Hill-Behan Lumber Co.

National Labor Relations Board - Board Decisions

Jan 9, 1967

162 N.L.R.B. 745 (N.L.R.B. 1967)

HILL-BEHAN LUMBER CO. 745
discharging , failing to take back, or by engaging in any other conduct which
limits the job opportunities of employees because they engage in union activity
and choose to be represented by a union.
I WILL NOT coercively question employees about their union activity or
their feelings about union representation , or threaten to close the plant or
make other statements indicating that employees will lose their jobs because
of their union activity, or make promises of improved working conditions
if they cease their union activity and change their minds about union
representation.
I WILL NOT refuse to bargain , on request , with District 65, Retail , Whole-
sale and Department Store Union, AFL-CIO, or any other union which
represents a majority of the sorter-packers.
I WILL NOT in any other manner interfere with, restrain , or coerce my
employees in the exercise of the rights guaranteed them by Section 7 of the
National Labor Relations Act.
I WILL offer Charles Bell, Albert McClinton , and Daniel James immediate
and full reinstatement to their former jobs, with all of their former benefits
and will pay them for any losses they may have suffered because of my
failure to employ them due to the fact that they engaged in union activity
and decided to be represented by District 65.
I WILL bargain , upon request, with District 65 about the wages , hours, and
other conditions of employment of the sorter -packers and , if agreement is
reached, will put it into writing and sign it.
The bargaining unit consists of the warehouse freight handlers (packer-
sorters ) exclusive of office clerical employees, guards, and supervisors as
defined by the Act.
All of my employees are free to become and remain or to refrain from becom-
ing or remaining members of District 65 , or of any other Union, unless union
membership is required by a valid provision in a collective-bargaining contract.
JENNO GurrMAN,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-I will notify any of the above -named employees 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 Mili-
tary Training and Service Act, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building , 745 Fifth Avenue, New York, New York 10022, Tele-
phone PL1-5500, Extension 852.
Hill-Behan Lumber Company and Retail, Wholesale Employees
Union, Local 291, affiliated with Retail , Wholesale, Department
Store Union , AFL-CIO. Cases 13-CA-6942 and 13-RC-10492.
January 9, 1967
DECISION AND ORDER
On September 15, 1966, Trial Examiner Frederick U. Reel issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
162 NLRB No. 65.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions and
a supporting brief, and the General Counsel filed a brief in answer
to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three- member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
iulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated proceeding ' heard before Trial Examiner Frederick U. Reel
at Chicago, Illinois, on May 2-4 and July 1-2, 1966 , arises out of a representation
petition filed January 27, 1965,2 an unfair labor practice charge filed March 8,
and a complaint issued August 2. The proceedings were consolidated by order of
the Regional Director on March 2 , 1966 . At issue in the unfair labor practice
proceeding are whether Respondent , herein called the Company interfered with,
restrained , or coerced its employees in violation of Section 8(a)(1) of the Act
and unlawfully refused to bargain with the Charging Party, herein called the
Union, in violation of Section 8(a)(5) of the Act. The representation proceeding
presents questions as to whether the election held therein should be set aside
because of alleged employer misconduct affecting the election , and whether the
Union's challenge to the ballot of one Leroy Miller should be sustained or
overruled.
Upon the entire record,3 including my observation of the witnesses and after due
consideration of the briefs filed by General Counsel and the Company ,4 I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The Company, a Missouri corporation , engaged in and around Chicago, as well
as in other areas not involved herein , in the retail distribution of lumber and
hardware products, has gross sales annually exceeding $500,000 and annually
' The caption reflects an amendment to the charge, made at the hearing , to conform the
identity of the Charging Party to that of the Petitioner in the RC case
2 Unless otherwise indicated, all dates herein refer to the year 1965
3 General Counsel's motion of July 12, 1966, to correct the record and substitute photo-
stated copies of exhibits is unopposed and is herewith granted Respondent ' s motion of
July 20, 1966, to correct the transcript, likewise unopposed, is likewise granted, except in
the following respects : Page 1A line 12, change "Grabeman" to "Grabemann" ; page 420,
line 24 , change "would " to "would not", page 472 , line 7 , change "within" to "with him in "
4 Upon my own motion I hereby order stricken the last paragraph on p 30 of Respond-
ent's brief , as scandalous , scurrilous , and unprofessional Cf Supiease Caanosl v Green,
237 U S. 531, 546, Coo v Wood, Commandant of Camp Funston, .n the State of Kansas,
247 U S. 3, 6-7.
HILL-BEHAN LUMBER CO. 747
receives in Illinois from points outside that State goods valued in excess of $ 50,000.
