Sea-Way Distributing, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 460 (N.L.R.B. 1963)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sea-Way Distributing , Inc. and Retail Clerks Union, Local 188,
Retail Clerks International Association , AFL-CIO. Case No.
9-CA-2640. June 28, 1963
DECISION AND ORDER
On February 14, 1963, Trial Examiner Owsley Vose issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action as set forth in the attached Intermediate
Report. Thereafter, the General Counsel filed limited exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
THE REMEDY
The General Counsel excepts to the Trial Examiner's failure to
recommend backpay for the striking employees from the date of their
discharge. We find no merit in the General Counsel's position. The
employees were on strike at the time of their discharge. As they had
not abandoned the strike and applied for reinstatement, we can see no
justification for awarding them backpay while they were withholding
their services irrespective of the fact that they were discharged. Our
refusal to award backpay to striking employees here is consistent with
long-established Board principles 2 and no sufficient reason appears in
the particular circumstances of this case for deviating from those
principles.'
i No exceptions were filed by Respondent. The exception filed by the General Counsel,
as noted below, relates solely to the failure of the Trial Examiner to award backpay to
employees while they were on strike . Accordingly , in the absence of exceptions , we adopt
pro forma all other findings , conclusions , and recommendations of the Trial Examiner.
2 For example, see Sea View Industries , Inc, 127 NLRB 1402 ; Sakrete of Northern
California , Inc., 140 NLRB 765; Hawaii Meat Company, Limited, 139 NLRB 966; Mastro
Plastics Corp ., 103 NLRB 511 at 519, enfd . 214 F. 2d 462 , affd. 350 U.S . 270; National
Seal, Division of Federal-Mogul-Bower Bearings, Inc, 141 NLRB 661 ; Holcombe Armature,
140 NLRB 618 ; Elm Tree Baking Company, 139 NLRB 4 ; Liberty Electronics Corp.,
138 NLRB 1074 ; Englewood Lumber Company, 130 NLRB 394 ; The National Automatic
Products Company, 128 NLRB 672; Central Oklahoma Milk Producers Association, 125
NLRB 419, enfd. 285 F. 2d 495 (CA. 10).
8 we do not consider the lone case-Gulf Public Service Co , 18 NLRB 562 , cited by
our dissenting colleague-governing here ; but, in any event , we note that that case was
implicitly reversed in Happ Brothers Company, Inc., 90 NLRB 1513, 1519.
143 NLRB No. 50.
SEA-WAY DISTRIBUTING, INC. 461
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
MEMBER BROWN, dissenting in part :
I agree with my colleagues that Respondent, on receiving the
Union's bargaining request, violated Section 8(a) (1) by threatening
to "close the doors" and "to get rid of all the employees" and by co-
ercively interrogating its employees; that Respondent then violated
Section 8(a) (5) by refusing to recognize the Union on and, at all
times since June 22, 1962; and that the strike beginning June 22, 1962,
was an unfair labor practice strike in protest against Respondent's
described violations of Section 8 (a) (1) and (5). I also join my col-
leagues in finding that Respondent discharged its striking employees
in violation of Section 8(a) (3) when, shortly after the strike and
attendant picketing began, Respondent told the employees "to lay
down [their] picket signs, because [they were] fired." The Union
filed charges on June 26 and August 3, 1962, alleging, inter alia, the
unlawfulness of the discharges of June 22,1962, and these charges were
respectively served on Respondent on June 28 and August 9, 1962.
My sole disagreement with the majority stems from their failure to
provide an appropriate remedy for the discharges which they find to
have been committed. Thus, while finding Respondent's discharge of
its employees to be unlawful and even though Respondent has had
notice of the instant charges since June 28, 1962, the majority neverthe-
less now withholds a backpay remedy until such time as these unlaw-
fully discharged employees apply for reinstatement. Presumably, the
majority's position is founded on the premise that backpay awards are
generally inappropriate for periods during which employees volun-
tarily withhold their labor. I, too, accept this premise. The problem
in this case, however, is that one cannot really be certain whether the
employees continued their strike against the Respondent's threats and
unlawful refusal to bargain despite their discharge or whether their
reason for not making formal application for work was that their
Employer, by discharging them, had unmistakably impressed on them
the futility of applying for reinstatement. There would, of course,
be no question on this score if the employees had applied for reinstate-
ment and were rejected, and one might say that a showing of such
application is not an unduly burdensome condition for establishing
abandonment of the strike's original objectives. On the other hand,
however, it is no more burdensome to require the employer to advise
his victimized employees that although he discharged them, he did not
really mean it.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is for "the tortfeasor," said Judge Hand, "to disentangle the
consequences" of his unfair labor practices,' and in a situation similar
to the instant case the Board early applied this sound equitable con-
struction in Gulf Public Service Co., 18 NLRB 562, 586-587, enfd. 116
F.2d852 (C.A. 5) :
Inasmuch as the respondent discharged the strikers .... it is
impossible to ascertain when the strikers would have abandoned
the strike and returned to work in the absence of the respondent's
action in discharging them. Had the respondent not discharged
the strikers, their back pay would have commenced from the date
when they applied for work. However, by discharging them, the
respondent made it useless for the strikers to apply for their jobs.
Since the uncertainty is caused by the respondent's illegal act in
discharging the strikers because of their union activity, we will
indulge in no presumption as to how long the strike might other-
wise have lasted. Accordingly, in order to restore the status quo
as nearly as possible under the circumstances, our order shall pro-
vide for back pay for the discharged employees listed in Appendix
A from the date of the discharge ... .
The restoration of the status quo in the circumstances of the present
case requires, no less than in Gulf Public Service, that the discharged
employees be made whole for their backpay losses suffered from the
date of their unlawful discharge. I dissent to my colleagues' failure
to grant the General Counsel's request for such remedy.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
* N L.R B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C A. 2), cert. denied 304
U.S. 576.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by the Charging Party on June 26 and August 3, 1962, the
General Counsel on August 5, 1962, issued a complaint alleging that (1) the
Respondent, by means of threats and acts of interrogation, had interfered with, re-
strained, and coerced its employees in violation of Section 8(a)(1) of the Act; (2)
the Respondent, on June 22, 1962, and thereafter, had refused to recognize the
Charging Party as the exclusive bargaining representative of the employees in its
Chillicothe, Ohio, store, in violation of Section 8(a)(5) of the Act; and (3) the
Respondent had discharged 16 employees for going out on strike because of the
Respondent's refusal to recognize the Charging Party, in violation of Section 8(a) (3)
of the Act. The Respondent filed an answer denying the commision of any unfair
labor practices. The case was heard before Trial Examiner Owsley Vose at
Chillicothe, Ohio, on October 2-5, 1962. All parties appeared and were represented
at the hearing, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to present oral argument. The General Counsel and the
Respondent have filed briefs which have been fully considered.
