his employees, because "we had never had a Union, and
we had been a very happy family and I had no reason to
want it otherwise," conceded that he entered into a
discussion with Holly on March 12 during which the
former inquired whether Holly had attended the Union
meeting on the previous evening and whether he had any
problems or was dissatisfied with working for the
Respondent. Clark also admitted that he questioned
between six and eight employees on March 12 about the
Union meeting "For my own information, I wanted to
know what was going on," and that some of the workers
asked whether they would be fired because of their
activities After interrogating the employees, Clark placed
a telephone call to his home office in Dallas, Texas, to
report on the Union's operations at the warehouse and to
receive advice of counsel. Counsel told Clark either on the
evening of March 12 or the morning of March 13 "that
anything I had done up to this time was all right, but
from now on there would be no raises until we know
what's going on." While Clark testimonially claimed that
he did not threaten employees with discharge or other
adverse changes in their working conditions, and did not
promise any economic benefits in the course of his
colloquies with them on March 12 in order to wean them
away from the Union's embrace, Holly's testimony stands
undenied and I find that Clark interrogated him as to
whether he and his fellow employees had attended Union
meetings; for the first time outlined Respondent's fringe
benefits after learning of the Union's organizational
campaign; and, directed Holly to funnel information to
Clark concerning the Union movement at the warehouse,
the identity of the labor organization involved, and the
identity of its most active adherents.
In his testimony, Clark proclaimed that he reached a
decision to grant wage increases to his men well in
advance of his acquisition of any knowledge that the
Union had entered upon the scene. According to Clark, he
made it a practice of evaluating each employee's
performance every 6 months, in collaboration with
Foreman Fontanille, to ascertain which employee merited
a pay raise. Under normal circumstances, this evaluation
and the award of the increases would have taken place
during the last week in January or early February
However, Clark related that the customary appraisal was
deferred on this occasion because of a combination of
factors. On January 10, he embarked on a business trip
for approximately 2 weeks and, when he returned, he
learned that one of his drivers had committed suicide
GLAZER WHOLESALE DRUG COMPANY 307
which required his time and attention, with the result that
,.we had no time to actually go into the raises until
approximately January 20th." In early February, Clark
was called out of town because of a death in the family.
On February 21, he again sat down with Fontanille and,
armed with a payroll journal for the pay-period ending
February 20, they collectively checked off the names of
the deserving employees with the amount of increases and
Clark made a notation on the document, directed to
Fontanille, that "this is effective 3-7-69." Clark went on
to explain that March 7 constituted the beginning of a
new pay-period and that the increases were reflected in the
paychecks which the employees received on March 14.
When queried as to why he waited until March 14 to
implement his February 21 decision to afford the wage
increases , Clark remarked that it was "Standard
procedure. We usually discuss when we are going to do it,
do it at that date. I never do anything overnight." Finally,
Clark maintained that he made no mention of pay raises
to the employees during his conversations on March 12,
claiming that it was part of Fontan ille's duties to convey
this intelligence to the work complement.
Employee Earnest Hill had been employed by
Respondent for approximately 2 years. On March 3, he
joined the Union. Hill testified that, when he appeared for
work on the morning of March 12, Clark called to him
and invited Hill to Clark's office. It is uncontroverted and
I find that Clark had never conversed with Hill during the
entire period of the latter's employment. When they
arrived at the office, Clark inquired whether Hill had
attended the Union gathering on the previous evening.
After Hill asked to what meeting Clark had reference,
Clark stated "that the guys was passing out cards for the
Union, and that he knew that I was there at the meeting."
Clark then questioned Hill as to whether he was satisfied
working for the company and, when Hill answered in the
affirmative, Clark commented that "the Union was
breaking up a happy family . he had did favors for
some of the guys, and they turned their back on him . .
he said they came to him when they needed him to borrow
money or to get out of jail, and he said if they needed to
borrow money they would have to go to the Union." Hill
rejoined that if his fellow employees decided to support
the Union he would follow the same course Clark
terminated the conversation by informing Hill that Clark
"was going to give me a raise , but he wasn ' t sure. He had
to wait and see." Nevertheless, Hill did receive a wage
increase in his March 13 paycheck which was made
effective on March 7. However, it is Hill's testimony that
he was unaware that Respondent had granted him an
increase until May 13, the day he received it.
Clark acknowledged on the stand that he invited Hill
into his office on March 12 and inquired whether Hill had
been to the Union meeting and "one thing and another "
Upon being asked whether he made any statements in this
discussion with Hill to the effect that if the employees
were in need of money they should seek out the Union,
Clark replied, "No, the only statements I made was that
in the past I have been able to lend money out of my own
pocket. I don't know what will happen now." Clark
finally gave an "absolutely not" answer to a question as
to whether he had promised the employees a wage raise if
they abandoned their support for the Union
Like Hill, employee Edmond Cummings worked for
Respondent for 2 years He executed a Union
authorization card on March 4 and attended all the Union
meetings , including the one conducted on March 11
Cummings testified that, late in the afternoon of March
12, he entered Clark's office where the latter initially
inquired , " Mike, what ' s going on9" Cummings responded,
"We're trying to get a little Union going on." Clark
retorted, "I know you I know you're an instigator on the
night crew, and August Lewis is on the day crew When it
comes time to vote, which way will you vote?" Cummings
stated that he was undecided. Clark thereupon commented
that "two guys had called him the night of the meeting
11:30 at night at his home, and told him that I
[Cummings ] helped direct the meeting " Cummings
rejoined that this information was erroneous inasmuch as
he had arrived at the session a- half hour late, to which
Clark replied that "some of your friends must be lying on
you." Clark added that "If you need any favors, go to the
Union," and the dialogue was concluded with Clark's
statement that Cummings "was going to get a raise, but
since the Union came up and I was for it, I wasn't going
to get anything , and nobody wasn ' t going to get nothing
until after all of this is over with. And that he wasn't
going to waste his time on August Lewis ." Neither
Cummings nor Lewis received wage increases in their
March 14 paychecks.
