Wilson Wholesale Meat Co., Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1974

209 N.L.R.B. 222 (N.L.R.B. 1974)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson Wholesale Meat Company , Inc. and Amalga-
mated Meat Cutters and Butcher Workmen of
North America, Local Union 576, AFL-CIO. Case
17-CA-5323
February 25, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 30, 1973, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
In making the requisite unit determination under
the 8(a)(5) refusal-to-bargain allegation of the com-
plaint, the Administrative Law Judge found that
Respondent's production employees have a commu-
nity of interest sufficiently separate from the driver-
salesmen to warrant establishing a separate bargain-
ing unit for them. We disagree. The record evidence
shows that the driver-salesmen report to work 1 hour
after the production employees, at which time they
spend approximately one-half hour reporting in their
receipts from the previous day and making telephone
calls to that day's customers. Thereafter, they work
in the production area between 2 and 4 hours helping
to prepare orders and loading their trucks, with help
from production employees. Then they depart for
deliveries on their respective routes. Their hours are
somewhat flexible, averaging between 40 and 55, and
they quit when they return from their respective
routes. Unlike the production employees who are
paid hourly wages, the driver-salesmen receive a
salary plus commission. All of Respondent's employ-
ees receive the same fringe benefits and use common
facilities such as the coffee and smoking room. In
finding that the driver-salesmen should be included
in the unit with the production employees, we rely
especially on the fact that the driver-salesmen spend
considerable time each day performing in-plant work
I In the absence of exceptions thereto, we hereby adopt pro forma the
Administrative Law Judge's dismissal of the complaint with respect to the
alleged constructive discharge of Glenna Hulen
2 The Administrative Law Judge found that Magruder was covered by
the driver-salesmen exclusion and made no resolution of his supervisory
status for unit purposes No exceptions have been filed to the finding that
and that they can, and do, perform many of the same
work functions performed by production employees.
The Administrative Law Judge also excluded the
in-town salesman (Norman Gordon), finding that his
predominant employment interests are clearly with
the driver-salesmen rather than the production
employees. In view of our finding relative to the
driver-salesmen, supra, we find that the in-town
salesman should be included in the unit.
Accordingly, we find that the following employees
constitute an appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time production
employees and drivers, the driver-salesmen, and
the in-town salesman employed by Respondent at
1207 Rogers Street, Columbia, Missouri, but
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
As becomes apparent hereafter, it is necessary to
resolve (a) whether Philip Magruder is a supervisor
within the meaning of the Act,2 and (b) whether
Helen Bryant is excludable as an office clerical or
includable as a plant clerical.
In our opinion, the General Counsel has failed to
sustain the burden of proof to establish that
Magruder possessed any of the statutory criteria
necessary to qualify him as a supervisor under
Section 2(11) of the Act. There was limited testimo-
ny, presented during the representation case hearing;
and the instant hearing, bearing upon Magruder's
supervisory status. Certain of this testimony suggests
that Magruder has authority to make recommenda-
tions concerning hiring and discharging of driver-
salesmen . However, the record evidence further
reveals that he has never exercised this authority and
there is no evidence to show that his recommenda-
tion would be acted upon without an independent
investigation. Accordingly, we find that Magruder is
not a supervisor within the meaning of the Act.
With respect to Helen Bryant, the record reveals
that at the time of the representation case hearing on
August 30, 1972, Bryant had been working for more
than a month at a variety of tasks in the plant proper
between 4 to 6 hours each morning. These tasks
included the preparation of a list of items to be
removed from the freezer for each route, a list of
items that had to be cut, as well as reading the scales
Magruder is a driver-salesman and the record supports that finding.
3 The record in representation Case 17-RC-6971 was incorporated by
agreement of the parties into the record of the instant case . See fn. I of the
Administrative Law Judge's Decision The Union withdrew its petition and
no election was held because of the matters alleged in this case.
209 NLRB No. 35
WILSON WHOLESALE MEAT COMPANY
and recording weights on all out-of-town tickets.
After the trucks were loaded, Bryant worked in an
office where she took phone calls for orders, figured
tickets, did some work on accounts receivable and
payable, and did some compilations of hours worked
for payroll purposes. It appears that Bryant's duties
changed, if not in substance, at least in degree, by the
time of the hearing in the instant case on February 7
and 8, 1973.4 Of course, the unit issues presented in
this proceeding require that we determine Bryant's
status at the time of the Union's bargaining demands
of August 30 and September 12, 1972, and, on those
dates, it appears clear that Bryant was performing
tasks associated with a plant clerical rather than on
office clerical. Accordingly, we find that, for the
purpose of determining unit placement at the time of
the Union's bargaining demands, Bryant was a plant
clerical and includable in the unit found to be
appropriate.
In view of our findings, supra, that Helen Bryant,
the driver-salesmen, including Philip Magruder, and
the in-town salesman, Norman Gordon, are employ-
ees in the unit found to be appropriate herein, we
also find merit in Respondent's exceptions to the
finding of the Administrative Law Judge that the
Union represented a majority of Respondent's
employees on August 30, 1972.5 The Union present-
ed evidence that it represented 11 employees on
August 30.6 However, the record reveals that on that
date there were 22 employees in the unit we have
found to be appropriate.? Accordingly, we find that
the record evidence fails to establish that the Union
represented a majority of Respondent's employees,
in the unit found to be appropriate, on August 30.
