Preiser Scientific, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1966

158 N.L.R.B. 1375 (N.L.R.B. 1966)

PREISER SCIENTIFIC, INC. 1375
for engaging in protected union or concerted activities during a negotiating
conference or the presentation of a grievance , or by discriminating against
them in any other manner in regard to their hire and tenure of employment
or any term or condition of employment.
WE WILL NOT in any like or related manner interfere , restrain , or coerce the
employees in the exercise of their rights guaranteed in Section 7 of the Act.
WE WILL offer to Roland Adair immediate and full reinstatement to his for-
mer or substantially equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of earnings he
may have suffered as a result of the discrimination against him.
HARDING GLASS OF MISSOURI, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days form the date of post-
ing, 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, 610
Federal Building, 601 East 12th Street, Kansas City, Missouri , Telephone No.
FR4-5282.
Preiser Scientific , Inc. and Food Store Employees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO. Case No. 9-CA-3504. June 6, 1966
DECISION AND ORDER
On December 1, 1965, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations - Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to, the provisions of Section 3(b) of the Act, the Na-
tional Labor Relations Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
The Board has reviewed the rulings 'of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the brief, and the entire
158 NLRB No. 133.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following
modifications :
1. In the original complaint, the General Counsel listed alleged
supervisors of the Respondent, but did not include Swecker in such
listing. Further, at the hearing, the General Counsel offered
Swecker's signed union card in his attempt to prove the Union's
majority status. In presenting its defense, the Respondent con-
tended that Swecker's card should not be counted because she was
a confidential employee and should be excluded from the bargaining
unit. Upon hearing the Respondent's evidence with respect to
Swecker's duties, the Union's counsel queried : "I'd like to inquire
if they're making a supervisor out of this girl?" The Trial Ex-
aminer replied : "Apparently they are." A few seconds later, the
Respondent's counsel stated : "For the record, we're not making an
effort to make a supervisor out of this Mrs. Swecker, although she
may well be under the Act." Later, the Trial Examiner asked Re-
spondent's counsel if he was "still trying to make her [Swecker] a
supervisor?" Respondent's counsel replied: "Well, if it so happens
to fall that she's a supervisor we won't object to that." [Emphasis
supplied.] Subsequently, the General Counsel presented evidence
that indicated that Swecker had confessed to some employees that
she was playing a double role in the union campaign and that her
true allegiance was to the Respondent. Respondent did not attempt
to rebut such evidence. After the hearing, the General Counsel sub-
mitted an amended complaint which alleged for the first time that
Swecker was a supervisor and agent of Respondent.' In its brief to
the Trial Examiner, the Respondent contended that "Swecker's
supervisory authority was not alleged until after the close of the
hearing" and that it "was not given a full opportunity to litigate
her position and duties." The Respondent stated further that if the
"Trial Examiner feels that upon the basis of the evidence he would
find her -a supervisor [the Respondent] moves that this issue be set
down for a hearing to permit it to present all the evidence con-
cerning her status."
The Trial Examiner found that, although Respondent was alerted
to the General Counsel's new position regarding Swecker's status by
the General Counsel's introduction of evidence that Swecker ad-
mitted she was playing a double role in the campaign, the Respond-
ent "was content to rest without adducing any further testimony as
to her ditties and status" and that "apart from the inconsistency" of
the Respondent's new position, "there is implicit therein an admis-
At the close of the hearing, however , the Trial Examiner granted the General Counsel's
motion that the pleadings be conformed to the proof.
PREISER SCIENTIFIC, INC. 1377.
Sion of lack of candor, since it amounts to an avowal that the evi-
dence so far adduced constituted an overstatement of Swecker's duties,
by [Respondent] in an effort to invalidate her designation of the.
Union." The Trial Examiner found further that, apart from the
question of whether Swecker is a supervisor, the evidence shows that
she "acted as an agent of Respondent in its campaign against the
Union." He therefore denied the Respondent's motion to reopen the:
hearing on the ground that "no useful purpose would be served" by
litigating further Swecker's supervisory status. The Respondent
excepts to these findings and ruling by the Trial Examiner and
moves that the Board set down the issue of whether Swecker is a
supervisor "for a hearing to permit it to represent all the evidence
concerning her status."
In all the circumstances of this case, but not relying upon the
amendment to the complaint submitted after the hearing, we find
that Respondent was aware when it adduced evidence through its.
own witnesses concerning the duties, authority, and responsibility of
Swecker that this might lead to a finding that Swecker was a super-
visor, that Respondent was therefore sufficiently advised at the hear-
ing that the question of Swecker's supervisory status was in issue,,
and that the issue was adequately litigated at the hearing. The
mere fact that Respondent is now concerned because its evidence
achieves not only its desired result, i.e., the exclusion of Swecker
from the unit and invalidation of her union card, but also a result.
which Respondent had not sought, i.e., the imputation to Respond-
ent of Swecker's knowledge of union activities and her unlawful
acts in opposition thereto, does not in itself provide a sufficient basis.
for reopening the hearing in response to Respondent's motion. We,
believe, in agreement with the Trial Examiner, that to grant such
motion would accomplish nothing more than to permit Respondent
to attempt to dissipate the adverse effect of presumably valid testi-
mony which it itself elicited at the hearing.2 For these reasons, the
Trial Examiner's ruling denying Respondent's motion is affirmed.
2. In footnote 7 of his Decision, the Trial Examiner found that
"the Blue Flash 3 rule is properly to be applied only where an em-
ployer has no other available method of verifying a union's claim"'
of majority status. We do not adopt this quoted statement of the
21n agreeing with the Trial Examiner that Swecker is a supervisor , we rely not only
on the evidence that she effectively recommends the hiring of employees and trains switch-
board operators and personnel for the Addressograph and mailing department, but also on
evidence adduced by the Respondent at the hearing that she also "supervises" the Addres-
sograph and mailing department. Since we find that Swecker is a supervisor , we need
not and do not reach the merits of the Trial Examiner 's conclusion that, even assuming
that she was not a supervisor , she was an agent of the Respondent in its campaign against
the Union.
8 Blue Flash Express, Inc ., 109 NLRB 591.
221-731-67-vol. 158-8 8
13 % 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner because of its breadth , although we agree for other
reasons stated by the Trial Examiner that Respondent 's polling of
its employees was in the circumstances of this case violative of
Section 8(a) (1).
3. In footnote 8 of his Decision , the Trial Examiner found that
the Respondent violated Section 8 (a) (1) of the Act by asking an
employee what he thought " the union will do for you all." We do
not adopt this finding.
4. In section B, 1, c, of his Decision , the Trial Examiner found
that the Respondent violated Section 8 ( a) (1) by Supervisor
Kemple 's statement to certain employees that the Union would do
them more harm than good. However , at the hearing , the Trial
Examiner granted the Respondent 's motion to strike this allegation
of the complaint. Accordingly, we do not adopt the Trial Exam-
iner's finding that such statement violated Section 8 (a) (1).
5. In finding that the Union represented a majority of employees
in an appropriate unit, the Trial Examiner counted the card of em-
ployee Fox on the ground that, even assuming that the Union had
obtained her signature by misrepresentation, such misrepresentation
would not invalidate her card as she testified that it did not influence
her decision to sign the card. Inasmuch as the Union would still
enjoy majority status without Fox's card, we find it unnecessary to
reach the merits of the Trial Examiner 's finding as to Fox and do
not count her card.
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications :
[1. Delete paragraph 1(c) of the Recommended Order , renumber-
ing paragraphs 1(d) and 1 (e) as 1 ( c) and 1(d), respectively.
[2. Add the following as paragraph 1(e) to the Recommended
Order :
[Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment 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.
[3. Delete from the second full paragraph of the Appendix at-
tached to the Trial Examiner 's Decision , the phrase "threaten our
employees with reprisals for concerted activities, tor."
[4. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner 's Decision :
[NOTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to
PREISER SCIENTIFIC, INC. 1379
-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.]
[The Board further ordered that the complaint' herein be
dismissed insofar as it alleges violations of the Act not found herein.]
TRIAL EXAMINER'S DECISION
The instant charge was served on Respondent on March 12, 1965,1 the com-
plaint issued on April 30, and the case heard before Trial Examiner Sidney Sher-
man on July 26, 27, and 28. The issues litigated were whether Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union, and
Section 8(a)(1) of the Act by threats, grants of benefit, interrogation, and sur-
veillance. After the hearing briefs were filed by Respondent and General Counsel?
