Publix Warehouse

National Labor Relations Board - Board Decisions

Oct 6, 1967

167 N.L.R.B. 684 (N.L.R.B. 1967)

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Publix Warehouse and Teamsters , Chauffeurs, and
Helpers Local 959, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Inde-
pendent. Case 19-CA-3514
October 6, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 14, 1967, Trial Examiner Wallace E.
Royster issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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. Thereafter, the Respondent
filed exceptions to the Decision. -
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Publix Warehouse,
Anchorage, Alaska, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.1
Delete from par 2(d) that part which reads "to be furnished" and sub-
stitute "on forms provided "
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
WALLACE E. ROYSTER, Trial Examiner: Charges in this
matter were filed on November I, 1966, and January 17,
1967. The complaint based upon them issued February
1, 1967 At issue is whether Publix Warehouse,
Anchorage, Alaska, herein the Respondent, by threats to
close its operations, to have its operations performed by
contract, to make layoffs, and to eliminate overtime, by
offering and granting wage increases, by reducing hours
of employment, by laying off its employee, Walter J.
167 NLRB No. 95
Barth, and by refusing unlawfully to bargain with Team-
sters, Chauffeurs, and Helpers Local 959, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent,
herein called the Union, has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, herein called the Act,
affecting commerce within the meaning of Section 2(6)
and (7) of the Act
Evidence pertinent to the issues was presented before
me in Anchorage, Alaska, on April 4, 1967.
Upon the basis of the record in the case, in considera-
tion of the brief filed, and from my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
As its name suggests, the Respondent operates a
warehouse in Anchorage where it receives merchandise
brought to it from out of the State, unloads it (generally
from rail freight cars which were loaded in Seattle, trans-
ported by vessel to an Alaskan port, and then delivered to
the warehouse) and then immediately or after a period of
storage, reloads the merchandise in trucks for distribution
in Alaska. To the extent that the merchandise thus han-
dled comes to the Respondent from outside Alaska, it is
obvious that the service rendered constitutes a link in in-
terstate commerce.
Superior Shippers Association, a nonprofit coopera-
tive, appears to be Respondent's principal customer. In
1966 Superior paid Respondent $118,166.91 for services.
Of this amount nearly $82,000 represented Respondent's
labor costs. All of the shipments handled for Superior
were from out-of-State. Counsel for the Respondent ar-
gues that payments by Superior to Respondent should not
enter into a calculation concerning a valuation of services
rendered in connection with commerce because, assert-
edly, the Respondent realizes no profit from this rela-
tionship and because Superior, itself, is a nonprofit enter-
prise. To support this argument, Mid-West Car Pool
Ass'n., 114 NLRB 721, is cited In that case the Board
declined to count as income from those amounts which
represented freight charges paid by the employer and
then recouped dollar for dollar from its customers. The
cited decision is not in point. The Respondent pays no
freight charges for Superior. The facts that a substantial
portion of the moneys received from Superior finds its
way into Respondent's payroll disbursements, that the
relationship may not be a profitable one for the Respond-
ent, or that Superior is not operated for profit, are irrele-
vant to the question of Respondent's involvement in com-
merce.
I find that the Respondent derives revenues exceeding
$50,000 annually for services in connection with the
receipt, storage, and loading of goods in commerce and
that the Respondent is thereby engaged in commerce or
in an activity affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
PUBLIX WAREHOUSE 685
111. THE UNFAIR LABOR PRACTICES
The Evidence
In May 1966 the Union began to organize Respond-
ent's warehouse employees and after its request for
recognition was unanswered, filed a petition for a
representation election By consent the election was held
on September 15. The Union was certified as collective-
bargaining representative on September 23.
David Schacht testified that he was hired by the
Respondent in September 1965 and was then paid $150
a week. On May 28, 1966, according to his credited
testimony, after some of the employees had evidenced in-
terest in having the Union as bargaining representative,
he had a conversation with Francis Moesh, Respondent's
president. By then Schacht's weekly earnings had risen to
$190. Moesh told Schacht that he opposed having a union
in the warehouse and that he had to have someone on his
side. He then offered to raise Schacht's wages to $230 a
week. Schacht said that he "would think it over." The
raise was made effective immediately although it does not
appear that Schacht made any commitment to oppose the
Union.
Walter J. Barth in the late summer of 1966 applied for
work at the warehouse and was interviewed by President
Moesh Barth testified credibly and without contradiction
that Moesh asked him how he felt about the Union. Barth
gave an evasive answer. Barth was hired but because he
wished to give a 2-week notice to his then employer,
worked in the evening on a part-time basis until the notice
period ended. On September 10 he began working full-
time for the Respondent at a wage of $170 weekly.