Upon the entire record and my observation of the witnesses, I make the following:
SEA-WAY DISTRIBUTING, INC. 463
FINDINGS AND CONCLUSIONS
1. THE RESPONDENT'S BUSINESS
The Respondent, an Ohio corporation, operates stores in Newark and Chillicothe,
Ohio, where it is engaged in the discount retailing of numerous items, including
drugs, jewelry, sporting goods, hardware, electric appliances, and automobile and
garden supplies. During the 12-month period ending August 1, 1962, the Respond-
ent's gross sales were valued in excess of $500,000. During the same period the Re-
spondent purchased items for resale valued in excess of $50,000 which were shipped
directly to its stores from points outside the State of Ohio. Upon these facts I
find that the Respondent is engaged in commerce within the meaning of the Act,
and that it is appropriate for the Board to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-
CIO, hereinafter called the Union, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. The establishment of the Chillicothe store; the organization of the Union
Early in April 1962 the Respondent commenced hiring employees to prepare the
Chillicothe store for opening. For the first few weeks the employees were engaged
stocking the shelves and learning their new duties. On April 24, 1962, the store
was opened for business.
About a week later the Respondent hired Burl Bowling as a stock clerk. Bowling
was interested in a union from the beginning of his employment. Not long after
commencing work Bowling inquired of employees at the nearby Kroger's Super-
market as to the name of their union representative. The Kroger employees informed
Bowling that Phillip Bond was their representative, and they offered to refer Bond
to Bowling the next time Bond came to town.
On June 1 Bond, who was acting as the business agent of the Union, looked up
Bowling in the Respondent's store. Bowling asked Bond what he could do to bring
a union into the store. Bond advised Bowling that he would have to have a majority
of the employees fill out bargaining authorization cards, and said that he would
see to it that the necessary cards were mailed to Bowling.
After receiving the cards about June 5, Bowling arranged for a meeting of the
employees after work on June 8 at Cline's Drive In. At this meeting 13 employees
signed cards authorizing the Retail Clerks International Association to act as their
collective-bargaining agent. Harold Scott, who the Respondent contends was a
supervisor, had earlier that day signed a card at Bowling's request. There were
approximately 17 nonsupervisory employees in the store at that time. After the
meeting, all 14 cards were mailed to the Retail Clerks District Council office in
Columbus.
Subsequently, Business Agent Bond called Bowling and asked him to arrange a
meeting of the employees. Such a meeting was held after work on June 20 in
the probate courtroom of the county courthouse at Chillicothe. Bond presided at this
meeting, which was attended by 15 employees, including Harold Scott. Bond first
inquired as to the nature of the employees' problems. Among other things, Bond, was
informed of the low wages they were receiving and of the fact that the Respondent
was open 7 days a week. After hearing their complaints, Bond discussed various
provisions in the contracts which the Union had with other employers in the area.
Bond explained that there were two ways by which the Union could seek recognition:
one was to obtain a National Labor Relations Board election, and the other was
to request recognition forthwith and to back up the request with a show of the
cards which they had signed Bond. mentioned that the election method would take
longer, possibly 3 or 4 weeks. Bond explained that if the Respondent refused
their request for recognition it would be necessary for them to go out on strike to
back up their demand. After expressing the fear that they might be laid off if there
was any delay, the employees voted 15 to 0 to adopt what they referred to as the
"recognition" route in preference to petitioning for an election. Bowling urged Bond
that the request for recognition be made of the Respondent as soon as possible.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's request for recognition and related events
Business Agent Bond, accompanied by Richard McAllister, the secretary-treasurer
of the Retail Clerks District No. 8, at Columbus, Ohio, went to Respondent's
Chillicothe store about 1:15 p.m. on Friday, June 22. Encountering Jack Coffey,
the manager of the store, outside the door, they identified themselves to him and
told him that they represented the majority of the nonsupervisory employees at the
store and that they wanted to bargain for wages, hours, and working conditions.
Jack Coffey, indicating surprise, invited them to come down to his office in the
basement of the building. Upon arriving in the office, McAllister and Bond showed
Coffey their business cards. McAllister again stated that the Union represented a
majority of the employees, and explained that the Union was an organization of re-
tail sales clerks. At this time McAllister also handed Jack Coffey the 14 signed
authorization cards and a single-page typed blank contract stating in substance that
the employer recognizes the Union and agrees to enter into negotiations with it for
a complete collective-bargaining contract. At this point Jack Coffey interjected
that while he was the manager of the store, he was not in authority, and suggested
that he call his brother, the president of the Respondent, at the Newark store.
Jack Coffey thereupon called Robert Coffey in Newark and stated that there were
two union representatives in the store who were claiming to represent a majority
of the employees. At Robert Coffey's request, McAllister was put on the telephone.
Robert immediately inquired as to what kind of wage rates the Union was seeking.
McAllister explained that the Union did not have a standard contract and that at this
time the Union was simply seeking recognition; they could discuss wages, hours,
and working conditions later on. Robert Coffey inquired whether they would wait
2 hours until he could reach Chillicothe. McAllister agreed to return at 3:40 p.m.'
About 3:30 p.m. that afternoon Jack Coffey came to Burl Bowling where he
was unloading a truck and told him that Robert Coffey wanted to see him in the
office. When he got to the office Bowling found both Jack and Robert Coffey there.
According to Bowling's credited testimony, Robert Coffey immediately asked, "What
the hell is this union all about." Bowling replied that all the employees wanted a
union to help them obtain job security and better pay. Robert replied that "these
union officials won't do nothing but take your dues and give you very little in return."
Robert then added that he could not afford to pay the union wage scale and that "when
this damn thing was over he was going to get rid of all the employees." 2
After Bowling left the office, Jack Coffey summoned Marilyn Ratcliffe from
the cash register where she was working. She found Robert Coffey at the desk in
the office. Jack Coffey seated himself to one side. According to Ratcliffe's undenied
and credited testimony, the following conversation then ensued:
. he [Robert Coffey] asked me what this union was all about. And I asked
him, "What union?"
He said, "The union that the kids are trying to get in the store."
I said, "What about it?"
And he said he heard that we were trying to get it in the store. And he asked
me if we went to any meetings . And I told him that we had went to one earlier
that week.
He wanted to know if we had signed any papers, and I told him we signed
a paper up there. He wanted to know what for, and I told him to see how many
had been present at the meeting.
