Petropoulos Brothers Appliances, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1655 (N.L.R.B. 1965)

PETROPOULOS BROTHERS APPLIANCES, INC. 1655
Upon request, we will bargain collectively with Local No. 452 of the Team-
sters Union as the collective bargaining agent for our employees in the appro-
priate unit. The appropriate unit is.
All our employees employed at our place of business in Denver, Colorado,
excluding office clericals, salesmen, guards, professional employees, and
supervisors as defined in the law.
TONY R. SANTANGELO, D/B/A SANTANGELO & CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 609 Railway
Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone No. 534-
4151, Extension 513.
Petropoulos Brothers Appliances , Inc. and Retail , Wholesale and
Department Store Union , AFL-CIO. Cases Nos. 13-CA-6869
and 13-RC-10450. September 27,1965
DECISION AND ORDER
On July 2, 1965, Trial Examiner C. W. Whittemore issued his Deci-
sion 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 Trial Examiner 's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations be dismissed . There-
after, the Respondent filed exceptions to the Trial Examiner 's Decision
and a supporting brief ; and the General Counsel filed cross-exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Members Fanning, Brown , and Zagoria].
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 , cross-exceptions , briefs , and the
entire record in this proceeding , and hereby adopts the findings, con-
clusions , and recommendations of the Trial Examiner , with the modi-
fications noted below.
1. We agree with the Trial Examiner that the Respondent inter-
fered with , restrained , and coerced its employees in violation of Sec-
tion a (a) (1) of the Act, by interrogating employee Drake as to his
154 NLRB No. 140.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities and the activities of other employees and by threaten-
ing its employees with economic reprisals at the meeting of Decen-i-
ber 12, 1964, if the Union's organizational campaign were successfal.
Contrary to the Trial Examiner, however, we find that the Respond-
ent's action of January 2, 1965, in reducing the weekly hours of work
from 44 to 40 for all service and delivery employees, with no loss of
pay, was also violative of Section 8(a) (1).
Nicholas A. Petropoulos, the Respondent's president, testified that
the reduction in the workweek resulted from his misinterpretation of
the Federal Fair Labor Standards Act. But we are persuaded by all
the circumstances that Petropoulos's asserted reliance upon the wage-
hour law herein must be viewed as a mere pretext, designed to give
legitimacy to conduct which was calculated to influence the employ-
ees' selection of a bargaining representative in the forthcoming elec-
tion. Thus, the employees had been requesting a 40-hour week since
July 1964, without success. Yet, Petropoulos assertedly arrived at
his decision to grant the benefit after reading a union pamphlet which
had been placed on his desk by an employee in November or December
1964. He could not recall whether he consulted with his lawyer
before announcing the change. It also is significant that the change
in hours was not made until after a preelection conference between the
parties was held in connection with the pending petition at which an
election was scheduled for January 22, 1965. And the announcement
was then made in a notice to employees posted on January 2, 1965,
which contained no reference to the wage-hour law. In mid-January,
before the election, Petropoulos was advised by his lawyer that the
wage-hour provisions did not require the change in hours effected by
him, but he took no action in the matter. This evidence, viewed in the
light of the Respondent's opposition to the Union as demonstrated by
the record , amply supports the complaint 's allegation on this aspect
of the case.'
2. In concluding, as the Trial Examiner did, that the Respondent
has refused to bargain with the Union since December 10, 1964, in vio-
lation of Section 8(a) (5) of the Act, we have taken into account the
Respondent's unlawful conduct in reducing the workweek on Janu-
ary 2, 1965, as well as the evidence relied upon by the Trial Examiner
in his Decision. On the basis of all the unlawful preelection conduct
engaged in by the Respondent, we adopt the Trial Examiner's holding
to the effect that the objections to the election have merit and that the
election be set aside . Accordingly, we accept his recommendation that
the petition filed in Case No. 13-RC-10450 be dismissed and that all
proceedings held in connection therewith be vacated.
1 See N.L.R.B . v. Exchange Parts Company , 375 U.S. 405.
PETROPOULOS BROTHERS APPLIANCES, INC. 1657
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Petropoulos Brothers Appli-
ances, Inc., Gurnee, Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Add the following as paragraph 1(c) to the Trial Examiner's
Recommended Order, the present paragraph 1(c) being renumbered
1(e) :
"(c) Granting employees benefits with respect to wages, hours, or
other terms and conditions of employment, for the purpose of influenc-
ing their union activities or sympathies, provided, however, that noth-
ing in this Decision and Order requires it to vary or abandon any eco-
nomic benefits which have heretofore been granted."
