Michael's Artists and Engineering Supplies, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 206 (N.L.R.B. 1970)

206 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
Michael 's Artists and Engineering Supplies , Inc. and TRIAL EXAMINER'S DECISION
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America,
Local Union No. 452. Case 27 -CA-2730
JUNE 30, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On March 2, 1970, Trial Examiner James R.
Hemingway issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner found, in addition, that
the Respondent's unlawful conduct had interfered
with a Board election held in Case 27-RC-3635 on
June 20, 1969, and recommended that the election
be vacated and set aside. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the General Coun-
sel filed an answering brief to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and the
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Michael's Artists and
Engineering Supplies, Inc., Denver, Colorado, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order
i In adopting the Trial Examiner's finding that Koenig unlawfully inter-
rogated employee Marshall we rely solely on Koenig's inquiry as to the na-
ture of the employees' grievances In the context of the union activity and
the recent demand for recognition, this inquiry was, in our opinion, calcu-
lated to elicit information as to why the employees were engaging in or-
ganizational activities
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a
charge filed on June 11, 1969, by International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers • of America, Local
Union No. 452, herein called the Union, and
amended charges filed on June 12 and 24, 1969,
against Michael's Artists and Engineering Supplies,
Inc., herein called the Respondent, a complaint is-
sued on July 23, 1969, alleging violations of Section
8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. Sec. 151, et seq.,
herein called the Act.
Following the filing of a petition for certification
on May 23, 1969, the Union and the Respondent,
on June 2, 1969, entered into an agreement for
consent election and such election was held on
June 20, 1969. The election resulted in two votes
against the Union and two challenged ballots.
Thereafter, on June 25, 1969, the Union filed ob-
jections to the election which, the Regional
Director found, raised substantial issues with
respect to conduct affecting the results of the elec-
tion. The Regional Director therefore ordered a
hearing to be held before a Trial Examiner on such
objections, and he consolidated such hearing with
the hearing in the complaint case previously re-
lated.
In substance, the complaint alleges that Respond-
ent changed the hours of employees and withdrew
certain benefits to discourage union membership or
activity; in May 1969, interrogated two employees
with respect to union activities; on about June 10
and 11, 1969, discharged two employees (Bernard
Polzkill and Kathleen Mooney) because of their
membership in or activities on behalf of the Union,
and thereafter failed and refused to reinstate them;
and about May 26, 1969, reduced the hours of em-
ployment of employees.
Following an extension of time for the filing of an
answer, Respondent, on August 15, 1969, filed an
answer in which it denied the alleged unfair labor
practices.
Pursuant to notice, a hearing was held before me
on October 16 and 17 and November 5, 1969.
At the opening of the hearing, the Respondent
moved to amend its answer to admit some of the
allegations of the complaint which it had denied in
its answer, including the allegation of failure and
refusal to reinstate Polzkill and Mooney. The
motion was granted. At the close of the hearing,
the parties requested and were granted time in
which to file briefs with the Trial Examiner, and
both have done so. In the General Counsel's brief,
a motion is made to amend the complaint for the
purpose of deleting the allegations contained in
paragraph VI(e) concerning a reduction of hours
of employees and the reference to paragraph VI
184 NLRB No. 24
MICHAEL'S ARTISTS AND ENGINEERING SUPPLIES 207
contained in X1I(b). Since all the evidence is in
and is recited hereinafter, the motion is disposed
of consistently with the conclusions herein reached.
Upon all the evidence and from my observation
of the witnesses, I make the following.
FINDINGS OF FACT
I THE FACTS OF COMMERCE
The complaint alleges and the answer admits that
Respondent is a California corporation with offices
located in Denver, Colorado, where it is engaged in
the business of wholesaling in artists' and engineer-
ing supplies, that Respondent annually, in the
course and conduct of its business operations in the
State of Colorado, received goods and materials
valued in excess of $50,000 directly from sources
located outside the State of Colorado, that Respon-
dent is now, and has at all times material herein
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act In
addition, the evidence shows that the Respondent
has business houses in several other States of the
United States I find that the Respondent is engaged
in commerce within the meaning of the Act and
that the Board has jurisdiction.
mitted and if an employee desired it, he was al-
lowed to take an hour for lunch. More often than
not, however, the employees took half an hour for
lunch During the busy season, the employees often
worked overtime, sometimes working late and on
Saturdays.
In April 1969, the Respondent installed an em-
ployees' lunchroom with a coffeepot, a refrigerator,
and a soft drink machine in it. In addition to their
lunch period, the employees also were given a cof-
feebreak in the morning and in the afternoon. Be-
fore May 27, 1969, the employees contributed $1 a
week to a doughnut fund, and each morning the su-
pervisor of the warehouse would send one of the
employees, usually the truckdriver (Marshall), out
to buy doughnuts to eat at their coffeebreaks Such
emissaries would take anywhere from one-half hour
to an hour, and it once took the truckdriver (who
also had the duties of receiver and stocker) an hour
and a half During April, the supervisor requested
the four full-time warehouse employees-two men
and two women-not to take their coffeebreaks
and lunch all at the same time Thereafter one
woman and one man would take their breaks or
lunch together. However, there was no fixed time
for the breaks
B Interference, Restraint, and Coercion
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A Background
The Respondent's place of business in Denver
consists of offices and a warehouse. In its
warehouse, the Respondent, in 1969, employed
three men and a varying number of women, some
of whom were hired only as temporary help during
times of heaviest business. In May 1969, there were
a supervisor, one man who acted primarily as a
receiver but also acted as a truckdriver for local
deliveries, a man who acted as a packer or shipper,
aid two women, who "pulled" and priced
merchandise. Another girl, who worked primarily
in the office, assisted in the warehouse when
needed. The supervisor assigned work to the other
employees, and he was supposed to check the accu-
racy of their work To speed up the work during
rush periods the supervisor occasionally assisted
with the work of the employees as needed, at least
he did prior to May 26, 1969 Only two local
representatives of the Respondent were over the
warehouse supervisor-the branch manager and the
assistant branch manager Both had offices in the
office space adjacent to the warehouse.
The hours of the warehouse employees, prior to
May 27, 1969, were 8 a m to 5 p.m. If work per-
Organization of the Union and changes instituted
by Respondent
After discussing the matter with the other
warehouse employees, Bernard Polzkill telephoned
the Union and set up a meeting at his apartment for
the night of May 20, 1969. Polzkill invited not only
the other three warehouse employees but also
Kimon Kefalas, the warehouse supervisor. All ac-
cepted except Kefalas. At that time Polzkill was on
friendly terms with Kefalas and would ride to and
from work in the latter's car.
At the meeting on May 20, each of the four em-
ployees, Carl Marshall, Kathleen Mooney, Chantal
Schoenfeld, and Polzkill were given union
authorization cards and they all signed them, but
Marshall did not turn his in to the union's represen-
tative. He held it and mailed it in the next day
On Friday, May 23, 1969, Edward Toliver, the
Union's organizer, wrote a letter to the Respondent
claiming to represent a unit of employees, offering
to prove its majority , and requesting a meeting to
negotiate a collective-bargaining agreement. This
letter was received by the Respondent on Monday,
May 26, 1969.
