R & M Electric Supply Co.

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 603 (N.L.R.B. 1972)

R & M ELECTRIC SUPPLY CO 603
Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose
Scavelh and Zoera Hatgis , Copartners, d/b/a R &
M Electric Supply Co and Local 1922, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO Case 29-CA-2299
November 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 7, 1971, Trial Examiner George Turitz
issued the attached Decision in this proceeding
Thereafter, Respondent filed exceptions and a
supporting brief , and the General Counsel filed
cross-exceptions and a supporting brief Respondent
filed a brief in answer to the General Counsel 's cross-
exceptions 1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the Trial
Examiner 's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings , and conclusions ,2 as modified
herein
Aside from unit consideration , which for reasons
stated infra we need not reach , the Trial Examiner
indicated that he would find an 8 (a)(5) violation
predicated upon the Respondent's refusal to bargain
with the Union absent a Board-conducted election
We disagree
As we noted in Linden Lumber,3 an employer is not
required by the Act to recognize and bargain with a
union solely upon the strength of its assertion that it
represents a majority of the employees involved,
notwithstanding that the union predicates its asser-
tion upon an adequate showing of signed authoriza-
tion cards Rather , we have held that an employer
may, in the face of a union demand for recognition,
insist that a question concerning representation be
resolved by means of a Board-conducted election,
absent agreement between the parties on an alterna-
tive means for resolving the question or misconduct
on the part of an employer which is of such a
character as to have a lingering and distorting effect
on any future election On the other hand, if an
employer rejects the foregoing alternative and
unilaterally undertakes to determine a union's
majority or minority status by means of a poll, under
conditions of his own choosing, the employer cannot
thereafter disclaim the results simply because he
finds them distasteful 4
Applying the above criteria to the facts of the
instant case, we note that the Respondent's interro-
gations of only two out of approximately nine
employees, neither rises to the level of a poll which
revealed majority status, as in Nation-Wide Plastics,
nor, even when considered together with one threat
of futility concerning union organization, was of
such character as to justify a bargaining order under
our Gissel standards We shall therefore dismiss the
8(a)(5) allegation of the complaint
The Trial Examiner found, and we agree, that the
Respondent violated Section 8(a)(1) of the Act by
telling employees, in effect, that their strike and other
concerted activities were futile because the Respon-
dent would not bargain collectively irrespective of
the employees' choice in the matter We do not,
however, agree with the Trial Examiner that this is a
case in which, because only one of the severally
alleged violations of the Act was found to be proved,
we should withhold the issuance of a remedial order
We regard as a serious violation of the Act the
Respondent's coercive attempt to impress upon its
employees the futility of continuing to exercise rights
guaranteed to them by Section 7 of the Act
Accordingly, we find that it will effectuate the
purposes of the Act to issue our usual remedial order
for the violation found
CONCLUSIONS OF LAW
1 Respondent is engaged in commerce within the
meaning of the Act
2 Local 1922, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3 By telling employees that their strike and other
concerted activities were futile because the Respon-
dent would not bargain collectively irrespective of
the employees' choice in the matter, the Respondent
has engaged in unfair labor practices defined in
Section 8(a)(1) of the Act
i The Employers request for oral argument is denied since in our
opinion the record including the transcript exhibits and briefs adequately
presents the issues and position of the parties
2 In the absence of exceptions thereto we adopt pro forma the Trial
Examiners dismissal of 8(a)(1) allegations concerning alleged threats by
William Velys
3 Linden Lumber Division Summer & Co 190 NLRB No 116
4 Nation Wide Plastics Co Inc 197 NLRB No 136, Sullivan Electric
Company 199 NLRB No 97 Fred Snow Harold Snow and Tom Snow d/b/a
Snow & Sons 134 NLRB 709
5 The Trial Examiner found that notwithstanding the absence of
Struksnes safeguards Respondent s interrogations of unit employees did not
violate Section 8(a)(1) of the Act in the absence of exceptions, we adopt
that finding pro forma However our pro forma adoption of this finding is
not to be taken as any indication that we condone such conduct See
Struksnes Construction Co Inc 165 NLRB 1062
200 NLRB No 59
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose
Scavelli and Zoera Hatgis, Copartners, d/b/a R & M
Electric Supply Co, Riverhead, New York, its
officers, agents, successors, and assigns, shall
I Cease and desist from
(a) Telling employees that their strike and other
concerted activities are futile because the Respon-
dent will not bargain collectively regardless of the
employees' choice in the matter
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed under Section 7 of the Act
2 Take the following affirmative action which in
our judgment appears necessary and appropriate to
effectuate the purposes and policies of the Act
(a) Post at its premises in Riverhead, New York,
copies of the attached notice marked "Appendix "6
Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt
thereof, and be 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith
IT IS FURTHER ORDERED that all allegations of the
complaint which charge the Respondent with unfair
labor practices other than those found herein be, and
the same hereby are, dismissed
MEMBER FANNING dissenting
In complete disregard of the Trial Examiner's
finding that Mike Velys Jr, Respondent's principal
managing partner, knew that a majority of his
employees had selected the Union as their collective-
bargaining representative, my colleagues hold that
Respondent should not be held in violation of the
Act for refusing to recognize and bargain with the
Union This holding is directly contrary to the
Supreme Court's recent reaffirmation of its holding
in United Mine Workers of America v Arkansas Oak
Flooring Co, 351 U S 62, that in the absence of a
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading Posted by order of
the National Labor Relations Board shall read Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an order of the
bona fide dispute as to the existence of the required
majority employee support an employer violates
8(a)(5) when it refuses to bargain with the union
selected by its employees 7 It also runs counter to
recent decisions of the Board in Sullivan Electric
Company, 199 NLRB No 97, and Pacific Abrasive
Supply Co, a subsidiary of the Carborundum Company,
182 NLRB 329
My colleagues choose to dismiss the complaint
because Respondent interrogated only two out of
nine employees as to their desires concerning
representation , finding that such interrogation "nei-
ther rises to the level of a poll which revealed
majority status, as in Nation - Wide Plastics, nor, even
when considered together with one threat of futility
concerning union organization , was of such charac-
ter as to justify a bargaining order under our Gissel
standards "8 This narrow focus on whether or not
Respondent interrogated more or less than a majori-
ty of unit employees effectively precludes realistic
application of the test enunciated by the Supreme
Court in the United Mine Workers case, namely that
whenever the union representative has presented
convincing evidence of majority support , the bar-
gaining obligation arises
The attempted distinction between "union-prof-
fered" evidence of majority status and evidence of
such status developed by the employer 's independent
solicitation or investigation simply will not wash
Under that test , an employer is not obligated to
bargain if the union representative comes into his
office with all the employees in the unit and asks
them to sign authorization cards in the employer's
presence , if the employer remains silent But if, in
such circumstances , the employer asks his employees
if they really meant to designate the union as their
representative by such action, and they respond
affirmatively , he is obligated to recognize the union I
do not believe the existence of the bargaining
obligation can be made to depend on the results of
such game playing Nor has the Supreme Court made
the distinction made by my colleagues Indeed the
Court explicitly rejected it, stating that "it was early
recognized that an employer had a duty to bargain
whenever the union representative presented 'con-
vincing evidence of majority support ' "9 and that a
union "could establish majority status by other
means under unfair labor practice provision of
Section 8 (a)(5)-by showing convincing support, for
instance, by a union -called strike or strike vote, or, as
here, by possession of cards signed by a majority of
National Labor Relations Board
N L R B v Gissel Packing Co Inc 395 U S 575, 595-600
8 Par 6 of the decision supra
9 Ibid at page 596
R & M ELECTRIC SUPPLY CO 605
the employees authorizing the union to represent
them for collective bargaining purposes "10
Clearly the test laid down by the Supreme Court
has been satisfied in this case The Umon presented
Mike Velys with authorization cards signed by nine
of his employees Velys was familiar with his
employees' signatures He carefully examined the
cards and photocopied them He showed the cards to
his brother and copartner who admitted that the
signatures appeared genuine At the invitation of
Faccio, the union representative, Mike Velys asked
two employees who were present whether they had
signed of their own free will When they said they
had, he asked them if Faccio had solicited them
They replied that they had sought out Faccio Velys
thereupon said "All right, come back in a week "
When Faccio insisted upon immediate recognition,
Velys became indignant, whereupon Faccio threat-
ened an immediate strike When Velys refused to be
dictated to, Faccio left and called the employees out
on strike, all the card signers joined the strike, and
appeared on the picket line Respondent never
questioned the Union's majority status, but later
attempted to persuade the Union to go to an election
in a different unit 11 On these facts there can be no
question that the Respondent was convinced of the
Union's majority status
Even applying the majority's test, it appears that
the Respondent's independent investigation demon-
strated to its satisfaction that the Union enjoyed the
