Winco Petroleum Co.

National Labor Relations Board - Board Decisions

Apr 24, 1979

241 N.L.R.B. 1118 (N.L.R.B. 1979)

I)I( IStI)NS ()OI NA\II()NAI. L.ABO()R R.AI IONS BOARI)
Wino P'elrolellll ('onllpalln andl Autollltise, Petro-
leum anid Allied Inllusries Filllplo!es lli o n I, ocal
618. alliliatedl with Interiationlal Brotherhood of
'1'eailsters, ('haufeurs, Warehousemen and lelpers
of America. ('ases 14 ('A 10704 and 14 ('A 10937
April 24. 1979
)DEC('ISIO()N AN1) ()RDER
Bi M MB·IlRS l)INI] O WI MtRI'llY ANI) ]Rtiq:Sl)AI
()n Octoher 25, 1978. Administrative 1.aw ludge
tlerzcl I. 1 . P'laine issued the attached DIecision in
this proceedling. Thereaflter R espondentc and the
General ('ounsel filed exceptions and supporting
brieft, and the (ieneral ('ounscl iled an answering
brief:
Pursuont to the provisions of Section 3(b) of the
National ILabor Relations Act, as amniended, the Na-
tional [.abor Relations Board has delegated its au-
thorit\ in this proceeding to a three-member panel.
[he Board has considered the record and the at-
tached I)ecision in light of' the exceptions and briels
and has decided to affirm the rulings, fintlings, and
conclusions2 of' the Administrative I.asa Judge and to
adopt his recommended Order, s modified herein.'
I Resporlndct hil crexepled to crtlill cctldihit filndings made bsh the Ad-
nluinstrillilie aLu Judge. II is tic' B.alrd' eslihlishcd plic nt to overrule
ian Adnrlinistratic I.la Judgc's rcsolutins will Icslpcc to credibilits unless
the clear prepo)lidcrancc of all oi t IClrlilt ecidellC c COM Ince lIS that he
res uli ons .Ire il orrect .ltiird )r. 11ll/ Prd/i, l . In . 9l Nl RB 544
(195111, elild. 188 I 2d 362 (3d Cir 195 1). We hlvtc tarefllv examined the
record and find i no basis Ir r irsiig li lirl dings. 'W hc lurther cornsid-
ered Resprlndent's irontentclirl II ti lt' irrilrlllati c I.la Judge ihas ci-
denced a bias or alt leas lin appealalnce oi bias il hi proceeding \'r ha.l
careull> considered th reco rd ad the a;llachcd I)ecsili iand reject these
chargec ofi his Ra lleged bN, espondent as unsupported
Ihe Adnrlinlistrltie I.asw .lildge ldlld, wilh reIC)it It) Resprondent's conl-
tenritil thl tile Bllthiling elephonllc d eInllploec Ose()1 nr lihc et iing fi
Norlcribcr i. 1977. ti uilrfii hier Iai thc% hd Ibeen rinable t obtainll a
replakericnl for lie lr the bll nrg dii. thai rhe1 Oster rctirrred trrruc
earl oui thc norning Iof Nen riuber 2l, her hbahsiltcr Sai ther had been a
ctlephorle call hill thai she "h ad 111 Illfllriatillio rrl ,(IriI ,rhu ll i l ir lr hat
Osier. tile erili wilnesr s ho te tliied i ts toi Ili il cidelt, ho ecer. testilied
thltll hen sire rcililicIi huiu thle bi',utcr onll ti hier thl trce hdL been
tch phonrre tall durinlg hci ahienrlc Osier lllrthel lelliried that he did not
look at hc rcirgeratolr here tile bhab, rltte tri . i iril lefIt IICsages Il see
il one had been lecr t lral Ill ening I he AdrlirliSrlFatiiie I ai iudge' errorelics
recitallrn orlOf le n clelluo rl s uijllriuicil I allere thc res llt l )l De)cci-
suion
2 Sc agree .lih tile AdI lIlliilatilt I a Jdlge conch i irll. Ir tlre rca-
isons St orti hx hiinl thlat ririnpl c ( arla Miller. ecki lluechtiig. anid
Sirrda illD i il are propeill xth I, udcd ir irn e haurgaiullig ilil hereir. I n
doIlng e iddilirll Ilal tc trlit Ri espondeltL haid agreed l eclude orfice
clericatl Ironl thie u ili t tc tirile t oIlIurlilarril recIognilCed Itie t lnio.. Addi-
tiollalls rc lind iI Inllicce.sa;r' tin pasis in le A dnll inlstrati c LaiW Judge's
retaneer oil llis linning thai.t M'niller has a tnrlidenllll ielaionshi p with Re-
sporlderilt', nllanagernlent I ilal Memer I ruesdiale would xclude Beck'
Buecilrlhig based n her close lanuilil relatiroship wilh Resprondent's nrlian-
agenerlt. See he isel ill ii 1i-lr, ( /lIt, Im 2138 NIRB N( 13 11978)
V'e Iurthier grce with ic Ai' \niuslratri I Jdge's ccrlusion that
eiploe c[ )oulth I edder d I loa Villldlcil il pperir excltuderd romn
the inil. \r rl ne, hi ooe'r. that ernl asuirillig. argtnldo,, thal these clil-
plo s were on "sick leave" ait lithe tirime Rcspolrldcit v rinilaril, rcognized
[he ni ion arld were included in tile Uniril the lt lion 0wu 'till ha e had
()RI)E'R
P'ursuant to Section 10(c) o' the National Labor
Relations Act, as aimended, the National Labor Rela-
tions Board adopts as its order the recommended Or-
der of the Admiinstrative aw Judge, as modified be-
low, and hereby orders that the Respondent, Winco
Pl'troleum Company, IPevely, Missouri. its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
lied:
I. Insert the fllowing as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Make whole Judy Shepherd Oster. Betty Mey-
er, and Gloria Broomnaugh for any loss of pay or
other benefits they may have suflered by reason of
Respondent's discriminatory reduction of their sched-
uled hours in the manner set forth in F W. Wool-
worth ('om0p1n111', 90 NL.RB 289 (1950). with interest
Ihereon as prescribed in Floritl Steell (orporation,
231 NI.RB 651 (1977). See, generally, Isis Plumbing &
Ical(llig (o., 231 NI.RB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative l.aw Judge.
\;lld aulhonriitilon cards trumn a rnlaj)ri(y l o he unil empleiNees at the tlime
o1 recognliton
Ihe Administraltl I.;lw Judge concluded. and we agree. that Respon-
dell vioialedl Sec 8(.H3) nt the Act h discriminatorily reducing the wrork
hirurs of eplioyees Oster. Meer,. and Broombaugh. He. hwever. inadver-
lentld Ililed to prilvide he aIppropriate make- hole remdy lor these employ-
ccs in his recommunended rened', and Ordel We shall miodit the recuom-
icinded Order accordiigl',
APPENDIX
No li(: [)o Eh)ll.oYiotSs
Po)S III) BY ORDI)R ()F tIE
NAI IONA. L.ABOR RI.Al()A'NS BOARD
An Agenct of' the United States Government
I'he National I.abor Relations Board having found,
after a hearing, that we violated the National Labor
Relations Act. we intend to abide by the following:
W: wl Il. N coercively interrogate our em-
ployees concerning their signing of union autho-
rization cards, or signing by other employees, or
who among them is responsible for starting the
signing, or why they need the Union, or whether
the, would support the Union if there were pick-
eting.
WI. I, I NOT create the impression of surveil-
lance of our employees' union activities.
W. WV ll N threaten our employees that, if
the bring the Union in, we will close the sta-
tions or will make working conditions more
onerous.
Wi wvI.I. No) threaten our employees that, if
241 NLRB No. 179
I IIS
WINCO PEIROLEUM COMPANY
they bring the Union in, we will reduce hours of
work or vacation time.
WE WILL NOT threaten our employees that if
they bring the Union in we will cut off their com-
munication with management on problems.
WE WILL NOT importune or solicit our employ-
ees to obtain return from the Union of signed
authorization cards.
WE WILL NOT promise or grant employees pre-
ferred time off to encourage their assistance in
our opposing the Union and to discourage their
support of the Union.
WE WILL NOT warn employees against com-
municating grievances to a union representative.
WE WILL NOT discharge, or reprimand, or oth-
erwise discipline employees, or reduce their
hours of work, because they engage in activities
for, or support, the Union.
WE WILL NOT alter vacation policy or practice
to reduce vacation benefits, or institute a repri-
mand system, because employees engage in ac-
tivities for, or support, the Union.
WE WILL NOT discourage our employees from
support of or membership in the Union or other
labor organizations by discharge. layoff, reduc-
tion in hours of work or vacation benefits, or
other discrimination affecting their tenure or
conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them in Section 7 of' the
National Labor Relations Act.
WE WILL, upon request, bargain with the Au-
tomotive, Petroleum and Allied Industries Em-
ployees Union. Local 618, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, as the
exclusive collective-bargaining representative of
the bargaining unit described below, and if an
agreement is reached, embody it in a written
contract. The bargaining unit is:
All station employees in the Pevely, Festus,
and Oakville, Missouri. gasoline sales stations,
comprising regular cashiers. regular relief
cashiers, and the night maintenance or utility
man: excluding office bookkeepers or office
clerical employees, professional employees,
guards. and supervisors as defined in the Act.
WE WILL expunge from our records any refer-
ence to the reprimand, dated September 28,
1977, discriminatorily issued to employee Ste-
phen (Steve) Henson.
Because the Board found that we unlawfully
discharged employee Judy Shepherd Oster. E
WILL offer her her former job, or, if that job no
longer exists, a substantially equivalent position,
without prejudice to the seniority or other rights
and privileges previously enjoyed, and E. WIlll
give her backpay with interest from the time of
her discharge on November 21, 1977.
Because the Board found that we unlawfully
reduced the scheduled hours of work of employ-
ees Judy Shepherd Oster, Betty Meyer, and Glo-
ria Broombaugh, WE WILl, make them whole for
any loss of pay or other benefits suffered by rea-
son of our discrimination against them, with in-
terest.
WINO() PETROLEUM COMPANY
D)ECISION
tIERzFI H. E. Pi iNt.E, Administrative law Judge: Re-
spondent Winco Petroleum CompanN owns and operates
three self-service retail gasoline sales stations, south of St.
Louis. Missouri, where it employs principally male and fe-
male cashiers for the collection of the sales moneys. The
Charging Party or Union; Automotive. Petroleum and Al-
lied Industries Employees Union, Local 618, affiliated with
International Brotherhood of Teamsters, Chaufleurs, Ware-
housemen and Helpers of America, conducted an approxi-
mate 2-week organizing campaign among the employees in
August 1977, which appeared to culminate in Respondent's
voluntary recognition of the Union as bargaining agent and
the commencement of contract negotiations on August 26.
