Merner Lumber and Hardware Co.

National Labor Relations Board - Board Decisions

Jan 15, 1964

145 N.L.R.B. 1024 (N.L.R.B. 1964)

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspend its own operations-Respondents have interfered with , restrained, and
coerced employees in the exercise of the rights guaranteed them in Section 7 of the
Act, in violation of Section 8(a)(1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of'the Act.
6. Except for the above , Respondents have not engaged in unfair labor practices
as alleged in the complaint herein.
[Recommended Order omitted from publication.]
Merner Lumber and Hardware Company and Retail Store Em-
ployees Union , Local 428, Retail Clerks International Associa-
tion, AFL-CIO. Case No. 2O-CA-.493. January 15, 196411
DECISION AND ORDER
On August 9, 1963, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member [Chairman McCulloch and Members Fan-
ning 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
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
i The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Merner Lumber and Hardware Company, its officers, agents, suc-
cessors, and assigns , shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter , arising from a charge filed December 11, 1962, and a complaint dated
March 7, 1963, was tried before Trial Examiner Wallace E. Royster in Palo Alto,
California , on 5 hearing days from April 18 through May 23, 1963. At issue is
145 NLRB No. 105.
MERNER LUMBER AND HARDWARE COMPANY 1025
whether Merrier Lumber and Hardware Company, Palo Alto, California, herein called
the Respondent, refused unlawfully to bargain with Retail Store Employees Union,
Local 428, Retail Clerks International Association, AFL-CIO, herein called the
Union, and discriminatorily discharged its employees, Wilbert Bentley, Harry Eng-
man, William McBrearty, Burnell B. Walker, and Irving Wilcox. It is alleged that
by reason of the refusal to bargain and the discharges, the Respondent has committed
unfair labor practices affecting commerce within the meaning of Section 8(a)(1),
(3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as
amended, herein called the Act.
Briefs from the parties have been received and considered. Upon the basis of the
entire record in the case , and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with a place of business in Palo Alto,
California, where it operates a wholesale and retail lumber and hardware store.
Respondent's gross sales for calendar 1962 exceeded $500,000 in value and during
the same period it received goods valued at more than $50,000 directly from States of
the United States other than the State of California. I find that the Respondent is an
employer engaged in commerce and in an operation affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
and admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
Respondent operates two hardware stores; one the focus of this complaint, in Palo
Alto, the other 4 miles away in Redwood City. Certain employees at each store are
represented by labor organizations but in no instance does any union local represent
employees at both stores. The unit sought by the Union in this case is limited to sales
personnel and clerical workers at the Palo Alto store. These classifications are not
now and have not in the recent past been represented for purposes of bargaining.
The same is true as to such employees at Redwood City. Although there has been
no history of bargaining on the basis of a two-store unit, there is little to indicate
that such an arrangement would not be feasible. The present separate representation
by the several unions concerned appears to result from jurisdictional considerations
based upon territorial claims. There is some interchange of personnel upon occasion
between the two stores, higher management is officed at the Redwood City store,
the policies are the same at both, and considering the short distance which separates
them I see no difficulty in concluding that a two-store unit could be suitable for bar-
gaining purposes. The complaint alleges the single-store unit to be appropriate.
This allegation is, no doubt, based in part upon the General Counsel's belief that
the Respondent by the commission of unfair labor practices removes what otherwise
might be the optimum unit from consideration, that to deny the propriety of the single-
store unit in the circumstances would be to permit the Respondent to benefit from its
unlawful conduct. It is obvious that the Palo Alto store alone may constitute an
appropriate unit. The employees there form an homogeneous group, are under the
same immediate supervision, have daily contact with each other, and in general have
an interest in making that store a viable enterprise so that their jobs may be more
secure and so that opportunity for advancement may exist. Either unit arrangement
may be appropriate and, for reasons which will appear, I find that the Palo Alto store
alone constitutes such a unit.
Respondent's establishment in Palo Alto on December 7, 1962, employed 48 indi-
viduals, some of them in clearly managerial posts. At the hearing it was stipulated
that 12 of this total were supervisors within the Act's meaning; that 2 were profes-
sional employees; that 4 were in units represented by other labor organizations; and
that 1 was an outside contract salesman. The complaint alleges a unit of all
employees in the Palo Alto store, excluding lumber handlers, outside contract sales-
men, lift-truck drivers, guards, and supervisors as defined in the Act, to be appropriate
for purposes of collective bargaining. Thus the allegation is that the appropriate
unit encompasses no more than 27 employees. Most of these 27 are retail sales clerks
73"70-64-vol. 145-66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of some type or clericals working on the sales floor. Some are regularly employed on
a part-time basis.
On November 15, 1962, employees at Palo Alto were notified that the Thanksgiving
holiday would be in substitution for whatever day an employee would normally have
off that week. The effect of this was to notify all employees who were not scheduled
to work on one of the other weekdays that they must forgo their regular free day.
