Sehon Stevenson & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1964

150 N.L.R.B. 675 (N.L.R.B. 1964)

SEHON STEVENSON & CO., INC . , 675
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to join or assist said Union
or any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in any other concerted activities for the
purpose of collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities , except to the extent that such right may be
an agreement in conformity . with Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
WE WILL, upon request , bargain collectively with said Union as the exclusive
collective-bargaining representative of all the employees in said appropriate unit
and, if an understanding is reached , embody such understanding in a signed
agreement.
The appropriate unit is:
All production and maintenance employees employed by the Employer
at its Caldwell , Idaho , plant, excluding office clerical employees , professional
employees , servicemen , and all supervisors as defined in the Act.
KIT MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
'(Representative) (Title)
This notice must remain posted for 60 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, 327 Logan
Building, 500 Union Street , Seattle, Washington , Telephone No. MUtual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with.
its provisions.
Sehon Stevenson & Co., Inc. and Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Case No. 9-CA-3208. '' De
cember 09, 1964
DECISION AND ORDER
On October 23, 1964, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Decision. He also found that the Respondent had
not engaged in other unfair labor practices alleged in the complaint.
Thereafter, the Respondent filed exceptions.
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 Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was -committed.
The rulings are hereby affirmed. The Board. has considered the trial
Examiner's Decision, the exceptions, 'and the entire record in this
150 NLRB No. 64. . ,
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner with the following modification of the
Order.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts the Order recommended by the
Trial Examiner with the following modification and orders Respond-
ent Sehon Stevenson & Co., Inc., Huntington, West Virginia, its
officers, agents, successors, and assigns, to take the action set forth in
the Trial Examiner's Recommended Order as amended herein.
1. Paragraph 2(b) of the Recommended Order is amended as
follows : 2
"(b) Pay to Blaine Johnson and Madison Cook the difference be-
tween the pay they received for the period between May 25 and June 8,
1964, and the pay they would have received during this same period
if they had not been discharged on May 25, 1964, less any other inter-
mediate earnings that they may have had during the period, and
accord to the aforesaid employees the vacation rights and pay that
they would normally have received if they had not been discharged on
May 25, 1964."
i We agree with the Trial Examiner that George Bonecutter and Clarence Cochran
should be excluded from the unit. The uncontroverted evidence reveals that Bonecutter
Is in charge of Respondent's Cash and Carry store in the absence of higher authority
which is approximately 50 percent of the time On such occasions, Bonecutter Issue ;s
orders to employees, has the authority to grant employee requests for time off, and in
general directs the operations of the store Cochran, likewise, is in sole charge of the
warehouse during the night shift and as such is responsible for seeing that the work on his
shift is carried out No higher supervisory authority is present on the night shift. We
find that both Bonecutter and Cochran responsibly direct employees and hence are super-
visors within the meaning of the Act. In view of this finding, we deem it unnecessary
to pass upon the "identification with management" test proposed by the Trial Examiner.
2 The notice is hereby amended to conform with the provisions of this Order. -
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 1, 1964, by Food Store Employees, Local # 347, Amal-
gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein
called the Union, the General Counsel issued a complaint, dated July 14, 1963, alleg-
ing violations of Section 8(a)(1), (3), and (5) of the Act. In its answer, Respondent
denied the commission of unfair labor practices as alleged in the complaint.
With all parties represented, the case was heard before Trial Examiner Ramey
Donovan in Huntington, West Virginia, on September 8 and 9, 1964.
Upon the entire record in the case and from observation of the witnesses, I make
the following: -
FINDINGS AND CONCLUSIONARY FINDINGS
1. JURISDICTIONAL FACTS
Sehbn Stevenson & Co., Inc ., Respondent , is a West Virginia corporation engaged
in wholesale distribution of food products at Huntington , West Virginia . In a repre-
sentative yearly period , Respondent had a direct inflow of material and goods , in inter-
state commerce , valued in excess of $50 ,000, that were shipped directly to it"s Hunt-
ington , West Virginia , plant from points outside West Virginia . During the same
period , Respondent had a direct outflow of products , in interstate commerce, valued
in excess of $50 ,000 that were shipped directly from its plant to points outside West
Virginia . It is found that Respondent is an employer engaged in commerce within
the meaning of the Act.
SEHON STEVENSON & CO., INC.
H. THE LABOR ORGANIZATION INVOLVED
677
The Union,, named above, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's operation; the appropriate unit
In Huntington, Respondent operates a wholesale grocery warehouse and a Cash
and Carry store Respondent has in its employ various office clerical employees and
salesmen in addition to its employees who perform manual work. The manual
workers' group consists of order pickers, loaders, and truckdrivers. Merchandise
comes to Respondent's warehouse by railroad boxcars and by over-the-road trucks of
various suppliers. Respondent's warehouse workers unload the trucks and boxcars
and place the merchandise in the warehouse. When orders are received' from cus-
tomers, the appropriate merchandise is selected from the warehouse by Respondent's
warehouse employees and is loaded upon Respondent's trucks. The trucks are driven
by Respondent's drivers to various customers in the area and the merchandise is
thereby delivered.1
Both the drivers and the warehousemen punch the same timeclock and their hourly
wage is the same.2 When necessary, the truckdrivers assist the warehouse employees
in loading a truck. Johnson, a warehouse order picker, testified that he has also
driven trucks to make deliveries for Respondent and, if there were not enough
deliveries to keep him busy at the time, he then worked in the warehouse.
Approximately seven blocks from its Huntington warehouse, Respondent operates
a Cash and Carry store .3 Merchandise from the warehouse is delivered by Respond-
ent's trucks and drivers to the C & C store. Approximately one or two such deliveries
are made daily. The store's employees stock this merchandise in the store and when
grocers or merchants come to the store their order is then filled by the store employees
from the stock, carried to the merchant's or grocer's truck or car, and is paid for at
the store by the merchant-purchaser. In short, certain merchants or certain merchants
at various times, instead of having merchandise delivered to their retail stores by
Respondent's trucks and drivers, elect to go to the C & C store and pick up merchan-
dise in their own vehicles. As indicated, the store's employees manually load and
unload merchandise, stock it on shelves and so forth. One or two of the four men
employed at the store also operate a cash register to receive payment for the merchan-
dise sold at the store. Employee Elkins, who works at.the store, testified without
contravention, that Clarence McCormick, who in May 1964 was one of Respond-
ent's warehouse truckdrivers, has been transferred to the store and is now working
there with Elkins and-the other store employees. The hourly wage rate at the C & C
store is the same as the rate for the warehouse employees and the drivers.
Respondent is a family corporation of which Bernard McGinnis is president.
