Herbert Halperin Distributing Corp.

National Labor Relations Board - Board Decisions

Feb 15, 1977

228 N.L.R.B. 239 (N.L.R.B. 1977)

HERBERT HALPERIN DISTRIBUTING CORP. 239
Herbert Halperin Distributing Corporation and Amal-
gamated Meat Cutters and Allied Workers of
North America, Local 593, affiliated with Amalga-
mated Meat Cutters and Butcher Workmen of
North America , AFL-CIO. Case 5-CA-7554
February 15, 1977
DECISION AND ORDER
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings.
3 We deem it unnecessary here to pass on the Administrative Law Judge's
conclusion that a bargaining order can never be unposed as a remedy where
the evidence fails to demonstrate that the union has attained majority status
in the appropriate unit or units . It suffices to find, as we do , that the unfair
labor practices found herein are neither so outrageous nor pervasive as to
justify the imposition of a bargaining order in the absence of a showing that
the Union achieved majority status. Chairman Murphy agrees with the
Administrative Law Judge 's conclusion that in order for the Board to issue a
remedial bargaining order it must be established that the union represented a
majority of the employees in the appropriate bargaining unit. South Station
Liquor Store, Inc, d/b/a Berenson Liquor Mart, 223 NLRB 1115 (1976).
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On September 20, 1976, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed separate exceptions, supporting
briefs, and answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Herbert Halperin
Distributing Corporation, Cheverly, Maryland, its
officers, agents, successors , and assigns, shall take the
action set forth in the said recommended Order.
I The Respondent filed a motion for leave to adduce additional evidence
for purposes of introducing into the record the October 20,1976, Decision of
the Board of Appeals for the Maryland Employment Security Administra-
tion which denied unemployment compensation benefits to Wayne Parker.
The General Counsel has opposed the motion. In view of the fact that the
proffered evidence has a bearing upon the issue as to the legality of Parker's
discharge and was unavailable at the time of the hearing, we shall grant the
Respondent's motion . The aforementioned decision is hereby received into
evidence . Cf. King Soopers, Inc., 222 NLRB 1011(1976).
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Hearing in
this matter opened on March 24 and closed on April 1,
1976, upon charges filed by the Union, a complaint issued
by the General Counsel on February 24, 1976, and an
answer filed by Respondent.
Upon the entire record in the case, including my
observation of witnesses and consideration of briefs, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent, a Maryland corporation, is engaged at
Cheverly, Maryland, in the wholesale distribution of meat,
cheese, and other food products. The parties agree,.and I
find, that Respondent meets the Board 's jurisdictional
standards and is engaged in commerce within Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within Section 2(5) of
the Act.
M. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent engaged in
specified violations of Section 8(a)(1) of the Act, that it
discharged three employees (Reginald Beaner, Roxie
Skates, and Veronica Hamlett) in violation of Section
8(a)(3) of the Act, and that it also discharged Wayne Parker
and Lester Price in violation of Section 8(a)(3) and (4) of
the Act. Alleging that the Union represented a majority of
employees in a described drivers-warehousemen unit at all
times since September 8, 1975 , the complaint also alleges
that Respondent violated Section 8(aX5) of the Act in
refusing to recognize the Union as statutory bargaining
representative of these employees. The General Counsel
228 NLRB No. 30
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requests the conventional remedial orders for these alleged
violations and he also seeks a bargaining order even if the
Union did not enjoy majority representation status.
Respondent denies committing any of the alleged unfair
labor practices . It also asserts, in effect, that the aforemen-
tioned bargaining unit (consisting of 53 employees) is
inappropriate ; it claims, rather, that only an overall unit
consisting of 65-68 employees is appropriate.
A. The Organizational Campaign
In July 1975 ,1 Wayne Parker (an alleged discriminatee)
met with Union Vice President Donald Cash and Organizer
Lucas Carleton and told them that some of Respondent's
employees were interested in the Union . They gave Parker
some union cards and arranged with him to set up
organizational meetings which he did . Employees attended
such meetings held away from Respondent 's premises in
August and September at a motel and at several homes,
including one at Parker 's residence on August 27. Employ-
ees meanwhile signed union designation cards . On Septem-
ber 4 the Union advised Respondent of its organizational
campaign , and on September 8 the Union filed a represen-
tation petition in Case 5-RC-9466. A hearing on the
petition was held on October 6, at which alleged discrimina-
tees Parker and Lester Price testified in behalf of the Union
on contested issues . The Regional Director did not issue a
decision in the representation matter and no election has
been held , the original charges in the present matter having
been meanwhile filed in September.