The Company admits, and I find , that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The pleadings establish,
and I find, that the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Alleged violations of Section 8(a) (1)
1. The evidence adduced by General Counsel
The Union's organizing drive began late in January 1965, and the election was
held the following February 27. During the intervening month, according to wit-
nesses called by General Counsel, certain conversations took place which are alleged
to be violations of Section 8(a)(1). I detail them here in the order in which they
appear in the record.
a. According to employee Vincent O'Doherty, shortly after the union meeting
of January 22, he initiated a conversation about the Union with Leroy Miller,
whose alleged supervisory status is discussed infra, in the course of which Miller
said that joining the Union "was a bad idea, that the Company wouldn't like it.
It would be better not to have anything to do with the Union." The same day
Store Manager Partyka, after remarking that he had heard about the union meet-
ing, asked O'Doherty the names of those who had attended the meeting, what it
was all about, and whether anything had been said about the managers, all of
which O'Doherty answered. After another union meeting before the election,
Partyka again asked O'Doherty to name those who had attended and whether com-
plaints had been raised about managers, and O'Doherty again answered Partyka's
questions.
b. A day or two before the election, A. J. Miller, a company vice president,
spoke to O'Doherty in Partyka's office and urged him to vote against the Union,
statmg: "You know, Vince, you don't have to join a union to get ahead," and
that "the sky was the limit" insofar as commissions were concerned.
c. Employee Earl Hansen testified that about a week before the election Com-
pany Supervisor Walter Borg, Jr., asked if Hansen thought the Union would help
Hansen as an employee, inquired as to the amount of union dues , stated that he
did not think the Union would get enough votes, and added that he did not think
the Union "could do any good as far as the employees were concerned."
d. Employee George LaLiberty testified that about 2 weeks before the election
in the presence of employee Carl Anderson, employee Walter Borg, Sr., asked
LaLiberty if he had attended a union meeting, and went on to advise him that
he was better off without the Union and would make less money if the Union
came in. About 3 days before the election, according to LaLiberty's testimony,
Walter Borg, Jr., told him that the employees would be better off not having the
Union and that they should give young Behan, who had recently come to Chicago
as head of operations there, a chance. Borg at this time stated that only five or
six men would vote for the Union.
e. Employee Ralph Burndahl testified to a conversation with Borg, Junior, late
in January during which Borg inquired whether Burndahl had been at a union
meeting and how many were there. According to Burndahl, when he told Borg
14 had attended, the latter said the Union only had 9. Borg inquired into the
identity of the men present at the meeting, and Burndahl named two or three.
Burndahl further testified that Borg then stated "it won't do those fellows any
good," and also said he would give Burndahl a report of what was going to
happen.
f. Burndahl testified to a conversation 2 days before the election with Company
Vice President Miller, in the course of which Miller referred to the election,
reminded Burndahl that he had come to the Company looking for a job, and
added that the Company felt he should be loyal to it. Burndahl then mentioned
two accounts about which he had been complaining to the managers for over a
year for not receiving proper commissions. Miller replied that he would have
Borg, Junior, "check into" the matter as a "favor" to Burndahl, adding, "I'll do
this for you and you'll do this other for me," a reference to Burndahl's voting
against the Union.
g. Employee Carl Anderson, who was present when Borg, Senior, spoke to
LaLiberty, testified that on this occasion Borg asked how LaLiberty felt about a
union and that when LaLiberty replied he was going "along with the rest of the
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boys," Borg told him that a union would not help him very much, adding: "Well,
you know what's going to happen if this union comes. They're going to hire all
new help, basically, and some of you old timers, why, you'll be laid off."