Humphreys testified that he is general manager of Sehon Stevenson & Co., Inc., whole-
sale grocery. His immediate superior is President McGinnis. He stated that he had
some responsibility for the C & C store as well as the warehouse and had done all the
hiring for the store. The witness asserted that "recently" Rupert McGinnis, son of
the president, has been running the store. President McGinnis testified that his son
"spends considerable time down there [at the store] and is really responsible for the
operation of the store. [George] Bonecutter is next to him. Between times when
Rupert is out, why he [Bonecutter] is in charge." Thomas Coleman, a C & C store
employee, testified credibly that Rupert McGinnis spends about half his time at the
store and that Rupert, at another location, operates a retail store where he apparently
spends the balance of his time.
The only store personnel who were called as witnesses at the hearing were employ-
ees Elkins and Thomas Coleman. Both these men referred to Bonecutter as their
"boss" and at.the man who told them what to do. Bonecutter could grant employees
"time off" upon request. Bonecutter performs manual work like the other employ-
ees but he principally checks out the merchandise and runs the cash register. Appar-
ently, when Rupert McGinnis is present, he runs the cash register. Depending upon
circumstances, another employee,. Caserta, also has operated the register. Bonecutter
receives $1.30 per hour, as does Caserta. Elkins and Coleman receive $1.25.
The delivery area is within a radius of about 125 miles from the-warehouse.
a E.g., Johnson , a warehouse employee for 2 years , testified that his rate was $1.25
per hour. Hammons, a truckdriver for 8 years, also received $1.25 per hour.
a Herein referred to as the C & C store.
678 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
Although Elkins testified that Bonecutter• had once informed him that he had the
power to discharge him, I am inclined to believe that this power, as well as authority
to hire, rested with Humphreys or Rupert McGinnis or both. But Bonecutter appears
to have been closer to the day-to-day work of the store employees than either Hum-
phreys or Rupert McGinnis and he was the man in charge in McGinnis' absence.
It is a fair inference that if an employee repeatedly refused to carry out Bonecutter's
directions and orders, the latter could effectively report this to higher authority.
There seems little reason to doubt that Bonecutter's authority would be effectively
backed up by his superiors, including appropriate disciplinary action. It is difficult
to see how the store could be efficiently operated if the man in charge so much of
the time was not thus supported by his superiors.
While the store operation in its day-to-day aspects was probably a fairly routine
operation, such responsibility and judgment as was required was exercised by Bone-
cutter for substantial periods of time. Bonecutter's duties, responsibilities, and relation-
ship to the other employees were such that for substantial periods he was in charge
of the store and he was regarded by the other employees as their immediate "boss."
There are of course almost a plethora of Board and court decisions dealing with
questions of whether certain persons are or are not supervisors. A variety of criteria
are to be found. The matter becomes most challenging in the borderline areas in
which Bonecutter's job most appropriately falls. Cases are available for citation to
support the proposition that Bonecutter is a supervisor as well as to support the con-
trary proposition that he is not a supervisor. Most common criterion for the last-
mentioned conclusion is the statement that the individual's directions or orders are
of a routine nature and require no exercise of independent judgment. In some situa-
tions this criterion may be appropriate, particularly where there is another higher
supervisor in immediate proximity to the work and the personnel. But the fact
that orders or directions are of a routine nature requiring little or no independent
judgment is in itself not determinative. The entire operation may be routine in nature
and the calibre of foremen and employees may correspond to the task. For instance,
the entire business of an employer may be the harvesting of potatoes for canning.
Fifty employees gather potatoes in baskets and carry them to a particular designated
individual who is paid 5 cents per hour more than the other employees. This individ-
ual gathers potatoes and he also tells the other employees what to do: whether they
shall-pick row A first or row B; whether a particular basket should contain a few
more potatoes or not; whether the contents of one basket shall be dumped in the
hopper for small potatoes or in the hopper for medium potatoes. This is the man in
charge. He is the boss. Obviously, neither the entire potato gathering operation
nor the status of this individual is to be compared with the construction of a hydro-
electric powerplant under the direction of a chief engineer and it serves no useful
purpose to say that the potato boss, aforedescribed, has only routine duties and earns
only a few cents more than the other workers. He is the man in charge. His duties,
responsibilities, and relationship to the other workers are that of a representative of
management. The criterion is that he has a job that identifies him with management
insofar as his relationship with the other employees is concerned.4
In determining the appropriate unit there is no requirement that the Board can
include or exclude personnel only insofar as they are or are not supervisors although
this is an obvious criterion when supervisory status exists or does not exist in clear
bold outline.5 I am satisfied that Bonecutter's job is identified with management
- * It is- not determinative that a sociologist, political scientist, or economist might con-
clude that the potato.boss earning 75 cents per hour as compared to the other workers'
70 cents per hour should be identified not with management but with the employees. The
fact is that by choice or necessity the potato boss has assumed and discharges the duties
of a representative of management and his personal and private status or philosophy does
not prevail over the requirements of his job If, on his job, he should identify himself
more with the employees than with his responsibilities as a representative of management,
he is jeopardizing his job. The Act's definition of supervisor distinguishes duties that
involve directions of a "routine nature" and those that involve "independent judgment."
Considering the nature of the work, the caliber of the personnel involved, is there any
less independent judgment involved, relatively speaking, when the potato boss directs his
people or when Bonecutter tells his people to place cases of canned tomatoes on the second
from the bottom shelf rather than on the bottom corner shelf with the boxes of washing
detergents, or when he tells one man to fill customer A's order before that of customer B's
order because A is a steady customer ,, or when a chief engineer tells a metallurgist to run
an X-ray test on the weld of a particular tank and pipe.
5 All supervisors are identified with management but an individual may be identified
with management without being a supervisor.
SEHON STEVENSON & CO., INC. 679
both insofar as responsibility is concerned and insofar as his relationship to other
store employees is concerned . As such , I am of the opinion that Bonecutter should
be excluded from the appropriate bargaining units
Although I am of the opinion that "the identification with management " test is a
more appropriate standard , with respect to unit inclusions or exclusions of border-
line personnel , than the supervisor or nonsupervisor test, the latter is the more con-
ventional and has been used almost exclusively by the Board and the courts . Alter-
natively, therefore , I find that Bonecutter is a minor supervisor and should be
excluded from the unit.?