During his testimony , Clark did not deny questioning
Cummings about the Union meeting or about his Union
inclinations . Nor did he deny telling Cummings that the
former knew that Cummings was a Union activist on the
night crew and that employee Lewis occupied the same
role during the day shift Moreover , Cummings'
averments stand uncontradicted that Clark stated he had
learned from two employees that Cummings had directed
the Union meeting
Employee Matthew Young joined the Union and went
to the March 11 meeting He testified that, a day or two
after this convocation , he was at work when Clark
approached and inquired whether Young had received two
telephone messages that day which had been attached to
his time card. After Young acknowledged their receipt,
Clark asked, "Are you having any problems9" When
Young replied in the negative, Clark posed the query,
"Are you going to a meeting9" Young expressed
puzzlement at this remark , stating "I don ' t know nothing
about no meeting." Whereupon , Clark smiled and broke
off the discussion
Clark recalled the foregoing conversation with Young.
According to Clark, it was customary for the office
employees to receive personal telephone calls for the
warehousemen and, to insure that the men received the
messages , they were appended to the time cards. On the
date in question , Clark was aware that Young had been
called twice and, spying Young outside his office, Clark
asked whether Young had gotten the messages. When
Young replied in the affirmative, Clark inquired, "Have
you any problems." This inquiry, according to Clark, was
prompted by the fact that "the boy had had problems
with the Police and so forth " Young assured Clark that
all was well Upon being asked whether he queried Young
about attending a Union meeting, Clark responded that "I
might have mentioned `Are you going to a meeting
tonight?' " However, Clark then stated that the query,
although having reference to a Union meeting, was not
put in a serious vein and that "I was laughing all the
time."
It is undisputed and I find that, on March 12, Clark
told Holly that the former had learned of a Union
meeting on the previous evening and interrogated Holly as
to whether he had any information concerning it. It is also
uncontroverted and I find that, on March 12, Clark
interrogated employees Hill and Cummings, and on
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 13 or 14, Young, as to whether they had attended
the Union gathering of March II Moreover, by his own
admission , Clark questioned other employees along the
same lines . The complaint alleges and I conclude that this
interrogation was coercive in the context of Respondent's
entire course of conduct in the proceeding, and I conclude
that Respondent thereby violated Section 8(a)(1) of the
Statute.
Hill testified that, after Clark expressed his chagrin
during their March 12 conversation over his employees'
desire for Union representation, the latter cautioned that
Respondent would henceforth withhold financial assistance
for employees' personal needs Cummings testified in a
similar vein. During his examination, Clark initially
denied that he had uttered such a statement. He then
allowed as how "the only statements I made was that in
the past I have been able to lend money out of my own
pocket. I don't know what will happen now." However,
Clark failed to illuminate this record with any cogent or
reasonable explanation as to why the well of Respondent's
largesse would suddenly run dry after years of affording
loans to the men. The testimony of Hill and Cummings
was given in a forthright and sincere manner and I credit
it on this score. I therefore find that, on March 12, Clark
warned these employees that they would be deprived of
company loans if they cast their lot with the Union and
that Respondent thereby offended the provisions of
Section 8(a)(1).
The testimony of Cummings is uncontradicted and I
find that, in his discussion with Clark on March 12, Clark
told Cummings that he knew that the latter was the most
active Union supporter on the night shift and that another
employee played the same role on the day crew, and he
further knew that Cummings assisted in running the
Union meeting on March 11. It is also undenied and I
find that on the same date, Clark informed Hill that the
former knew Hill had attended the March II meeting. By
this conduct, I conclude that Respondent created the
impression that the Union activities of its employees had
been placed under surveillance and that, in consequence,
Respondent intruded upon the rights of its employees
protected under Section 8(a)(I).