On the same day that it received this letter, the
Respondent prepared a new schedule of worktime
for each of the warehouse employees on separate
slips of paper. These schedules were to be effective
on May 27 but the slips showing the schedules were
delivered to the employees on the 26th Prior to
May 27, all employees had the same hours, 8 a m.
to 5 p m., with a half hour off for lunch, unless
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work was slow, when they were allowed to take an
hour. However, they were paid for an 8-hour day
The slip handed to Mooney showed her new
schedule to be 8 a.m. to 4:30 p.m., with a morning
break from 9.30 to 9.45 a.m. (previously there was
no set time for coffeebreaks and she had been al-
lowed to go with one of the men, while the other
girl and man waited and took theirs together later),
lunch from 11 30 to 12, and an afternoon break
from 2:30 to 2:45 o'clock. Polzkill's new hours, as
shown by the slip handed him, were 8 a.m. to 4:30
p.m., lunch from 12 to 12:30, with 15-minute
breaks starting at 9:45 a.m. and 2.45 p.m
Marshall's new hours were 8:30 am._ (half an hour
later than before) to 5 p.m., lunch from 12.30 to 1,
with 15-minute breaks starting at 10 a.m. and 3
p.m. The result was to make each employee take
his coffeebreak and his lunch by himself. The
evidence does not show whether or not Schoenfeld
received-one. She quit on May 29 and might al-
ready have given notice thereof before these
schedules were prepared.
These changes were directed to be made by
David Swinehart, the assistant branch manager, but
the slips with the new schedules were handed out
by Kefalas, the warehouse supervisor, on May 26.
When the latter delivered the slips to Mooney and
Polzkill, they were in the lunchroom. Kefalas said,
"Here, this will give you something to talk about."
Kefalas left but returned shortly and added that
there would be no more playing of the radio, that
there would be no more doughnuts, that the
doughnut fund would be split up and refunded, and
that Mooney should no longer park her car in front
of the building but should park it in a lot at the
side.
On the following day, May 27, when Polzkill was
in the lunchroom by himself, Kefalas came in, and
asked, according to Polzkill, "Are you the
spokesman for the Union?" (Kefalas admitted ask-
ing this). Polzkill answered, "Well, if you need a
spokesman, I guess." Kefalas asked, "Well, aren't
you the one that called the union representative?"
Polzkill answered that he was and asked Kefalas
who_ wanted to know. Kefalas told him, according
to Polzkill, that it was "Mr. Koenig,"' the branch
manager,' and left. At about this time, Kefalas
asked Polzkill to drive to work in his own car in-
stead of riding with him as he had been doing.
' Kefalas testified that he had asked his question because he was curious
I do not credit this explanation Both the form of his question and the
abruptness of the conversation suggest something other than idle curiosity
' Leonard Koegnig at that time had a title of National Sales Manager for
the Wholesale Division but he was in charge in Denver over Swinehart and
either had the title or the duties of the branch manager as well
1 Marshall fixed the time as either the Friday after the union meeting of
May 20 (which would have been May 23) or the following Friday (which
would have been May 30, a holiday), when the employees did not work)
Although it is possible that Koenig had learned by May 23 (when he
returned from a trip out of town), of the results of the employees' meeting
of May 20, there is no actual evidence that he was informed of the union
About May 29,3 while Marshall was sweeping
out the warehouse after the others had left, Koenig
came back and asked him to step into his office.
When Marshall got there, Koenig said (according to
Marshall, Koenig not being asked about the inci-
dent) that he had heard that there were some
grievances and it puzzled him that nothing had
come to his attention, and he asked Marshall
what the grievances were. Marshall replied that
he, personally, did not have any, but that Polzkill
had complained about wages4 and that Mooney
had complained that the insurance provided
by the Respondent was inadequate because it
did not cover dependents. Marshall also told
Koenig about the meeting of May 20 and of
his signing of a card. Marshall did not testify
that Koenig had or had not questioned him about
the meeting, but I am skeptical that Marshall
would have volunteered the information with-
out some prompting. Marshall testified that he
had told Koenig that he had not turned in the card
until the next day and that he had not decided
"either way" but would see how things went.'
Marshall quoted Koenig as saying that he would not
"fire anybody over a union" because "everybody
has their free belief to believe the way they want to
believe, and if they want to believe in a union or
contact a union, they feel that their duty." I have
some doubt about this portion of Marshall's
testimony, first, because there was no testimony of
anything that would have prompted such a state-
ment by Koenig, secondly, because Marshall gave
the appearance of one desiring to curry favor with
his employer, and thirdly, because this testimony
appeared to be a garbled version of something
Marshall had attempted to memorize. I give this
portion of Marshall's testimony no weight.
At some time prior to the week of Memorial Day,
Kefalas had told the employees that the Respon-
dent would take inventory on May 30 and that they
were all expected to work that day. Under the
Respondent's rules, that was a paid holiday.
Schoenfeld asked Kefalas to speak with manage-
ment about not requiring that day to be worked.
Kefalas said he would. Later, Kefalas reported what
Swinehart had said-that they would work on,
Memorial Day at time and a half pay and if they did
not work that day, they need not bother to return
the following Monday. The Respondent later
organization before May 26, when he received the Union'sletter Further-
more, under the new schedule effective May 27, Marshall would have been
working half an hour later than the other employees and would more likely
have been alone while sweeping at the end of the day , as he testified I
deem it more probable , therefore , that the incident related by Marshall
took place after receipt by the Respondent of the Union's letter
' This will be more fully related in connection with the discharge of Polz-
kill
5 Although Marshall appeared not to have been regarded as a very good
employee, he received a raise to $2 25 in July 1969 The recommendation
therefor would have been sent to the head office in June according to
Swinehart
MICHAEL'S ARTISTS AND ENGINEERING SUPPLIES 209
changed the date for taking the inventory from May
30 to May 31 It does not appear whether or not
the related incident had anything to do with
Schoenfeld's decision to quit on May 29 Shcoen-
feld was quoted by Polzkill as saying to Kefalas,
when the latter reported that they would work on
Memorial Day, "Things will be different once we
have our union in here." Polzkill testified that
Kefalas had replied, "Well, you're not going to get
a union in here and you'll see why." Neither
Schoenfeld nor Kefalas was questioned about this
incident. I have some reason to doubt the accuracy
of Polzkill's memory either as to the date or as to
what Schoenfeld said, in view of the fact that Polz-
kill testified that this incident was the main reason
why the employees had gone to the Union; yet from
the way Polzkill quoted Schoenfeld, the latter's
words sounded more as though getting a union was
something that had already been settled by the em-
ployees. This leads me to believe either that this in-
cident took place after the union meeting of May
20 or that Schoenfeld had not said "once we have
our union " bu,t had said something more like "if we
had a union.'.' If the incident took place, I find it
more likely that it occurred on or after May 26,
because I believe it unlikely that, before the arrival
of the Union's letter demanding recognition,
Kefalas would have discussed the Union with his su-
pervisors and, I doubt that, before he had discussed
it with them, Kefalas would have so positively pre-
dicted that the employees would not have a union.