The evidence persuades me that the manual working employees in the warehouse,
including the warehouse truckdrivers , share a community of interest by reason of
their work , their working conditions , and their rate of compensation . It also appears
that the C & C store employees perform basically the same type of work as the
warehouse employees in a reasonably proximate location . The C & C store employ-
ees are paid at the same wage rate as the warehouse employees and the warehouse
drivers and there has been some transfer of personnel from one location to the
other. President McGinnis is the chief executive officer of Respondent 's wholesale
grocery operations , including the warehouse and C & C store . Humphreys is the
general manager; Mays is a foreman and supervisor of the warehouse , including the
drivers, and Mays has hired both warehousemen and drivers. Rupert McGinnis has
recently assumed a position with respect to the C & C store that appears comparable
to that of Mays in the warehouse.8
It is found that all employees at Respondent 's wholesale grocery warehouse and
Cash and Carry store, exclusive of office clerical employees , salesmen, guards, pro-
fessional employees , supervisors , and personnel identified with management by rea-
son of their duties and responsibilities , constitute a unit appropriate for bargaining
within the meaning of the Act -
e The correctness of the "identification with management" test is further confirmed
by the following . One of the reasons employees join unions is to have representation with
respect to day-to-day working conditions . Bonecutter obviously has a good deal to do
with day-to -day work ; e g , he might direct an employee to carry 12 cases of canned peas
to a customer ' s car although the handtruck in the store was not available . There could
be a difference of opinion between Bonecutter and the employee as to the reasonableness
or feasibility of this order . Regardless of the ultimate outcome, it is apparent that -the
two persons aforedescribed have somewhat different interests . Bonecutter ' s principal
concern could be the prompt servicing of the customer whereas a tired employee might
be more concerned with what he believed were his own physical limitations . The fact
that Bonecutter does not determine wages or -hours is not dispositive . A full-scale salaried
foreman, with authority to hire and fire, might not determine wages or hours but he would
be the man in charge of the day -to-day operations of his department and he would be the
boss insofar as his responsibilities , duties, and relationship with employees were concerned
Nor is identification with management dependent upon authority to hire and fire ; the
vice president of a bank may have nothing to do with personnel but he is identified with
management and the potato "boss," previously described , may have no formal title but
he has a great deal to do with personnel in day-to-day work and be also is identified with
management
7 "Minor supervisor" is an accurate term but the adjective "minor" or "major " In this
connection is actually irrelevant . The man either is a supervisor or not and he either
responsibly directs employees and exercises independent judgment or he does not. In
my opinion , Bonecutter meets both these requirements and the fact is,not altered by
applying such terms as "minor" or by saying that Rupert McGinnis is ultimately the top
supervisor of the C & C store. -
8 Possibly , Rupert McGinnis ' relationship to President McGinnis may -accord him a
status higher than that of foreman but his duties with respect to the warehouse appear
to be those of a general foreman or superintendent of the store, with Bonecutter being
in charge of day-to-day operations, at least in McGinnis' absence.
Most of the warehousemen are paid $125 per hour. Three receive $1.30, Cochran,
Chambers , and Spears . Spears is an order picker ; Chambers runs a towmotor to move
merchandise in the warehouse ; and Cochran is the man in charge on the night shift
Cochran gives orders and directions to the men on the night shift. There is no one else
present to exercise authority on the aforesaid shift. As in the case of Bonecutter, I
believe that Cochran's duties and responsibilities identify him with management and that
for this reason he should be excluded from a unit of employees not identified with man
agement who are seeking to bargain with management through a union.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Union's majority in the unit
As of Respondent's payroll, dated May 23, 1964, there were 28 employees in the
appropriate unit .9
Appearing on the payroll but excluded from the unit are the following:
John Nixon: According to Humphreys, Nixon had been employed by Respondent
as a construction worker in May 1964. This was evidently in connection with build-
ing construction work, including the erection of new shelving, that Respondent was
performing in the warehouse. When the construction work was completed, evidently
sometime in May 1964, the construction workers were terminated with one or two
exceptions who were assigned to regular warehouse work. Nixon was not in this
group of retained construction workers.
Blaine Johnson: For 2 years Blaine Johnson had been an employee in Respond-
ent's warehouse , he had also been a driver for Respondent, and he was generally famil-
iar with Respondent's employees. Johnson testified that he was unaware that there
was any employee named Nixon.10
Perley Childers: Also excluded is Perley Childers. Johnson testified credibly and
without contravention that Perley Childers worked as a part- time night watchman
for Respondent on weekends and that Childers had a full-time job with the White
Milling Company in Huntington.
McCoy: According to Johnson, McCoy is a •watchman for Respondent who works
from 12 midnight to 5 a.m. Humphreys testified that McCoy is a night watchman
who, in conjunction with his watchman duties, also performs cleaning and sweeping
in the office and warehouse. The witness stated that on one occasion, "probably three
or four weeks ago" he observed McCoy assisting in loading a truck. There is no
evidence that loading a truck is part of McCoy's normal duties. Presumably, on
occasion, any person may lend a hand to some task. McCoy appears to be basically
a watchman.
Blankenship and Marshall: The names of Blankenship and Marshall also appear
on the May 23, 1964, payroll at $3 and $1.75 per hour, respectively. Johnson's
uncontroverted testimony is that both the foregoing men were construction workers,
hired for that purpose, and terminated when the construction work was completed.
Nathan Pullen: Johnson testified credibly that Nathan Pullen was an employee of
the White Milling Company who worked for Respondent for 1 week in May 1964
while he was on vacation from his regular job at White. Thereafter, Pullen returned
to White and was presently there employed. There is no evidence to the contrary
since Humphreys simply testified that Pullen was a truckdriver for Respondent in
May. The payroll shows the following notation regarding Pullen, "5/11th Nathan
Pullen, Final . . . The word "Final" 'also appears next to the names of three
other employees who were admittedly terminated in May 1964.
At the hearing, the General Counsel submitted authenticated written designations
of the Union as collective-bargaining representative from the following unit employ-
ees as of the 1964 dates shown: Spears, 5/17; Cook, 5/17; Blaine Johnson, 5/17;
Coates, 5/17; Glen Johnson, 5/17; Brumfield, 5/17; Hammons, 5/17; Bob Johnson,
5/17; Gary Childers, 5/17; Perdue, 5/17; Littleton, 5/17; C. McCormick, 5/18;
Rowe, 5/17; A. Coleman, 5/18; Hayner, 5/18; Elkins, 5/22; T. Coleman, 5/19;
Swann, 5/18; Stephenson, 5/20; Lawhon, 6/4.11
*Adkins, C. Childers, G. Childers, Cook, Holley, G. Johnson, Perdue, Ray, Stephenson,
Ward, Junior, Rowe, A. Coleman, Swann, Brumfield , Blaine Johnson, Chambers, Spears,
Coates, Hammons , Hayner , Bob Johnson Lawhon, Maynard, Littleton, C. McCormick,
Caserta, Elkins, T. Coleman.
10 Respondent furnished no evidence regarding Nixon other than as described above from
Humphreys. The May 23 payroll simply shows, 5 /15, John Nixon, and earnings of $61.50.
The printed slips signed by the employees read:
Application
Food Store Employees Union
Local No. 347
P O. Box 2751 Charleston, W. Va
The undersigned hereby authorized this union to represent his or her interest
in collective bargaining concerning wages, hours, and working conditions.