2. Add the following as paragraph 1(d) to the Trial Examiner's
Recommended Order :
"(d) Refusing to bargain with Retail, Wholesale and Department
Store Union, AFL-CIO, as the exclusive representative of its employ-
ees in the following appropriate unit :
All service, clerical, and sales employees at the Employer's Gurnee
and Fox Lake, Illinois, stores, excluding all temporary employees and
part-time employees, guards, confidential employees, professional
employees, foremen, managers, and supervisors as defined in the Act.
3. Add the following paragraph after the first indented paragraph
of the Appendix attached to the Trial Examiner's Decision :
WE WILL NOT interrogate our employees regarding their union
membership or their knowledge of the membership of others; and
we will not grant our employees benefits in order to influence their
union activities or sympathies.
TRIAL EXAMINER'S DECISION
Upon a charge in Case No. 13-CA-6869 filed by the above-named labor organi-
zation on January 28, 1965, the General Counsel of the National Labor Relations
Board on March 17, 1965, issued his complaint and notice of hearing . On March 18,
1965, the Regional Director for Region 13 of the National Labor Relations Board
issued his report on objections duly filed by the same labor organization in Case No.
13-RC-10450, in which he recommended consolidation of the two cases for hearing.
On March 24, 1965, the above-named Respondent -Employer filed an answer to the
complaint . On April 1, 1965, the Board issued an order of consolidation as rec-
ommended . On April 6, 1965, the said Regional Director issued an order consoli-
dating the cases, and a notice rescheduling a hearing . The complaint alleges and
the answer denies that the Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a) (1) and (5) of the National Labor Relations Act, as amended.
Pursuant to notice , a hearing was held in Chicago, Illinois, on May 27, 1965, before
Trial Examiner C. W. Whittemore.
At the hearing all parties were represented , and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from General Counsel and the Respondent-Employer.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Disposition of the Respondent's motion to dismiss certain allegations of the com-
plaint, upon which ruling was reserved at the conclusion of the hearing, is made by
the following findings, conclusions, and recommendations.
Upon the record thus made, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Petropoulos Brothers Appliances, Inc., is an Illinois corporation, with principal
office at Gurnee, Illinois, and with places of business both at Gurnee and Fox Lake,
Illinois, where it is engaged in the retail sales and servicing of electrical appliances.
During the calendar year preceding issuance of the complaint it sold goods at retail,
valued at more than $500,000. And during the same period it purchased goods
valued at more than $50,000 which were shipped to it directly from points outside
the State of Illinois.
The complaint alleges, the answer admits, and it is here found that the Respond-
ent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issues raised by both the complaint and the objections to a Board-
conducted election are whether the Respondent-Employer: (1) during the preelec-
tion period engaged in unlawful interference, restraint, and coercion; and (2) by
such conduct transposed its admitted factual refusal to bargain with the Union into
an unlawful refusal. It is General Counsel's contention, disputed by the Respond-
ent, that disposition of these consolidated proceedings are governed by the holdings
of the Joy Silk Mills and Bernel Foam cases.1
The Respondent's conduct in issue began on December 12, 3 days after the Union
had filed a petition with the Board and, in writing, had requested recognition and
bargaining, offering the Employer an opportunity to verify its majority claim. The
election was held on January 22, 1965.
B. Interference, restraint, and coercion
The Respondent concedes that on December 9, 1964, it received a letter from
one Anderson, head of the Chicago Joint Board, affiliated with the Charging Union,
claiming majority representation among the Respondent's employees, offering to
submit to any neutral person such as a member of the clergy, the evidence of such
majority, to avoid going to a Board election, and asking that the Respondent grant
it recognition.
It is also conceded by Nicholas Petropoulos, head of the Company, that he
received on December 10 a telephone- call from Anderson regarding the letter and
the Union's demand. Petropoulos evaded the request for recognition, stating that
the matter would be placed in the hands of his lawyer.
While ignoring the Union's demand, Petropoulos proceeded to take action against
his employees. Credible evidence establishes the following facts:
(a) Shortly after Petropoulos received notification of the filing of the petition,
employee Drake was called into the office. The head of the Company demanded
to know why he had signed a union card, and also asked him if another employee,
Myer, or any of the office girls had anything to do with the Union.