support of a majority of its employees Thus Velys,
though he could have refused to examine the cards
and filed a petition for an election to resolve the
question concerning representation,12 thoroughly
examined the cards, as did his brother who conceded
that the signatures were genuine Velys photocopied
the cards for his own records, and queried two
employees as to whether they had signed the cards
willingly and as to whether the Union had initiated
the organizing drive When told that the employees
had taken the initiative, Velys, in apparent acknowl-
edgement of a fait accompli, said to Faccio, "All right
come back in a week " When Faccio insisted upon
immediate recognition, though he indicated he was
willing to defer negotiations for a contract to a later
time, Velys became indignant and stated he would
rather close the place or burn it down When the
employees followed Faccio out on strike, Velys
remonstrated with them that they didn't know what
they were doing, that they should not listen to this
guy, that if we even had a problem we could work it
out, and that they didn't need this guy to talk for
them Whether or not these remarks be deemed to be
coercive, is, I think, unnecessary to decide 13 Clearly,
however, they are the remarks of a man who has
satisfied himself that his employees had chosen
union representation against his wishes In these
circumstances, my colleagues clutch at straws to find
that Respondent did not independently uncover facts
demonstrating majority support for the Union
merely because Velys stopped interrogating his
employees after the first two employees assured him
that the employees had brought the Union in
On the basis of the entire record in this case, I find
that in support of its demand for recognition the
Union presented Velys with convincing evidence of
its majority status I further find, in agreement with
the Trial Examiner, that Respondent refused to
recognize and bargain with the Union, not because
of any doubts as to the Union's majority status, but
solely to test the appropriateness of the unit sought
by the Union As it is now well established that an
employer refuses to bargain on such grounds at his
peril,14 and as I am satisfied that the unit is
appropriate for purposes of collective bargaining, I
find that Respondent violated Section 8(a)(5) in
refusing to recognize and bargain with the Union
I therefore dissent from my colleagues' refusal to
issue a bargaining order in this case
10 Ibid at page 597 The Court went on to say We see no reason to
reject this approach to bargaining obligations now 395 US at 598
11 The Trial Examiner agreed with Respondents unit contentions and
therefore absolved it of an obligation to bargain upon the Union s demand
My colleagues do not affirm his unit findings I believe the unit sought by
the Union is as alleged in the complaint appropriate for the purposes of
collective bargaining That unit is essentially an empioyerwide unit except
for the exclusion of office clerical employees Although it includes outside
salesmen who normally are excluded from inside units there is only one
such salesman and his exclusion would leave him without the opportunity
to engage in collective bargaining Moreover he seeks inclusion in the unit
With respect to the inclusion of buyer-price quote men, whom the Trial
Examiner would exclude they and the counter men enjoy similar rates of
pay and the countermen and warehousemen are in line of progression to
buyer price quote positions All employees in the unit enjoy the same fringe
benefits and work under common overall supervision These factors plus
the small size of the unit and the fact that no other union seeks to represent
these employees on another basis persuade me as to the appropriateness of
the claims to unit
12 Bill Pierre Ford Inc 181 NLRB 929
13 Velys remarks may have been an emotional outburst as the Trial
Examiner found but the import of that outburst is clearly sounded in the
later remarks to strikers of Frank Scavelli properly found by the Trial
Examiner to be violative of Section 8(a)(1) why don t you guys quit this
stupid stuff you know you are never going to get the Umon here Mike s
never going to go to the Union
14 See cases cited by the Trial Examiner and Aaron Brothers Company of
California 158 NLRB 1077 And see the representation made by the Board
to the Supreme Court in the Gissel case, that an employer could not refuse
recognition initially because of the appropriateness of the unit and then
later claim as an afterthought that he doubted the union s strength Gissel
supra at 594
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees that their strike
and other concerted activities are futile because
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we will not bargain collectively regardless of
their choice in the matter
WE WILL NOT in any other like or related
manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-
organization, to form labor organizations, 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
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
the above-named or any other labor organization
MIKE VELYS, SR, MIKE
VELYS, JR, Ross VELYS,
ROSE SCAVELLI AND
ZOERA HATGIS,
COPARTNERS, D/B/A R
& M ELECTRIC SUPPLY
Co
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
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
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11241, Telephone
212-596-3535
Respondent were represented by their respective counsel
Respondent has submitted a brief
Upon the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent , Mike Velys, Sr, Mike Velys, Jr, Ross
Velys, Rose Scavelli, and Zoera Hatgis are partners doing
business under the name R & M Electric Supply Co Its
office and place of business is located at Riverhead, New
York, where it is engaged in the sale and distribution at
wholesale and retail of electrical heating equipment,
lighting fixtures , supplies, materials, and appliances, and
related products In the course of its operations Respon-
dent annually purchases and causes to be transported and
delivered to its Riverhead plant, directly from States of the
United States other than New York , supplies, materials,
and equipment valued at in excess of $50,000 I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the National Labor
Relations Act, as amended ("the Act")
II THE LABOR ORGANIZATION INVOLVED
Local 1922, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were whether
the unit covered by the Union's request and alleged in the
complaint was a basically appropriate unit in view of the
inclusion of buyers-price-quote men, outside salesmen, and
an alleged supervisor, and the exclusion of bookkeepers,
and whether Respondent's refusal to recognize the Union
upon presentation of cards was violative of the Act where
no issue had been raised as to majority
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TuRiTZ, Trial Examiner Upon a charge filed by
Local 1922, International Brotherhood of Electrical Work-
ers, AFL-CIO ("the Union") on March 4, 1971, and that
day served upon Mike Velys, Sr, Mike Velys, Jr, Ross
Velys, Rose Scavelli, and Zoerai Hatgis, Copartners,
d/b/a R & M Electric Supply Co ("Respondent" and at
times, "the Company"), the General Counsel of the
National Labor Relations Board ("the Board"), through
the Regional Director for Region 29, on April 22, 1971,
issued a complaint and notice of hearing which was duly
served upon Respondent Respondent filed its answer in
which it denied all allegations of unfair labor practices A
hearing on the complaint was held before me at Riverhead,
New York, on June 14 through June 16 and July 12
through 14, 1971, at which the General Counsel and
1 I have amended this name on my own motion to reflect the proper
spelling of this name
A The Request for Recognition Interference,
Restraint and Coercion
Shortly prior to March 1, 1971,2 a number of Respon-
dent's employees asked George Lohr, one of Respondent's
buyers-price-quote men, to find out about a union He did
some telephoning and on March 1 a meeting was held at
Lohr's house which was attended by Joseph Faicco,
treasurer and business agent of the Union, Peter Ray, a
member of its executive board, and by the following
employees of Respondent in addition to Lohr Alex
Washick, a buyer-puce-quote man, James Renner, an
outside salesman, Robert Fabrykewicz, a counterman,
Sam Grant, Gerado Cajigas, and Warren Langhorne,
warehousemen-drivers, and Walter Ganko, an irregular
part-time employee All eight signed applications for
membership in the Union, and Faicco gave one of the
employees cards for two prospects not present, namely
Michael Tycz, who worked in the warehouse and at the
2 All dates referred to in this Decision were in 1971 unless otherwise
stated
R & M ELECTRIC SUPPLY CO 607
counter, and Stuart Oldnn, a bu}er-price-quote man The
men voted not to file a petition but to present their cards to
Respondent and demand immediate recognition They
elected Lohr and Washick as committeemen to accompany
Faicco, and they authorized Faicco and the committee to
call them out on strike if immediate recognition was
refused
On March 2, a Tuesday, which was Respondent's busiest
day, Faicco and Ray went to Respondent's premises They
introduced themselves as representatives of the Union to
Mike Velys, Jr, Respondent's principal managing partner,
and requested the presence of Lohr and Washick Velys3
said that they were busy and asked what Faicco wanted At
the same time he started to escort Faicco by the arm out to
the platform Washick went along, Lohr came out a few
minutes later
Out on the platform Faicco handed Velys his business
card, told him that the Union represented a majority of the
employees, and requested recognition Velys, pleading that
he was busy and that he would have to speak to counsel,
asked Faicco to return in a week On Faicco's insistence
that he could not wait, Velys said that he did not know that
the Union represented the employees Faicco offered to
prove it and, challenged by Velys, told him to ask Lohr and
Washick Velys countered that that was only two, whereup-
on Faicco handed him the nine signed cards,4 which Velys
examined carefully and then, with Faicco's permission,
photocopied Velys was familiar with his employees'
signatures, since occasionally he paid them personally and
got their signatures on the payroll Velys' brother and
copartner, Ross, came in and, shown the cards, admitted
that the signatures appeared to be authentic Velys asked
Lohr and Washick whether they had signed of their own
free will, and when they said that they had, he asked
whether Faicco had solicited them They replied that they
had sought out Faicco Velys then said, "All right, come
back in a week, and then maybe I'll talk to you at that
tune " He turned to Lohr and said, "Don't you think I
deserve a week after you've been with me for 10 years?"