Hill also testified that, after he informed Clark in their
March 12 discussion that he would support the Union if
his fellow employees chose to do so, Clark remarked that
he "was going to give me a raise, but he wasn't sure. He
had to wait and see." Cummings testimonially related
that, when he told Clark that he and the other men were
"trying to get a little Union goir.g," and after Clark had
accused Cummings and Lewis of being the chief Union
instigators in the warehouse, Clark retorted that
Cummings "was going to get a raise, but since the Union
came up and I was for it, I wasn't going to get anything,
and nobody wasn't going to get nothing until after all of
this is over with. And he wasn't going to waste his time
on August Lewis." Moreover, Holly averred that, on
March 12, Clark promised to increase the former's hourly
wage from $1.65 to $1.75 if Holly spied upon his fellow
employees' Union activities for Respondent. While Clark
entered a general denial that he had threatened to
withhold economic benefits, such as wage increases,
during the interrogations which he conducted on March
12, or that he had promised escalated wage rates to
employees if they participated in acts of espionage for
Respondent, I do not credit his denials
Clark admittedly was concerned by the incursions
which the Union was making among his employees and he
interrogated each of them in order to assess the Union's
strength on March 12. With respect to Holly, this
employee's testimony stands undenied that Clark asked
him whether he had any information concerning the
Union meeting of March 11. Moreover, Respondent's own
exhibit shows that Holly did, indeed, receive a raise of 10
cents per hour in his paycheck on March 14 in spite of the
fact that, by his own admission, Clark had been instructed
by counsel, either on the evening of March 12 or the
morning of March 13, that "from now on there would be
no raises until we know what's going on." Regarding
Cummings, whom Clark suspected of being the main
Union supporter on his shift, the record shows that, true
to Clark's prediction, Cummings was not awarded a merit
increase on March 14 although Clark provided no reason
for this happenstance Nor did Fontanille Finally,
Fontanelle and Clark admittedly made it a practice to
consult with each other concerning wage policies and
Fontanille was contacted on two occasions by Clark on
March 12 from whom he received information and
instructions about the Union's organizational efforts In
view of the fact that Fontanille concededly told Hill and
other employees that wage benefits would be withheld
because of the advent of the Union, I find Hill's testimony
both reasonable and persuasive that he was told by Clark
on the same day that Respondent might deny a wage
increase to him because of the Union
In sum, I credit the testimony of Hill, Cummings, and
Holly and find that, on March 12, in separate interviews
with them, Clark threatened to deprive Hill of a wage
increase because the latter had espoused the Union's
cause, and Clark fulfilled his threat with respect to
Cummings by withholding a pay raise because he believed
that Cummings was the most active Union supporter on
his shift By these threats, I conclude that Respondent
violated Section 8(a)(1) of the Act. I also find that, on
March 12, Clark promised Holly an hourly wage increase
of 10 cents in the hope that he would spy on the Union
activities of his fellow workers. I therefore conclude that
Respondent thereby violated Section 8(a)(1)
In his pleadings, the General Counsel asserts that
Respondent violated Section 8(a)(1) by threatening
employees with the loss of Christmas bonuses and profit
sharing funds due to their Union inclinations. The only
testimony relating to this allegation came from the mouth
of employee Holly He related that, after Clark inquired
about his attendance at and knowledge of the Union
meeting, Clark proceeded to enumerate the fringe benefits
which Respondent afforded to the warehouse complement.
So far as this record stands, there is nothing in Clark's
testimony, either express or implied, which evinces any
threat to deprive the employees of those benefits in the
event that they joined or supported the Union. Nor has
the General Counsel come forth with any probative
evidence supportive of this allegation. I shall therefore
dismiss the complaint insofar as it alleges that Respondent
violated the Act in this regard."
"During his examination , Hall was questioned about Respondent's
policy of permitting employees to purchase liquor at wholesale prices Hall
testified that , each Friday morning, employees who desired to buy liquor
would so inform the cashier who would then prepare a purchase order
billed in the name of an established , wholesale customer The reason for
this procedure was that Respondent, as a wholesale liquor merchant, could
not lawfully vend its merchandise to employees at the wholesale figure
Hall claimed that Clark was aware of Respondent 's policy in this regard,
and that this benefit was curtailed when the Union commenced its
organizational campaign at the warehouse In his testimony , Clark averred
without contradiction that the sale of alcoholic beverages at wholesale to
other than retailers was strictly prohibited by State law Clark remembered
GLAZER WHOLESALE DRUG COMPANY 309
Warehouse Foreman Fontanille, who immediately
supervises the 21 employees engaged at Respondent's
warehouse, normally reports for work at 11 a m., some 5
hours after Manager Clark assumes his duties Fontanille
testified and I find that he first learned of the Union's
attempt to enlist the collective support of Respondent's
employees early on the morning of March 12 when he
received a telephone call from Clark who related that a
Union meeting had been convened on the previous night
Clark inquired whether Fontanille was aware of the
Union's efforts at the installation. Fontanille expressed
ignorance Clark then put Fontanille on notice that "they
[the employees] are trying to start a Union." Later that
day, Fontanille met with Clark and received additional
information concerning the Union's drive This
intelligence prompted Fontanille to summon each
employee under his command for a personal interview on
March 12 because, in Fontanille's words, he "wanted to
know if they disliked me." Although Fontanille claimed
that he was in no rush to canvass his employees'
sentiments, he confessed that he felt impelled to sound
them out immediately after he heard that they had
attended the Union meeting because, according to his
narrative, "frankly, I wouldn't want to get tied down with
[a union] myself."