There was much unhappiness among the employees about this announcement and
Irving Wilcox, a hardware salesman , telephoned an agent of the Union to invite him
to talk to employees in the store. The agent, William Tupper, came to the store that
afternoon and spoke with Wilcox, Wilbert Bentley, and Ollie Fuhrmann. In con-
sequence, Tupper with another union representative, John Blaiotta, met in the evening
of November 16 with William Bentley, Irving Wilcox, William McBrearty, Burnell
Walker, Sylvanus Virnig, and Frank LaMetre. All of the employees present were
sales clerks in Respondent's Palo Alto store. McBrearty, however, is designated on
Respondent's organizational chart as manager of the paint department and Respond-
ent argues that he is a supervisor. All signed cards designating the Union as their
representative and some took blank cards to which other employees were later asked
to subscribe. By the end of November, 17 employees had signed such cards.'
B. The refusal to bargain
On Friday, December 7, armed with designations from a majority of Respondent's
employees in an appropriate unit, Union Representative John Blaiotta called upon
Victor Riches, Respondent's executive vice president and the one in overall charge
of the business at the two stores. Blaiotta told Riches that the Union represented a
majority of the employees at the Palo Alto store and that he desired to negotiate an
agreement covering their employment relation to the Respondent. Then followed a
conversation of perhaps 2 hours in which many things were mentioned and during
which Blaiotta displayed but did not offer for examination the designation cards that
he had carried with him. Although Riches in his testimony professed to bewilder-
ment concerning the compass of the unit in which the Union claimed a majority, it
is clear, and I find, that this did not arise from any failure on the part of Blaiotta to
provide a description. A letter which Blaiotta handed to Riches on this occasion
contains an adequate and unconfusing exposition in that respect. Although there
was some discussion about a card check by some disinterested person, no agreement
was reached to that effect .2 Riches said that he wanted an election. No agreement
was reached and Blaiotta left.
Riches testified that he considered the advent of the Union on the scene to be a
serious threat to a continuation of the business, that it might "be the straw that would
break the camel 's back."
It is obvious and indeed conceded that Riches did not want to recognize the Union
and to face the necessity of dealing with it. He testified, "I am always opposed to
the organization of anyone into the union." But this attitude did not impose upon
him any requirement that he extend recognition in any situation where he entertained
a good-faith doubt that the Union actually was the choice of the employees in the
appropriate unit. Although I have found that the unit sought by the Union was
one appropriate for bargaining purposes and although I am wholly unpersuaded
that Riches was in any way mystified as to its limits, he may have entertained a
serious doubt that Blaiotta was possessed of sufficient designations to give the Union
the status it claimed to have attained. If this were so and absent the unfair labor
practices which I find Riches committed on December 8 and 10, the Respondent
would have been entitled to test the Union' s claim in a representation election. An
employer faced with a union's claim of majority representation in an appropriate unit,
if unsatisfied with the validity of the claim, may usually put the question to a secret
ballot through the offices of the Board. If, however, even in the belief that the
union's claim is overstated, he elects to make sure that his employees will not select
a union by discharging those believed to be union partisans, an election held in such
an atmosphere is unlikely to reflect an uncoerced choice. The Board has decided
1 There is no substantial evidence to support the Respondent's assertion that any of the
signers was under a misapprehension. The cards are valid designations of the Union. Be-
cause of a stipulation that one of those signing, Ollie Fuhrmann, is a supervisor, I have
not counted his card There are 29 employees in the unit. I arrive at this figure by
subtracting from the 48 employed on December 7 the following* 12 supervisors, 2 pro-
fessionals, 4 then in units otherwise represented, and 1 outside salesman. The part-time
employees are regularly employed and for that reason are included.
21 find that Blaiotta proposed the card check and that Riches rejected the suggestion,
saying in effect that employees sign cards indiscriminately.
MERNER LUMBER AND HARDWARE COMPANY 1027
in causes too numerous to require citation that if the union at the time the bargaining
demand is made is in fact the uncoerced choice of the employees the interposition
of unfair labor practices by the employer in an attempt to discourage union loyalties
and adherence can be frustrated and statutory rights be protected only by requiring
the extension of recognition on the basis of designation cards or other satisfactory
evidence of choice. The employer in such a situation has by his unlawful conduct
lost any right to an election. To handle the problem in another manner would serve
to place a premium upon unlawful attempts to dissipate a union's majority, to
encourage conduct designed to frustrate rights to self-organization , and to permit
an employer, disposed to unlawful conduct, to make it unlikely that his employees
would ever have bargaining representation.
To apply this rule of reasoning to the case at hand, I find that Riches even if he
doubted the claim of the Union on December 7 that it had been selected by a majority
of the employees, because he immediately thereafter discharged a number of em-
ployees in the belief that they were union adherents, cannot now successfully claim
that whatever doubts he may have entertained should be resolved by an election.