Faicco said that he was not asking to negotiate a contract
at that time, but he insisted that the Union be recognized
that very day He told Velys to telephone his lawyer and
have him come right down, offering to wait, and he
threatened to call the men out on strike Velys became
upset and exclaimed, "You're not going to tell me what to
do Who do you think you are, God?" and he said that he
would rather close the place or burn it down -5 At no time
during the conversation, after examining the cards and
questioning Lohr and Washick, did Velys state, or indicate
in any way, that he doubted the Union's majority or that
he had any question about the appropriateness of the unit
or the inclusion therein of any category of individual
employed
Faicco insisted on recognition that day, but Velys
refused and finally told him to leave Faicco, after warning
Velys that the men would follow him if he left, said to Lohr
and Washick, "Let's go " Those two walked out Washick
3 Where the name Velys appears without Christian name it will refer to
Mike Velys Jr
4 Tycz had signed that day
5 At one point Lohr testified that Velys said that he would burn the place
down before I get a union I have not credited that testimony Nor have I
called to Fabrykewicz, "Bob, we are going to walk out "
All present who had signed cards promptly walked out
Velys called to them, "Hey, where are you going9 We got
work to do You guys don't know what you're doing Don't
be listening to this guy If you guys ever had a problem we
were able to work it out What do you need this guy to
come and talk for you for9"
Ganko arrived later that afternoon and joined the picket
line Renner was not at the plant on March 2 but joined the
picketing on March 3 The Union filed the charge on
March 4
On March 3 Frank Scavelli, husband of Rose Scavelli, a
partner, drove up to several of the picketing employees and
said "Why don't you guys quit this stupid stuff, you know,
you're never going to get the Union here Mike's never
going to go to the Union Why don't you just come back to
work" 6
Washick testified that during the 1st or 2d week of the
strike William Velys, a son of Michael Velys who was
about 21 years of age and was employed primarily as an
outside salesman, approached him and Lohr while they
were picketing and said that they were wasting their time
and should return to work since the Company would never
go union, that the employees could have their "own
union," but his father would never go union Lohr testified
to the same effect William Velys denied making the
statements attributed to him by Lohr and Washick
Concluding findings as to interference, restraint,
and coercion
1 Velys exclamation that he would burn or close up his
place was in response to Faicco's peremptory instruction to
him to get his lawyer down immediately He had not said
that he would not bargain, he had asked for a week's time
to consult counsel In those circumstances his exclamation
would not be interpreted by the employees as a threat to
close up before allowing the employees to bargain
collectively, it would seem, rather, to be an emotional
protest against what Velys considered Faicco's arrogance
in dictating to him that he have his lawyer rush down to
the plant forthwith and give an immediate answer As such
a protest would have no coercive tendency, I shall
recommend that paragraph 13 of the complaint be
dismissed
2 Velys' questioning of Lohr and Washick as to
whether they had signed the cards willingly did not have a
coercive thrust The photocopying of the cards indicated to
the employees that he was trying to ascertain his obligation
as to recognition, Faicco's consent must have been based
on that assumption Velys' questions as to the employees'
willingness were on their face plainly part of that effort
His question as to whether Faicco had initiated the contact
followed hard upon the other questions, and, in the
circumstances, appeared to be part of the same effort The
fact that Velys was obviously caught by surprise and
spontaneously asked the questions in the presence of the
credited Velys testimony that he commented that he would not be able to
manage in case of a strike and might have to close
6 Scavelli admitted asking Washick and several other sinkers to go back
to work and saying that any problems could be straightened out but he
testified that he did not recall making the other statements referred to
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two union officials makes evident that, notwithstanding the
absence of the safeguards set forth in Struksnes Construc-
tion Co, Inc, 165 NLRB 1062, Velys' interrogation of Lohr
and Washick did not tend to coerce the employees Cf
Pacific Abrasive Supply Co, a subsidiary of the Carborun-
dum Company, 182 NLRB No 48 I shall therefore
recommend dismissal of paragraph 12 of the complaint
` 3 William Velys had no supervisory authority and,
especially in view of his youth, there is no evidence that he
appeared to employees to be authorized to speak for his
father I shall therefore recommend dismissal of the
portions of the complaint based upon his statements
4 Scavelli in effect told Lohr and Washick that their
strike and other concerted activities were futile because
Respondent would not bargain collectively irrespective of
the employees' choice in the matter Such a warning by
employer is violative of the Act See Better Val-U Stores of
Mansfield, Inc, 161 NLRB 762, 763, enfd in relevant part
402 F 2d 491 (C A 2) The only question, therefore, is
whether Respondent is answerable for Scavelli's statement
Scavelli was Respondent's top outside salesman He was
out on the road all day Monday through Thursday and
half a day on Friday He spent Friday afternoon at the
office doing paper work connected with his sales work, and
making heating layouts for customers He took turns with
Michael and Ross Velys, the two managing partners, in
being at the plant on Saturday He did his usual paper
work on those occasions but was also in complete charge of
the establishment, and he directed employees in their work
of putting stock away and generally tidying up the
warehouse The employees thus saw little of Scavelli, but at
least half of what they saw was an individual taking the
place of the two managing partners as the person in overall
charge of the entire establishment As he was, in addition,
the husband of a partner, Respondent must have known
that he would be regarded by the employees as a "boss," as
Tycz credibly testified he regarded Scavelli Without
passing upon the question of whether Scavelli was in fact a
supervisor, I find that he was at least an apparent
supervisor and agent of Respondent Accordingly, I find
that by his remarks to Washick and Lohr Respondent
violated Section 8(a)(1) of the Act
B The Refusal To Bargain
I Unit
(a) General description of Respondent's operations
The nature of Respondent's business Respondent's retail
business was conducted over a counter and in a showroom
The wholesale customers were principally electrical con-
tractors and builders, but also included institutions,
industrial establishments, and hardware stores In some
instances wholesale customers submitted architect's plans
and requested "quotes" or bids on the electrical items
required In other cases they telephoned orders in or came
to Respondent's plant and purchased merchandise over the
counter However, Respondent had three outside salesmen
who called on customers and solicited orders, and they
brought in most of Respondent's business The record
contains no direct testimony as to the relative proportions
of the retail and wholesale business However, as most was
obtained by the outside salesmen, who did no retail
business , and as substantial additional business came in
over the telephone from charge customers, all of them
wholesale, and much of the counter business was whole-
sale, I find that Respondent's business was essentially
wholesale
The plant Respondent's premises consisted of a parking
lot and three buildings, known, respectively, as the main
building, the main warehouse, and the small, or old,
warehouse The great preponderance of work was per-
formed in the main building and the main warehouse The
main building had four areas, namely, a stockroom and
counter, a showroom, an office, and a loading dock The
stockroom counter area was at the end of the building
nearest the main warehouse, with which it was connected
by a covered passageway The showroom was at the other
end of the building, separated from the stockroom and
counter by the glass-enclosed office, but with a bypass
permitting direct access The loading dock faced the
parking lot and ran the full length of the building Across
the parking lot was the small warehouse The bulk of
Respondent's inventory was maintained in the main
warehouse, but very large items were kept in the old
warehouse, and plastic pipe and related conduit items were
kept in a stockade in a corner of the property Respondent
maintained in the stockroom-counter area smaller stocks
of many of the articles kept in the main warehouse
Retail business Whether purchasing at the counter or in
the showroom, retail customers paid cash and they usually
carried out their purchases The showroom was devoted
principally to lighting fixtures, of which over 1,000 were on
display, but tools, fans, stove hoods, high fidelity sound
equipment, and appliances were also handled there Most
showroom items were price marked, but many were not In
any event sales were usually made by showroom personnel,
and they wrote up complete invoices, including prices
Retail business in other items, such as wire, wiring devices,
switches and anything else Respondent carried, was
handled at the counter The purchased items were usually
obtained right at the counter or in the stockroom, but
sometimes, especially if the stockroom inventory happened