And he kept on talking, asking me what our gripes were about it, and I told
him I didn't know about that. He called the union team mobsters. He said
that if they would put money into the store that they could run it. But he
i The foregoing findings are based primarily on McAllister's credited testimony. The
testimony of the two Coffeys is substantially in accord
2 Robert Coffey testified that he had his brother call an employee to the office ; when
Bowling appeared . he asked Bowling "what was going on"; Bowling said "that there was
talk about a union" ; he then asked Bowling what did he "want a union for," and
Bowling's reply was, "I want security." To this, Coffey replied, according to his testi-
mony, "The only security . . . Is right in ourselves . As long as you do a good job,
you've got the security . . . and other than that there was no other conversation."
Coffey was not questioned concerning Bowling's testimony to the effect that he had
warned that he was going to get rid of all the employees when this thing was over
Consequently, this testimony is not specifically denied . I believe that Bowling's version
of this conversation is the more accurate . Bowling, in his testimony , appeared to be
attempting not to overstate matters. I find the facts to be as set forth in the text above.
SEA-WAY DISTRIBUTING, INC. 465
said they would reduce our hours and pay . And he said before ... he would let
the union in that he would close the doors.
3. The Respondent's rejection of the Union 's second request for recognition
When Union Representatives McAllister and Bond returned to the store for
their appointment with Robert Coffey, they encountered Bowling on the first floor.
Bowling reported to them that the Coffeys had called him down to the office and
wanted to know what he had to do with the Union. On the way downstairs to the
office McAllister and Bond passed Marilyn Ratcliffe who told them that the Coffeys
had had her in the office and questioned her about the Union.
Upon arriving at the office , McAllister introduced himself and Bond to Robert
Coffey and showed him his credentials. At the outset McAllister complained about
Coffey's conduct, after having been informed over the telephone of the Union's
request for recognition, in "call[ing] a couple of people in and threaten[ing] them,
intimidat[ing] them." McAllister commented that the situation "wasn't helped by
[Coffey's] actions." McAllister explained that the Union was seeking recognition,
that it represented a majority of the men and could prove it, and that it was not
necessary to go to an election. Robert Coffey immediately and loudly inquired
"what did [they] want, the keys to the store, what kind of a country was this."
McAllister asked Coffey if he would not "cool off a little bit [so] that [they] could
do business as gentlemen." After Coffey calmed down he asked what the Union's
demands were, what kind of wages the Union would seek in a contract. McAllister
explained that the Union was not at that stage yet, it was merely seeking recognition
at this time. McAllister further stated that the Union had no set pattern for its con-
tracts, that decisions on contract demands were made by the employees, and that
the demands normally varied from company to company, depending upon the type
and size of the enterprise, and the amount of business being done. Coffey replied
that if the Union would put $250,000 in the business, he would recognize the Union.
McAllister took exception to this proposal.
At this point Coffey proposed calling his attorney in Canton. It developed at the
hearing, although this was not brought out at the time, that Coffey intended to call
Edward J. Zink, the Canton attorney who was one of the Respondent's representatives
at the hearing. Coffey placed a call to Zink in Canton but he was not immediately
available. While awaiting the return call, McAllister handed Coffey the 14 signed
cards which had been received in Columbus, together with the proposed recognition
agreement. At the same time, McAllister stated that according to his best informa-
tion there were 17 employees in the unit. Robert Coffey, who admittedly was not
familiar with the names of the Chillicothe employees, handed the cards to Jack
Coffey, who thumbed at least part way through them. Jack Coffey commented that
the first card in the stack was that of an individual who was no longer employed by
the Respondent. While the cards were being examined the return call came in
from Canton from Coffey's attorney. Coffey explained over the telephone that
the Union was seeking recognition and had presented 14 signed cards. Coffey then
read over the telephone the text of one of the authorization cards and also the terms
of the recognition agreement. After listening for quite a while, Coffey hung up
the telephone and announced, "That's it. We're going to do nothing .... The man
says go to a Labor Board election." McAllister then stated as follows: "We would
have to do what we thought best to protect our majority status, and our interest."
With this statement McAllister and Bond left the Respondent 's office. It was about
4:20 p.m. at this time.
The foregoing findings are based largely on the testimony of McAllister, who
appeared better able to report the details of this meeting and the exact sequence of
events. Union Representative Bond's testimony concerning the events at this meet-
ing is in accord with that of McAllister. Jack Coffey's testimony concerning this
meeting is not inconsistent with that of the two union representatives.
Robert Coffey's testimony, however, cannot be reconciled with that of McAllister
as to certain aspects of this meeting. When called first as an adverse witness by
the General Counsel , Coffey testified that the union representatives demanded that
he sign the recognition agreement ; that he insisted upon a National Labor Rela-
tions Board election , and that the union representatives said that-
. they don't have to have an election ; this is a free country; we have no reason
to have an election . We've decided . We're the leaders, now. We 're going to
take over the store , and we 're going to run it , and this is it.
Coffey's testimony concerning this meeting , when subsequently called as a witness
for the Respondent , is not consistent with his earlier testimony. When called by
the Respondent , Coffey testified as follows:
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, Mr . McAllister asked me to sign this paper , and I asked him what it
was, and he said it was recognition of their union.
I asked him what proof that he had that he had these people signed up?
He said he had them signed up , and he said he had a stack of cards. And,
in fact , he put these cards-threw them across the desk . And not being familiar
with the names of the people that were employed , not too well-I didn't know
their names-I handed them to my brother , and he-the first thing he did, he
looked at this, and the first one he pulled off he said , "Well, this person is no
longer an employee here."
And I turned around to the fellows , and I said , "Well, what are your de-
mands?"
And Mr . McAllister said , "We have no demands at the present time." He
said , "All we want is recognition of the union."
And I said , "Well, under the circumstances , with this card not being a proper
card, I want an election ," I said, "And I demand an election , an N.L.R.B.
election . . . ."
When Coffey was questioned further about this incident by the Respondent's at-
torney, he testified that after he hung up the telephone he announced , "I want an
N.L.R.B . election," and that when McAllister and Bond said, "You don't have to
have an N .L.R.B. election ," he rejoined "I demand one."