I find that the Union was on December 7, 1962, the bargaining representative of
Respondent's employees in an appropriate unit and that by refusing on that date to
extend recognition and to bargain with the Union , the Respondent violated and is
violating Section 8 ( a)(5) and ( 1) of the Act.
C. The discharges
Riches accepted the responsibility for managing the two stores in the summer of
1961 at a time when their continued operation was in hazard . From that time on
he has devoted considerable effort to bring about changes in methods and personnel
in an attempt to make the business a profitable one. In the early fall of 1962, a
highway construction project at the entrance to the Palo Alto store inhibited access
and was thought to have contributed in large measure to a decline in sales. The
highway work was still in progress in early December and was not completed until
later that month.
Riches testified that the decline in sales at Palo Alto was a matter of continuing
concern to him in the fall of 1962 and that methods and devices to reverse the trend
were always under consideration. In mid-November, he testified, he became of the
opinion that he must bring about a further reduction in personnel at some time in
the near future and decided that Wilcox, McBrearty, Bentley, Walker and Engman
were "in the group" from which selections for discharge would be made. in late
November or perhaps early December, Riches testified , he instructed Leon Buhl, the
general manager of the Palo Alto store , to discharge Harry Engman at his early
convenience . About the same time Engman was instructed by Riches not to wait
on the trade but to busy himself in building bins and rearranging displays.
In his talk with Blaiotta on December 7, Riches testified, he mentioned that the
Respondent was in the midst of a program seeking the reduction of personnel and
that certain individuals were scheduled for discharge the following day. Blaiotta
denied that Riches mentioned anything of the sort . Riches testified that on Friday,
December 7, he had decided to discharge Wilcox, Bentley, McBrearty, and Walker
but later in his examination qualified this to say that he had these individuals in
mind but that he withheld final decision until he consulted with General Manager
Buhl and Assistant Manager Joseph Piroch . In the morning of December 8, ac-
cording to Riches, he spoke with Buhl and Piroch about a necessity to reduce per-
sonnel and that following the recommendations made by them he decided upon the
discharge of Wilcox, McBrearty, Bentley, and Walker. Oddly enough, although
Riches had about 10 days earlier , he testified , instructed Buhl to arrange for the
discharge of Engman as soon as Buhl could conveniently let him go, Engman's
tenure was not discussed at this meeting and he was not discharged that day. About
closing time that afternoon , the four employees last named were told by Riches in
the presence of Piroch that business conditions were such that he could no longer
afford them employment . None was told that he was in any respect deficient in
the performance of his duties 3 and each was told that he would be paid something
more than wages due in lieu of notice . The payroll office was not open on Saturday
and final checks for those discharged were not prepared until the following Tuesday,
December 11.
Shortly after Engman reported for work on December 10 he was called to Buhl's
office. Buhl commented that business was bad due in part at least to the road con-
struction and that Engman was discharged . According to Engman 's undenied and
3 Riches did say that Wilcox had been "short" with customers . Wilcox protested that
he had never been criticized in that connection.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited testimony , Buhl said that he could not promise to rehire Engman in the
event that business did improve.
Riches denied the fact that the Union had asked recognition on December 7 was
in any way related to the discharges on the following day. According to Riches, he
mentioned the visit of Blaiotta to Buhl on December 7 but did not speak to Piroch
about it. Buhl, inconsistently, denied that he learned from Riches of the appearance
of Blaiotta at the store and his testimony on this point is to the effect that he knew
nothing of this circumstance when he made recommendations to Riches concerning
the discharges on December 8.
In a letter dated December 14 to the Board's Regional Office in San Francisco
in response to notice that the Respondent had been charged with the commission
of unfair labor practices because of the discharges, Riches wrote, "We may wish
to file a complaint against certain employees in our organization for having discussed
the prospects of joining the [Union] and for having campaigned in this endeavor,
including the dissemination of authorization cards, while on our premises and while
being paid wages or salaries for time supposedly spent in the performance of their
work." Riches testified that when he wrote this letter he had no information that
any employee had in fact campaigned on Respondent's time and premises or that
anyone had in fact passed out designation cards but that he "speculated" that such
activity may have taken place. Not until late December, he testified, did he verify
this speculation through Piroch. Although Riches gave numerous reasons in his
testimony for making the discharges, and mentioned in some detail the shortcomings
of each of the employees affected, he conceded that had sales been normal none
of them except Engman would have been discharged. Thus it is clear that none of
those discharged on December 8 lost his employment because he was an unsatis-
factory employee. Riches' reasoning in the matter is asserted essentially to have
been that a cut had to be made and that those retained were more satisfactory than
those let go.