Furthermore, there is no basis in this record to
establish that the Union at any subsequent time
represented a majority of the unit employees. The
General Counsel contends that Respondent violated
Section 8(a)(5) by refusing to recognize and bargain
with the Union on or about September 14. However,
Respondent's next payroll list for the 2-week period
ending September 16 shows 26 employees.8 These 26
employees include the 22 employees employed on
August 30, during the previous payroll period, as well
as 4 new employees.9 The Respondent received the
Union's formal written demand on September 12.
Although the record evidence does not establish the
precise dates these new employees were hired, it is
4 Even so, it should be pointed out that Bryant worked in an office
adjacent to the main office and that it was in the main office that the
owners' wives, Mrs. Wilson and Mrs Diggs , performed what clearly appear
to have been clerical chores associated with an office clerical position
5 Hereafter , all dates will refer to events which occurred in 1972
6 These 11 employees included: A Richey, E Brown, J McClammer, J
Moyer, L. Kling. C. Aust, D. Green . T Spry, R Perkins, D Dickenson, and
G. Helen.
7 In addition to the 11 unit employees listed in fn 6, the unit included the
223
clear that, regardless of whether the August 30
demand date or the one of September 12 is relied on,
the General Counsel has failed to show that the
Union represented a majority of the unit employees.
In the absence of record evidence to establish that
the Union represented a majority of the employees in
the unit found to be appropriate, at the time of the
Union's initial demand on August 30 or its formal
written demand received by Respondent on Septem-
ber 12, or for that matter at any other time, there is
no basis, on this record, to find that Respondent
violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union.
We also find, contrary to the Administrative Law
Judge, that the record evidence is insufficient, under
the circumstances herein, to establish that Respon-
dent violated Section 8(a)(1) of the Act by standing
over employees and scrutinizing them and imposing
more onerous work rules respecting talking, smoking,
and housekeeping chores. All of the foregoing
incidents involve matters which one might readily
expect to occur in the routine day-to-day operations
of a plant; none involves serious departures from
past practices; and in no case was the Union
mentioned or otherwise connected with the action.
Accordingly, we shall dismiss these 8(a)(1) findings.
Finally, while we do not condone the 8(a)(1)
conduct of the Respondent here disclosed, we do not
find such conduct, standing alone, to be of a nature
sufficient to justify a Gissel 10 bargaining order in the
absence of proof that the Union represented a
majority of the employees in the appropriate unit.
While we have determined in this case that the
proper avenue for ascertaining the employees'
interest in union representation is through our
election procedures, we are unable to direct that such
an election be held because there is no election
petition currently before us.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within
Section 2(5) of the Act.
3. The following employees constitute an appro-
priate bargaining unit within the meaning of Section
9(b) of the Act:
following employees B J Carter, R Alexander, D Stone, H Bryant, D
Edwards, N. Gordon, P Magruder, L Waulters, H Winiger, R Mayes, and
B Kramer.
8 G.C. Exh # 3 covering this period shows 25 employees The
Administrative Law Judge correctly found that employee Richard Perkins
was inadvertently omitted from that list, thus bringing the total to 26.
9 No one questions the fact that the hiring of these new employees was
for legitimate business reasons
10 A L R B v Gissel Packing Co. Inc, 395 U.S. 575 (1969)
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time production
employees and drivers, the driver-salesmen, and
the in-town salesman employed by Respondent at
1207 Rogers Street, Columbia, Missouri, but
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
4. Respondent has violated Section 8(a)(1) of the
Act by the following conduct: coercively interrogat-
ing employees concerning their own and other
employees' union and other protected concerted
activities; coercing employees for the purpose of
dissuading them from voting in Board elections
and/or participating in union membership and
activities; seeking to induce employees by promise of
employment benefits to dissuade them from voting
for, joining, or otherwise supporting the Union; and
threatening plant closure, discharge, and other
reprisal for union reasons.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
6. Respondent has not engaged in other unfair
labor practices alleged in the complaint.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
of the Act, Respondent shall cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Wilson Wholesale Meat Company, Inc., Columbia,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their own and other employees' union and other
protected concerted activities.
(b) Promising benefits to dissuade employees from
joining or voting for or otherwise supporting the
Union.
(c) Coercing employees in order to dissuade them
from voting in Board elections and/or participating
in union membership or union activities.
(d) Threatening plant closure, discharge, or any
other reprisal for union reasons.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in their exercise
of rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Post at its premises at Columbia, Missouri,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly
signed by Respondent's representative, shall 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER FANNING, dissenting in part:
I would affirm the Administrative Law Judge's
Decision in its entirety.
My disagreement with my colleagues stems from
their view that the unit should include driver-
salesmen. Clearly these driver-salesmen have sepa-
rate interests sufficient to warrant their exclusion
from the production unit here sought by the
Charging Party. In reaching this result the Adminis-
trative Law Judge relied on Tallahassee Coca-Cola
Bottling Company, Inc., 168 NLRB 1037, 1038, enfd.