On the day before the election, Barth testified, Moesh
told him that if the Union won, the Respondent would be
forced to have some of its work done by a contract ar-
rangement with the result that the men would not have as
steady employment as in the past. On the Saturday fol-
lowing the election Moesh told Barth that he was laid off
because there was less work at hand. Barth was brought
back to work after 2-1/2 weeks. Upon his return , accord-
ing to Barth, his leadman or "pusher," Dwane Phillips,
"kind of rode me and tried to make me quit."
Lance R. Brewster was hired July 10, 1966, at $170 a
week. At the solicitation of Dwane Phillips he signed a
union designation card but on the day before the election,
Phillips presented arguments to Brewster and Barth to
the effect that a union was not to be desired, that its ad-
vent would mean layoffs. Brewster commented that if
Moesh would pay him $200 a week he would probably
"go the other way." Later in the day, Moesh sought him
out and said that he could not afford the Union and if it
"came in" he would have to make some rearrangement of
his business. Moesh then asked how long Brewster had
been employed. Brewster answered I I weeks Moesh
said he would raise Brewster to $200 a week and 2
months later to $230 and then asked what Brewster
"would do " Brewster said that he would think about it.
Moesh inquired, "How do you think Barth will go?"
Brewster replied that Barth would probably follow
Brewster's lead. Moesh said that after Barth had been
employed 1 1 weeks he, too, would be raised to $200 and
after an additional 2 months would "be raised ac-
cordingly." After the election, according to Brewster, his
relations with Phillips became unpleasant; that the latter
seemed to be trying to force Brewster to quit.
Dwane Phillips testified that he was hired as a
warehouseman by Moesh and that he began work on June
13. During the employment interview Moesh asked him
how he felt about unions and said that although he paid
union wages he did not want to "go union." Thereafter,
beginning in August, Phillips had a number of conversa-
tions with Moesh in which Moesh expressed his desire to
avoid having a union in his business, said that he would
close the warehouse before he would "go union," and that
he could not afford to deal with a union. On one of these
occasions Phillips was given a wage increase from $170
to $180 a week. A day or two before the election, accord-
ing to Phillips, he began to question the wisdom of his
earlier stand in support of the Union and to consider
that perhaps he should be more sympathetic to the
attitude of Moesh. In consequence he spoke to Brewster
and Barth urging them to vote for "management." Later
in the day Brewster said that he would vote against the
Union if he were to be guaranteed $200 a week. Phillips
reported this to Moesh. After the election Phillips
apologized to Moesh and to Dean Deegan, Respondent's
secretary-treasurer, for his inability to persuade Brewster
and Barth to vote against the Union.
When the election result became known, on September
15, Moesh told Phillips that there would be some changes
and that he would lay Barth off in the hope that Barth
would become discouraged and find other employment.
The week following Barth 's layoff Phillips worked 60
hours. Phillips also testified that Moesh instructed him to
"put enough pressure" on Brewster and Barth so that
they would be encouraged to quit. In consequence, Phil-
lips testified, "I rode Brewster and Barth so damned hard
that under ordinary circumstances ordinary men would
quit."
At all times reflected in the record through September
17 the warehouse employees worked 47-1/2 hours a
week. Thereafter their hours were reduced to 40 and their
earnings lessened proportionally. Schacht's pay for exam-
ple dropped from $230 to $179.60; Brewster's from $170
to $132.80.
As soon as the result of the election was known, on
September 15, Frank Yarnot, a business representative
of the Union, asked Moesh when it would be possible to
start negotiating for a contract. Moesh answered that he
must first consult with his board of directors Later, Yar-
not was informed that an attorney, a Mr. Nosek, would be
Respondent's representative. There is no evidence that
Yarnot spoke to Nosek. It is clear that the earnings of the
employees in the bargaining unit were reduced without
notice to or consultation with the Union.
In his testimony, Moesh explained that he told his em-
ployees that he could not afford to pay union overtime
rates so that if "we had to go union" he would have to hire
additional personnel to avoid overtime. In any event, ac-
cording to Moesh, two of the employees, Benton and
Schacht, had complained about the necessity for working
on Saturday. After the election, Moesh testified:
I just cut them to 40 hours a week, which was nor-
mal, and our freight was down so I worked them 40
hours a week. I didn't guarantee - the way it was be-
fore, the people we guaranteed, I guaranteed so
much a week whether they had freight or not. Then
they didn't want to go that route, we went the other.
If it was going to go union, you can't guarantee so
much if you don't have any freight.
At another point in the record Moesh testified that he had
told the men he would give them employment for 47-1/2
hours a week and pay time and a half for hours over 40.
Moesh testified that Schacht was doing a good job and
because of this he raised Schacht to $230 a week. This
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was accomplished, according to Moesh, by permitting
Schacht to work enough hours beyond 40 each week to
bring his earnings to the higher figure. According to
Moesh, he told Schacht "I'll pay you more money, but I
want to run my own business."