Irving Wilcox was hired by the Respondent in October 1960 and worked primarily
as a power tool salesman under Fuhrmann at the Palo Alto store. It was Wilcox
who requested Tupper, the Union's agent, to come to the store in mid-November
and who thus initiated the campaign for representation. As arrangements were made
for the first meeting between union representatives and Respondent's employees by
Wilcox and Tupper in the presence and hearing of Fuhrmann it is obvious that the
latter knew of this development and that Wilcox was concerned in it. Riches
explained the inclusion of Wilcox in the group discharged upon the basis of an
assertedly unprepossessing personality, a failure sometimes to wait promptly on
customers, and the use on one occasion of profanity while speaking to a customer over
the telephone. At the time of his discharge, Riches testified, Wilcox suggested that he
was entitled to a week's notice. Riches, while not conceding that this was a matter of
right, agreed that Wilcox might work the following week before the discharge would
take effect. During that week with the approach of Christmas, sales of power tools
improved (Riches conceded that this was to be expected considering the season and
that to encourage such a development the Respondent had emphasized these items
in contemporaneous advertising), and upon the recommendation of Piroch and
Fuhrmann the action of discharge as to Wilcox was canceled. Wilcox has remained
in Respondent's employ.
William McBrearty was hired in May 1961 at the Redwood City store as "manager"
of the paint department. He had no employees under his direction but was re-
sponsible for the stocking arrangements and was expected to be knowledgeable as to
the properties of the paints stocked and their range of utility. In July 1961, shortly
before Riches assumed management, McBrearty was transferred to the Palo Alto store
in the same capacity. In November of that year his starting salary of $450 a month
was increased to $500.
In mid-November 1962, McBrearty brought the matter of the Thanksgiving notice
to Riches' attention and told him that the employees were unhappy about it
Riches said that the notice would be corrected as almost immediately it was. Mc-
Brearty attended the meeting on November 16 with the union representatives and
signed a designation card. Thereafter he asked a fellow employee, William Warren,
to sign such a card and Warren did so. He also gave a card to Fuhrmann who later
signed it He discussed the fact that the campaign was in progress with Robert
Dickow, then Respondent's merchandise manager. Dickow commented, according
to McBrearty's undenied and credited testimony, that a union might be a good
idea
McBrearty was discharged by Riches at the close of the day on December 8.
Riches said that business had suffered by reason of the road construction (which
was within a few weeks of its end) and that a reduction in staff was essential.
MERNER LUMBER AND HARDWARE COMPANY 1029
On Monday, December 10, Riches had no one to handle the paint department at
Palo Alto. In consequence he moved the Redwood City paint man to Palo Alto
instructing him to divide his time between the two stores as best he could and trans-
ferred another employee within the Redwood City store to work in the paint depart-
ment there. McBrearty 's replacement ( Stone Wahl) found himself so busied at Palo
Alto that he could visit the Redwood City store only occasionally and for short periods
of time. Obviously there was need for a paint man at Palo Alto and a decline in
business does not satisfactorily explain the discharge of McBrearty.
In his testimony , Riches voiced many complaints about McBrearty but conceded
that he was a good salesman. In consideration of Riches ' testimony that none of
those discharged on December 8 would have been terminated except for the asserted
fact that business volume just did not justify their continued employment , I find that
McBrearty was not discharged because he was an unsatisfactory employee. Finally,
as to McBrearty , the Respondent asserts that he was a supervisor and thus not within
the protection of the Act . The evidence does not sustain this position . Except for
a part-time employee, William Warren, McBrearty worked alone in the paint depart-
ment. The testimony of Warren (called to the stand by the Respondent ) makes it
amply clear that McBrearty had no supervisory authority over him and that
Warren had never been told by the Respondent and did not consider that McBrearty
was his superior I find that McBrearty was not a supervisor within the Act's mean-
ing and that rights 'secured to employees by the Act have application to him.
Wilbert R. Bentley was hired at the Redwood City store in August 1961 and re-
mained there until transferred to Palo Alto in May 1962. His starting salary of $400
a month was increased on two occasions by $30 so that in April 1962 , at the time
of his last raise he was earning $460. Bentley is a university graduate with a degree
in marketing . He testified credibly and without contradiction that upon the occasion
of his transfer Riches told him that he had learned all that he could in the Redwood
'City store but that at Palo Alto he could benefit from a more experienced mentor,
James McCorry. Bentley was one of those who conferred with the union agent,
Tupper, on the latter 's first visit to the Palo Alto store and invited other employees
to attend the meeting with Tupper and Blaiotta which was then arranged . From the
meeting with the union agents on the evening of November 16, Bentley took a number
of designation cards and through solicitations in the store obtained signatures to nine
of them Bentley told Robert Dickow, when the latter questioned him about the
Union , that everyone was in "an uproar " about it. Bentley 's testimony on this point
stands undenied and is credited.