However , because the testimony leaves these un-
resolved doubts , I refrain from making an affirma-
tive finding on this incident
The Respondent contends that in May 1969,
Kefalas was not a supervisor within the meaning of
the Act. Contrary to this contention, I find that he
was. He received a higher rate of pay than the
warehouse employees. Kefalas testified at one point
that he had held the title of warehouse foreman for
only 2 months prior to the date of the hearing. Be-
fore that time, he testified, he had had no title but
he had "more or less run the warehouse on my
own " When the new lunchroom was finished in
about April 1969, Swinehart spoke to all the em-
ployees there. He told them that Kefalas would be
in charge of the warehouse and would tell them
what to do and that they should go to Kefalas if
they wanted time off or had any questions about
their work, and if Kefalas could not make a deci-
sion, it would be passed along to himself and then
to Koenig if he could not give the answer. He said
that Kefalas would not be helping them as much as
he had before because he would be in charge of
checking the work to see that there were no
mistakes He told them that the telephone could
not be answered by anyone except Kefalas6 and
that, if the office wanted one of the other em-
ployees, it would call them on the loud speaker
Kefalas at one point could not remember whether
he got the title of foreman before or after the union
requested recognition, but he testified, without con-
tradiction, that he had the authority to recommend
hire and discharge and that his recommendations
would carry weight. Also he could and did reprove
employees for their mistakes As previously stated,
prior to May 27, 1969, Kefalas would send one of
the employees out for doughnuts in the morning
and he could and did instruct them as to when they
could take their breaks and lunch periods.
Although Kefalas testified that if an employee
requested time off, he would take the request to
Swinehart, Kefalas' recommendations would appear
to be determinative, because he was the one who
would know whether the work in the warehouse
would or would not permit excusing an employee.
I find that by Koenig's questioning of Marshall
and by Kefalas' questioning of Polzkill, as previ-
ously related, the Respondent interfered with,
restrained, and coerced its employees in the exer-
cise of their rights guaranteed in the Act I do not
regard these as isolated acts. Rather the questioning
was designed to get information which would lead
to reprisals in the form of discharges.
I further find that the Respondent scheduled the
coffeebreaks and lunch periods of employees one at
a time, a procedure not shown to be necessary, in
order to keep the employees from communicating
with each other about the Union. Although
Swinehart testified that this change was made to
conform to company policy, I do not credit his
testimony that such a policy existed. Prior thereto
the only limitation had been that all the employees
should not eat at the same time because someone
should be present in case a delivery was to be
received. Swinehart was unable to give any details
about this policy, such as when it was adopted and
in what form it was expressed. But even if such a
policy did exist, it is apparent that it was not fol-
lowed until the Respondent had received the
Union 's letter requesting bargaining and that the
change was prompted by that letter. The other
changes instituted by the Respondent on May 26-
discontinuance of the doughnut fund and radio
playing' I find to be part and parcel of the Respon-
dent's adverse reaction to the Union's demand for
recognition. With respect to the change in hours
(other than a definite reduction in the length of
the lunch period) whereby two employees were
released at the end of the day half an hour earlier,
while one was to come in half an hour later in the
morning, I find that they suffered no loss, since the
change in hours resulted in no reduction in pay.
However, the change did result in a conformity of
c Kefalas testified that if he was not present , the one nearest the
telephone answered it Outside calls did not come to this telephone without
going through the office If Kefalas did not answer his telephone when the
front office rang his telephone , the girl in the office would call him on the
public address system 1 find that no one else answered Kefalas' telephone
r Kefalas testified that an efficiency man had recommended discon-
tinuance of the radio playing practice in April 1969 but that , in spite of
that, he had occasionally permitted it before May 26
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours to the preexisting paid time and thus was ap-
parently designed to remove a possible cause for
grievance. Because of the timing of this change and
its obvious purpose of removing a cause for com-
plaint, I regard it as designed to dissuade the em-
ployees from their desire for union representation.
Hence, I find that by all the changes effected by the
Respondent as of May 27, 1969, the Respondent
interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in
Section 7 of the Act.
C The Discriminatory Discharges of Polzktll and
Mooney
1. The nature of the work in the warehouse
When the Respondent's office would receive or-
ders for merchandise, it would make an IBM com-
puter run, prepricing the items, and would then
write up the order on an attached form which
would be sent to the warehouse supervisor, who
had a desk and a telephone in the warehouse. The
supervisor would start one of the women on the job
of pulling the merchandise (i.e., taking it out of
stock) and one on the job of running off the price
tags, if pricing the items for the customer was
required. The supervisor did not always specify
which of the two regularly employed women was to
do the pulling or the pricing, and they occasionally
alternated. When the merchandise was assembled
and the tags were run off, one or both of the
women would stick the price tags on the merchan-
dise; then they would put the items on a conveyor
belt, which would carry them to the packer, who
would put them in cartons. Before the merchandise
was packed into the cartons, the supervisor would
check the items for conformity to the order. After
the merchandise was packed, in cartons, the Super-
visor or the shipper would call the front office to
prepare address labels. When the labels were ready,
the supervisor or shipper would go to the office, get
them, and put them on the cartons, fill out a bill of
lading, and then call a trucking company to come
for the shipments. When the truck would arrive, the
shipper would take the cartons to the dock, where
the truckdriver would put them in his truck and
sign the bill of lading.
There were opportunities for errors in almost all
steps of the procedure. The puller might pull the
wrong number of items (resulting in shortages or
overages), the pricer might put the wrong price tag
on an item , the pricing machine might be jarred ac-
cidentally and, as a result, print the wrong depart-
ment number on the price tag, the pricer might run
the wrong number of price tags or fail to remove
the last one from a previous run and so mismark
the price of an item, the packer or supervisor might
" Such an error resulted in a changed procedure Thereafter only one
order at a time was worked on so that only one carton at a time would be
addressed
get address labels mixed, and send the boxes to the
wrong store.8 Usually mistakes in pricing were
discovered before shipment, but sometimes such er-
rors went unnoticed until there was a customer
complaint. Then the assistant branch manager
would call it to the attention of the employees in
the warehouse either directly or through the super-
visor. Because there was so much interchange of
employees in the work of pulling and pricing, and
even in packing and shipping, the blame for
mistakes could not be definitely attributed to a sin-
gle individual. So when complaints came from
customers, the assistant manager or, more usually,
the warehouse superintendent would notify the em-
ployees collectively and caution them to be more
careful.
2. The discharge of Polzkill
a. Polzkill's employment history
Polzkill started working for the Respondent in
January 1969, as a part-time worker while he was
attending morning classes at a business school. His
duties were principally receiving merchandise-and
putting stock away At that time, he was'paid $1.90
an hour. When Polzkill was hired, Koenig told him
that he would be raised to $2 in 90 days if he
stayed.' On January 24, 1969, Respondent hired a
full-time man as a shipper at the rate of $2 an hour.
In March 1969, when his school quarter ended,
Polzkill changed his school schedule to night hours.
Kimon Kefalas, the warehouse supervisor, with
whom Polzkill rode to work and with whom he and
his fiancee double dated,-asked Polzkill if he would
be interested in working full time Polzkill
hesitated, believing that he needed the time to study.