The content of Fontanille's interviews was related by
employees Holly, Hall, Hill, Cummings and Young during
their visits to the stand. Holly recounted that, about 2
p.m on March 12, Fontanille beckoned him to the office
where Fontanille began the discussion by asking, "I have
always treated you right, haven't I, Holly9" Holly replied
that this was so, and Fontanille continued, "I've never
pushed you, have I, Holly9" Holly again agreed with
Fontanille's observation. Fontanille broke off the
conversation with the comment that "I get nervous at
times . but when I was in the Army I had a lot of
colored friends (all of the employees who attended the
March 11 meeting were Negroes). That's all I wanted to
know, Holly, you can go "
Hall recited that, as he was on his way to the front
office on March 12, Fontanille instructed him to proceed
to a small office in the warehouse. Behind closed doors,
his supervisor confided that he knew that a number of his
employees had attended the Union gathering the night
before, and expressed the view that Hall would prosper
more without Union representation because of the
excessive levy of Union dues Fontanille thereupon asked
whether Hall had signed a Union authorization card. Hall
admitted that he had, at which point Fontanille inquired
whether Hall had attended the Union meeting of March
11. Hall confessed that he had been in attendance. This
evoked Fontanille's response that "at least you are honest
about it, the rest of these guys that we know went to the
that, on some undefined date while an employee was in the process of
placing an order for himself , Clark became aware of this practice for the
first time and summarily eliminated it At the hearing, the General
Counsel urged that the purchase of liquor at wholesale prices from
Respondent was an economic benefit of which the employees were deprived
once Respondent learned of their Union proclivities , and that Respondent
violated Section 8(aXi) by curbing this practice When the undersigned
Trial Examiner inquired whether, assuming Respondent ' s motivation In
withdrawing the benefit was bottomed on Statutory discrimination, I
should fashion a remedial order directing Respondent to perpetuate an
undeniably unlawful policy, the General Counsel deferred response for his
brief. Those advocative papers are silent on the issue In view of the
violations of Section 8(axl) which I have otherwise found in this Decision,
I deem it unnecessary to erect a mound over what is essentially an
ant-hole I therefore make no findings and draw no conclusions regarding
this issue
meeting, that we know signed a card, lied and said that
they didn't . we know exactly who went to the
meeting, exactly who signed a card, exactly who was
going to sign cards " Fontanille pressed Hall as to
whether his decision to join the Union was due to his
dissatisfaction with Fontanille's and Respondent's
treatment of Hall. The latter replied that his sole purpose
in seeking a collective bargaining agent was to achieve
better wages. Fontanille advised Hall that, during the
previous week, he and Clark had devoted countless hours
to determine the amount of wage hikes to afford all
employees, and a judgment was made to raise the rates of
various men from 5 cents an hour to as much as 20 cents.
Fontanille noted, however, that because "now that you
guys want to put a Union in," only three employees would
be granted a pay raise, and he proceeded to name the
putative recipients Hall asked whether he was in line for
an increase. Fontanille replied that he was uncertain of
what Clark's decision with respect to Hall would be, but
added that "he doubted whether or not I [Hall] was going
to get a raise " Finally, Fontanille told Hall that
Respondent "was going to cut the guys loose, that they
figured they could do without." When asked to expand
upon his understanding of Fontanille's statement, Hall
replied, "there's only one way you can take that; in other
words, the fellows, like I say the fellows, what he meant
was the fellows at the Company they figured they could
do without, or the fellows they couldn't use, they were
going to let them go."
Continuing the testimonial recitation regarding
Fontanille's preelection activities, employee Hill averred
that, on March 12, he entered into a conversation with
Fontanille in the latter's office. According to Hill,
Fontanille complained that he and Clark had been
"breaking their necks" for the past 2 weeks in an attempt
to obtain extra wages for the men and, despite these
efforts, "we [the employees] had pulled the Union over
him." Fontanille commented that "he didn't know what
he was going to do" about the raises in light of the
current Union activities of his employees. Fontanille
inquired whether Hill had signed a Union authorization
card or had attended the Union meeting on March 11.
Hill answered both queries in the negative. This response
drew an expression of incredulity from Fontanille
In line with Fontanille's admitted curiosity about his
employees' efforts in support of the Union, Cummings
testified that he was summoned to the former's office
about 11 a m. on March 12 where Fontanille stated,
"Mike [Cummings], I know you're not going to lie to me.
I know you was at the meeting last night, and I know you
are on a night crew, and are for the Union, and there's
one on the day crew that's pushing it up" Cummings
acknowledged that he had attended the meeting.
Fontanille remarked, "I just want to ask you a simple
question. Are you for the Union?" Cummings replied, "if
the rest of the guys are for it, yes." Not satisfied with this
explanation, Fontanille repeated his question and prodded
Cummings about the reasons for his Union adherence,
expressing the belief that Cummings and his cohorts might
be at odds with Fontanille as a supervisor When
Cummings assured his superior that it was money, not
personalities, which prompted the employees to support
the Union's election drive, Fontanille retorted that, "it
didn't make any sense for us to have a Union because he
was talking to the men, he was trying to get all of us a
raise. . . . now he wasn't gonna do anything for us because
of this Union." Fontanille reiterated that all employees
had been programmed for a wage increase, and he showed
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cummings a slip of paper setting forth the amount of the
planned raise for the witness. However, Fontanille
apprised Cummings that "he [Fontanille] wasn't going to
give me nothing," that "he wasn't going to give me a raise
because of this Union because I was for it "
Fontanille concluded the colloquy by again reminding
Cummings that Respondent was aware that he was an
active participant in the Union campaign because several
employees had reported to him that Cummings was
"pushing up the Union stuff" and "was passing out
cards."
Matthew Young testified that he was called into
Fontanille's office late in the afternoon of March 12
where he was reminded by his supervisor at the outset of
their conversation that the witness had been in jail and
that Respondent had used its good offices to obtain his
release. Fontanille asked whether Young was displeased
with his treatment by the supervisor Young replied that
he harbored no complaints against Fontanille Fontanille
thereupon inquired whether Young had attended a Union
meeting and whether he had received a letter from that
labor organization inviting him to do so. Young confessed
that he had not. Fontanille rejoined, "Oh, Matthew, don't
lie to me." The conversation then ended.
As a witness, Fontanelle readily admitted that he had
interrogated each and everyone of his employees
concerning their attendance at the Union meeting on
March l 1 when he interviewed them on the following day.