Upon consideration of all the testimony about this meeting I conclude that
McAllister 's version is closest to the truth . In reaching this conclusion , I am in-
fluenced by the inconsistencies between Robert Coffey's two accounts and also by
the fact that Robert Coffey's version was not corroborated by the testimony of his
brother Jack, insofar as the essential points of difference between the testimony of
McAllister and Robert Coffey are concerned . I do not believe that Robert Coffey
mentioned at the end of the meeting, as a ground for demanding an election, the
fact that one of the cards was signed by a person no longer in its employ . Coffey's
own testimony reveals that he was not seriously concerned about this matter. Thus,
it shows that after testifying concerning his brother 's comment that one of the cards
was signed by a former employee, Coffey immediately went on to relate that he
then said to McAllister and Bond , "Well, what are your demands?" Had Coffey
seriously questioned the Union 's majority status it is doubtful that he would have
gone on and immediately asked for the Union's bargaining demands. And had
Coffey raised a serious question as to the Union's majority, it is likely that McAllister
and Bond would have gone over the cards , one by one , with Coffey in an effort to
establish the propriety of the Union's claim of representative status. Under all the
circumstances , I find the facts concerning this incident to be in accordance with the
testimony of McAllister , set forth hereinabove.3
4. The strike; the Respondent 's discharge of the strikers
McAllister and Bond , upon leaving the Respondent 's office, met Bowling and a
few other employees at the top of the stairs . McAllister announced that Robert
Coffey would not recognize the Union . Bowling turned to the employees in back
of him and said , "Well, it looks like we're going to have to go out on strike whether
we want to or not." With that , the employees near Bowling walked out the back
door . Bond spoke to Linda Colley, one of the cashiers at the front entrance, as he
followed McAllister out of the door. Colley and Martha Haubeil, another cashier,
followed them out of the building. A few customers were left standing at the front
checkout counter at the time. Samye Rowland, who was at one of the back registers,
checked out several customers before she walked out at 4:45 p.m. By this time
management personnel or their wives had taken over the cash registers. Only
Dorothy Reynolds, Alicia Ingram, and James Bell, the assistant manager, remained
on the sales floor at this time . Dorothy Reynolds agreed to remain until 5 p in., her
regular quitting time. Reynolds did not return to work the next day and joined the
pickets 2 days later.
3 The Respondent states in its brief , without citing the portion of the record upon which
it is relying, that Coffey noted at this time that one of the cards was that of Harold Scott,
who the Respondent states was a supervisor . The Respondent also asserts in its brief
that on this occasion Coffey also asked for an election because he had doubts as to the
appropriateness of the unit I have been unable to find any support in the record for
either of these assertions Accordingly, I find that no such assertions were made by
Coffey . Scott's status as a supervisor is treated hereinafter in connection with the dis-
cussion of the Union's majority status.
SEA-WAY DISTRIBUTING, INC. 467
As the employees on the evening shift arrived shortly before 4 : 30 p.m., they were
informed by the day-shift employees of the Respondent 's refusal to recognize the
Union . They joined the striking employees from the day shift and refused to go in
to work . Of the Respondent 's 17 nonsupervisory employees on June 22, only Alicia
Ingram, who had not been invited to join the Union and who was unaware of any
union activities until the strike began , did not join the strike.
Union Representatives McAllister and Bond had brought printed picket signs in
their car when they came to Chillicothe . After the name "Sea-Way" was inserted
in crayon at the top of the signs , they were distributed among the striking employees.
Approximately half of the employees were assigned to picket at the front of the store,
the other half at the back. Shortly after the striking employees commenced picket-
ing with the signs, Coffey went out and told various groups of strikers , which included
all of the strikers here involved , "to lay down [their] picket signs, because [they
were] fired ." Coffey's own testimony is that he "called all the employees together on
the picket line and [ he] told them they were no longer employees of Sea-Way because
they had left their jobs."
The next day , June 23, Coffey advertised over the radio and in the newspaper for
help and succeeded in hiring a sufficient number of employees to keep on operating.
On June 26, the Union filed charges with the Board alleging that the Respondent had
violated Section 8(a) (1), (3 ), and (5 ) of the Act. The Union did not file a peti-
tion for an election at any time. The striking employees were still picketing the
plant at the time of the hearing in this case in October 1962.
5. Events during the strike
Although at the hearing in this case it appeared that the Respondent was contending
that certain striking employees had engaged in various acts of misconduct on the
picket line, which disqualified them for reinstatement , evidence of specific acts at-
tributable to identified employees was not forthcoming except with respect to the one
incident of alleged nail-strewing discussed below. This is the only incident of alleged
disqualifying conduct on the part of strikers relied upon by the Respondent in its
brief to the Trial Examiner.
Three of the Respondent 's employees who were working at the store on July 10
testified that they, and two other employees, including Assistant Manager Bell,
observed pickets throwing roofing nails in the parking lot. Neither Assistant Manager
Bell nor Lowe , one of the employees who witnessed the incident , was called to the
stand. The three pickets involved in the incident denied engaging in any such conduct
In view of the conflict in the testimony , it is necessary to consider the testimony of the
various witnesses in some detail . Joan Gibson testified that about 2:30 p in. on
July 10 she observed Harold Scott and Patricia Jackson walking back and forth side
by side on the parking lot about 30 feet from the rear of the store and that Victor
Chaney was following a few steps behind. What attracted her attention to them,
according to Gibson, was the fact that she noticed Chaney stooping over and doing
something . Gibson further testified that she walked over to the large doorway where
she was only 30 feet from them. As she stood there watching them she observed
Scott and Jackson , who were each carrying a picket sign with one hand, throwing
roofing nails out as they swung their free hands in normal walking fashion Accord-
ing to Gibson 's further testimony Chaney was "turning something over ." Later on
Gibson elaborated as follows: "I seen him bend over then , and I watched to see what
he was doing, and he was turning them over , the head down . He was setting them
up more or less . . And he was putting rocks around them so that they would
stand up." Gibson further testified that when Alicia Ingram came to relieve Lowe,
the cashier , she told Ingram about the activities of the three pickets, and that Ingram
also stood by the door and watched what the three pickets were doing. Gibson
also testified that after Lowe returned to her post at the cash register . Ingram looked
up Assistant Manager Bell and brought him back to see what was going on Gibson
admitted that she was easily visible to the three pickets outside.
Lonnie Keaton testified that Joan Gibson called his attention to Scott , Jackson, and
Chaney on this occasion , and that at the time Ingram and Lowe were already watching
the three pickets from near the customer entrance and exit door. Gibson and Keaton
were standing in the open doorway of the large overhead door. Keaton testified that
Scott had a picket sign and that he was "just walking along normal, strewing nails."
When asked what Jackson was doing , Keaton answered , "she was walking with him
(Scott ) " In response to the question , "What was Chaney doing ," Keaton testified
as follows : "He was walking behind . On occasion he would sit down , or stoop
over, and do something in the alley ." Asked "What did you observe him doing,"
717-672-64-vol. 143-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keaton replied, "Well, he was picking up pebbles and putting them around the nails."
He testified that he remained in the doorway watching the three pickets for 30
minutes' According to Keaton , Assistant Manager Bell remained in the large open
doorway watching the pickets for 20 minutes. After the pickets left, Keaton and
Assistant Manager Bell went out and picked up the nails.
Alicia Ingram testified that Scott, Jackson, and Chaney were moving their arms
and "just throwing [ the nails] all over the parking lot." Ingram made no mention
in her testimony of Chaney's alleged turning over of the nails on the parking lot.
When asked did the three employees "seem to take the tacks out of anything before
they threw them," Ingram replied, "I don't know."