However, Kefalas asked him to think it over and
meanwhile he would speak with Swinehart. Accord-
ing to Polzkill, Swinehart thereafter told Polzkill he
considered him a good man, that Respondent could
use his services, and asked him if he would be in-
terested in working full time if the Respondent
raised his pay to $2 an hour. Swinehart denied any
promise of a raise in pay to Polzkill. I find it dif-
ficult to credit Swinehart's denial of a promised in-
crease to $2 for Polzkill when the latter went on
full time not only because I found him to be a truth
stretcher and fabricator but because as soon as
Polzkill started on full time, about April 1, 1969,
Kefalas switched him and Marshall, making'Polzkill
the shipper and Marshall the receiver. According to
Marshall, the reason for this transfer was because
items "seemed to be getting in the wrong box," and
other reasons like a mix-up in deliveries. Polzkill
impressed me as an energetic young man with an
alert mind. I found him to be an honest witness and
I find his testimony to be accurate except for minor
'This is based on Polzkill 's testimony Koenig did not testify about the
matter
MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES 211
matters explainable by vagaries of memory.
Marshall appeared to be a young man who lacked
Polzkill's drive, alertness, and strength of character.
In April 1969, while Polzkill was the shipper, the
address labels to two separate Target stores in dif-
ferent cities were put on the wrong cartons, causing
misdeliveries and considerable trouble. When
Swinehart learned of it through the customer, he
went back to the warehouse and told Kefalas and
Polzkill of the mistake. At that time, address labels
were often affixed by Kefalas, but these might have
been affixed by either Marshall or Polzkill.10 The
error apparently occurred because the two orders
had been finished on a Friday night and the cartons
had been stacked against the wall without being ad-
dressed. When the employees returned on Monday,
these orders were weighed and the address labels
were affixed by one of the men, but no one knew
by which one It was after this incident that the
Respondent adopted the procedure of not starting
on a second order until after the first one was
completed and addressed.
On one occasion, Swinehart told Polzkill and
Kefalas that there had been a complaint that canvas
had been packed too tight Canvas comes
prepacked six rolls to a box, and the boxes in which
they come are then packed in the cartons along
with the rest of the order. If the order was for less
than six rolls, paper excelsior would be packed in
the box in which the remaining rolls of canvas
come in order to keep them from rattling. The
evidence does not indicate whether the complaint
concerned a surplus of paper excelsior in boxes of
less than six (an improbability) or whether it con-
cerned pressure on those container boxes after they
were packed in the cartons, and it was not ex-
plained to Polzkill which it was I deduce that
Swinehart made no effort to get the customer to
elucidate.
Under date of June 9, 1969, a presumed agent of
a Target store signed a memorandum addressed to
no one, reading- "Merchandise has been packed so
tight that when we unload it in the dept. it tears "
There is no explanation of what the merchandise
was or when it was shipped of received. The signer
of the memorandum was not called as a witness
Swinehart testified that this memorandum "was
received, as I recall, probably with an order " His
use of the word "probably" detracts from his "re-
call." Packing too tight was one of the reasons
listed for Polzkill's discharge but, according to
Polzkill, when Swinehart spoke to him on June 10,
at the time of his discharge, about the complaint in
the foregoing memorandum, Swinehart told Polzkill
that the merchandise which had been damaged was
a painting substance that comes in gallon con-
tainers, four to a box, and that one of them had
been smashed. It does not appear that the
memorandum introduced in evidence to substan-
tiate the criticism was shown to Polzkill at the time
of his discharge. Since the signer of the memoran-
dum did not testify, I am unable to give this docu-
ment much weight. Furthermore, the discrepancy
between the memorandum (where the word "tear"
is used) and what Swinehart told Polzkill on June
10 (where he used the word "smashed") suggests
that Swinehart at that time had not yet received the
memorandum. It also suggests fabrication, but since
there is no clear evidence thereof I refrain from so
finding.
b. Polzkill's discharge
Polzkill's actions in contacting the Union and
holding the organizing meeting at his apartment on
May 20 have already been related, as also have the
Respondent's actions upon receipt of the Union's
demand for bargaining. It will be remembered that
on May 27, Kefalas asked Polzkill if he was not the
one who had called the union representative, saying
that Koenig wanted to know.
During the first week in June, both Polzkill and
Mooney observed that when they arrived in the
morning, Swinehart, who always arrived about 7:30
a m., and who would read his newspaper in his of-
fice, would look at the clock when the employees
would arrive and would then make a notation on a
piece of paper. Since Polzkill was usually the first
employee to arrive during his employment in June
1969, Swinehart could not use this as a ground for
his discharge, but he did in Mooney's case, as will
be subsequently related
On Monday, June 9, 1969, Polzkill was ill. He
telephoned Swinehart to report that he would be
unable to work that day. Swinehart asked if he
would be able to come by noon Polzkill replied
that if he felt better by then he would but, from the
way he felt, he doubted that he would be up to it by
then. He did not report for work until the next
morning.
On Tuesday, June 10, Polzkill worked all day
When he was getting ready to leave at 4 30 p in
Kefalas told him that Swinehart wanted to see him
in the office. Polzkill went there accompanied by
Kefalas. When he entered the room, Polzkill
testified, Swinehart had a big smile on his face
Swinehart said, "Well, Ben, old boy, we're going to
have to let you go " Swinehart had a stack of
papers on his desk, and as he leafed through these
he listed reasons for Polzkill's termination. Then he
told Polzkill he could return on Friday for his
check
Among the reasons given by Swinehart for Polz-
kill's discharge were (1) the error in affixing ad-
dress labels on the cartons in April, as previously
related and which I find was not, and could not,
have been attributed to any one of the three men
with any degree of certainty, (2) packing the
10 No suggestion was made that Swmehart, himself, might have done it,
although he testified that he sometimes priced, pulled, or packed
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merchansise too tight ( a complaint that never was
adequately explained), (3) failing to sweep the
warehouse on the previous Friday night (Polzkill
protested that he had not been asked to do so and
Kefalas interjected that he should not have to be
asked); (4) Polzkill's absence on June 9 when he
was ill. According to Polzkill, Swinehart com-
mented , concerning this absence , " I suppose the
company is supposed to forget about working
because you can't make it."