B. Interference, Restraint, and Coercion
The complaint alleges that Respondent violated Section
8(axl) of the Act in the following respects : (a) interrogation
on August 28 and thereafter concerning union matters by
President Herbert Halperin and Vice President Willie
Lewis; (b) threats by Halperin on August 25 to reduce
employees ' hours should they select the Union , by discon-
tinuing the practice of stacking customers' shelves and
instead delivering products directly to customers' ware-
houses; (c) threats by Halperin on August 28 and Septem-
ber 16 to reduce wages and hours should employees select
the Union ; (d) offers by Halperin on August 28 and
September 16 to bargain individually should employees
select the Union; (e) threats by Halperin in August and
September of loss of profit sharing and bonuses should
employees select the Union; (f) threats by Halperin on
August 28 and thereafter that, if a union came in, it would
be one of his , not the employees ', choosing ; and (g) threats
by Halperin on August 29 of loss of jobs should employees
engage in union activities.
Except for one item of alleged interrogation by Lewis,2
the complaint thus only alleges independent violations of
Section 8(a)(1) by Halperin who was, I find , a truthful and
an unusually candid witness . Respondent has a leadman
classification, and at the hearing in the representation case
the Respondent and the Union stipulated that the following
leadmen, among others, were employees and not supervi-
sors and therefore included within the voting unit -
Franklin Weaver, Wayne Wheeler, Norman Friedlander,
and Clifton Chapman . And, at the instant hearing, the
parties further stipulated that Lester Price also was, in
effect, a leadman and not a supervisor within the meaning
of the Act.
Halperin admitted that at a meeting with Parker, Chap-
man, Wheeler, and Price , on or about August 28, he
inquired whether they had any information about union
activities , and he further admitted confronting Parker and
Price to a similar effect on another occasion. Halperin
asked Parker why he wanted a union in the warehouse and
that Parker should not try to deny his role as "the
organizer." Parker told Halperin he desired a union
because existing wages were "not up to par" and Halperin
then said that "I will give you $10 an hour, but you can only
work 30 hours a week ," which Halperin then changed to
"20 hours a week." Halperin also told Parker that, if a
union were brought in, it would be a union of his
(Halperin's) own choice and Parker also gave testimony,
which I do not credit, that Halperin said he would change
his mode of operations with a resulting cutback in person-
nel. Price also testified that Halperin told him on one of the
aforementioned occasions that Halperin had heard that
Price, Parker , and Chapman were the union "ringleaders"
and that Halperin asked , "Are you or are you not? . . . if
you are, I want to know why, and if you are not, I am
warning you, don't get involved in it." Price also testified
that Halperin told him , "If the Union was what you all
want, then I would give you 20 hours a week." Price
testified that Halperin then "named X amount of dollars"
and went on to say "if that is what they want , then I will put
this plan into action starting as of Monday ." Price was
working approximately 45 hours weekly at the time and had
never worked 20 hours on a regular basis . Halperin testified
that he was only "kidding around" at the time and denies
that he was really threatening to cut any employee's
workweek to 20 hours and that the employees knew, and I
find they did know, the warehouse could not operate on a
20-hour-a-week basis.
I All dates are in 1975 unless otherwise stated.
2 1 credit Lewis' denial in this matter.
HERBERT HALPERIN DISTRIBUTING CORP. 241
Junius Thomas was an employee during this period and
he has since retired for medical reasons . Thomas testified,
in part, that he, Lewis, Price, and one Thompson attended a
meeting in Halperin's office on or about August 27 and that
Halperin instructed them "to fmd out who was behind [the
union drive] and get rid of them." Thomas testified that at
another similar meeting attended by Chapman and other
named persons (but not including Price or Parker) Halperin
said he had heard that Chapman, Price, and Parker were
the union "instigators" and that those present at the
meeting should "get rid" of any other employees whom
they found out to be "involved in this Union." Thomas
would thus have Halperin identifying Chapman as an
"instigator" at the second meeting attended by Chapman
and then instructing Chapman to get rid of all employees
involved in the Union. Chapman was a General Counsel
witness and gave no corroborating testimony concerning
this matter. And Price, one of the alleged discriminatees,
did not corroborate Thomas' let rid" testimony attributed
to Halperin at the first meeting. On his demeanor as a
witness alone - and apart from other considerations
concerning Thomas mentioned hereinafter - I would not
credit Thomas' testimony on contested matters. I therefore
do not find that Halperin gave the "get rid" instructions
attributed to him by Thomas.
On August 28, Halperin convened and presided at a mass
meeting of Respondent's entire work force. At this meeting
Halperin distributed two pages of questions and answers
about unions , and he read the document verbatim to the
assembled employees. The document explicates Respon-
dent's opposition to a union; however, the General Counsel
does not contend that the document itself infringes on any
statutory rights. The document states , among other things,
that it was Halperin "who gave you your job, your salary
increases, your profit sharing, your bonuses, your company
picnics, and your Xmas parties." And the document read
by Halperin also stated that Respondent "will not penalize,
punish, or discriminate against employees, no matter how
unwise we think it is that you have been involved in this
union activity."
The General Counsel adduced testimony of Parker,
Hamlett, and others to the effect that Halperin, while
reading the text of the aforementioned document, threat-
ened to reduce working hours and thus reduce the employ-
ee complement if the Union were selected by ceasing to
deliver merchandise to customers' stores and instead
making deliveries to customers' warehouses. In denying
having made such threats, Halperin credibly testified that
he did speak of an industry trend by supermarkets to
eliminate the function of having middleman distributors
(such as Respondent) make direct deliveries to stores.