1977, as the complaint alleges.'
General Counsel and the Union contend that thereafter
Respondent repudiated its recognition and refused to bar-
gain further. in violation of Section 8(al(5) of the National
Lahor Relations Act. as amended, for which, as claimed in
the complaint, the Union is entitled to a bargaining ord;.
Additionally. and apart from the alleged repudiation of
recognition. General Counsel asks for the bargaining order.
as well as direct remedial action. for numerous alleged vio-
lations by Respondent of Section 8(a)(l ) and 8(a)(3) of the
Act in or about the last week of August 1977 and thereafter,
which violations it is said have undermined the Union's
majority status and prevent the holding of a fair election.
These alleged violations include coercive interrogation of
employees about union organizing activity and sympathies
and card signing; creating the impression of surveillaiice of
employee union activities: threatening more onerous work-
ing conditions, reduction of hours of employment, change
of vacation policy. and closure of the business, if employees
engaged in union activities or brought the Union in: impor-
tuning employees to obtain return of signed union authori-
zation cards; altering established vacation policy and re-
ducing hours of certain employees in reaction to employee
union activities: discharge of an emploxee because of her
union activity, including communications with a union rep-
resentative; and initiating a reprimand system and repri-
I 'he complaint was filed on Decenmber 7. 1977, on a charge filed on
September 14, 1977. in Case 14 ('A 10704, and a charge filed November 22,
1977, In Case 14 A 10937. Some amendments were made to the complaint
on December 20. 1977, and again at the hearing on Januar' 17. 1978.
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manding an employee in response to the union organizing
and activities.
Respondent has admitted meeting with the union repre-
sentatives on August 26, 1977, but has denied granting rec-
ognition to the Union or engaging in bargaining with it.
Additionally Respondent contends that the Union did
not represent a majority of its employees when it presented
the signed authorization cards of 12 employees (Respon-
dent's management said it was not sure whether 11 or 12
cards were presented) on August 26, claiming that the bar-
gaining unit comprised 24 employees. Respondent arrived
at the number 24 by adding to the 18 cashiers upon which
the parties agreed, 2 central office bookkeepers or office
clericals, and a third bookkeeper and 3 cashiers who were
allegedly on either maternity leave or extended sick leave,
though not carried on the payrolls or books at the time of
the request for recognition of the Union or at any time
during their alleged sick leave or maternity leave absences.2
Respondent also would exclude from the unit I of the 12
card signers (Henson), the night maintenance or utility man
for all three stations, on the ground that he was a statutory
supervisor; and Respondent attacks the validity of several
other signed cards on the grounds of union misrepresenta-
tion or coercion in obtaining the signatures.
On his part, the General Counsel asserts that the unit
comprised 19 employees-the 18 agreed-upon cashiers and
the night utility or maintenance man, Henson, who was not
a supervisor says General Counsel. Of the 19 employees,
General Counsel contends that the Union had an unco-
erced majority of 12. General Counsel rejects including in
the unit the office bookkeepers or clericals as lacking in
community of interest with the station cashiers and having
closer ties to management, as in the case of one, the wife of
the corporate officer, company manager, and co-owner Bill
Buechting, Jr. General Counsel also contends that the jobs
of the four employees on supposed extended sick leave or
maternity leave, when recognition was requested, had
ended on their leaving and that Respondent had no such
extended leave policy.
Lastly, Respondent denies commission of alleged 8(a)(3)
violations and some, but not all, of the 8(a)(l) violations.
Respondent contends that whichever of these actions may
technically constitute violation of Section 8(a)(1) was not so
pervasive as to impair the holding of a representation elec-
tion or to warrant granting the Union a bargaining order.
The case was heard principally in Crystal City, Missouri,
and a final day in St. Louis, on January 4, 5, 6, 10, 11, 17,
18, and 19 and February 21, 1978. General Counsel and
Respondent have filed briefs.
Upon the entire record of the case, including my observa-
tion of the witnesses and consideration of the briefs, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Missouri corporation engaged in the re-
tail sale of gasoline and oil for motor vehicles at three sta-
2 In its brief, Respondent dropped its contention made at the hearing to
also include in the unit, as a 25th employee, a part-time relief cashier, Patsy
Johnson, who had taken work elsewhere and could not or had not responded
to calls to come in. See discussion infra.
tions in Pevely, Festus, and Oakville, Missouri, respectively,
and maintains its business office in Pevely, Missouri.
In the year ending September 30, 1977, a representative
period, Respondent received gross revenues from sales in
excess of $500,000 and purchased and caused to be deliv-
ered to its stations gasoline, oil, and other goods valued in
excess of $50,000, of which goods valued in excess of
$50,000 came from enterprises in Missouri that had re-
ceived said goods directly from points outside Missouri.
As the parties admit, Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent owns and operates three self-service gasoline
stations at Pevely, Festus (sometimes referred to as Crystal
City), and Oakville (sometimes referred to as Telegraph or
Telegraph Road), Missouri, south of St. Louis. Each station
has a number of gasoline pumps that are operated by the
customers purchasing gasoline, and a small office with desk
and console (sometimes called panel) where the cashier in
sole charge of the station can see the pumps and receive
payment from the customers for their purchases of gasoline
registered on the pump and console. Each station has a
public restroom and small storeroom or rooms.
In addition, Respondent has its business office at Pevely,
but this is in a building separated from the station by two
doors and a hallway, a storage room for keeping supplies
for the whole operation, an open space, and a private rest-
room for occupants of the office (testimony of bookkeeper
Carla Miller). The office is also the office for the Twin City
Oil Company, in which the Buechtings, who own Respon-
dent, appear to have an interest.
As stipulated, the owners of Respondent are Wilmer
Buechting, Sr., (Bill, Senior) president of the corporation,
and his son Wilmer Buechting, Jr., (Bill, Junior) vice pres-
ident, secretary, and treasurer of the corporation, and man-
ager of the operation. They have their headquarters in the
Pevely office and were stipulated to be supervisors within
the meaning of the Act.
Also headquartered at the Pevely office is Jim Partney,
who testified that he was an employee of the Twin City Oil
Company, but that he worked for both Buechtings and had
authority to oversee the Winco (Respondent's) employees,
see that the employees were at the stations and doing their
work, and see that the stations were presentable. It was
stipulated that Partney was an agent of Respondent in deal-
ing with its employees; and from his testimony and testi-
mony of a number of employees, it appeared that he was
also a statutory supervisor.
The gasoline stations are open 24 hours a day, 7 days a
week, each in the sole charge of a cashier, with four shifts of
cashiers each day. The first shift from midnight to 8 a.m.
are men cashiers only; the second shift from 8 a.m. to 3
p.m. (and since the end of August 1977 to 2:40 p.m.), the
third shift from noon to 6 p.m., and the fourth shift from 6
p.m. to midnight, are comprised of both men and women.
The first shift (from midnight to 8 a.m.) is an 8-hour shift
1120
WINCO PETROLEUM COMPANY
and the regular cashiers work 5 days a week for a 40-hour
week. The third and fourth shifts are 6-hour shifts and the
regular cashiers work 6 days a week for a 36-hour week.'
The second shift (originally from 8 a.m. to 3 p.m.) was a
7-hour shift for 6 days a week, or a 42-hour week (now 6
hours, 40 minutes per day, for 6 days a week, or a 40-hour
week), and overlaps the third shift which commences at
noon. The second shift cashier, however, turns over the con-
sole to the third-shift cashier at noon and spends her after-
noon time on cleanup duties including the public restroom,
checking the daily worksheets of the four shifts of the previ-
ous day, and making up the daily bank deposit and deliver-
ing it to the bank.
In this connection, the cashiers on all shifts perform the
same functions of collecting cash and credit card charges
from the customers for their purchases of gasoline and oil,
making $100 drops of cash when accumulated into a floor
safe, taking gallonage readings in the gasoline tanks with
measuring sticks, recording the foregoing data, including
time in and out, on a daily worksheet, and doing necessary
cleanup to keep the station in orderly appearance. Cashiers
perform none of the other services for motorist customers
that are provided by attendants at so-called full-service
gasoline stations.
Supplementing the regular shift cashiers, according to
Manager Buechting, Jr., are relief cashiers, two for each
station, or a total of six relief cashiers who fill in on the
varying days off and shifts of the regulars.
In addition, for all three stations there is one night main-
tenance or utility man who "floats" from station to station
between the hours of 8 p.m. and 4 a.m., 5 days a week. His
functions (as performed by the occupant of the job in Au-
gust 1977-Stephen Henson) were to deliver and store oil
and paper towels and other supplies from main storage at
Pevely, mop up the public restrooms, keep the stations
clean, at cashiers' requests get change for them or do minor
adjustments on station equipment, check gasoline tank con-
tents (by stick), temporarily relieve the cashier on duty so
that the cashier might use the restroom, and pick up and
deliver to the office bookkeeper the daily worksheets of
each station.
At the outset of the hearing, Respondent stipulated that
Henson was a night assigned employee who had a roving
job, which was not in dispute and was part of the unit of
employees. After observing that Henson's union authoriza-
tion card described his occupation as "supervisor," Respon-
dent repudiated the stipulation and contended that Henson
was a supervisor within the meaning of the Act.
I do not agree. Henson started employment with Respon-
dent as a cashier in 1976. In 1977 he was transferred to the
night maintenance or utility job at the same hourly rate of
pay he was receiving as a cashier, and when he voluntarily
left the job in December 1977 to resume as a cashier he
continued to receive the same $3.25 per hour.
Employee Henson testified that he wrote "supervisor" on
the union card because he was told he had that title, but
that he considered himself a "stock boy" because his func-
tion (as described above) narrowed down to that. Indeed
3 At the Pevely station there appeared to be some difficulty in filling the
fourth shift (from 6 p.m. to midnight) and at times two persons divided the 6
days.
Manager Buechting, Jr., stated Henson's duties in writing
in a reprimand (G.C. Exh. 6), given to him on August 28 or
September 28, 1977 (there was a question as to which was
the actual date): "Your duties, as you already know, are to
keep our supplies stocked at each location, check tanks
nightly, and keep each station clean and presentable to the
public."
Henson's supervisors, similar to the other employees,
were Manager Bill Buechting, Jr., and his assistant, Jim
Partney. Like other employees, if a problem arose, said
Henson, unless it was a minor adjustment on a pump which
he could handle, all he could do was telephone Buechting,
Jr., or Jim Partney. Beuchting, Jr., testified that his and
Partney's office and home phone numbers were posted for
the employees at all three stations and that he had in-
structed them that he considered himself and Partney on
24-hour call by them. The several cashiers who testified
named Buechting, Jr., and Partney as their supervisors or
"bosses"; none named Henson.