------------------------ ------------------------
Employer's name Employee' s signature
--- ------------------
ki^ployee's address
------------------------
City and State
------------------------
Date
SEHON STEVENSON & CO., INC. 681
In a unit of 28 as of May 23, 1964, the Union represented 19 employees. Blaine
Johnson, Cook, and Rowe were discharged on May 25, 1964. As is found herein-
after, Johnson and Cook were discharged illegally. The figures therefore, as of
May 25 through 28, 1964, when the Union demanded recognition from Respond-
ent as the majority representative of the employees in the unit, were 27 in the unit and
18 valid designations. On June 4, 1964, and thereafter, when Respondent was con-
tinuing to refuse to grant recognition as described hereinafter, the Union had 19
valid designations in a unit of 27. Thus, on May 25, 1964, and at all times there-
after the Union represented .a majority in the appropriate unit.
C. The events of May and June 1964 -
The evidence indicates that the organization of Respondent's employees had its
inception with employees rather than with officials of the Union. An individual
named Kirk, who was an employee of an employer other than Respondent and who
was a member of the Union, held a gathering in her home on May 17, 1964.
Brooks, a union representative, was invited to attend. About 10 or 11 of Respond-
ent's employees were present. In explaining the functions of his union,, Brooks,
among other things, remarked that his union did not commonly organize warehouse
employees and drivers and he referred to the Teamsters Union as a possible alterna-
tive. The employees, apparently had made up their minds to join -the Food Store
Employees Union, however, and after some exposition by Brooks, union designa-
tions, as described heretofore, were signed by those present. Blaine Johnson and
some other employees who were present secured additional blank designation forms
from Brooks and, in the days that followed, distributed them to their fellow employ-
ees and secured their signatures thereon.
Employee Cook testified credibly that, on Friday, May 22, he was working in the
warehouse. Manager Humphreys came-and said to Cook that he wanted to'talk to
him. Cook followed Humphreys to the back of the building. Humphreys said,
"What is this I hear about a union?" Cook said'he had joined the Union and about
19 other employees had also joined. Humphreys asked why Cook -had joined the
Union and was told that the men wanted representation. Humphreys then said,
"Well, don't you' know Mr. McGinnis will fire you; will close the plant down." As
Humphreys left, he remarked that Cook and he had been friends and that, "you need
your job and I need mine ... think it over." Humphreys testified that in any con-
versation with Cook on May 22, or with Spears on May 25, he never "quoted Mr.
McGinnis ..." and in no conversation had he threatened employees with loss of their
jobs if they signed a union card. As indicated, I believe that Cook was a credible
witness and it is found that the aforedescribed statements of Humphreys were viola-
tive of Section 8 (a) (1) of the Act.
Employee Spears testified that, on the evening of May 25, 1964, he was in the
shipping clerk's office at the warehouse. Humphreys and Foreman Mays were also
present. Humphreys asked Spears if he had signed a union card. When Spears
replied in the negative, Humphreys asked what Spears knew about the Union and if
he knew of any of the other men who had signed, remarking "they better stay clear
[of the Union]." Humphreys informed Spears that if Spears signed up for the Union
Spears would lose his job, Humphreys would lose his job, and Mays would lose his
job "because they would close the doors, they would not operate under the Union."
Mays did not testify and Humphreys made the same rather general denial regarding
both Cook's and Spears' testimony that has been previously described. While not
denying conversations with Johnson and Spears on the particular dates, Humphreys
did not testify as to what was said but confined himself to the denial aforementioned.
I credit Spears' testimony and find that the statements made to Spears were violative
of Section 8(a) (1) of the Act.
On May 25, 1964, the Union wrote to Respondent stating that it represented' a
majority of Respondent's employees at the warehouse and the Cash and Carry store.
A meeting was requested to discuss recognition and to begin negotiations for a con-
tract. "If you have any doubts as to our majority status, we will be more than glad
to let you or a representative of yours check over our applications." The letter was
signed by Spencer, the secretary-treasurer of the Union, whose office was in Charles-
ton, West Virginia.
Around 4 p.m. on May 25, while employee Blaine Johnson was working in the
warehouse, his foreman, Mays, handed him an envelope and said, "This is it." John-
son asked what Mays meant and was told, "Well, I think you know what I mean."
Johnson told Mays that Mays knew that what was being done to Johnson was not
right. Mays said that he had received his orders from "up front." Johnson said that
he was not the only employee who had joined the Union and Mays replied that
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson was not the only one that was going to be fired and that there were "plenty
more." 12 Johnson asked about a recommendation for another job. Mays said he
would give such a recommendation if he was called at home but "if you called me
here [at the warehouse] on the telephone , I'd be in the same boat as you are if I
recommended you to somebody else." Mays remarked that he was sorry about what
had happened to Johnson , that Johnson was a good worker but that Mays was under
orders to do what he did. Johnson was accordingly terminated on May 25, 1964.13
Cook had been employed as an order picker in the warehouse notion room (mis-
cellaneous merchandise ) for 1 year in 1964. He had previously worked for Respond-
ent from 1947 to 1953. Cook signed a union designation on May 17, 1964. We
have previously considered Humphrey's conversation with Cook on May 22. On
May 25, 1964, at about 4:30 p.m., Mays came to the notion room, handed Cook
his paycheck and said , "This is it." Cook asked what he meant and whether Mays
knew what he was doing . Mays replied , "Well, this is not my doings. ' This is from
the front office." Cook, like Johnson , was accordingly terminated on May 25, and
in both cases this testimony is uncontroverted and is credited . It is found that John-
son and Cook were discharged on May 25, 1964, because of their union activity and
that the discharges were in violation of Section 8 (a) (1) and (3) of the Act.
Union Representatives Brooks and Spencer having learned of the foregoing dis-
charges shortly. after they occurred , Spencer telephoned President McGinnis on
May 26 and a meeting was arranged for Thursday , May 28, in the Hotel Pritchard in
Huntington.
At the May 28 hotel meeting, Brooks was present for the Union , accompanied by
Johnson and Cook. President McGinnis was there for Respondent , accompanied by
Deerfield who was either or both Respondent 's bookkeeper and McGinnis ' secretary.
As we shall see, Humphreys came to the meeting after it had been underway. The
testimony of Brooks , Johnson , and Cook regarding the events of the meeting
impressed me as credible and accurate . Humphreys testified only briefly about the
meeting and not convincingly . Deerfield did not testify . The testimony of Hum-
phreys and McGinnis regarding the meeting will be described hereinafter.
In the hotel on May 28, Brooks asked McGinnis to reinstate the employees since,
in his view, it was apparent that they had been discharged because of their union ac-
tivities . McGinnis denied the last-mentioned assertion and said that the men were laid
off for lack of work and possibly would be recalled at a later date . McGinnis said
that before he took any action he would have to discuss it with the board of directors.
Brooks- then said that the Union was requesting recognition as bargaining repre-
sentative for all the production and maintenance employees of Respondent , except
for` the supervisors , guards, and office personnel. He asked McGinnis if he had a
payroll list with him so the union cards could be checked . Neither McGinnis nor
Deerfield had brought a payroll with him but Deerfield went to the telephone and
called the warehouse . Shortly after the call , Humphreys came to the hotel room
with a payroll list . McGinnis informed Brooks that he could not recognize the
Union upon checking the cards , explaining that he was one director of the Company
and had to consult the board of directors before making such -a determination.