However, Halperin had discussed the matter with employ-
ees several months before the union campaign began and
he told them on such earlier occasions that he was fighting
that trend. In fact, Respondent had recently lost two very
substantial accounts because of such trend, as the employ-
ees knew .3 According to Halperin, "I advised my employ-
ees that I had been fighting this to the point, I know we had
at that time 90 some employees and that a lot of employees
would lose a lot of jobs, if I had not fought this thing. I told
them on August 28th that if this was what they wanted, was
a Union, then why am I fighting for their jobs. " Employee
James Foley credibly testified that Halperin did not
threaten to cease direct deliveries to stores if the Union
came in.
Parker, among others, testified that Halperin said he
would "definitely" cut back all the hours and"everything
else" if the Union came in, and they referred in this
connection to "parties, picnics, miscellaneous things that he
had given us before, which included bonuses." 4 Halperin
credibly denied that he made these threats, and he testified
that he did tell the employees that unions usually have
pension plans and that "we would have to give up our profit
sharing because the Union pension plan would probably
come into the picture" for "we probably couldn't afford a
pension plan and a profit sharing plan." Foley credibly
testified that what Halperin did say in this connection was
that after a union contract was settled he did not know
whether he could afford the above-mentioned items.
Halperin admitted saying at the August 28 meeting, as
the General Counsel alleges, that "if the employees wanted
a union it would be one that [he] chose and not one of the
employees' choosing." However, General Counsel witness
Hamlett (an alleged discriminatee) testified that Halperin
also said he would not fight the Union and that "if the
employees wanted the Union they could have it." Of all the
General Counsel witnesses who testified about the August
28 meeting, only James Jamison testified - and incredibly
so - that Halperin also stated that he (Halperin) would
find out and get rid of the "trouble makers" the following
week.
Parker testified that at the meeting's end Halperin told
the employees to let him know in writing the following week
how they felt about the Union. Although this matter was
not alleged, the General Counsel contends it was litigated
because the testimony was given on cross-examination. I
3 Parker testified that Halperin informed the employees well before the
union campaign that Respondent had lost a large supermarket account and
that Halperin on that occasion polled the employees on whether he should
lay off some employees oravoid such cutback by reducing the hours of
all employees. The employees voted for the latter and Halpern acceded to
their desires
4 Chapman, a General Counsel witness, testified at first, for example, that
Halperin said profit sharing would be cut out if the Union came in Then he
testified he was not listening to everything Halperin said. Then it appeared
that Chapman had previously given the General Counsel an affidavit during
the investigation of the case. This affidavit recites that Halperin distributed
the question-and-answer document and that Halperin then "said things that
he had done for the workers and the company benefits. Mostly he read from
the pamphlet. I don't remember him making any threats "
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
am not certain that this purported item - in the nature of
interrogation - was in fact litigated. However, as there is
ample basis in this record for an "interrogation" order
without this particular item, I shall not consider it further.5
C. The Discharges
1. Reginald Beaner
Reginald Beaner was hired as a driver in June and fired
on August 28. He signed a union card on August 20 at one
of two union meetings he attended. Respondent denies
having had any knowledge of Beaner's union affiliation,
and further asserts that it discharged Beaner for cause.
On the morning of August 28, and after Beaner's truck
was loaded, Dock Leadman Wayne Wheeler instructed
Beaner to make deliveries in the following order - first to
National Airport, then to two locations in Northern
Virginia, then to Rockville, and last to Silver Spring,
Maryland. Wheeler also gave route information to Beaner
who, as a comparatively new driver, was not too familiar
with the routes. The Rockville delivery was to a new store
(Magruder's) which was to open for business on September
1. Respondent was setting up the new Rockville store for
the opening and hoped that by doing an especially good job
on this occasion it would be able to increase its accounts at
Magruder's two other stores in the greater Washington
area. This setup work involved delivery of the merchandise
and advertising material, placing and pricing of foodstuffs
on shelves, and obtaining maximum space for Respon-
dent's products.
Before Beaner left for his August 28 deliveries, Kenneth
Loren (Respondent's assistant sales manager) informed
Dock Leadman Wheeler that Loren and Richard Isey were
driving a station wagon with advertising material to the
Rockville store that morning and would devote the entire
day to setting up the store. Loren told Wheeler it was "most
important" that the merchandise in Beaner's truck reach
the store no later than 10 or I 1 a.m. as he and Isey would be
waiting to set it up. Loren asked Wheeler concerning the
sequence of Beaner's route stops, and, upon being informed
that Beaner would arrive in Rockville at 11 or 12 o'clock,
Loren said that was too late and that he (Loren) wanted
Beaner to make Rockville his first stop. Wheeler thereupon
intercepted Beaner as Beaner was about to drive off in his
truck that morning, and he directed Beaner to change the
order of deliveries.
