Kessler Supply Co.

National Labor Relations Board - Board Decisions

Dec 21, 1972

200 N.L.R.B. 1042 (N.L.R.B. 1972)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kessler Supply Company and Warehouse Employees
Union Local 169, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America Cases 4-CA-5916 and 4-RC-9576
December 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 10, 1972, Administrative Law Judge
John M Dyer issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and the General Counsel and Charging Party filed
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,
and conclusions 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, Kessler Supply
Company, Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order
IT IS FURTHER ORDERED that Case 4-RC-9576 be,
and it hereby is, severed from this proceeding and
remanded to the Regional Director for Region 4 for
the purpose of opening and counting the challenged
ballots of Robert Sutton and Charles Glover and
thereafter issuing the appropriate certification
DECISION
STATEMENT OF THE CASE
JOHN M DYER, Administrative Law Judge On January
18, 1972,1 Warehouse Employees Union Local 169,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, the Teamsters, or Local 169, filed a petition in Case
4-RC-9576 for a unit of warehouse employees at Kessler
Supply Company, herein called the Company or Respon-
dent On February 7, a hearing was held on the petition
1 Unless otherwise stated all dates herein refer to 1972
2 In this proceeding there was a question of whether Gary Semerdjian F
Patrick, Anthony Robinson and J Williams were supervisors within the
and a Decision and Direction of Election was issued by the
Regional Director of Region 4 on February 29 This
decision found the appropriate unit to consist of all
warehouse employees, inside sales clerks and truck drivers,
excluding outside salesmen, office clerical employees,
guards and supervisors as defined in the Act 2 The election
was held on March 20, resulting in six votes being cast for
the Union and six against, and four ballots were challenged
by Respondent Immediately following the election the
Union and Respondent stipulated that the challenges to
two of the individuals should be sustained since they were
ineligible to vote having been terminated The two
remaining challenges were to Charles Glover and Robert
Sutton
On March 24, the Union filed the charge in Case
4-CA-5916 alleging that Glover and Sutton were dis-
charged in violation of Section 8(a)(1) and (3) of the Act
Following the Region's investigation, the Regional Direc-
tor issued his supplemental decision and determination of
challenges in the representation case , sustaining the
challenges to Reynolds and Jackson, and in essence
affirming the stipulation of the parties that their ballots
would not be counted owing to their terminations at
Respondent The Regional Director stated that he would
issue an order consolidating Case 4-RC-9576 with Case
4-CA-5916 for a determination of whether Glover and
Sutton were discriminatorily discharged and whether the
challenges to their ballots should be sustained or dismissed
On May 26, the Regional Director issued his Order
Consolidating Cases, Complaint and Notice of Hearing in
the unfair labor practices case
The Respondent's answer was filed on June 6 and
admitted the requisite jurisdictional and commerce facts
and that Elkin Kessler was Respondent's president,
Solomon Kessler the vice president, and Harvey Kessler
the secretary and that they were officers and supervisors
within the meaning of the Act Respondent' s answer
denied the remaining allegations of the complaint which
alleged that Elkin and Solomon Kessler violated Section
8(a)(1) of the Act by interrogating employees as to their
union sentiments and threatening various reprisals against
union instigators and adherents and further denied that
Sutton and Glover had been discriminatorily discharged
on March 7 and 8, respectively
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to argue orally
at the hearing held on June 20 and 21 in Philadelphia,
Pennsylvania General Counsel, Respondent, and the
Charging Party have filed briefs which have been carefully
considered
The testimony by General Counsel's witnesses to a large
extent was mutually corroborative and was further corro-
borated by independent facts and practically all of the
statements alleged to violate Section 8(a)(1) were undenied
Respondent made some attempts to attack the credibility
of some of General Counsel's witnesses , but then failed to
explain away or deny the attributed statements The
testimony of the three Kessler brothers was alike in that it
meaning of the Act On the record before him the Regional Director found
these four individuals did not possess supervisory status and included them
in the unit
200 NLRB No 148
KESSLER SUPPLY COMPANY
was evasive Elkin Kessler's testimony was rambling,
somewhat confused, and contradictory The testimony
supplied by all Respondent witnesses appeared to be vastly
overstated on direct and reduced materially during cross-
examination Where there is conflict between the testimony
of General Counsel's witnesses and Respondent's, I have in
the main credited General Counsel's witnesses They
appeared to make an effort to recall and to answer
questions directly This cannot be said of Respondent's