As indicated above Scott, Jackson, and Chaney all denied that they had placed any
tacks on the parking lot back of the store. Chaney denied all knowledge of the
incident and denied ever walking alone behind Scott and Jackson on the parking lot.
On the stand, Chaney appeared to be genuinely perplexed as to how he became
implicated in the incident at all. I conclude that as to Chaney, it is a case of mistaken
identity. Of the three witnesses to the incident who testified for the Respondent, only
Alicia Ingram had worked at the store at the same time as Chaney , and Respondent's
other two witnesses, who were hired during the strike, very likely were relying on
Ingram's identification of Chaney. Assistant Manager Bell, who possibly could have
corroborated Ingram's identification of Chaney, as stated above, was not called as a
witness. Ingram , as found below , was not a reliable witness , and her testimony differs
from that of the Respondent's other two witnesses as to what this third picket was
doing. While I credit the testimony of the Respondent 's witnesses to the effect that,
after observing Scott, Jackson, and a third employee picketing at the rear of the store
on the occasion in question , they went out and found roofing nails scattered over
portions of the parking lot, I do not credit the testimony of the Respondent 's witnesses
to the effect that they actually saw the pickets scattering the nails or that they actually
saw the third. employee placing pebbles around the heads of the nails to make them
remain upright.
As stated above, the Respondent's witness, Lonnie Keaton, testified that Assistant
Manager Bell remained watching the pickets for 20 minutes on this occasion. Not
until the pickets had voluntarily left the scene did Bell and Keaton go out and look
the parking lot over. Nothing whatever was said to these pickets about their conduct,
so far as the record shows, although if the testimony of the Respondent 's witnesses
is to be believed , the three pickets were engaged in highly reprehensible conduct-and
conduct which would be very damaging to the Respondent' s business.
The testimony of the Respondent's witnesses about the incident is not wholly
consistent . According to Gibson , Scott and Jackson were throwing the nails, and
Scott was handing the nails to Jackson . In this connection Gibson testified , "I think
he had the nails in his pocket." Later , on cross-examination , Gibson stated , "He could
have had two pockets full of nails." Keaton's testimony suggests that only Scott was
"strewing nails" and that Jackson merely "was walking with him." Gibson's and
Keaton's testimony led me to believe that the nails were being strewn covertly while
the arms were being swung as one normally does while walking. Ingram's testimony,
on the other hand, indicates that all three employees were actually openly throwing
the nails so as to scatter them over a wide area. Unlike Ingram who did not make any
mention of Chaney's alleged stooping over, both Gibson and Keaton testified that they
observed Chaney occasionally stooping over and "do[ing] something in the alley,"
which they subsequently explained was turning the nails over and placing pebbles
around the head. Neither Gibson nor Keaton attributed any throwing of nails to
Chaney.
As indicated above , Ingram did not make a favorable impression on me as a wit-
ness. She appeared to be eager to give damaging testimony against the strikers in
general . According to Ingram , although the three pickets were walking back and
forth adjacent to the rear entrance , she found nails scattered over one-half of the
parking lot, which is a large one. Ingram's memory concerning certain aspects of
the incident was poor. She could not remember whether there were few or many
cars on the parking lot that afternoon. Nor could she remember whether it was a
rainy day or whether the sun was shining. Gibson and Keaton testified that it was a
hot, sunny afternoon.
Aside from these considerations which raise serious questions in my mind about
Ingram's credibility, there is another factor which influences me to reject the testimony
of Ingram, and the Respondent's other two witnesses to this incident, as well. Scott
i Gibson testified that she remained there watching the three pickets for from 25 to 30
minutes.
SEA-WAY DISTRIBUTING, INC. 469
and Jackson, who I have found were picketing on the occasion in question, impressed
me as being ordinarily alert and intelligent persons. Before the strike began they
had been instructed to avoid all violence. They must have sensed, if they did not
know for sure, that scattering nails in the parking lot would at least raise questions
about their right to reinstatement. In these circumstances I find it difficult to believe
that the three pickets would engage in the conduct attributed to them for such a
prolonged period right under the eyes of five of the Respondent's employees, including
the Respondent's assistant manager.
Under all the circumstances 1 am convinced that none of the Respondent's witnesses
actually saw Scott and Jackson throwing nails and a third picket turning them over.
The record is vague as to how many times the third picket was seen stooping over.
I believe that the Respondent's three witnesses assumed, after the nails were found on
the parking lot and after seeing the third picket unaccountably stooping over, that the
three pickets then on the parking lot were guilty of spreading them, and that the
testimony of the Respondent's three witnesses represents their conclusions as to how
the nails got there. In part the conclusionary nature of their versions is evident from
the testimony of the Respondent's three employee witnesses itself. Under all the cir-
cumstances, and in view of the denials of Scott, Jackson, and Chaney, I conclude
that as to Chaney, it was a case of mistaken identity, that he was not the third picket
involved in the nail strewing incident. With regard to Scott and Jackson, I find that
the Respondent has not established that they engaged in the conduct attributed to
them on the occasion in question.5
B. Conclusions
1. The Respondent's violation of Section 8(a)(5) of the Act
a. The appropriate unit
The complaint alleges that all selling and nonselling employees of the Respondent's
Chillicothe, Ohio, store, excluding all supervisors as defined in the Act, constitutes
an appropriate unit for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act. The Respondent adduced testimony to the effect that it
operates two stores, one at Newark, Ohio, and the other at Chillicothe, which is 65
miles away; that all corporation books are kept at the Newark store; that payroll
records and other administrative details are handled exclusively at the Newark store,
including the preparation of payroll and other checks; and that the two stores are
operated almost identically, and have substantially the same classifications of em-
ployees and pay scales. The Respondent also showed that a few employees from the
Newark store were loaned to the Chillicothe store for a few days on several occa-
sions. Although the Respondent adverted to this testimony in its brief, it does not
specifically contend that a unit consisting of the nonsupervisory employees of the
Chillicothe store alone is not an appropriate unit for collective bargaining within
the meaning of the Act. In view of the common employment interests of the non-
supervisory employees of the Chillicothe store, the geographical separation of the
two stores, and the fact that no other organization is claiming representation
rights for the Respondent's employees on any other basis, I find that the unit alleged
in the complaint is an appropriate unit for the purposes of collective bargaining.