(b) At a service meeting of assembled employees on December 12, after review-
ing and discussing various complaints concerning service, Petropoulos diverted the
meeting's attention to the union demand for recognition. He spoke of the letter he
had received, and then reminded them of certain current benefits they were getting
which would be lost if the Union came in. For example, he pointed out that up to
that time he had always found work for them to do, even when their regular work
IJoy Silk Mills, Inc., 85 NLRB 1263, enfd 185 F 2d 732 (CA.D.C ), cert. denied 341
U.S. 914; Bernet Foam Products Co., Inc., 146 NLRB 1277. General Counsel also urges
Irving Air Chute Company, Inc., Marathon DZvisian, 149 NLRB 627.
PETROPOULOS BROTHERS APPLIANCES, INC. 1659
was "slow," and warned them that if the Union came in they would not receive such
work, but would be sent home when their regular service work was completed. He
also called attention to his payment of half the cost of an existing insurance plan,
and also to his providing them with uniforms. He made it plain, then, that if the
Union came in they would lose these benefits. While declaring that they could have
a Union if they wished, he pointed out that by depriving them of these benefits he
would, himself, save some $16,000 a year.2
It is concluded and found that by Petropoulos' interrogation of employee Drake
and his threat of loss of benefits uttered at the December 12 meeting the Respond-
ent interfered with, restrained, and coerced employees in the exercise of rights guar-
anteed by Section 7 of the Act.a
C. The refusal to bargain
The complaint alleges, the answer admits, and it is here found that all service,
clerical and sales employees at the Employer's Gurnee and Fox Lake, Illinois,
stores, but excluding guards, confidential employees, professional employees, fore-
men, managers, supervisors as defined by the Act, and all temporary and part-time
employees constitute a unit appropriate for collective bargaining within the mean-
ing of Section 9(b) of the Act.
As noted heretofore, on December 9, 1964, the Respondent received a written
demand for recognition from the Union, on the basis of its claim of majority rep-
resentation, and coupled with an offer to prove such majority.
Competent and credible evidence establishes that of the 27 employees in the said
unit on the date of the request for recognition, 14 of them had, before such demand
for recognition, signed cards stating.
I desire to be represented by a Union which is part of the AFL-CIO and I
hereby designate the AFL-CIO and/or its appropriate affiliates as my Bar-
gaining Agent in matters of wages, hours and other conditions of employment
It is concluded and found that on December 9, 1964, the date of the receipt of
the bargaining demand by the Respondent, the Union in fact represented a majority
of the employees in the above-described appropriate unit.
There is no dispute as to the fact that the Respondent at all times since that date
has refused, and is continuing to refuse to bargain with the Union as requested.
The Respondent's answer, as noted, admits such refusal. The Respondent did
not reply in any fashion to the formal request to bargain, except when Petropoulos
over the telephone said the matter would be submitted to his lawyer.
2 Petropoulos, as a witness, did not specifically deny any part of these threats attributed
to him by employee witnesses He merely said be did not "recall" saying anything about
the "$16,000."
3I am unable to agree with General Counsel that other items of alleged interference,
restraint, and coercion possess the merit he would have attributed to them One con-
cerns a reduction of the workweek from 44 to 40 hours a week the beginning of Janu-
ary 1965. The change clearly was beneficial to employees since, in effect, they were re-
quired to work fewer hours for the same weekly salary. There seems to be no basis in
the record for doubting Petropoulos' explanation that he made the change after mis-
interpreting a statement previously called to his attention in a union pamphlet, which
lie thought meant that the Federal law required the 40-hour week. There is no evidence
that he told or indicated to any employee that this benefit was being given of his own
volition, or to influence them to vote against the Union. On the contraiy, an employee
witness for General Counsel admitted that when Petropoulos posted the notification of
the change, he said that he was doing so in order to comply with the law There is also
some confused testimony concerning a discussion at a "pizza joint" one night, 'a here both
employees and Petropoulos and a store manager were speculating about how various em-
ployees would vote at the cooling election It appears to have been a friendly and not
unusual gathering, with many drinks going around Petropoulos put the name of Drake
down in the prounion column, and Drake asked him, in effect, how he knew how lie
would vote Petropoulos said "Money has a way of finding out" Under the circuni-
stances existing, the remark appears to have been an ambiguous boast stimulated by
alcohol, and not by any intent, as General Counsel urges, to "create the impression of
surveillance" Nor can I find violative of the Act. (1) the casual remark of Petiopoulos'
brother, Gust, to employee Drake when asking him if lie knew another employee, Myer,
had "switched" to the Union side, or (2) the store manager at Fox Lake asking employee
Myer how it (the Union) was going at the other store
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither in its answer nor through any witness at the hearing did the Respondent
offer any affirmative reason for its refusal to bargain . Thus the issue of good-faith
doubt has not been raised here.