409 F.2d 201 (C.A. 5, 1969), where this very issue was
discussed at length by this Board. It approached the
inclusion-exclusion problem with respect to driver-
salesmen in light of the petition filed, and the court
enforced. In Tallahassee the driver-salesmen were
included in the unit as requested by the petitioning
union. Here the driver-salesmen-having the normal
separate community of interest arising from different
hours, different method of pay, and substantial
working time away from the plant-were not sought
to be represented by the Union and the production
unit excluding them is also an appropriate unit.
As the Board said in Coca-Cola Bottling Company
of Baltimore, 156 NLRB 450, 453, and quoted (with
emphasis supplied) in Tallahassee: "If the route
salesmen are engaged in selling their employer's
products, and drive vehicles and make deliveries only
as an incident of such sales activity, their interests
would not generally be construed as sufficiently
11 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board."
of the National Labor Relations Board" shall read "Posted Pursuant to a
WILSON WHOLESALE MEAT COMPANY 225
allied with production employees to require their
inclusion in a production and maintenance unit."
Accordingly, like the Administrative Law Judge, I
would find the 8(a)(5) violation and issue an
appropriate bargaining order.
an answer filed by Respondent, a hearing was held on
January 31-February 1, 1973. The complaint and the
answer were respectively amended at the heanng.
Upon the entire record in this case' including my
observation of the demeanor of witnesses and upon
consideration of briefs, I make the following:
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their own or other employees' union
membership and activities.
WE WILL NOT promise benefits or coerce our
employees to vote against, or not to join or assist,
the Union.
WE WILL NOT threaten to close down our plant
or to discharge or to take any other reprisal
against employees for union reasons.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in their exercise of rights guaranteed under
Section 7 of the Act.
WILSON WHOLESALE
MEAT COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616 Two Gateway Center, Fourth at
State, Kansas City, Kansas 66101, Telephone
816-374-4518.
DECISION
STATEMENT OF 7HF. CASE
RALPH W1NKI.ER, Administrative Law Judge: Upon
charges and amended charges filed by the aforenamed
Union on September 11 and October 30, 1972, a complaint
issued by the General Counsel on November 14, 1972, and
i The record in this case inLludes , by agreement of the Parties, the record
in Wilson Wholesale Meat Company, inc, Case 17 RC-6971, hereinafter
referred to as the representation case. Respondent 's motion to correct the
transcript is hereby granted.
2 All dates herein are in 1972 unless otherwise indicated.
9 These included cards of Allen Richey , Randy Hudson, Ernest Brown,
John McClammer . Jake Moyer, LeRoy Kling. Charles Aust . David Green,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Missouri corporation, engaging in the
wholesale distribution of meat, fish, and potato products in
Columbia, Missouri; Respondent's interstate purchases
exceed $50,000 annually. I find, as all parties agree, that
Respondent is engaged in commerce within Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local Union 576, AFL-CIO, herein called
the Union, is a labor organization within Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement
The Union began organizing Respondent's employees in
July 1972.2 Employees signed union authorization cards
and the Union filed a representation petition on July 28. A
hearing in the representation case was held on August 30,
but the Union withdrew its petition and no election was
held because of the matters alleged in this case. Mean-
while, by letter dated September 9, the Union requested
recognition as majority representative of a described unit
of Respondent's employees and the letter contained copies
of signed authorization cards to support such claim.3
Respondent refused the Union's request. This was not the
first time Respondent had declined to grant such recogni-
tion, it originally did so, in effect, at the August 30 heanng
in the representation case.
The issues in this case are whether Respondent engaged
in various activities, mainly in August and September,
designed to thwart the organizational efforts of its
employees and whether Respondent also constructively
discharged two employees in September 1972 and January
1973 for a like purpose, and whether Respondent's alleged
activities are sufficient to warrant a Gissel-type4 bargaining
order. Related questions involve the appropriate unit and
the Union's majority status in such unit.
H. C. Wilson-" is Respondent's president and T. W.
Diggs its secretary-treasurer; Jake Lewis is the plant
manager. (Mr. and Mrs. Diggs and Mrs. and Mr. Wilson
own Respondent.) These three individuals are supervisors
within Section 2(11) of the Act. The parties disagree
Terry Spry, Richard Perkins, John Dickenson . and Glenna Hulen All of
these employees except Hudson were on Respondent 's September 2 payroll
4 N LR B. v. Girsel Packing Co, 395 U.S. 575 (1969).
s At the conclusion of its case, Respondent submitted a certificate from a
local physician to the effect that Wilson is physically incapable of
participating in court hearings and the record otherwise indicates that
Wilson has suffered two heart attacks.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Route or Sales Supervisor Philip Magruder also is
a statutory supervisor, the General Counsel contending
that he is and Respondent claiming he is not.
B. Respondent's Countervailling Action
Bearing in mind that the representation petition was filed
on July 28 and that the hearing thereon was held on
August 30, the following is an account of Respondent's
activities.
Respondent manifested its union position even before its
own employees began organizing. LeRoy Kling has been
employed by Respondent for almost 7 years, and was a
credible witness. In late June, according to Kling, plant
manager Lewis told Kling that he had been discussing the
fact with owners Diggs and Wilson that employees at
Raders Meat Packing Company were signing union cards.