See Sav-On-Drugs, Inc., 138 NLRB 1032; American Linen Supply Co., Inc., 129
NLRB 993, 995; Thompson Ramo Wooldridge, Inc., 128 NLRB 236, 238.
b. The Union's majority status in the appropriate unit
At the time the Union requested the Respondent to sign the recognition agreement
on June 22, 1962, the Union handed Robert Coffey cards signed by 14 employees
authorizing the Union to act as their collective-bargaining agent. The Respondent
does not challenge the authenticity of any of the signatures. However, it does con-
tend, and I find in acocrdance with this contention, that one of the cards was signed
by an employee who was no longer on the Respondent's payroll. Coffey testified
that there were 17 employees at the Chillicothe store on June 22. Upon the basis
6In view of my conclusion in this regard I do not reach the question whether, assuming
contrary to my finding herein, that Respondent showed that Scott and Jackson engaged
in the conduct attributed to them, their conduct was such as to render them unfit for fur-
ther employment in view of the nature of the Respondent's unfair labor practices which
caused the strike. See Local 833, 77AW v. N.L.R.B. (Kohler Co ), 300 F. 2d 699 , 702-704
(C A.D C.), cert. denied 370 U S. 911.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the foregoing, I find that on June 22, 1962, and at all times thereafter the Union
represented 13 of the 17 employees in the appropriate bargaining unit.
At the hearing the Respondent sought to show that Harold Scott, one of the
employees who had signed cards designating the Union as his bargaining agent, was
a supervisor within the meaning of Section 2 (11) of the Act. The record shows that
Scott attended the union meeting on June 20 and was active in connection with the
picketing of the store after the strike began. The Respondent apparently contends
that because of Scott's participation in the employees' organizational activities the
Union must be deemed not to have been freely chosen as the bargaining agent of the
employees. Aside from the fact that the record as a whole shows that neither the
employees , nor Scott himself, regarded Scott as acting on behalf of management, I
find, for the reasons set forth below, that Scott exercised none of the supervisory
responsibilities set forth in Section 2 (11) of the Act. Consequently , the Respondent's
.contention is rejected.
Scott was one of the first employees hired by the Respondent . He assisted in set-
ting up the store before it opened After the store opened Scott's duties consisted
of unloading merchandise from trucks and checking off the quantities from the de-
livery slip or invoice, marking prices on the individual items, and placing the items
in the proper place either in storage or on the shelves in the store proper. Two or
three other employees also participated in these activities, except that 2 weeks after
the store was opened Scott was given the primary responsibility for the checking the
receipt of merchandise. At this time Scott's wages were increased from 85 cents to
$1.25 per hour. The record shows that Scott acted as a leadman or strawboss among
the warehouse employees, working along with them in the unloading of the trucks,
the pricing of the merchandise, and the placing of the merchandise in its proper
location. Occasionally Scott would summon the others to help him in unloading a
truck and at times he would show the others where the merchandise should be placed.
Scott never exercised the power to hire, fire, or discipline employees, or to effectively
recommend such actions
I am not unmindful of the testimony of Robert Coffey that about 2 weeks after the
store first opened he informed Scott at a meeting of all the male warehouse employees,
as follows
Red, I've got to have someone in charge of this back end here I'm not satisfied
with the way it's going. You're in charge. You've got the authority to hire and
fire these people. Do me a job; I'll give you a raise immediately, and I'll take
care of giving you a raise later on if you do a proper job
Scott denied that either Robert or Jack Coffey placed him in charge of anything
other than checking in the merchandise as it arrived Conferring such responsibili-
ties upon an employee, in my opinion, does not make an employee a supervisor
within the meaning of Section 2(11) of the Act. See N L.R B. v. Overnite Trans-
portation Co., 308 F. 2d 284, 289 (C.A. 4). Two other employees who were present
at the meeting at which Robert Coffey assertedly announced Scott's supervisory status,
testified, in agreement with one another, that what Coffey had said on this occasion
was that Scott had been there longer than any other employee, that he knew where
the merchandise was to be placed, and that if they had any questions about their
work to ask Scott. Scott's entire conduct throughout this case is so inconsistent
with his responsibilities as a part of management that I am convinced that Coffey
did not tell Scott that he was in charge of the warehouse employees with the authority
to hire and fire them. While Coffey may have intended to confer general supervisory
authority upon Scott, I find that he did not put his instructions to Scott in such a
way as to communicate either to Scott or to the other employees that he was re-
sponsible for the effectiveness with which the other warehouse employees did their
work. Accordingly, I find that Scott was no more than a leadman having the re-
sponsibility to convey Jack Coffey's instructions to the men in the performance of
routine functions, but without the authority to exercise his independent judgment
in directing the other warehouse employees in the performance of their work. For
the foregoing reasons I conclude that Scott was not a supervisor within the meaning
of Section 2(11) of the Act .7
°The foregoing findings are based upon the composite testimony of Scott, Chaney, and
Oliver Zickafoos, which is credited
Y I have not overlooked the testimony of Bowling that Jack Coffey told him when she was
hired that Scott was in charge of the warehouse, would be his boss, and would tell him
where to put the merchandise when asked who was his immediate supervisor . Bowling
answered, "Jack Coffey." Charles Phillips testified that his Immediate supervisor was Scott
and that his boss was Jack Coffey The testimony of these two employees on its face shows
SEA-WAY DISTRIBUTING, INC. 471
c. The Respondent's refusal to recognize the Union on June 22, 1962
As found above, the union representatives showed Jack Coffey 14 signed
bargaining authorization cards and requested him to sign the recognition agreement
When Jack Coffey protested that he lacked sufficient authority to do so and referred
them to his brother, Robert, the president of the Respondent, Union Representative
McAllister repeated the same request to Robert Coffey over the telephone. Coffey
agreed to come to Chillicothe to talk to the union representatives. Shortly after
arriving in Chillicothe, Coffey summoned two employees to the office, questioned
them as to their union sympathies and activities, and threatened them with loss of
employment. As found above, he warned one of the employees that "when this
damn thing was over he was going to get rid of all the employees." To the other
employee Coffey stated that "before he would let the union in that he would close
the doors." 8 When the union representatives returned to keep their appointment
with Robert Coffey and again requested that he sign the recognition agreement, Coffey
refused, declaring that he demanded an election. I find that Coffey's position in this
regard was not based upon a good-faith doubt as to the Union's majority status at
the store. I base this finding not only upon the fact that Coffey, when the Union
requested recognition, did not seriously question the Union's majority status, but
also upon the fact that almost as soon as he reached Chillicothe, he called in two
employees, questioned them about the Union, and threatened them that adherence
to the Union would mean the loss of their jobs. That Coffey's refusal to recognize
the Union was not because of his doubts as to the Union's authority to represent
the employees, but rather because of its opposition to bargaining with the Union
under any circumstances, is further indicated by its discharge of all of the strikers
a few minutes after they commenced picketing the store that afternoon and by his
comment to Bowling on the picket line later on that evening that he would "close
the doors before he'd ever let a union in the store." 9
As the Respondent points out in its brief, when an employer acts in good faith he
may challenge a union's asserted majority without being held to have violated
Section 8(a)(5) of the Act. However, although Section 9(c)(1) of the Act pro-
vides machinery by which the question of representative status may be determined
in a Board-conducted election, it has long been settled that an election is not the
only means by which representative status may be established. See United Mine
Workers v. Arkansas Oak Flooring Company, 351 U.S. 62, 71-72, and cases cited in
footnote 8 therein. The courts have uniformly held that where a union has obtained
authorization cards signed by a majority of the employees in an appropriate unit,
the employer, absent a good-faith doubt as to the reliability of the cards, violates
Section 8(a) (5) of the Act if he refuses to recognize and bargain with the Union.