to be low, in the main warehouse The person waiting on
the customer listed the items, with accurate identification,
which included manufacturers' parts numbers, on an
invoice and packed them While one or two employees
were sufficiently knowledgeable to ascertain and insert the
prices, the more usual procedure was to submit the invoice
to the buyer-price-quote man or men who had charge of
the respective types of merchandise covered by the invoice
They inserted the appropriate unit prices and returned the
invoice to the person who had made the sale The latter
thereupon did the necessary multiplying and additionn
-"extending" the invoice-or had one of the bookkeep-
ers do it,7 collected the money, and handed the purchased
articles to the customer
Wholesale business Much-probably most-counter
7 Frequently two other women members of the Velys family who
worked primarily in the showroom also extended invoices
R & M ELECTRIC SUPPLY CO 609
business was with wholesale customers These normally
had established credit with Respondent, a fact indicated by
a nameplate in a file maintained by Respondent The
person waiting on a wholesale customer obtained the
purchased items from the stockroom or, quite frequently,
especially because of the large quantities involved, from
the main warehouse He listed them on an invoice, with
accurate identification, packed them, and handed them to
the customer When the purchases were bulky, they were
loaded on the customer's vehicle The man making the sale
placed the invoice in the drawer for charge customers
Most wholesale orders came in over the phone, either
directly from customers or from one of Respondent's three
outside salesmen In addition Respondent submitted bids
for big jobs, usually on the basis of architect's plans
Respondent divided the territory it served into five specific
delivery zones, a local zone and four others Local
deliveries were made at various times Regular deliveries to
each of the other zones were made on a specified day of
each week The person taking the order made up an invoice
which indicated the customer's name and address and
listed the items ordered, with accurate identification, and
placed the invoice in the appropriate one of five "in"
baskets, each for a particular zone, which were kept on the
workbench in the stockroom
Deliveries All employees were familiar with the regular
weekly delivery day for each zone From time to time on
that day an employee would take an order from the "in"
basket for the day's delivery zones and obtain those items
which were kept in the area where he worked Thus, a
counterman would handle items to be drawn from the
stockroom or the counter, and a warehouseman would
handle items that had to be drawn from the warehouses or
stockade The employee would assemble the purchased
items near the loading dock, labeling the pile with the
customer's name and address, and would indicate on the
invoice which articles were being shipped and which were
unavailable and therefore had to be "back-ordered," i e ,
procured by Respondent and shipped at a later date If the
order could not be completed in this manner with stock
from his area, he would replace the invoice in the "in"
basket, and an employee working in another area would
eventually pick it up and add the remaining articles to the
customer's order near the loading dock The employee who
completed the filling of the order placed the invoice in the
"out" basket for the zone involved
Pricing and Billing After the truck had left the premises,
the invoices in the "out" basket were brought to Velys,9
who examined them with a view of keeping abreast of how
various lines of merchandise were moving and also to note
the extent of "back-ordering " Excessive back-ordering of
particular items could indicate that the buyer-price-quote
man for those items had not maintained a sufficient
inventory Velys then handed the invoices to Washick, the
least senior buyer-price-quote man, who entered each back
order in the back-order book for the type of merchandise
involved He next inserted on the invoice the unit prices for
each article in his area of responsibility and handed the
invoice to one of the other two buyer-price-quote men, and
they in turn inserted the unit prices for their areas of
responsibility When everything had been priced, the
invoices were handed to the bookkeepers, who computed
sales tax, if any, extended and totaled the invoices, and
made the necessary bookkeeping and ledger entries for
billing
Purchasing was carried on by the three buyer-price-quote
men, each of whom had a defined group of products as his
responsibility This phase of Respondent's operations will
be described in more detail later in this Decision
(b) Categories of employees and contentions of the
parties
Respondent did not have formal employee classifica-
tions, but employees were assigned primary functions as
follows driver-warehousemen, counterman, buyer-price-
quote men, bookkeepers, cleaning woman or porter, and
outside salesmen All enjoyed the same fringe benefits
Respondent contends that Michael Tycz was warehouse
manager and a supervisor, the General Counsel contends
that he was not a supervisor Both parties agree that the
unit included two countermen, three warehousemen-driv-
ers, and one cleaning woman or porter,i° that it excluded
guards, watchmen and supervisors, and that Walter Ganko
was an irregular part-time employee, not in any unit The
General Counsel contends that it also included one outside
salesman, three buyer-price-quote men, and Tycz, and that
it excluded the bookkeepers Respondent contends that it
excluded the outside salesmen and buyer-price-quote men,
but included the two bookkeepers
The General Counsel also contends that the following
were excluded from the unit as individuals employed by a
parent or spouse Frank Scavelli, an outside salesman, who
was the husband of Rose Scavelli, a partner, William
Velys, an outside salesman who was a son of Michael
Velys, Jr, a partner, Anna Velys, daughter of Michael
Velys, a partner, and Theodora Velys, wife of Ross Velys,
a partner The General Counsel also takes the position that
Scavelli was a supervisor Respondent contends that Frank
Scavelli was not a supervisor and that his wife, Rose, was
only a minor partner, not active in the business, and that
Scavelli was therefore in any unit which included outside
salesmen Respondent declined to stipulate as to the
inclusion or exclusion of the other members of the Velys
family referred to, and has not made its position clear,
except to the following extent (a) Respondent made an
offer of proof, which was rejected, to the effect that Velys
told his attorney that he was agreeable to an election, but
that his son, William, and his brother-in-law, Scavelli, were
in the unit and should be allowed to vote, and, further, that
Respondent's attorney on March 19 suggested to the
Union that there be an election and in that connection
discussed the possibility of members of the Velys family
being in the unit, and (b) Zoera Hatgis, one of the partners,
who worked in the showroom, testified that she considered
8 While the record is not clear it appears that the delivery trucks for the
most part started out from the loading dock in the afternoon However one
driver took his truck home with him at the end of the day and made
deliveries the next morning Those orders had to be assembled the day
before delivery
9 The charge invoices for counter sales were also brought to Velys
io For convenience I shall refer to this group as the basic unit
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herself the "right-hand man" of Lohr, the showroom
buyer, but at the same time admitted that, as a partner her
authority was superior to his
Finally, Respondent contends that one Costas Papaxe-
nopoulos, who first performed services at Respondent's
premises on March 1, was an employee of Respondent's,
within the unit, and the General Counsel contends that he
was not an employee of Respondent, and that in any event
his work was not such as to bring him within the unit
(c) Countermen, warehousemen-drivers, and porter
Besides Tycz, Respondent had two employees, Fabryk-
ewicz and Moranos, who worked the counter, and three,
Cagigas, Grant, and Langhorne, who worked as warehouse-
men-drivers 11 The description I have already given of the
procedure for assembling orders for delivery shows that the
integrated efforts of both counterman and warehousemen-
drivers were required I should add that the line of
demarcation between items which a counterman would
"pull" and which a warehouseman-driver would pull was
not always sharp, since so many items were kept in both
areas In addition the loading of trucks was frequently late,
and countermen were often called upon to lend a hand
Incoming merchandise had to be shelved in proper places,
and this was a task performed by both warehousemen and
countermen Finally, it was Respondent's policy to avoid,
to the extent possible, having counter customers wait, and
one warehousemen driver, Grant, had enough experience
to be familiar with the stock and he often waited on
customers at the counter On the other hand, Moranos, a
counterman, actively participated in the loading of trucks
It is plain from the foregoing that the countermen and
warehousemen-drivers, as agreed by both parties, necessar-
ily belonged in the same unit
The cleaning woman, or porter, worked about 5 hours
daily She did light cleaning in the office and showroom,
including the cleaning of fixtures on display In addition,
she unpacked, assembled, and hung fixtures, made up
orders of miniature bulbs, and was in charge of showing
customers the stock of pieces of glass which Respondent
maintained The other persons working in the showroom,
were Lohr, the buyer-price-quote man, Zoera Hatgis, a
partner, and Velys' daughter, Teddy While the cleaning
woman had little contact with the countermen and