Regarding the accusation of failure to sweep out
the warehouse, Polzkill testified that he was
required to sweep around his work bench every
night and that he had done so, but that the entire
warehouse was swept out only once a week and
that no one had been specifically assigned to that
work. Prior to May 27, the one who would do it
was often settled by a flip of a coin. This was con-
firmed by Marshall, who testified that no one was
actually assigned that work, that they tried to take
turns at it . Then Marshall testified : " He [Polzkill]
seemed to be doing most of the sweeping ... ex-
cept for around the conveyor ... we'd both do that
around there. As for the whole warehouse, usually
he [Polzkill] started in and I'd end up helping,
too." Prior to May 27, Polzkill had worked until 5
p.m Polzkill testified that during that time they
would start sweeping when the regular work was
finished . When Polzkill 's hours were changed to 8
a.m. to 4:30 p.m., he would not have had as much
time to sweep unless he had been asked by Kefalas
to work overtime, which he was not The fact that
Marshall 's hours had been changed to 8.30 a.m. to
5 p in suggests that he was being held half an hour
later than the other employees with a view to his
sweeping the warehouse after the others had left. I
can conceive of no other explanation for his later
hours, unless it was to have him available for
questioning after the other employees had left for
the day, an inference suggested by the fact that this
had occurred on May 29, as previously related
According to Kefalas, it had been the Respon-
dent's plan to discharge Polzkill on Monday, June
9, but when Polzkill called in to say that he was
sick , the Respondent changed the date of Polzkill's
discharge to June 10. If the Respondent had had
real cause to discharge Polzkill on June 9, it would,
in my estimation , be very strange that he should be
permitted to work at all, much less all day, on June
10 Why did not Swinehart simply tell Polzkill on
the telephone on Monday morning, when Polzkill
called to say that he would be unable to come in,
that he was terminated? The only explanation I can
think of is that Swinehart had rehearsed a scene
and wished to proceed as planned
On June 11, 1969, the day after Polzkill's
discharge, Swinehart wrote a letter to the Respon-
dent's attorney, listing the Respondent's reasons for
Polzkill's discharge. Although the original charge
was filed on that date, the notice of filing was not
received by the Respondent until the day after
Swinehart's letter was written. The haste with
which the Respondent sought to explain these
reasons to its attorney suggests , collectively or
severally, that the Respondent was expecting to
have to explain its actions, that the matter had been
previously discussed with that attorney, and that
the attorney had requested such an explanation In
this letter , Swinehart listed five reasons for Polz-
kill's discharge (some of which he had mentioned
to Polzkill at the time of his discharge)
1. The switch in address labels resulting in
cross deliveries which occurred in April and
which was just as likely the error of Kefalas as
it was of Polzkill
2. "Insubordination " This was explained.
"Assigned job of sweeping work area of
warehouse floor was not completed on May
26, 27, 28, 29 and June 6. When asked why
task was not completed, his answer was that he
was doing other duties that should have been
completed earlier."
I find no truth in this allegation if it referred to the
area about Polzkill's bench, and if it referred to the
entire warehouse floor, obviously the criticism
could not apply on each date, since the entire area
would have been swept only on Fridays. In any
event , I credit Polzkill's testimony.
3. "Lax in entire effort of job," under which
were listed five alleged instances thereof:
"(a) June 10, failed to pack an item for
Target Store No. 5."
It should be remembered that it was not the duty of
the shipper to check to see that each item on the
order was packed. That was the duty, first, of the
one who pulled the merchansise , and, second, of
the foremen , who was supposed to look over the
items before Polzkill would take what was sent to
him via the conveyor belt and pack them. Since the
Respondent had already decided to discharge Polz-
kill before June 10, I conclude that this item was
fabricated to make it appear that there was cause
on the very day of discharge. This was not testified
to have been a cause which Swinehart and related
to Polzkill at the time of his discharge.
"(b) Slowed down noticeably in the last
three to four weeks. Before this time he
was able to keep packing work completed,
and have time to do other odds and ends.
Recently he could not keep up the
packing of merchandise."
This was not substantiated by Swinehart. Kefalas
testified that Polzkill's production would depend
on the number of orders received, that on some days
they might pack five boxes and on other days 20 to
25. Some records of production were produced by
the Respondent, but Kefalas testified that they were
not reliable evidence of the amount of work Polz-
kill did for this very reason. The Respondent's busi-
ness was seasonal and in June was down from what
it had been If Polzkill's production, in fact, was
slower, it must be remembered that after May 27,
Kefalas gave Polzkill less assistance than before
Polzkill testified that after that date Kefalas spent
MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES
most of his time in the office or in the lunchroom.
Polzkill was never told he was slowing down
Because the evidence as a whole indicates that the
Respondent's representatives who testified about
Polzkill's production either fabricated or exag-
gerated, I do not credit their testimony that Polz-
kill's production went down because of any change
in Polzkill
"(c) Killing of time when taking loads to
dock Talking with drivers after being in-
structed to set load on dock, and let the
driver handle loading "
When Polzkill first started at the warehouse he and
Kefalas would assist the truckdriver in loading the
truck and would converse with him. Koenig came
up once while they were doing this and told them
not to help the driver because he was being paid to
load the truck The instruction to Polzkill not to
talk to the truckdriver was given by Kefalas, who
testified that his order referred only to talking to
the truckdriver after the truck was loaded and its
doors were closed, because talk at that time just
delayed the delivey. Polzkill testified that he fol-
lowed these instructions of Koenig and Kefalas
This alleged cause for discharge I regard as a
dredging up of ancient history, yet it is worded as
though it was a constant cause for complaint I find
that this alleged cause was stated in this way to
create a false impression
"(d) Sitting on counter in mornings
rather than attending to duties that needed
completing "
This criticism, I conclude from all the testimony,
arose because, after Kefalas had ceased to drive
Polzkill to work, and after it had become apparent
that Swinehart was keeping track of the arrival time
of Polzkill and Mooney, Polzkill had made a special
point of arriving early At such times, he would sit
on his bench to await starting time or an assign-
ment Swinehart on at least one occasion came
back into the warehouse and observed Polzkill
sitting on his bench. How often this might have oc-
curred is not clear, but Polzkill testified that
Swinehart never came back to the warehouse dur-
ing working time and found him sitting on a bench
if there was any work assigned to him at the time.
In his testimony, Swinehart omitted to testify (as he
had stated in his letter to the attorney) that his
catching Polzkill sitting on his bench was "in the
morning " I find that Swinehart was consciously at-
tempting to avoid a deduction that the complaint
referred to a practice occurring before 8 a.m I find
no valid basis for this alleged ground for discharge.
"(e) On June 4, failed to send a packing
slip to Bob's Florette, Ft Collins,
Colorado."
Polzkill testified that Swinehart had never men-
tioned this to him and that he, himself, had never
heard of it. I find that this alleged reason for
discharge was attempted make-weight If there was
such an omission, I find that Swinehart did not
know if it and did not mention it to Polzkill as a
213
cause for his discharge, and there was no testimony
about any such complaint from a customer.
The Respondent, at the hearing, attempted to
portray Polzkill as wasting time, talking in the aisles
with Mooney, and throwing paper wads. Regarding
talking to Mooney, this was sometimes necessary in
the course of work. Kefalas never overheard conver-
sations between them But even if they were talking
about the Union, there was no rule against it. The
evidence indicated that there were some days when
there were few orders and, on such days, the em-
ployees might frequently be caught up and have
time to converse. Polzkill denied that he had
thrown paper wads. If Polzkill had done so,
Marshall (the only one to testify about that) was
not very descriptive as to size of wads or where
they were thrown Conceivably, an excess of paper
not needed in packing might sometimes be cast
aside in wads Since Kefalas gave no testimony
about this, he apparently had no complaint about it.
I give Marshall's testimony concerning paper wads
no weight.
The General Counsel adduced evidence that,
about a week after Polzkill's discharge, Kefalas' fi-
ancee, Janice Furlong, spoke with Polzkill and told
him that on the Friday before Polzkill's discharge,
Kefalas had told her that Polzkill was going to be
discharged on Monday (June 9). She told Polzkill
according to her testimony and according to Polz-
kill's testimony of what she told him, that she had
asked Kefalas the reason for discharging Polzkill
and that Kefalas had told her that it was because
Polzkill was not doing his work properly and
because he and Mooney were the only ones who
wanted the Union Apparently, the last part was
mentioned by Kefalas only after Furlong had
questioned Kefalas' statement that Polzkill had not
performed his work properly, because it was con-
trary to what she had previously heard. Furlong
further testified that on Monday, June 9, on the
way home with Kefalas, she had asked him if they
had discharged Polzkill that day and that Kefalas
had replied that they had not done so because Polz-
kill had not come to work that day. On Tuesday,
June 10, according to Furlong, Kefalas told her that
Polzkill had been discharged and that Mooney was
going to be discharged the next day.