N.L.R.B. v. Dahlstrom Metallic Door Company, 112 F. 2d 756, 757 (C.A 2);
NL.R.B. v. Southeastern Rubber Mfg. Co., 213 F. 2d 11, 15 (C.A. 5), N.L R B. v.
I. Taitel and Son, 261 F. 2d 1, 4-5 (C.A. 7), cert. denied, 359 U S. 944. See also
N.L.R.B. v. Armco Drainage & Metal Products, Inc., 220 F. 2d 573, 576-577 (C A.
6), cert. denied 350 U.S. 838, and DuBois Chemicals, Inc., 140 NLRB 103 Having
found that the Respondent's refusal to recognize the Union was not based on a
good-faith doubt as to the Union's majority status, it follows under the authorities
cited above that the Respondent's refusal to do so violated Section 8(a) (5).
that they had different interpretations of the meaning of the terms "boss" and "immedi-
ate ;supervisor," and that they were not speaking with the technical requirements of Sec-
tion 2(11) in mind. Also their testimony is not inconsistent with the conclusion that
Scott exercised only a leadman 's responsibilities. In any event, the crucial question on
this phase of the case is what responsibilities did Scott actually exercise I am con-
vinced on the record as a whole that regardless of whatever views Bowling and Phillips
may have had as to Scott's authority , Scott actually did not have or exercise any of the
functions set out in Section 2(11) of the Act as establitshsng supervisory status.
I It is well settled that such threats of loss of employment because of union activities
violate Section 8(a) (1) of the Act. And in the context of these threats, Coffey's question-
ing of the two employees about their union sympathies and activities had a coercive im-
pact. Hence Coffey's conduct in this regard was also violative of Section 8(a) (1) of
the Act
9 Such conduct, in my opinion, is entitled to much greater weight, insofar as revealing
Coffey's true frame of mind when he refused to sign the recognition agreement is con-
cerned, than the statement attributed to Coffey in the Chillicothe Gazette the next day to
the effect that he was willing to recognize the Union if it won a National Labor Relations
Board election
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relying on Section 8(b)(7)(C) of the Act,'a the Respondent argues that the
Union, by picketing for recognition for more than 30 days without filing a petition
for an election with the Board, is guilty of violating Section 8(b) (7) (C) of the Act,
and in these circumstances it should not be held to have violated Section 8(a)(5)
of the Act.
I find no merit in this contention. The Union, on June 26, 1962, just 4 days
after the Respondent's refusal to recognize the Union, filed charges with the Board,
alleging that Respondent had refused to recognize the Union in violation of Section
8(a)(5) of the Act, and had engaged in other unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act, as well. The Board, in International Hod Car-
riers, etc., Local 840 (Charles A. Blinne), 135 NLRB 1153, considered the question
whether the prompt filing of a meritorious Section 8(a) (5) charge would constitute a
defense to Section 8(b)(7)(C) charges filed against a union in fact representing a
majority of the Charging Party's employees in an appropriate bargaining unit. The
Board concluded that, even though no petition for an election had been filed, the filing
of meritorious Section 8(a) (5) unfair labor practice charges would constitute a com-
plete defense to the Section 8(b) (7) (C) allegations See footnote 24 of the Blinne
decision. Accordingly, in view of the Union's prompt filing of meritorious Section
8(a)(5) charges herein, there is no basis for the assumption that the Union was
guilty of an unfair labor practice by picketing for recognition for more than 30 days
without filing a petition for an election.
But even if the law were otherwise and the Union could be regarded as having
violated Section 8(b) (7) (C) by reason of its picketing for recognition for more than
30 days without filing a petition for an election, this would not justify absolving the
Respondent of its unfair labor practice in refusing to recognize the Union. The 1959
amendments to the Act, which imposed certain additional restraints upon the rights
of unions to picket, were not intended to modify or alter in any way the fundamental
duty imposed by Section 8(a) (5) of the Act upon employers to recognize and bargain
collectively with the majority representative of their employees in an appropriate
unit. The Respondent wholly disregarded its statutory obligation in this regard.
The need for remedying this misconduct is no less because the Union subsequently,
in protest against the Respondent's unlawful refusal to recognize it, engaged in con-
duct which I assume, for the sake of argument, came within the ban of Section
8(b) (7) (C). As the Court of Appeals for the Second Circuit aptly stated in N L R B.
v. Plumbers Union of Nassau County, Local 457, etc, 299 F 2d 497, at 498:
one illegality should not excuse another. N.L.R B v. Remington Rand,
Inc, 94 F. 2d 862, 872 (2 Cir. 1938). The public interest lies in labor peace,
endangered by both The remedy here was the filing of charges before the Board
when the claimed illegality came to light, not in illegal self-help.
2. The Respondent's discharge,of the strikers in violation of Section 8(a)(3)
of the Act
As found above, within a few minutes after the striking employees commenced
carrying picket signs, Robert Coffey came out and told various groups of them "to
lay down [their] picket signs, because [they were] all fired " Robert Coffey's own
testimony, quoted above, establishes that the discharges were attributable to the
employees' leaving their jobs. In its brief, the Respondent does not suggest any
other reason for the discharges." In fact, the Respondent takes the position that
10 The pertinent portion of Section 8(b)(7) Is as follows
It shall be an unfair labor practice for a labor organization or its agents-
(7) to picket or cause to be picketing any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees . unless such labor organi-
zation is currently certified as the representative of such employees,
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing
n Although during the hearing it was suggested by the Respondent that Coffey took
action against the cashiers because they left their cash registers unattended, the Respond-
ent does not raise this contention in its brief. While Robert Coffey testified in general con-
SEA-WAY DISTRIBUTING, INC. 473
the striking employees were not discharged because Coffey , as a matter of law, could
not discharge them simply for going out on strike . With that proposition of law I
fully agree . However, in view of the fact that Robert Coffey did inform the strikers
that they were discharged and the further fact that since the strike Coffey has failed
to accord them the rights to which they are entitled as employees , I conclude that
the striking employees , including Harold Scott , who I have found was not a supervisor
within the meaning of Section 2 (11) of the Act , were effectively discharged and that
the reason therefor was their strike and union activities . Accordingly , I find that
the Respondent by discharging the striking employees here involved , including Harold
Scott , has violated Section 8(a) (1) and ( 3) of the Act.