witnesses As an example several of Respondent's witnesses
attempted to hide the fact that they had recently received
large raises
The question to be answered in this case is whether
Respondent knew or suspected that Sutton and Glover
were union supporters and whether the discharges were
effected because of that support or for a good cause I have
determined that Respondent violated Section 8(a)(1) and
(3) of the Act by the discharges and further independently
violated Section 8(a)(l) by various threats and statements
and will order the reinstatement of Glover and Sutton and
that the challenges to their ballots should be overruled
On the entire record in this case, including my evaluation
of the reliability of the witnesses based on the evidence
received, my observation of their demeanor, and the nature
and manner in which responses were made, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a Pennsylvania corporation with its
principal place of business located in Philadelphia where it
is engaged in the retail sale of hardware, paint, floor and
wall covering, and paneling During the past year Respon-
dent sold goods valued in excess of $500,000 and received
supplies and goods valued in excess of $10,000 directly
from outside the Commonwealth of Pennsylvania
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act
II THE UNFAIR LABOR PRACTICES
A Background and Undisputed Facts
Kessler Supply Company consists of some four or five
independent buildings linked together by archways The
Company is a hardware supply company and has its
departments in these buildings The section devoted to wall
paneling is under the direction of Company President
Elkin Kessler, who is assisted by Gary Semerdlian Charles
Glover, Juan Griffin, and Watford were the regular
employees in this section and an employee named Stricker
worked part time on the weekends Ralph Mills who drove
the large truck worked out of this section The wallpaper
section had Supervisor Patrick and employee Raymond
Dawson The hardware department under Harvey Kessler
had Supervisor Anthony Robinson and two employees,
1043
Ulysses Grant and Robert Sutton The floor covering
department was under Solomon Kessler and had Supervi-
sor J Williams and employees Jackson, Reid, and
Richardson
The supervisory status of Semerdpan, Patrick, Robinson,
and Williams was the main topic of inquiry in the
representation hearing, with the Company maintaining
that these four men were supervisors and the Union
claiming, and Robinson and Williams testifying, that they
were not truly supervisors since they did not exercise
independent authority orjudgment The Regional Director
in his Decision and Direction of Election stated that the
record before him disclosed that these four did not possess
the authority to effectively hire, fire , or reprimand
employees and that they acted as unit employees, punched
timeclocks, received the same vacation, bonus, and
hospitalization benefits, and were subject to the same
pension plan He further stated that there would be a
disproportionately high ratio of supervisors to rank-and-
file employees if it were found that these four were
supervisors in addition to the three owners The four were
included within the unit and voted in the election
Respondent's testimony in that case was contradictory to
some extent to that of Robinson and Williams
The Company has two trucks, one a large walk-in van
and the other a smaller panel truck Both trucks are
painted white and have foot and a half lettering in blue
identifying them as Kessler Supply Company trucks In
smaller lettering are phone numbers and some advertising
material Respondent opens at 8 a in and closes at 5 30
p in , Monday through Friday, and is open on Saturday
from 8 am until 3 p in There was testimony that the
neighborhood in which the Company is located has
deteriorated so that it is not possible for the Company to
remain open for business in the evenings
In the day-to-day running of the Company each of the
brothers devotes his time to his particular area Together
with the area supervisors they handle the cash drawers in
their particular sections The company employees are stock
clerks and salesmen with the exception of those who drive
trucks Ralph Mills was a truckdriver for Respondent for
some 10 years driving the large walk-in van Employee
Jackson drove the small panel truck on a more or less
regular basis, and Robert Sutton testified that he drove the
small truck some 20-25 times over a period of several
months Sutton's main duties were as a salesman-stock
clerk but he drove the small truck when it was necessary
From the testimony it appeared that most of the
employees eat lunch at a place called Bar Thirteen a short
distance from the Company's premises During their lunch
discussions during the first part of 1972, the employees
decided to contact a union and try to organize Glover
secured union authorization cards from the Union and
distributed them mainly at Bar Thirteen but gave out one
during lunch time to one of the employees near the plant,
and the other cards were distributed to employees' homes
during the evening Several union meetings were held
among the employees at Bar Thirteen and sometime in
February a meeting was held at the Union's hall at Broad
and Allegheny Streets in Philadelphia
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B The Unfair Labor Practices