Upon the entire record 3 and my observation of the witnesses, I adopt the fol-
lowing findings of fact and conclusions:
1. RESPONDENT 'S BUSINESS
Preiser-Scientific, Inc., herein called Respondent, is a West Virginia corpora-
tion, engaged at Charleston, West Virginia, in the wholesale distribution of
chemicals and laboratory equipment. Respondent annually receives directly from
out-of-State points products valued in excess of $50,000. Respondent is engaged
in commerce under the Act.
H. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO , hereinafter called the Union, is
a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint , as amended at and ` after the hearing, alleges that Respondent
violated Section 8,(a) (1) . of the , Act by surveillance , threats, and interrogation,
and by unilaterally granting employee , benefits, that Respondent violated Sec-
tion 8(a)(3) of the Act by discriminatorily - discharging Null and Ferrell, and
that it violated Section 8(a)(5) and ' ( 1)^,of'the Act by refusing to recognize the
Union as the representative of Respondent 's employees . The answer denies any
such violations. -
1 All events hereinafter related occurred in 1965, 'unless otherwise stated. '
2 There was also filed after the hearing a stipulation , together with certain exhibits,
which stipulation and exhibits have been designated Trial Examiner 's Exhibit 1 , and are
hereby received in evidence. i
After the hearing the General Counsel filed an amended complaint, incorporating for
the most part certain amendments allowed at the hearing on oral motion.
On October 13, the Union submitted what purported to be documentary evidence that
on September 27, Respondent offered to`reinstate Null, one of the alleged ' discriminatees,
which offer , according to the Union, was later rescinded . On October 14, Respondent
moved that the foregoing evidence be rejected . On October 25, 'that motion was granted
without prejudice to the right of any party to file a motion to reopen the hearing, specify-
ing what new evidence would be adduced. On October 26, the Union filed a motion to
reopen the record , but in support thereof made specific reference only to the evidence of
Null's job offer . In view of my ultimate findings herein , I do not believe that reopening
of'the case for that purpose Is warranted . The Union' s motion is accordingly, denied.
3 Pursuant to my order of November 17, certain minor errors in the transcript were
corrected.
Certain objections to evidence, as'to which ruling was reserved at the hearing, are hereby
disposed of as follows : ( 1) the objections on pages 287, 288, 362, 720, and 745 of the
transcript are hereby overruled, (2) the objections on pages 470 and 474 are sustained
and the pertinent answers stricken.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Sequence of events
At its Charleston, West Virginia, establishment Respondent has a complement
of 52 employees, of whom about 25 are office and clerical employees These 25
are the only ones directly involved in this case 4 The union activities of these
employees began on March 3, when Ferrell contacted Union Official Spencer,
and arranged a meeting with him on the following day, which was attended by
Ferrell and Null, among others During the next several days, Ferrell, frequently
accompanied by Null, solicited other employees and induced them to sign cards
authorizing the Union to represent them In addition to thus assisting Ferrell in
her solicitation, Null individually procured a signed card on Friday, March 5,
from an employee on the plant premises One of those solicited by Null and
Ferrell in the evening of March 5, was Swecker, who, although she was at the
time (as found below) a supervisor, signed the card
On Monday, March 8, the following events occurred
I Early that moining, Ferrell and Null were discharged, allegedly for deficien-
cies in their work
2 Also, early that morning Union Agent Brooks called Respondents Sales
Manager Morgan, announced that the Union represented a majority of Respond-
ent's office employees, and requested recognition and bargaining A conference
was arranged for 1 o'clock that afternoon, with the understanding that the Union
would then show Respondent the signed authorization cards
3 Shortly thereafter, Union Official Spencei learned of the discharge of Null
and Ferrell, and about noon that day he called Morgan to cancel the 1 o'clock
meeting, asserting that, in view of the foregoing discharges, the Union was unwell
mg to disclose the identity of the card signers, and offering to show the cards to a
third party
4 At 1 o'clock that afternoon Respondent conducted a meeting of its employees
at which the Union's demand for recognition was discussed
5 Later that day Spencer wrote to Morgan, renewing his offer to submit the
signed cards to a third party, and proposing that Respondent select such third party-
6 That evening, the Union held a meeting, attended by Respondent's employees,
and by certain of its supervisors
About 4 p in the next day , Respondent's employees , with its permission, met on
the plant premises to discuss the union issue, and , after such discussion , a group of
them approached Respondent's vice president, Alvin Preiser,5 and told him they no
longer desired to be represented by the Union
On March 10, Respondent's counsel , Holroyd, replying to Spencer's letter of
March 8 to Morgan, questioned the Union 's majority status and the appropriatenes&
of the unit sought , and declined for those reasons to recognize the Union
On March 11 , the Union filed the instant charges, and on the same day Spencer
wrote Holroyd , renewing his prior offer with regard to the cards Respondent did
not reply
It is undisputed that Respondent has not recognized the Union
B Discussion
1 The 8 (a)(1) violations
a Interrogation
The amended complaint alleges that on March 8 and /or March 9 Respondent
violated Section 8 (a)( I) of the Act by conducting a poll of its employees to deter-
mine their union sentiments
(1) March 8
As already related, Respondent at 1 p in on March 8 called a meeting of the
employees Sales Manager Morgan admitted that at that meeting he informed the
employees of the Union's claim that it represented the majority of the employees
and asked them if that was the case , that some employees answered in the affirmative
while others answered in the negative, and that he was unable to determine def-
initely whether a majority had in fact signed cards Carden testified that at the
All references hereinafter to "employees apply only to the office and clerical employees
unless otherwise indicated
5 His father Benjamin Presser was president All references hereinafter to Prei,e-
denote Alvin
PREISER SCIENTIFIC, .INC. 1381
same meeting Preiser asked those who did not sign cards to raise their hands and
leave the room to permit the other employees to caucus, and that Cousins and a
few others responded by raising their hands. This was corroborated in substance
by Ginther. Preiser denied, albeit somewhat equivocally, that he asked that any
employees who had not signed cards identify themselves. He did_ admit that one
individual announced that he had not signed a 'card, but could not remember in
what context.
I find that Preiser 'did in fact ask that those who had not signed union cards
identify themselves, and thereby, in effect, conducted a, second poll of the employ-
ees concerning their union sentiments. _
Respondent contends that any polling of employees that may have occurred on
March 8 (or 9) was privileged under the Blue Flash rule 6 which permits an
employer, confronted by a union's claim to represent the majority of his employees,
to attempt to verify such claim by interrogating them, provided that he pledges
that there will be no reprisals against union adherents, and provided that there are
no other manifestations of union animus. With regard to the first of these safe-
guards, Respondent cites the testimony of Preiser that before the employees cau-
cused they were assured that there would be no reprisals against union adherents
and that Respondent would accept any decision they reached. Even so, it is nec-
^essary to find that Respondent did not satisfy the second requirement of Blue Flash-
absence of union animus.? Here, as found below, only a few hours before con-
ducting the foregoing polls, Respondent had discriminatorily discharged the two
most ardent union adherents. Accordingly, it cannot be found that such polling
was privileged under Blue Flash, and it is concluded that, by the conduct of Mor-
gan and Preiser in polling the employees on March 8, Respondent violated Section
'8(a)(1) of the Act.8
(2) March 9
At the close of the March 8 plant meeting the employees caucused on the ques-
tion of adhering to the Union. So far as can be gleaned from the record, they
were unable to arrive at any consensus, and it was finally determined to seek fur-
ther light at the union meeting that evening. Late the next afternoon, various
employees, including Swecker, approached Preiser and obtained his permission to
meet on the plant premises, during working time. Swecker was vague and evasive
as to what transpired at the meeting. However, it is clear from the mutually cor-
roborative testimony of other witnesses, including Cousins, that Swecker, early in
the meeting, announced that she had called it because "she wanted out of the
Union," and that the best thing for the employees to do was to "forget the Union
completely," and that she proceeded to poll those present regarding their union
sentiment. After it appeared that the majority of those polled wished to repudiate
the Union, they approached Preiser and informed him of their decision.
In view of the foregoing, I find, absent any denial by Swecker, that she called
the meeting and conducted the polls The General Counsel contends in his brief
O Blue Flash Empress, Inc., 109 NLRB 591; Burke Golf Equipment Corporation, 127
NLRB 241, 245.