On direct examination by Respondent's counsel,
Fontanelle denied that he had threatened any employee
with discharge on March 12 for belonging to or
supporting the Union, denied that he offered any
employee a salary increase if they agreed to inform him of
what transpired at Union meetings, and denied that he
threatened any employee with loss of company loans,
Christmas bonuses, or profit sharing, if they selected the
Union as their bargaining representative. When asked by
his counsel whether he told the men during his
conversations with them that they would not receive any
wage increases due to their Union activities, Fontanelle
replied that "I told them everything was slow. We
couldn't approach them with any raises or anything after
we were notified about the Union," and he added that he
told them that "while we were negotiating we could not
have any salary increases "
On cross examination, Fontanille repeated that he
mentioned to the employees on March 12 that "there
would be no salary increases while [Respondent] was
negotiating " He went on to relate that "When we were
notified, I was told not to approach any employees or
anything. Some of them come asked for their raise and I
told them there wasn't a thing I could do about it." He
continued that "We were notified, I believe, that we
weren't supposed to show any enticement to get the
employees on our side of the voting." Upon being asked
when he was first notified of this policy, Fontanille replied
"it was some day after March 12th, a few days after,"
and finally conceded that, in light of this chronology, he
could not have received any instructions concerning the
mention of wage increases when he interviewed the
employees on March 12.
I do not credit Fontanille's testimony in this or any
other regard for, not only did he impress me as lacking in
testimonial candor, but also because his sworn words ring
with the sound of implausibility. For example, while on
the stand, he embarked upon a summarization of
Respondent's policy regarding the grant of wage increases.
According to Fontanille, he and Clark made it a practice
of communing semi-annually to decide which employees
merited raises and in what amounts. Clark normally
accepted Fontanille's evaluation of the employees and the
latter would consequently notify them of their award.
Under usual circumstances, the latest evaluation would
have occurred in January but, because of a combination of
circumstances involving Clark's absence from the city, the
supervisors did not convene until February 20 at which
time wage awards were determined for certain workers.
Fontanille testified that, when increases are decided upon,
he personally summons the affected employees to his
office to inform them of the raises. Fontanelle stated that
he was positive he followed this procedure and summoned
the meritorious employees to his office on February 20 to
announce the wage awards, and he was equally certain
that the pay raises appeared in the checks which the men
received on March 7. In light of this testimony, I find it
implausible and indeed incongruous that Fontanille would
have felt called upon on March 12 to advise his employees
that they would not receive wage increases on or after the
latter date if, in fact, that increment had been granted to
them 5 days earlier. Moreover, the implausible nature of
his testimony is heightened by the uncontroverted
testimony in this record, as buttressed by the words of
Clark, that certain non-Union as well as Union employees
received pay increases which were reflected in checks
which they received on March 14.
I find that, on March 12, Fontanelle interviewed each
and every available employee and asked them whether
they had attended the Union meeting on March 11. I
further find that, on this date, he told Hall that he was
aware of the names of all employees who had appeared at
the meeting and who had signed Union authorization
cards, and Fontanille inquired whether Hall had gone to
the Union convocation and had executed an authorization
card. I also find that, during their conversation, Fontanille
threatened that the Respondent would grant only a limited
number of pay increases because the men "want to put a
Union in," and warned that Hall might not be one of the
recipients because of his Union adherence. Additionally, I
find that Fontanelle uttered the threat that the company
would rid itself of certain employees and, when viewed in
the context of Fontanille's general dialogue with Hall, I
find that Hall was reasonably led to believe that
Fontanille had in mind the Union supporters.
Based upon Hill's credited testimony, I find that, in his
conversation with Fontanille on March 12, the latter
interrogated Hill as to whether he had attended the Union
meeting on the preceding day and whether he had signed a
Union card. I also find that Fontanille threatened to
withhold pay increases due to the fact that the employees
"had pulled the Union over him." I credit the testimony
of Cummings and find that, during his colloquy with
Fontanille on the aforementioned date, Fontanille reported
that he knew that Cummings was the foremost Union
advocate on the night crew and that he was aware of the
identity of the Union's champion on the day shift, and
Fontanille inquired whether Cummings favored the Union.
I find that, when Cummings expressed sympathy for
collective representation, Fontanelle warned Cummings
that he would not receive a merit increase because "I
[Cummings] was for" the Union. Finally, I credit the
testimony of Young and find that, on March 12,
Fontanille asked whether he had been to the Union
meeting and whether he had received a letter from that
organization inviting him to that gathering. By
Fontanille's conduct, as chronicled above, I conclude that
Respondent violated Section 8(a)(1) of the Act.
GLAZER WHOLESALE DRUG COMPANY 311
There remains for decision a final allegation in the
complaint aimed at Fontanille. It is undisputed and I find
that, for approximately 6 to 8 months prior to the Union's
campaign, Respondent made available work uniforms for
those men who desired them through contract with an
industrial laundry. This arrangement was initially devised
in conversations between Clark and Fontanille , and seven
of the employees, including Hall, Hill and Cummings,
decided to participate in the program. Clark believed that
it would be advisable to "make the boys part of it" by
bearing $1 of the weekly $3.40 charge Accordingly, each
employee who subscribed to the laundry plan suffered a
deduction of $1 from his paycheck each Friday when he
visited the cashier 's table.
Hill testified that the employees were required to wear
uniforms but that the majority of the employees declined
to do so Around the end of March, Fontanille
approached him to report that the $1 charge would no
longer be assessed against the employees who had chosen
the service , stating that "he was going to stop letting us
pay the dollar a week for uniforms, because they didn't
have enough getting them, and he said they were going to
pay themselves." Hall related that, after either the first
Union meeting on March 11, or the second held on
March 16, Respondent stopped deducting the $1 tariff
from his paycheck without his prior notification
Cummings recounted that Respondent's cashier ceased
making the deduction about 2 weeks after the
commencement of the Union campaign.
