Heck's, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 674 (N.L.R.B. 1967)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heck 's, Inc. and Chauffeurs , Teamsters and Helpers
Local Union No. 175 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Cases 9-CA-3356 and 3477
June 30, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearings and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Supplemental Deci-
sion, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer, as modified.'
On November 30, 1965, Trial Examiner Thomas
F. Maher issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint
and recommended dismissal of these allegations.
Thereafter, the General Counsel filed limited ex-
ceptions to the Trial Examiner's Decision with a
supporting brief, and Respondent filed limited ex-
ceptions.
On March 23, 1966, the Board entered an order
reopening the record and remanding the proceeding
to the Regional Director for further hearing before
the Trial Examiner to receive evidence from the
parties concerning the nature and appropriateness
of the bargaining unit , the majority status of the
Union, and the alleged refusal of the Respondent to
bargain with it.
On March 28, 1967, the Trial Examiner issued
his Supplemental Decision, in which, on the basis
of the evidence adduced at the reopened hearing, he
found that Respondent had engaged in certain un-
fair labor practices, and recommended that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Supplemental Decision. The Respondent filed ex-
ceptions to the Trial Examiner's Supplemental
Decision and a supporting 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
' Contrary to the Trial Examiner we find that during the period when
Ivan Vickers was employed at Respondent's Nitro store warehouse he
was not a supervisor Although nominally in charge of shipping. Vickers
worked under either Foy. the warehouse manages or Gialey, the assistant
warehouse manager his authority to direct other warehouse employees
was limited to using warehouse employees who were not otherwise occu-
pied to assist him In loading and unloading merchandise, Vickers worked
alongside the other employees with no authority to hire fire or discipline
Moreover, although Respondent 's policy was to pay its supervisors on a
salary rather than on an hourly basis up to I month prior to his leaving the
job for the Air Force Vickers was paid an hourly rate with no greater
benefits than those received by other warehouse employees Further, we
note that at the hearing, in response to a question as to who were the su-
ORDER2
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Heck's Inc., its officers, agents, successors, and as-
signs. shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concern-
ing their union membership, activities, or desires.
(b) Threatening their employees with reprisals
if they select the Union as their representative.
(c) Offering or granting their employees wage in-
creases and/or promotions in exchange for their op-
position to the Union.
(d) Discharging or otherwise discriminating
against employees in respect to hire and tenure of
employment for the purpose of discouraging union
membership or concerted activities.
(e) Refusing .to bargain with Chauffeurs, Team-
sters and Helpers Local Union No. 175, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive representative of employees in the following
appropriate unit:
All truckdrivers and warehouse employees, in-
cluding all pricers, at the Nitro, St. Albans, and
Charleston warehouses, excluding office clericals,
guards, professional employees, and supervisors as
defined in the Act, and all other employees.
(f) In any othet manner interfering with,
restraining, or coercing employees in the exercise
of their rights guaranteed them by Section 7 of the
Act
pervisors at the Nitro warehouse, Graley replied that they consisted of
himself and Foy, he failed to mention Vickers
The Trial Examiner inadvertently excluded employee James Goins
from the unit With the inclusion of Goins and Vickers, the bargaining unit
consisted of 26 rather than 24 employees on October 9, 1964, when the
Union sought recognition The record is corrected accordingly
The date October 12 in third paragraph of section E of the Trial Ex-
aminer 's Supplemental Decision is corrected to read October 13
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals, En-
forcing an Order "
166 NLRB No. 38
HECK'S, INC.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all Respondent's employees in the
unit found to be appropriate and, if an agreement is
reached, embody such an understanding in a signed
agreement.
(b) Offer James Goins immediate and full rein-
statement to his former or substantially equivalent
position, and make him whole for any losses he may
have suffered, together with 6 percent interest
thereon, in accordance with F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
(c) Notify James Goins if presently serving in
the Armed Forces of the United States of his right
to full reinstatement, upon application, in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available
to the Board and its agents, for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all
other records relevant and necessary to the deter-
mination of backpay due and the reinstatement pro-
vided under the terms of this Order.
(e) Post at its Nitro, St. Albans, and Charleston,
West Virginia, stores and warehouses, copies of the
attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional
Director for Region 9, shall, after being duly signed
by the Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify said Regional Director, in writing,
within 10 days from the date of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that so much of the com-
plaint in this proceeding as alleges unlawful dis-
crimination against Ivan Vickers, be, and it hereby
is, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT unlawfully interrogate our em-
ployees concerning their union membership,
activities, or desires.
675
WE WILL NOT threaten our employees with
reprisal for engaging in union activities or for
supporting Chauffeurs, Teamsters and Help-
ers Local Union No. 175, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other labor organization.
WE WILL NOT offer or grant our employees
wage increases and/or promotions in exchange
for opposition to the aforesaid Union.
WE WILL NOT discharge, or otherwise dis-
criminate against our employees in respect to
hire or tenure because they are leaders in the
aforesaid Union or have participated in con-
certed activities protected by Section 7 of the
National Labor Relations Act.
WE WILL offer to James Goins immediate
and full reinstatement to his former or substan-
tially equivalent position, and WE WILL make
him whole for any loss of pay he may have suf-
fered.
WE WILL notify James Goins, if presently
serving in the Armed Forces of the United
States, of his right to full reinstatement, upon
application, in accordance with the Selective
Service Act and the Universal Military Train-
ing and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL, upon request, bargain collectively
with Chauffeurs, Teamsters and Helpers Local
Union No. 175, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive represent-
atjve of all the employees in the bargaining
unit described below, concerning rates of pay,
wages, hours of employment, and other condi-
tions of employment, and, if an understanding
is reached, embody it in a signed agreement.
The bargaining unit is:
All truckdrivers and warehouse em-
ployees, including all pricers, at the Nitro,
St. Albans, and Charleston warehouses,
excluding office clericals, guards, profes-
sional employees, and supervisors as
defined in the Act, and all other em-
ployees.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of rights guaranteed them by Section
7 of the Act.
All of our employees are free to become or
refrain from becoming members of the
above-named Union, or any other labor organiza-
tion.
HECK'S INC.