Buechting, Jr., claimed he had told Henson he had au-
thority to warn employees and take over a shift if the em-
ployee did not comply. Henson testified he was given a
prior instruction to watch a certain employee and if he had
not done his cleanup before he left the shift to tell him that
he was relieved of his duty and he was to telephone Bill, Jr.
Employee Henson testified that he had no authority to
call in or assign personnel; if an employee became ill, all he
could do was relieve him temporarily and telephone Buech-
ting, Jr., or Partney for a replacement. Henson said he
made no recommendations as to personnel other than to
say an employee was doing a good job, or not, which, as
Henson said, was what was expected of second-shift cash-
iers (who by reason of shift time overlap had the opportuni-
ty to observe third-shift cashiers). Cashier Judy Oster of the
second shift at the Festus station testified that she was told
by Manager Buechting, Jr., because there was no immedi-
ate station supervision, that employees were expected to
watch others regarding their performance of work.
Respondent sought to make a point that Henson in his
utility job function occasionally trained new cashiers. How-
ever, it also appeared that earlier, as a cashier, he also
trained new cashiers; and from the testimony of other em-
ployees it was obvious that most of the regular cashiers
have trained and train new people.
Actually, the training for a cashier's job is minimal. Em-
ployee Von Vandiver, who as a cashier trained at least five
new cashiers, testified that the training consisted of explain-
ing the setting up of the cash drawer, the procedures at the
cashier's desk, and the reading of the pumps, then letting
the new person operate for an hour in the presence of the
instructing employee and operate on his own for the bal-
ance of the shift under casual observance. If the new cashier
has not learned the job in the first 5 hours of solo operation,
he or she will not be able to do the job, said Vandiver.
Manager Buechting, Jr., agreed that the training and the
training period of a new cashier is one shift of on-the-job
operation.
In sum, employee Henson, as the night maintenance or
utility man, performed the largely physical job of keeping
the stations clean and stocked with accessory supplies, and
providing occasional backup relief and assistance to the
several cashiers of the fourth and first shifts. He was a rank-
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and-file employee. Giving him the title "supervisor," or
even theoretical power to perform one or more enumerated
supervisory functions, did not make a statutory supervisor
out of the rank-and-file employee; the important thing was
his possession and exercise of actual supervisory duties.
N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257
F.2d 235-239 (4th Cir. 1958). Even if Henson's telling an
employee his job was ended (under direction of the man-
ager to do so if the employee did not perform his cleanup)
was regarded as the exercise of a supervisory duty, never-
theless the occasional assumption of a position of command
or responsibility does not transform an otherwise rank-and-
file worker into a statutory supervisor. N.L.R.B. v. Quincy
Steel Casting Co., Inc., 200 F.2d 293, 296 (Ist Cir. 1953);
N.L.R.B. v. Cousins Associates, Inc., 283 F.2d 242, 243-244
(2d Cir. 1960).
A third category of employee is the, office bookkeeper or
office clerical in the headquarters office at Pevely. As the
testimony of the bookkeeper Carla Miller indicated, Re-
spondent has need for only one bookkeeper to keep the
books and do the weekly payroll, working 3 days a week on
a 6-hour shift, plus I extra day per month to do the end of
the month calculations and entries.
In August 1977, and for a short period thereafter, Re-
spondent had Manager Buechting, Jr.'s wife, Becky Buech-
ting, working in the office on the weekly payroll approxi-
mately 2 days a week. She did sundry other work or errands
for her husband and, for 3 weeks in August, ending in the
week ending August 24, filled in as a station cashier 2 days
a week. As Buechting, Jr., testified, Becky has been a fill-in
employee not working on a regular basis, with the object of
her learning all facets of the company business.'
Thus at the time of the union request for recognition at
the end of August 1977 there were 18 regular shift and relief
cashiers on Respondent's payroll,' plus a night maintenance
or utility man (Stephen Henson), and an office bookkeeper
(Carla Miller).
Pay for the cashiers and the night maintenance man Hen-
son was $3.25 per hour. At an earlier time it had been $3
per hour. Starting pay for a new cashier was $2.75 per hour
(which had earlier been $2.50 per hour).
Pay for the bookkeeper Carla Miller was considerably
higher, at $4.35 per hour.
B. Union Organizing
The Union's (Local 618, Teamsters) interest in organiz-
ing Respondent's employees was stimulated by Local 655 of
the Retail Store Employees Union, which on August 9,
1977, began to organize at the Telegraph Road (Oakville)
station and obtained two signed authorization cards from
employees Betty Meyer and Charmonte Brenner (Resp.
' Also in the office, according to bookkeeper Carla Miller, is a Jean Hawk,
employee of Twin City Oil Company, but not claimed to be an employee or
agent of Respondent Winco, as is Jim Partney.
sThe 18 cashiers, stipulated by the parties to be employees within the
meaning of the Act during the relevant times of the complaint and appropri-
ate members of the bargaining unit, were: Cecelia Eagle, Martha Roberts,
Betty Meyer, Charmonte (Monte) Brenner, Ed Bonk, Leslie McKeever, Glo-
ria Broombaugh, Nancy Robinson, Mike Basiler, Doyne Wilson, Keith
Wnght, Bruce Caby, Al Rayl. Judy Shepherd Oster, Joan Meyers, Joyce
Scharringhausen, Von Vandiver, and Rick Willis.
Exh. R-2.) Abruptly, Local 655 decided to abandon its
campaign and, among other things, on August 10, 1977,
wrote to the Union (Teamsters Local 618) (G.C. Exh. 14),
encouraging it to undertake the organizing and turning over
information concerning Respondent and its employees' in-
terest in unionizing, including the two signed authorization
cards.
The Union's assistant business representative, Bernard
Lang, testified that he saw the Retail Store Employees
Union's letter on August 15 and on August 16 visited the
Telegraph Road station and talked to employees Betty
Meyer and Charmonte Brenner. Employee Meyer testified
that Union Representative Lang pointed out that the Retail
Store Employees Union serviced grocery stores and was not
as suitable for Respondent's employees as his automotive
Union. He discussed the Union's benefits and both women
signed union authorization cards on August 16 (G.C. Exhs.
13 and 15, respectively).
Between August 16 and 24, 1977, Union Representative
Lang campaigned among the employees at the three sta-
tions and received a total of 12 signed authorization cards.
More or less contemporaneously with the union campaign,
Respondent Manager Buechting, Jr., asked various employ-
ees whether they had signed union authorization cards.
Employee Betty Meyer testified that, on August 25,
Buechting, Jr., asked her if she had talked to the union men,
and when she said yes, asked her to have them call him.
Buechting, Jr., confirmed this in his testimony, suggesting
that he had also asked employee Doyne Wilson at Pevely
station to do the same thing. That same day, employee
Meyer passed the message to Union Representative Lang,
and from the union office Lang and his supervisor, Union
Vice President Charles Hermann, called and Hermann
talked with Buechting (Hermann did not know whether it
was Senior or Junior).
In the conversation, according to Union Vice President
Hermann, Buechting said he understood the Union had or-
ganized his employees and he would like to arrange a meet-
ing and see where they were. A meeting was set for 3 p.m.
Friday, August 26, 1977, at Respondent's office in Pevely.
Manager Buechting, Jr., testified that it was he who talked
with Hermann on the phone and invited him to come to
Pevely and talk, and that he had told Buechting, Sr., in
advance on Thursday, August 25, that he was seeking such
an arrangement by having an employee asking the union
representative to call.
C. Recognition, Initial Bargaining, Repudiation
The two Buechtings, Bill, Sr., and Bill, Jr., and the two
union representatives, Hermann and Lang, met, as prear-
ranged at 3 p.m. on Friday, August 26, 1977, at Respon-
dent's office in Pevely. The office comprises an outer room
or office where there are desks and records for the work of
office personnel and others, and an inner or private room or
office, where the four men met.
Union Vice President Hermann testified that, after intro-
ductions and social conversation, he stated that the Union
represented a majority of Respondent's employees. Accord-
ing to Hermann, Buechting, Jr., replied that he understood
from talking to a majority of the employees that the Union
had obtained signed cards from a majority. Hermann of-
1122
WINC() PETROL.EUM COMPANY
fered a card check and asked if Respondent preferred to
check by a third party. Buechting. Jr.. said no. according to
ilermann, that if he showed them the cards. "We can take
it from there."
Union Vice President Hermann produced the 12 signed
union authorization cards the Union had and handed them
to Buechting, Jr., Buechting, Jr., looked at each card and
said, according to Hermann, that he thought they were the
signatures of each employee on the several cards. Hermann
then handed the cards to Buechting, Sr., who also went
through them, and then said, according to Hermann, "If
Bill Jr. says these are the employees' signatures they are,
he's familiar with their signatures." Buechting, Sr., testified
that neither he nor Bill, Jr., questioned the validity of the
signatures. Hermann then handed the cards back to Buech-
ting, Jr., for a second look, and asked, "how about proving
majority, how many employees do you have."
Buechting, Jr., went out of the room and came back with
records, in particular the payroll ledger (which Hermann
and Lang accurately described in their testimony before it
was produced at the hearing), that enumerated by the week
all employees including supervisors who worked in each
week and their earnings.7 Buechting, Jr., went through the
authorization cards a second time and looked at the rec-
ords, said Hermann, and announced that Respondent had
19 employees. Buechting, Sr., testified on cross-examination
that Respondent talked of 19 employees. Ascertaining that
Buechting, Jr., was including two office workers, Hermann
said the Union was not interested in office clericals, and was
interested only in the station employees. Whereupon, ac-
cording to Hermann, Buechting, Jr., replied, "then there are
17 employees in the bargaining unit."
Union Vice President Hermann asked, he said, "Do we
represent a majority; and Buechting, Jr., replied, "You do,"
with Buechting, Sr., also giving an indication of assent by
either a nod or a yes, according to Hermann.
At this point Hermann said to the Buechtings, "Since
we're here and St. Louis is a distance away, let's get some
negotiations going." Both agreed, according to Hermann.
and Union Representative Lang provided copies of the
Union's standard automotive service agreement. which
Hermann explained was used for most of the stations that
contract with the Union (G.C. Exh. 3).
Herman testified that he began the negotiations by read-
ing aloud article 1.01, the recognition clause. He asked if
recognition was agreed to, and Buechting, Jr., said yes and
Buechting, Sr., gave a nod of assent. Continuing, said Her-
mann, he read article 1.02, the union-security provision,
asked if it was agreed to, and received a yes from Buech-
ting, Jr., and a nod of assent from Buechting, Sr.