Bentley was discharged on December 8 in company with Wilcox . Bentley asked
Riches if his work had been unsatisfactory . Riches referred the question to Piroch
who was present . Piroch made no reply. About a month later Bentley returned to
the store in connection with some question about his personal charge account and
encountered Piroch . Bentley testified credibly that Piroch after asking if Bentley
had found employment said , "Well, I want you to know I didn 't have anything to do
with this." Piroch was not called as a witness.
In respect to Bentley as with others Riches spoke of various complaints about
work performance and of derogatory comments coming to him concerning Bentley
from supervisors. James McCorry, the assistant manager at the Palo Alto store,
testified that Bentley had a bad memory and wasn 't a "hardware man." McCorry
made no recommendation to Riches in respect to Bentley 's termination . It remains
the fact, of course , that Bentley was not discharged because he was unsatisfactory.
Riches so testified and assigned as the operative reason the decline in business volume.
Burnell B . Walker was hired by Riches and began work in the Palo Alto store in
August 1962. His starting salary of $350 was increased to $400 in September.
Walker attended the meeting with union representatives on November 16 and signed
a designation card . On December 8, Riches told him that he was discharged that
business was off 40 percent, and that Walker , being recently hired, was a logical
choice for termination.
Riches testified that Walker 's discharge was recommended by Piroch who reported
that Walker did not follow instructions and wasted time in conversations with the
cashier. Buhl testified that he made the same recommendation . Riches explained
the fact that Walker received a rather substantial wage increase in September or
October by testifying that this came about when Walker said that he was about
to buy a house and needed to report a larger salary to some loan agency in order
to obtain favorable consideration . Putting aside any worries he had about the ability
of the business to survive what with the highway construction and sharper com-
petition , forgetting in this instance his planning to lower payroll costs and thus to
decrease the cost of sales, Riches granted Walker's request.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry William Engman came to Respondent's employ in early 1959 as a salesman
in the Redwood City store. His original arrangement brought him a salary of $350
a month and a commission on sales. This later was changed to a straight salary
of $450.4 It is unclear whether the change resulted in greater or less income to Eng-
man. Engman signed a designation card on November 19 and sometime thereafter
solicited Gerald Overman, his supervisor in the lumber department, to do the same.
Overman refused and gave Engman a pamphlet containing arguments against unions.
In late November, Riches told Engman to build bins and rearrange displays rather
than to wait on the trade.
On December 10 Buhl discharged Engman and told him that he probably would
not be rehired. According to Riches this discharge was motivated by Engman's
shortcomings as an employee. Riches testified that Engman had always been a
problem because he did not fill out sales tags properly. According to Riches, Engman
was involved as a salesman in several accounts which had to be taken to court for
collection and that each of Engman's supervisors had recommended at some time or
another that he be terminated.
Frances Bower, Respondent's collection attorney, testified that Engman's failure
properly to fill out sales records contributed to the difficulties she sometimes en-
countered in effecting collections.
John Kampf, under whom Engman worked at the Palo Alto store until sometime
in the summer of 1962, testified that he once told Engman he would be discharged if
he did not cease making errors on sales tags. Buhl testified that he had recommended
the discharge of Engman on many occasions. Gerald Overman, Engman's direct
supervisor for the last several months of his employment, was not called to the stand.
He appears to have left Respondent's employ sometime in December but it has
not been asserted that he was unavailable as a witness.
Engman did not deny that he had made errors in making out sales tags but as-
serted that he rarely if at all had been criticized in that connection. Upon consid-
eration of all the evidence, testimonial and other, bearing upon this matter, I conclude
that Engman did not always give satisfaction in the matter of sales tags and that he
was sometimes careless and inaccurate in this aspect of his work.
Riches testified that he was wholly unaware of any activity among the employees
looking toward union affiliation or representation until Blaiotta visited him on
December 7. Even then, he testified, he made no effort to discover what had been
going on and, although it would seem to have been natural enough for him to have
questioned his management associates to discover if they knew anything about it,
did no more than to mention the fact of Blaiotta's visit to Buhl. The latter testified
that Riches never mentioned the circumstance that Blaiota had come to the store
claiming to speak as bargaining representative of the employees and that he first
learned that this had happened some months later. Buhl was not in the hearing
room when Riches testified. Riches met with Buhl and Piroch in the morning of
December 8 to ask for their recommendations as to who should be discharged.
Riches testified that no mention of the Union or of Blaiotta's visit was made. When
it is considered that during the course of his testimony Riches said that he was always
opposed to anyone joining a union and that any necessity for dealing with the Union
in December 1962 might have provided "the straw to break the camel's back," his
asserted failure to inquire of his subordinates what the employees had been up to
is puzzling.
Riches acted as principal counsel for the Respondent in this proceeding and was
its principal witness. He made the decisions to discharge and it was he who dealt
with Blaiotta. Riches moved easily from counsel table to the witness stand and
remained the advocate throughout. One must expect a witness who has a personal
stake in the outcome of litigation to avoid if possible giving testimony adverse to his
interest and one expects that an advocate will attempt to present his side of the con-
troversy in its most favorable light But it is unfortunate when the two roles merge.