Conclusions
I find that Schacht was given a wage increase rather
than an opportunity to enhance his earnings by working
longer hours. Had it been otherwise, had he before the
date of increase been working a 40-hour week, his weekly
wage would have risen from $190 to slightly more than
$243 rather than the $230 paid to him. If Moesh meant to
convey by his testimony that Schacht's weekly hours rose
from 40 to 47-1/2 (1 think that Moesh was vague about
this), I do not credit him. I also find that Moesh gave this
increase because he feared that Schacht might be or might
become a union supporter. As Moesh testified in this con-
nection, he wanted to run his own business.
The testimony of Barth attributing to Moesh a threat of
lessened employment if the Union won the election is un-
denied and is credited. So too is that of Brewster that
Moesh offered him a raise in such a context as to make
this bribe to vote against the Union and expressed a
desire to do the same for Barth.
In the well-founded belief that Phillips no longer
desired a union, Moesh confided to Phillips his purpose
to subject Barth to a layoff, to cut the hours and thus the
earnings of all the men to induce them to quit and in any
event as retribution for their vote for the Union, and
directed Phillips to impose so much work on Brewster
and Barth (when he returned from layoff) that they would
seek employment elsewhere.
A consideration of all the evidence leads me to the con-
clusion that from the time when it first became apparent
to Moesh that the Union was interested in organizing his
employees, he took unlawful steps to frustrate any possi-
bility of its success. He gave a pay raise to Schacht in an
attempt to enlist his support against the Union. He
questioned Barth and Phillips at the time of their hire
about their attitude toward a union, told Brewster and
Phillips that he could not afford a union, and said to them
and to Barth that if one were forced upon him he would
have to make some rearrangement of his business that
would affect their opportunity for employment. On the
day before the election he offered higher wages to
Brewster and expressed a willingness to make a similar
arrangement with Barth if Brewster would vote against
the Union and persuade Barth to do likewise. After the
election he cut hours of work in obvious retaliation
against the employees and laid off Barth in the hope that
Barth would quit for other employment. I do not credit
the testimony of Moesh that he had no need for Barth's
services at the time and find significance in the circum-
stance that because of the amount of work to be per-
formed Phillips worked extended overtime during the
first week of Barth's layoff. The testimony of Deegan
concerning the number of cars received at the warehouse
during the period when Barth was not permitted to work
does not persuade that there was any significant lessening
in the amount of work to be done.
The contention rather vaguely raised that the cut in
hours was necessitated because the Union would have
required overtime rates in excess of those the Respond-
ent was able to pay is unsupported. Moesh told Phillips
that he was already paying "union wages" and in any
event he did not discuss with the Union what wage rates
the Union might be willing to agree to.
I find that by questioning employees about their
feelings toward a union, by giving a wage raise to Schacht
and by promising one to Brewster in an attempt to get
them to oppose the Union, and by instructing Phillips to
work Brewster and Barth so hard that they would quit,
the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
By imposing a layoff on Barth in the hope that the
Respondent would thus get rid of one who supported the
Union, the Respondent has discriminated in regard to
Barth's tenure of employment in an effort to discourage
membership in and support for the Union and has thus
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
By cutting the hours of employees in the bargaining
unit' from 47-1/2 to 40 to retaliate against them because
of their vote for the Union and to induce them to quit, the
Respondent has discriminated in regard to their condi-
tions of employment to discourage membership in and
support for the Union and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(3) of
the Act.
By changing the work hours of employees thus sub-
stantially affecting their earnings without affording the
Union opportunity to bargain about this vital matter the
Respondent has refused to bargain with the statutory
representative of its employees and has thereby engaged
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section IiI,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
As the Respondent sharply cut the weekly earnings of
the employees in the bargaining unit and did so upon dis-
criminatory and retaliatory reasons, it will be recom-
mended that the Respondent be required to make each
such employee whole for the loss of earnings attributable
to the discrimination found. These calculations will start
for each employee with the weekly wage he was earning
at the time of the election and assume a continuation of
that wage until such time, if any, that, absent discrimina-
I note that in the representation proceeding culminating in the certifi-
cation of the Union as bargaining representative on September 23, the
bargaining unit is described as all employees at the Anchorage, Alaska,
operations, excluding professional employees, guards and supervisors as
defined in the Act As the election was by consent the unit must have been
agreed upon Other than a general denial of all the complaint's allegations
contained in Respondent's answer, there is nothing to suggest that the
Respondent should be relieved of its agreement in this particular No
evidence was offered in this connection I find that the unit described is
appropriate for purposes of collective bargainng
PUBLIX WAREHOUSE
tion, a reduction would have taken place. The amounts
resulting from these calculations shall bear interest calcu-
lated quarterly at the rate of 6 percent per annum. As
Walter J. Barth was laid off for about 2-1/2 weeks and
thereafter received a wage cut, he will be made whole for
the wage cut and for the deprivation of wages for the
period of the discriminatory layoff with interest at the
same rate.