Raders is located across the street from Respondent's
plant. Lewis told Kling on this occasion that Respondent
would "close the place" if its employees engaged in such
activities .6 Lewis called Kling aside early in August, and it
is not denied that he told Kling that "they knew that there
had been some union activity [in Respondent's plant] and
that the Union was trying to come in." Lewis inquired,
according to Kling's undenied testimony, whether Kling
knew that Respondent's employees had been signing union
cards, what Kling thought about it, whether any union
meetings had been held, and who the ringleader was. Lewis
further stated, according to Kling's undenied testimony,
that "if you guys do get a union in here, you won't make
any more money, that they would see to it that you got less
hours and that you won't get a closed shop."
Employee Charles Aust credibly testified, without
contradiction, that Lewis also asked him early in August
whether he had heard about the organizational activities at
Respondent's plant and whether Aust would join the
Union. Aust said he hadn't decided. According to Aust's
credible testimony, which Lewis denied, Lewis also
mentioned that "if we got the union, our hours would be
cut and our pay wouldn't be as much as we had heard that
the union pay would be." A week or two later Lewis again
asked Aust, according to Aust's uncontradicted testimony,
what the latter was "going to do about the union."
Early in August, employee Terry Spry asked Lewis for a
"promotion." According to Lewis, Spry's main interest was
to reduce his 12-hour day (Spry described it as a "11-hour
day" with "an hour for lunch") to a 10-hour day. Spry
credibly testified, and Lewis denied, that Lewis said he
"would have to wait until the union mess was straightened
out." Spry credibly testified, without contradiction, that
Lewis later approached him about September 1, and
inquired concerning Spry's "opinion" of the Union. Spry
replied that a Union might help improve his hours, and
Lewis commented that he, Lewis, could shorten Spry's
hours. After the representation heanng, Respondent hired
a few new employees and Spry's workday was reduced
Employee John Dickenson credibly testified , without
6 1 do not credit Lewis' denial of this statement
7 In view of Wilson's presence on this occasion and Lewis' presence in
the next related incident, Respondent is responsible for Magruder's conduct
on both occasions whether or not he is a statutory supervisor International
Association of Machinists, Tool and Die Makers Lodge No 35 v N LR B,
contradiction, that Lewis approached him on or about
September 1 and inquired concerning his union sentiments.
Dickenson replied he favored the Union, whereupon Lewis
said that he, Lewis, thought "you [Dickenson] were on my
side" and that "you better think it over before you decide"
and that "the union wouldn't come into the plant because
we are going to fight it." Several weeks later, Lewis
inquired of Dickenson whether the latter had made up his
mind about the Union and "signed anything yet."
About mid-August, Lewis asked Richard Perkins, an
employee of 9 years standing, what Perkins thought about
the Union. Perkins replied it was a "good idea" because "it
would get us better wages and some benefits." Lewis then
told Perkins, according to the latter's credible, albeit
denied, testimony in this regard, that "if the union comes
in that it would probably be less hours."
About August 11, Lewis called employee David Green
into the coffee room. According to Green's uncontradicted
and wholly credible testimony, Lewis inquired whether
Green "knew anything about the union coming in or did
anybody talk to me about it" and what Green's own union
feelings were. Green said he didn't know. About 2 weeks
later, Respondent President Wilson asked Green whether
anyone had spoken to him about the Union, and Wilson
told Green that "I might have to close the plant ... I am
not going to let this union in. I'll close first." Wilson then
remarked that an election might be held soon, to which
Green said he didn't believe in voting and would not vote
in such election. Wilson thereupon responded that Green
"will have to [vote]. If you don't, it will be a vote for the
Union."
Green had previously worked for Mr. Ray Bruckner, a
local businessman. After Green's aforementioned conver-
sation with Wilson, Green inquired of Bruckner whether
Bruckner would have a job for Green in the event
Respondent should close down as Wilson had said it would
if the plant were unionized. The next day, Wilson told
Green that he (Wilson) had spoken to Bruckner and
Wilson thereupon denied to Green that he had made the
"closing down" statement in their earlier conversation.
Route supervisor Magruder was present at this second
Wilson-Green conversation. Magruder told Green in
Wilson's presence on this occasion that, although he
(Magruder) couldn't tell Green how to vote he "would like
to know if you are with us or what" and that Green would
"have to vote because we are going to be depending on
your vote." 7
Sometime later , on or about September 2, Magruder
asked Green whether "you have your mind made up."
Lewis joined the conversation and he told Green that
Respondent was bringing in some new employees who "are
for me." Lewis went on to explain that, with these
additional employees, Respondent would have an ade-
quate workforce in the event of a strike and that
Respondent would not then have to take back any of the
311 U.S 72, 77, rehearing denied 311 U.S 729; N LR B v American
Thread Co, 204 F 2d 169, 170 (C A. 5, 1953), N LR B v San Diego Gas &
Electric Co, 205 F 2d 471,475 (C A 9, 1953); N LR B v Des Moines Foods,
Inc, 296 F 2d 285, 287-288 (C A 8, 1961)
WILSON WHOLESALE MEAT COMPANY 227
strikers. Magruder and Lewis both told Green that it would
cost him more to join the Union than he was earning.