As a witness Riches was evasive and argumentative. I am unable to accept the
assertion contained in Respondent's brief that his testimony was "characterized by
integrity and veracity." More specifically I do not believe his assertion that he was
confused or uncertain in respect to the limits of the bargaining unit in which the
Union sought recognition; I do not believe that he was unaware of the identity of
the employees who were soliciting in behalf of the Union or of the fact that such
solicitation had taken place within the store; and I do not believe that any of the
discharges on December 8 were made upon considerations of economy and good
business judgment.
4 Engman testified that his salary was $425 However, a list of employees at the
Palo Alto store and their compensation shows the larger figure
MERNER LUMBER AND HARDWARE COMPANY 1031
Before the visit of Blaiotta, Wilcox, Bentley, McBrearty, and Engman had been
talking about the Union in the store and had solicited employees to sign designation
cards for the Union. Overman knew of this from Engman, Dickow heard it from
Bentley and McBrearty, and Fuhrmann was well aware of the activity and who was
behind it. My credulity is stretched beyond the breaking point when I am asked to
believe that Riches was unaware of these circumstances. After Blaiotta left, Riches
decided that McBrearty, Wilcox, Bentley, and Walker should be discharged the next
day. Although Riches had full authority to take this action and although he had
decided some weeks before that these four were in the "group" from which discharges
would soon be made, he made no preparation for the discharges such as arranging
for the drawing of final paychecks or deciding upon the necessary replacement of
McBrearty or considering that current advertising might require the services of an
experienced power tool salesman which Wilcox appears to have been. He did decide,
he testified, to consult with Buhl and Piroch the next morning to learn if their
recommendations supported his decision. Riches said that they did; so did Buhl.
Piroch did not testify. Some weeks later Piroch said according to the credited tes-
timony of Bentley that he had no part in Bentley's discharge. Riches testified that
there was no mention of the Union in his talk with Buhl and Piroch on December 8.
I do not credit the testimony of either Riches or Buhl to that effect. Almost certainly
he would have questioned them about their knowledge in that connection. The
advent of the Union was a serious matter in Riches' eyes and there is no reason to
question his judgment in that respect He knew that he was managing a business
with an uncertain future and he believed that the Union represented a new hazard
of uncertain proportions. He may well have feared that it would be the proverbial
straw. Considering that none of the four employees would have been discharged
except for the reason that sales were below normal (here again Riches was character-
istically imprecise and evasive but I believe that this is a fair distillation of his
testimony), why then was the Respondent contemporaneously advertising for sales-
men? I find that there was no need for the Respondent to cut its sales force, that
in the midst of the Christmas sales season it had reason to expect increased sales,
and that this expectation was enhanced by the imminent completion of the road
construction.
I am convinced and find that the discharges on December 8 were made in haste
and fear; that they did not result from an appraisal of the Respondent's personnel
needs; that they were not decided upon before Blaiotta's visit; and that they rep-
resented an attempt by the Respondent to scotch the movement toward self-
organization by the precipitate discharge of individuals who were thought to be iden-
tified with it. Although the Respondent has explained the discharges as economically
motivated there is much testimony to the effect that no one of those terminated
was a particularly desirable worker. Walker, for example, is alleged to have failed
to follow instruction. When Riches was asked about a raise of $50 a month given to
Walker in late September or early October, about 2 months before his discharge, he
explained, disingenuously, that he had granted the raise so that Walker might be in a
better situation in obtaining a loan to buy a house. This is so patently inconsistent
with Respondent's position in other contexts that it was having a difficult time to
remain in business as to require outright rejection. Its significance lies in the obvious
fact that in such a small matter Riches embraced the opportunity to deviate from the
truth. Riches described McBrearty as a "confidence man" but when pressed on this
point in cross-examination he lamely explained that he meant no more than that
McBrearty was an imaginative, ambitious, and energetic person. He admitted that
McBrearty was a good salesman and other evidence persuades that, in addition, he
was a knowledgeable paint man. Bentley, according to Riches, had no utility in the
hardware business. Yet Bentley was never told of his deficiences and considering
that his salary had twice been raised might be pardoned if he thought that he was
giving satisfaction. Wilcox, in the eyes of Riches as he expressed it in his testimony,
had unpleasant mannerisms and an unprepossessing appearance. Yet, Riches quickly
learned after discharging Wilcox that he needed him to sell power tools and that
he must therefore keep him on. I think it to be a reasonable conclusion that Wilcox's
appearance or mannerisms did not suddenly change from the date of his discharge to
the occasion a week later when he was told that he could keep his job.
In sum I find that none of the reasons offered by the Respondent as directly or
tangentially motivating the discharges on December 8 withstand scrutiny.