McGinnis also said that one of the members of the board was out of town and would
not be back for a few days and that, until the full board met , McGinnis could make
no decision for the Company regarding Brooks' request for recognition upon a card
check. At this point, Brooks telephoned his superior, Spencer, and asked whether,
in view of the position taken by McGinnis aforedescribed , Brooks should proffer the
union cards (designations ) to McGinnis for inspection in the hotel . Spencer advised
Brooks to allow Respondent 's people to check the cards.
The union cards were then handed to McGinnis by Brooks. McGinnis looked
at each card as it was handed singly to him ; he then passed each card to Deerfield
who was seated next to him ; Deerfield had a payroll list with two columns captioned
"Yes" and "No"; Deerfield took each card and made a checkmark on the list under
the ' appropriate column ; Deei field then passed each card to Humphreys who laid the
cards on the top of a television set nearby.
12Johnson had signed a union card on May 17. Thereafter , he solicited and secured
signatures of other employees on union authorizations . Johnson was an order picker in
the warehouse . He had also been a driver for Respondent . His total employment with
Respondent was 2 years . There had been no complaints about his work.
is Mays did not testify . Respondent's position is that Johnson and Cook, who, as we
shall see, was also terminated on May 25, were reinstated 2 weeks later and that the
matter is therefore inoot. This contention is considered at a later point.
SEHON STEVENSON & CO., INC. 683
After the cards went through the above procedure, Brooks asked if Respondent's
representatives were satisfied that the Union had 19 cards and represented a majority.
Deerfield said that there were only 18 cards but later agreed that there were 19. The
temporary difference of opinion arose from the absence of Coleman, a Cash and Carry
store employee, from the list, but Deerfield then agreed that Coleman was a store
employee. Also, during the course of the checking, Deerfield had said that the cards
of Johnson, Cook, and Rowe were not valid since they were no longer employees.14
After the foregoing check of the cards, McGinnis and the other two management
representatives rose to leave. According to Brooks, McGinnis said that he would
be in touch with the Union the latter part of the week, presumably after he had met
with the other directors of the Company.
President McGinnis testified that at the meeting he understood that the Union
wanted recognition and that Spencer in arranging the meeting had told him that the
Union represented a majority. McGinnis testified that at the meeting he- informed
Brooks that the board of directors would have to make the decision regarding recog-
nition. McGinnis states that in the hotel Brooks presented 18 or 19 union cards.
Tne witness stated that he looked at the cards casually. He stated that he did not
recall but he probably handed the cards to Deerfield. The witness' recollection did
not impress me as particularly good since he believed that he, McGinnis, Deerfield,
and Humphreys had gone to the meeting together and he was not sure whether the
payroll list was at the office or whether Deerfield had it with him.15 As noted, Deer-
field did not testify and Humphreys did not corroborate McGinnis.
McGinnis does not claim that at the meeting or elsewhere he told the Union that
he doubted the Union's majority status. He simply stated that the decision regarding
recognition would rest with the board of directors. However, at the hearing,
McGinnis testified that he did not think at the time that the Union represented a
majority or he did not know whether it did or not because "it was my understanding
that there was not a majority because ... there were several of the older employees
that discussed the Union with some of the management or some of the people down
there and it was my understanding that the old employees did not want a union." At
another point, the witness said that he had "some information that when these cards
were signed there was more than one person that made the statement that he didn't
know that he was signing for the Union; that he was told it was an insurance policy
that he was signing that wouldn't cost him anything."
I was not impressed by the foregoing. It is vague and general. "Several" unidenti-
fied old employees are said to have discussed the Union with "some of management,"
also unidentified. What was said is not stated but McGinnis testified to his "under-
standing" that the old employees did not want a union. Also unconvincing is the
testimony that McGinnis had "some information" from some unidentified person
that "more than one" unidentified persons had told someone that he thought he was
signing a free insurance policy instead of a union card. There is not another word
or evidence in the record about insurance policies, free or otherwise. Further, the
union cards (applications) were legibly printed and the language was both clear
and simple. A number of Respondent's employees testified at the hearing and they
appeared to be a representative cross section. They impressed me as persons whose
families for a good many generations as well as they themselves had been using,
reading, and writing the English language for many years and that they had no
difficulty in knowing that they were signing up for the Union and not for an insurance
policy.
Humphreys testified that he did bring a payroll list to the hotel meeting. He admits
that he looked at the union cards as presented but his testimony was otherwise uncer-
tain. At one point he said that there were about 28 names on the payroll list in the
hotel but then said he did not know. At another point the witness fixed the figure
as 23 or 24 without the drivers. Humphreys states that he did not count the union
cards, a statement that I have difficulty in crediting even apart from the previously
described and credited testimony of Brooks.
President McGinnis testified that at the end of the May 25 hotel meeting, he told
Brooks to telephone him in a few days and that Brooks never called. This, of course,
14 A11 three employees had been discharged on May 25. There were 28 names on the
list, including the dischargees, or 25 without the dischargees. The Union had cards for
19 or 16 employees, depending upon whether the dischargees were included or excluded.
16 There is no reason why the union people should have said that Humphreys arrived
later in the meeting with the payroll, if this were not the case It would be of no
significance- whether Humphreys was there at the beginning or later but I believe that
McGinnis' recollection in this and other aspects was faulty.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is in conflict with Brooks' testimony that McGinnis had agreed to call Brooks after
McGinnis had had an opportunity to meet with the board of directors on the ques-
tion of whether or not to recognize the Union. I have previously indicated that, in
my opinion, McGinnis' recollection of the events on May 28 was not entirely
accurate. Further, if Brooks was to call McGinnis there is no discernible reason
why he would not have done so. It is clear that the purpose and objective of the
Union and of Brooks was to obtain recognition from Respondent. The subject was
therefore important and not likely to be forgotten by Brooks. The next aspect
therefore is, did Brooks deliberately refuse to call McGinnis. This also appears
highly unlikely. McGinnis had not said on May 28 that the Company would not
recognize the Union. Neither he nor Humphreys nor Deerfield had expressed a
doubt about the Union's majority. McGinnis simply said that he would have to
consult the board of directors before making a decision. Further, on May 28, the
Union had showed Respondent that it possessed cards from a majority of the
employees and it is clear that on May 28 Respondent had not challenged the authen-
ticity of the cards or otherwise expressed doubts about the cards. Why, therefore,
would Brooks fail to telephone McGinnis to learn whether or not Respondent would
recognize the Union? There was at least a reasonable or some possibility that
McGinnis might say that it had been decided to grant recognition. But even if
there was the contrary possibility, Brooks had nothing to lose by calling and being
told that recognition would not be granted. Brooks had nothing to gain by simply
not calling at all if he had in fact agreed to call McGinnis. It was the Union that
was seeking recognition. Surely, if a salesman had asked McGinnis to give the
salesman a 1-year purchase contract for brand X merchandise and McGinnis had said
that he would have to discuss the matter with the directors and told the salesman to
call him in a few days, it is extremely unlikely that the salesman would not have
called to learn the decision.