Anthony Robinson testified that he was at the Board
office on February 7 and testified in the hearing in the
representation case James Williams and Solomon Kessler
were also witnesses , and Ralph Mills was present , seated
with the union witnesses , but was not called to testify,
counsel for the Union stating that his testimony would be
cumulative
Robinson testified that around 12 30 p in, about 45
minutes after he had returned to work on February 7,
Elkin Kessler took him aside and said that he knew that he
(Robinson), Mills, and Glover were the instigators and he
felt they had to be dealt with Robinson asked if he meant
they were going to be fired, and Kessler replied that he
didn't know but that something had to be done because the
Union was against his interests, and the men were either
for him or against him and he felt that the Union was
against him and if you were for the Union then you were
against him Robinson saw Elkin Kessler the following day
and Kessler repeated dust about everything he had said the
previous day and added that something would have to be
done with the instigators
This testimony was not denied or contravened in any
way, even though Elkin Kessler was a witness on two
occasions
There appears no reason to discredit Robinson 's testimo-
ny, and on the basis of his undenied testimony I conclude
and find that Respondent violated Section 8(a)(1) by Elkin
Kessler's repeated threatening of unspecified reprisals
against Robinson , Mills, and Glover because of their union
activities The repetition of this threat the second day with
the statement that something would have to be done with
them, added to the fact that the question of their possibly
being fired was not discounted by Kessler, establishes that
these were serious statements regarding the future employ-
ment of these three employees
Ralph Mills testified that sometime shortly after the
Company received a notice from the Labor Board in
February, Elkin Kessler on two occasions asked him if he
knew anything about a union , and on each occasion he
denied it This testimony was not denied or contravened in
any way
This interrogation, unprotected by any of the safeguards
established by the Board, viewed in the light of Respon-
dent's antipathy towards the Union and the other threats
made by Elkin Kessler, is unlawful interrogation in
violation of Section 8(a)(1) of the Act, and I so find and
conclude
Charles Glover testified that on Saturday, March 4, he
was working as usual when Elkin Kessler asked him to get
15 panels of a particular type of paneling which were
buried under two skids of paneling in the back room
Glover, whose testimony was corroborated by Juan Griffin
and others , stated that this was an unusual request in that
there are usually so many customers in the store on
Saturday, they do not take time to dig out paneling which
might be stuck away Ralph Mills testified that on that
Saturday a customer , named Fischer, asked him if they had
any more of the panels that Mills had previously delivered
to him Mills said he didn't believe there were any left
Fischer then asked Elkin Kessler about that paneling and
Mills overheard Fischer asking Kessler if he could get the
15 panels that day and Kessler said no, that he could get
them on Monday At that point Kessler and Fischer
walked off to one side and talked some more and later
Mills saw Kessler come back and heard him ask Glover to
get the panels Glover testified, and Mills corroborates
him, that Glover told Elkin Kessler he would get them if
Kessler would get somebody to help him get them out
Kessler told Juan Griffin to help Glover, and Juan Griffin
testified that they went into the back and got the paneling
which was under two skids of other paneling They admit
that there was some discussion or grumbling between them
about how unusual it was to do this on a Saturday
morning They loaded the paneling into the customer's
truck
Shortly thereafter Elkin Kessler called Glover aside and
told him he didn't think that Glover felt like working that
day and thought it would be best if he went home Glover,
who testified he knew that on other occasions Kessler had
sent people home during the day, replied that he didn't
intend to go home because he had come to work and
wasn't going to go home and not get paid for it Kessler
told him to go home and he would get paid for it Glover
got his check for that week, including Saturday, gave it to
Kessler who cashed it, and Glover left, stating he would be
back on Monday
Elkin Kessler's version of these events differs principally
in that he claims he discharged Glover on Saturday around
11 or 12 o'clock According to Kessler the store was rather
busy on Saturday when he told Glover to get some
paneling from the back for a customer, and Glover said he
wasn't going to do so Kessler said he repeated his request
and again Glover refused He then told Glover that, if he
wasn't going to get the order, to get his check, saying he
meant by that, that Glover was finished if he refused this
order Glover refused unless he got paid for the day
Kessler said he decided to pay Glover for the day in order
to get him to leave Glover returned to work on Monday
and worked through Wednesday before he was told to
leave According to Kessler, Glover did not get the
paneling out or load it in the customer's truck
Kessler admitted that on Saturday either Glover or