I The 12 employees who signed union authorization cards, and the cards
shown as identified by Hermann were: Alan Rayl, G.C. Exh. 2: Stephen
Henson, G.C. Exh. 5: Keith Wright, G.C. Exh. 7; Von Vandiver. G.C. Exh.
8; Michael Basler, G.C. Exh. 9; Judy Shepherd (Oster). G.C. Exh. II; Mar-
tha Roberts, G.C. Exh. 12 Betty Jean Meyer. G.C. Exh. I Charmonte
Brenner, G.C. Exh. 15; Joyce Scharnngausen, G.C. Exh. 16: Bruce Caby.
G.C. Exh. 17; Ed M. Bonk. G.C. Exh. 18.
7 In this connection, the testimony of bookkeeper Carla Miller showed that
each payroll begins Thursday morning and ends the following Wednesday
midnight, that payroll day is Thursday. and the enries in the payroll book
are made on Thursdays before the paychecks are issued, and that the payroll
worksheet is shown to Manager Buechting. Jr.. before the paychecks are
written.
Continuing his reading, Hermann said, he read articles
1.03 (new employees) and 1.04 (notification of new employ-
ees). Buechting. Sr., asked if he and Bill, Jr., had to join the
Union. Hermann replied, no, the Union was not interested
in employers joining, but only actual employees. Lang
noted that Buechting, Jr., asked (Buechting, Sr., confirmed
this in his testimony) whether all new employees had to be
hired through the union hiring hall, and Hermann replied.
no, it was not compulsory.
Hermann testified that he started to read article 1.05
(union-shop card), when Buechting, Sr.. interrupted to say.
as Buechting, Sr., testified he phrased it, "Let's get down to
the cost of this contract, whether we can afford it or not--
wages and health and welfare are the things we are con-
cerned with." Hermann said he broke off his reading from
article I and jumped to article IV, health and welfare. On
the opening point, payment into the welfare fund, Hermann
said he explained that the monthly payment by the em-
ployer was now $40 per employee (not $35 or $45 as indi-
cated in the printed text) but that the union health policy
covered not only each employee hut the employee's depen-
dents as well. Buechting, Sr., commented, according to Her-
mann and Lang. that Respondent had a new insurance pro-
gram that covered the employee alone, for which the
employee paid $18 per month and the employer contrib-
uted $20 monthly, that appeared to satisfy a number of
divorced women employees who were interested in the pol-
icy on themselves since the former husbands were paying
child support: and he was not sure they would be interested
in the union policy.
The discussion moved to article VII, concerning job clas-
sifications and wage rates. Buechting, Jr., testified that he
asked Hermann, "Where do our employees fit in, the con-
tract (art. VII) has no classification for cashiers." Hermann
replied that the cashiers could be put under "driveway at-
tendant" at the lowest rate shown, $3.50 per hour, and a
classification "cashier" written in, as the Union had done
for a nearby Robin Hood station and a Sinclair station.
Also, said Hermann, a letter of understanding could be
written that cashier's duties remain as they are now.
Buechting, Jr., testified that they discussed the pay scale
and that he stated that the union rate of $3.50 an hour was
not that much different from Respondent's pay scale of
$3.25 per hour. Buechting, Sr., spoke at this point, accord-
ing to Hermann and Lang, saying that the company had
not made much money last year (naming a figure, $8,000
according to Hermann, $7,600 according to Buechting Sr.),
though they had done well in the previous year but more
recently were being plagued by gasoline "wars"; that they
might be able to meet the $3.50-wage rate but not the
health and welfare payment too: or conversely they could
give the employees the health and welfare program and
maintain the $3.25-wage rate; so that "we are 25 cents per
hour short of an agreement."
Hermann answered, "If we have to modify the contract
in that respect we have to ask the employees, because we
felt that the standard contract was what we could get for
them." He asked Buechting, "Is this a bona fide offer, if the
employees accept do we have a contract."
Buechting, Sr., replied, according to Hermann. "We have
agreed with the first several articles and the rest seem to be
I 123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
window dressing-the economics is the problem area; we
can't give you a full bona fide offer at this time because we
have another party with an interest in the company to
whom we would like to talk and we will get back to you in
three or four days." The parties then agreed, as Buechting,
Sr., Buechting, Jr., and Lang testified, to meet again the
following Wednesday, August 31, 1977.
The meeting for August 31 had to be canceled because
Hermann could not keep the date, said Buechting, Sr.: it
was rescheduled for September I, through Lang's efforts,
and again had to be canceled.
Thereafter, word was passed to Union Vice President
Hermann to call Respondent's lawyer, McMahon, about
meeting. When they finally got to talk, a week or more
later, and Hermann requested a date for completion of the
contract negotiation, McMahon told him Respondent was
not interested in contract negotiation but in a meeting for
the purpose of having a Board election. Hermann replied
that having had recognition of the Union on three card
checks and negotiations for a contract close to completion,
the Union was not interested in an election but would file
an unfair labor practice charge for Respondent's failure to
bargain. The charge was filed September 14, 1977.
Going back to the meeting of August 26, apart from
some of the references to their testimony already noted that
support the testimony of Hermann and Lang, the thrust of
the Buechtings' claim at the hearing was that they did not
recognize or bargain with the Union, and that they met
with the union representatives on August 26 for the purpose
of telling them to stay away from their employees on the
job and of telling them that Respondent would fight to keep
the Union out of its operation. I find this claim incredible.
Likewise, some of the alleged remarks along this line, of
which there was no intimation in the testimony of Hermann
and Lang, and supposedly made by the Buechtings at the
meeting, are not believable.
Thus, contrary to their claim, the Buechtings admitted
they sought out and invited the union representatives to a
meeting at Respondent's office for the afternoon of August
26. The Buechtings, and in particular Buechting, Sr., admit-
ted they said nothing in the telephone conversation with
Hermann and Lang, setting up the meeting, about "stop
bothering our employees or we're going to fight you." With
the chief union official and the active union organizer on
the other end of the telephone conversation, this was obvi-
ously the time, if the Buechtings had such a terminal pur-
pose on their minds, to have said so and end any dealing.
More significantly, in his cross-examination, Buechting,
Sr., testified that in the meeting of August 26 he did not
intend to tell the union representatives "to quit bothering
our employees or we are not going to recognize the Union"
(though on direct he claimed he said these things very early
in the meeting before discussion of the contract provisions),
but that he decided on that after Union Vice President Her-
mann showed him the wage rates (which as Buechting, as
well as Hermann, said came out of the contract discussion
of welfare benefits, vacation schedule, and wage scale). In-
deed, Buechting, Sr., then went on to propose, and agreed
upon, having further discussion and negotiation of the con-
tract on August 31, and agreed to postponement thereof to
September I at the Union's request. In the circumstances, I
doubt that he expressed to the union representatives the
hostile thoughts he claimed he did on August 26.
Conclusion
am satisfied that, on August 26, 1977, Respondent vol-
untarily recognized the Union as the majority representa-
tive of its employees and commenced collective-bargaining
negotiations with the Union.
Sometime after September 1, and before September 14,
1977, Respondent repudiated its recognition and the initial
bargaining.
Respondent's withdrawal of recognition of the Union
and refusal to continue the bargaining negotiations, already
commenced, was a violation of Section 8(a)(5) and (1) of
the Act. As the Board pointed out in Jerr-Dan Corp., 237
NLRB 302 (1978), the key is the original commitment of
the employer to bargain upon some demonstrable showing
of union majority. Similar to the case at bar, the showing
was made in Jerr-Dan by the Union on presentation of au-
thorization cards to the employer and his oral acknowledge-
ment that he believed they represented a majority of his
employees and (unlike the case at bar where bargaining
commenced at once) his oral agreement to begin bargaining
4 days later. Following recognition, the employer, as here,
repudiated his prior action by canceling the meeting for
bargaining, and stating that he doubted the Union's major-
ity status, doubted appropriateness of the unit, and refused
to recognize the union absent a Board election.
The Board held that the agreement of the employer to
enter negotiations was additional, implicit recognition of
the union, though not strictly necessary to the finding of
recognition, as was similarly held in the contemporaneous.
analogous case of Brown & Connolly, Inc., 237 NLRB 271
(1978). In that case, without offering authorization cards,
the union brought a majority of the nonsupervisory em-
ployees wearing union buttons to the office of the employer,
who acknowledged the showing of the union's majority sta-
tus and agreed to a date for commencing contract negotia-
tion. The Board held (and repeated in Jerr-Dan Corp., su-
pra):
Once voluntary recognition has been granted to a
majority union, the union becomes the exclusive col-
lective-bargaining representative of the employees, and
withdrawal or reneging from the commitment to recog-
nize before a reasonable time for bargaining has
elapsed violates the employer's bargaining obligation.
Evidence that an employer has commenced bargaining
or has taken other affirmative action consistent with its
recognition of the union aids in resolving the evidentia-
ry question as to whether recognition was granted.
However, once the fact of recognition is established
such additional evidence is not required for the bar-
gaining obligation arises upon voluntary recognition
and continues until there has been a reasonable oppor-
tunity for bargaining to succeed.
In both Jerr-Dan and Brown & Connolly, the Board also
Respondent's contentions with respect to appropriate unit, size of the
unit, and validity of certain authorization cards are dealt with in secs. E and
F, infra.
1124
WINCO PETROLEUM COMPANY
held that a bargaining order should issue on the finding of
the employer's withdrawal of recognition, without the ne-
cessity to find, under the guidelines of N.L.R.B. v. Gissel
Packing Co., Inc.., 395 U.S. 575 (1969). that respondent's
conduct after its refusal to bargain violated Section 8(a)(5)
by making a fair election impossible.
D. The 8(a)(l) and (3) Findings
Since late August 1977, Respondent has engaged in var-
ious acts of interference with and discouragement of its em-
ployees' right to unionize.
Coercive Interrogation. Impression of Surveillance.
Threats. Soliciting Return of Union Cards. Grant of
Benefits
Employee Betty Meyer testified to conversations with
Manager Bill Buechting, Jr., at the Telegraph station in the
last week of August in which he asked if she signed a union
card, and. when she said yes, told her he already knew since
the union man had shown him cards. Buechting, Jr., asked
her if she knew who got the card signing started, and she
told him she did not know.
On August 22. Manager Buechting. Jr., talked to second-
shift employee Judy Shepherd Oster at the Festus station
and asked her if she had been talking with the Union, and
she said a union man had talked to her. Buechting. Jr.. told
employee Oster he knew that employees had been signing
union cards, and if the Union came in he had to cut her
hours from 42 hours to 40 hours per week. since he was not
paying overtime for hours over 40 hours. The reduction in
hours was made shortly thereafter.