The discharge of Harry Engman occurring as it did at a different time from the
other discharges warrants separate treatment For the nearly 4 years of his employ-
ment Engman's earnings remained substantially unchanged. Thus it may be inferred
that he was not considered to be an employee whose value to the Respondent was
increasing. That he was careless and inaccurate in filling out sales tags seems clear.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yet in his constant and unrelenting efforts to rid himself of unproductive employees
and to reduce the ratio of sales expense to sales, Riches had elected to discharge
many employees in the period from July 1961 to December 1962, and had obviously
until the latter month elected to retain Engman. The fact that Riches had instructed
Engman in late November or early December not to wait on customers but to busy
himself otherwise has an ominous connotation but General Manager Buhl testified
that it was he who told Engman to write no more tags and at the same time changed
his work station. When asked in cross-examination if this was in contemplation
of Engman's early discharge, Buhl answered, "I couldn't no, I wouldn't say that. The
steps were taken to, I think, move him from the remodeling department. The actual
work he had been doing, and eventually I let him out, terminated him, yes." Buhl
testified firmly that Engman was taken off the remodeling work or perhaps not permit-
ted to take on additional remodeling work 2 or 3 weeks before his discharge. When
then asked if it was not true that Engman had been transferred from remodeling work
in August, 4 months before his discharge, Buhl answered, "I do not recall his being
transferred at that time. I can't tell you that." Buhl then went on to concede that
the transfer may have taken place without the circumstance coming to his attention.
The sum of Buhl's testimony concerning Engman convinces that he did not know
at the time he testified just what Engman's job assignment may have been prior to the
discharge and causes me to conclude that his earlier testimony about Engman's un-
finished remodeling work is not based upon any recollection at all. John Kampf,
who was head of the remodeling department when he quit Respondent's employ in
early December, testified that Engman had worked under him and that when Engman
asked to be transferred to other work, Kampf attempted to keep him. He was unable
to recall when the transfer was effected although at one point in his testimony said it
was June or July. Kampf also testified that he had recommended Engman's dis-
charge but his later testimony makes it clear that rather than making a recommenda-
tion he told Engman that he might be discharged if he continued to make errors
in his sales tags.
I find that Engman, as he testified, left the remodeling work in the summer of 1962
and that he had no unfinished remodeling work in late November or early December.
Thus I disbelieve the testimony of Riches that he told Buhl in late November to let
Engman go as soon as he finished whatever work he was engaged in. I also do not
credit Buhl's confused testimony that such an instruction was given to him It thus
becomes less strange that on December 8 when decisions to discharge were made that
the name of Engman was not mentioned. There had been no earlier decision to
terminate him.
Riches denied that any information came to him after the Saturday discharges and
before he instructed Buhl to discharge Engman on Monday which caused him to issue
that direction. According to Riches he was moved to this action solely by the un-
remitting necessity to tailor the size of his work force to the volume of business be-
ing transacted. I have found Riches to be an unreliable witness in respect to other
aspects of this case and he is no more to be credited in connection with the discharge
of Engman. Here again the Respondent acted with a haste that approached panic.
Engman was discharged as soon as he came to work. Although the payroll office
presumably was open on Monday and although the California Labor Code requires
that a discharged employee be given his accrued earnings at the time of his dis-
charge, his check was not prepared until the following day. Engman had solicited a
few persons to sign designation cards for the Union, among them his supervisor,
Gerald Overman. The probability that Engman's identification with the attempt to
bring the Union into the store was brought to Riches' attention shortly before the
discharge is a strong one and is the only hypothesis which serves satisfactorily to ex-
plain the circumstances and fact of his discharge.5
I find that the Respondent discharged Wilcox, Walker, McBrearty, Bentley, and
Engman in the belief that each of them was active in promoting the organizing at-
tempt of the Union By the discharges the Respondent discriminated in regard
to their hire and tenure of employment to discourage membership in the Union and
the Respondent has thereby violated Section 8(a)(3) and (1) of the Act.
5In reaching this conclusion I have considered and rejected as not credible Riches'
testimony that the letter written to the Board's Regional Director In San Francisco on
December 14 was entirely speculative in its reference to solicitations upon Respondent's
premises I have no doubt that he had information that such organizing activity had
been engaged in and that he was aware of the Identity of at least some of the participants
before that date.
MERNER LUMBER AND HARDWARE COMPANY 1033
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate,
and substantial relation 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 the Respondent has engaged in unfair labor practices it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has unlawfully refused to bargain with the
Union, it will be recommended that upon request the Respondent extend recognition
to and engage in collective-bargaining negotiations with the Union and, if an under-
standing is reached, reduce it to writing and sign it.