himself said something about seeing the other on Monday,
which would seem to negate any idea that Glover was
discharged on Saturday In any event Glover did work
Monday through Wednesday, and according to Kessler
nothing was said between them other than normal
conversation during those 3 days until he presented Glover
with a check for the full week on Wednesday
Kessler said that, when he fired Glover on Saturday,
Glover owed him $35 or so, and he decided to let him come
back and work it out the following week However during
the following week nothing whatsoever was said about the
debt nor was it deducted from the paycheck for the whole
week given Glover by Kessler on Wednesday Kessler did
not explain why he could not have deducted such a sum
from Glover's pay on Saturday
On Monday, March 6, the Company prepared a list of all
eligible employees to be used in the upcoming election of
March 20, and both Glover's and Sutton's names were on
this list The Company had removed from the list the name
KESSLER SUPPLY COMPANY
of J Jackson who had been discharged on Friday, March
3 This list of eligibles prepared by Respondent on
Monday, March 6, was received by the Regional Office of
the Board on Tuesday, March 7, according to the time
stamp on the document
Glover testified that on Wednesday, March 8, he worked
the full day and, as he was getting ready to leave that
evening, Elkin Kessler called him into the office and said
he couldn't afford to keep him any longer because he knew
Glover was going to vote for the Union and he couldn't
afford to keep anybody around whose reactions to the
Union he wasn't sure of Kessler told Glover he was having
some family problems, that he had been in business for 26
years and couldn't afford to have a union come in and tell
him how to run his business, and that he had to let Glover
go Kessler admitted and Glover confirmed that he
received a full week's pay for the balance of the week
through Saturday
In describing the events of Wednesday, March 8, Elkin
Kessler on cross-examination, after making a number of
conflicting statements as to whether he let Glover work
after Saturday so he could be repaid the $35 Glover owed
him, testified for the first time that on Wednesday he told
Glover he smelled liquor on his breath and then decided
that Glover had been there long enough after the Saturday
discharge, paid him off, and told him to leave
To further flavor this testimony concerning Glover's
drinking, Respondent produced testimony that back in
1969 or 1970 Glover had been suspended for 5 days for
being intoxicated on the job
Glover admitted that sometime back around 1970 he had
gone down to Bar Thirteen, where the men usually ate
lunch, and had a drink and that Elkin Kessler had followed
him in there and told him that he didn't want him drinking
on the job again At that time Glover told Kessler he
wouldn't do so anymore Glover demed ever being laid off
for drinking on the job
Respondent's testimony was inexact and subpenas were
issued for Respondent's payroll records for 1969 through
1972 in an effort to establish whether Glover had ever been
suspended for a 5-day period The payroll records for 1970
through 1972 did not establish that there had been such a
suspension The 1969 records were not produced, the claim
being made by several of the Kessler brothers that the
Company had a fire around Christmas 1969 which wiped
out the whole company and destroyed all their records
Ralph Mills testified that he had been with the Company
for 10 years and that this fire which wiped the Company
out occurred on December 23, 1967 In further examina-
tion of this topic Elkin Kessler and Sol Kessler said they
didn't remember whether the fire took place in 1967 or
1969
It seems rather incredible to me that the owners of a
business would not remember the date when they had been
wiped out In any event, this testimony concerning
Glover's drinking is a side issue and was not part of the
reasons for his discharge, and it does not add to nor detract
from the discharge, but serves again to make the Kesslers'
testimony less credible
Asked whether he had any conversations with employees
in the shop about the Union, Elkin Kessler said no, but
1045
qualified that by saying the Union was probably men-
tioned, then that there was a lot of talk, then that he didn't
do it, that he wouldn't discuss it with his employees
However he was not asked about the specific conversations
testified to and did not deny them This statement does not
act as a disclaimer on specific statements
The new claim that Glover had alcohol on his breath on
Wednesday was not brought out by Respondent's counsel
during his examination of Kessler into the reasons for the
discharge of Glover, and even if true it played no part in
the discharge according to the reasons advanced by
Respondent Glover was not an incredible witness, and his
story was corroborated by Juan Griffin and Mills as to the
events of Saturday, March 4, and by independent facts
such as Glover's name being on the list of eligibles
prepared by Respondent on Monday, March 6, and the
fact that Glover received a check for a full week with no
deductions for a loan Elkin Kessler's stated reasons for the
discharge on Saturday do not ring true, and this appears to
be an attempt to justify Glover's discharge by a search for
some act of insubordination which might seem to be