h. Employee Paul Newberg testified that late in January 1965, Walter Borg, Sr.,
spoke to him about the union campaign, stating: `sit will never go" and adding:
. you are making money, and I don 't see why you want to get into it. You
won't be making this much because everybody will be equal then." About a week
before the election Newberg had a conversation with Walter Borg, Jr., in which
Borg asked what Newberg thought about the Union, and added that Borg did not
think the Union would succeed as most of the men were against it, that it bene-
fited only certain men, and that they should give Behan , who was new, a chance
to make things better.
i. Employee Norman Swanstrom testified to a conversation with Walter Borg,
Jr., a few days before the election in which Borg asked Swanstrom to vote in
favor of the Company, said that "the Union would not be too good a deal for
us," and suggested that as young Behan had just come in , the men should "give
him a break."
j. Employee Philip Walsh testified that about 2 weeks before the election Store
Manager Partyka asked him who had attended union meetings. Walsh testified to
a conversation on the morning of the election with Company Vice President A. J.
Miller, who told Walsh that Walsh would have to pay union dues and Miller
"didn 't think it would do us much good."
2. The Company's defenses to the 8(a)(1) allegations
The remarks attributed to Partyka, A. J. Miller, and Walter Borg, Sr., are unde-
nied as none of them testified. Partyka was in ill health and unable to appear at
the hearing, A. J. Miller had died, and Borg, Senior, was not called to testify.
Nevertheless the Company by evidence or argument seeks to minimize or explain
the episodes detailed above.
a. The interrogation attributed to Partyka (items a and j) in which Partyka
repeatedly sought information as to the identity of those attending union meet-
ings was, according to the Company, mere casual curiosity on the part of a rela-
tively minor supervisor, and did not reach the level of coercive inquiry.
b. The Company denies legal responsibility for the statements of Walter Borg,
Sr. (items d , f, and h ), in which the elder Borg not only interrogated employees
as to their union activities but warned them that advent of the Union would result
in lesser earnings and layoffs . Borg at the time he made these statements was a
part-time employee , having retired from his status as a store manager at the end
of 1963 at which time he commenced drawing social security benefits. He is the
father of Walter Borg, Jr., who for 16 years has been a leading company official
as branch yard supervisor and manager of the retail sales department. The elder
Borg, since his partial retirement, has worked at the Company's Elston Avenue
store on the nights when the store manager is off duty, and also on Saturdays.
c. The Company contends that statements attributed to A. J. Miller (items b,
f, and j) are improperly in evidence under the "Dead Man's Statute" as Miller
had died before the hearing in the case. The Company further contends that Miller
confined his remarks to "views, argument, and opinion," permissible under Sec-
tion 8 (c) of the Act.
d. Walter Borg, Jr., testified with respect to the episodes concerning him (items
c, d, e, h , and i ), in some instances denying or explaining the particular state-
ments attributed to him. Thus, he admitted inquiring of Burndahl late in Janu-
ary 1965, as to whether Burndahl had attended a union meeting and also asking
Burndahl to rame the others who had attended, but Borg testified that he pref-
aced these queries by assuring Burndahl that the answers would not prejudice
Burndahl in his employment. Borg denied that he told Burndahl the Union had
only nine at a meeting and that he would give Burndahl a report of what was
going to happen . Borg also denied asking Hansen how much union dues would be,
denied telling either Hansen or Newberg that a union would not do the employees
any good, and denied telling LaLiberty that a majority of the employees would
vote against the Union.
Borg freely admitted that he and the late A. J. Miller spoke to the employees
individually before the election in an effort to defeat the Union, but emphasized
that counsel had carefully instructed both himself and Miller to confine themselves
to views, argument , and opinion , and to refrain from threats or promises , instruc-
tions to which, Borg testified , he faithfully adhered.