A day or two after this conversation President Bill
Buechting, Sr., came into the Festus station and talked to
employee Oster and the third-shift employee Martha Rob-
erts, who routinely relieved Oster at noon from her console
duties. Buechting, Sr.. wanted to know why they needed a
union. Martha answered they did not know their bosses or
who to go to with problems and needed a union for that
reason. Buechting. Sr. replied he did not know it was that
bad, he was trying to turn the business over to Bill, Jr., but
if the Union came in there would be no communication
between management and the employees, it would all be
through the union man.
Employee Mike Basler, who worked the fourth shift,
from 6 p.m. to midnight, testified that on Saturday morning
August 27 he was called at home by Manager Buechting
and asked if he had signed a card to join the Union. Basler,
who had previously signed a card (which was an applica-
tion for membership and designation of the Union as repre-
sentative for collective bargaining), answered no. Buech-
ting, Jr.. said he had seen some signed union cards and
asked, was Basler sure. Basler said he was sure. Buechting
asked if Basler had been approached, and Basler answered
that a union representative had spoken to him and asked if
he were interested in seeing what the Union had to offer.
Buecting, Jr., then asked Basler it he knew anyone else
who had signed, and Basler replied no.
That night, Saturday, August 27. employee Basler
worked at Pevely station, and Buechting, Jr., and his wife
Becky came in at 10 p.m. and talked to Basler. Buechting,
Jr., asked again if Basler was sure he had not signed a card
tojoin the Union. Basler replied he had not. Buechting, Jr..
said, "I know you signed for the Teamsters Union." Basler
answered he signed a card given him by the union business
representative to show his interest in what the Union had to
offer. Buechting. Jr.. repeated. he knew Basler had signed a
union card.
Manager Buechting, Jr., then told employee Basler that if
the Union got in Respondent would have to convert its
stations to full-service stations and the cashiers would be-
come driveway attendants, or Respondent would have to
close the stations. Buechting asked if Basler had read the
union contract posted on the bulletin board, and Basler said
he had.
In this connection employees Basler. Oster, and Meyer
each testified to finding posted, in the weekend of August
27 28. on the bulletin board for station employees, at Pev-
ely. Festus. and Telegraph, respectively, a copy of page 9 of'
General Counsel's Exhibit 3, the Union's standard automo-
tive service station agreement (from which the Respondent
and Union had bargained on August 26). Night mainte-
nance employee Steve Henson saw the postings at all three
stations. As Oster, Basler, and Henson described the page,
the portion setting forth the classification and duties of
"driveway attendant" (which included pumping gas. check-
ing oil, water, and tires, and washing windshields, etc.) was
circled and underlined in red, and in hand-printed red let-
tering was the inscription "New duties of cashiers." Oster
testified that, when Bill Buechting. Jr., and his assistant Jim
Partney walked into the station the day she saw the posting.
she asked, "Is that a new statement that we start pumping
gas." and Buechting, Jr., replied: "You guys wanted a
Union, if you get a Union, this is what your new duties are
going to be."9
Returning to the conversation between Manager Buech-
ting, Jr.. and employee Basler on the night of August 27,
Buechting, Jr., asked Basler to write to the Union to request
the return of his authorization card. Basler said no, not
until he found out more. Buechting, Jr., asked him a second
time to request the return of his card, and Basler declined
again.
In a still later conversation with Basler, Manager Buech-
ting, Jr., mentioned that there might be pickets coming to
the station and asked Basler would he cross the picket line.
Basler answered he would deal with the problem when he
came to it.
Sometime in the last week of August 1977, employee
Alan Rayl, first- or night-shift cashier at Festus, was visited
by Manager Bill Buechting, Jr. Buechting, Jr., asked Rayl if
he signed a union card. Rayl (who had signed a card) re-
plied no. Buechting. Jr., said he had seen a card with Rayl's
name on it, and that Rayl should ask the Union for it and
how they got it. Buechting, Jr., then said to Rayl that if the
Union came in he would have to close down the stations.
i Respondent admitted the existence of the postings at the three stations,
but sought to disclaim responsibility for putting them up. However. from
Buechting. Jr.'s conversations with employees Basler and Oster, supra. which
Buechting did not contradict, it was clear that Respondent had put the
marked copies on the bulletin boards intended as a written threat to all
employees that Respondent would change to more onerous working condi-
tions for its cashier employees if they persisted in supporting the Union
I 1125
DICISIONS OF NATIONAI. LABOR RELATIONS BOARD
In a later conversation in Ihat same week, employee Rayl
and Buechting. Jr.. discussed employee Judy Shepherd. sec-
ond-shift cashier of Festus. who expected to marry Larry
Oster on September I and had arranged time off for the
occasion. Buechting, Jr., told Rayl that if the Union came
in she could not have the time off, it would require a year's
advance notice according to the Union's contracts.
Employee Judy Shepherd (Oster) learned from employee
Rayl that Manager Buechting, Jr.. had said because of the
Utnion he was reversing her earlier arrangement (made
through Assistant Manager Partney) to be off for her wed-
ding September 1 and to use two paid vacation days she
had saved in connection therewith. In distress, failing to
reach Buechting. Jr.. employee Shepherd called Union Rep-
resentative Lang. Lang said he would handle it and, as he
testified, promptly called President Buechting, Sr. This was
on August 28, and President Buechting, Sr., told Lang he
would take care of the matter. As a result, Buechting, Jr.,
came out to the Festus station. lie asked employee Shep-
herd if she had called the union man and she said yes, she
thought she would not get her vacation days because of
signing the union card. Buechting, Jr.. told her he had
changed his mind about the previous arrangement for paid
time off; she could take the time off on her own account.
but if she wanted to count the time as paid vacation days,
he would not pay for them until November. He then
warned her not to call the union man again.
On August 26 or 27. Manager Bill Buechting, Jr., ques-
tioned employee Keith Wright, who worked the first or
night shift at Pevely, if he signed a union card. Wright said
that he had. Buechting also asked employee Von Vandiver
who was working the fourth shift at Pevely if he had signed
a union card, and Vandiver, who had signed a card, told
Buechting no.
Moving on to late September or early October 1977,
Manager Bill Buechting, Jr., had a talk with employee
Dorothy Tedder, a relief cashier, who had come back to
work for Respondent in September after an absence. He
asked her what she thought of the Union, and she answered
she thought it was a good thing. Bill, Jr., told her if the
Union came in the ladies would be out pumping gas and
changing oil. Anyway, he said there would not be a union
because the employees were evenly divided for and against
the Union. She commented that maybe she was the decid-
ing vote because she had not signed as yet. He answered
that the lady clericals in the office had not signed either and
would outweigh her vote. Employee Tedder was fired in
November 1977 (however the discharge was not the subject
of an unfair labor practice charge; Buechting, Jr., said she
was discharged because she would not take on more than
the 3 days per week she was working).
Employee Alan Rayl, who as already noted worked the
first or night shift from 12 midnight to 8 a.m., 5 days per
week, at the Festus station, had 2 nights per week off. Rayl
had been trying for a long time without success, he testified,
to persuade Manager Buechting, Jr., to let him have Satur-
days and Sundays as his nights off. On the night of Novem-
ber 15 or 16, 1977, Manager Buechting, Jr., came to the
cashier's desk and told Rayl he was going to tell him the
next day whether he would get the Saturdays and Sundays
off that he had wanted since his employment began. At that
point. Buechting, Jr., introduced Rayl to lawyer Stewart.
one of Respondent's attorneys in this case, who had just
completed an interview with night maintenance man Hen-
son in a room at the station, and suggested that Rayl talk to
Stewart. Rayl did and said he answered lawyer Stewart's
questions about the circumstances of his meeting the union
representative and signing a union card, and signed a state-
ment for Stewart, while Buechting, Jr., waited in the next
room.
Rayl was told by Buechting, Jr., that he could have the
weekends off, and Rayl testified that he got the next three
Saturdays and Sundays off, but that they were taken away
from him by Buechting, Jr., sometime in December after
Rayl gave the Board agent a statement.
Summary of 8(a)(1) Violations
Neither Manager Buechting, Jr., nor President Buech-
ting, Sr., contradicted the testimony of the employee wit-
nesses. Respondent has taken the position that the incidents
comprised well-meaning, friendly conversations with em-
ployees without intent to violate the Act.
I do not view it as such. Respondent's conduct was delib-
eratel) calculated to chill, and had a chilling effect upon,
unionization by its employees.
The conduct embraced coercive interrogation of employ-
ees concerning whether each signed a union authorization
card, whether he or she knew who else signed, inquiring as
to who among the employees started or was responsible for
the card signing, why employees felt they needed the
Union, and would they support the Union if there were
picketing: at the same time creating the impression of sur-
veillance of employee union activities by indicating aware-
ness of who had signed union cards as questioning pro-
ceeded. Lacing the interrogation and impression of
surveillance were threats, if the employees brought in the
Union, of closing the stations, threats of making the work-
ing conditions more onerous (including posting of notices to
that effect), threats of reduction in hours, of reduction of
vacation benefits, and of delayed payment for scheduled
paid vacation time, and the threat that the employees
would not be able to discuss their problems with manage-
ment. Coupled with the threats and interrogation were im-
portuning and soliciting employees to obtain return from
the Union of signed authorization cards, a promise and
grant of a preferred time-off benefit to discourage an em-
ployee's union activities and encourage his assistance to Re-
spondent in fighting the Union, and a warning to an em-
ployee not to communicate grievances to a union
representative. Separately and in combination these actions
constituted interference with, restraint, and coercion of em-
ployees in the exercise of their Section 7 rights in violation
of Section 8(a)( ) of the Act.'°
'° See. for example, on coercive interrogation, N.L.R. B. v. Varo. Inc., 425
F.2d 293. 298 (5th Cir. 1970); on creating impression of surveillance, Hen-
drix Manufacruring Co., Inc., v. N.L.R.B., 321 F.2d 100, 104-105 (5th Cir.
1963); on threats of plant closure or other reprisal, N.L.R.B. v. Gissel Pack-
ing Co., Inc., 395 U.S. 575, 618 620(1969); on promising or conferring bene-
fits to influence employees, N.L.R.B. v. Exchange Parts Co., 375 U.S. 405,
409 (1964). Note that the threat to cut off communication between manage-
ment and employees, if the employees selected union representation, was a
threat to deny an important right of employees to present grievances to an
employer guaranteed by Sec. 9(a) of the Act.
I 126
WINCO PETROLEUM COMPANY
Respondent also engaged in discriminatory conduct in
violation of Section 8(a)(3) as well as of Section 8(a)(1) of
the Act.