Respondent did not call the Union after the May 28 meeting although it had
agreed to do so. Respondent's response, to both the Union's May 25 letter and the
May 28 meeting, was a letter of June 12, 1964, from Respondent's counsel. The
letter, in effect, undertook to state why Respondent was not according recognition to
the Union and it referred to the events of the May 28 meeting. However, nothing
is said about the potentially strong point, from Respondent's standpoint (if a fact),
that Brooks had agreed to call McGinnis thereafter but had simply never done so
No assertion is made that the cards were in any way challenged at the meeting but
the letter states that "The cards did not appear to be in order, the signatures did not
check out completely, and several employees are understood to have stated that they
signed some card on the basis of a misunderstanding as to what they are signing."
The letter went on to state that Respondent was "this day" filing a petition for an
election with the Board. The petition was accordingly filed and was subsequently
dismissed 16
We return now to other events that followed immediately after the May 28 meeting
in the hotel. On Friday, May 29, Humphreys came to employee Spears in the
warehouse and asked him if he had signed a union card. When Spears answered in
the affirmative, Humphreys made a checkmark in a book or on a list of names that
he had. Employee Hammons testified that, a day or two after the May 28 meeting,
Foreman Mays spoke to him in the warehouse. Mays asked Hammons if he had
signed a union card. The employee said he had. Mays stated, "Don't you know
you'll put us all out of a job." Mays said that he had heard "the old man" declare
that he would not stand still for a union, that he was getting too old to be worried
with a union, and would close down the place.17 Hammons also testified that, on
May 29, after the hotel meeting of the previous day, Humphreys asked him if he had
signed a union card and that Humphreys was checking off names on a list that he
had. Employees Coates, Elkins, and Thomas Coleman also testified to being inter-
rogated by Humphreys, on or about May 29, as to whether they had signed a union
card and that Humphreys was checking off names on a list as he received their affirm-
18 Traditionally, the Board does not conduct representation elections during the pendency
of unfair labor practice charges N.L R B v. Loren A. Decker, d/b/a Decker Truck Linea,
296 F. 2d 338 , 341, footnote 1 (C.A. 8). The petition of Respondent was dismissed
because of the charge and complaint that alleged that Respondent was refusing to bargain
in violation of the Act
17 At some undetermined time there was apparently placed on the bulletin board a notice
that only President McGinnis could make representations regarding labor relations on
behalf of the Company. Humphreys was unable to state when this occurred even as to
the month. No other management witness reterred to this aspect or sought to clarify the
time or date.
SEHON STEVENSON & CO., INC. 685
ative answers. The aforedescribed interrogation and statements constitute violations
of Section 8 (a) (1) of the Act, occurring as they did in a coercive context, including
the discharges of Johnson and Cook a few days before.18
Humphreys admitted that he polled all the employees as aforedescribed and that
he used a checklist in the process. On the only testimony in the record as to what
responses Humphreys received on May 29, after the May 28 meeting, it is evident
that none of the employees aforementioned at that time denied having signed a union
card. Humphreys testified at first that he did not count the "yes" and "no" responses
when he questioned the employees although he was admittedly concerned about who
had or had not signed cards. The witness also stated that he did not count the
responses because he was so advised by counsel. He then stated, twice, that he
"probably" counted the responses and that he had no reason for not counting them.
In any event, after going to the trouble of interrogating each employee and keeping
a checklist as to whether or not each employee had signed a union card, Respondent
has introduced no evidence as to the result of its poll in support of its contention
that it had a good-faith doubt of the Union's majority.
On Friday, June 5, 1964, Humphreys telephoned Blaine Johnson at_his home and
asked him to come to the office the next day. On June 6, Johnson and Cook, both
of whom had been discharged on May 25, came to the office. In addition to the two
former employees, President McGinnis and Humphreys were present. McGinnis
spoke about his life and his struggles earning a living and referred to the possibility
of a plan he had for some time to split profits with the employees. Johnson referred
to another local wholesaler that was paying $1.40 per hour and was also paying
its employees a $800 to $1,000 yearly bonus. McGinnis said that his employees
could be securing the same thing, maybe more, when things were worked out.
McGinnis referred to his brother's experience with a union and said that he did not
think a union was the right thing for the Company (Stevenson). McGinnis then
left.19 Shortly thereafter, Humphreys told the two men who had remained that they
should come back to work on Monday, June 8.
Johnson and Cook accordingly returned to work on June 8. About 2 weeks after
they were back at work Humphreys summoned them to his office. Humphreys said
that the Company was going to pay them for the 2 weeks that they lost but that the
Company would like them to count 1 of the 2 weeks as vacation. The men said,
all right. A few days later, Johnson and Cook each received two checks, each check
for a 40-hour week.
D. The discharge of Rowe
Rowe was hired in the latter part of February 1964 by Mays. The latter informed
Rowe when he hired him that Rowe's work might last 2 weeks, or 3 or 4 months,
or Rowe might have permanent employment. Rowe was hired to perform construc-
tion work in the warehouse, principally the installation of shelves. Other men had
also been hired during this period to perform construction work. Rowe worked on
the shelving for about 3 months. When this construction work was completed, all
but three of the construction men were terminated. One of these three, Thomas
Coleman, was assigned to work in the Cash and Carry store. The other two, Rowe
and Alfred Coleman, then did some construction work on a cooler that the Company
was installing. Alfred Coleman was then assigned to work in the boxcars which
was a part of the regular warehouse work of loading and unloading merchandise
for the warehouse. Rowe, after working on the cooler for 3 or 4 weeks, was then
assigned to work in the boxcars subsequent to Alfred Coleman. Apparently, three
men were then working in the boxcars, Rowe, Coleman, and another regular ware.,
house worker. Rowe worked in the boxcars 2 or 3 weeks. He was discharged on
May 25, by Mays, who told him that he was not needed any more.