There is a conflict at this point between Wheeler and
Beaner concerning Wheeler's revised delivery instructions.
Wheeler testified that he instructed Beaner to make the
Rockville store the first delivery stop, whereas Beaner
testified that Wheeler told him to make it the second stop
and before the Northern Virginia stops. Beaner, however,
admittedly did not make Rockville either the first or second
stop; thus, even under his own testimony, he disregarded
Wheeler's instructions and he admittedly did not head for
Rockville until completing deliveries at National Airport
and the Northern Virginia locations. About 11 a.m. Loren
called Wheeler from Rockville concerning Beaver's where-
abouts, and he repeated such call several times . Respondent
meanwhile called the other stops on Beaner's schedule in an
effort to locate him. By 1 p.m. Beaner still had not appeared
in Rockville. Loren then went out to Rockville Pike, a main
thoroughfare leading to the store, to look for the truck, and
finally he saw Beaner and flagged him down about 1:30
p.m. In addition to the delay caused by not following
Wheeler's instructions (under either version of the instruc-
tions, although I do credit Wheeler's), Beaner also had
difficulty finding the store even after reaching Rockville,
and he also testified that he was delayed in traffic by road
construction work en route from Virginia to Rockville,
Maryland.
Beaner testified that Loren was standing out on Rockville
Pike when Loren waved him down. Beaner testified that he
then pulled over and that Loren got up in the truck and
said, "Where in the hell have you been? ... I've been up
here all damned day waiting for you," and that Beaner had
"better have a good excuse where you've been." Loren and
Isey then unloaded the truck because, as Loren testified, "I
wanted to get him the hell out of there."
When Beaner returned to the warehouse after completing
his final delivery at Silver Spring, he met Wheeler, the dock
leadman . Beaner described Wheeler as "very angry," and
Wheeler told Beaner that Beaner had "really, fucked up"
and that Loren "had called him [Wheeler] three or four
times and cursed him [Wheeler] out about me [Beaner] not
going there." During this conversation, according to
Beaner , Wheeler mentioned that Beaner had been criticized
for "messing up" on a previous occasion in July or early
August. Wheeler thereupon told Beaner that Respondent
"couldn't use me [Beamer ] anymore."
Beaner reported for work the next day because of a
question concerning Wheeler's authority to discharge him.
He met Willie Lewis, vice president in charge of warehouse
5 The General Counsel adduced testimony concerning an employee
meeting convened by Respondent on August 21. Apart from the fact that the
complaint does not allege any wrongdoing at such meeting, there is no
credible evidence that the Union was mentioned at the meeting or that the
meeting had anything to do with union matters. Moreover, the record does
not establish that Respondent had any knowledge, and I find it had no
knowledge, of the union campaign until a later date.
HERBERT HALPERIN DISTRIBUTING CORP.
operations and a social acquaintance of Beaner's. (Lewis is
Wheeler's superior.) Lewis confirmed Beaner's discharge
with the statement that "everybody around here is uptight."
Beaner visited Lewis at the latter's home a day or two
later and Beaner testified Lewis then told him he was
"probably" terminated because everyone was "uptight"
about the "union." According to Beaner, Lewis did not
indicate that Beaner was fired because of his (Beaner's)
own union activities or that Lewis even knew whether
Beaner was a union member.
Willie Lewis was a completely trustworthy witness. He
credibly denied any knowledge of Beaner's union member-
ship and he also denied using the word "union" to Beaner.
What Lewis did tell Beaner was that Loren was "uptight"
and "angry at me [Lewis] and the whole dad-gone
warehouse" because Loren was "stuck out [in Rockville]
waiting for the merchandise."
2. Veronica Hamlett and Roxie Skates
Roxie Skates and Veronica Hamlett were hired in April
1974 and June 1975, respectively, and they were fired on
September 25. They are cousins and friends, and both
worked as commissary stampers and pricers in the cooler.
Respondent asserts it discharged them for not doing their
work properly, and also asserts a lack of knowledge of their
union membership and activities.
After work on September 3, Lester Price drove both
women from the company parking lot to a union meeting
where each signed a union card.6 Both women were
standing alongside Parker in the rear "of the crowd" at the
meeting attended by all company employees on August 28,
on which occasion Halperin singled out Parker as being
instrumental in the union organizing effort.
Both denied, at first - and Skates also did so in her
affidavit to the General Counsel-that they had been
reprimanded or received any complaints concerning their
job performance. Yet each later admitted on cross-exami-
nation, and the General Counsel agrees that the record
demonstrates, that "Skates and Hamlett were reprimanded
for making mistakes in pricing commissary items" and "for
taking too frequent breaks." Skates admitted that "about
once a week" during her entire employment period Lewis
spoke to her and Hamlett about being late for work and
that she was late again on September 24 and 25. The record
shows that there also were complaints to them about
telephone calls.
i The General Counsel's brief refers to testimony concerning Leadman
Norman Friedlander, and states that this purported incident occurred after
the September 3 union meeting . The testimony was stricken; moreover,
Hamlett on cross-examination admitted that she had been in error in her
testimony as well as in her affidavit in this regard and that the purported
243
Hamlett and Skates both testified that when Lewis left on
vacation before Labor Day he spoke to both women
together. Hamlett testified that he told them to keep "cool"
because "he wanted us here when he came back." Accord-
ing to Hamlett, he had no complaints about their work.