Reduced Hours, Altered Vacation Policy, Written
Reprimand System
Hours: It has already been noted that, up until late in
August 1977, Respondent's second-shift cashiers worked
from 8 a.m. to 3 p.m., 6 days per week, for a 42-hour week
(in contrast to the cashiers of other shifts who worked a 40-
hour week or 36-hour week). The second-shift employees
were paid straight time for the additional 2 hours over 40
hours and not at an overtime rate.
It was also noted and found that, on August 22, 1977,
when Manager Buechting, Jr., interrogated Festus, second-
shift cashier, Judy Shepherd Oster, concerning union activi-
ties and let her know of his awareness that employees had
been signing union cards to bring in the Union, he threat-
ened that if the Union came in her hours would be cut back
to 40 hours per week, saying he was not going to pay over-
time pay. Buechting, Jr., effected the threatened cut in
hours in the following week (shown on the earnings record
of Oster, G.C. Exh. 29, as week ending August 31, 1977).
Likewise a similar cut in hours was effected for the second-
shift cashier at Telegraph, Betty Meyer (G.C. Exh. 30), who
had admitted on Buechting, Jr.'s interrogation the signing
of a union card, and for the second-shift cashier at Pevely,
Gloria Broombaugh (G.C. Exh. 31).
Respondent's cutback in hours was motivated by anti-
union reasons and was discriminatory in violation of Sec-
tion 8(a)(3) of the Act.
Vacations: In connection with vacations, Respondent
contended at the hearing that its vacation policy was I
week of paid vacation after I year of service and 2 weeks of
paid vacation after 3 years of service. In practice, Respon-
dent permitted employees to take their vacations prior to I
year of service. Thus employee Judy Shepherd Oster, who
began her employment in November 1975, took her first I-
week vacation in the summer of 1976, and in 1977 took the
first 4 days of vacation in June 1977, saving the 2 additional
days for her planned wedding time September I. Employee
Betty Meyer, who began her employment in December
1975, took her first -week vacation in July 1976 and had
scheduled her I-week vacation in 1977 for starting near the
end of August. Both Oster and Meyer were paid for their
vacation time in 1976 in the week following the vacation.
However, in late August 1977, with the advent of the
Union, Manager Buechting, Jr., abruptly altered the vaca-
tion policy and practice, and specifically in the cases of
employees Oster and Meyer, who were both supporters of
the Union at the time and had signed union cards.
Buechting, Jr., told employee Oster of the change, ini-
tially only indirectly through employee Al Rayl as already
described under the 8(aXl) violations. Buechting told Rayl
that Oster could not have the paid vacation days she had
saved for her September 1 marriage because if the Union
came in it would require a year's advance notice for vaca-
tion time. Oster could not reach Buechting Jr. directly, but
succeeded in having the union representative tell the
Buechtings of her grievance, as a result of which Buechting,
Jr., came to Oster directly and told her that he had reversed
her prior arrangement, but that if she wanted the paid vaca-
tion days for her September I wedding time she would not
be paid for them until November. Oster took the 2 vacation
days as originally planned, but was not paid for them until
November 1977.
Manager Buechting, Jr., told employee Betty Meyer, di-
rectly, just before her I-week vacation was to start near the
end of August, that she could not take the vacation until
December 1977. When Meyer remonstrated that her family
plans for the week had been set for a long time, Buechting,
Jr., agreed, as in Oster's case, to let Meyer take the ar-
ranged vacation time, but would not pay for the time until
December 1977.
Respondent's altering of the vacation policy and practice
affecting employees Oster and Meyer was obviously in-
tended to discourage employee interest in the Union and
was discriminatory, retaliatory action for the employees'
union activities, in violation of Section 8(aX3) of the Act.
Reprimand: Employee Henson, the night maintenance or
utility man, made his rounds of the three stations twice
each night. He testified that on the night of August 27,
1977, he recalled noting that Telegraph was low on paper
toweliag for wiping windshields, but forgot to add to the
station's reserve. On the next night he found a written rep-
rimand (G.C. Exh. 6) from Manager Buechting, Jr., saying
Telegraph station was out of windshield towels, and, by its
additional language, that stated his duties (see sec. A, supra)
and ended with "eight hours a day gives you plenty of time
for these activities," implying criticism generally of his
work (as he read it). In restocking Telegraph with towels on
August 28 he observed that the station was still low in, but
not out of, towels and there had been no replacement by
anyone else (the color of the towels in storage was different
from that at the station). He was also assured by Assistant
Manager Partney that there was nothing wrong with the
general performance of his duties.
Employee Henson testified that he had never been repri-
manded orally or in writing before, including a prior occa-
sion when he forgot to leave towels at a station. Respondent
stipulated that it had no prior system of written reprimands
and that its counsel recommended instituting the practice in
late August or early September 1977. This written repri-
mand came after Respondent had seen Henson's name on a
union authorization card (in the meeting with the union
representatives) on August 26."
Instituting the reprimand system and activating it against
employee Henson was motivated by, and in retaliation
against, Respondent's employees' union organizing, and to
discourage their union membership, and thereby violated
Section 8(a)(3) and (1) of the Act. See, for example, Carlisle
Paper Box Company, 168 NLRB 706, 716 (1967), affd. 398
F.2d 1, 3 (3d Cir. 1968); Tamper, Inc., 207 NLRB 907, 934
(1973), affd. in relevant part 522 F.2d 781 (4th Cir. 1975).
Discriminatory Discharge of Employee Oster
Employee Judy Shepherd (Oster) was one of Respon-
dent's more senior employees in point of service. She
H Whether the reprimand to employee Henson was on August 28 or Sep-
tember 28 (as the notice appears to be dated), the effect was the same.
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
started in November 1975 and worked the second shift at
Festus from 8 a.m. to 3 p.m. (cut back to 2:40 p.m. starting
in the last week of August 1977) 6 days a week, with Satur-
day her day off. She had been married previously and had
young children of school age. About August 1, 1977 (before
the union organizing had started), employee Shepherd in-
formed Assistant Manager Partney, and a few days later
Manager Buechting, Jr., that on September I she was to be
married to Larry Oster, who had suggested she spend more
time with the children, and she asked if it could be arranged
by fall for her to have Sundays as well as Saturdays with
her children, and work a 5-day week. Initially both manag-
ers indicated to her, she testified, that it could be worked
out. Employee Al Rayl was present at the conversation
with Buechting, Jr., and corroborated that he spoke favor-
ably of the request. (I do not credit Buechting, Jr.'s denial.)
Meantime, on August 22, employees Shepherd, Martha
Roberts, and Steve Henson together signed union authori-
zation cards at the Festus station and turned them over to
Union Representative Lang. Beginning on the same day
and subsequently, employee Shepherd was interrogated by
Manager Buechting, Jr., and thereafter by President Buech-
ting, Sr. about union card-signing and union sympathies
and was threatened with more onerous working conditions
and cutting off of communications by the employer, her
weekly hours of work were reduced from 42 to 40 as was
also threatened, and her arrangement with management for
using two saved vacation days for her marriage was abro-
gated. The arrangement was partially restored after she ob-
tained intervention of the Union, but she was rebuked and
warned against communicating again with the Union. (All
of the foregoing has been detailed above and are found to
have constituted unfair labor practices variously in viola-
tion of Section 8(a)(l) and (3) of the Act.)
Just before her marriage Shepherd asked again about
Sundays off and a 5-day week. But by then the spirit of
accommodation had disappeared and Manager Buechting,
Jr., refused, and continued to refuse. He made a number of
unacceptable suggestions when employee Shepherd (Oster)
asked again in September and October. Among them, he
suggested that Oster call in sick on Sundays, but Oster de-
clined to use a deception; he suggested and she declined a
5-day week with Mondays and Thursdays off, which obvi-
ously defeated the purpose of the request for the 5-day
week; and he suggested and she declined a 3-day week as
insufficient for her economic needs.
Around November 1, employee Oster had to be away
from work because of a death in the family. When she re-
turned she found that Elona Vandiver, who was a former
employee, had been rehired as a relief employee working
several days per week plus extra days. Oster renewed her
request for Sundays off because employee Vandiver had
indicated her availability for Sunday work, of which Oster
apparently had learned. Buechting, Jr., had Vandiver work
in place of Oster on Sunday, November 13, but just before
the next Sunday, November 20, he informed Oster that
Vandiver was not available for that day. Oster suggested
that if Buechting, Jr., would get someone to cover for part
of her shift on Sunday, namely, the cashier 4 hours' portion
from 8 a.m. to 12 noon, she would put in extra time without
pay on the following Monday doing the paper and bank
work portion of her Sunday time. Buechting, Jr., agreed.
On Saturday, November 19, employee Oster called Man-
ager Buechting, Jr., at or about 2 or 2:30 p.m. to make sure
that he had arranged to cover the station for the 4 hours on
Sunday, November 20, as promised. Buechting, Jr., assured
her that he was taking care of it, and she requested, if there
were a problem, that he be sure to call her back that after-
noon because she and her husband were going out that
evening. He said he would do so.
Manager Buechting testified that he had agreed to the
arrangement. However, he failed to locate a substitute and
did not attempt to call employee Oster back until that Sat-
urday night, when Oster and her husband had gone out.
Buechting claimed that he had his wife Becky do the calling
to leave a message with the Oster babysitter that Oster was
to be at work early Sunday morning. Becky Buechting did
not testify, but Oster testified that when she and her hus-
band came home at 4 a.m. Sunday morning the babysitter
said there had been a telephone call but had no information
on from whom or for what. A few hours later in the early
morning between 7 a.m. and 7:30 a.m. (November 20),
Oster was roused from sleep by a telephone call from Becky
Buechting telling her she had to be at work by 8 a.m.
Employee Oster replied that Becky's husband Bill, Jr.,
had arranged that she not work that day and Oster asked to
talk to him. Buechting, Jr., came on the telephone (he
claimed he did not, but admitted he was staring there as
his wife Becky talked to Oster, and I do not redit his de-
nial). Oster reminded him of their arrangement, and he con-
ceded he was supposed to call her back Saturday afternoon
if the Sunday substitution fell through, and he said he
would take care of it this time. However, according to
Oster, Becky came back on the telephone and told Oster,
"We're not working anything out with you."
Employee Oster came to work on Monday, November
21, and did her day's job, including the paper and bank
work. Becky Buechting came in at the end of the shift,
asked for Oster's key and told her, "You won't work on
Sundays, we don't need you, you no longer have a job."
Oster testified that she has not worked for Respondent since
then.