7 Moreover, it would seem that the Blue Flash rule is properly to be applied only where
the employer has no other available method of verifying the Union's claim. Here, how-
ever, such a method was available in the form of the authorization cards, which the Union
offered to submit to a third party for inspection. Although Morgan had admittedly
assented to such procedure, about an hour before the foregoing meeting, he chose to con-
duct his own poll before anything further could be in that regard. See Daylight Grocery
Company, 147 NLRB 733, 736, enfd. 345 F 2d 239 (C.A.'5) ; Larry Faul Oldsmobile Co.
Inc., 138 NLRB 697, 700, enfd. as modified 316 F. 2d 595 (C.A. 7).
Even if, as Carden's testimony indicated, the purpose of the second poll was to permit
the Union's adherents to caucus by themselves, that cannot be regarded as' excusing the
poll. If an employer may, for such a reason segregate his union and nonunion employees,
it would become a simple matter to circumvent the Board' s rule 'against polling of em-
ployees regarding their union sentiments '
B Presser admitted that about 5 p.m. on March 8, he asked Bowles, "What do you think
the union will do for you all?" Even if, as Respondent urges, this is to be construed as
merely asking what the Union could do for the employees generally, it is clearly such in-
terrogation as the Board deems unlawful, if occurring, as here, in a context of other
unfair labor practices. Accordingly, I find that Respondent thereby additionally violated
Section 8(a) (1) of the Act.
Swecker in fact admitted that she might have suggested the meeting to the other
employees.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that her participation in the meeting rendered it unlawful because she was a super-
visor. In its brief, Respondent urges that the issue of her supervisory status was
not adequately litigated and contends that, if the Trial Examiner believes that the
present record warrants a finding that Swecker is a supervisor, he should reopen
the hearing to permit Respondent to present further evidence on this issue. For
reasons set forth below, I find no merit in this contention.
A finding that Swecker was a supervisor and, in any event, acted as an agent of
Respondent during the foregoing events is amply supported by the present record.
As to Respondent's claim that the issue has not been adequately litigated, it is
true that the original complaint, while setting forth a list of alleged supervisors,
did not include Swecker in that category, and that in his case-in-chief the General
Counsel did not take the position that she was a supervisor. However, in present-
ing its defense, and in an effort to exclude Swecker from the bargaining unit so
that her card would not be counted for the Union,1° Respondent elicited consider-
able testimony concerning her duties from Morgan. He averred that she not only
acts as a confidential secretary for Respondent's top management but also effec-
tively recommends the hiring of switchboard operators, typists, and other office
employees, and trains some of the last category.11 When it was pointed out to
Respondent's counsel that such testimony might entail a finding that Swecker was a
supervisor, he answered in effect that he had no objection to such a finding. Sub-
sequently, the General Counsel introduced evidence that on March 8 Swecker had
admitted to others that she was playing a double role in the union campaign, con-
fessing that her true allegiance was to Respondent. Although alerted thereby to
the General Counsel's new position regarding Swecker's role, Respondent was con-
tent to rest without adducing any further testimony as to her duties or status. After
the hearing, the General Counsel submitted an amended complaint, which, in addi-
tion to reducing to written form various amendments made orally at the hearing,
for the first time formally alleged that Swecker was a supervisor and an agent of
Respondent. It is now Respondent's position that, although at the hearing it
sought, in effect, to prove that Swecker was a supervisor, it should now be allowed
to prove the contrary, because it appears that such a finding would be prejudicial
to it on the issue of the March 9 poll, as well as other matters. Apart from the
inconsistency 12 of such position, there is implicit therein an admission of lack of
candor, since it amounts to an avowal that the evidence so far adduced constituted
an overstatement of Swecker's duties by her immediate superior, Morgan, in an
effort to invalidate her designation of the Union.
In any event, even apart from Swecker's position as a supervisor, there is ample
basis for finding, as I do, in view of the mutually corroborative testimony of three
employees,13 which I credit, that Swecker acted as an agent of Respondent in its
campaign against the Union. Such testimony was to the effect that, on her way to
the union meeting on March 8, Swecker acknowledged that she was playing a
double role in the interest of Respondent.14 Respondent does not contend that this
incident was not adequately litigated, nor does it seek to reopen the record to
adduce any further evidence with regard thereto.
Under all the foregoing circumstances, I do not believe that any useful purpose
would be served by reopening the hearing to litigate further Swecker's supervisory
status, and the motion to that effect in Respondent's brief is hereby denied.
It having been found that during the union campaign Swecker was acting as
Respondent's agent, whether by virtue of her supervisory status or otherwise, it
necessarily follows that her polling of the employees on March 9 was unlawful.15
101n his case -in-chief, the General Counsel had offered Swecker's signed card in connec-
tion with his attempt to prove the Union's majority status.
n Presser's testimony tended to corroborate Morgan on this point
12 While such inconsistency may be deemed to be merely the counterpart of the incon-
sistent positions taken by the General Counsel as to Swecker's supervisory status, the
General Counsel has, at least , the excuse that he was not Swecker 's employer and the
nature of her duties was therefore not a matter within his peculiar knowledge.
13 Null, Ferrell , and Fitzwater.
14 On the basis of demeanor, as well as Swecker's other deficiencies as a witness, noted
elsewhere in this Decision , I do not credit her contradiction of such testimony.
"As to the illegality of such a poll , even where , contrary to the situation here, the
safeguards of a secret ballot are observed and no supervisors or agents of the employer
are present , see Emma Gilbert, et al. d/b/a A. L. G ilbert Company, 110 NLRB 2067,
2071-2072.
PREISER SCIENTIFIC, INC. 1383
Accordingly, I find that, by Swecker's polling of the employees on March 9,
Respondent violated Section 8(a)(1) of the Act.16
b. Surveillance
The amended complaint alleges surveillance by Cousins and Bradshaw of a plant
meeting in the afternoon of March 8, and of the union meeting in the evening of
the same day.
There is no dispute that Bradshaw was a supervisor at all times here relevant.
While it admits that Cousins is now a supervisor, Respondent denies that he was
such on March 8, contending that he was not elevated to that status until March 10,
2 days after the alleged surveillance. The General Counsel presented evidence
tending to show that Cousins was a supervisor prior to March 10. However, no
attempt will be made to evaluate such evidence as determination of his status
would not, in any event, affect the result reached herein, as the ensuing discussion
will reveal.
So far as appears from the record, the only meeting at Respondent's plant on
March 8, was the one called by Respondent and attended by all the employees and,
at least at the outset, by all their supervisors. However, after a general discussion
of the Union the top management officials withdrew from the meeting, ostensibly
to give the employees an opportunity to caucus among themselves about the
matter of the Union. There is, however, conflicting testimony as to whether
Cousins and Bradshaw also left the meeting before the caucus. Carden, who was
called by the General Counsel, but who proved to be a hostile witness, testified
that they did leave. However, another witness for the General Counsel, Bowles,
testified that during the caucus Swecker invited all those present to attend a meet-
ing to be held that evening at the Union's local office, and that Cousins and
Bradshaw were present when such invitation was extended. Moreover, Cousins,
himself, confirmed that he was then present, and Bradshaw was not called to deny
that she was there.17 It is presumably the General Counsel's position at this point
that Cousins and Bradshaw engaged in unlawful surveillance by remaining during
the foregoing employee caucus. While the evidence appears to preponderate in
favor of a finding that they did remain, there is ample Board precedent that attend-
ance by a supervisor at a meeting of employees with their knowledge and consent 18
does not constitute unlawful surveillance.'9
It follows, a fortiori, that the subsequent attendance by Cousins and Bradshaw
at the union meeting did not constitute unlawful surveillance. Not only were they
invited to attend under the circumstances related above, but when Spencer, who
conducted the meeting, asked if there were any supervisors present, Bradshaw, at
least , classified herself as such ,20 and was permitted to remain.
10 The complaint alleged that Respondent violated Section 8(a) (1) of the Act by the
pretrial interrogation of employees by Respondent 's counsel . As it was not sufficiently
shown that such interrogation was for any purpose other than to prepare a defense to
the instant charge, I will recommend dismissal of such allegation.
171t is undisputed that both Cousins and Bradshaw later attended the union meeting.
18 Here, there was at least acquiescence in the presence of Cousins and Bradshaw at the
caucus, as there is no evidence that any employee objected thereto nor to their being
invited to attend the union meeting that evening. Moreover, even if it be assumed that
the employees did not regard Cousins as a supervisor, there is no dispute that they so
regarded 'Bradshaw.