(Employer)
676
Dated By
(Title)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Representative)
This notice must remain posted for 60 consecu-
tive days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Federal Office Building. Room 2407, 550
Main Street, Cincinnati, Ohio 45202. Telephone
6d4-3686.2
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner Upon a charge
and an amendment thereto filed on October 23 and
December 4, 1964, and a second charge filed on Februa-
ry 15, 1965, by Chauffeurs, Teamsters and Helpers
Local Union No 175, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, the Regional Director
for Region 9 of the National Labor Relations Board,
herein called the Board, issued a consolidated complaint
and an amendment thereto on behalf of the General
Counsel of the Board against Heck's, Inc., Respondent
herein, alleging violations of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended (29
U.S.C., Sec. 151, et seq.), herein called the Act. In its
duly filed answer Respondent, while admitting certain al-
legations of the complaint, denied the commission of any
unfair labor practice.
Pursuant to notice, a hearing was held before me on
June 28 and 29, 1965, at Charleston, West Virginia,
where all parties were represented by counsel and af-
forded full opportunity to be heard, to present oral argu-
ment, and to file briefs with me. Although the parties
were specifically invited to file briefs with me on the issue
of refusal to bargain presented herein, only Respondent
complied.
Upon consideration of the entire record, including
Respondent's brief, and upon my observation of each wit-
ness appearing before me, I make the following-
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1 THE BUSINESS OF THE RESPONDENT
Heck's, Inc., Respondent herein, is a West Virginia
corporation engaged in the retail sale of merchandise, in-
cluding ready-to-wear clothing, sporting goods, hardware,
household goods, toys, and cosmetics at various locations
in the States of Kentucky and West Virginia, including
Ashland, Kentucky, and Huntington. Parkersburg, Nitro,
St. Albans, and Charleston, West Virginia It is stipulated
that during the 12-month period ending in May 1965,
Respondent, in the course and conduct of its business
operations, had a gross volume of retail sales in excess of
$500,000, and purchased directly from points outside the
State of West Virginia and had shipped directly to it in
West Virginia goods and products valued in excess of
$50,000. Upon the foregoing I conclude and find that
Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act
11. THE LABOR ORGANIZATION INVOLVED
It is conceded and I, accordingly, conclude and find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ISSUES
I The discrimination against James Goins.
2 The supervisory status of Ivan Vickers.
3. The failure of Vickers to use due prudence in seek-
ing reinstatement.
4. Respondent 's threats to and interrogation of em-
ployees.
5 The failure of proof as to the appropriateness of the
bargaining unit.
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
I The union demand for recognition and Respondent's
refusal
in the Charleston, West Virginia, area, and specifically
in Charleston itself, and nearby Nitro and St. Albans,
Respondent operated discount department stores, each
with its own warehouse, separately supervised and
manned with its own distinct work force. Early in Oc-
tober 1964, some of these warehouse employees
developed an interest in the Union, sought out the
Union's business agent, Robert Jackson, and obtained
from him instructions on organizing the employees
together with a supply of blank authorization cards.
Prominent in this initial activity were employees James
E. Goins and Virgil R. Searls, and Ivan L. Vickers,
whose supervisory status is in issue By October 9, 13
cards authorizing the Union to represent them had been
signed by employees in the three warehouses and sub-
mitted to Jackson. The signers and their designated occu-
pations were.
Charles D Curry Receiving and Shipping Clerk
Charles G. Ferrell Warehouseman
James E. Goins Laborer
Edward L. Hughart Warehouseman
Richard Johnson Truckdriver
Franklin T. Lanham Laborer
James A May Laborer
Opie G. Nelson Warehouseman
Samuel D. Nelson Warehouseman
Virgil R Searls Warehouseman
Doyle Thornton Warehouseman
Ivan L Vickers Shipper
Larry Woodall Truckdriver-Warehouseman
Thereafter, on October 10, Everett Nichols, warehouse
clerk, signed an authorization card, and on October 13
Anna L Adkins, a cosmetics pricer, did likewise.
On the afternoon of Friday, October 9, Jackson met
with Respondent's president, Fred Haddad, and informed
him that a majority of employees having signed up with
the Union he was requesting recognition of the Union for
HECK'S, INC. 677
the truckdrivers and warehousemen employed at the
warehouses in Nitro, Charleston, and St. Albans. In sup-
port of his claim and request Jackson presented the cards
to Haddad who inspected each one in turn . After ex-
pressing surprise at the identity of some of those who had
signed the cards and some consultation with Personnel
Manager Ray Darnell, he suggested going through the
warehouses and talking with the men involved. This idea
was vetoed by Jackson.' Haddad then sent for Ivan
Vickers whose card was among those in the pack and,
showing him the card, asked him if he had signed it.
Vickers replied that he had. Whereupon Haddad directed
Vickers to return to work.
During the course of the conversation generated by
Jackson's request for recognition he indicated, as noted
above, that it was for the warehouses at Nitro, Char-
leston, and St. Albans. At this point Haddad informed
him, according to Jackson, "that he also had stores in
Huntington and Parkersburg, West Virginia, and
Ashland, Kentucky, each of them having warehouses,"
but Jackson persisted in his original request for a unit
limited to the local warehouses and expressed a
willingness to limit the scope of the unit further.2 Jackson
added that "there was some discussion of the clerks and
all and I informed him that there was no request for
recognition of the clerks, that we did not historically
negotiate for clerks." Haddad refused Jackson's several
requests for recognition and negotiation of a contract,
stating each time, "No comment."
Thereafter on October 12 or 13, in the course of a con-
versation with Haddad concerning the reinstatement of
a recently discharged employee (infra) Jackson again
asked for recognition and bargaining and Haddad again
refused.
2. Interference with, and restraint and coercion of,
employees
plication. Lewis replied that he had not. Haddad con-
cluded his remarks by assuring the employees that any-
one could withdraw from the Union if he wished and that
Respondent would not discharge anyone for joining.3
On the next day, October 10, Harry Turner, also
known as Junior Turner, department head of houseware
at the Charleston store, drove to the Nitro warehouse,
sought out employee S. D. Nelson and invited him to his
car in the parking lot where the two talked, at some
length. In the course of this conversation Turner asked
him to verify the fact that he and another employee,
Woodall, had joined the Union. According to Turner him-
self, whom I credit, said:
We got to talking about the union . I got to telling him
the good points that we had at the store and what the
company could do if they wanted to. They didn't
have to give us the bonus and they didn't have to
have these parties for us and stuff like that. I was ex-
plaining the good points to him about it.
Q. Did you make any threats or promises to him
as to what would happen if he did or did not join the
union?