HILL-BEHAN LUMBER CO. 749
3. Conclusions with respect to the violations of Section 8(a)(1)
The efforts of Store Manager Partyka and Company Official Walter Borg, Jr.,
to ascertain the identity of employees attending union meetings by asking other
employees to name those who attended amount to "interference, restraint, or
coercion" violative of Section 8(a)(1). Likewise violative of the Act was A. J.
Miller's effort to get Burndahl to vote against the Union by promising to look
into Burndahl 's claim for increased commissions .5 I find no violation in the state-
ments of Walter Borg, Jr., other than the interrogation referred to above, as I
credit his version of his interviews with employees , and see no, "promise of bene-
fit" in his urging them to give the new head of the Chicago operation "a chance"
before bringing in a umon.
The statements of Walter Borg, Sr., however, are plainly violative of Section
8(a) (1) if they may be properly attributable to the Company. Upon this record,
and upon the decided cases, I find that the Company is legally responsible for them.
The elder Borg was not only a former store manager , who upon his partial retire-
ment continued to work the two evenings when the new manager was not on
duty, but he is also the father of a leading company official . Under these circum-
stances the employees would regard statements from the elder Borg that if the
Union came in the Company would hire new help and lay off the oldtimers, or
that the employees would make less money, as expressing company policy of
which they would expect him to be advised . To be sure there is no direct proof
that the Company authorized these statements or was apprised of them. Such
proof , by the very nature of the case , could only come from admissions of the
Borgs, an unlikely circumstance . But it may be fair to note that the Company,
although apprised by the complaint as well as by the testimony of the allegations
involving the elder Borg, did not see fit to put him on the stand or to ask Borg,
Junior, whether he was aware of the statements his father had made. To be sure,
the burden of proof rests on General Counsel , but the failure to adduce testimony
which is peculiarly within the Company's province may be some evidence that the
testimony if adduced would not have been favorable to it . See, e.g., W. H. Miner,
Inc. v. Peerless Equipment Co., 115 F.2d 650 (C.A. 7), cert. denied 312 U.S.
687; N.L.R.B. v. Kalof Pulp & Paper Corporation, et al., 290 F.2d 447, 451
(C.A. 9), and note 5 ALR 2d 893, 896, 907-908, 909-911 .6 And, under a host of
decisions, the fact that the elder Borg did not occupy a supervisory position is not
fatal to a finding that the Company is legally responsible for his utterances ; indeed,
the employees would be far more likely to consider his statements as reflecting
company policy than they would statements of present store managers who although
technically "supervisors" were in actuality less close than the elder Borg to the
actual fount of company policy. See, e.g., N.L.R.B. v. American Casting Service,
Inc., 365 F.2d 168 (C.A. 7); see also I.A.M. v. N.L.R,B., 311 U.S. 72, 80; H. J.
Heinz Company v. N.L.R.B., 311 U.S. 514, 520; N.L.R.B. v. Fiore Bros. Oil Co.,
Inc. & Amalgamated Union Local 355, 317 F.2d 710 (C.A. 2).
In summary , I find that by the interrogations of Borg, Junior, and Partyka
designed to elicit the names of those attending union meetings , by A. J. Miller's
promise to look into Burndahl 's commissions in return for Burndahl's voting
against the Union , and by the statements of Borg, Senior, that advent of the Union
would lead to the Company 's laying off a number of its present employees, and to
a reduction in their earnings, the Company violated Section 8(a)(1) of the Act.
5 The union members who testified to their conversations with A. J. Miller were com-
petent to do so, notwithstanding his death, as they had no "certain , direct, and immediate"
interest in the outcome of the litigation . Brownlie V. Brownlie, 351 Ill . 72, 183 N.E. 613;
Adams v. First Methodist Episcopal Church, 251 Ill. 268, 96 N.E. 253; Bellman v. Epstein,
279 Ill. 34 , 116 N E. 707 ; Britt v. Darnell, 315 Ill. 385 , 146 N.E. 510 ; Williams v. Garvin,
389 Ill. 169, 58 N.E 2d 870; Spencer v. Wilsey, 330 Ill. App . 439, 71 N.E.2d 804. See also
Price V. United States, 335 F.2d 671, 676-677 (C.A. 5) ; Walliok and Schwalm Company,
et al v. N L R.B , 95 NLRB 1262, 1263, footnote 4, enfd. 198 F 2d 477 (C A. 3). The cases
relied on by the Company are distinguishable in that the witness or his organization had
a direct pecuniary interest in the outcome of the litigation.