Although it is clear that the Respondent put its new
wage and hour policy into effect almost immediately fol-
lowing the election and did so without consulting the
Union, whether it has at all times since refused to bargain
with the Union is less certain. In any event, as it is less
than a year since the Union was certified, the obligation
to bargain continues and it will be recommended that
upon the Union's request, the Respondent bargain with
it.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I reach the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and in an activity affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees at the Anchorage, Alaska, operation,
excluding professional employees , guards and super-
visors as defined in the Act constitute a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. The Union at all times material has been and now is
the exclusive bargaining representative of employees in
the appropriate unit.
5. By instituting wage and hour changes affecting em-
ployees in the appropriate unit without giving the Union
opportunity to bargain about such changes the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8 (a)(5) of the Act.
6. By questioning employees about their union senti-
ments, by threatening to close the warehouse or to sub-
contract work should the employees vote in favor of the
Union , by promising and granting wage increases in an at-
tempt to dilute interest in the Union and to recruit opposi-
tion to the Union , and by imposing onerous working con-
ditions upon Barth and Brewster because they supported
the Union , the Respondent has interfered with, restrined,
and coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act and has thereby engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. By the layoff of Walter J. Barth and by cutting the
weekly earnings of the warehouse employees the Re-
spondent has discriminated in regard to the tenure of
employment and conditions of employment of Barth and
the other employees to discourage membership in the
Union . The Respondent has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(3)
of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
RECOMMENDED ORDER
687
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 Publix Warehouse, Anchorage,
Alaska, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with the closing of the
warehouse or curtailment of operations should they sup-
port the Union, questioning employees in a coercive con-
text about their sentiments toward a union , granting and
promising wage increases in an attempt to dilute interest
in the Union and to recruit opposition to the Union, im-
posing onerous working conditions upon union suppor-
ters in an attempt to force them to quit, cutting wages and
hours in retaliation against employees for having sup-
ported the Union, or in any other manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Teamsters, Chauffeurs, and Helpers Local
959, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activi-
ties except to the extent that such right may be affected
by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized by
Section 8(a)(3) of the Act.
(b) Laying off Walter J. Barth or any other employee
with a purpose to discourage membership in, support for,
or activity in behalf of the Union or any other labor or-
ganization.
2. Take the following affirmative action which I find
necessary to effectuate the purposes of the Act:
(a) Upon request bargain with the Union in respect to
wages, hours, and other terms and conditions of employ-
ment and if an understanding is reached reduce it to writ-
ing and sign it.
(b) Make Walter J. Barth whole for the loss of earnings
attributable to his discriminatory layoff and make Barth
and the other warehouse employees whole for loss of
earnings attributable to the cut in wages and hours ef-
fected immediately following the election in the manner
and to the extent outlined in that section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timec6rds, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
to,' employees under the terms of this Recommended
Order.
(d) Post at its warehouse in Anchorage, Alaska, copies
of the attached notice marked "Appendix."2 Copies of
said notice , to be furnished by the Regional Director for
Region 19, after being duly signed by an authorized
respresentative, shall be posted by the Respondent, im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that such notices are not al-
tered, defaced, or covered by other material.
(e) Notify the Regional Director for Region 19, Seat-
tle, Washington, in writing, within 20 days from the
receipt of this Decision, what steps have been taken to
comply herewith.3
In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for Re-
gion 19, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT threaten to close the warehouse or
to subcontract any part of our operations because of
your interest in a union , or question you about your
union sentiments , or grant or promise wage increases
if you will oppose a union , or impose harder working
conditions on union supporters , or cut wages and
hours because you have voted for a union , or in any
other manner interfere with , restrain , or coerce you
in the exercise of your right to self-organization, to
form labor organizations, to join or assist Teamsters,
Chauffeurs, and Helpers Local 959, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Inde-
pendent , or any other labor organization , to bargain
collectively through representatives of your own
choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
such activities except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of employ-
ment as authorized by Section 8(a)(3) of the Act.
WE WILL NOT lay off an employee because he has
supported a union and we will pay Walter J. Barth
the wages he would have earned in his employment
during the period in September and October 1966
when he was laid off.
WE WILL make all of the employees in the bargain-
ing unit whole for wages lost because of our uni-
lateral and discriminatory cut in hours effected after
the vote for the above-named Union in September
1966.
WE WILL, upon request of the Union named
above, bargain with it in respect to all warehouse em-
ployees, excluding professional employees, guards
and supervisors and, if an understanding is reached
reduce it to writing and sign it.
Dated By
PUBLIX WAREHOUSE
(Employer)
(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, 327 Logan
Building, 500 Union Street , Seattle , Washington 98101,
Telephone 583-4583.