Skates admitted, however, that Lewis was really cautioning
them because of their past practice in these regards to be
mindful of "coming in late," "overuse of the telephone,"
"pricing mistakes," "too many breaks," and "too long a
break." Lewis credibly testified that he told them on this
occasion that "if they continue in messing up the work .. .
I don't know what would happen, once I got back [from
vacation]."
Lewis testified that upon returning from vacation he
received even more complaints from the sales department
about improper stamping and lack of stamping of some
merchandise and also about their use of telephone. Lewis at
first considered letting one of the women go and using a
male warehouse employee on a part-time basis to lift heavy
boxes concerning which the girls had complained. Lewis
testified that "I had so much flak [from Loren, Halperin,
and the sales department] I got disgusted with the whole
thing" and "I had no alternative but to let the girls go and
let Ken Loren and the sales department handle the work,
since the work wasn't done right." Lewis accordingly
advised Skates and Hamlett that they were no longer
needed.
3. Wayne Parker
Parker was hired by Respondent as a warehouseman in
February 1974; he later became a truckdriver and was fired
on or about October 10, 1975. Respondent knew that
Parker was one of the prime movers in the union campaign
and that he had testified in the Union's behalf at the
representation hearing on October 6. In addition to
admitting his interrogation of Parker and singling out
Parker at meetings, as set forth above, Halperin admitted
keeping Parker under surveillance for various reasons,
including the fact that he had been informed of Parker's
union role.
Parker was paid on an hourly basis and he testified that
beginning on August 28 (the date of Halperin 's meeting
with Parker and later with all employees) Respondent cut
back on his overtime assignments with a resulting loss of
income. He first estimated a weekly loss of 3, 4, or 5
overtime hours after August 28. Then he said he may not
conversation occurred before the company meeting on August 28. Friedlan-
der is not a company agent merely because he is the son of Respondent's
comptroller. His own supervisor was Price , whom the parties have stipulated
not to be a statutory supervisor.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have lost 4 to 5 hours every week , but that he "did lose
hours." Then he said, "Maybe I didn't lose three or four
hours, but I did lose [hours and] money," which he testified
to be at the overtime rate of $6.80 an hour . However, the
record establishes , as the parties stipulated , that - if
anything - Parker was assigned more, rather than less,
overtime work after August 28. During the 5-week period
ending August 29, Parker worked 40 hours each week and
had an additional total of 22.25 overtime hours , ranging
from a low of 3 hours a week to a high of 5.75 hours.
Working 40 hours each week during the following 5-week
period, Parker had 25.75 overtime hours, ranging from 3.3
hours to 7 hours.?
The General Counsel alleges that Respondent discharged
Parker because of Parker's organizing role and also because
he testified for the Union in the representation case.
Respondent claims that it discharged Parker for having
been involved in three traffic accidents within a 5-day
working period.
The first two accidents occurred within an hour on
Friday, October 3. In the first accident, Parker's truck
pulled off part of the fender of an automobile . In compli-
ance with company requirements, Parker obtained the
license, address, and registration of the other driver, and the
other driver summoned the police. The police officer did
not charge either driver for, according to Parker, the officer
could not determine which driver was at fault. The second
accident occurred as Parker was leaving the scene of the
first accident. He pulled out in front of and hit a moving
vehicle. The officer was still present from the first accident
and witnessed the second accident and he charged Parker
with a violation . Parker acknowledged his liability in this
instance. Parker obtained all necessary information on the
occasion of these first two accidents in order to complete
appropriate accident reports to the Company in accordance
with company procedures.
On October 10, while driving in traffic, Parker backed up
his truck and hit an automobile, causing damage to the
other vehicle. Parker did not summon the police as required
by company procedures; and, although he obtained the
name, address, and telephone number of the other driver,
he did not obtain other necessary information from the
other driver, including the license plate and registration
number of the other vehicle. Parker testified that he did not
call the police because only "minor" damage was involved;
he "thought" it was under $100, but he testified he really
did not know "because I am not a body man." Parker
further testified that he had no intention of paying for the
damages and "guessed" the Company would.
r Although the General Counsel did not specifically allege that Respon-
dent unlawfully cut back on Parker s overtime work after August 28, he did
adduce Parker 's testimony to such effect for the alleged purpose of
supporting his allegation that Halperin purportedly told Parker that hours
would be reduced if the Union came in . Parker's testimony in this connection
Parker later testified that he failed to summon a police
officer and to get the license and registration numbers of
the other vehicle and driver because he was "pretty shook
up" as a result of the accidents the week before and he felt
the third accident would put his job "in jeopardy." Parker
later added that he felt a third accident might bring about
his dismissal because Respondent knew of his efforts to
organize the Union.