A. I told him what could happen. The company
could cut our raises off, cut it off short, and stuff like
that. It was to your own advantages. And our vaca-
tions.
Q. Did you tell Mr. Nelson that if the union was
voted in that the company would discontinue grant-
ing bonuses or reduce the work hours of the em-
ployees?
A. No. I said they could.
Q. Did you tell Mr. Nelson that you knew that he
and another man, Mr. Woodall, had signed union
cards for the union?
A. Yes, sir.
Immediately following Haddad's conference with
Jackson on October 9, Warehouse Manager Roy Foy
called a meeting of the warehouse employees. Haddad
addressed the group on this occasion telling them he was
surprised at their selection of the Union and asking them
as a group what it could do for them, pointed out to them
the things he could do regardless of unionization. Thus he
explained that he did not have to guarantee a 40-hour
week, and that he could require the men to work split
shifts. He then singled out an employee in the group,
Charles Lewis, and asked him if he had signed a union ap-
' The foregoing is the credited testimony of Jackson. President Haddad
denied having seen the cards, testifying that he only looked at the top one,
Vickers'. and then, after "flipping through them" without looking at them,
he handed them to Personnel Manager Darnell whom he had meanwhile
summoned to the meeting . Darnell was not questioned concerning this. I
do not accept Haddad's uncorroborated denial that he saw these cards,
contradicting as it does Jackson's credited account of the incident
Moreover, employee S D Nelson corroborates Jackson to the extent
that Haddad inspected the cards. Thus he credibly testified that Haddad
told him that "the union representative had been there and showed him
cards signed by the employees of Heck's" and that when Haddad saw
Nelson's name "he almost passed out."
' Ivan Vickers credibly testified that at an employee meeting later the
same day Haddad stated he did not believe the Union could win an elec-
tion because the warehouses of all five stores would be involved.
° When Personnel Manager Darnell addressed the meeting , he stated
that FMC, a local industry, was in the midst of a strike, and if it were
A week later, on October 17, employee S. D. Nelson
had another significant conversation, this time with Pre-
sident Haddad who summoned him to his office. After
telling Nelson he had seen his union card among those
presented by Jackson (supra) Haddad offered him a
salaried job of $325 per month if Nelson would help
"break up the union in the St. Albans store." When Nel-
son refused, Haddad then asked if he believed he was due
for a raise. Nelson expressed doubt because of his union
activity whereupon Haddad sent for Personnel Manager
forced to move out of town Respondent's business would suffer. Counsel
for General Counsel contends that this statement on the part of Darnell
supports an allegation in the complaint (¶5(b)(i)) that the statement, cou-
pled with another to the effect that unionization of Respondent's opera-
tions would reduce its discount potential and business , constituted an un-
lawful threat . There is nothing in the record to indicate that Darnell made
any reference to the reduction of Respondent's discount potential.
Actually it was Warehouse Manager Foy, according to Goins, who
made the statement in question , specifically that Heck 's could not operate
with a union and continue as a discount house . At the hearing , counsel for
the General Counsel was apprised of the fact that the complaint contained
no allegation of statements attributable to Foy, an admitted supervisor,
and he replied that "this does not go directly to any allegation of the com-
plaint. " Under such circumstances , I believe that Respondent was re-
lieved of an obligation to refute the statement or to otherwise litigate the
issue. Accordingly, I will not consider the Foy statement in any conclu-
sion I make herein
308-926 0-70-44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Darnell and the two of them checked out a list and stated
their conclusion that Nelson was not due for his raise.
Then Darnell said, "I wished that you could be on our
side. `4
A week later, on October 23, Haddad made the same
proposition to Ivan Vickers who. unlike Nelson, ac-
cepted it. Haddad sent for Vickers and in the presence of
Personnel Manager Darnell and Merchandise Manager
Ellis complimented him upon his work and said he
wanted to make a "deal" with him. The "deal" was to put
Vickers on a $350 per month salary to help break up the
Union by exerting his influence over his fellow workers.5
The foregoing statements and incidents portray a pat-
tern of interference with, restraint, and coercion of em-
ployees. Thus Respondent, through its officials and su-
pervisors, in reprisal for the employees joining the Union,
threatened to cut their workweek, and, tantamount to a
threat in each case, stated that it could withdraw bonus
payments, eliminate company parties, and cut off raises.
Similarly, and during the same period it publicly inter-
rogated employee Lewis concerning his union member-
ship, and sought to bribe employee S D Nelson to work
against the Union .6 Citation of authority is unnecessary
to establish that such conduct violates Section 8(a)(1) of
the Act and I so conclude and find
3. The discharge of James Goins
On the following morning, Saturday, October 10, em-
ployee James Goins was assigned the duty of washing
down the warehouse driveway with a fire hose and in the
course of it became water soaked to an extent that is in
serious dispute Goins testified he was "sopping wet"
from the shoulders down, as the consequence of wielding
a leaky nozzle. Ivan Vickers testified merely that he was
wet, whereas Goins' supervisor, Graley, testified that
Goins' clothing was wet for a distance of 18 inches above
the floor.' A synthesis of the testimony does establish,
then, that Goins was wet and that his request to go home
had factual justification. Whereupon, having requested
and obtained Supervisor Foy's permission to leave, he
did so Upon his return on Monday, October 12, Goins
found his timecard missing from the rack He questioned
Foy who first told him that he had left on the previous
Saturday without permission and then stated that his
work had been unsatisfactory during his 90-day probation
period and that they were going to have to let him go
The foregoing findings are based on the credited
testimony of employee Goins I do not accept Supervisor
Graley's testimony as credible, having observed him on
the witness stand Throughout his testimony he was hesi-
tant and evasive, and on a number of occasions complete-
ly confused, all to such an extent that he inspired no con-
fidence whatever in his testimony respecting Goins As
an example of Graley's confused testimony I would cite
his insistence that he knew nothing at all about the Union
campaign. However, it had been credibly testified to by
both Goins and Vickers, without contradiction by any of
Respondent's witnesses, that President Haddad had
called an employee meeting on October 9, following
Jackson's request for recognition, and that Darnell and
Graley were present and had spoken to the men. Under
such circumstances Graley's professed ingnorance of
union matters cannot be accepted. Accordingly I reject
all of Graley's testimony, and particularly his testimony
that he smelled alcohol on Goins' breath on several occa-
sions, and that this was why he reported him to Foy on
Saturday, October 10. Not discounting the possibility
that Goins may well have exuded an odor comparable to
alcohol, which could have been anything from bonbons
or beer to mouthwash, Graley did not impress me as one
capable of making a refined judgment in such matters.