warehousemen-drivers, much of her work and interests
were closely allied with theirs and she was appropriately in
the same unit
(d) Outside salesmen and buyer-price-quote men 12
I The outside salesmen
Three individuals worked as outside salesmen, namely,
Scavelli, the husband of Rose Scavelh, a partner, Velys'
son, William, and James Renner They solicited orders by
calling in person at customers' premises Renner and
Scavelli spent about 4 and 4-1/2 days, respectively, each
week in their outside solicitation Their remaining time was
spent at the office, for the most part doing paper work in
connection with their sales William Velys spent 2 or 3 days
in outside solicitation He and Scavelli also did layout work
for electric heat and lighting, and William Velys helped
assemble customers' orders As already described, Scavelli
was also at the plant every third Saturday, taking complete
charge of Respondent's entire operation at that time
When soliciting orders the salesmen traveled by compa-
ny-owned vehicles They carried with them a library of
price lists and catalogs At times customers had their
orders ready when the salesman arrived At other times he
went through their stock or "want books" and assisted the
customers in working up the orders Usually the salesman
telephoned the order in to the office, but sometimes he
wrote up the invoice and brought it in personally In either
case he did not normally price the articles ordered, that
was done by the price-quote men However, customers
sometimes requested "quotes" to enable them to make
estimates, and at other times requested bids When making
"quotes" the salesman usually quoted the prices listed on
the appropriate price sheets, when submitting "bids," he
deviated in order to meet competition 13 The salesmen had
authority to do this on their own, but if they had questions,
especially in the case of large bids, where a small markup
was needed to succeed, they got Velys' approval
On those occasions when they were in the plant the
salesmen would, occasionally, help out at the counter That
sometimes entailed their going to the stockroom or
warehouse for the articles purchased They also helped
assemble and load orders at times, but this was only with
respect to their own business, when they wanted to make
sure that the customer got prompt and accurate service
Scavelli's salary was $240 per week, Renner's $197 per
week, and William Velys' $2 20 per hour
2 Buyer-price-quote men
Respondent had three buyer-price-quote men, each
assigned a particular area of Respondent's merchandise in
which to do the buying, pricing and quoting Lohr handled
showroom items, Washick wire, pipe, and units for
electrical heat, and Oldrm distribution equipment, wiring
devices, and miscellaneous items Lohr spent about 90
percent of his time in the office, Oldrin virtually all and
Washick at least 75 percent
The buyers normally made their purchases from a
limited number of manufacturers having established
relations with Respondent Each buyer maintained a
suitable inventory of each item in his area of responsibili-
ty 14 To check inventory he frequently went into the
warehouse to make a visual inspection, assisted usually by
Tycz or Moranos, but sometimes by Grant When stock in
the item reached, or approached, the point where it could
be anticipated that it might become exhausted, additional
supplies were ordered to bring the stock up to a kind of
standard maximum level While more or less definite
concepts developed as to the minimum and maximum
11 Cagigas was not yet sufficiently experienced to go out on a truck alone used he word quote for competitive and noncompetitive offers
12 For convenience buyer price quote men will also be referred to at 14 In the case of the showroom not all items offered were kept in stock or
times as buyers and at times as price quote men on display many were sold by manufacturers catalogue
13 Not all witnesses made this distinction by the same semantics Some
R & M ELECTRIC SUPPLY CO 611
inventory of each item, these were not hard and fast, they
could be varied , depending on season, special demand, or
other factors Thus, if a buyer noticed that an item was
being back-ordered frequently, he would increase the usual
maximum inventory Also, when a buyer was back-
ordering a sold item which had not been on hand for
delivery, he frequently added to his order some replenish-
ment stock in other items not yet needed, in order to get
the advantage of better terms offered when certain
minimum quantities were purchased In the case of wire
and pipe most was purchased in large quantities, and
timing was governed by prices and anticipated price
changes as well as by anticipation of customers' need
In general suppliers' prices were set forth in printed lists
However , in some cases the buyers were able to negotiate
better prices and, in even more cases , more liberal terms of
payment These tasks were usually performed without
supervision , but Velys would from time to time suggest
further effort When the amount of purchase was so large
as to make payment possibly inconvenient, the buyer
checked with Velys before placing the order He also
checked with Velys if he wanted to place a "large" order
for something as to which he did not feel confident it could
be sold promptly What was "large" vaned with circum-
stances, but it had to be over $1,000
Oldrin's buying came to $400,000 per year Lohr's came
to about $300,000, and Washick, who had been a buyer
only for a few months, made purchases at about the same
rate as Lohr
Oldnn and Washick priced some articles in accordance
with price sheets furnished by manufacturers, and others
on the basis of a mark-up above cost to Respondent, the
markup varying in accordance with definitely fixed
quantities purchased by the customer Except for items
marked down because of disappointing appeal, Lohr
priced showroom articles on the basis of price sheets
furnished by the manufacturers In general there were, for
all three price-quote areas, three sets of prices or markups,
1 e , electrical contractors', building contractors', and retail,
increasing in that order 15 However, retail prices were
flexible, particularly in Lohr's showroom, where discounts
up to 20 percent were readily granted in the absence of
customer meekness With electrical supplies and materials
the retail customer had to "know what he was talking
about" to obtain a discount A larger degree of discretion
was exercised in connection with the quotations or bids
which price-quote men were called upon to make for big
jobs Quotations were usually submitted on the basis of the
price lists , but good customers were often quoted some-
what lower prices Bids were submitted with a view to
meeting whatever competition was expected Below some
sort of minimum markup the buyer would be sure to get
Vely's advance approval
Oldnn and Washick had worked up from warehouse and
counter work, Lohr started with Respondent as buyer-
price-quote man Oldrin was paid $190 per week, Lohr
$235 per week, and Washick $2 75 per hour, the same
wages he had been receiving before being transferred from
the counter
Concluding findings as to the outside salesmen
and buyer-price-quote men
While these individuals exercised much discretion, both
in buying and in billing , 16 their discretion was exercised
within fairly defined policies not developed by them, but
laid down by Respondent Thus, the inventory standards
were relatively static as to maximum and minimum, the
available suppliers were limited and identified , the buyer's
responsibility to seek favorable terms of payment was well
understood , as were the need to avoid overconunitting
Respondent 's credit and the policy of bidding the highest
price commensurate with a profit and a reasonable
expectation of getting the order The record is devoid of
evidence suggesting that any buyer participated in the
formulation , determination , or effectuation of policy with
respect to labor relations, or that his status was such as to
lead employees to believe that he had responsibilities in
that area, or that views he might express as to employee
relations represented Respondent's position For these
reasons I find that the buyer -price-quote men were
employees within the meaning of Section 2 (2) of the Act
See North Arkansas Electric Cooperative, Inc, 185 NLRB
No 83, enforcement denied, 446 F 2d 602 (C A 8)
The work of the buyer-price-quote men was markedly
different from that of the employees in the basic unit It is
true that they helped at the counter when it was overly
busy, and in that connection even had to perform the
manual work at drawing merchandise from the stockroom
or warehouse and packing it However , they spent little
time during the course of a weeic doing that, not enough to
make their job resemble that of the warehousemen or
countermen Even the partners pitched in to help when the
counter got busy It is also true that the price-quote men
priced retail invoices in the course of transactions being
handled by the countermen , which represented a degree of
functional integration However, that took a small part of
the time of either group of employees It will be recalled
that much counter business was wholesale, the pricing of
which was functionally separated from the counter sale
Moreover , the countermen spent a considerable amount of
their time in performance of their order filling duties As
visual checking of inventory was the sole responsibility of
the buyers, the fact that Tycz, Moranos, and, sometimes,
Grant, assisted them did not constitute true integration of
function Looking at the two groups on an over -all basis
the warehousemen-drivers and countermen did routine
work , including a substantial amount of physical labor,
whereas the buyer-price-quote men worked at their desks
in the office , performing services requiring the exercise of