10 J. W. Mays, Inc., 147 NLRB 942, 947-948
20 There is no need to resolve the conflicting testimony as to whether Cousins admitted
lie was a supervisor or merely asked Spencer to explain what he meant by the term and
after receiving Spencer's answer, announced that he was not a supervisor within Spencer's
definition. Even if Cousins admitted that he was a supervisor, there is every reason to
assume, in view of the treatment of Bradshaw, that he would have been permitted to
remain. Accordingly, there is no basis for finding that he was allowed to remain only
because of such denial.
While Campbell testified credibly that Cousins told him he had attended the union
meeting and was going to report thereon to Respondent, that fact would not under the
circumstances cited above render unlawful Cousins' attendance at the meeting or con-
stitute proof of surveillance, even though Cousins be deemed a supervisor or agent of
Respondent. J. W Mays, Inc, supra
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find therefore that, even if it be assumed that Cousins was a supervisor, neither
his attendance nor that of Bradshaw at either of the two meetings on March 8
violated the Act, and I will recommend dismissal of these allegations.
c. Threats
The amended complaint alleges as an unlawful threat by Cousins a statement
admittedly made by him on March 9, before the polling of the employees by
Swecker, that in a prior employment he was laid off about 2 weeks after joining a
union, and, although he was never recalled to work, he was unable to recover any
part of the union initiation fee paid by him. Apparently, the General Counsel
-would have the foregoing statement construed as a warning of reprisal "layoffs"
by Respondent of union adherents. However, such a construction appears to dis-
tort the plain thrust of Cousins' remarks, which was not that union membership
invites reprisals in the form of layoffs, but either that unions do not refund initia-
-tion fees in case of layoffs, or that unions cannot prevent layoffs.21 While the
-statement, thus viewed, was critical of unions, it was privileged under Section 8(c)
,of the Act. Accordingly, even if it be assumed that Cousins was a supervisor on
March 9, I would find no violation here.
The complaint also cites an alleged threat on the same occasion by Kemple,
who is found below to have been a supervisor on that date. This threat is alleged
to have consisted in Kemple's observation at the meeting that he had previously
belonged to a union, that the Union would do more harm than good, and the
.employees would derive no benefit therefrom. The record shows that Kemple did
in fact tell the employees on March 9 in the course of a discussion of the pros
and cons of unionization, that he had belonged to a union (or the Union), that it
had not done anything for him, and that it would do more harm than good 22
While it is arguable that Kemple was merely purporting to express the view, based
on his personal experience, that on balance the disadvantages of union membership
would outweigh the advantages, his choice of language, if that was his intention,
was unfortunate. His reference to the "harm" that would be suffered under a
union could not fail to suggest to employees the danger of reprisals by manage-
ment, particularly in view of the fact that, as found below, the two leading pro-
ponents of the Union, Ferrell and Null, had been discharged only the day before
`because of their union activity.
Accordingly, I find that by the foregoing remark of Kemple Respondent vio-
lated Section 8(a)(1) of the Act 23
d. The discriminatory discharges
As already related, early in the morning of March 8, Respondent discharged
Ferrell, who had been the most active advocate of the Union, and Null, who had
been her principal assistant. The General Counsel alleges that they were dis-
charged because of their union activity. Respondent rejoins that they were dis-
charged for cause and denies that at the time of such discharges Respondent was
aware either of the union activity or of the union activity of any of its employees.
To counter this denial, the General Counsel sought to adduce evidence that the
discharges occurred immediately after the call by union agent, Brooks, to Morgan
in the morning of March 8. However, such evidence was inconclusive. The
transcript of the call prepared by Brooks gives the time thereof as "approximately
10.10 a.m." and Brooks' testimony was to like effect. Preiser insisted that the dis-
charges were completed about an hour earlier. Ferrell, who was the first one of
the pair to be discharged, testified that she was called to Preiser's office about
10 a.m.24 and discharged, after some discussion of her alleged shortcomings. Ac-
cording to Preiser's uncontradicted testimony, which was corroborated by Morgan,
this interview lasted about 20 minutes. Promptly thereafter Null was summoned
by Preiser to learn of her discharge in an interview which, according to Preiser
was "much shorter" than Ferrell's. Null was positive that she responded to this
-summons not later than 10:05 a.m. If so, this would have occurred several min-
21 This construction is confirmed by Bowles' testimony that Cousins cited his foregoing
-experience as a case where a union had failed to help him.
rr This finding is based on a synthesis of the testimony of Butcher and White. Kemple
-lid not contradict them.
28 See Southwoire Company, 145 NLRB 1329, 1331-1332, and cases there cited.
" She claimed she had been at work for about 2 hours. Her reporting time was 8 a.m.
PREISER SCIENTIFIC, INC. 1385
utes before Brooks' call, and Ferrell would have been summoned still earlier by
about 20 minutes. One reaches the same conclusion if one accepts the testimony
of Union Official Spencer that he learned of both discharges "a few minutes" after
Brooks' call to Morgan. In that case, the discharge interviews, which altogether
must have consumed about one-hal'f hour, would have had to be initiated before
that call. Perhaps the most impressive support for the General Counsel's position
came from Butcher, who insisted that she saw Ferrell still at work about 10 a.m.
on March 8 and was about to approach her, when the witness heard Ferrell receive
a summons to report to Preiser.25 However, it is impossible to ignore the positive
testimony of Brooks, Null, and Spencer, the cumulative effect of which is that the
discharge interviews must have been initiated before, and not (as the General
Counsel contends) after, Brooks' call to Morgan. I am constrained to hold that
the evidence does not preponderate in favor of a finding that such call preceded
the discharge interviews.
However, it does not necessarily follow from this that there is insufficient basis
anywhere in the record for finding that at the time of the discharge Respondent
was aware of the union activity of its employees generally and of Null and Ferrell,
in particular. An obvious source of such knowledge was Swecker, who admitted
that on March 5, she was solicited by Ferrell and Null to sign a union card. As
already found, Swecker was not only a supervisor, whose knowledge of employee
union activity would ordinarily be imputable to Respondent by virtue of that fact,
alone, but she admitted to Null, Ferrell, and Fitzwater on March 8 that she was
playing a double role, in the interest of Respondent, and against that of the
Union 26
I deem it significant, moreover, that Ferrell and Null were discharged in the
morning of the first workday after their solicitation of Swecker, and that Swecker
gave vacillating answers when asked when she first spoke to management about the-
Union.27 Accordingly, I find that, at the time of their discharge, Respondent knew
of the union activity of Ferrell and Null.
As to the reason for the discharge of Ferrell, it is undisputed that Ferrell was told
she was being discharged because of friction between her and her supervisor,
Khuri28
Ferrell had worked continuously for Respondent for about 5 years before her
discharge,29 and her supervisor Khuri admitted that her work had been satisfactory
during the first 4 of these years, when Ferrell's work consisted in making book-
keeping entries, involving the operation of a "bookkeeping machine." However,
according to Khuri, her work deteriorated when she was transferred to a different
job, which involved verification of invoices for merchandise shipped to Respondent
and typing letters to suppliers regarding claims for shortages or mistakes in such
shipments, (hereinafter referred to as the "claims work").
Morgan substantially corroborated Khuri's testimony as to Ferrell's various de-
ficiencies on the claims work, and both agreed that they were brought to the atten-
tion of Respondent's board of directors at a meeting on January 31, but Morgan
m Bowles' testimony also tends to place Presser's summons to Ferrell as occurring after
a telephone call , about 10 a.m. to Morgan from an unidentified person. However, I can
place no reliance on this aspect of Bowles' testimony , as it is marred by overstatements
and self-contradictions.
28 A11 four girls went to the union meeting together . According to Ferrell , Sweckert
told the others , as they approached the union hall . "Girls, don't be mad at me , I'm going
to play both ends against the middle . . . [f]or Presser's ." Ferrell also ascribed to
Sweekert an admission , on the same occasion , that she had received a call from the wife
of one of Respondent 's directors , stating that she and her husband wanted Swecker to go
to the union meeting on March 8, "because we think the Company needs more girls like
you, we need you on our side." It was stipulated that Null would testify to the same
effect, and that Fitzwater would substantially corroborate Ferrell's testimony regarding
Swecker's first, above -quoted statement.
21 When asked when she first discussed the Union with Respondent's management,
Swecker successively gave the following answers: that ( 1) she didn 't recall "talking
directly with anyone," (2) she didn't believe she talked to management "before Tuesday"
(March 9 ), and (3) she didn't recall whether she discussed it "before Tuesday." Only
when pressed to state specifically whether she had such discussions on or before Monday
(March 8), did she enter an unequivocal denial.