In crediting Burndahl 's testimony concerning his conversation with A. J. Miller, I note
that it was corroborated in significant part by the direct testimony of William L. Behan
III, a witness for the Company.
6 To the extent that the foregoing discussion may be said to involve a pyramiding of
inferences , see the discussion of that problem in N.L R .B. v. Cameo, Inc ., 340 F 2d 803,
811 (C.A. 5), cert denied 382 U.S. 926.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged violation of Section 8(a) (5)
As stated above, the Union commenced its organizing drive in the latter part
of January 1965, and by January 27 had received signed cards from 12 employees
(a 13th signed on February 9) reciting that the signer requested and accepted
membership in the Union and authorized it to act as his bargaining representa-
tive. This constituted a majority of the employees in the appropriate bargaining
unit, which the pleadings establish comprises "all inside sales employees of the
Respondent at its Chicago area retail locations, but excluding office clerical employ-
ees, outside salesmen , yardmen, warehousemen, truck drivers," and other, statutory
exclusions. As of January 27 the bargaining unit consisted of 21 employees, if we
include Leroy Miller whose status is discussed infra.7
The Union wrote the Company on January 27, stating that the Union represented
a majority of the employees and requesting recognition. The letter further stated
that if the Company entertained doubts as to the Union's majority status, the Union
"would be happy to exhibit to a neutral observer, for example a member of the
11clergy upon whom we might mutually agree, evidence of our majority [status] . . .
The Union further advised the Company in this letter that the Union was filing a
representation petition with the Board but was "ready and willing to enter a bar-
gaining relationship on the basis of voluntary and immediate recognition."
On January 29 union officials called at the company offices to inquire into the
matter, and repeated the offer to prove the union majority through a card check
by a neutral. The company spokesman replied that the matter would be handled
by counsel, a position which the Company confirmed by a letter dated February 2.
Subsequently company counsel advised the union officials that the Company would
not agree to a card check but would insist on the Union's proving its majority
in an election. The Union reiterated its readiness to submit to a card check, and
repeated this position at a conference in the Board's Regional Office on Febru-
ary 10, at which time arrangements were concluded for an election to be held on
February 27.
According to the testimony of company officials, they doubted that the Union
represented a majority of the employees, although there is no testimony that they
ever expressed those doubts to the Union, and it is clear that they never accepted
the Union's offers to demonstrate its majority by showing the signed authorization
cards. In these respects the case appears to be on all fours with N.L.R.B. v. C. J.
Glasgow Company, 356 F.2d 476, 479 (C.A. 7), where the employer's refusal to
bargain was held violative of Section 8(a)(5). See N.L.R.B. v. Elliott-Williams Co.,
Inc., 345 F 2d 460, 463-464 (C.A. 7).
Moreover, after learning of the Union's claim to majority status, the Company
engaged in the unfair labor practices described above. Under these circumstances,
the election (in which the Union obtained a 10 to 9 majority with 1 challenge, yet
to be ruled on, probably resulting in a tie ) cannot be considered as a fair test of
uncoerced employee sentiment, and hence resort to other means of testing the
Union's majority (i.e., to the authorization cards) is appropriate if not required.
See, e.g., N.L.R.B. v. Frantz and Company, 361 F.2d 180, 183 (C.A. 7); N.L.R.B.
v. Mid-west Towel and Linen Service, Inc., 339 F.2d 958, 962-963 (C.A. 7);
N.L.R.B. v. Daniel Crean and Joseph Messoie d/b/a The Grand Food Market,
326 F.2d 391, 396-397 (C.A. 7); N.L.R.B. v. Economy Food Center, Inc., 333
F.2d 468, 471-472 (C.A. 7); Happach v. N.L.R.B., 353 F.2d 629, 631 (C.A. 7).