The Respondent attacks Furlong's credibility by
showing that Kefalas had been the one to break
their engagement in August 1969, and by claiming
that Furlong was spurred by malice to testify as she
did. Although I find that Furlong was an honest wit-
ness, albeit somewhat confused about dates, I find
it unnecessary to rely on her testimony because,
even without it, I find the evidence convincing that
Polzkill was discharged because he supported the
Union.
After Schoenfeld quit on May 29, 1969, the
Respondent used Barbara Barlow, a girl who had
previously spent most of her time in the office, to
help with the pricing. When the consent election
was held on June 20, the eligible voters were, I
427-835 0 - 74 - 15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presume, Polzkill, Mooney, Barlow, and Marshall.
The vote was two against the Union and two ballots
challenged This could easily have been predicted
after Koenig had questioned Marshall and after
Marshall had expressed himself as having no com-
plaints, while he mentioned the complaints of Polz-
kill and Mooney. Although there is no evidence
that the two challenged ballots were, in fact, those
of Polzkill and Mooney, it seems to be a reasonable
inference 11 In any event, the timing of the changes
in schedules and other changes effected by the
Respondent after receipt of the Union's letter of
May 23, the questioning of Polzkill and Marshall, as
previously related, the Respondent's transparent ef-
forts to work up causes for discharging Polzkill, the
absence of any warnings to him after the one time
in April, and all the surrounding circumstances
convince me, and I find, that the Respondent
discharged Polzkill in order to eliminate a union
supporter, thus discriminating in regard to his hire
and tenure of employment in violation of the Act.
3. Discharge of Kathleen Mooney
a. Description of pricing
Respondent's business was the sale and delivery
of artists' and enginerring supplies. Its principal
customers were discount houses and the most
prominent of these was called Target Stores, with
places of business in various cities in the United
States. Target and a few other customers required
prepricing of the merchandise it purchased This
meant affixing price stickers to each item of sale.
To do this, it was often necessary to remove the
merchandise from the boxes they came in, affix the
price sticker to each item in the box, and replace
them.
To facilitate this pricing work, Target had sup-
plied the Respondent with a pricing machine on
which could be set, by dials, the department
number, the price, and the number of tickets to be
run. The Respondent had considerable difficulty
with this machine, which had certain idiosyn-
crasies-one being that jarring with one's elbow
might change the department number it was sup-
posed to print, while another was that the machine
always printed one ticket more than it was set for,
and this ticket would remain on the machine until
the next run. Care had to be taken, therefore, to
remove the extra ticket when a new run was made.
b. Mooney's employment history
Mooney was hired in mid-January 1969, about
the time Polzkill was hired and before Marshall was
'i In a letter from Respondent's attorney, Sidney Tellis, to the Regional
Director, dated June 12, 1969, the writer stated "I am sure it will be the
position of the Employer to question the votes of the Employees who have
been recently discharged at the upcoming vote for unionization -
11 During Mooney's period of employment, Diana Wynia, Chantal
hired. She spent most of her time on pricing. Some-
times she pulled merchandise. She was one of the
few employees who could pull. Her duties also in-
cluded sweeping the floor around her place of work
and cleaning the lunchroom.
In the period of Mooney's employment, other
girls, during separate periods,12 assisted her in pric-
ing, and sometimes the Respondent hired tempora-
ry girls for a day or two at a time for that work.
When two girls were pricing, one would usually
run off the tickets while the other would start pric-
ing. When the machine run was finished, the two of
them would put the tags on the merchandise. Once
in a while, Mooney would pull merchandise, but at
least during the greater period of her employment
Kefalas would do the pulling. Sometimes Polzkill
would do so when he had time. I judge that Mooney
did more pulling toward the latter part of her em-
ployment than in the first part.
Sometimes the girls would make mistakes as a
result of a failure to remove the last ticket from a
previous run, an unnoticed change of the dial for
the department number, putting stickers on
removable tops of certain merchandise (a practice
proscribed by Target because caps with different
prices on them might be changed). Sometimes the
puller would pull the wrong quantity, and this could
affect the pricing.
Mistakes in pricing were usually discovered be-
fore the merchandise left the premises but occa-
sionally they were not, and then the Respondent
would receive a complaint from the customer. At
such a time, Swinehart would go back to the
warehouse or would notify Kefalas, and would call
attention to the complaint. Because of the practice
of the pricers to price together, it was rarely possi-
ble to ascertain who had made the mistake; so no
individual pricer was blamed. They would be cau-
tioned together, or collectively if there were more
than two
During the winter months-February or March-
Mooney was warned by Kefalas once or twice
about being late. She drove to work and sometimes
would get caught in a traffic jam. She testified that
she was late about once a month Mooney also
testified that she was not docked for being late but
would stay late to make it up. At the same time that
he warned her about being late, she testified,
Kefalas also warned her that she would be
discharged if she made another mistake like a
recent one when the wrong department number
had appeared on the price stickers.13 Mooney
testified that she was not late in May, and I find
that she was either not late or was at least not late
enough to be warned about it.
Schoenfeld , and Barbara Barlow , during different periods , assisted Mooney
in pricing at different periods of time
" This did occur once thereafter, but that time Kefalas put the blame on
the machine
MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES
One week in February , Mooney had asked for
and been given 4 hours off to get her driver's
license . As a result , she worked only 36 hours that
week The following week , she testified , she worked
44 hours but was paid for 80 hours for the two
weeks at the straight time rate.
c. Mooney's union activity and her discharge
Mooney testified without contradiction that she
once asked Kefalas, while in the lunchroom, if he
did not think they needed a union. His answer was
No."
As previously related , Mooney attended the
meeting at Polzkill 's apartment on May 20 and
signed an authorization card for the Union. The
Respondent 's reaction , upon receipt of the Union's
letter of May 23, has already been related. I have
previously related also how Marshall told Koenig
that Polzkill and Mooney were the only ones who
had grievances , and, I deduce , thereby gave the im-
pression that they were the only ones (after
Schoenfeld had quit on May 29 ) who wanted the
Union
For a week between June 3 and 10, 1969,
Swinehart made a note of the time of Mooney's ar-
rival . He noted that on June 3 she entered the front
door at 8:02 a.m., on June 4, at 8:01 a.m., on June
5 and 9 , at 8:04 , and on June 10, at 8:02 a.m. Since
he made no notation for June 6, it may be assumed
that Mooney was not tardy at all that day
It is conceded by the Respondent that Mooney
was discharged on June 11, 1969, one day after
Polzkill 's discharge The reasons given by
Swinehart in his testimony were "mistakes and
being late " Kefalas testified that he did not initiate
the discharge of either Polzkill or Mooney, al-
though he had discussed both Polzkill and Mooney
with Swinehart . (He was unable to remember
the date of his discussion.) I deduce that Swinehart
consulted Kefalas about these two employees
because he wanted to discharge them and he was
looking for reasons to rely on in an attempt to justi-
fy such discharges. Kefalas testified that Swinehart
seldom came back into the warehouse but would
rely on him for information. Hence, I infer, when
Swinehart decided to discharge Polzkill and
Mooney, he had to get Kefalas to relate all the
mistakes and faults that might be attributable to the
two. There is reason to believe that Swinehart did
not always understand what Kefalas had told him
about those mistakes and did not remember all of
them accurately It appears evident that Swinehart
was attributing mistakes to Polzkill and Mooney
which , if Swinehart had been honest , he would have
had to say could have been committed by other em-
ployees. Swinehart , himself, recognized the difficul-
ty in fixing blame for errors because of the fact that
the employees changed around in what they were
doing. Yet he did not hesitate to put the entire
blame for errors on Polzkill and Mooney regardless
215
of that difficulty, and he took it upon himself to in-
itiate the discharges with no prior recommendation
to that effect from Kefalas, the man who was in a
position to make such a recommendation , if war-
ranted.