Conclusion: Respondent claimed that employee Judy
Oster was fired for refusing to work on Sundays. There was
no evidence that employee Judy Oster declined to perform
her Sunday work or that she stayed out when scheduled
and expected. There were only two Sundays, November 13
and 20, 1977, when she did not work, and these 2 days off
were prearranged with Manager Buechting, Jr. Oster was
obviously conscientious about her Sunday obligation, as
shown on Saturday, November 19, when she checked to be
sure that a replacement for her had been obtained for No-
vember 20 and indicated then willingness to reassume her
obligation if Respondent notified her Saturday afternoon
that the expected replacement had not been found.
Indeed employee Oster experienced no work problems
with Respondent until she signed a union authorization
card on August 22, 1977, after which she was subjected to a
series of unfair labor practices by Respondent, including
coercive interrogation, threats of more onerous working
conditions, and cutting off communications with the em-
ployer, reduction of hours of work, and abridgment of vaca-
tion benefits. She was rebuked by Respondent for having
asked the Union to help in the latter matter and was
1128
WINCO PETROLEUM COMPANY
warned not to communicate again with the Union. Interest-
ingly, there was never any reprimand or warning to Oster.
oral or written, on the subject of Sunday work, though by
the time of her precipitate discharge on November 21, 1977,
Respondent had in effect for several months the newly es-
tablished discipline procedure including reprimand or
warning.
Based upon the history of Respondent's operations, there
was nothing unreasonable in arranging changes of shifts
and houus for employees, or in some employees not work-
ing Saturdays and Sundays. For example, in 1976 employee
Dorothy Tedder had asked for change from a full-time em-
ployee to a regular part-time employee because her hus-
band wanted her to spend more time at home, and her
request was granted. Employee Al Rayl was offered Satur-
days and Sundays off before he was to be interviewed by
Respondent's lawyer in November 1977 and was thereafter
given those days off (see discussion above).
Actually, there were employees available and willing to
work the Sunday shift from which employee Oster had
sought relief. Employee Henson testified he told Respon-
dent he was available for employment on Sundays or when
needed. Employee Elona Vandiver testified she told Re-
spondent she would work Sundays. Employee Basler who
had been laid off in September was available for employ-
ment. Manager Buechting, Jr., testified that he was aware
that relief employee Cecilia Eagle wanted more hours, but
he did not ask her about taking Oster's Sunday shift while
Oster was still employed. However, as Buechting, Jr., also
testified, upon Oster's discharge he immediately arranged
for employee Eagle to cover Oster's second-shift Sunday
work by having her alternate on Sundays between second
and third shift with Martha Roberts, who already had third
shift on Sunday, something Buechting, Jr., might easily
have done without discharging Oster.
Obviously, Respondent had tried initially to force em-
ployee Oster to quit her job (and constructively discharge
her) by its course of retaliatory unfair labor practices in-
volving coercion and intimidation and by obstinate refusal
to help relieve her of Sunday work contrary to a former
policy of flexibility. When this did not succeed, Respondent
abruptly discharged employee Oster, using as a cover a ruse
designed to make it appear that she refused to work her
Sunday shift. The cover was transparently false, suggesting
that Respondent's real reason for the discharge was its
union animus vented on an employee who, among other
things, had the temerity to call in the Union to help her
with a grievance caused by the employer's unfair labor
practice. The discharge had the purpose of discouraging
union affiliation or membership and was in violation of Sec-
tion 8(a)3) and (1) of the Act. N.L.R.B. v. Ulbrich Stainless
Steels, Inc., 393 F.2d 871, 872 (2d Cir. 1968).
E. The Appropriate Unit and its Size
As already indicated, the parties were agreed that an ap-
propriate bargaining unit included the regular cashiers and
the relief cashiers of Respondent's 3 stations and agreed on
the 18 cashiers named in that category in footnote 5, supra,
as belonging to the unit on August 26, 1977, when, as I
have found, recognition of the Union was requested and
given by Respondent and collective bargaining com-
menced.
The parties initially agreed that the night maintenance or
utility man for the three stations, Stephen Henson, was
properly included in the appropriate unit, except for the
later-developed contention by Respondent that he was a
statutory supervisor. I have found (see sec. A, above) that
Henson was not a statutory supervisor but a rank-and-file
employee. By reason of his functions at the stations, his
association and interchange with the station cashiers, and
his identical pay and benefits, the night maintenance or
utility man had a community of interest with the cashiers
and was a part of the appropriate unit on August 26, 1977.
Hence the appropriate unit on August 26, 1977, com-
prised the regular and relief cashiers and night maintenance
or utility man, numbering the 19 named employees, unless
there were additions as Respondent contends.
Respondent claims an additional category of employee-
bookkeeper or office clerical-and included in that category
Carla Miller, and Becky Buechting, the wife of Manager
Bill Buechting, Jr.
Respondent would also have added to the number of unit
employees four employees, three of whom worked as cash-
iers ar.d one as a bookkeeper at some time prior to August
26, 1977, but allegedly were then on sick or maternity leave.
Carla Miller
Employee Carla Miller was Respondent's bookkeeper on
August 26, 1977, and thereafter. She had also been Respon-
dent's bookkeeper from the beginning of the company in
1974, and testified that she had had a part in setting up the
company, including its name Winco, and setting up its
books and system of records. There was a break in her
employment of a little over a year, when she left in July
1976 for a pregnancy and returned on August 19, 1977. In
the hiatus from July 1976 to August 19, 1977. Sandra Da-
vis, whom Miller trained, did the bookkeeping for Respon-
dent. August 19 was also Sandra Davis' last day of work.
Bookkeeper Miller performs her functions in Respon-
dent's office at Pevely, which as described in section A,
above, is an office separate from the station at Pevely. She
does her work in 3 6-hour days per week, with hours from 9
a.m. to 3 p.m., which times differ from the times of any of
the cashier shifts. Once per month, close to the end of the
month, at a time she selects, she works one extra day doing
end-of-the-month recapitulations.
Bookkeeper Miller spends 2 of her 3 days per week on
keeping the books and the third day on payroll. As she
indicated, there is no need for more than one person doing
this work. However, for a period after her return in August
1977, said Miller, Manager Buechting, Jr.'s wife Becky did
the weekly payroll. As Buechting said, this was for the pur-
pose of Becky learning all phases of the business (for her
expected management role). In this connection, I do not
regard Mrs. Buechting, Jr., as a bookkeeper or office cleri-
cal, see discussion of her status infra.
The bookkeeping, as Carla Miller testified, involves the
maintenance of several ledgers. On the days she works, the
bookkeeper checks the daily worksheets of the prior day or
days completed by each of the cashiers (there are twelve
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worksheets per day). They are delivered to her desk at the
office by the night maintenance man. She checks the cash
and credit card sales, balances them against deposits and
credit card charges, checks the shortages and overages, the
gallonage readings, and oil inventory. Relevant figures are
transcribed by her in a receipts book, a shortage book, and
gasoline book. For payroll, as Miller described it, she pre-
pares daily worksheets showing employee hours and earn-
ings, and a weekly payroll worksheet, writes the checks and
imprints the stubs onto the employee earnings record, and
then transfers the data for each employee into an earnings
book, and the weekly payroll data into a payroll book.
For her work, employee Carla Miller is paid $4.35 per
hour, well above the maximum $3.25 per hour paid to sta-
tion cashiers. The only compulsory day for her attendance
is payroll day, Thursdays, and if it falls on a holiday she is
paid time and a half for the day, which is not the case for
the station cashiers.
Her contact with the station cashiers is minimal. She re-
ceives their daily worksheets through delivery of the night
maintenance man. Once a week on payroll day, Thursday,
she telephones the second-shift cashiers of Festus and Tele-
graph to obtain the hours worked on Wednesday by the
station cashiers and may walk out to the Pevely station to
get like information for Pevely if she doesn't telephone for
it. On rare occasions (three times over the approximate 5-
month period prior to testifying) she has relieved a cashier
at the Pevely station just briefly to permit the cashier to use
the lavatory, and she does not go to the other stations for
any reason. Again equally rarely (three times in the same 5-
month period) she has discussed an error on a daily work-
sheet with the second-shift cashier at Pevely, and there may
have been a telephone call to one or both of the other two
stations on a like matter.
Employee Miller is responsible for the oil inventory. She
does not order the petroleum products for Respondent, but
she does order the supplies for her office work. She also
performs certain functions that Manager Buechting, Jr.,
might otherwise do, such as telephone for needed fill-in
cashiers; and works closely with him in obtaining needed
information, such as payroll changes. At her convenience,
she keeps the office lavatory tidy (but this is not the station
public lavatory that the cashiers keep clean).
Conclusion: As the sole occupant of the post of book-
keeper at the times relevant to this case, I do not regard
Carla Miller as having been or being appropriately a mem-
ber of the bargaining unit.
Carla Miller performs her function as bookkeeper largely
insulated from personal association and contact with the
cashiers at the stations, and there is practically no inter-
change of functions between her and the station cashiers.
Conversely, she carries out her work almost solely in the
office in close contact with the Buechtings, including Man-
ager Buechting's wife, and as an individual appears to have
a close personal and business relationship with the Buech-
tings, as evidenced by her having taken part in setting up
the company, including suggesting its name, installing its
system of records and books, sharing with Manager Buech-
ting confidential information regarding personnel, and re-
lieving him when possible of certain management functions.
In recognition of her special talents and relationship, she
enjoys much higher pay than any other nonsupervisory em-
ployee and has the freedom to choose her days of work
other than the fixed payroll day.
Carla Miller's position is not comparable to a plant cleri-
cal, as Respondent suggests, but is indeed an office clerical
position; and her personal, confidential relationship to Re-
spondent's management precludes giving any weight some-
times given toward including an employee in the unit where
the number of employees is relatively small.
Becky Buechting
Rebecca (Becky) Buechting is the wife of Manager
Buechting, Jr., corporate officer, in charge of daily opera-
tions, and an owner of the company with his father.
Becky Buechting was neither a station cashier nor office
bookkeeper or clerical. She worked at times at both types of
work, but as her husband Manager Bill Buechting, Jr., tes-
tified she was working as a full-time employee and not on a
regular basis, in order to learn about all facets of the com-
pany. Her training was related to the fact that President Bill
Buechting, Sr. (as he testified, and also told several of the
employees) was in the process of turning the business over
to his son Bill, Jr., and Bill, Jr., was training and developing
Becky for a management role. Evidence that he had begun
to put her in that role was his turning over to Becky the
handling of the discharge of employee Oster, supra.
Conclusion. Section 2(3) of the Act excludes as an em-
ployee under the Act an individual employed by parent or
spouse. Looking beyond the corporate form of Respondent,
Becky Buechting is the wife of one and daughter-in-law of
the other of two individuals who together own and manage
Respondent and are in a position to exercise full bargaining
authority on behalf of the corporation as if they were co-
partners. For all practical purposes, they are the real em-
ployers; and as the wife of one of them, Becky Buechting
may not be included as an employee in the bargaining unit,
Fbam Rubber City Ir2 of Florida, Inc., 167 NLRB 623, 624
(1967).