The employer's own unfair labor practices in this case preclude an assertion that
it was acting in good faith when it insisted on the election.8
"General Counsel's Exhibit 2 lists 23 employees, but one (Matusiak) is eliminated by
stipulation. General Counsel would also exclude Walter Borg, Sr I would exclude the
elder Borg, whose self-imposed limitation on his earnings and whose close family ties
to a leading company official indicate that his interests are not those of the other em-
ployees in the unit See Cherrin Corp. v. N.L R B , 349 F 2d 1001 (C.A. 6), cert. denied 382
U S 981 ; Horn & Hardart Company, 147 NLRB 654, 659, and cases there cited in foot-
note 12. Even if I am in error as to Borg, and assuming Miller's inclusion the union
majority is unaffected ; It had 12 cards out of 22 on January 27, 1965
8 Even if, contrary to my view, some of the threats found above (those of the elder Borg)
are not attributable to the Company as a matter of law, they nonetheless had an impact
on the employees which prevented the election from being a fair test of employee sentiment
Cf. N L R.B. v. Staub Cleaners, Inc., and Ben Barnet Cleaners , Inc, 357 F 2d 1, 2-3
(C A. 2). Since the election must be set aside , resort to authorization cards is proper even
if the employer is not responsible for the coercive atmosphere See Photobell Co , 158 NLRB
738, footnote 1.
HILL-BEHAN LUMBER CO. 751
Under settled law, therefore, the Company's refusal to bargain with the Union
at a time when the latter represented a majority of the employees violated Section
8(a) (5) and (1) of the Act. Moreover, a bargaining order should issue to restore
the status quo ante and to remedy the violations of Section 8(a)(1) even if there
were no violation of Section 8(a) (5). See N.L.R.B. v. Delight Bakery, Inc., 353
F.2d 344, 347 (C.A. 6), and cases there cited; Local No. 152, Teamsters v. N.L.R.B.,
343 F.2d 307, 309 (C.A.D.C.), and cases there cited.
III. THE REPRESENTATION PROCEEDING
A. Prefatory statement
Even assuming that the foregoing findings are upheld, and a fortiori if they are
not, it is necessary to resolve the challenge to Leroy Miller's ballot in the repre-
sentation case. If the foregoing findings are ultimately sustained, the Union will be
the beneficiary of a bargaining order, but the question whether it is entitled to the
protection of a certification (see for example, Section 8(b)(4)(c) of the Act) will
depend upon whether it won the election (i.e., Miller's ballot should not be
counted), or whether the election should be set aside because of company mis-
conduct; and if the foregoing findings of company misconduct should not be sus-
tained, then the Union's status as bargaining representative stands or falls on the
outcome of the election in which Miller's ballot, if he be eligible, could be decisive.
Without detailing all the steps in the representation proceeding, it suffices to note
that the election was held February 27, 1965, and following various rulings on
challenges, objections to the election, appeals to the Board, requests for reconsidera-
tion, and miscellaneous rulings thereon, the matter comes before me with the Union
holding a 10 to 9 margin among the valid votes counted, but with 1 ballot, that of
Leroy Miller, the subject of an unresolved challenge. The Union contends that
Miller is a supervisory employee ineligible to vote; the Company contends that
Miller is within the agreed-on bargaining unit. His vote may be, and probably is,
determinative of the result if the election is not set aside, for both on and off the
witness stand Miller made clear his opposition to the Union. We turn, therefore, to
a consideration of his duties and status.
B. The status of Leroy Miller
The Arlington Heights store, at which Leroy Miller had been employed from
the time he was hired late in 1961, through the events here in question early in
1965, was one of the larger establishments maintained by the Company in the
Chicago area. In addition to the yard manager, the store had three or four "inside"
salesmen, one of whom was Leroy Miller, and five or six other employees. The
yard manager in 1964 and early 1.965 was Stanley Partyka, who had been trans-
ferred to that location after managing a smaller operation. Miller was the "senior"
salesman in terms of length of employment at this location, and Partyka, acting on
the advice of Walter Borg, Jr., a leading officer of the Company, delegated certain
functions and responsibilities to Miller. The question is whether the duties which
Miller performed at Arlington Heights in addition to acting as a salesman there
were sufficiently "managerial" in character to transform him from a member of
the bargaining unit into a "supervisor" within the meaning of the Act.