Green had worked for Respondent at a State Fair for a
2-week period in August. Shortly after the August 30
hearing in the representation case, Wilson called Green
into his office where they discussed the Union and Green's
position concerning the Union. (The record does not
elaborate on this conversation.) Wilson told Green, "Dave,
it looks like you are the only one I have left. I am going to
give you an extra $15 for really helping me out at the fair."
In addition to this "bonus," Respondent later gave Green a
10-cent hourly raise, effective in October.
C. Further Activities
The General Counsel alleges, in addition to such unfair
labor practices as are established above, that Respondent
"impose[d] and enforce[d] onerous and disparate work
rules against employees" for union considerations The
complaint recites seven specifications in this connection,
and I shall follow the numbering and headings as they
appear in the complaint.
(i) Forbid employees to smoke except during breaks
or lunch periods, and then only in certain designated
areas
of compelling employees to have their own meat
purchases weighed by others
In its sales of meat to employees and the public
Respondent charges an additional amount for slicing the
meat, and the General Counsel contends that Respondent
did not impose this extra slicing charge on employee
purchases until the organizational events under considera-
tion here Respondent asserts that employees have always
been charged the customer rate for sliced products. The
General Counsel called two witnesses in this matter,
Richey and Spry. Richey testified, however, that he paid
the "sliced" rate about a year ago (this would have been
February 1972), and Spry testified that he had purchased
sliced meat at the lesser unsliced rate , but only on one
occasion which he said was "too far back to remember
right now, a year or two." Their testimony, I find, does not
support item (iii). Without setting out the supportive
testimony for item (iv) respecting the weighing of meat
purchases, I find that it too is insufficient to establish such
specification.
(v) Institute a practice of compelling employees to
each clean their own cups and utensils in the area
reserved for work breaks
The General Counsel in effect modified this specification
at the hearing by deleting the "area" portion.
Although employees have a regular 15-minute smoking
or coffee break, usually after the delivery trucks are
loaded, the accepted plant practice was to permit employ-
ees to take a "quick smoke" in the coffeeroom throughout
the workday. During the week before the representation
hearing, Wilson saw employees Kling and Randy Hudson
smoking in the coffeeroom, but not during the regular
break; he told them not to do so again except at lunchtime
or on the regular break. Lewis separately instructed
employees Richey and Aust to a similar effect a day or two
after the representation hearing. Lewis denied having given
such instruction , and in December he made a similar
denial to Richey
(ii) Forbid employees to talk to one another while
working; (vi) engage in more constant and rigorous
supervision and inspection of employees' work
Employees Richey, Kling, and Glenna Hulen credibly
testified, without contradiction, that in the period immedi-
ately after the representation hearing Respondent Presi-
dent Wilson began reprimanding them for talking during
working hours. During this same period, according to the
credible testimony of Richey, Kling, Aust, and Hulen,
owner Diggs came on the production floor daily for about
a week and closely watched Richey, Kling, Hulen, and
other employees. Diggs had not done this before. During a
lunch period in September, Wilson saw Kling and Ernest
Brown conversing in the parking lot; Wilson got out of his
car and approached within 25 feet of them, and stood
watching them for several minutes.
(iii) Institute a practice of charging employees for
slicing meat for their own use ; (iv) institute a practice
There has long been a sign in the coffee room stating that
each employee was to wash his own coffee cup. Neverthe-
less, with the knowledge of Wilson and Lewis, employee
Hulen had been washing other employees' cups as well as
her own for a period of some months. Hulen credibly
testified that Wilson instructed her in September that she
should no longer perform this housekeeping chore for
other employees.
(vii) Promulgate and enforce a new and rigorous rule
regarding employees compelled to be absent from
work; Perkins' constructive discharge
This specification is linked with the alleged constructive
discharge of Richard Perkins on September 8, 1972. It has
been a longstanding practice in the plant for employees to
call in when absent. On Wednesday morning, September 6,
plant manager Lewis asked Perkins to work that afternoon
and Perkins said he would. Perkins did not report or call
in, and he did not report or call in on Thursday. On
Friday, Lewis asked Perkins about his absence, and
Perkins replied that he hadn't felt like working. Perkins
had some words with Wilson a few minutes later. I am
satisfied, as Respondent claims, that Wilson and Lewis
merely reproached Perkins for not coming to work as he
said he would. Perkins thereupon punched out and told the
timekeeper to mail him his check.
Perkins was actually ailing at the time. On Monday,
September 11, he had an emergency hernia operation and
his wife notified Respondent to such effect that same day.
Perkins received health insurance benefits carved by
Respondent through the period of his convalesence; he
returned to work upon his recovery, and he is still
employed by Respondent.
Perkins in effect corroborated the aforementioned call-in
practice or rule respecting employee absences, for he
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the foregoing occasion was the first time in 9
years that he had not called in. Despite the circumstances
of his punching out on September 8, Perkins further
testified that he had not quit, and I find he did not. I also
find that he has been in Respondent's employ continuously
at all material times.