In his testimony , Fontanille insisted that the decision to
eliminate the laundry charge was reached jointly with
Clark on February 20 when they arrived at a consensus
with regard to the grant of wage raises and, like the pay
increases , the elimination of the laundry impost took
effect on March 7, before either Clark or he had become
aware of the Union's presence I do not credit Fontanille's
testimonial assertion on this issue, mainly because it lacks
firm support from the utterances of Clark and smacks of
contrivance. Clark initially claimed that he had had a
discussion with Fontanille in February about the
elimination of the laundry charge and that their decision
to assume the cost was reflected in the men's paychecks of
March 7 Clark explained that their reason for pursuing
this course of action was occasioned by the circumstance
that "It got to be so much a burden on the cashier, that I
said, [Fontanille], let's just cut it out. We'll just take up
- eat the whole ball of wax at the same time maybe all
the fellows will be in uniforms and everything will be for
the better," a chant which Fontanille also refrained by
stating that it was "too much book work for the cashier "
However, when pressed on cross-examination as to the
precise date on which the tariff was eliminated, Clark
allowed as how it might have been on March 14.
I am not convinced that Respondent added the
emolument of $1 to the paychecks of 7 of his 21
employees because of any enlarged administrative duties
imposed upon the cashier, nor am I persuaded that this
beneficence occurred prior to Respondent's knowledge
that the Union was beating at the warehouse doors. The
cashier's burden had existed for some 6 to 8 months
without any evident complaint Clark himself conceded
that the assumption of the cost of laundry charges may
have been undertaken on March 14, after he and
Fontanille had learned of the Union ' s drive I am
therefore persuaded and find that Respondent decided to
and did advance an economic benefit to its employees by
taking over the entire cost of the laundry service after it
became aware of their adherence to the Union, not
because of business considerations, but in order to cause
their defection from its ranks. By so doing, I conclude
that it violated Section 8(a)(1) of the Act.
D. The Alleged Improprieties of Sam Clark on June
17 and June 18
It is undisputed and I find that, a few weeks after the
election, Respondent's employees learned that the Union
had filed Objections with the Board to overturn the results
of the balloting and obtain another vote Employee Hall
testified without contradiction and I find that he and
several fellow employees visited the Union's offices on
approximately three occasions in an abortive attempt to
induce Union President Lanier to withdraw his Objections
and permit the election results to stand. However,
Cummings and another employee managed to reach
Lanier and the latter informed the men that he intended
to press the Union's Objections because "he didn't want
no bad name in there saying that he quit on us, to make it
look like he quit it." Lanier added that "he's going to
fight it to the finish, whatever way it goes whether he wins
or loses" and that "he wasn't going to drop it even if you
[the employees] wanted it dropped "
Following this rebuff, I find that Hall was approached
by employee Michael Pickett on June 17 and a discussion
ensued regarding the Union's persistence in its search for
another election Pickett suggested that they draft a
petition for signature by all employees in the unit
signifying that they did not desire that the Union press the
Objections which it had filed. Hall, who had been one of
the most active supporters of that labor organization,
readily agreed to this course of action and he proceeded to
draw up such a petition which was typed by a secretary in
Manager Clark's office. The secretary cautioned the two
men not to bring her activities to the attention of Clark,
and I find that Clark was unaware that the services of his
secretary had been utilized Thereupon, Hall and Pickett
obtained the signatures of all warehousemen who had
voted in the election, as well as the newly hired
employees When they met again on the morning of June
18, Pickett advised Hall that it might be desirable to
notarize the document, and Pickett suggested that they
visit the offices of his attorney to have this ministerial act
performed However, prior to leaving the warehouse, and
according to Hall's testimony, the two men journeyed to
Clark's office where they informed Clark of their intended
legal mission. Clark explained to Hall and Pickett that
"he could have nothing to do with this, wouldn't have
nothing to say about it, because of the position he was in,
you know, he could not talk to us, he couldn't do nothing
for us. But he did say if he could, he would pay for us to
have it notarized, and he would send us to a lawyer if he
could but he couldn't do nothing for us. In other words,
what we had to do, we had to do it on our own." It is
Hall's further testimony that their conversation with Clark
occurred on company time and, as they were about to
leave for the attorney's office at about 10 a.m., Clark
"told us we could take time off and we could go and have
it [the petition] notarized " In consequence of Clark's
instructions, and without clocking out, Hall and Pickett
drove to the lawyer's office where the petition was sworn
to. They then proceeded to deliver copies of the document
to the General Counsel and the Union When they
returned to the warehouse at approximately 1 or 2 p.m
on June 18, they presented a copy to Clark. It is
undisputed and I find that these employees were
compensated by Respondent for the time spent while they
312 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absented themselves from company premises during
working hours It is also undisputed and I find that each
employee who became a signatory to the petition did so
voluntarily, without any encouragement or assistance by
Respondent's officials or agents
Clark's version of the events surrounding the drafting,
signing and notarization of the petition goes as follows. At
I 1 a m. on June 17 while he was holding a meeting in his
office with some wholesale liquor dealers, Hall and
Pickett appeared at his door and beckoned to him.