Judging from the manner in which he conducted himself
when confronted with questions concerning this subject
on cross-examination, indeed a complete unwillingness
to give a straightforward answer, I conclude and find that
his story was a fabrication.
I can give no more credence to the report as it comes
from Personnel Manager Darnell, who approved Goins'
discharge. Thus Darnell testified that Supervisor Foy, in
reporting the details of the entire incident to him, included
Graley's report that he had smelled alcohol on Goins'
breath. Darnell's testimony becomes, at best, hearsay
twice removed-and specifically, hearsay whose source
I reject at the outset. I accordingly reject any suggestion
in the record that Goins was ever known to have indulged
in alcoholic beverages to excess or that he had the odor
of such on his breath "
Upon the foregoing facts and conclusions certain other
conclusions emerged. Thus it appears that Goins, who
had permission to leave was discharged (1) for leaving,
(2) for unsatisfactory performance that was unsubstan-
tiated on the record, and (3) inferentially for conduct, if
such we may classify bad breath that was never proven
Occurring as it did on the day following the Union's
request to bargain after which Respondent's officials en-
gaged in conduct which I have found to constitute unlaw-
ful interference, restraint, and coercion, I have no hesita-
tion in concluding that Foy, the missing supervisor, with
Darnell's knowledge, dismissed Goins for the reason that
he was known, by Haddad's inspection of union cards, to
be a member of the Union and, by the proximity in which
he worked with such supervisors as Graley and Foy, to
be the one who was soliciting union memberships." In so
concluding, I further find and conclude that the reasons
suggested by Respondent, unsubstantiated and conflict-
ing as they are, are but pretexts to mask Respondent's
true purpose, its attempt to thwart the Union's campaign.
Such conduct has consistently been held to constitute dis-
crimination in violation of 8(a)(3) and (1), and I so find
and conclude here
4 The failure to reinstate Ivan Vickers
Ivan Vickers, who has figured prominently in the union
activity described heretofore, is claimed by Respondent
' The credited testimony of employee Nelson Neither Haddad nor
Darnell denied the conduct or statements attributed to them
The credited testimony of Vickers Ellis was not questioned about the
incident Haddad and Darnell both corroborate the details of Vickers'
transfer to salary status and Haddad denies any reference was made to
the Union I do not accept Haddad's denial Darnell testified simply that
nothing was said about the Union "to his recollection ' I do not accept
this as a denial on his part
" In view of my finding that employee Vickers is a supervisor (ui/ru IV,
A, 4), [make no finding as to whether the successful bribing of him for the
same purpose is violative of the Act
Dependent upon the length of the leg involved this would place the
high-water mark somewhere between Goms' calf and knee
" It is significant to note that Goins testified credibly that he does not
drink, and that Foy, the supervisor who discharged him, has himself been
discharged and cannot be located to testify
"Wiese Ploii Welding Co,In( , I23NLRB616
HECK'S, INC. 679
to be a supervisor. To this end it adduced considerable
evidence in support of its contention, through testimony
of President Haddad, Darnell, and Ellis. Moreover,
Vickers himself testified that prior to his transfer to the
Nitro warehouse he had been manager of Respondent's
Lewis Street warehouse and while claiming he did not
consider himself to be a supervisor at Nitro because he
"wasn't in charge of the warehouse," he was told he was
in charge of shipping and he did, in fact, assign warehouse
employees to loading and unloading trucks and directed
them in filling orders. He also attended supervisory
meetings. Accordingly, based upon Vickers' own descrip-
tion of his duties as they existed both before and after his
Nitro assignment, I conclude and find him to be a super-
visor within the meaning of the Act.
On December 3, 1964, Vickers left Respondent's em-
ploy to enlist in the United States Air Force. Thereafter,
on December 31 he was granted a temporary medical
discharge from the service and immediately sought to
return to Respondent's employ. He called Merchandising
Manager Ellis who took his telephone number and as-
sured him "he thought it would be fine" and would check
with Personnel Manager Darnell. Ellis never called back
and `Vickers heard nothing further. Ellis' testimony lends
confusion to the situation. Thus he stated that he either
referred Vickers to Darnell or said he would check with
Darnell, or that Vickers should come in and see them.
Under such confused circumstances Ellis' testimony is of
little value and I rely completely upon Vickers' account.
Vickers was returned to his job in March upon the inter-
vention of officials of the United States Veterans Ad-
ministration. General Counsel alleges Respondent's
refusal to recall Vickers during the intervening period to
be discriminatory in violation of Section 8(a)(3) of the
Act.
Common prudence would suggest that an employee do
something more than make a telephone call to secure the
reemployment rights due him upon return from military
service. Here Vickers, by his own admission, did nothing
more and was content to wait for the two or three months
during which the government wheels turned sufficiently
to obtain his job for him. Under these relaxed circum-
stances I am not disposed to equate Vickers' disinterest
with a manifestation of Respondent's discriminatory mo-
tive. If, indeed, Respondent was disposed to discriminate
against him, Vickers at least had the obligation to
establish a case in his own behalf. Sitting upon any rights
he may have thought he had is a far cry from this. I ac-
cordingly conclude and find upon the record made by
Vickers himself that he was not being deprived of em-
ployment as a supervisor10 during the period in which he
blithely waited for someone to return his telephone call.
I therefore recommend that so much of the complaint as
alleges discrimination against Ivan Vickers in violation of
Section 8(a)(3) be dismissed.
5. The alleged refusal to bargain
It is clear from the testimony of Union Representative
Jackson, General Counsel's own witness, that President
Haddad questioned the scope of the bargaining unit when
Jackson requested bargaining on October 9. Thus Had-
dad told Jackson he had warehouses other than the three
whose employees' cards were presented him. In elabora-
tion Jackson testified;
Mr. Haddad said that he had warehouses in all his
stores and as a result questioned the unit. However,
I told him that I was amenable to negotiate either on
behalf of the Nitro Warehouse or separate contracts
for the warehouses in the stores.