considerable discretion and judgement Moreover, they
pledged Respondent' s credit in substantial amounts In
view of the marked difference in their interests , I find that
1s There is some evidence of a possible fourth price for wire a
carpetbagger s price applicable to a man who did electrical contracting as
a sideline usually from his home Also some poor payers were charged
higher prices at Velys specific direction and contractors were charged
higher prices for showroom items if instead of ordering from catalogues
they made substantial use of the showroom
16 Washick was new at the job and therefore worked under fairly close
supervision by Velys especially in his major buying orders However he
too exercised much discretion in his fillm buying which involved the
pledging of Respondent s credit in substantial amounts
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit including the buyer-price-quote men and the
employees in the basic unit would not be appropriate 17
The law is well settled that outside salesmen are normally
excluded from plant units in representation cases See
Taunton Supply Corp, 137 NLRB 221, 222 In the present
case an additional reason for their exclusion would be their
exercise of discretion in submitting competitive bids, an
important part of their work I find that a unit including
the outside salesmen and the employees in the basic unit
would not be appropriate
Although Renner and Scavelli, unlike the price-quote
men, spent little time at Respondent 's place of business,
the quoting and bidding part of their work was the same as
was performed by the latter Also, in their ordinary
solicitation of orders they checked customers' inventories
much as the buyers checked Respondent's inventories
Moreover , as Scavelli and William Velys were not
employees , only Renner was entitled to bargain collective-
ly, and he could not exercise that right in a one-man unit
As the outside salesmen had important interests in
common with the price -quote men , and as only one was
eligible to bargain collectively, I find that the outside
salesmen and the buyer-price-quote men constituted an
appropriate unit
(e) The bookkeepers
Respondent 's glass enclosed office was in two sections
separated from each other by a partial partition In the
larger section, nearer the entrance , were six desks , arranged
in two rows of six each Zoera Hatgis and Velys, both
partners, used the first pair, Lohr and Washick, two price-
quote men the second pair, and Oldrin, the third price-
quote man, used one of the last pair of desks The other
was used by Velys' daughter, Teddy, the outside salesmen,
and, occasionally, by manufacturers' representatives Back
of the partial partition were the two desks of the
bookkeepers
The bookkeepers did not work on Saturdays, but
otherwise their hours, vacation rights, and other fringe
benefits were the same as those of the employees in the
basic unit One was paid $3 20 per hour and the other
$240
The bookkeepers performed no manual labor They
made up the timecards and payroll, and called the
employees to the office to receive and sign for their pay
They took no dictation and did no letter writing, but they
did use their typewriters for writing checks One was in
charge of accounts receivable and the other of accounts
payable Making the necessary ledger and other bookkeep-
ing entries for these things and sending out or paying bills
were their basic jobs After wholesale shipments left the
plant, the invoices were examined by Velys, priced by the
price-quote men, and then extended and totaled, with sales
taxes added, by the bookkeepers Velys testified that some
20 to 25 times a day persons making sales at the counter
brought invoices to the bookkeepers for extending, either
because they were wholesale C 0 D sales or , apparently,
retail sales However, Washick testified credibly that while
countermen formerly did have the bookkeepers do their
extending , more recently this practice had been d iscour-
aged by Respondent since it interfered with the bookkeep-
ers' more important duties, and that the men usually did
their own extending I find that the amount of extending
performed by the bookkeepers at the request of counter-
men was not a substantial part of their duties The
bookkeepers performed many tasks which are frequently
part of the operation of a small office , such as receiving
and routing telephone calls, receiving and delivering
outside salesmen's messages , sorting and distributing mail,
furnishing customers credit applications and checking their
references, and purchasing office supplies Respondent
points to a number of situations where the bookkeepers'
work was directly integrated with that of countermen
and/or warehousemen , such as calling a bank to ascertain
whether sufficient funds were on hand to cover a check
proffered at the counter , having a counterman decipher his
illegible invoice , and having a warehouseman clarify
whether an invoiced item had been shipped or back-
ordered In addition , when office records were unclear as
to whether Respondent had received merchandise for
which it had been billed, one of the bookkeepers
sometimes got final, accurate , information as to delivery
from Tycz I find that the bookkeepers' work contacts with
employees in the basic unit were sporadic and minimal
Concluding findings as to the bookkeepers
The bookkeepers ' work was essentially office clerical
whereas that of the countermen, while partly clerical,
included an important amount of manual work , and that of
the warehousemen-drivers was almost exclusively manu-
al 18 It has long been Board policy to exclude office clerical
employees from units of manual workers. Distinguish
Charles Bruning Company, Inc, 126 NLRB 140, where
there was functional integration between the two groups
and, in addition , all parties requested the inclusion of the
office clericals Distinguish, also, Townley Metal and
Hardware Company, 151 NLRB 706, 709, where the Board
found "a high degree of functional integration" and there
had been a "long history of bargaining for all employees in
a single unit " Respondent has also cited a number of cases
involving retail , or quasiretail , establishments, which are
not applicable to Respondent 's operation , which was
essentially wholesale
I find that the bookkeepers would not appropriately be
included in the basic unit
There was a degree of functional integration in the work
of the bookkeepers and the price-quote men The book-
keepers extended and totaled the invoices priced by the
price-quote men, and the bookkeeper in charge of
accounts payable paid only those bills which had been ,
approved by the buyer Moreover , all worked in the same
office However, whereas the work of the buyer-pnce-
17 Moranos assisted Oldrin by keeping him informed on his own is Some occasionally made entries in the receiving log, indicating that
initiative as to the state of some inventories and he even himself ordered a merchandise had been received by Respondent However that was Tycz
few commonly purchased articles His interests however were plainly not responsibility and except for him the amount of clerical work involved was
allied with those of the buyers but with those of the employees in the basic minimal
unit
R & M ELECTRIC SUPPLY CO 613
quote men involved considerable discretion, judgement
and responsibility, that of the bookkeepers was basically
routine I find that the two groups had interests which were
basically dissimilar, and that a unit of buyer-price-quote
men and/or of those employees and the outside salesmen,
but excluding the bookkeepers in either case, would be an
appropriate unit
(f) Tycz
Tycz had been employed by Respondent for 9 years He
did a considerable amount of work in the warehouse and at
the counter He had the responsibility of keeping the
receiving log in which deliveries to Respondent were
recorded and he spent several hours daily making up lists
of articles received Other employees also made entries in
the log, but it was Tycz' responsibility, and he was the one
held responsible by Respondent for the counting of
merchandise and its receipt in proper order
Tycz, called by the General Counsel, testified to the
following effect Most of the time it was his responsibility
to oversee the running of the warehouse, he was told this,
but it never came out "directly" that he was a supervisor,
he made "suggestions" to the warehousemen about loading
trucks, Moranos, an employee of long standing, might
suggest in what order various customers' merchandise
should be loaded, but most of the time it was Tycz who
made the decision, he gave orders to the warehouse
employees, when necessary, to make up orders, usually
they took invoices out of the baskets themselves, but
sometimes they were slow, and Tycz would "sort of push
them", also he would hand them invoices to fill when they
were rush orders, Moranos did these things, but only in
Tycz' absence, Tycz suggested that additional help was
needed in the warehouse, and Velys never turned him
down, Velys told new employees that Tycz would
supervise them and he told Tycz to show them what to do,
Tycz showed the new employees where to stock merchan-
dise which came in and where to find merchandise, Velys
asked him about the progress of new employees, Tycz
reported a few disciplinary problems to Velys, he repeated-
ly recommended the discharge of one employee, Mazzacca,
and Velys finally discharged the man
Washick and Fabrykewicz, who testified on behalf of the
General Counsel, described Tycz' functions as completely
lacking in any supervisory elements, their testimony left
the impression that the warehouse operated without
supervision Mondays through Fridays At the same time
they testified that on those Saturdays when Scavelli was in
charge Scavelh was constantly telling the employees what
to do
Tycz was paid a flat salary of $170 per week, with