21 Ferrell acknowledged also that some reference may have been made to the fact that
her work was not current. '
20 Her total period of employment by Respondent covered about 11 years.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that the directors merely instructed Khuri to admonish Ferrell to mend
her ways, and ordered that the matter "be brought up again at a later date." In
confirmation of this, Morgan produced a document which he identified as notes
taken by him of the January 31 directors' meeting, and which contained the
following:
.. . Chloe Ferrell not working too well in new position. Always behind in
work, claims too slow in getting filed, time elapse as much as four months.
She has been reprimanded several times by B. Preiser and Juliet K'huri. If
quality of work does not improve we will replace her 30
As to the actual discharge, Morgan, Preiser, and Khuri agreed that the decision
was made by them jointly on March 1, that it was then determined that the dis-
charge would be effectuated on Friday, March 5, but that, due to Preiser's absence
on a business trip on March 5, final action was postponed until his return on
March 8.31
However, Respondent's elaborate explanation of the train of events immediately
preceding Ferrell's discharge broke down when Preiser attempted to reconcile with
such explanation the fact that Ferrell was transferred to the bookkeeping machine
shortly before her discharge. It was conceded that Ferrell's work on that machine,
which she had performed for about 4 years before being assigned to the claims
work, had been satisfactory and that Ferrell would not have been discharged because
of any shortcomings as a bookkeeping machine operator.32 It therefore became
necessary for Respondent to explain why, even if she had proved inadequate on
the claims work, she was not retained on the bookkeeping work-a job which she
was performing satisfactorily when discharged. In an apparent effort to overcome
this hurdle, Preiser, who was otherwise a poised and articulate witness, launched
into a vague , confused , and at times virtually incoherent,33 line of testimony, in
the course of which he attempted to give the impression that the transfer of Ferrell
to the bookkeeping job resulted from the decision to discharge her and was merely
a prelude to such discharge. Thus, according to Preiser, it was deemed desirable
to retain Ferrell in some capacity for a short period before her actual termination,
so that she might assist in training Burns, who was to take over the claims work,
and the bookkeeping job, which Burns was vacating , was merely a convenient place
to put Ferrell during such period. However, Preiser admitted that Burns' transfer
to claims work had been intended as a permanent arrangement,34 and it would
seem that, having proved her competence in bookkeeping, Ferrell would be the
logical choice to replace Burns on a permanent basis. The question therefore arises
why Respondent did not make such a choice, instead of discharging Ferrell. The
answer to this question, gleaned from analysis of Preiser's own testimony, is that,
when it transferred Ferrell to bookkeeping, Respondent did in fact intend to keep
her on that job, either permanently or at least until such time as the board of
directors had an opportunity to consider what further action to take with regard
to her,35 and that such transfer was not related to any decision to discharge her.
so Khuri 's credibility was not enhanced by her insistence at the hearing that at the
meeting of January 31 , which she , herself, attended as one of the directors, it was
definitely decided to discharge Ferrell, leaving only the date of her termination to be
selected by management . The foregoing misstatement involved her in confused and self-
contradictory efforts to explain why, in view of the alleged definitive nature of the direc-
tors ' action, she , as she claimed , warned Ferrell , 2 or 3 weeks before her discharge that
she would be terminated if her work did not improve.
31 When asked why it was necessary to wait for Preiser's return , Morgan offered the
explanation that, since all three had made the decision to discharge Ferrell , it was felt
that they should all be present when Ferrell was terminated and explain to her the reasons
therefor.
" Khuri so testified.
3 His testimony became so garbled that he was twice forced to apologize therefor. It
is difficult to believe that this was the conduct of a witness who had nothing to fear from
the truth.
' At one point he referred to such transfer as a "stop gap" arrangement , but promptly
abandoned that position.
35 It will be recalled that Morgan admitted that the directors ' action on January 31,
contemplated further review of Ferrell ' s performance before reaching any final decision as
to her tenure. The directors meet only twice a year, and there was admittedly no meet-
ing between January 31 and March 8, when Ferrell was discharged.
PREISER SCIENTIFIC, INC. 1387
For, the timing of the transfer , alone, refutes any contention that it was casually
related to the alleged decision on March 1, to discharge Ferrell. This is so be-
cause there is no substantial dispute that Ferrell's transfer occurred before, and not
after, March 1. Ferrell's testimony that her transfer to bookkeeping occurred, in
effect, on February 22, and was not contradicted by Morgan or Khuri, although
they were questioned about the transfer, nor did Preiser unequivocally controvert
such testimony. Indeed, if anything, his testimony on the point tends to corrobo-
rate Ferrell, and at the same time to underscore his evasiveness in this entire area.
For. he repeatedly referred to the decision to transfer Ferrell to bookkeeping as
one that was made in the last week of February or the first week of March, thus,
in effect, professing to be unable to recall whether the transfer preceded or fol-
lowed the March 1 discharge decision, to which he ascribed the transfer! 36
Moreover, that the transfer was originally intended as a more permanent arrange-
ment than Preiser was willing to admit is confirmed by his own testimony that on
March 8, when Ferrell was terminated, no one was immediately available to replace
her, and it was necessary to resort to the makeshift device of dividing her book-
keeping work between Burns and Khuri until other arrangements could be made.
And I deem it significant that the problem created by Ferrell's discharge was
finally solved by Respondent by writing off its effort to train Burns for the claims
work and putting her back on the bookkeeping machine 37
I find therefore that on February 22, Respondent's management decided to solve
the problem of Ferrell's inadequacy on the claims work by having her exchange
jobs with Burns, the bookkeeping machine operator, and there is no evidence that
anything occurred between February 22 and March 1 to cause Respondent to aban-
don this solution. Yet, if one is to credit Preiser and his aides, it was abandoned
on March 1, in favor of a decision to discharge Ferrell as of March 5. In view of
the evasiveness and self-contradictory nature of Preiser's testimony in this entire
area. and more specifically, in view of the absence of any explanation for jettison-
ing the foregoing exchange-of-jobs project, I do not credit the testimony that this
was, in effect, done on March 1, or that a decision was then reached to discharge
Ferrell. I am convinced rather that Respondent's account of the events of March 1
is purely apocryphal, designed to give the impression that the decision to discharge
Ferrell was made before, rather than after, her involvement in union activities.38
Having rejected Respondent's version of the events leading up to Ferrell's dis-
charge and the reasons therefor, I find that such discharge was not decreed until
after Ferrell's involvement in union activities and that it was caused by such activ-
ities. This conclusion is supported not only by the fact that Ferrell was discharged
at the first opportunity after she solicited Swecker, an admitted supervisor and a
self-confessed double agent, but also by the ineptness of Respondent's efforts to
reconcile the discharge of Ferrell with her prior transfer to bookkeeping, and
36 There is 'a suggestion in Presser's highly ambiguous testimony on this point that the
decision to transfer Ferrell to bookkeeping and train Burns for the claims work was made
in anticipation of the alleged March 1 decision to discharge Ferrell . However , any such
Interpretation of his testimony is precluded by his own profession of doubt whether the
transfer occurred before or after March 1.
" Another employee , Perry , who had substituted for Ferrell during vacations, took
over the claims work. Perry ' s old job was In turn assigned to a new girl ( Eden) who
was not hired until a few days after Ferrell's discharge.
In a particularly confused and obscure passage of his testimony , Presser seems to say
that Burns returned to bookkeeping because it had not proved feasible to train "a rela-
tively new person" (Burns) to do the claims work. However, he failed to specify why
it had not proved feasible Moreover, earlier in his testimony he appears to have rejected
the suggestion that Burns had not made satisfactory progress in learning the claims
work. Accordingly, I find nothing in his testimony to rebut the Inference that the only
reason for Burns' return to bookkeeping was the emergency created by the precipitate dis-
charge of Ferrell.
is One may wonder why Respondent gave March 5, rather than March 8, as the date
originally selected for Ferrell ' s termination . The record shows that it was Respondent's
usual practice to effect a discharge on a Friday , which was the end of the workweek and
Respondent 's payday, and it was presumably deemed necessary to furnish some explana-
tion for deviating from this practice In Ferrell 's case by discharging her on March 8, a
Monday. The solution apparently hit upon was to give Friday , March 5, as the date
originally chosen for her discharge and to cite Presser's absence from the city on that
date as the reason for postponing any action until the following Monday.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's inability to explain plausibly why it did not retain her on the book-
keeping machine beyond March 8 .39
It is accordingly found that, by discharging Ferrell, Respondent violated Section
8(a)(3) and (1) of the Act.