According to Vincent O'Doherty, a salesman who transferred from another yard
to Arlington Heights late in the summer of 1964, both Partyka and Miller, himself,
referred to Miller as "managing" the retail store section. Miller instructed
O'Doherty in the latter's duties, explained that Miller or Partyka had to sign cash
refund slips, and told O'Doherty to keep track of the paint stock and let Miller
know when more was needed. Miller on two or three occasions told O'Doherty to
stock the shelves, passed on to O'Doherty instructions from the main office con-
cerning cash sale tickets, checked O'Doherty's cash sales book for accuracy of
entries, and reprimanded O'Doherty for deviations from company practices in such
matters as granting refunds and cashing his own paycheck, and for not letting
Miller know when O'Doherty would be late for work.
Shortly after the election, employee Carl Anderson was transferred to the Arling-
ton Heights store. He testified that he was told to report to "Leroy Miller, the store
manager," and that Miller frequently directed him to stock shelves, complained to
him when he punched in too early or too late, picked up the timecards each week,
told him to go to the bank, and took over Partyka's duties during the latter's
absence of a week or 10 days.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The third employee to testify concerning Miller's duties was Philip Walsh, who,
after a previous tour of duty at the Arlington Heights store, returned there in
December 1964 or January 1965. On this occasion, according to Walsh, Partyka
told him he would be taking orders from Leroy Miller. Walsh further testified that
shortly thereafter in a conversation with Miller, the latter observed that he was
now Walsh's "boss" although a few years before when Miller was hired Walsh
had been an experienced employee at the store. Walsh testified that Partyka often
referred him to Miller for information concerning matters arising in the store, and
that the salesmen referred to Miller as "store manager" and to Partyka as "yard
manager." Walsh testified that Miller frequently instructed him to stock shelves,
and also confirmed the testimony that only Miller and Partyka could approve cash
refunds. Walsh further testified that Miller also called his attention to errors in the
cash sales book, typed up the weekly timecards, took over Partyka's responsibilities
in the manager's absence, and shared with Partyka the authority to grant discounts
on large sales. Finally Walsh testified that Miller gave instructions to the janitor
or handyman concerning the rearranging of counters, painting, and the like.
The record establishes that Miller played a substantial role in the hiring of a
stockboy. At Partyka's direction Miller telephoned several high schools to advise
them of the opening, and Miller left his own name as the person the applicants
should see. Miller, thereafter interviewed the two applicants, and at Partyka's
request, expressed his preference for the one who was thereafter hired. According to
O'Doherty, who testified that he overheard the conversation between Miller and
Partyka, the latter said: "If he's okay with you, he's okay with me." Miller notified
the new stockboy of his being hired, advised him as to his hours, and later told him
his rate of pay. Miller also told the stockboy that he (Miller) was the stockboy's
"boss," and that Partyka was Miller's. Partyka told the boy that Miller would give
him orders, but that he (Partyka) was "the main boss." Miller notified the boy
when the latter's workhours were changed.
Miller, called as a witness by the Company, testified that he, like the other sales-
men but unlike the manager, is employed at an hourly rate (higher than that of
most other salesmen), punches the timeclock, and does not participate in man-
agers' meetings, receive a bonus, or participate in a profit-sharing plan. Miller
explained that while he had cards printed which identified him as "store manager,"
this was to compensate for his youthful appearance which he thought caused him
to lose sales, and did not betoken any real authority on his part. As to his checking
of the cashbooks, telling salesmen to stock shelves, and reproving them for viola-
tions of company rules or policies, Miller testified that to the extent he engaged in
these matters, he acted for the employees' own good.