grounds for a discharge The only thing approaching a
suitable excuse for discharge appeared to be the Saturday
events, so Respondent sought to move the discharge to a
prior date
As stated above Kessler did not deny the threats he
made to Robinson, Mills, or Glover
I conclude and find that the purported discharge of
Glover on Saturday, March 4, is an afterthought and an
attempt to obfuscate the facts of this case I conclude and
find that Charles Glover was discharged by Respondent in
violation of Section 8(a)(1) and (3) of the Act on
Wednesday, March 8, 1972
Ralph Mills testified that as a truckdriver for 10 years
with the Company there were occasions when he would be
out past the regular closing time and he would either bring
the truck back and park it opposite the Company's
premises or take it home and bring it back the next
morning He stated that during the busy season of the year
he would make deliveries late at night and often his
personal car remained parked across the street from the
Company for as much as a week because he made late
deliveries, took the truck home, and brought it back in the
morning The Kesslers knew he took the truck home since
during the busy season he would drive the truck back and
punch in 1 to 2 hours after the Kesslers had opened the
store
When the union meeting was held at the Union's hall in
February, Mills said he made a late delivery and parked
the truck (the large walk-in van) on a street near the union
hall
Robert Sutton testified that he attended the meeting at
the union hall and was given a ride there by Solomon
Kessler Sol Kessler asked if he could give Sutton a lift, and
Sutton told him he wanted to go to Allegheny and Broad
Streets Kessler said he could go home that way and took
him Sutton stated that as they approached the corner of
Allegheny and Broad he saw the large company truck
(normally driven by Mills) parked on the street and they
passed it There was no conversation between Sutton and
Kessler as to their seeing the truck Sutton got out near the
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corner and went on towards the union hall According to
Sutton, as Sol Kessler passed the well lit area of the union
hall he could have observed Mills, Glover, Robinson, and
Jackson who were standing outside the building
Sol Kessler denied seeing the large company truck
parked near the corner of Allegheny and Broad He stated
he did not know that the union hall was located near there,
although he had some idea that there were some Teamsters
union halls on Broad Street He testified that when he let
Sutton out of the car he got behind a trolley car and then
passed it, asserting he did not see the umon hall or any
respondent employees standing in front of it When
questioned about that not interfering with his vision of the
union hall, he acknowledged that he did drive on Broad
Street and on Allegheny occasionally but claimed he did
not know the Union's office was in that area He further
denied knowledge of any employee engaging in union
activity With Mills, Robinson, and Williams appearing at
the representation hearing and testifying directly contrary
to Sol Kessler's testimony, it would seem difficult for him
to claim he did not know of any employees who were
active on behalf of the Union Elkin Kessler's statements to
Robinson on the same day as the hearing would appear to
refute Sol Kessler's testimony
Sutton testified that he had asked Sol Kessler to "special
order" a door lock for him When he was notified in
February that it had come in, he went to pick it up Sol
Kessler said that special treatment like this or discounts on
company merchandise would either cease or be adjusted to
a lesser amount if the Union got in Kessler also asked
Sutton how he felt about the Union
Sol Kessler was not asked to deny and did not
contravene Sutton's version of Kessler's statements Sutton
was a credible witness and appeared to be making an effort
to recall what had happened Under these circumstances
and with no denial by Respondent, I conclude and find
that Respondent through Sol Kessler violated Section
8(a)(1) of the Act both by interrogating Sutton concerning
his union sentiments and by threatening that special
treatment and discounts would be lessened if the employ-
ees selected the Union as their bargaining agent
Robert Sutton started working for Respondent during
September 1971 in the tile department and later switched
to the hardware department At times when the regular
driver for the panel truck was not there, Sutton drove it
and estimates this occurred some 20 or 25 times prior to his
discharge He further testified that he made late deliveries
frequently and took the truck home, bringing it back the
following morning when he regularly reported in at 8 30
a in (one-half hour after the Kesslers usually opened the
store) He testified that the first time he took the truck out
he was told by Harvey Kessler that if he didn't finish the
deliveries before closing time, to park the truck near his
house and lock it securely He received these instructions
from Harvey Kessler after returning to the store about 5 45
p in and telling Harvey Kessler who was outside the
building that he had some materials in the truck which he
had not been able to deliver He asked Kessler about
taking them back inside the store, but Kessler told him that