Null
In the case of Null, it is likewise clear that before her involvement in union,
activity Respondent had decided to transfer her to a different job rather than dis-
charge her. Thus, even the minutes of the board of directors meeting of January 31,
introduced in evidence by Respondent, after detailing Null's shortcomings in her
work of editing mail orders, concludes: "We should try to transfer or replace her."'
[Emphasis supplied.] Moreover, Null's testimony that on March 1, Preiser
informed her that he had decided that she would be better suited for the job of
inventory clerk is corroborated by Campbell's testimony that a week or two before
Null's discharge Preiser told him that Null would be transferred to another job, and
that the witness would replace her as editor of mail orders. Preiser's version was
that late in February he asked Null if she would be interested in a job as inventory
clerk, indicating that he thought she might find such work more congenial because-
it would be less trying to one of her nervous temperament; and that Null expressed
interest, but that, when Preiser consulted Morgan, he objected to the change.
However, Preiser did not specifically contradict Campbell's testimony that Preiser-
spoke of Null's transfer as a matter which had already been settled. Moreover,
although Morgan testified about Null's discharge, he was not asked to corroborate-
Preiser's foregoing testimony that it was Morgan who prevented Preiser from,
transferring Null40
Thus, there is no dispute that Preiser indicated to Null and Campbell that Null's
transfer was at least under consideration. Moreover, on the basis of demeanor, as
well as Preiser 's proven unreliability as a witness , and the absence of any specific
denial by him, I credit Campbell and find that about March 1, Preiser told him in
effect that Null was to be transferred, thereby implying that a management decision
to that effect had already been made. In any event, I do not believe that Preiser
was dissuaded from such transfer by Morgan, as he claimed, but deem it far
more likely, under all the circumstances, including the striking similarity between
the two cases,41 that the discharge of Null at the same time as Ferrell, at the first
opportunity after she had, together with Ferrell, solicited Swecker to sign a union,
card , was for the same reason as prompted Ferrell 's discharge-namely, her union
activity. It is found therefore that by the discharge of Null Respondent violated
Section 8(a)(3) and (1) of the Act.
e. The violation of Section 8(a)(5)
(1) The appropriate unit
The amended complaint alleges that the following unit is appropriate for pur-
poses of collective bargaining: all employees of Respondent at its Charleston, West
Virginia, location, including office clerical employees, but excluding all ware-
housemen, salesmen, truckdrivers, guards, professional employees, and supervisors
as defined in the Act.
While the answer controverts this allegation, the only issue raised by the Respond-
ent with regard to the scope of this unit involved the status of Jones, who is
described in the record only as a "janitor and operator," and whom Respondent,
8D It is difficult to believe that , if Ferrell 's discharge had been planned in advance, Re-
spondent would not at the very least, have withheld action until the hiring of Eden See
footnote 37, above.
4° It is admitted that, despite her many alleged shortcomings , Null was one of the em-
ployees given a merit raise on March 7, but Morgan and Presser insisted that this was a
mistake, explaining that it stemmed from the fact that, of the four supervisors who were
assigned to rate the employees , one or two had recommended a merit increase for Null.
a As in the case of Ferrell, Respondent 's witnesses testified that the final decision to
terminate Null was made on March 1, that it was then agreed that the actual discharge
would take place on March 5, but that no action was taken until March 8, because of
Presser's absence from the plant . It has already been found, in the case of Ferrell, that
this sequence of events was contrived to conceal the fact that Ferrell's 'discharge was
decided upon only after her union activity began. There . is at least as much reason to
make a similar finding as to Null.
PREISER SCIENTIFIC, INC. 1389
contrary to the General Counsel, seeks to include 42 It is assumed that the term
"operator" as here used refers to the operation of the telephone switchboard43
If he in fact operates the switchboard during a substantial part of his working
time , Jones is for that reason alone entitled to inclusion in the unit ,44 but, absent
any evidence concerning his duties , there is insufficient basis for resolving the issue
relating to him, and I do not pass thereon. Nevertheless, for purposes of deter-
mining the Union's majority status, it will be assumed that Jones is properly in
the unit.
(2) The Union's majority status
The General Counsel originally offered in evidence 20 union authorization cards
executed before the Union's demand of March 8. However, all parties are now
agreed that one of the signatories, Swecker, should not be included in the unit and
that her card may, therefore, not be counted. Of the remaining 19 cards, Respond-
ent disputes the validity of 11 on various grounds, leaving only 8 which are not
challenged.
Among the disputed cards are those of Null and Ferrell, which Respondent
-contends should not be counted because they were discharged for cause before the
Union made its first demand for recognition. Whether or not they were in fact
discharged before such demand, their cards may be counted in view of the finding
above that their discharge was unlawful.
In its brief, Respondent also attacks the cards of Fitzwater and Plaster on the
ground that their execution of the cards was proved by a witness at the hearing
other than the signatories. However, as such witness testified that she saw them
sign the cards on a date prior to the Union's demand, they must be deemed to have
been sufficiently authenticated.
In its brief, Respondent attacks Ginther's card on the ground that, as the record
shows, on March 8, Respondent was not her sole employer, but she was employed
jointly by Respondent and three other firms.45 However, as Morgan corroborated
Ginther's testimony that Preiser directs her work, and Preiser admitted that he
determines her wage rate,46 and her wages are paid in the first instance by Respond-
ent, albeit subject to reimbursement from other sources47 I find that her interests
are sufficiently allied with those of the other employees in the unit to warrant her.
inclusion.48
Respondent would void Fox's card on the basis of her testimony that, in solicit-
ing her card, Ferrell (1) gave her the impression that the purpose of the card was
"just to vote to see if the majority wanted the union," and (2) told her that anyone
"who didn't join now would have to pay [a] $25.00 fee to join" when the Union
"got in." Ferrell controverted this testimony. However, there is no need to resolve
this conflict, for Fox admitted that the foregoing alleged representations by Ferrell
did not influence her decision to sign the card. Accordingly, even if it be assumed
that such representations were made and that they would have invalidated Fox's
card if she had relied on them, it would still be necessary to find that, since she
did not in fact rely thereon, her card was valid.
Carden's card was challenged by Respondent on the basis of her testimony that
she signed the card because of Ferrell's threat that if Carden did not sign she
42 See Trial Examiner ' s Exhibit 1.
43 The parties agreed to the inclusion of Bowles as a "switchboard operator."
"Whether his janitorial duties are also such as to warrant his inclusion in the unit
would seem to depend , inter alga, on where they are performed and the line of supervision,
as to neither of which factors there was any evidence in the record.
'5-She compiles price data for all four firms. Her headquarters are on Respondent's
premises.
"He admittedly awarded her a merit increase in March in conjunction with those
distributed to other employees of Respondent.
47 It appears from Morgan ' s testimony that the original arrangement was that all four
firms would share the cost of Ginther 's services . However , when one of the firms sub-
sequently withdrew from this arrangement , a new firm took its place with the under-
standing that , in lieu of making certain cash outlays which would otherwise be required
of it, such new firm would underwrite , for a specified period , the entire cost of Ginther's
services . Pursuant to this understanding, such new firm was on March 8 reimbursing
Respondent for the entire amount of Ginther 's wages.
'e Since Respondent directs her work and fixes her wage rate , it is the only one of
'Ginther's employers with which there could be any effective bargaining with respect at
least to those aspects of her employment.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would-be discharged the next day. Ferrell denied making any such threat. On
the basis of demeanor, and in view of the vagueness and evasiveness of a critical
portion of Carden's testimony in this area 49 I credit Ferrell's denial. Accordingly,
I find that Carden's card may be counted for the Union.50
Accordingly, if one counts only the cards so far considered, it would appear that,
when it made its demand, the Union had a total of at least 15 valid cards.