The facts of interference , restraint , and coercion , related above , occurring shortly
after the receipt of the demand for recognition , and absent any claimed reason for
doubt as to the validity of the majority status of the Union , lead to the reasonable
inference that the Respondent failed and refused to bargain for the sole purpose of
gaining time to undermine the Union 's support.4
It is therefore concluded and found that on December 10, 1964 , the Respondent
unlawfully refused to bargain with the Union as the exclusive representative of all
employees in the appropriate unit , and thereby further interfered with , restrained,
and coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
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 the operations of the Respondent, 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 com-
merce and the free flow of commerce.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom, and take certain affirmative action to
effectuate the policies of the Act.
It will be recommended that, upon request, the Respondent bargain in good faith
with the Charging Union and, if an understanding is reached, embody such under-
standing in a signed agreement.
Finally, in view of the manifest intent on the part of the Respondent to deprive
its employees of their rights as guaranteed by the Act, and the continuing nature
thereof, it will be recommended that it cease and desist from in any manner infring-
ing upon the rights of employees guaranteed by Section 7 of the Act.
As to the RC case involved herein, it will be recommended that the Board dis-
miss the petition and vacate all proceedings held in connection therewith. (Irving
Air Chute Company, Inc., previously cited.)
CONCLUSIONS OF LAW
1. Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. All service, clerical, and sales employees of the Respondent at its Gurnee and
Fox Lake, Illinois, stores, but excluding guards, confidential employees, professional
employees, foremen, managers, supervisors as defined in the Act, and all tempo-
rary employees and part-time employees constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
3. By virtue of Section 9(a) of the Act, at all times since December 9, 1964, and
continuing to date, the above-named labor organization has been the exclusive rep-
resentative of all employees in the above-described unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
4. By refusing to bargain in good faith with the above-named labor organization
as the exclusive representative of all employees in the said unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing 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, it is recommended that the Respondent, Petropoulos
Brothers Appliances, Inc., its officers, agents, successors, and assigns, shall-
4 In addition to Joy Silk Hills, previously cited, see the Board's recent decision in
The Divigaid Baling Company, 153 NLRB 363.
PETROPOULOS BROTHERS APPLIANCES, INC . 1661
1. Cease and desist from:
(a) Threatening employees with economic reprisals to discourage membership in
and activity on behalf of Retail, Wholesale and Department Store Union , AFL-CIO,
or any other labor organization.
(b) Interrogating employees as to their union membership or activity , in a man-
ner violative of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining , or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above -named labor organization
as the exclusive representative of all employees in the appropriate unit found herein,
with respect to wages, hours, grievances , or other terms and conditions of employ-
ment, and if an understanding is reached , embody such understanding in a signed
agreement.
(b) Post at its stores in Gurnee and Fox Lake , Illinois, copies of the attached
notice marked "Appendix ." 5 Copies of said notice , to be furnished by the Regional
Director for Region 13, shall , after being duly signed by an authorized representa-
tive of the Respondent , be posted immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter, in conspicuous places , includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered , defaced, or covered by any
material.
(c) Notify the said Regional Director , in writing , within 20 days from the date
of the receipt of this Trial Examiner 's Decision , what steps have been taken to com-
ply herewith.°
Finally, it is recommended that the Board issue an order dismissing the petition
in Case No . 13-RC-10450 and vacate all proceedings held in connection therewith.
5 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 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 Decision
and Order".
61n the event that this Recommended Order be adopted by the Board , this provision
shall read : "Notify the said Regional Director , in writing , within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT threaten you with reprisals to discourage you from being
members of Retail , Wholesale and Department Store Union , AFL-CIO, or any
other union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act, to join a union of your own choice or not to engage in any union
activities.
WE WILL, upon request, bargain collectively with the union named above
and, if an understanding is reached , sign an agreement covering such under-
standing . The unit represented by this union includes all service, clerical and
sales employees at our Gurnee and Fox Lake, Illinois, stores , but excludes
guards, confidential employees , professional employees , foremen, managers,
supervisors as defined in the Act, and all temporary employees and part-time
employees.
PETROPOULOS BROTHERS APPLIANCES, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title) , ,
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 881
Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone
No. 828-7572.