Rowe had signed a union card on May 17. Alfred Coleman had signed on May 18
and Thomas Coleman on May 19. Alfred Coleman originally had been hired
for construction work as had Rowe, but apparently Coleman had been hired about
"On separate occasions, around May 29, Bonecutter told Elkins and Thomas Coleman,
employees in the Cash and Carry store, that if they did not forget about the Union
they would lose their jobs. In view of Bonecutter's position, his statements, consistent
as they were with somewhat similar remarks by higher supervisors, are chargeable
to Respondent as Section 8(a) (1) violations
's There is no contention that prior to this occasion, which followed the advent of the
Union, Respondent had indicated to its employees the possibility of higher,wages or of a
bonus arrangement. McGinnis. testified that he had said "to some of the management
quite sometime back" that the Company would take 6 percent on the investment and
would split the balance of the earnings with the employees. But June 6 was, as far as
appears, the first time that the foregoing was communicated to the employees.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 weeks later than Rowe. Aside from signing a card, there is no particular union
activity attributable to Rowe or evidence that Respondent was aware of his union
activity. The fact that Coleman was retained in preference to Rowe does not estab-
lish antiunion motivation. The fact that Rowe was discharged on May 25, the same
date as the discriminatory discharges of Johnson and Cook, creates some suspicion
but, in our opinion, it is not sufficient to warrant a finding of illegal discharge in' the
case of Rowe. Accordingly, it is found that the burden of proof has not been sus-
tained with respect to Rowe and dismissal is recommended.
Conclusions
The evidence in this case is clear, in our opinion, that the Union on May 25, 1964,
and at all relevant times thereafter represented a majority of Respondent's employees
in an appropriate unit, as described above. Equally clear is the fact that on May 25,
and on May 28, the Union claimed to represent a majority and requested recognition.
The Union claimed to represent a majority and requested recognition. The claim and
the request were not abandoned and continued thereafter.
Respondent's response to the organizing of its employees was a series of illegal
interrogations and warnings of dire economic consequences to the employees that
commenced on May 22, soon after the union movement among its employees was
underway. Two employees, Johnson and Cook, were discharged on May 25, because
of their union affiliation` and activity. These efforts to undermine the Union's status
among its employees were continued by Respondent after May 25, and after May 28,
as had been described in detail in this Decision.
Throughout the aforementioned campaign to undermine the Union, Respondent
did not express any doubt to the Union concerning the latter's majority status in the
appropriate unit. Indeed, on May 28, Respondent checked the union authorization
cards against Respondent's payroll without questioning the authenticity of the cards
or the demonstrated fact that a majority of the employees ,in the unit had selected
the Union as the bargaining agent. Respondent's president simply stated that he
could not make the determination to recognize the Union but would have to consult
with the board of directors within the next few days.
Respondent's formal response to the request for recognition was not forthcoming
until June 12, 1964, in a letter sent to the Union. For the first time, Respondent,
on June 12, cast or sought to cast some aspersions upon the union cards previously
presented to, and examined by, Respondent on May 28. It was stated that the cards
"did not appear to be in order" and that the signatures "did not check out completely"
and that Respondent "understood" that "several employees" stated that they, had
signed a card "on the basis of a misunderstanding...." Respondent, in effect, refused
to recognize the Union and stated that it was filing a petition for an election. The
proposed election, of course, was in the context of the previously described campaign
to destroy and to undermine the Union that had been selected by a majority of the
employees.
The Act imposes upon the employer the obligation to bargain with the repre-
sentative of his employees. An employer may refuse recognition to a union when
motivated by a good-faith doubt of the Union's majority status. But this exception
to the mandatory bargaining duty prescribed by the Act is based upon equitable
principles and the employer may not avoid its obligation where it engages in unfair
labor practices to undermine the Union and to frustrate its organizing and to dis-
sipate its majority. In the case at bar I find that Respondent's bare and vague asser-
tions of doubt concerning the Union's cards and its majority status, and the absence
of any cogent facts in support of such doubts, do not establish the existence of a
good-faith doubt on Respondent's part. Indeed, Respondent's unfair labor practices
negate Respondent's claim of good faith and manifest an effort to dissipate the
Union's majority. Accordingly, it is found that 'Respondent's conduct constitutes a
violation of the duty to recognize and to bargain with the Union and is a violation
of Section 8 (a) (1) and (5) of the Act 20
2D "Respondent contends that it had no duty to bargain until the union had established
its majority status by a Board election. There is no absolute right vested in the employer
to demand an election . . . . If an employer in good faith doubts the union's majority,
he may, without violating the Act, refuse to recognize the union until its claim is estab-
lished by a Board election. A doubt professed by an employer as to the union's majority
claim must be genuine . Otherwise the employer has a duty to bargain and may not insist
upon an election ." N.L.R.B. v. Trimfit of California, Inc, 211 F. 2d 200, 20'9 (C A. 9).
An employer refuses to bargain if its insistence upon an election is not motivated by a
bona fide doubt as to the union's status but by a rejection of the bargaining obligation or
by a desire to gain time within which to undermine the union . Joy Silk Mills v . N.L.R.B.,
SEHON STEVENSON & CO., INC . 687
With respect to the discharges of employees Johnson and Cook, Respondent has
offered no evidence in defense of its action. Respondent's position is, in effect, that
the discharges present a moot situation since it reinstated the two men after 2 weeks
and the two employees accepted the backpay that was offered to them.
It is well settled that the Act and the Board that administers the Act are to protect -
and to vindicate public rights and public policy as distinguished from the private rights'
of persons in private litigation.21 The remedial objectives of the Act, where unfair
labor practices have been committed, are not attained by some private arrangement
between an employer and his employees to which the Board, as the statutory agent,
and the party vested with statutory responsibility, is not a party. This would be
true even if the action taken by the Respondent in the instant case involved not only
reinstatement but full restoration of all pecuniary and other private rights that might
be owing to the discharged employees.22 "It is settled law that the discontinuance
of unfair labor practices does not dissipate, their effect and does, not obviate the need
for a remedial order." Chefs, Cooks, Pastry Cooks & Assistants, Local 89, etc. (Stork
Restaurant, Inc.), 130 NLRB 543, 546 and cases cited therein.
Quite apart from the foregoing, the evidence is clear that Respondent simply told
Johnson and Cook, who had been discharged for 2 weeks, that they could come back
to work and that Respondent would pay them for two 40-hour weeks, with 1 of the
2 weeks being counted as a vacation week. The men were glad to regain their jobs
and to receive such money as was offered.
The record evidence is that the regular and customary workweek of Johnson and
Cook was 91/2 hours per day or 47'/2 hours per week. If they had not been illegally
discharged on May 25, 1964, they would have worked and would have been paid
for 47'/2 hours per week for the next 2 weeks. Instead, they were-paid for 40 hours
per week for the 2 weeks. It is also true that at an appropriate time the employee
receives a week's vacation which is paid for at the same rate and on the same basis
as the regular workweek of 471/2 hours.23 The vacation pay would be in addition
to the 2 weeks pay lost by Johnson and Cook by reason of their discharge.24
In the light of the foregoing considerations, a violation of Section 8(a) (1) and (3)
has been found with respect to the discharges of Johnson and Cook and the unfair
labor practice is not excluded from consideration and appropriate action by any
alleged mootness.
IV. THE REMEDY
Having found that Respondeni has committed certain unfair labor practices, re-
medial action is called for to effectuate the policies of the Act.