When Parker returned to the warehouse after the third
accident, Halperin told him to fill out an accident report.
Parker said that before completing the report he would
have to obtain some necessary information over the
weekend from the other driver. It was during this conversa-
tion that Halperin first learned of Parker's two earlier
accidents. Halperin thereupon fired Parker with the expla-
nation that "I couldn't allow a person to have three
accidents in 5 days, because he would go around, he might
kill somebody tomorrow. And my business was in jeop-
ardy." Halperin testified, without contradiction, that to his
knowledge no other employee ever had three accidents
within 5 working days or within any other period.
Parker applied for unemployment compensation on
October 16, and he told the interviewer that he was
discharged for having three accidents. He testified that he
assigned this reason because the interviewer showed him at
the time a form filled out by Respondent stating the
accidents were the reasons for the discharge. It was not
until the following day, however, that Respondent filled out
and dated the form in question. Parker then further testified
in effect that he "felt" he was discharged because he had
"three accidents in five workings days."
4. Lester Price
Price was employed by Respondent from 1968 until his
discharge by President Halperin on October 10, 1975.
During his last 3 years, Price was in charge of approximate-
ly 20 cooler employees, and the parties have stipulated that
Price was a leadman and not a supervisor within the
meaning of the Act. Vice President Lewis testified that
Price is a "fine worker."
Respondent claims that "from September 1975 on, Price
began having problems with his subordinates , as well as
with the performance of his own job." And it relies in this
connection on several purported incidents involving Price's
own work as to price stamping, making repairs, and
cleaning up the cooler, as well as purported deficiencies by
employees under him in regard "to taking impermissibly
is significant in evaluating his credibility on this and other matters. My
appraisal of Parker's testimony and demeanor is not based in any respect on
the fact that I observed Thomas signaling answers to Parker while Parker was
testifying.
HERBERT HALPERIN DISTRIBUTING CORP.
long lunch breaks and repeatedly failing to punch out
during those breaks." For the reasons appearing hereinaf-
ter, I consider it unnecessary to burden this Decision with
minutiae of the aforementioned incidents.
Price signed a union authorization card at a union
meeting on August 20, and he attended many subsequent
meetings. Halperin admitted, as indicated above, that at a
meeting with Price and Parker and three other individuals
he asked Price and the others "if they knew anything about
the union activities. And they said no, they knew nothing
about it. And they were not involved in the union
activities." Halperin admittedly again confronted Price
concerning the matter and Price "told me that he had
nothing to do with this whatsoever, and he didn't want any
part of the Union." Price testified in the Union's behalf at
the representation hearing on October 6. Michael Halperin,
the son of Herbert Halperin, is in charge of Respondent's
institution business. Michael Halperin told Price on one
occasion that "we no longer have any respect for you
[Price]" because of the latter's union involvement and that
"from now on everything will be done directly by the
book."
Halperin candidly testified as follows concerning his
reasons for firing Price.
It was a combination of a lot of things. The man said he
couldn't get the work done. He lied to me. When we
talked about a 12 week period, about what was
happening in the cooler, in the warehouse and he said
he couldn't get the work done, it was a culmination of
when I asked him some questions pertaining to the
union and he said to me he was not involved with the
Union. I found out he was lying. When I asked him
some other questions and he lied to me about it. So this
was a culmination of a lot of things.
Upon being asked in what way Price had lied about the
Union, Halperin referred to his interrogation of Price
recounted above.8
Concluding Findings: Section 8(a)(1), (3), and (4)
Respondent is admittedly opposed to the unionization of
its employees, as it is entitled to be, and it is also entitled to
communicate such opposition to its employees and to
discuss with them the benefits achieved and enjoyed by
them without a union. It is also permitted to tell its
8 It should be mentioned , in fairness to Respondent, that Halperin
considered Price to be a supervisor and his employee status was litigated in
the representation case. Respondent continued to assert such contention in
245
employees that, in the process of negotiating and reaching
an agreement with a union, certain present benefits could
be traded off for certain other items deemed more impor-
tant by a union. The statutory limitation, so far as this case
is concerned, is that an employer may not threaten to
change its mode of operations or reduce wages or discontin-
ue certain fringe benefits merely because a union may be
selected as a bargaining representative. Respondent, in my
opinion, did not infringe on this statutory proscription. For
I find that, in all the circumstances of this case, Halperin
did not speak either in terms of reprisal or without rational
basis and in none of his statements, in question, do I find
"any implication" that he would take action "solely on his
own initiative for reasons unrelated to economic necessities
and known only to him . . . ." N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 618 (1969). See also Southern
Frozen Foods, Inc., 202 NLRB 753, 754-755 (1973); T. M.