Outside, they confided that they had an important
message for Clark and, despite his protestations that he
was busy, he granted them an audience . Thereupon, the
employees unfolded' the petition to him Clark's first
reaction was to inform the men that " I don't want to have
no part of anything like this. I cannot . I am bound not to
have any part of it ." Hall and Pickett inquired whether it
was permissible to take this action in ridding themselves
of the Union, to which Clark replied that he could not
offer them any "advice whatsoever about it." At this time,
the petition did not bear any of the employees' signatures.
Clark denied that he was aware that his secretary had
typed the document for Hall and Pickett until he was so
apprised by the men , as a result of which he thereafter
verbally reprimanded the lady, and I so find. He also
denied that he knew that Hall and Pickett had obtained
the signatures on company time and , for want of any
evidence to the contrary, I further so find.
Clark also testified that , on the morning of June 18, he
received another visit from Hall and Pickett at which time
they showed him the petition which bore the signatures of
his employees . The emissaries told Clark of their intention
to proceed to Pickett's attorney and have the petition
notarized, to which Clark responded that "I did not want
any part of it whatsoever." Clark acknowledged that the
employees informed him that they were about to leave the
warehouse during working time to have the document
legally witnessed . However , he claimed that he was
ignorant of the fact that they had failed to-clock out
before they left, or clock in when they returned. Clark
conceded , however, that , according to Respondent's
personnel policies, employees "are supposed to" clock out
when they leave the premises on private business, but he
claimed that he did not personally investigate whether this
procedure was followed on that occasion because "I have
enough to do besides that " Clark then added that "I
never tell them [the employees] please to check out."
I do not credit Clark's testimony that he was unaware
that Hall and Pickett departed the warehouse on June 18
to formalize a petition to remove the Union from the
scene or that he did not know that they were paid for the
time so spent , because his testimony and that of
Warehouse Manager Fontanille , his lieutenant, do not
hang together . Fontanille testified that he left for a
vacation in Las Vegas on June 15 and did not return until
after the episode regarding the petition had been
concluded . During his absence , an individual named
Raymond Helmesteader performed Fontanille 's duties and
assumed his responsibilities , acting under the direct
supervision of Clark. In his testimony , Fontanille recited
that it was normal operating procedure, whenever an
employee desired time off, for the worker to seek
permission from Fontanille before leaving his job.
Fontanille would thereupon clear the absence with Clark
and the former would later monitor the absentee's
timecard to determine whether he had properly checked
out and in and to certify the proper amount of wages due
the employee as a result of his absence . Fontanille,
candidly admitted that , while he was on vacation during
the salient period, employees were required to notify,
Fontanille ' s substitute , Helmesteader , of an intended;
absence and that the latter would in turn apprise Clark of,-
that absence. Moreover , Fontanille confessed that his,,
substitute was fully cognizant of this procedure . In light of
Fontanille ' s testimonial averments in this regard , as well
as Clark' s acknowledgement that when his underling was
away from the warehouse Helmesteader "was sort in,-,
-charge, but he had no right to do anything without my- r
knowledge," I deem it inconceivable that Clark could
have been ignorant of the fact that Hall and Pickett had
left the premises during working hours on June 18 in
pursuit of their goal to notarize a petition which had as its
object the removal of the Union as a burr under
Respondent 's saddle, and I am convinced and find that
these men were knowingly paid by Clark for their leave of
absence while they embarked upon this venture.
In his complaint , as amended at the hearing, the
General Counsel urged that Clark, by the foregoing
conduct, encouraged and assisted his employees in the
solicitation , circularization and formalization of an
anti- Union petition with the calculated aim of causing his
work force to abandon the Union and of forestalling the
further processing of the Union's Objections to the
election, all in violation of Section 8(a)(1) of the Act As I
have heretofore found, Clark had no knowledge of, and
played no part in, the initial formulation and distribution
of the petition. I have found, however, that he permitted
Hall and Pickett to absent themselves from the warehouse
during work time in order to have the denunciatory
document notarized, and that he compensated them for
the productive time thus lost. This condescension, if
viewed in isolation , might normally be considered a
harmless error on Respondent's part which would not
demand an affirmative finding of illegality or require a
companion remedial order But, when considered against
the backdrop of the series of unfair labor practices in
which Clark and Fontanille otherwise engaged , I am not
convinced that this activity should be disregarded.
Accordingly, I conclude that, by allowing these employees
to leave Respondent ' s installation during working hours to
notarize the petition, and by compensating them for the
time spent on this junket , Respondent encouraged and
assisted them in the formalization of the petition which
was aimed at stunting the Union's organizational
endeavors , and that Respondent violated Section 8(a)(1)
by so doing."
Despite the commission of the foregoing unfair labor
practices , Respondent urges that a new election should not
be directed because, during the period between the filing
of the election petition on March 12 and the holding of
the vote on May 14, Respondent did nothing to impede
the electors' choice. Additionally, Respondent contends
that, as a result of the defection of all eligible voters from
the Union ' s ranks, as evidenced by the document which.
they signed on June 17, a second balloting would be
unwarranted. While it is true, as I have found, that-
Respondent stayed its hand in committing labor practices
prohibited by the Act between the critical dates, and
although it appears that all of the potential voters may
have fallen out of sympathy with the Union by their
actions on June 17, I am unable to determine , based upon
this record, whether or not Respondent 's earlier unlawful
conduct had any pervasive influence upon their defection.
"See Cumberland Shoe Company , 160 NLRB 1256
GLAZER WHOLESALE DRUG COMPANY'
In my opinion, the only sure test of the employees'
allegiance can best be measured by another secret ballot.