At this juncture none o^ the events which I have
detailed above, and have found to constitute violations of
the Act, had occurred. Under usual circumstances it
would be appropriate to inquire, therefore, whether Had-
dad's refusal in this context was or was not a good-faith
doubt, particularly in view of his and associates' sub-
sequent conduct. But these do not appear to be usual cir-
cumstances and it would seem that as there is so much
confusion surrounding the identity and composition of the
unit-as sought initially by Jackson, as understood by
Respondent, and as urged by General Counsel -that the
element of good faith refusal to bargain in a unit ap-
propriate for bargaining need never be reached.
Jackson concededly requested bargaining on behalf of
the drivers and warehousemen at the Nitro, St. Albans,
and Charleston warehouses and 3 days later filed a peti-
tion for an election in the same unit. Nevertheless, as
quoted above, he expressed a willingness at the time not
to be bound by the scope of the unit he requested"
General Counsel, on the other hand, in a consolidated
complaint initially issued on April 22, 1965, alleged as
the appropriate unit all truckdrivers and warehousemen
at Respondent's Nitro warehouse and St. Albans store,
with the usual exclusions, and by a June 3 amendment
added to this unit the same classifications employed at
Respondent's Charleston "store and warehouse." And
finally by a document introduced into the record by coun-
sel for the General Counsel entitled "Warehouse Em-
ployees," it is claimed that those employees listed
thereon as truckdrivers or warehousemen at Nitro, St.
Albans, and Charleston warehouses constitute the total
eligibility list, plus employee Goins who had been
discharged by that time (supra) and was, therefore, not on
the list. For reasons which follow, the total number of em-
ployees eligible for inclusion in the unit cannot be precise-
ly determined.
It should now be noted that a distinction exists on the
so-called eligibility list between "Drivers and
Warehousemen" and other classifications such as
"Pricer" and "Receiving Clerk," both of whom General
Counsel explicitly stated he would exclude from the unit.
This distinction becomes dim, however, at certain points
and to such an extent that the terms "Warehouseman"
and "Warehouse Employees" are used interchangeably.
Thus when Jackson was asked by me to repeat precisely
the unit for which he was seeking recognition he stated to
me, "Truckdrivers and warehouse employees." And
"' Assuming, contrary to any conclusion herein, that the equities pre-
ponderated in Vickers' favor in this matter, it is well established that an
employer may lawfully refuse to rehire a former supervisor who applies
for a supervisory position. PacificAmerican Shipowners Assn., 98 NLRB
582,596
11 Cf Sportswear Industries, Inc., 147 NLRB 758, wherein the Board,
at 760, stated-
Once having defined the unit it claims to represent, and having made
a bargaining demand on that basis, the Union has thereby established
the frame of reference for measuring the validity of its demand. "Such
a requirement imposes on the union representative only the obligation
to say what he means. Failing to do so [the union] cannot be con-
sidered as having made the sort of request to bargain which imposes
upon an employer a legal obligation to comply."
680 DECISIONS OF NATIONAL
when counsel for General Counsel introduced what, upon
refinement , becomes the eligibility list, he referred to it as
"a list of the warehouse employees ." While it is true that
after considerable probing on my part the purpose of this
list was clarified as being relevant only had it contained
the names of all the drivers and warehousemen at the
three designated warehouses , nonetheless it is significant
to note that ambiguity certainly attended the proceedings
at this point.
Upon further development of the evidence as to the ap-
propriate unit other elements of confusion appear. Thus,
although General Counsel stated specifically that pricers
"were not to be included in the unit," his own witness,
Franklin T. Lanham , corroborated Personnel Manager
Darnell ' s undemed testimony that the duties of the male
pricers differed little, if any, from those of
"Warehousemen ," the difference being that in addition to
loading and unloading trucks and stocking shelves, as do
Warehousemen , the Pricers also mark the merchandise.
Female pricers are not required to do the heavy work; it
is performed by the Warehousemen.
Nor does the election petition filed by the Union on
October 12, 1964, add clarity. Thus, while giving the
several addresses of the Employer in one section of the
petition form , it describes the unit requested as "all em-
ployees of the Employer employed at its places of busi-
ness as warehousemen and truckdrivers " [ Emphasis
supplied.]
Finally, as the hearing progressed and in the course of
determining the unit eligibility of an employee in one of
the warehouses (Anna Lou Adkins), counsel for the
General Counsel was reminded that the employee whose
card was being discussed was a "Pricer." the category
previously excluded from the unit by counsel 's earlier
statement of position . In reply counsel stated to me:
I am aware of that , sir. But I still have this problem
of what the final unit determination is going to be.
And earlier in the record when asked by me to clarify the
duties of an allegedly eligible employee to determine his
inclusion as a warehouseman , counsel stated
I am aware of the problem you would have with this.
But at the same time I am aware that we are con-
cerned with the situation that the appropriate unit
has not actually been determined as of this time.
Upon the foregoing conglomeration of scanty data the
Board , through me , is being asked to conclude that the
Union represented the majority of the Respondent's em-
ployees in a unit appropriate for bargaining and that Pre-
sident Haddad 's refusal to bargain , as detailed above, was
not grounded in good faith either as to his doubt of the
majority , or of the appropriateness or scope of the unit
requested , or both.
Section 9 of the Act provides the framework for the
laboratory conditions which the Board deems so essential
for the determination of employee representation.
Through appropriate rules of decision and its regula-
tions,' procedures have historically been availed of to
provide a forum to assess the duties of those sought in a
bargaining unit, the extent of the unit's scope, and a
myriad of complications that must be resolved to achieve
'Z See National Labor Relations Board 's Rules and Reizulations Series
8, as amended , Section 102 61, et seq
13 NLR B v Express Publishing Co , 312 U S 426 4;3
LABOR RELATIONS BOARD
a reasonable determination of the unit in which a fair elec-
tion is to be held; all of this through the orderly participa-
tion and contribution of both employer and union
representatives . Similarly in the conduct of the election
itself, wherein eligible employees are permitted the priva-
cy of their choice, safeguards are provided in the form of
a challenge available to all parties to insure that eligibility
is maintained and that irregularity is eliminated.
With all due respect to the able counsel participating in
this proceeding and with full recognition of my own
procedural limitations , I fail to see how the materials
presented in evidence here provide an adequate sub-
stitute for the orderly procedure and determination
customarily available.