I conclude that Respondent did not promulgate new
rules respecting absences. A "quit" being an element of a
constructive discharge, I also conclude without discussing
other testimony in this connection, that Respondent did
not constructively discharge Perkins.8
D. Hulen's Constructive Discharge
Mrs. Hulen sought and obtained employment with a
local bank on Friday, January 19, 1973. She notified Lewis
on Sunday that she had found another job, and inquired
how much notice Respondent would require. Lewis asked
how soon the bank needed her services and Mrs. Hulen
said it could use her at once. Lewis told Mrs. Hulen that
employees customarily give 1 or 2 weeks notice, but that
Respondent's business was slow at the time and that it
would be all right for her to begin her new employment the
next day if she desired. He also told her that, for purposes
of protecting her own employment record, he would have
her personnel file indicate that she had given 2 weeks'
notice.
The General Counsel contends that Respondent caused
Mrs. Hulen to quit and he relies in this connection on
Diggs' aforementioned surveillance of her and other
employees and by Wilson's other harassment of her and
other employees for talking and for her cup-washing.
The usual "constructive discharge" involves a situation
where an employer takes discriminatory or other recrimi-
natory action against an employee for the specific purpose
of provoking that employee into quitting so that the
employer might thus get rid of someone undesirable to him
for union considerations. It would appear that such
unlawful intent should be imputed where attendant
circumstances establish a quit to be a reasonably forseea-
ble consequence of discriminatory or recriminatory ac-
tion.9 On the other hand, this does not mean that all
harassing conduct by an employer for union reasons is
statutory warrant for self-help relief, for in the garden-
vanety case of interference, restraint, or coercion or other
unlawfulness short of discharge, an employee must
normally await the orderly processes of this Act before
obtaining the monetary and reinstatement relief conven-
tionally awarded for unlawful discharge.
In the present case, I am not convinced that Respondent
sought to provoke Mrs. Hulen's quit or that its conduct
respecting her was so intolerable as to make her separation
a forseeable consequence thereof. I conclude, therefore,
that Respondent did not constructively discharge Mrs.
Hulen.
E. Appropriate Unit
The General Counsel and the Union contend that an
appropriate unit consists of Respondent's production
employees and dnver, excluding office clericals, supervi-
sors, salesmen, and driver salesmen. Respondent claims
that the only appropriate unit would include salesmen and
dnver-salesmen. On August 30, 1972, there were approxi-
mately 15 production employees (including I driver) and 5
driver salesmen, one of whom is route supervisor Philip
Magruder, and I salesman (Norman Gordon).
The majority of the production personnel report to work
at 6 a.m. The dnver-salesmen report at 7 a.m. Upon arnval
in the morning, the dnver-salesmen check in any money or
tickets from the previous day's sales and then they report
to an office area where they devote approximately 30
minutes in making telephone calls to customers concerning
orders. If necessary for an order, the dnver-salesmen then
slice ham or lunchmeats in the production area; such work
may occupy as long as 45 minutes for institutional orders
(e.g., schools). They may then assist in wrapping their
orders, depending on how busy the regular wrapping
employees are, for, as Plant Manager Lewis indicated, the
sooner they leave the sooner they're making commissions.
The dnver-salesmen, sometimes assisted by production
personnel, then load their own and each other's trucks,
whereupon the driver-salesmen depart with the trucks to
call on the trade. They usually leave between 9 a.m. and 10
a.m., sometimes later. Each salesman had his own specific
route throughout central Missouri. Unlike production
employees who punch a timeclock and work regularly
specified hours, the workday of driver-salesmen apparently
ends when he reports back to the plant upon completion of
his route. Dnver-salesmen put in approximately 45 to 50
hours a week, according to Plant Manager Lewis, and
Lewis also testified that Respondent tries "to guarantee"
40 hours to production personnel.
Production personnel and dnver-salesmen have the same
fringe benefits, i.e., hospitalization and medical insurance,
holidays, and vacations. Their mode of compensation is
entirely different, however, arising out of the essential
differences in their work. The production employees are
hourly paid; driver-salesmen are paid on a salary plus
individual commission basis. Route supervisor Magruder
also receives a salary plus commission except that his
commission is based on sales of all dnver-salesmen.
Respondent employs one (in-town) salesman , Norman
Gordon, who uses his own car and whose territory is
limited to the city of Columbia, where Respondent's plant
is located. Like the driver-salesmen , Gordon is salaried and
receives the same commission received by driver- salesmen.
Gordon works in the plant a half-day a week, but without
change of his salary-plus-commission mode of compensa-
tion for such work.
Although "driver-salesmen, like truckdrivers and others
engaged in a particular employer's delivery operation,
possess an inherent community of interest with production
and maintenance workers ... [they J may at the same time
have separate interests sufficient to warrant their exclusion
from a production and maintenance unit...." Tallahas-
8 Although the General Counsel suggested that Respondent may have such matters as being outside the complaint
discriminated against Perkins following his return to work , I do not reach 9 Radio Officer's Union v N L R B, 347 U S 17,44-45
WILSON WHOLESALE MEAT COMPANY 229
see Coca-Cola Bottling Company, Inc, 168 NLRB 1037,
1038,10 enfd. 409 F.2d 201 (C.A. 5, 1969). "The initial unit
question in each case is whether or not the unit requested
by the Petitioner [the Union herein] is appropriate for
purposes of collective bargaining. Where a petitioning
labor organization is the sole union involved in the
proceeding, it is irrelevant that some larger or smaller unit
might also be appropriate, or, indeed, might be the most
appropriate" (id)
The principal sales and driving functions 11 and mode of
compensation of the driver-salesmen in this case, are
essentially different from the production duties and
method of payment of plant personnel. These differences
are not dissipated merely because there is some contact
between all of Respondent's employees and merely
because the driver-salesmen may incidentally perform, to a
slight degree on limited occasions, some functions of
production employees. I find that Respondent's production
employees have a community of interests sufficiently
separate from the driver-salesmen to warrant establishing a
separate bargaining unit for them. The in-town salesman is
also excluded, for his predominant employment interests
are clearly with the driver-salesmen rather than with the
production employees.