nothing additional for overtime He punched a clock
Moranos was paid $190 per week 19
The loading of trucks was usually a pressing task because
of time limitations An order not shipped out on time
would have to wait a week, unless a special trip was made
19 Moranos was related to Velys
20 Papageorge testified at one point that he made roof repairs that day
Fabrykewicz testified that Papageorge repaired the door that was being
painted I have not relied on either of these statements
21 At one point he mentioned Tycz but later said that this was not his
I do not credit the testimony of Fabrykewich and Washick
to the effect that the work in Respondent 's warehouse was
accomplished without responsible direction Tycz im-
pressed me as a credible witness While he was , apparently,
a modest man , not given to ordering people about, I find
that he responsibly directed the warehousemen-drivers,
using independent judgement , was responsible for the
operation of the warehouse and the loading of merchan-
dise, and effectively recommended the discharge of an
employee I find that Tycz was a supervisor, excluded from
any unit He will be referred to as warehouse manager
(g) Costas Papaxenopoulos
Papaxenopoulos , a recent immigrant from Cypress who
spoke no English , first performed work at Respondent's
premises on Monday, March 1 On that day he arrived
together with one Papageorge , an independent contractor
who from time to time performed carpentry and other
maintenance work for Respondent On March 1 Papag-
eorge made repairs at Respondent ' s premises,20 and
Papaxenopoulos painted a warehouse door , 12 feet square,
or larger, using a ladder, the ownership of which was not
disclosed at the hearing Respondent adduced testimony
from two witnesses, Velys and Papageorge, to establish
Papaxenopoulos' employment within the unit
Velys testified as follows A friend, one Veukos, who was
related to Papaxenopoulos, asked him to give the latter a
job While Respondent was not then looking for help, it
always needed help, and Velys told Veukos to bring the
man in, which Veukos did on Saturday, February 27 Velys
hired Papaxenopoulos on a permanent basis that day and
instructed him to report for work Monday, March 1 On
Sunday, February 28, Papaxenopoulos went to New York
to get his belongings On Monday morning he arrived with
Papageorge, who happened to be a good friend, and Velys
put him to work painting the warehouse door Velys
intended that he be broken in as a warehouseman but, as
he had done with others in the past, he intended first to
have him do odd jobs Velys was sure that he introduced
him that day to some employees but was not sure which 21
He instructed the bookkeeper, Espen, to prepare a
timecard for Papaxenopoulos , which she did, and he was
"almost positive" that he had seen her prepare it
Papaxenopoulos was absent on Wednesday and Thursday,
possibly because of illness, although Velys was not sure of
the reason On the next day of his testimony Velys stated
that he had spoken to the bookkeeper, who informed him
that it was on Thursday, not Sunday, that Papaxenopoulos
had gone to the city for his belongings , which accounted
for the day's absence
Respondent offered in evidence a timecard bearing
Papaxenopoulos' name and showing 24-1/2 hours of work
performed March 1 through 3 Unlike the usual procedure
in Respondent's establishment, the card was entirely
handwritten, except for a single entry for Friday, which
was timeclock printed in the space for Thursday, March 4,
recollection but only an assumption since Tycz worked back there
Respondent produced no employee to whom he had been introduced and
several of the General Counsel s witnesses testified that they had not been
introduced
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and crossed out I rejected the offer, without prejudice to a
further offer upon additional evidence of genuineness, but
no further evidence was adduced
Papageorge testified as follows Papaxenopoulos was the
grandfather of a godchild of his daughter Papageorge and
his wife kept asking Velys to give Papaxenopoulos a job,
urging that the man was very handy, and Velys finally
agreed However, he was unable to bring Papaxenopoulos
down to meet Velys on February 27 and therefore it was
arranged that Veukos do it Papaxenopoulos went to New
York on Sunday to get his belongings He returned Sunday
night and thanked Papageorge profusely for getting him
the job, also treating him to cognac profusely, and
Papageorge got drunk Papageorge brought him to work on
his first day of employment since he was unfamiliar with
Riverhead He stated categorically that Papaxenopoulos
did not work for him, and that he never had employees
Papageorge's testimony as to when he did the alleged
roof repair for Respondent was confused and contradicto-
ry He impressed me unfavorably with respect to credibility
and I rely on none of his testimony Respondent's failure
to call the bookkeeper who prepared the rejected timecard
warrants the inference that she would have given testimony
tending to show that the card had not been prepared on
March 1 as testified by Velys Respondent's failure to call
any employee to whom the man was introduced is
significant Moreover, I do not credit Velys' explanation
that he testified by mistake that Papaxenopoulos had gone
to the City for his belongings on Sunday, in view of
Papageorge's vivid testimony that the trip had indeed
taken place on Sunday, and had been followed by a
memorable thank-you party
I find that Papaxenopoulos was not employed by
Respondent during the calendar week beginning March 1,
and that Respondent has failed to prove his employment at
any time thereafter 22
(h) William, Anna, and Theodora Velys, and Frank
Scavelli
As Michael Velys, Jr was the parent of William, Anna,
and Theodora Velys, I find that they were not employees
within the meaning of the Act, and were therefore not
included in any appropriate unit
Velys testified that while Rose Scavelli was a partner in
Respondent, her interest in the business was minor, both as
to capital and as to drawing She was not active in the
business at the time of the hearing, but had been several
years before Velys did not state how "minor" her interest
was I find that Rose Scavelli was one of the employers of
the individuals who worked for Respondent As Scavelli
was her spouse, I find that he was not an employee within
the meaning of the Act, and therefore not included in any
appropriate unit
(i) Concluding findings as to unit
I find that the warehousemen-drivers, countermen, and
22 Respondents payroll for the work week ending March 4 shows
Papaxenopoulos the last person listed, as having worked 24 1/2 hours on
March 1 2 and 3 However in view of the discredited timecard I do not
consider that payroll standing alone without convincing supporting
porters, excluding bookkeepers and other office clerical
employees, buyer-price-quote men, outside salesmen,
guards, watchmen, professional employees, warehouse
manager, and all other supervisors, constituted an appro-
priate unit
I find that the buyer-price-quote men and outside
salesmen, excluding bookkeepers, guards, watchmen,
professional employees, and all other employees and
supervisors, constituted an appropriate unit
In view of the wide divergence of interests already
described as between the employees in the two units
respectively found appropriate, I find that a unit combin-
ing both groups was basically inappropriate
2 Majority
During the week beginning March 1 , Respondent had
three warehousemen-drivers, namely Cagigas, Langhorne,
and Grant , two countermen , namely Moranos and
Fabrykewicz , and one porter, namely, Lynch, total of six
employees Four of these , namely, Cagigas, Grant, Lang-
horne, and Fabrykewicz , signed union cards
During the same period there were three buyer-price-
quote men, namely Oldrin , Washick, and Lohr, and one
outside salesman , who was an employee, namely Renner, a
total of four employees All but Oldrin signed union cards
I find that the Union was designated as representative
for collective bargaining by a majority of the employees in
each unit heretofore found appropriate
The complaint alleged that the employees in both groups
of employees found by me to be appropriate units
constituted a single appropriate unit I find that the Union
was designated as representative for collective bargaining
by a majority of the employees in the unit which was
alleged in the Complaint to be appropriate
3 Concluding findings as to the demand for
recognition
Faicco did not specify orally what employees he claimed
to represent , stating merely, "We represent the majority of
the employees employed by you " However , the cards he
handed Velys, especially as corroborated by the walk-out
before Velys' eyes of every category of employees except
the bookkeepers and the absent outside salesman, made
plain that the employees the Union claimed to represent
were those in the unit alleged in the complaint , and I so
find I also find that Velys understood that that was the
unit for which the Union was requesting recognition, and
that he had no doubt in the matter 23
4 The refusal
I find that Velys' refusal to grant recognition immediate-
ly without consulting counsel was reasonable I also find
that his failure to bring counsel to the plant instanter was
reasonable I have already found that his exclamation that
he would rather burn the place down was not coercive or
undermining of the Union I further find that Respondent
testimony reliable
23 If he had had doubt as to outside salesmen it would of course have
been dissipated the next morning when Renner turned in his papers and
joined the picket line
R & M ELECTRIC SUPPLY CO 615
at no time engaged in unlawful conduct tending to
undermine the Union's majority strength or impede the
election processes Since Velys did not say that he would