The essence of this case is twofold: that Jackson
claimed a majority in an appropriate unit , and that Had-
dad's refusal was or was not in good faith . As to the
former , upon full consideration of evidence presented and
the conflicts this evidence contains, I am persuaded that
General Counsel has failed to meet the burden of
establishing what precisely was the appropriate unit in
which the Union had its majority. Failing in this respect
and thus creating for me an unresolved doubt concerning
the unit , I am not disposed to conclude that Respondent's
refusal or its doubt was any less reasonable , particularly
when this refusal rested, at least in part, upon the fact that
Respondent had in its employ warehousemen not in-
cluded in the unit requested.
Upon all of the foregoing considerations , therefore, I
would recommend that so much of the complaint as al-
leges Respondent 's refusal to bargain be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
IV, above, occurring in connection with its business
operations described in section I, above, have a close, in-
timate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and, because of the gravity of its conduct, I
shall also recommend that it cease and desist from infring-
ing in any other manner upon the rights of employees
guaranteed by Section 7 of the Act. 13
Affirmatively I shall recommend that James Goins,
whom it discnminatorily discharged , be reinstated to his
former or substantially equivalent position, if this has not
already been done , without prejudice to seniority or any
other rights and privileges , and that he be made whole for
any loss of earnings suffered by him because of Respond-
ent's discrimination against him, with backpay com-
puted by access to the Company's books, records, and ac-
counts, and in the customary manner ,[' with interest
added thereto at the rate of 6 percent per annum is
[Recommended Order omitted from publication ]
'IF W Woohsorth Company, 90 NLRB 289
15 Isis Plumbing & Heating Co, 138 NLRB 716
HECK'S, INC. 681
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER , Trial Examiner : On November
30, 1965 , a Decision was issued by me in this proceeding
finding and concluding that Respondent herein , Heck's,
Inc., had not unlawfully refused to bargain collectively
with Chauffeurs , Teamsters and Helpers , Local Union
No. 175, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
herein referred to as the Union Company, and I ac-
cordingly dismissed the 8(a)(5) allegation , for the reason
that the General Counsel had failed to meet the burden of
establishing what precisely was the appropriate unit in
which the Union had its majority . In addition , I made cer-
tain findings of violations of Section 8(a)(1) and (3) of the
Act and recommended that specified remedial action be
taken with respect thereto . The case was transferred to
the National Labor Relations Board , herein called the
Board , on the same day. Thereafter counsel for the
General Counsel and Respondent filed exceptions to my
Decision and counsel for the General Counsel filed a
brief in support of his exceptions.
In due course the Board , upon review of my Decision,
the exceptions , supporting briefs, and the record, on
March 23, 1966 , issued its Order reopening record and
remanding proceeding to the Regional Director for
further hearing . The Board found "on the basis of the en-
tire record that the General Counsel was plainly contend-
ing that the appropriate unit consisted of all truckdrivers
and warehouse employees at the Nitro, St. Albans, and
Charleston warehouses " of the Respondent . It ordered
that the hearing be reopened for the purpose of adducing
additional evidence concerning the nature and ap-
propriateness of the bargaining unit, the majority status
of the Union , and the alleged refusal of the Respondent
to bargain with it, and directed that I prepare and serve
upon the parties a Supplemental Decision containing
findings of fact , conclusions of law , and recommendations
to the Board based upon the evidence contained in the en-
tire record.
Pursuant to notice issued on September 28, 1966, by
the Regional Director a further hearing was held before
me in Charleston , West Virginia . All parties appeared and
were afforded full opportunity to be heard , to adduce rele-
vant evidence, to examine and cross-examine witnesses,
to present oral arguments , and to file briefs . Briefs were
filed with me on December 15, 1966 , by counsel for
Respondent and the General Counsel.
Upon the entire record , including the evidence adduced
at both the original and subsequent hearings, and all briefs
submitted by the parties, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Scope of the Remand
In its order of remand the Board specefically found "on
the basis of the entire record that the General Counsel
was plainly contending that the appropriate unit consisted
of all truckdrivers and warehouse employees of the Nitro,
St. Albans, and Charleston warehouses ," these being the
three stores and warehouse locations established in the
Charleston area, and discussed and identified in further
detail in my original Decision.'
Because the Board deemed the record before it in-
adequate "to determine the unit and majority questions"
I have been directed to adduce evidence as to (1) whether
the unit sought by the Union was in fact "appropriate" for
the purposes of collective bargaining , (2) whether the
Union represented a majority of employees in said unit,
and (3 ) whether the Respondent 's refusal in said unit was
lawful.
B. The Unit Claimed by General Counsel
As determined by the Board in its Order of remand the
General Counsel contends that the unit appropriate for
collective bargaining herein consisted of:
All truckdrivers and warehouse employees at the
Nitro, St. Albans, and Charleston warehouses , excluding
office clericals , guards, professional employees and su-
pervisors as defined in the Act, and all other employees.2
C. The Appropriate Unit
In response to the Board 's inquiry in its Order of re-
mand as to the appropriateness of the bargaining unit
sought by the Union there is a basic difficulty . It has not
been established by the record that when the Union made
its demands it did so in a given unit . Thus, as previously
found , Union Representative Jackson credibly testified
at one point:
Mr. Haddad said that he had the warehouses in all
his stores and as a result questions the unit. How-
ever , I told him that I was amenable, to negotiate
either on behalf of the Nitro Warehouse or separate
contracts for the warehouses in these stores.
Prescinding from this for purposes of determining the ap-
propriateness of the unit which the General Counsel con-
tends for , that unit may be identified as comprising the
employees at the several warehouses of the Respondent's
retail chain stores located in Charleston , West Virginia,
geographical area.
As to the retail stores themselves , it is settled that all of
such located in a geographical area may constitute a sin-
gle bargaining unit .3 It is equally well settled that a unit of
employees in the retail industry engaged in warehouse
functions , including the truckdrivers , constitutes an ap-
propriate bargaining unit.4 A fortiori, two or more groups
of employees constituting all of the employer's
warehouse employees in the geographical area would
likewise constitute an appropriate unit.
The record in the instant proceeding discloses that in
the respective warehouses there is a complete separation
of functions of the warehouse employees and the selling
' Reference to my original Decision at a designated place will be in-
dicated herein as TXD, .