Swinehart testified that right after he received
the Union 's letter demanding recognition, he
noticed a distinct change in attitude on the part of
both Polzkill and Mooney . With respect to Mooney,
Swinehart testified that her change in attitude
was, "Well , tardiness , the main one. Errors I mean,
we had previous errors, but, I mean , it seemed to
get worse . I can't really say it tied in that particular
time, but , I mean , they were getting worse . . we
were always out there griping on the errors." The
lameness of this testimony and the manner in which
it was given together with other facts herein re-
lated , convinced me that there was no change in
Mooney's performance and that any change that
had taken place was a change in Swinehart's at-
titude.
From all the evidence , I deduce that strict
promptness had never been one of Mooney's at-
tributes , but it is evident that , until it heard from
the Union, the Respondent had apparently
tolerated her tardiness when it was no more than 5
minutes, because she was never warned by Kefalas
at such times . The only time when Kefalas had
warned her was when she had been 10 to 20
minutes late on one or two occasions when she had
been tied up by traffic conditions during the winter.
It was not until after the Respondent had received
the Union 's letter requesting bargaining that
Swinehart became concerned with Mooney ' s tend-
ency to be a few minutes late. Then , as previously
related, he undertook to make a record of it.
Mooney testified that there was only one error,
occurring during the middle of her employment, for
which she was personally blamed . The wrong de-
partment number had been printed on the price
tags, apparently as a result of the jarring of the
price tag machine The error was discovered before
the merchandise went out, but it was a rush order,
and it took three people to reprice the goods On a
later occasion when the wrong department number
had appeared, Kefalas had blamed the machine
There were occasions when the girls were cau-
tioned , as a group , about pricing errors, but there is
no evidence of more than the one for which Mooney
was personally critized.
On June 12, the day after Mooney's discharge,
Swinehart wrote to the Respondent ' s attorney, as
he had done in Polzkill's case, giving the reasons
for Mooney 's discharge These were stated as
1. Arrived late for work constantly: Late on
June 3, 4, 5, 9, and 10 Late arriving back to
duty from lunch on June 10.
Lateness in returning from lunch was not men-
tioned in the testimony of any of the witnesses. If
such lateness occurred, it does not appear how late
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or the reasons therefor 14 Swinehart did not even
testify that he had mentioned this to Mooney at the
time of her discharge.
2 Mis-marked merchandise : (See copy of
note of complaint from customer.) Warehouse
foreman noted additional price errors on May
27.
There is no evidence as to what was meant by addi-
tional price errors noted by warehouse foreman If
there were any, Mooney was not necessarily the
one who committed them
3 Shortage and excess merchandise pulled on
customer orders . Warehouse foreman found
shortage of merchandise on June 10. Excess
merchandise was found on May 29, June 9,
and 10.
There is only one memorandum concerning an
overage which was introduced in evidence. As
previously stated , the blame for overages or
shortages should have been on the puller or on
Kefalas. It was not shown that Mooney was the
puller at such times as errors were made. In the
final paragraph of his letter , Swinehart stated that
"Employee records are available if further informa-
tion is needed ...." The Respondent was unable to
produce many of its records when they were sub-
penaed 15 No record of production of Mooney for
the period mentioned was produced and no one
specifically testified as to these matters. Swinehart's
letter is, therefore , without testimonial support and
no better than hearsay evidence, and I do not give
it any weight , especially since I noted a tendency on
Swinehart 's part to exaggerate and bend the facts.
Considering the weakness of Swinehart's
testimony , the timing of the change in Respondent's
attitude with respect to the time of receipt of the
Union's letter of May 23, an attitude indicating an
intention to crack down on the employees , the fact
that Kefalas had not warned Mooney about her
tardiness in recent months ( indicating that he
would warn her only if she were more than 5 or 10
minutes late), the lack of any egregious errors or
faults on Mooney 's part in more than a month, is
and all the evidence , I find that Respondent's al-
leged reasons for Mooney 's discharge were pretexts
and that Mooney , as was Polzkill , was discharged
because of her support of the Union. By such
discharge , the Respondent discriminated in regard
to her hire and tenure of employment in violation
of the Act
D The Refusal To Bargain
1 The appropriate unit
The complaint alleges and, at the hearing,
Respondent conceded that a unit composed of all
Respondent's employees, but excluding office cleri-
cal employees, salesmen, guards, professional em-
ployees, and supervisors as defined in the Act is ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act I so
find.
2 The Union's majority
On May 20, 1969, four employees, the only non-
supervisory employees who regularly worked in the
warehouse, signed authorization cards for the
Union No question is raised as to the purpose of
these cards. Three employees delivered their cards
to the Union that night and the fourth mailed his to
the Union on the following day. These four em-
ployees were still in Respondent's employ on May
26, when the Respondent received the Union's
letter requesting the Respondent to bargain collec-
tively with it. Since I find that any loss of majority
thereafter was attributable to the Respondent's un-
fair labor practices, I find that all times material
hereto the Union was and is the majority represen-
tative of all employees in the appropriate unit
within the meaning of Section 9(a) of the Act.
3. The refusal to bargain
As previously mentioned , the Respondent
received the Union 's request to bargain on May 26,
1969, and turned this letter over to Respondent's
attorney , Sidney Tellis. The latter, on May 27,
1969, wrote a letter to the Union stating:
Mr. Koenig at this point is in no position to
make decisions concerning the unionization of
these persons Since I have just received this
correspondence , I would like to confer with my
clients concerning this matter
For the reason given, the letter continued, the
Respondent declined an early meeting as requested
by the Union and promised to communicate further
in a few days.