In this connection, it may be that the Regional Director
for the Region in which these cases arose might be
persuaded that, after the appropriate posting period, the
conduct of a second election would be administratively
inadvisable.
I therefore find no merit in Respondent's contention
I have heretofore found and concluded that Respondent
indulged in a series of acts and conduct designed to
interfere with, restrain, and coerce its employees in their
exercise of rights guaranteed under Section 7 of the
Statute and, by so doing, thereby created an atmosphere
which made it impossible for its employees to express
their free choice in the election which was held on May
14. I shall therefore recommend that, in addition to
ordering Respondent to refrain from engaging in any like
or related unfair labor practices found herein, the election
be nullified and that another election be conducted at such
time as the Regional Director for Region 15 deems it
appropriate
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
'Having found,that Respondent violated Section 8(a)(1)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I have also found that
Respondent, by the commission of unfair labor practices
proscribed by the Act, thereby engaged in objectionable
conduct which interfered with the election held on May
14 I shall therefore recommend that said election be set
aside and another be conducted at such time as may be
appropriate
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this proceeding,
I make the following:
CONCLUSIONS OF LAW
1 Respondent 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 interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the purview of Section 8(a)(1)
of the Act.
4. By the aforesaid unfair labor practices, Respondent
has interfered with and illegally affected the results of the
Board election held on May 14, 1969.
5. The aforesaid conduct constitutes conduct affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
313
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section ,10(c) of the National Labor Relations
Act, as amended, I recommend that Respondent, Glazer
Wholesale Drug Company of New Orleans, Inc , New
Orleans, Louisiana, its officers, agents, successors and
assigns, shall.
1. Cease and desist from.
(a) Coercively interrogating its employees concerning
their Union sympathies and their attendance at Union
meetings, as well as the attendance of their fellow
employees at such gatherings, and coercively questioning
employees as to whether they had executed authorization
cards on behalf of the Union and whether they and their
cohorts favored representation by that labor organization
(b) Creating the impression that it had, under
surveillance the Union activities of its employees by
informing them that it was aware of their attendance at
Union meetings, that it knew that certain employees were
the prime supporters of that labor organization on their
respective work shifts; and, that it had been apprised of
the names of employees who had signed Union
authorization cards
(c) Questioning employees as to whether they had
received invitations to attend Union meetings
(d) Threatening employees that it would withhold
periodic merit wage increases because they supported and
assisted the Union '
(e) Threatening employees that personal loans would no
longer be available to them if they selected the Union as
their collective-bargaining representative.
(f) Threatening employees that Union adherents would
be discharged in the event the Union obtained exclusive
representative status at its warehouse
(g) Promising economic benefits to employees for
informing upon the Union activities of their fellow
employees.
(h) Compensating employees for laundry services in
order to induce them to reject the' Union as their
collective-bargaining agent.
(i) Encouraging and assisting employees in the
formalization of a petition designed to impede the Union's
representational efforts, by compensating them for time
lost from work while accomplishing this deed.
(,l) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist the Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities
2 Take the following affirmative action which I find is
necessary to effectuate the policies of the Act.
(a) Post at its warehouse in New Orleans, Louisiana,
copies of the attached notice marked "Appendix "
Copies of said notice, to be furnished by the Regional
Director for Region 15, shall, after being duly signed by a
representative of Respondent, be posted and maintained
I '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, recommendations , 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
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material
(b) Notify the Regional Director for Region 15, in
writing, what steps Respondent has taken to comply
therewith."
IT IS FURTHER RECOMMENDED that the election
conducted in the appropriate unit of Respondent's
employees on May 14, 1969, be set aside, and that
another election be directed at an appropriate time
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein
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 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,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT interrogate our employees concerning
their activities on behalf of Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO,
Local P591, or any other labor organization, in a
manner constituting interference, restraint, or coercion
within the meaning of Section 8(a)(1) of the National
Labor Relations Act, as amended.
WE WILL NOT ask our employees questions about
their attendance at Union meetings, or the attendance
of their fellow workers at these meetings.
WE WILL NOT question our employees about whether
they signed Union authorization cards or whether the
other men in our warehouse signed these cards.
WE WILL NOT make our employees believe that we
are spying on their Union activities by telling them that
we know who went to Union meetings, that we know
who the main supporters of the Union are, or that we
know which employees signed Union cards.
WE WILL NOT ask our employees if they received
letters from the Union inviting them to come to Union
meetings
WE WILL NOT threaten or warn our warehousemen
that they will not receive merit wage increases if they
join or help the Union in winning an election at our
warehouse
WE WILL NOT threaten or warn our men that we will
not give them any personal loans if they join or vote for
the Union in a National Labor Relations Board
election
WE WILL NOT threaten or warn our employees that
any of them will be fired if they join, help, or vote for
the Union
WE WILL NOT promise any employee a pay raise for
informing us about his fellow employees' Union feelings
or their attendance at Union meetings.
WE WILL NOT pay any man for the cleaning of his
uniform in order to get him to quit the Union or vote
against it.
WE WILL NOT pay any employee when he leaves the
warehouse on company time to go to a lawyer, or any
other person, to have a petition notarized to shuck the
Union or any other labor union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
Dated By
GLAZER WHOLESALE
DRUG COMPANY OF NEW
ORLEANS, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this Notice or compliance
with its provisions, may be directed to the Board's Office,
T6024 Federal Building (Loyola), 701 Loyola Avenue,
New Orleans, Louisiana 70113, Telephone 504-527-6361