Having found that the Respondent has unlawfully discharged Wilbert Bentley,
Harry Engman, William McBrearty, Burnell Walker, and Irving Wilcox, it will be
recommended that it offer to each of these individuals, other than Wilcox who has
already been reinstated, immediate and full reinstatement, each to his former or
substantially equivalent position, without prejudice to seniority or other rights and
privileges. It will also be recommended that the Respondent make each of the
above-named, other than Wilcox, whole for any loss of pay suffered by reason of the
discharges by payment to each of them the amount each normally would have earned
from December 8 or December 10, as the case may be, to the date of reinstatement or
offer of reinstatement less actual earnings in those periods. These amounts shall be
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per
annum.
Because the Respondent, in discharging its employees in the belief that they were
active in supporting a labor organization, has engaged in unfair labor practices of
serious proportions, the commission of other unfair labor practices in the future may
be anticipated. So that Respondent's employees may have assurance that rights
guaranteed by the Act will be respected, it will be recommended that the Respondent
be required to refrain from violating the Act in any respect.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Merrier Lumber and Hardware Company is an employer engaged in commerce
within the meaning of Section 2(2) and Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 428, Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
3. The above-named labor organization on December 7, 1962, was, and at all
times material since has been, the majority representative of Respondent's employees
in an appropriate unit.
4. All employees at Respondent's Palo Alto store, excluding lumber handlers,
outside contract salesmen, truckdrivers, lift-truck drivers, guards, and supervisors as
defined in the Act, on December 7, 1962, constituted, and at all times material since
have constituted, a unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. By refusing on December 7, 1962, to recognize and to bargain with the Union
as the representative of its employees in an appropriate unit, the Respondent has
committed unfair labor practices within the meaning of Section 8(a) (5) of the Act.
6 By discharging Wilbert Bentley, Harry Engman, William McBrearty, Burnell
Walker, and Irving Wilcox, the Respondent has discriminated in regard to their hire
and tenure of employment to discourage membership in the Union and has thereby
engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
7. By the refusal to bargain and by the discharges the Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, and has thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended that the Respondent, Merner Lumber and Hardware Company, Palo Alto,
California, its officers, agents, successors, and assigns, shall:
,1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive representative of its
employees in an appropriate unit.
(b) Discouraging membership in the Union by discriminatorily discharging em-
ployees or by discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to form, join, or assist Retail Store Employees Union,
Local 428, Retail Clerks International Association, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2 Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Wilbert Bentley, Harry Engman, William McBrearty, and Burnell
Walker immediate and full reinstatement each to his former or substantially equiv-
alent position, without prejudice to seniority or other rights and privileges, and make
each of them whole for any loss of earnings suffered by reason of discharge, in the
manner provided in the section herein entitled "The Remedy."
(b) Upon request, bargain with the Union as the exclusive representative of its
employees in the appropriate unit and if an understanding is reached reduce it to
writing and sign it.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment reports, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Recommended Order.
(d) Post at its store in Palo Alto, California, copies of the attached notice marked
"Appendix." 6 Copies of said notice, to be furnished by the Regional Director for
the Twentieth Region, shall, after being duly signed by the Respondent, be posted
by it immediately upon 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.
(e) Notify the Regional Director for the Twentieth Region, in writing, within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps it has taken in compliance?
e In the event that this Recommended Order be 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 be 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 Deci-
sion and Order."
71n the event that this Recommended Order be 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 you that:
WE WILL, upon request, bargain collectively with Retail Store Employees
Union , Local 428, Retail Clerks International Association , AFL-CIO, and, if
WHITING MILK CORPORATION 1035
an understanding is reached, reduce it to writing and sign it. The bargaining
unit is:
All employees at the Palo Alto store excluding lumber handlers, outside
contract salesmen , truckdrivers, lift-truck drivers, guards, and supervisors
as defined in the National Labor Relations Act.
WE WILL offer to Wilbert Bentley, Harry Engman, William McBrearty, and
Burnell Walker, immediate and full reinstatement each to his former or sub-
stantially equivalent position, without prejudice to seniority or other rights and
privileges, and will make each of them whole for any loss of earnings suffered
by reason of discharge.
WE WILL NOT by unlawfully refusing to bargain or by means of discriminatory
discharges or in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to join or assist Retail
Store Employees Union, Local 428, Retail Clerks International Association,
AFL-CIO, or any other labor organization, 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, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
MEANER LUMBER AND HARDWARE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, 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.
Employees may communicate directly with the Board's Regional Office, 830
Market Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension
3191, if they have any question concerning this notice or compliance with its
provisions.
Whiting Milk Corporation and Martin M. Walsh and Lester J.
O'Neil
Milk Wagon Drivers & Creamery Workers Union , Local 380 a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Martin M. Walsh and
Lester J. O'Neil . Cases Nos. 1-CA-39.1, 1-CA-4118, 1-CB-796,
and 1-CB-838. January 16, 1964
DECISION AND ORDER
On June 20,1963, Trial Examiner Fannie M. Boyls issued her Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents filed exceptions to the
Intermediate Report and supporting briefs, and the General Counsel
filed a brief in support of the Intermediate Report.
145 NLRB No. 103.