On June 2, 1969, as previously stated, the parties
entered into an agreement for consent election to
be held on June 20 . 17 Meanwhile , however , Polzkill
" Although one of Mooney 's duties was cleaning the lunchroom, there is
no evidence as to when she performed this task
15 Swmehart testified that the records had been assembled but had disap-
peared before the date of the hearing
16 Respondent introduced in evidence a customer complaint dated June
5, 1969, stating that jars were ticketed on the lid, that some merchandise
received had not been ordered, and that there was merchandise which had
not been ticketed From this , it cannot be ascertained if the jars that were
ticketed on the lid had the kind of lids that could be easily removed and
exchanged There were some lids that could not be so transferred In their
case, no reason for not pricing on the lid would appear Mooney testitied
that in such cases they always ticketed on the lid to save the time of remov-
ing and replacing each bottle or container in the container box The inclu-
sion of merchandise not ordered, as already mentioned, would be the fault
of the puller or of Kefalas, who was supposed to be watching for errors like
that It was not shown who the puller was Without such evidence, the com-
plaint could not properly apply to Mooney Because the signer of the
memorandum did not testify, I am not satisfied that the listed complaints
referred to any errors of recent commission or that the memorandum was
unsolicited by the Respondent
" As previously stated, the Union had filed a petition for ccrtitication
with the Board on May 23, 1969
MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES
and Mooney were discharged. The election was
held. The result was two votes against the Union
and two challenged ballots The Union thereafter
filed timely objections to conduct affecting the
results of the election and the Regional Director or-
dered a hearing thereon. Since the Regional
Director did not specifically direct a hearing upon
the challenged ballots and since I can only surmise
who made the challenges and of whose ballots, I do
not decide whether or not such ballots should be
counted. I surmise that if they were counted, the
result would be a tie. However, I find that the
Respondent's conduct which has been herein found
to constitute interference, restraint, and coercion as
well as that constituting discrimination has inter-
fered with the conduct of a free election and I
recommend that the results of the election of June
20 be set aside.
Because I find that the Respondent has demon-
strated a purpose to interfere with the freedom of
the employees to make their own choice of
representative, I find that the Respondent's conduct
herein found to be unfair labor practices was tan-
tamount to a refusal to bargain I find that by such
refusal, the Respondent has committed an unfair
labor practice within the meaning of Section
8(a)(5) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Respondent's operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship 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
Since it has been found that the Respondent has
committed certain unfair labor practices, it will be
recommended that it cease and desist therefrom
and take certain affirmative action designed to ef-
fectuate the policies of the Act. The affirmative ac-
tion shall consist of the posting of an appropriate
notice, offering reinstatement and backpay to Polz-
kill and Mooney, and bargaining upon request with
the Union. The latter I find to be required in order
to effectuate the purposes of the Act, for I find that
the unfair labor practices committed by the
Respondent were of such a coercive nature that,
even had there been no refusal to bargain, a bar-
gaining order would be necessary to repair the un-
lawful effects of these unfair labor practices.
Furthermore, I find that the aforesaid unfair labor
practices and the Respondent's demonstrated pur-
pose to thwart the policies of the Act are of such a
217
character as to render a second election of unrelia-
ble value in determining the wishes of the em-
ployees.18 In any event, I find, the results of such an
election would be a no more reliable test of the em-
ployees' desire than the authorization cards signed
by them on May 20. Hence, I consider that the poli-
cies of the Act will best be effectuated by an order
to bargain upon request with the Union.
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following-
CONCLUSIONS OF LAW
1. The Respondent is 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. A unit composed of all Respondent's em-
ployees, but excluding office clerical employees,
salesmen, guards, professional employees, and su-
pervisors as defined in the Act constitutes a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. On May 26, 1969, the Union was, and at all
times material thereafter has been, the majority
representative of all employees in said appropriate
unit within the meaning of Section 9(a) of the Act
5. On and at all times after May 26, 1969, the
Respondent has refused and continues to refuse to
bargain collectively with the Union, although
requested so to do, in violation of Section 8(a)(5)
of the Act
6 By discriminatorily discharging Bernard Polz-
kill and Kathleen Mooney because of their support
and advocacy of the Union, Respondent has
discouraged membership in a labor organization
within the meaning of, and in violation of, Section
8(a)(3) of the Act.
7. By questioning employees concerning their
union activities and attitudes as well as by the con-
duct in paragraphs 5 and 6, immediately above, the
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in the case, I recommended that Michael's Artists
and Engineering Supplies, Inc., its officers, agents,
successors, and assigns, shall.
1. Cease and desist from:
(a) Interrogating employees concerning their
union membership, views, activities, or support of
any labor organization, or their reasons therefor, or
" See Chris Christou dlbla Solvay Baking Company, 180 NLRB 418
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
(b) Discharging or otherwise discriminating in
regard to the hire or tenure of employment of any
of its employees because of their membership in, or
activities, support, preference, or sentiments for, a
labor organization.
(c) Refusing to bargain collectively with the In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 452, or any other labor organization
chosen by a majority of its employees in an ap-
propriate unit.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Bernard Polzkill and Kathleen Mooney
immediate and full reinstatement of their former
or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges.
(b) Make said Polzkill and Mooney whole for
any loss they may have suffered as a result of the
discrimination against them by paying them a sum
of money equal to that which each would have
earned in Respondent's employ, but for the dis-
criminatory discharge, less their net earnings else-
where between the dates of the respective
discharges and the date of the respective offers of
Respondent to reinstate them, said sum to be com-
puted in the manner prescribed by the Board in F.
W. Woolworth Company, 90 NLRB 289, together
with interest on the net amount found due at the
rate of 6 percent per annum in accordance with the
Board's decision in Isis Plumbing & Heating Co.,
138 NLRB 716.
(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 due under the terms of this
Recommended Order.
(d) Upon request, bargain collectively with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 452, as the exclusive representative of
the employees in the unit herein found appropriate,
and, if an understanding is reached, embody it in a
signed agreement
(e) Post at its place of business in Denver,
Colorado, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 27, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Within 20 days from the date of receipt of
this Decision, notify the Regional Director, in
writing, what steps the Respondent has taken to
comply herewith.20
19 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
20 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 27, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees col-
lectively or severally concerning their union
membership, or their activities on behalf of, or
in support of, any labor organization, or their
reasons therefor.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist labor organizations , to bar-
gain collectively through representatives of
their own choosing, or to engage in other con-
certed 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.
WE WILL NOT discharge any of our em-
ployees or otherwise discriminate in regard to
their hire or tenure of employment because of
their membership in, or their activities, sup-
port, preference, or sentiments for, any labor
organization.
WE WILL NOT refuse to bargain collectively,
upon request, with a duly designated collec-
tive-bargaining representative of our em-
ployees in an appropriate unit.
WE WILL offer immediate and full reinstate-
ment to Bernard Polzkill and Kathleen Mooney
without prejudice to their seniority or other
rights and privileges, and we will make them
whole for any loss of pay they may have suf-
MICHAEL'S ARTISTS AND
fered as a result of our discrimination against
them.
WE WILL, upon request, bargain collectively
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 452, as the exclu-
sive representative of our employees in the unit
described below with respect to rates of pay,
wages, hours of employment, and other condi-
tions of employment and, if an understanding
is reached, we will embody it in a signed agree-
ment
The appropriate unit is:
All employees at our Denver place of busi-
ness, but excluding office clerical em-
ployees, salesmen, guards, professional
employees, and supervisors as defined in
the National Labor Relations Act, as
amended
MICHAEL'S ARTISTS AND
ENGINEERING SUPPLIES,
INC.
ENGINEERING SUPPLIES 219
(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 full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions, may be directed to the
Board's Office, 260 New Custom House, 721 19th
Street, Denver, Colorado 80202, Telephone
297-3551.