he had locked up the store and had turned the alarm on
and that Sutton should take the truck home and lock it up
securely
When making late deliveries Sutton (as did Mills) would
report the next day the amount of time he had worked past
closing time and would be granted overtime One of
Respondent's witnesses testified that normally the only
overtime earned by employees would be for late deliveries
on a truck
Sutton testified that on Friday, March 3, he used the
panel truck to make a late delivery and was out past
closing time He did not return the truck until the following
morning between 7 30 and 8, and Harvey Kessler was
there when he drove up On Saturday, March 4, he had
another delivery to make and was out past the 3 o'clock
closing time, working until 6 30 p in, and did not bring the
truck back until Monday morning Again on Monday,
March 6, he had a 5 p in delivery which was unsuccessful
and shortly thereafter had a flat tire He went to a service
station and had the spare tire put on, but was unable to get
the flat fixed as the station was closing He got a receipt for
the flat and the amount charged and took the truck home
The following morning he reported in to Elkin Kessler and
told him the amount of overtime he had worked, delivered
funds received from Monday deliveries, and was paid for
his expenditures for changing the tire He testified that at
that time Elkin Kessler asked if he had taken the truck
home, and he replied that he had Kessler asked why, since
it wasn't his truck, and he answered he knew that He
asked Elkin Kessler why he was making such a fuss over it,
that they had never said anything about taking the truck
home in the past That ended the conversation While on
his way to the hardware section he was stopped by Harvey
Kessler Harvey asked him about the truck and he replied
that he had already been through that with Elkin Harvey
told him he didn't need him in his department anymore,
that he had a full crew He asked Harvey what to do and
Harvey told him to go home Sutton left and returned on
Wednesday morning, not certain whether he had been
fired or not Harvey Kessler asked if he was bringing in the
Union because he wouldn't need them He made no
comment and after Harvey unlocked the door and went
inside he asked whether he should punch in, and Harvey
said definitely not He went to Elkin Kessler, received his
paycheck, and left
Harvey Kessler testified that Sutton worked for him in
the hardware section and that after Jackson left (March 3)
they had no driver for the small truck and he told Sutton to
make the deliveries Harvey Kessler did not recall when
Sutton made his first trip but said that it was either on
Monday or Tuesday which he later amended to the
previous Saturday Harvey Kessler recalled Sutton's first
trip as occurring on Monday He stated that late in the
afternoon he was looking for Sutton and that Supervisor
Williams said that Sutton should have been back from his
delivery before closing time and offered to get in his car
and go find him He told Williams not to bother, that they
would talk to Sutton the next day He testified that on the
following morning when Sutton came in he told him he
didn't think he was following instructions and they had to
terminate him Sutton threw the keys down and headed for
the hardware section He asked where Sutton was going
KESSLER SUPPLY COMPANY 1047
and Sutton said he was going to the hardware store He
told Sutton you're not listening, I have to let you go
During further cross-examination Harvey Kessler testi-
fied that the conversation with Williams occurred in the
late afternoon Asked whether Williams hadn't explained
to him that Sutton had left to make a 4 45 p in delivery on
a rug, he answered yes, and then after a moment said no,
that 4 45 p in wasn't true Asked if the delivery wasn't at
28th and Allegheny, he said he didn't think so but stated
that he did not see Sutton leave on the delivery Harvey
Kessler took a rather long time to answer some of the
questions and in one instance Respondent's counsel asked
him to answer the question Harvey Kessler's testimony
then became more evasive as to how long Sutton had
operated the truck, and he finally stated he thought it
might have been a week
Sol Kessler testified that the Company had fired a driver
for using the truck for "personal business" which he
appeared to equate with "taking the truck home " He
testified that this other individual, "Grit Willie" had a
young lady riding with him in the company truck after
business hours, apparently on personal business, and he
warned "Grit Willie" the following day that if it happened
again he would have to be released "Grit Willie" was
shortly thereafter discharged after being involved in an
accident after business hours with a young lady in the
company truck
I do not feel that the two situations are anywhere near
parallel and in fact consider that the treatment accorded to
"Grit Willie" was much more generous than that accorded
to Sutton and that this disparate treatment must have had
another genesis
Ralph Mills testified that sometime after Sutton had
been discharged he was told by the Kesslers not to take the
truck home anymore after working hours He testified that
Elkin Kessler told him while he was loading the truck that
there would be a "Labor Board man" down there to ask
him some questions about what he did with the truck after