2 The excluded categories were not set forth in the General Counsel's
original contention but appeared for the first time in his most recent brief
to me At the further hearing , counsel for the General Counsel indicated
on the record an intent to set forth an alternate unit position . As the Board
has specifically ruled on the nature of the unit being contended for, I
precluded counsel from further discussion of alternatives
3 Sav-On Drugs Inc., 138 NLRB 1032.
" The May Department Stores Company, 153 NLRB 341 ; Loveman,
Joseph and Loeb Division of City Stores Company , Inc., 152 NLRB 719.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel , and no interchange between either group
Thus the respective warehouse areas are completely par-
titioned off from the selling areas, interaccess being by
door; the individuals employed in the warehouse are
separately supervised there, they perform the usual
warehousing functions such as a truck unloading, un-
packing, pricing , storing , and the delivery of items to the
selling floor. There is, however, dispute as to whether
certain pricers should be included in the unit, it being
stipulated , nevertheless, that those at the Nitro store be
included The General Counsel would exclude the
Clothing Pricers at the St. Albans and Charleston
warehouses, employees Taylor and Russe, while, on the
other hand, the Company would include them Everyone
agrees the pricers at Nitro should be included Both
Taylor and Russe, each of whom pr,ce clothing exclusive-
ly, work in warehouse areas, but in each case in a section
partitioned off from the rest of the warehouse. In the
course of their duties each of them receive pricing in-
structions from the supervisor of the clothing department.
Each employee is carried on Respondent's personnel
records as a warehouse employee and there is no
evidence that they are engaged in selling functions as part
of their usual duties.
From the credited testimony of employees Larry
Woodall and Doyle Thornton, called as witnesses by the
General Counsel, and of Personnel Manager Ray Dar-
nell, it is clear that, except for the segregated work areas
provided for clothing pricers at each warehouse, the na-
ture of their duties does not differ substantially from that
of other pricers, and indeed the separation at St. Albans
was explained by the existence of such a separate room
in the warehouse when first the building was acquired.
Certainly the inherent character of clothing merchandise
should itself explain why warehousing it separately from
the general stock would be prudent practice, avoiding
soilage and spoilage. And finally it is evident that the in-
structions which the clothing pricers receive from the
clothing department supervisors would constitute a
reasonable source of pricing information. Nor is there
anything in the record to suggest why the clothing pricers
at two warehouses should be treated differently from
those at the third warehouse, Nitro.
Upon review of all of the foregoing considerations it is
apparent that the elements of community of interest and
integration of the clothing pricers at St Albans and Char-
leston with the other warehouse employees are not less-
ened by any routine contacts these employees may have
with personnel in other areas of the store anymore than
would the truckdrivers like community of interest be
destroyed by their regular absence from the warehouse,
driving about the city. On the contrary, the pricers in
question, both female employees, have warehouse super-
vision, do the same general type of work, excepting the
heavy lifting, wear clothing appropriate to their duties,
and associate occupationally with the warehouse em-
ployees, meeting with others only on an "emergency"
or sporadic basis I would therefore conclude and find
that all pricers are appropriately a part of the warehouse
unit
Upon all of the foregoing I would conclude and find as
a unit appropriate for the purposes of collective bargain-
ing:
All truckdrivers and warehouse employees, including
all pricers at the Nitro, St. Albans, and Charleston
warehouses, excluding office clericals, guards, profes-
sional employees, and supervisors as defined in the Act.
and all other employees.
D. Majority Status of the Union in the Above-Described
Unit Found to be Appropriate
As previously found by me (TXD, IV, A, 1), by Oc-
tober 9, 1964, 13 employees in the 3 warehouses had
signed cards authorizing the Union to represent them and
submitted them to Union Representative Jackson. These
cards presented to President Haddad as evidence of the
Union 's claim and inspected by him were for the follow-
ing
Charles D. Curry
Charles G. Ferrell
James E. Goins
Edward L Hughart
Richard Johnson
Franklin T Lanham
James A May
Opie G Nelson
Samuel D. Nelson
Virgil R. Searls
Doyle Thornton
Ivan L. Vickers
Larry Woodall
As I have previously found and concluded Ivan Vickers
was a supervisor at all relevant times herein (TXD, IV,
A, 4) and his card cannot be included among those cards
availed of by the Union to support its claim of majority
status on October 9. I accordingly conclude and find that
upon that date, on the occasion of Union Representative
Jackson 's request of President Haddad that Respondent
bargain with the Union (TXD, IV, A, 1), the Union
represented 12 employees , as evidenced by cards in its
possession.
As a means of establishing the composition of the bar-
gaining unit claimed by General Counsel to be ap-
propriate , a list of warehouse employees at Nitro, St. Al-
bans, and Charleston, supplied by Respondent , was ad-
mitted into evidence The list is as follows, excluding four
individuals, Graley, Vickers, Elbert Ferrell, and Overton,
who have neither been found by me or stipulated to be su-
pervisors:
Nitro, West Virginia
Anna Lou Adkins Pricer
James A. Cooper Warehouseman
Charles D Curry Warehouseman
Charles F Ferrell Warehouseman
Sheila V. Hostein Pricer
Richard Johnson Driver
Earl Keeney Driver
Franklin T. Lanham Pricer
Charles E. Lewis Pricer
James A. May Warehouseman
Opie Nelson Warehouseman
Dallas T. Queen Warehouseman
Virgil Searls Warehouseman
Lloyd J. Slack Driver
Roger Stackey Warehouseman
5 Everett Nichols, warehouse clerk, and Anna L Adkins, cosmetic
pricer, signed the cards on October 10 and 13 respectively Obviously
these were not included among the cards submitted to Haddad
All cards received in evidence were identified by the respective em-
ployees or by Jackson in whose presence they were signed There is no
contest as to either their authenticity or to the fact that each was signed for
the purpose of selecting the Union as bargaining representative
St. Albans, West Virginia
Wayne Baker
Samuel D. Nelson
Everett Nichols
Evelyn Taylor
Larry Woodall
Charleston, West Virginia
Charles G. Ferrell
Edward L. Hughart
Ernestine Russe
Doyle Thornton
HECK'S, INC. 683
with Nichols' card, and it increased it by one more with
Warehouseman Adkins' card on October 12. If, then, on October 10, and
Warehouseman thereafter, the Union continued to claim recognition, the
Warehouseman issue of Respondent's refusal becomes a real one indeed.
Pricer During the week after his initial request for recognition,
Driver "about the 12th or 13th of October," Jackson, as I have
Warehouseman
Driver
Pricer
Warehouseman
A tabulation of this list indicates that there are a total
of 24 eligible employees in the bargaining unit claimed by
General Counsel and found by me to be appropriate.