Further unit questions are whether Route Supervisor
Philip Magruder is excludable as a statutory supervisor and
whether Helen Bryant is excludable as an office clerical or
includable as a plant clerical. Magruder, however, already
falls within the driver-salesmen exclusion, and it is
therefore unnecessary to resolve his supervisory status for
unit purposes. Bryant's unit placement is material in this
case , principally as it affects the Union's representation
status. But, as appears hereinafter, the Union represented a
majority of unit employees at critical times even assuming
Bryant was a plant clerical, so I consider it unnecessary to
decide that she was a plant clerical rather than an office
clerical.
Accordingly, I conclude that all full-time and regular
part-time production employees and drivers employed by
Respondent at 1207 Rogers Street, Columbia, Missouri,
but excluding office clerical employees, salesmen, driver-
salesmen, guards and supervisors as defined in the Act,
and all other employees, constitute a unit appropriate for
the purpose of collective bargaining within Section 9(b) of
the Act.
F. The Union 's Representative Status
The complaint alleges that Respondent refused to
bargain on or about September 14, 1972, and that the
Union had a majority on and after August 30. Two
payrolls are in evidence , one for the week ending
September 2 and the other for the week ending September
16. Including Bryant, the earlier payroll shows 15, and the
latter payroll shows 18,12 employees within the unit
10 The Board in this Decision explained its modification of The Valley of
Virginia Cooperative Milk Producers Association, 127 NLRB 785, cited by
Respondent
11 Compare Crystal Tire Company, 165 NLRB 563
12 G C Exh 3 furnished by Respondent inadvertently omits the name of
Richard Perkins who appears on the earlier payroll and who was alleged to
have been constructively discharged However, as found earlier, Perkins
worked on Friday, September 8, and was hospitalized on September 10, and
hereinabove found appropriate. The record establishes that
I I of these unit employees had signed authorization cards
by August 30,13 and no issue is presented respecting 9 of
these cards.
Respondent does contend, however, that the cards of
employees McClammer and Moyer should not be counted
"because of representations made to [them] at the time
they signed the card." The card signed by Moyer,
McClammer, and the other employees is a so-called "single
purpose" card authorizing the Union to represent and
bargain collectively in the signatory's behalf. Employee
Randy Hudson gave Moyer a union card which Moyer
later executed at home on July 14. Moyer testified that he
and Hudson discussed the Union at the time, although he
did not remember precisely what was said except that an
election was mentioned and that Hudson also mentioned a
percentage figure which Moyer thought was "55 percent."
Hudson testified that he did not mention an election to
Moyer but that he did tell Moyer, "the more people we
had, the more chances we stood of getting a union";
Hudson explained that he didn't know anything about an
election until an organizational meeting on July 27 at
Richey's home. McClammer signed his card at this July 27
meeting, which Union Business Representative Theodore
Wolff also attended. McClammer testified he was told the
card was "to join the Union" and that the "idea" he got
out of the meeting was that "they were going to petition for
an election." Wolff credibly testified that he explained to
the assembled employees, including McClammer, that they
could organize and gain recognition for a union in their
plant by two methods, through a card-check with their
employer or through an election, and that they should sign
a card if they "want to be part of this organizational
group." Wolff also stated at the time that he was leaving
town for a while and that he might file a petition with the
Board in order to protect the employees "on [the] record"
pending his return. As indicated above, the Union did file
a petition and also did request recognition on a card-check
basis.
Under the Board's Cumberland Shoe doctrine (144 NLRB
1268) approved by the Supreme Court in Gissel Packing
Co., supra, "if the card itself is unambiguous (i.e., states on
its face that the signer authorizes the Union to represent
the employee for collective bargaining purposes and not to
seek an election), it will be counted unless it is proved that
the employee was told that the card was to be used solely
for the purpose of obtaining an election" (395 U.S. at 584).
` ... we think it sufficient to point out that employees
should be bound by the clear language of what they sign
unless that language is deliberately and clearly canceled by
a union adherent with words calculated to direct the signer
to disregard and forget the language above his signature"
he remained and still is an employee I therefore add his name to the unit
employees on G C Exh 2
13 It is irrelevant to the question of the Union's majority status in August
or September that Green left Respondent 's employ in November 1972 and
Hulen left Respondent in January 1973 Franks Bros Co v N LR B, 321
U S. 702, 704, N L R.B v Gissel Packing Co , supra, N.LR B v. L B Foster
Company, 418 F 2d 1,5 (CA 9, 1969), cert . denied 397 U.S 990 (1970),
N L R B v Dixisteel Buildings, Inc, 445 F 2d 1260, 1265 (C A 8, 1971).