It will be recommended that Respondent, upon request, recognize and bargain with
the Union as the collective-bargaining representative of its employees in the appro-
priate unit.
Since Respondent has reinstated Johnson and Cook, it will be recommended that
it reimburse each man for the difference in pay between two 40-hour workweeks for
which each was paid and two 471/2-hour workweeks for which each would have been
paid if Respondent had not discharged them, less any other intermediate earnings
that Johnson and Cook may have had in the period between May 25 and June 8,
1964. It will also be recommended that Respondent shall accord to Johnson and
Cook such vacation and vacation pay as each would have normally received if they
had not been discharged and if'they had worked continuously from May 25 to June 8,
1964, and thereafter.
185 F 2d 732 (CA.D.C.), cert. denied 341 U.S. 914; N.L.R.B. V. Federbush Company,
Inc., 121 F. 2d 954 (C.A 2) ; N.L R B. V. Armco Drainage it Metal' Products, Inc., 220
F 2d 573, 577 (C A. 6) ; N L.R.B. v. W. E. and Lela Stewart d/ b/a Stewart Oil Company,
207 F. 2d 8, 13' (C A. 5) ; N.L R B. v. Inter City Advertising Company, Inc., 190 F. 2d
420, 421 (CA 4), cert. denied 342 U S. 908; N.L.R.B. v. Harry Epstein, et al. d/b/a Top
Mode Manufacturing Co., 203 F. 2d 482, 484- (C.A. 3), cert. denied 347 U.S. 912.
21 N.L R.B. v Font Milling Company, 360 U.S. 301, 307-308.
az At the hearing, Respondent indicated a willingness to make further payment to the
dischargees if such was due them but stressed the fact that the dischargees had agreed
to the terms proposed in June 1964 and had accepted those terms. Respondent was not
willing to enter into a settlement with the General Counsel that would effectuate the
public policy of the Act.
27 Uncontroverted testimony of Hammons, an employee for 8 years, and of Coates, an
employee of 51/2 years; General Counsel's Exhibit No. 5, payroll stub.
24 As Indicated, Respondent compensated the men for two 40-hour weeks.
775-692-65-vol. 150-45
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent , by discharging Johnson and Cook under the circumstances described
in this Decision , engaged in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and ( 3) and 2 (6) and ( 7) of the Act.
2. Respondent by interrogating its employees regarding their union affiliation or
activities in a context of and by predictions and threats of economic reprisal and
detriment , has interferred with, restrained , and coerced its employees in violation
of Section 8(a)(1) of the Act.
3. Before and since May 25, 1964, when the Union claimed to represent a majority
of Respondent 's employees in the appropriate unit and did represent a majority as
claimed , and Respondent was requested to recognize and to bargain with the Union
as collective-bargaining representative , Respondent engaged in unfair labor practices
to undermine the Union, and has, in the period subsequent to May 25, 1964 , refused
to recognize and to bargain with the Union , all in violation of Section 8(a)(5) and
(1) of the Act.
4. Respondent did not discharge Clarence Rowe in violation of Section 8(a)(3)
of the Act.
RECOMMENDED ORDER
Upon the findings of fact , conclusions of law, and upon the entire record, it is
hereby ordered that the Respondent , Sehon Stevenson & Co., Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act, either by coercive interrogation or
predictions or threats of economic detriment , or in any other manner of interference
or discrimination or refusal to accord its employees their statutory rights.
(b) Discriminating against Blaine Johnson or Madison Cook or any other employee
because of union affiliation or union activity protected by the Act.
(c) Refusing to bargain collectively with Food Store Employees Union, Local
# 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive bargaining representative of its employees in the following
appropriate unit:
All employees at Respondent 's wholesale grocery warehouse and Cash and Carry
store exclusive of'office clerical employees , salesmen, guards , professional employees,
supervisors , and personnel identified with management by reason of their duties and
responsibilities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named union as the exclusive
representative of employees in the aforementioned appropriate unit and if an under-
standing is reached embody such understanding in a signed agreement.
(b) Pay to Blaine Johnson and Madison Cook the difference between the pay
they received for the period between May 25 and June 8, 1964, and the pay they
would have received during this same period if they had not been discharged on
May 25, 1964. Accord to the aforesaid employees the vacation rights and pay that
they would normally have received if they had not been discharged on May 25, 1964.
(c) Post at its warehouse and Cash and Carry store, the attached notice marked
"Appendix." 25 Copies of said notice , to be furnished by the Regional Director for
Region 9, shall , after being duly signed by an authorized representative of Respond-
ent, be posted by Respondent 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 Respondent to insure that said notices are not altered , defaced , or covered by
any other material.
(d) Notify the Regional Director for Region 9, in writing, within 20 days from
receipt of this Decision , what steps it has taken to comply therewith.26
25 If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board ' s Order is enforced by a decree of a United States Court of
Appeals , the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order".
20 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
ONEITA KNITTING MILLS, INC. 689
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , we are posting this notice to inform our employees of the rights
guaranteed them in the National Labor Relations Act to conform to the policies of
the aforementioned law:
WE WILL bargain collectively , upon request , with Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO , as the exclusive representative of all employees, in the
bargaining unit described below, with respect to wages, hours of employment,
and other conditions of employment , and, if an understanding is reached we will
embody such understanding in a signed contract.
The bargaining unit is:
All employees at our wholesale grocery warehouse and Cash and Carry
store, exclusive of office clerical employees , salesmen , guards, professional
employees , supervisors, and personnel identified with management by rea-
son of their duties and responsibilities.
WE WILL NOT discriminate against Blaine Johnson , Madison Cook, or any
other employee because of union affiliation or union activity protected by the
National Labor Relations Act.
WE WILL pay to Blaine Johnson and Madison Cook the portion of the wages
that they lost when they were discharged on May 25, 1964, and which they have
not received . We will also grant to the two aforesaid employees any vacation
rights or vacation pay that they would have received if they had not been
discharged.
WE WILL NOT interfere with, restrain , threaten , or coerce our employees in
the exercise of the rights guaranteed to them under the National Labor Relations
Act including the right to join the Food Store Employees Union , aforementioned,
and the right to be represented by the said union for the purpose of collective
bargaining, as well as the right of employees to refrain from joining a union or
to refrain from union activity , except as the last-mentioned rights may be
affected by a mutually agreed -upon contract between the Company and the
union that could require membership in the union as a condition of employment.
SEHON STEVENSON & CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023 , Federal Office Building, 550 Main Street, Cincinnati , Ohio , Telephone No.
381-2200 , if they have any question concerning this notice or compliance with its
provisions.
Oneita Knitting Mills, Inc. and International Ladies' Garment
Workers' Union , Local 371. Case No. 11-CA-2170. December 29,
1964
DECISION AND ORDER
On July 20, 1964, Trial Examiner Harold X. Summers issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. He
further found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended dis-
150 NLRB No. 54.