working hours Kessler told Mills that Mills was to tell the
"Labor Board man" that he never had permission to take
the truck home after working hours, saying this had
something to do with Bob Sutton Mills responded by
laughing He testified that after Kessler's statement he
continued to take the truck home after working hours and
nothing was ever said to hum about it 3
This statement attributed by Mills to Elkin Kessler was
not denied by Elkin Kessler, and I credit it
Summing up as to Sutton, I find that the Company knew
he was interested in the Union from the fact that Sol
Kessler drove him to the vicinity of the union hall, where
other employees were visible standing in front of the hall
Respondent allowed the trucks to be taken home when the
employees made late deliveries and paid overtime on the
employee's statement of how long he worked after hours
Harvey Kessler's testimony as to the small amount of time
3 Respondent collaterally attacked the credibility of Mills (a 10-year
employee) on the basis that he had been discharged for attempting to steal
some company goods Mills testimony concerning the event that he had
loaded the wrong color of panels in the truck and found Elkin Kessler
unwilling to listen to him when he sought to show Kessler the orders is
credible considering the manner in which Elkin Kessler testified Elkin
Kessler did not appear to pay much attention to what was going on in the
Sutton had been driving a truck was discredited by
Respondent's records, which showed that Sutton had
received overtime the week previous to his discharge and
again back in January, since it was Respondent's position
that overtime was paid usually only to truckdrivers
Sutton's testimony as to his truckdriving experience is thus
corroborated by Respondent's records Respondent's
attempt to equate its treatment of "Grit Willie" and Sutton
only serves to show that Sutton was treated in a disparate
manner There was no evidence that Sutton ever used the
truck for personal business, although Respondent sought
to raise suspicions in that area The final piece of evidence
that destroys Respondent' s defense is Elkin Kessler's
attempt to get Ralph Mills to falsely tell the "Labor Board
investigator" that the Company had previously given
orders not to take the trucks home but to always return
them to the store The testimony given by Semerdjian and
Williams was equally unconvincing in this area, and I do
not credit it It seems clear that with the approaching
election Respondent sought to rid itself of some of its
union-supporting employees
I conclude and find that the Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily discharging
Robert Sutton on March 7, 1972
III THE CHALLENGES TO THE BALLOTS OF CHARLES
GLOVER AND ROBERT SUTTON
I have found above that Charles Glover and Robert
Sutton were discriminatorily discharged in violation of
Section 8(a)(1) and (3) of the Act on March 7 and 8, 1972
Accordingly they would have been employees at the time
of the representation election but for Respondent's
discriminatory action, and I therefore recommend that the
challenges to their ballots be overruled and that their
ballots be opened and counted and a supplemental tally of
ballots and appropriate certificate issued
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, have been found to constitute unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act and,
occurring in connection with Respondent's business
operations as described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that Respondent discnminatonly termi-
nated Robert Sutton and Charles Glover on March 7 and
8, 1972, respectively, because of their actual and suspected
hearing room occasionally took long periods to answer simple questions
and at other times sought to answer questions before they were completely
asked As stated above I do not credit the testimony of any of the Kesslers
completely The testimony given by Mills as to statements he attributed to
the Kesslers was not denied by them This collateral attack on Mills
credibility I find is unwarranted and lacking in conviction
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union sympathies and activities, I recommend that
Respondent offer them immediate and full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions without preju-
dice to any seniority or rights and privileges they may
enjoy Respondent shall make them whole for any loss of
pay they may have suffered by reason of the discrimmation
against them, by payment to them of a sum equal to that
which each would have received as wages from the date of
his discharge until he is fully reinstated, less any net
interim earnings Backpay is to be computed on a quarterly
basis in the manner established by the Board in F W
Woolworth Company, 90 NLRB 289, with interest at the
rate of 6 percent per annum to be computed in the manner
set forth in Isis Plumbing & Heating Co, 138 NLRB 716 I
further recommend that Respondent, upon request, make
available to the Board payroll and other records to
facilitate checking the amounts of backpay and any other
rights due Robert Sutton and Charles Glover
Respondent also engaged in interrogation of its employ-
ees concerning their union membership, activities, or
sympathies and threatened that it would deal with union
instigators known to it, that it would discharge employees