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(395 U.S. at 606). The Court approved in this connection
the Board's Levi Strauss 14 gloss that " `the Board looks to
substance rather than to form' " in applying the Cumber-
land rule, but " `the fact that employees are told in the
course of solicitation that an election is contemplated, or
that a purpose of the card is to make an election possible,
provides in our view insufficient basis in itself for vitiating
unambiguously worded authorization cards on the theory
of misrepresentation' " (395 U.S. at 608, fn. 27).
I am fully satisfied on this record that neither Moyer nor
McClammer was told either in "form or substance" that
the cards were to be used solely for an election or that
Moyer or McClammer should otherwise "disregard and
forget the language above his signature."
It appears, therefore, and I find that by August 30, 1972.
11 of the 15 unit employees had validly designated the
Union as their collective-bargaining representative. Al-
though I consider the material date for majority status
purposes to be August 30 rather than dates within the
September 16 payroll, the Union also did represent a
majority of the employees on the later payroll.
G. Discussion and Conclusion
This case is not the "nit-picketing" situation suggested
by Respondent. Rather, the record establishes in my
opinion that Respondent conducted a systematic campaign
to undermine the organizational efforts of its employees. In
a small unit of 15 employees, owners Diggs and Wilson
and Plant Manager Lewis managed to bring their unlawful
activities to bear on at least 9 individual employees,
repeatedly as to some of them. Respondent is opposed to
the Union, and it has a right to such position. It let its
employees know this opposition, and it has a right to
communicate such fact. But it does not have a right to
harass its employees for union reasons, as I find it did with
respect to smoking and talking and even as to Hulen's cup-
washing and in standing watch over employees on the
plant floor and even in the parking lot. While I have not
found that Hulen was constructively discharged, I have no
doubt that Hulen was at least partly influenced to leave
because of Respondent's retaliatory and repressive re-
sponse to its employees' union desires. In addition, the
evidence establishes Respondent's wholesale interrogation
of employees, its pressures to dissuade Dickenson and
Green respecting union support and voting in a Board
election, its statement to Spry that he should look to
Respondent not the Union to improve his working
conditions, which in context I find to be a promise of
benefits to induce Spry to support Respondent's antiunion
stance. There are, moreover, the flagrant threats of shut
down and other recriminatory action should the plant be
unionized and the threat to bring in employees favorable to
Respondent's anti-union position purportedly so that
Respondent would not reinstate union employees in the
event of a strike.
A majority of the unit employees had designated the
Union as their bargaining representative by August 30,
1972. Respondent, while refusing to recognize and bargain
with the Union on August 30 and September 14, continued
its campaign to thwart its employees' organizational efforts
and to dissipate the Union 's representative status . Consid-
ering the seriousness and extensiveness of Respondent's
unfair labor practices, I do not believe that conventional
remedies are sufficient to insure a fair election and I find
that the union signature cards are a more reliable test of
the employees' representation desires than an election
would be. Gissel, 395 U.S. at 614-615. I accordingly find
that a bargaining order is appropriate in this case whether
or not Respondent also is found to have violated Section
8(a)(5) of the Act, which I do find. N.L.R.B. v. Gissel
Packing Co., supra; N. L. R. B. v. Kaiser Agricultural Chemi-
cals, 473 F.2d. 374 (C.A. 5, 1973); N.L.R. B. v. Dixisteel
Buildings, supra; United Packing Company of Iowa, Inc., 187
NLRB 878.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within Section 2(6) and (7) of the Act.
2. The Union is a labor organization within Section
2(5) of the Act.
3. The following employees constitute an appropriate
bargaining unit within Section 9(b) of the Act: All full-time
and regular part-time production employees and drivers
employed by Respondent at 1207 Rogers Street, Columbia,
Missouri, excluding office clerical employees, salesmen,
driver-salesmen , guards and supervisors, and all other
employees.
4. On August 30, 1972, and at all times thereafter, the
Union has been and is the exclusive bargaining representa-
tive of the employees in aforedescribed appropriate unit,
within Section 9(b) of the Act.
5. Respondent has violated Section 8(a)(1) of the Act
by the following conduct: Coercively interrogating em-
ployees concerning their own and other employees' union
and other protected concerted activities; pressuring em-
ployees respecting Board elections and union membership
and activities; seeking to induce employees by promise of
employment benefits to dissuade them from voting for,
joining or otherwise supporting the Union; harassing
employees for union reasons by standing over them and
scrutinizing them and by imposing more onerous work
rules respecting talking and smoking and housekeeping
chores; and threatening plant closure, discharge, and other
reprisal for union reasons.
6. Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing and still refusing to recognize and
bargain with the Union at all times since August 30, 1972.
7. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
8. A bargaining order is appropriate under N.LR.B. v.
Gissel Packing Co., 395 U.S. 575, whether or not Respon-
dent has violated Section 8(a)(5) of the Act.
9. Respondent has not engaged in other unfair labor
practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
14 172 NLRB 732, entd. 441 F.2d 1027 (C.A D C, 1970)
WILSON WHOLESALE MEAT COMPANY 231
therefrom and take appropriate affirmative action to bargaining with the Union as statutory representative, as
effectuate the policies of the Act, including recognition and explained above.
[Recommended Order omitted from publication.]