In sum, it is fair to say that Miller, although he lacked some of the prerequisites
which the Company vested in its managers, acted in a managerial capacity in the
store, both with respect to customers and with respect to other employees. The
Company argues that if Miller be found a supervisor, the store had an abnormally
high ratio of supervisory employees. But this contention cannot prevail against the
testimony of every employee witness (Partyka was ill and unable to testify) that
the employees on being told to report, or on reporting, at the Arlington Heights
store were told by management representatives that they would take orders from
Miller. I find, therefore, that Miller was a supervisor within the meaning of Section
2 (11) of the Act.
CONCLUSIONS OF LAW
1. The Company by the interrogation, threats, and promise of benefit, described
above, engaged in unfair labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
2. By refusing to bargain with the Union as representative of the employees in
the agreed appropriate bargaining unit, the Company engaged in an unfair labor
practice affecting commerce within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the Act.
THE REMEDY
I shall recommend an order directing the Company to cease and desist from its
unfair labor practices, to bargain with the Union upon request (a provision I would
include to remedy the violation of Section 8(a)(1) even had there been no viola-
tion of Section 8(a)(5)), and to post appropriate notices.
I further recommend that the challenge to the ballot of Leroy Miller should be
sustained.
HILL-BEHAN LUMBER. CO. 753
Accordingly , on the basis of the foregoing findings and conclusions , and on the
entire record , I recommend , pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent , Hill-Behan Lumber Company , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail , Wholesale Employees Union,
Local 291 , affiliated with Retail , Wholesale, Department Store Union , AFL-CIO, as
the exclusive representative of the employees in the following appropriate unit:
All inside sales employees of the Respondent at its Chicago area retail loca-
tions, but excluding office clerical employees , outside salesmen , yardmen,
warehousemen , truckdrivers , professional employees, guards, and supervisors
as defined in the Act.
(b) Expressly or impliedly threatening its employees with loss of employment or
loss of benefits because of their choice of a collective-bargaining representative.
(c) Promising employees benefits in an effort to persuade them to reject the
Union as their bargaining representative.
(d) Interrogating employees as to their union membership or activities , or as to
the union membership or activities of other employees.
(e) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Upon request , bargain collectively with the above -named Union as the exclu-
sive representative of all employees in the above-described appropriate unit, and
embody in a signed agreement any understanding reached.
(b) Post at its stores in the Chicago , Illinois, area the attached notice marked
"Appendix." 9 Copies of such notice to be furnished by the Regional Director for
Region 13 , after being signed by an authorized representative of the Respondent,
shall be posted immediately upon the receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered , defaced, or covered by
any other material.
(c) Notify the said Regional Director, in writing , within 20 days from the date
of its receipt of this Decision , what steps the Respondent has taken to comply
herewith.io
The challenge to the ballot of Leroy Miller in Case 13-RC -10492 is sustained,
and that proceeding is remanded to the Regional Director to issue a Certification of
Representative.
B In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner " In the notice . In the further event that the Board ' s Order is enforced by
a decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
10 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read . "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain upon request with Retail Wholesale Employees Union,
Local 291, affiliated with Retail, Wholesale, Department Store Union, AFL-
264-047-67-vol. 162-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, as the exclusive representative of our inside sales employees in the Chi-
cago area.
WE WILL NOT threaten layoffs or reduction of earnings because of our
employees ' choice of a collective-bargaining representative.
WE WILL NOT promise benefits to our employees in an effort to cause them
to reject the Union as their bargaining representative.
WE WILL NOT interrogate our employees as to their union membership or
activities or as to that of their fellow employees.
WE WILL NOT in any like or related manner interfere with our employees in
the exercise of their right to join or assist a labor organization , to bargain col-
lectively, or to engage in concerted activities for mutual aid or protection.
HILL-BEHAN LUMBER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street , Chicago, Illi-
nois 60604 , Telephone 828-7570.
Macy's Missouri -Kansas Division and Amalgamated Clothing
Workers of America, AFL -CIO. Cases 17-CA-2787 and 17-CA-
2883. January 9, 1967
DECISION AND ORDER
On August 25, 1966, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceedings, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
cross-exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
it the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
162 NLRB No. 70.