who favored the Union, and that it would stop or lessen
employee privileges if the employees had a union as their
bargaining agent, and I recommend that Respondent be
ordered to cease and desist from violating the Act in the
same manner or any manner similar to these violations
On the basis of the foregoing findings and the entire
record, I make the following
CONCLUSIONS OF LAW
1 Kessler Supply Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 By discriminatorily terminating Robert Sutton and
Charles Glover on March 7 and 8, 1972, respectively, and
not thereafter reinstating them to their positions because of
their actual and suspected union sympathies and activities,
Respondent engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(3) and (1) and 2(6) and (7) of the Act
4 Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by
(a) Interrogating employees concerning their union
membership, activities, and sympathies,
(b) threatening to deal with the union instigators known
to it,
(c) threatening to discharge employees who favored the
Union,
(d) threatening to stop or lessen employee privileges if
the employees had a union as their bargaining agent
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 4
ORDER
Respondent, Kessler Supply Company, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging employees and refusing to reinstate them
in order to discourage these employees and other employ-
ees from being or becoming union members
(b) Interrogating employees concerning their union
sympathies, activities, desires, or membership
(c) Threatening to deal with the union instigators known
to it
(d) Threatening to discharge employees who favored the
Union
(e) Threatening to stop or lessen employee privileges if
the employees had a union as their bargaining agent
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist Warehouse Employees Union Local
169, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, to bargain
collectively with representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to Robert Sutton and Charles Glover reinstate-
ment in accordance with the recommendations set forth in
the section of this Decision entitled "The Remedy "
(b) Make Robert Sutton and Charles Glover whole for
any loss they may have suffered by reason of Respondent's
discrimination against them in accordance with the
recommendations set forth in the section of this Decision
entitled "The Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay and the rights
and privileges due to Robert Sutton and Charles Glover as
set forth in the section of this Decision entitled "The
Remedy "
(d) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act
(e) Post at its Philadelphia, Pennsylvania, store, ware-
4 In the event no exceptions are filed as provided by Sec 102 46 of the deemed waived for all purposes
Rules and Regulations of the National Labor Relations Board the findings,
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and order and all objections thereto shall be
KESSLER SUPPLY COMPANY 1049
house, and office copies of the attached notice marked
"Appendix "5 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
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
(f) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith 6
IT IS ALSO ORDERED that paragraph 6(f) of the complaint
be dismissed in that no affirmative evidence to substantiate
this allegation was offered
IT IS FURTHER ORDERED that Case 4-RC-9576 be
remanded to the Regional Director to open and count the
ballots of Robert Sutton and Charles Glover and to issue a
revised tally of ballots and the appropriate certificate
5 In the event that the Boards 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
6 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
Notify the Regional Director for Region 4 in writing within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith
APPENDIX
employees' privileges if they should choose to have a
union as their bargaining agent
WE WILL offer Robert Sutton and Charles Glover
full reinstatement together with all of their rights and
any backpay due them
WE WILL NOT discharge, lay off, or refuse to hire or
rehire any employee in order to try to discourage our
employees from being or becoming members of
Warehouse Employees Union Local 169, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist Warehouse Employees
Union Local 169, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, to bargain collectively with representatives of
their own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities
All our employees are free to become or remain union
members
Dated By
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the Company, the Union, and the
General Counsel of the National Labor Relations Board
participated and offered evidence, the National Labor
Relations Board found that we violated the law and
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following
WE WILL NOT ask our employees about their union
sympathies, activities, desires, or membership
WE WILL NOT threaten to discharge or otherwise hurt
employees who are active for the Union or employees
who favor the Union
WE WILL NOT threaten to stop or lessen our
KESSLER SUPPLY COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1700
Bankers Securities Building, Walnut & Jumper Streets,
Philadelphia, Pennsylvania 19107, Telephone 215-597-
7601