As to the size of the unit, even if one includes all persons whose eligibility is
disputed by any of the parties, the unit would not comprise more than 26
employees. Of the disputed employees, I would exclude at least Kemple.51
As it thus appears that on March 8, the Union had 15 valid cards out of a unit
that comprised at the most 25 persons, I find that, when it requested recognition,
the Union represented a clear majority of the employees in the appropriate unit.52
(3) The demand and refusal
About 10 a.m. on March 8, Brooks called Morgan at Respondent's Charleston
plant, claimed that the Union represented a majority of "your eligible office
employees there" and requested recognition and bargaining. Later the same day,
Spencer wrote Respondent a letter, directed to Morgan's attention, claiming to
represent a majority of Respondent's "office and clerical staff." In a reply letter
of March 10, Respondent's counsel advised Spencer that Respondent declined to
recognize it, because "twenty-three of the twenty-five" employees had on March 9
informed Respondent that they had no interest in representation by a union, and
because many of the employees included in Spencer's reference to "office and
clerical staff" were confidential employees and should be excluded.53
In its brief, Respondent contends that the foregoing demands for recognition
were defective because they were not limited to Respondent's Charelston operation
and might therefore be deemed to apply to employees of Respondent at other
locations. However, there is no evidence in the record that Respondent had any
operations other than the one at Charleston. In any event, it is undisputed that
in his call to Morgan at the Charleston location Brooks claimed only that the
Union represented Respondent's "office employees there." Moreover, as already
related, Respondent's counsel, in rejecting the Union's demand, cited the repudia-
tion of the Union on March 9, by 23 of 25 employees, which could have had
-When asked how she subsequently became convinced that the Union could not cause
her discharge, Carden, after avoiding a direct answer, finally vouchsafed only that her
father explained "a few things" to her.
5o While Carden, as well as certain other employees, claimed that at the union meeting
in the evening of March 8, they demanded the return of their cards, any such revocation
of the cards could not of course affect the Union's majority status as of 10 a in. that
morning, when it demanded recognition. Henry Spen & Company, Inc., 150 NLRB 138 ;
Moore's Seafood Products, Inc., 152 NLRB 683.
BI He testified that, although he is now, as Respondent concedes, a supervisor of eight
employees, he did not become a supervisor at all until at least March 15. However, there
was no convincing evidence that his authority with respect to such employees underwent
any material change on that date, and I find that he was a supervisor on March 8 More-
over, under Board precedent it would be necessary to exclude him from the unit on the
ground that in buying merchandise for Respondent, he admittedly has power to pledge
Respondent's credit up to $10,000 on a single order. Federal Telephone and Radio Com-
pany, 120 NLRB 1652.
5 In view of this finding, I do not deem it necessary to resolve Respondent's contentions
as to the validity of any union cards other than those considered above, nor to make any
definitive ruling on the eligibility of Claudia Workman, Cousins, and Jones, their eligibility
being assumed for present purposes.
In conformity with the foregoing findings, certain matters on which ruling was reserved
at the hearing are hereby disposed of as follows:
(1) Carden's card is hereby admitted.
(2) The General Counsel's motion at the close of the hearing to rescind my ruling
rejecting the cards of Ballard and Alma Kearns is hereby denied, but only on the
ground that such cards would not affect the result herein, in any event.
53 On March 11, Spencer, in reply to the foregoing, renewed his prior offer to show
Respondent signed cards "covering the office and clerical staff and clinic [sic] supervisory
employees." (The phrase "and clinic" is apparently a typographical error, and presumably
should read "excluding.")
PREISER SCIENTIFIC, INC. 1391
reference only to the action of the Charleston office clerical group on that date.
Thereby, counsel, in effect, acknowledged that he construed the Union's demand as
limited to that group ; 54 and there is no evidence that Respondent at any time
placed any different construction on such demand. Accordingly, I find that there
was no fatal defect in the Union's demand for recognition.55
It is admitted that such demand was not honored by Respondent. It contends,
however, that it was justified in refusing to recognize the Union because the
result of the poll taken on March 9, engendered a good-faith doubt of the Union's
majority status.
As already related, the Union's first demand was made on March 8 in Brooks'
call to Morgan. Morgan's only response was to question Brooks' claim that the
Union represented the majority of the employees, and to ask for proof thereof.
Brooks offered to show Morgan the signed cards, and it was agreed to meet for
this purpose at 1 p.m. However, for reasons already related, Spencer called
Morgan about noon the same day to cancel the meeting, and there is no substantial
dispute that Spencer proposed that the cards be shown to a third party, and that
Morgan agreed.56 And, in his letter of the same date, Spencer stated that he was
prepared to show the cards to any "disinterested party whom you would select."
The only reply to this offer was counsel's letter of March 10, announcing Respond-
ent's refusal to recognize the Union because of the employees' repudiation of the
Union on March 9.
It is accordingly found that the Union's initial request (by Brooks) was for
immediate and unconditional recognition, and that this was met by Morgan with
a request for proof of the Union's majority status. An employer, confronted with
a union's demand for recognition, is entitled to withhold recognition pending proof
of the union's majority status, but only if he in good faith doubts such status and
is motivated solely by such doubt in withholding recognition. Here, however, it
is manifest from Respondent's entire course of conduct that, whatever doubt
Respondent may have had when the Union's demand was made, the withholding
and eventual denial or recognition was motivated not by any such doubt but by
rejection of the principle of collective bargaining, and by a desire to gain time in
which to dissipate the Union's following among the employees. Thus, about the
same time as Brooks' demand was made,57 Respondent discharged the two most
active union adherents; only a few hours later it called a meeting of the employees
at which, as found above, Morgan illegally polled them about their union senti-
ments; and the following day, soon after a coercive remark by Supervisor Kemple
in the presence of the employees, Swecker again illegally polled the employees.
In his brief, as in his March 10 letter, Respondent's counsel cites the result of
the March 9 poll as justifying Respondent's refusal on March 10 and thereafter
to recognize the Union. However, it is well settled that an employer may not
justify a refusal to bargain by any loss of majority suffered by the union, which
loss occurs after the employer engages in unfair labor practices, calculated, as here,
to chill the employees' enthusiasm tor the union. To permit Respondent to refuse
to bargain on such grounds would enable it to profit by its own wrong.58
In any event, the validity of the Union's demand for recognition depends not on
the number of its adherents on March 9 but on the number thereof on March 8,
when the demand was made, and any doubt as to its majority status on March 9 is
ss As already noted, the only question regarding the unit raised in counsel 's March 10
letter related to the failure to exclude therefrom confidential employees . That conten-
tion has apparently been abandoned . In any event , the failure to list all exclusions from
a unit sought by a union does not vitiate its demand for recognition.
551t is not clear from Respondent ' s brief whether It questions the adequacy of Brooks'
reference on March 8 to "office employees " as constituting the bargaining unit. In any
event, I find that such description was adequate and that there was no fatal inconsistency
between it and Spencer's subsequent reference to "office and clerical" employees.
re Morgan , after some vacillation , contradicted Spencer's testimony that in that con-
versation he requested that Morgan recognize the Union, and that Morgan declined to do
so. On the basis of demeanor , as well as all the other circumstances , I credit Spencer.
67 It is immaterial whether such discharges occurred, as Respondent claims, shortly be-
fore, or, as the General Counsel claims , shortly after , such demand. In either case, it
would be to Respondent 's advantage to delay any action on the Union 's request until the
discharges could have their full psychological impact on the remaining employees
55Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678; Mary Chess, Inc., 145
NLRB 1200.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
irrelevant, unless Respondent in good faith inferred that the same situation pre-
vailed on March 8 as on March 9. That this was not the case here is abundantly
clear from the record. Thus, it is readily inferable from Morgan's own testimony
that the initial poll taken by him on March 8, demonstrated that, despite the
coercive nature of such poll, the majority of the employees desired union repre-
sentation. This is attested not only by Morgan's vagueness regarding the outcome
of the poll,59 but also by the fact that management deemed it necessary to give the
employees, at the close of the meeting, an opportunity to caucus among themselves
in order, as the record shows, that they might reconsider their action with regard
to union affiliation.60 It is significant also that, when, as found above, Preiser,
before the caucus, requested that those who had not signed a union card identify
themselves and leave the room, so far as appears from the record, relatively few
took advantage of this opportunity to show their allegiance to management 61 If
Respondent in fact had any doubts up to that point of the Union's majority status,
the foregoing meager response to Presser's request should have sufficed to dispel
them.
It is apparent from a review of the foregoing events that Respondent's strategy
was, first, to dampen the ardor of the union adherents by discharging the out-
standing advocates of the Union, and then to counter the Union's demand for
recognition by conducting repeated polls of the employees until a result could be
obtained that would afford a pretext for not recognizing the Union.62
Accordingly, I find that, when Morgan reacted to Brooks' request for recogni-
tion by raising the issue of the Union's majority status, he was not prompted by any
genuine desire to verify such status as a prelude to recognizing the Union but was
merely resorting to a delaying tactic to give Respondent an opportunity to destroy
any majority the Union might have. Accordingly, I find that, by withholding
recognition on March 8 under the foregoing circumstances, and by subsequently re-
jecting the Union's request for recognition, Respondent violated Section 8(a)(5)
and (1) of the Act.63
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
59 According to Morgan, although a number of those present said they had signed cards
and a number said they had not, he was, for reasons he failed to explain, unable to deter-
mine the sentiment of the majority. Other witnesses, including Preiser, attested that, at
the most, only a few professed not to have signed a card. See footnote 61, below.