not recognize the Union at any time, but wanted to
consider the matter with the aid of counsel, it is plain that
Respondent did not on March 2 definitively refuse
recognition
However, the Union's request for recognition was a
continuing request Faicco had given Velys his business
card, but Respondent took no steps to reply to the Union's
request I find that this constituted a refusal of recognition
Moreover, I find that at least by March 5 a reasonable time
for consideration had elapsed and that the definitive
refusal to recognize the Union began on that date
I turn now to the question of whether Respondent was
under obligation to grant recognition
I do not credit Velys' testimony, "I know that in my
mind he did not represent a majority of my employees "
Velys was well acquainted with a majority of those who
had signed cards Grant had worked for him since 1966,
Fabrykewicz since 1965, when he was 16, and Washick
since 1962 The latter two had had their employment
interrupted by 2 years in the Armed Services Lohr had
worked for Respondent almost 9 years, Tycz 11 years, and
Renner 13 years Fabrykewicz' brother had worked for
Respondent, and Velys had entertained Fabrykewicz and
Renner on his boat After Velys had been assured by
Washick and Lohr that they had signed the cards
voluntarily and, in fact, had initiated the contact with the
Union, and after Velys had seen the employees, including
those he knew so well, walk out immediately upon signal
by Faicco, it is plain that Velys had no doubt in his mind
as to their desire to be represented by the Union
Significantly, once he had seen the cards and questioned
Lohr and Washick about them, Velys said nothing to
indicate that he had any doubt as to the Union's majority
Indeed, Respondent made no claim even at the hearing
that it had at any time raised any question or expressed
any doubt as to majority in either of the units I have found
appropriate or in the unit alleged in the complaint On the
contrary Respondent limited its defense in this connection
to its alleged attempt on March 19, 17 days after the
Union's demand, to persuade the Union to agree to an
election in a different unit, significantly, one including
members of the Velys family
In Linden Lumber Division, Summer & Co, 190 NLRB
No 116, the Board reassessed the reach of the principles of
Fred Snow, Harold Snow, and Tom Snow, d/b/a Snow &
Sons, 134 NLRB 709, enfd 308 F 2d 687 (C A 9) The
Board stated
These considerations lead us to the conclusion that
Respondent should not be found guilty of a violation of
Section 8(a)(5) solely upon the basis of its refusal to
accept evidence of majority status other than the results
of a Board election We repeat for emphasis our
reliance here upon the additional fact that the Respon-
dent and the Union never voluntarily agreed upon any
mutually acceptable and legal permissible means, other
than a Board-conducted election, for resolving the issue
of union majority status
The present case differs from both Snow & Sons and
Linden Lumber Respondent made no agreement to permit
majority status to be determined by cards, as happened in
Snow & Sons However, there could be no such agreement
because unlike the situation in Linden Lumber, there simply
was no issue of majority status to be resolved Respondent
never refused, as the employer did in Linden Lumber, to
accept the evidence provided by the cards as to majority
status All Respondent claims is that it attempted, and this
17 days after the Union's request, to persuade the Union to
agree to an election in a different unit which, moreover,
was to include nonemployees Plainly, in refusing to
recognize the Union Respondent raised no question as to
majority Cf Pacific Abrasive Supply Co, a subsidiary of the
Carborundum Company, 182 NLRB No 48 At most, if the
claim represented by its offer of proof is accepted, it raised
question as to unit And this, it is well established, it did at
its peril even if done timely See Tom Thumb Stores, 123
NLRB 833, see, also N L R B v My Store, Inc, 345 F 2d
494, 498, fn 2 (C A 7), cert denied 382 U S 922, enfg 147
NLRB 145 As Respondent knew that the Union represent-
ed a majority of the employees in any relevant unit and
raised no question about majority, the principle of Linden
Lumber is not applicable
There remains the question of the variance between the
unit for which recognition was requested, which was the
same as the unit alleged in the complaint, and the units
which I have found appropriate 24 Where a union had
requested recognition for a unit in which it does not have a
majority, a violation of Section 8(a)(5) cannot be based
upon an ex post facto finding of majority in an appropriate
unit for which bargaining had not been requested See
Barlow-Maney Laboratories, Inc, 65 NLRB 928, 943 In the
present case the Union did have a majority in the unit for
which it requested bargaining, as well as in each segment
thereof which I have found to be an appropriate unit In
holding that an employer, even if acting in good faith,
raises question as to unit at his peril, the Board has stated
as its reason that it has imposed considerable risk upon a
union seeking to enforce its rights under Section 8(a)(5),
including the risk as to the appropriateness of the unit, and
that equity requires the imposition of the same risk upon
the employer See Tom Thumb Stores, Inc, 123 NLRB 833,
835 Equity would seem to require that the union's request
be for a basically appropriate unit Where, as I find was the
case here, the unit for which recognition is requested is
basically inappropriate, it is not equitable to impose on the
employer the duty to take the initiative to untangle from
the union's invalid demand such part or parts as were
valid
Since the Union's only request was for a basically
inappropriate unit, I find that Respondent was under no
duty to grant recognition and therefore did not violate
Section 8(a)(5) of the Act 25 I do not pass upon or express
24 The inclusion of Tycz in the requested unit was a minor variance
subject to correction and it did not stand in the way of recognition See The
Hamilton Plastic Molding Company 135 NLRB 371 373 enforcement
refused in relevant part on other grounds 312 F 2d 723 (C A 6)
25 In International Broadcasting Corporation (KWKH) 99 NLRB 130 at
fn 6 Chairman Herzog and Member Murdock a minority , stated that no
(Continued)
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any opinion concerning a case where an employer,
requested to bargain , engages in unlawful conduct having a
tendency to undermine majority strength or impede the
election processes Cf N L R B v Gissel Packing Company,
Inc, 395 U S 575
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I find that the activities of Respondent set forth above in
section III, occurring in connection with its operations
described in section I, 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 of
commerce
V THE REMEDY
As the only unfair labor practice found was the isolated
remark of Scavelh, whose authority was at best slight, I
find that it would not effectuate the policies of the Act to
issue a remedial order
Upon the basis of the foregoing findings of fact and on
the entire record in this case, I make the following
Conclusions of Law
1 Respondent, Mike Velys, Sr, Mike Velys, Jr, Ross
Velys, Rose Scavelli, and Zoera Hatgis, Copartners, d/b/a,
R & M Electric Supply Co, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act
3 Local 1922, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
4 Respondent's buyer-price-quote men are employees
within the meaning of Section 2(3) of the Act
5 Frank Scavelli and William Velys are not employees
within the meaning of Section 2(3) of the Act
duty to bargain arose in the absence of a request covering an appropriate
unit even though the union represented a majority of the broader
inappropriate unit covered the request as well as a majority of a smaller,
appropriate unit In that case the other segment of the broader unit
standing alone was found by the Board in a representation case to be
inappropriate Case 15-RC-367 90 NLRB No 218 (not published)
6 All warehousemen, drivers, warehousemen-drivers,
countermen, and porters employed by Respondent, exclud-
ing bookkeepers and other office clerical employees, buyer-
price-quote men, outside salesmen , guards, watchmen,
professional employees, warehouse manager, and all other
supervisors, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act
7 All buyer-puce-quote men and outside salesmen
employed by Respondent, excluding bookkeepers, guards,
watchmen, professional employees, and all other employ-
ees and supervisors, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act
8 At all times since March 1, 1971, Local 1922,
International Brotherhood of Electrical Workers,AFL-CIO,
has been, and it still is, the exclusive representative of all
employees in each of the appropriate units, for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, within the meaning of Section
9(a) of the Act
9 Respondent did not refuse to bargain collectively
with the Union as the exclusive representative of their
employees in either of the appropriate units, or otherwise
engage in unfair labor practices within the meaning of
Section 8(a)(5) of the Act
10 By interfering with, restraining , and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
I1 It would not effectuate the policies of the Act to
issue an order remedying the unfair labor practices found
in this case
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 26
ORDER
The complaint herein is hereby dismissed in its entirety
16 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions and recommended Order herein shall as provided in
Section 102 48 of the Rules and Regulations automatically become
findings conclusions decision and Order of the Board and all objections
thereto shall be deemed waived for all purposes