Of the foregoing it is apparent that on October 9, 1964,
when Union Representative Jackson presented the cards
for Supervisor Vickers and the 12 warehouse employees
to President Haddad and requested recognition and bar-
gaining, the Union represented only 12 of the 24 eligible
rank-and-file employees in the unit which I find herein to
be appropriate. It did not at that time represent a majori-
ty.
E. Subsequent Activity Relating to the Bargaining Unit
Two more cards came into the possession of the Union
after it had shown the original group of cards to Haddad;
the cards of 1`` liols and Adkins, signed on October 10
and 13, respeLavely. Meanwhile a number of events had
transpired . Harry Turner , department head of house-
wares at Charleston , engaged in conversations on
the following day, October 10, which I have already
found to contain unlawful threats to cancel wage in-
creases and discontinue bonuses if the Union got in
(TXD, IV, A, 2 ). A week later President Haddad offered
a promotion to one of the employees who had joined the
Union on condition that the employee would agree to
work against the Union. And again a week later he of-
fered a similar inducement to Supervisor Vickers for the
same purpose (TXD, IV, A, 4). These incidents I have al-
ready found to constitute unlawful interference , restraint,
and coercion . Additionally I found that on October 10
Respondent discriminatorily discharged employee James
Goins (TXD, IV, A, 3).
Meanwhile , on October 12, the Union filed its petition
in Case 9-RC-6097. later withdrawn , seeking an election
among: "all employees of the Employer employed at its
places of business as warehousemen and truckdrivers;
excluding all office clerical employees , all guards, profes-
sional employees and supervisors , and any others ex-
cluded in the Act, as amended."
The petition indicates the Union 's belief that there were
19 employees in the bargaining unit, and it makes no
reference to pricers , all of whom I have found (over
General Counsel 's objection as to those in St . Albans and
Charleston) to be included in the appropriate unit (supra,
Q.
While it is evident that the Union did not have a majori-
ty of the 24 employees when it requested recognition on
October 9 , it did achieve this majority on October 10,
already found, in the course of seeking the reinstatement
of the discharged employee Goins, asked President Had-
dad a second time to recognize and bargain with the
Union, and again received the same reply: "No com-
ment."
I would conclude and find that Jackson's request for
recognition first made on October 9, 1964, became a con-
tinuing request thereafter for the reason that (1) it was
followed by the filing of a representation petition the next
day,6 (2) it was followed immediately by an effort on the
part of Supervisor Turner to procure defections from the
Union, and finally, (3) on October 12, a new request was
made of Haddad by Jackson and refused, to be followed
thereafter by Haddad's efforts to induce union members
to defect from the Union.
In summary, therefore, it is apparent that during the
pendency of its claimed majority status prior to October
12, the Union possessed the cards of 13 of the total com-
plement of 24; and that after October 13, upon receipt of
Adkins' card and after Jackson's second request for bar-
gaining, and at a point when a further request would be
deemed futile,' I would conclude and find that in support
of its continuing demand for recognition the Union then
had 14 valid designation cards, of a possible total of 24,
in its possession. Thus there is conclusive evidence that
during the period in question, the Union had established
and maintained its majority status in a unit which I find to
be appropriate for the purposes of collective bargaining.
F. The Legality of Respondent's Request to Bargain
Jackson's demand of Haddad for recognition has, at
first glance, the appearance of a flexible one. Thus after
testifying at several points that he requested recognition
and bargaining for truckdrivers and warehousemen at the
three local facilities he then testified in response to
questioning of counsel for the Union, as follows:
Mr. Haddad said that he had warehouses in all of his
stores and as a result questioned the unit. However,
I told him that I was amenable to negotiate either on
behalf of the Nitro,Warehouse or separate contracts
for the warehouses in the stores.
It is true, of course, that an employer cannot be held to
have refused to bargain collectively with the representa-
tive of an appropriate unit until the representative has
first sought or indicated a desire to bargain for the unit.8
Thus any variance between the unit requested and that
found appropriate raises an issue in this respect. It has
long been held by the Board, however, that to be fatal any
variance must be a substantial one.9 Such is not the case
here. Indeed there is no variance, but rather an alterna
tive, if even that could be spelled out. Jackson made his
demand for truckdrivers and warehousemen, the latter
being deemed by me to include pricers. In an effort to ac-
6 See Ivy Hill Lithograph Co., 121 NLRB 831,835 , fn. 13; Automotive 8 N.L R.B v Columbian Enameling and Stamping Co, 306 U S 292,
Supply Co., Inc., 119 N LRB 1074. 300.
7 American Compressed Steel Corporation , 146 NLRB 1463, enfd. 343 8 Barlow-Money Laboratories , Inc., 65 NLRB 928.
F.2d 307 (C A.D C).
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comodate he then suggested the alternative of separate
contracts. But he certainly cannot be said to have aban-
doned his original claim . Therefore. I do not view this
offer of accommodation to be the substantial variation in-
tended by the Board and I see no other variance. Ac-
cordingly, I would conclude and find that a valid demand
in the appropriate unit was made on October 9, and for
reasons already stated continued thereafter
It is apparent from Respondent's intervening and sub-
sequent conduct which I have already found to be viola-
tive of the Act that it was engaging in a course of conduct
calculated to undermine the Union and reflected a rejec-
tion of the principles of collective bargaining. I am per-
suaded therefore, that its refusal to bargain with the
Union as a majority representative of the employees in
the unit which I have found to be appropriate was not
grounded upon any element of good faith but constituted
a refusal to bargain in violation of Section 8(a)(5) of the
Act, thereby interfering with, restraining, and coercing its
employees in violation of Section 8(a)(1).10
THE REMEDY
I have already found that the Respondent has engaged
in certain unfair labor practices which I recommend be
remedied by the issuance of an order charging Respon-
dent to cease and desist from the conduct found, to
further cease and desist from infringing in any other
manner upon the statutory rights of its employees, and to
issue an affirmative order reinstating employee James
Goins with backpay (TXD, VI). I shall reaffirm these
recommendations by appropriate reference in my Supple-
mental Recommendations herein In addition, I shall
recommend that Respondent bargain collectively with the
Union in the unit which I have found to be appropriate for
bargaining purposes , and I shall further recommend that
it be required to post a notice of compliance which con-
solidates the matters contained in both my original and
supplemental recommendations.
[Supplemental Recommended Order omitted from
publication I
10 The Great Atlantic & Pacific Tea Compam. Inc , 162 NLRB 1182