60 According to the credible testimony of White, before the caucus, Morgan, after referring
to the Union's claim to represent the employees, stated that Respondent felt that the
employees had made a "hasty decision" and that it would like them to think it over and
talk It over, in the absence of management (Morgan agreed that the employees were
urged to discuss the matter and advise Respondent of their desire relative to the Union,
and did not specifically deny that he taxed the employees with having made a hasty
decision.) It is thus clear that at this point at least Respondent had no doubt as to the
prounion sentiments of the majority.
ei Ginther testified that she was aware of only one response to Presser's request-by
Cousins. Carden confirmed that Cousins responded, but Indicated that a few others did
likewise. While Presser's testimony on this point tends to corroborate Ginther's view
that there was only one such response , It is not unlikely that some others joined with
Cousins, as there were in fact several others in the office clerical group who had not
signed cards.
63 As already pointed out, If it had in fact wished to verify the Union's status, as a
legitimate prelude to bargaining , Respondent had only to take advantage of Spencer ' s offer
before the March 8 plant meeting to show the Union's cards to a third party Although
Morgan admitted that he consented to this procedure, Respondent did not choose to pursue
the matter further but resorted instead to the repeated polling of employees on March 8
and 9, described above Respondent thereby indicated that it was not interested in deter-
mining employee sentiment as of the time of the Union's request for recognition but only
as of a time when Respondent 's various unfair labor practices had taken their toll of
union adherents.
63 The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by
unilaterally granting certain economic benefits on March 30 and July 4, 1965. However,
as the evidence on this point was conflicting and unclear , and did not preponderate in favor
of a violation finding, I will recommend dismissal of that allegation.
PREISER SCIENTIFIC, INC. 1393
have a close, intimate, anu substantial relation to trade , traffic , and commerce
among the several States , and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8 (a)(1), (3), and
(5) of the Act, it will be recommended that it be ordered to cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent refused to recognize or bargain with the
Union, which represented a majority of the employees in an appropriate unit.
Accordingly, I shall recommend that the Respondent be ordered to bargain upon
request with the Union as the exclusive representative of the employees in the
appropriate unit.
As it has been found that on March 8, Respondent discriminatorily discharged
Null and Ferrell, it will be recommended that Respondent be ordered to offer
them immediate reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges, and to reimburse
them for any loss of pay they may have suffered by reason of the Respondent's
discrimination against them, by paying to them a sum of money equal to the
amount they would normally have earned as wages from the date of their discharge
to the date of Respondent's offer of reinstatement, less their net earnings during
that period. Backpay shall be computed on the basis of calendar quarters, in ac-
cordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289,
and interest at the rate of 6 percent per annum shall be added to net backpay, in
accordance with Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the violations found herein, particularly the discrimina-
tory discharges , a potential threat of future violations exists which warrants a broad
cease-and-desist provision.
CONCLUSIONS OF LAW
1. All employees of Respondent at its Charleston , West Virginia , location includ-
ing office clerical employees , but excluding warehousemen , salesmen, truckdrivers,
professional employees , guards, and supervisors as defined in the Act , constitute a
unit appropriate for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
2. At all times material the Union has been and still is the exclusive representa-
tive of all the employees in the aforesaid unit for the purposes of collective bargain-
ing, within the meaning of Section 9(a) of the Act.
3. By refusing to recognize or bargain collectively with the aforesaid labor
organization as the exclusive representative of its employees in an appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
4. By interrogation , polling of employees about their union sentiments, and
threats of reprisal for concerted activities, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, and has engaged in and is engaging :n unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. By discharging Chloe Ferrell and Joyce Null for union activity, the Respond-
ent has violated Section 8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent , Preiser Scientific , Inc., Charles-
ton, West Virginia , its officers , agents, successors , and assigns , shall be required to:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages , hours of employment,
or other conditions of employment with Food Store Employees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, as-the exclusive representative of all its employees at its Charleston,
West Virginia, location, including office clericals, but excluding salesmen, ware-
housemen, truckdrivers, professional employees, guards, and supervisors as defined
in. the Act.
221-731-67-val. 158-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in Food Store Employees Union, Local #347,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
or in any other labor organization, by discriminating against employees in regard
to their hire or tenure of employment or any term or condition of employment
(c) Threatening employees that it will visit reprisals upon them if they engage m
concerted activities
(d) Coercively interrogating and polling employees concerning their union
sentiments
(e) In any other manner, interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right is affected by
the provisos in Section 8(a)(3) of the Act
2 Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act
(a) Upon request, bargain collectively with Food Store Employees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all its employees in the aforedescnbed unit,
with respect to rates of pay, wages, hours of employment or other conditions of
employment and, if an understanding is reached, embody such understanding in a
signed written agreement
(b) Offer to Chloe Ferrell and Joyce Null immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges.
(c) Make whole the said employees, in the manner set forth in the section of the
Trial Examiner's Decision entitled "The Remedy," for any loss of pay they may
have suffered by reason of the Respondent's discrimination against them
(d) Preserve and, upon request, make available to the Board or its agents,
for examination or copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due under the terms of this Order
(e) Post at its location in Charleston, West Virginia, copies of the attached
notice marked "Appendix " 64 Copies of said notice, to be furnished by the Re-
gional Director for Region 9, shall, after being duly signed by the Respondent s
representative, be posted by the Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted Reasonable steps
shall be taken by the Respondent to insure that such notice's are not altered,
defaced, or covered by any other material
(f) Notify the Regional Director for Region 9, in writing, within 20 days from
receipt of this Decision, what steps the Respondent has taken to comply herewith 65
IT Is FURTHER ORDERED that all allegations of the complaint relating to violations
other than those found above be, and they hereby are, dismissed
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
Relations Act, as amended, we hereby notify our employees that
WE WILL bargain, upon request, with Food Store Employees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, as the exclusive representative of all employees in the bargaining
"In the event that this Recommended Order is adoptd by the Board the words a
Decision and Order ' shall be substituted for the words 'the Recommended Order of a
Trial Examiner" in the notice In the further event that the Boards Order is enforced
by a decree of a United States Court of Appeals the words a Decree of the Lnited States
Court of Appeals Enforcing an Order shall be substituted for the words a Deci"ion
and Order"
' If this Recommended Order is adopted by the Board this provision shall be modified
to read 'Notify said Regional Director in writing within 10 days from the date of this
Order what steps the Respondent has taken to comply herewith'
H. & H. PLASTICS MFG., CO. 1395
unit described below , in respect to rates of pay, wages , hours of employment,
or other conditions of employment , and, if an understanding is reached,
embody it in a signed agreement . The bargaining unit is:
All our employees at our location in Charleston , West Virginia , including
office clerical employees , but excluding truckdrivers , salesmen, ware-
housemen , professional employees , guards, and supervisors as defined in
the Act.
WE WILL NOT threaten our employees with reprisals for concerted activities,
or coercively interrogate or poll our employees about their union sentiments.
WE WILL NOT discourage membership in Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher Workmen of North
America , AFL-CIO, or any other labor organization by discriminating against
employees with regard to their hire or tenure of employment or any other term
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self -organization , to form , join or
assist Food Store Employees Union , Local #347, Amalgamated Meat Cutters
and Butcher Workmen of North America , AFL-CIO, or any other labor orga-
nization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bar-
gaining 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 the provisos
in Section 8(a)(3) of the Act.
WE WILL offer Joyce Null and Chloe Ferrell immediate and full reinstate-
ment to their former or substantially equivalent positions , and make them
whole for any loss of pay suffered by reason of the discrimination against them.
All our employees are free to become , remain , or refrain from becoming or re-
maining , members of Food Store Employees Union , Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization.
PREISER SCIENTIFIC, 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, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
684-3627.
H. & H. Plastics Mfg., Co. and Local 406, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen , and Helpers
of America I and Employees' Committee-H. & H. Plastics Mfg.
Co., Party in Interest . Cases Nos. 7-CA-5241 and 7-RC-6842.
June 6, 1966
DECISION AND ORDER
On March 4, 1966, Trial Examiner James V. Constantine issued
his Decision 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
1 Hereinafter called the Union.
158 NLRB No. 138.