Duche Nut Co., Inc., 174 NLRB 457, 458 (1969); TRW
Electronic Component Division, TRW, Inc., 169 NLRB 21,
22 (1968). Addressing the items, as enumerated in the
General Counsel's brief, I fmd that credible evidence in this
record does not preponderantly establish that Halperin
threatened, should employees select the Union, to reduce
hours by discontinuing stacking customers' shelves, to
reduce wages and hours or cut back on jobs, or to cause a
loss of profit sharing and bonuses. I also find no credible
record support, much less a preponderance, that Respon-
dent offered to bargain individually should the employees
select the Union.
There can be no question, however, that Respondent did
coercively interrogate employees concerning union activi-
ties . And, while it was not alleged, Respondent did
admittedly keep Parker under surveillance, at least in part
because of his union activities, and this too I find to have
violated the Act.
This leaves the factually supported allegation that Halpe-
rin did tell employees that it would be he, not they, who
would select a bargaining representative for them. Even if,
as Respondent urges, Halperin had no foundation for the
statement which was made in what he called a "heated
moment," I fmd that such utterance by an employer has a
tendency to interfere with, restrain, and coerce his employ-
ees in their guaranteed choice of a bargaining representa-
tive and that Respondent has thereby also violated Section
8(a)(1) of the Act.
Little need be added, in my opinion, concerning the
allegations of discrimination. Beaner's , Hamlett's, and
Skates' union activities were minimal, at most, and I find no
this case, and it remained a substantial issue until late in this proceeding
when the parties stipulated that Price was not a statutory supervisor.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cogent basis for inferring employer knowledge of their
respective union involvement and I fmd it had no such
knowledge . Even assuming employer knowledge , arguendo
only, the facts and circumstances, set forth above, prepon-
derantly establish that Respondent discharged them for
cause and not for reasons of union membership and
activities alleged by the General Counsel.
Parker and Price were actively involved with the Union;
the Respondent knew they were , and had interrogated them
about the matter ; Respondent was opposed to the Union;
and Respondent fired Parker 4 days after the representa-
tion hearing . These facts , taken alone , add up to a prima
facie case . But they are not alone. For, during this same
period, Parker was involved in three traffic accidents within
5 working days ; he was at fault in the second and third
accidents and in the third one he also failed to follow
company procedures as to summoning a police officer and
obtaining certain necessary information for reporting
purposes . Upon consideration of all the facts and circum-
stances of Parker's termination, I fmd that the record
establishes that Respondent discharged him for cause and
not for his union role or because he testified in the
representation hearing.
Price was fired for a "combination" of reasons, being a
"culmination," according to Halperin , "of when I asked
him some questions pertaining to the union and he said to
me he was not involved with the Union. I found out he was
lying." Price's union activity thus was at least a contribut-
ing cause of his discharge and "a discharge motivated only
in part by anti-union discrimination is similarly illegal." J.
P. Stevens & Co., Inc. v. N.LR.B., 380 F.2d 292,300 (C.A. 2,
1967), cert. denied 389 U.S. 1005. I accordingly conclude
that, by discharging Price , Respondent violated Section
8(a)(1) and (3) of the Act. I am unable to determine that the
discharge was additionally motivated by the fact that Price
had testified in the representation hearing , and I therefore
do not fmd that the record preponderantly establishes an
8(aX4) violation as to him. In either event, Price 's remedy is
the same.
IV. REFUSAL TO BARGAIN; Gissel BARGAINING ORDER
The complaint alleges that Respondent has violated
Section 8(a)(5) of the Act by refusing to recognize and
bargain with the Union on and since September 8, 1975,
and it alleges in this connection that:
At all times material since on or about September 8,
1975, a majority of Respondent's employees have
designated the Union to represent them for purposes of
collective bargaining with Respondent concerning wag-
es, hours and other terms and conditions of employ-
ment in a unit appropriate for collective bargaining
consisting of all employees employed by Respondent at
its Cheverly, Maryland location but excluding all office
clerical employees , salesmen , guards and supervisors as
defined in the Act.
Respondent asserts , however, that the smallest appropri-
ate unit in this case would necessarily include sales
personnel as well . This unit issue was fully litigated at the
hearing in the aforementioned representation proceeding
(Case 5-RC-9466) but, as indicated, the Regional Director
issued the complaint in this matter without issuing a
decision in that case . (The record in the representation case
has been incorporated in the instant record.) For reasons of
the Union's lack of majority, I find it unnecessary to reach
this unit question.
The General Counsel's brief states that the appropriate
date for determining the Union's representation status is
either September 8 or 9, 1975. On both dates there were 53
employees in the unit claimed appropriate by the General
Counsel, and 65-68 employees in the unit sought by
Respondent. The parties agree that no more than 22
employees had validly designated the Union as their
bargaining representative on either date. The Union
therefore did not represent a majority of employees in the
General Counsel's unit of 53 or Respondent's unit of 65,
and the General Counsel thus acknowledges that "the
record establishes that there was no card majority on any
relevant date."
Lacking majority for the Union's claimed status as
statutory representative, it would not seem necessary to say
more about a bargaining order here - under either 8(a)(5)
or Gissel principles .9 The General Counsel does seek a
bargaining order, nevertheless, even absent the Union's
majority status. The General Counsel thus argues that this
case is so marked by "outrageous" and "pervasive" conduct
as to be deemed "exceptional," and that an "extraordinary"
remedy of a bargaining order is therefore warranted even
though the Union never has enjoyed majority representa-
tive status.