IV. CONCLUSIONS OF LAW
1. By threatening employees with loss of employment because of their union ac-
tivities and by coercively questioning employees about union matters, the Respondent
has interfered with , restrained , and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8(a)( I) of the Act.
2. By refusing on June 22, 1962, and thereafter to recognize the Union as the ex-
clusive bargaining representative of all selling and nonselling employees in its Chilli-
cothe store , excluding supervisors as defined in the Act, an appropriate unit within
the meaning of the Act, the Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a) (5) and ( 1) of the Act.
3. The strike in which the Respondent 's employees engaged beginning on June 22,
1962, was an unfair labor practice strike.
4. By discharging on June 22, 1962, the employees who went out on strike in pro-
test against the Respondent 's refusal to recognize the Union , the Respondent has
engaged in unfair labor practices in violation of Section 8 (a) (3) and ( 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
My Recommended Order will contain the conventional provisions entered in cases
involving refusals to bargain collectively and the discharge of unfair labor practice
strikers in violation of Section 8(a)(5), (3 ), and (1) of the Act : cease and desist
from the unfair labor practices found and from in any other manner infringing upon
the statutory rights of its employees ; upon application , offer reinstatement to the
striking employees to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges , dismissing, if necessary, any
replacements hired ; and reimburse each of the strikers for any loss of pay suffered
during the period from 5 days after the date of his unconditional offer to return to
work to the date of the offer of reinstatement 12 The reinstatement and backpay
provisions are essential to remedy not only the Respondent's discharge of the
strikers , but also the remedy the Respondent 's refusal to recognize the Union, the
conduct which caused the strike in the first place.
The General Counsel contends that Robert Coffey, by his remarks to the striking
employees on the picket line, has demonstrated that it would be futile for them to
apply for reinstatement , and that hence backpay should be awarded from the date
the Respondent first made it clear that the strikers would not be taken back. While
it is true that Coffey was somewhat abusive in his treatment of the strikers on the
picket line , I do not believe that the facts of the instant case warrant making an ex-
ception to the general rule that strikers should not receive backpay while on strike.
Accordingly , the General Counsel 's contention in this regard is rejected.
Upon the foregoing findings of fact , conclusions of law , and the entire record in
the case, I issue the following:
clusionary terms that the cashiers left the cash registers unattended at the time of the
strike , there Is other testimony indicating that the Respondent, by using the services of
the two,Coffeys and Assistant Manager Bell and their wives, were able adequately to cover
the cash registers . There Is no showing of any specific harm to the Respondent resulting
from the cashiers walking out as they did. Leaving the cash registers unattended was
not mentioned to any of the striking employees as the cause of their discharge Under
all the circumstances I conclude that this was not a motivating factor in the discharge of
any of the striking employees
12 Such backpay shall be computed on a quarterly basis and interest shall be added at the
rate of 6 percent per annum See F W Woolworth Co , 90 NLRB 289, 291-293; Isis
Plumbing 4 Heating Co , 138 NLRB 716
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER -
Sea-Way Distributing, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to bargain collectively with Retail Clerks Union,
Local 188, Retail Clerks International Association, AFL-CIO, as the exclusive bar-
gaining representative of all selling and nonselling employees at its Chillicothe, Ohio,
store, excluding supervisors as defined in the Act.
(b) Discouraging membership in Retail Clerks Union, Local 188, Retail Clerks
International Association, AFL-CIO, or in any other labor organization by discharg-
ing employees or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(c) Threatening employees with loss of employment because of their union ac-
tivities, coercively questioning employees about union matters, discharging employees
for engaging in strike activity, and in any other manner interfering with, restraining,
or coercing employees in the exercise of their rights under Section 7 of the Act
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, recognize and bargain collectively with Retail Clerks Union,
Local 188, Retail Clerks International Association, AFL-CIO, as the exclusive bar-
gaining representative of all selling and nonselling employees at its Chillicothe, Ohio,
store, excluding supervisors as defined in the Act, with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Upon application, offer immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges, to Patricia Baker, Betty Bivens, Burl Bowling, Victor Chaney, Linda
Colley, Martha Haubeil, Patricia Jackson, Tonita Johnson, Charles Phillips, Marilyn
Ratcliffe, Eugene Reed, Dorothy Reynolds, Samye Rowland, Harold Scott, Juanita
Sterling, and Oliver Zickafoos, and make each of them whole for any loss of pay he or
she may have suffered as a result of its unfair labor practices, in the manner set forth
herein in the section 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, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due and the rights of employment under the terms hereof.
(d) Post at its Chillicothe, Ohio, store, copies of the attached notice marked "Ap-
pendix." 13 Copies of said notice, to be furnished by the Regional Director for the
Ninth Region, after being duly signed by an authorized representative of the Respond-
ent, shall be posted by the Respondent immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Ninth Region, in writing, within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps it
has taken to comply herewith.14
13 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
14 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing. within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten employees with loss of employment because of their
union activities or coercively question employees concerning union matters.
UNITED ASSN., PLUMBING & PIPEFITTING, LOCAL 562 475
WE WILL NOT discharge any employee because he is a member of Retail
Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO, or
any other labor union, or because he engages in a strike or other form of con-
certed activity.
WE WILL recognize and bargain collectively with Retail Clerks Union, Local
188, Retail Clerks International Association, AFL-CIO, as the exclusive bar-
gaining representative of all selling and nonselling employees in our Chillicothe
store, excluding supervisors as defined in the Act, with respect to rates of pay,
wages, hours of work, and other terms and conditions of employment, and will
embody in a signed agreement any understanding reached.
WE WILL, upon application, offer immediate and full reinstatement to Patricia
Baker, Betty Bivens, Burl Bowling, Victor Chaney, Linda Colley, Martha
Haubeil, Patricia Jackson, Tonita Johnson, Charles Phillips, Marilyn Ratcliffe,
Eugene Reed, Dorothy Reynolds, Samye Rowland, Harold Scott, Juanita
Sterling, and Oliver Zickafoos to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and will
reimburse them for any loss of pay they may have suffered after any refusal
Of their applications for reinstatement.
All our employees have the right to form, join, or assist any labor union, or
not to do so.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of these rights.
SEA-WAY DISTRIBUTING, INC.,
Employer.
Dated----------- -------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No. Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, Local Union No. 562 and Foor Engineer-
ing Company . Case No..17-CP-22. June 208. 1963
DECISION AND ORDER
On December 17, 1962, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated Its powers in connection with this case to a three-member panel
[ Chairman McCulloch and Members Rodgers and Leedom].
143 NLRB No. 54.