The unfair labor practices found in this Decision fall
short, substantially perhaps, of the complaint issued by the
General Counsel, and I therefore do not know whether he
would continue to urge that the case is "exceptional" for
purposes of a bargaining order. The General Counsel,
moreover , has not addressed a question I suggested he treat
in his brief in this connection. That was whether, on the
assumption that a bargaining order is legally permissible in
9 N LR. B v. G:ssel Pack,ne Co., Inc., 395 U.S. 575 ( 1969).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the smaller of the two units asserted here, would such
bargaining order also be warranted if the larger unit be the
only appropriate one. In other words, how much of a
representation showing short of a majority does the
General Counsel deem lawfully sufficient to support a
bargaining order under this Act?
But I need not consider these questions. Nor is it
necessary to do ajunsprudential analysis on the underlying
question posed by the General Counsel's request, even on
the basis of his view of the case when he issued the present
complaint. For, in my opinion, the controlling law is clear;
no majority, no bargaining order. "In order for this Board
to issue a remedial bargaining order, it must first be
established that the Union represented a majority of
employees in the appropriate bargaining unit." South
Station Liquor Store, Inc., d/b/a Berenson Liquor Mart, 223
NLRB 1115 (1976). As far as I can ascertain , this has
always been the Board law, before and since Gissel.
Pre-Gissel: H. W. Elson Bottling Company, 155 NLRB 714,
715-716 (1965); J. P. Stevens & Co., Inc., 157 NLRB 869,
877 (1966), enfd. as modified 380 F.2d 292, 305, fn. 22 (C.A.
2, 1967), cert. denied 389 U.S. 1005; J. P. Stevens & Co.,
Inc., 163 NLRB 217, 228 (1967), enfd. as modified 388 F.2d
896 (C.A. 2); Clanebach, Inc d/b/a Carousel, 170 NLRB
341 (1968). Post-Gissel: South Station Liquor, Inc., supra,
Donelson Packing Co., Inc. and Riegel Provision Company,
220 NLRB 1043 (1975); Grismac Corporation, 205 NLRB
1108, 1118-19; (1973); Litho Press of San Antonio, 211
NLRB 1014, 1019 (1974); Fuqua Homes Missouri, Inc., 201
NLRB 130 (1973); The Loray Corporation, 184 NLRB 557,
559 (1970).
I accordingly reject the General Counsel's request for a
bargaining order, as contrary to law on both 8(a)(5) and
Gissel grounds.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
union activities, engaging in surveillance of union activities,
and telling employees they may have a union but only of
Respondent's own choosing, Respondent has violated
Section 8(a)(1) of the Act.
4. By discharging Lester Price because of his union
activities, Respondent has violated Section 8(a)(1) and (3)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
10 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
246A
6. At no material time herein has the Union been, and it
is not now, the exclusive bargaining representative of
Respondent's employees in an appropriate unit within
Section 9(b) of the Act.
7. Respondent has not engaged in any other violations
of the Act alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action, including reinstating
and making whole Lester Price, in order to effectuate the
policies of the Act. Allbackpay computations shall be in
accordance with F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co, 138 NLRB 716
(1962).
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER to
The Respondent, Herbert Halperin Distributing Corpo-
ration, Cheverly, Maryland, its officers , agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union member-
ship and activities.
(b) Engaging in surveillance of employees for union
reasons.
(c) Telling employees they may only have a union of
Respondent's choosing.
(d) Discharging employees for reason of membership and
activities in behalf of Amalgamated Meat Cutters and
Allied Workers of North America, Local 593, affiliated
with Amalgamated Meat Cutters and Butcher Workmen of
North America, or any other union.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Lester Price immediate and full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make Price
whole, as set forth in the section of this Decision entitled
"The Remedy," for any loss of earnings suffered as a result
of the discrimination against him.
of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
246B HERBERT HALPERIN DISTRIBUTING CORP.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(c) Post at its place of business at Cheverly, Maryland,
copies of the attached notice marked "Appendix." I I Copies
of said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, mclud-
ing 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.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
"" 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL reinstate and make whole Lester Price.
WE WILL NOT question employees concerning union
membership and activities.
WE WILL NOT engage in surveillance of employees
for union reasons.
WE WILL NOT tell employees they may only have a
union of our, rather than their, choosing.
WE WILL NOT in any other manner discriminate
against employees for union reasons or because they
exercise their rights under the National Labor Rela-
tions Act.
All our employees are free to join or remain members of
Amalgamated Meat Cutters and Allied Workers of North
America, Local 593, Amalgamated Meat Cutters and
Butcher Workmen of North America, or of any other
union, or not to loin or remain members unless such
membership is required under a lawful contract under the
Act.
HERBERT HALPERIN
DISTRIBUTING CORPORATION