Additionally, she would be excluded from the unit as one
whose interests are more closely identified with manage-
ment than with the employees, Ibid.
Dorothy Tedder, Elona Vandiver, Marsha Zimmerman,
Sandra Davis
None of these four individuals was on Respondent's pay-
roll on August 26, 1977, when Respondent recognized the
Utnion, and was not on the payroll for periods before and
after that day in the time when each was not working.
Respondent contends that each of them was on extended
sick leave or maternity leave and continued to be a bargain-
ing unit employee on August 26, 1977. General Counsel
contends that Respondent had no policy for extended sick
leave or maternity leave, that employment for each of the
four employees ended when the individual left, and that her
return, when it occurred or occurs, was or will be a rehiring
dependent upon the happenstance of a job opening.
Dorothy Tedder was originally a full-time cashier at Fes-
tus, working 6 days per week on the fourth shift, 6 p.m. to
midnight. She began in July 1975. In January 1977 she re-
quested President Buechting, Sr., for a change from full-
time to part-time work, namely, relief work for 3 6-hour
1130
W'IN(() P IR ()IL M C(OMPANY
days per week covering the second. third, and fourth shifts
alternatelv on the 3 dass. so that she could spend more time
at home. tie told her he did not like to lose a good girl trom
the regular fourth shift. but nevertheless worked It lout for
her. She continued in the relief job until sometime in June
1977 when she told President Buechting. Sr.. that she had
trouble with her teeth and needed extended time oft from
the job. She testified she said she would like to come back
to the relief work she was doing because she could not give
more time than that, and he told her when she wanted to
come back to let him know and her old job would be there.
In September 1977. Tedder came in and saw Manager
Buechting. Jr., about resuming work. He told her the only
work available was night work. Indignantly she walked
away and filed for unemployment compensation. claiming
she was in laid-off status. Nevertheless she subsequently
talked to Buechting. Sr., and she was restored to her lformer
relief job of 3 days per week on the alternating shifts, at
least so it appeared. However, sometime in October or early
November 1977 she was discharged by Manager Buechting,
Jr.. who testified that he told her if she could not work more
than 3 days a week, Respondent could not use her.
Tedder testified that she was not aware of any sick leave
or leave policy of the company, printed or oral.
Employee Elona Vandiver began work as a part-time
cashier for Respondent in 1974 or 1975 and became a full-
time cashier. About 6 months after her start she was in an
automobile accident and stopped working. She came back
to work for Respondent on June 2, 1977, as a regular relief
employee. 3 days per week plus being on call for extra
work.
Because she experienced physical difficulty--as she de-
scribed it. "blacking out" becuase of medication she was
taking- Vandiver decided to leave the job again. She testi-
fied that in discussing her leaving and return Manager
Buechting. Jr.. told her, when she got well and if there were
an opening she would be hired: that the only thing she was
assured of was that if she came back and he had an open-
ing, she would have a job. Vandiver further testified that on
the occasions of her first leaving and second leaving she
knew of no leave policy that other employees had gone and
come back the same way she had.
Elona Vandiver came back again looking for a job in late
October or early November and was given work starting on
November 4, 1977. It was not clear whether she was on a
regular part-time relief shift or simply filling in wherever
needed.
Marsha Zimmerman started employment with Respon-
dent in May 1976 as a cashier at Pevel) on the third shift,
12 noon to 6 p.m. She testified that she spoke of her preg-
nancy to Manager Buechting. Jr.. early in 1977 and again in
July before leaving. and left thejob on August 4. 1977. She
testified that in connection with her leaving Manager
Buechting. Jr., told her, "If we had to go we went and when
we came back we came back." She said she was not told of
any leave policy with regard to pregnancy. Zimmerman re-
turned to work to her former job on September 14. 1977,
she said.
Sandra Davis did not testify. Bookkeeper Carla Miller
provided most of the testimony concerning Davis, who
worked in Carla Miller's place as the bookkeeper in the 13-
month period that Miller stopped working in connection
with her pregnancs, from sometime in July 1976 to August
19, 1977. Quite fortuitously. when [)avis left on August 19
she was pregnant.
C(arla Miller testified that she trained Sandra Davis and
that Davis did all of the work Miller did, Davis was not
paid as much as Miller. nevertheless she was paid more
than the cashiers were paid. Thus, when cashiers were paid
$3 per hour. Sandra Davis was paid $3.25 per hour: and
when cashiers were paid $3.25 per hour, Davis as paid
$3.50 per hour. From whatever was said of her perform-
ance. it appears that Davis did her work substantially as
Miller did, without interchange or association with the sta-
tion cashiers and with access to the compan bhooks and
papers and confidential information not available to the
cashiers. Davis apparently did not have the same special
relationship with the Buechtings enjoyed by Carla Miller,
nevertheless she was an office clerical with ties to manage-
ment rather than a community of interest w ith the cashiers.
Perhaps of greater significance, for this case, is the em-
ployment status of Sandra Davis since leaving her job on
August 19, 1977. According to Manager. Buechting Jr., Da-
vis did not say when she would be back, and, though she
had her baby in September 1977, she had not told him
when or if she was coming back to work. even at the time of
the hearing in January 1978. Buechting, Jr., claimed that he
told Davis when she left in August 1977 that her job would
be available when she was ready to return: but I find this
incredible, because Buechting conceded that Carla Miller
has been doing all the bookkeeping work as she had been
for years prior to )avis (in 3 days per week, as Miller testi-
fied), and that he had no intention of laying of (Carla Miller
if Davis returned. When pressed he said, lamely, he would
divide up the work between the two, amounting to 9 hours
per week for each which would hardly he employment for
either wonman, let alone practical for the employer In the
circumstances. it would appear there was no arrangement
for Sandra Davis to return as the bookkeeper for Respon-
dent: indeed, if there had been any arrangement concerning
the bookkeeper's job, it w ould seem that Sandra Davis was
the temporary substitute for Carla Miller while she was
away, and Davis' job ended when Carla Miller came back
on August 19. 1977.'2
('onclus.ion: The foregoing summary of testimony has
demonstrated that Respondent had no extended leave pol-
icy lbr employees who left their work for extended periods
of time because of illness or pregnancy. Employees who left
w'ere dropped from the payroll, and if and when they re-
turned seeking work they were hired if there *was an open-
ing. The fact that in rehiring former employees Respondent
gave them the same pay that they were earning earlier or
that was contemporarily being paid to other employees,
rather than a beginner's pay, was not the equivalent of a
clear arrangement or policy to save their jobs for a fixed or
reasonable time after leaving for illness or pregnancy:
rather, in the circumstances of this case, the pay scale was
12 At the hearing. Respondent sought to claim a Pats\ Johnston as a bar-
gaining unit emplosee She had worked as a relief cashier in 1976. but bs
1977 she had taken work elsewhere, was not available, and declined most
calls, said Manager Buechiing Johnston worked a total of 24 hours in the
first 6 months of 1977. and 6 hours in December 1977 She was at best a
casual employee n 1977 and Respondent. in its brief. has not pressed its
claim for including her in the unit.
1131
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
simply recognition that the employees were persons who
had past experience with Respondent.'
Accordingly. I find that Dorothy Tedder, Elona Vandiv-
er. Marsha Zimmerman, and Sandra Davis were not em-
ployees of Respondent and were not part of the bargaining
unit on August 26. 1977, when the Union sought and was
given recognition by Respondent.
The bargaining unit was comprised of the 18 regular and
relief cashiers and the night maintenance or utility man,
whose identities were agreed upon, supra, for a total of 19
employees.
F. Validil of Union Authorization Cards
On August 26, 1977, the Union had and presented to
Respondent the signed authorization cards of 12 of the 19
employees in the bargaining unit (see fn. 6, above, for the
names of the 12 employees). The signatures of the 12 em-
ployees were not disputed by Respondent. and recognition
of the Union was accorded by Respondent based on the
card showing (see sec. C, above).
At the hearing Respondent contended that a number of
the authorization cards were tainted or invalid by reason of
alleged misrepresentations, principally in regard to an elec-
tion, or other disqualifying action of the Union in obtaining
the cards.
Each of the cards is headed in large bold type followed
by a statement:
APPI.I( AI I()ON FOR MEMBERSHIP
INI'ERNA'IIONAL BROTHERHIOOD OF TEAMSTERS,
CIIAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
TEAMSTERS LOCAL UNION NO. 618
I, the undersigned, hereby apply for admission to
membership in the above Union of the International
Brotherhood of Teamsters, Chauffeurs. Warehouse-
men and Helpers of America and voluntarily choose
and designate it as my representative for purposes of
collective bargaining, hereby revoking any contrary
designation. If admitted to membership, I agree to
abide by the Constitution of the International as well
as the local Constitution and By-Laws which are not in
conflict with the International laws.
The remainder of the card provides spaces for the appli-
cant to identify himself or herself by name, address, job.
employer. other statistics, and signature.'
13 The Board will recognize the right of employees, who are absent on sick
or pregnancy leave under an employer's stated policy giving them the right
to return to their jobs in a fixed or reasonable time, to be included in the
bargaining unit and to vote in an election, if there is no evidence that such
employees have quit or been discharged, American Motors Corporation, Parts
Division, 206 NLRB 287. 291 (1973): but will not accord such right where the
employer has no clear policy or practice assuring the return of the absent
employees to their jobs, Shaw Industries, Division of Crystal Springs Shinr
Corp., 218 NLRB 1196. 1208 (1975).
14 The only ambiguity on the cards, as printed, is the space for "Date"
which also has printed beneath it "Starting Date." Some of the card signers
filled in the date that they signed the card. others filled in the starting date of
their employment. However, there was no question raised about the dates of
signing except in one case, employee Von Vandiver, which is discussed infra.
Of the 12 card signers 9 testified and authenticated their
own cards, giving also the circumstances under which each
signed. In the cases of the other 3, authentication was
provided by fellow employees and signers, as well as by
Union Representative Lang, who testified to the obtaining
of all 12 signed cards."
In judging whether there were union misrepresentations
in connection with the card signing and whether what was
said at the time invalidated the cards, I am guided by three
principal considerations.
The first is derived from N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 606-607 (1969),'6 namely, that employ-
ees as a rule are not too unsophisticated to be bound, and
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;
and that there is nothing inconsistent in handing an em-
ployee a card that says the signer authorizes the union to
represent him and telling him that the card will probably be
used first to get an election. In this regard, because unions
usually expect (as the Board pointed out in Levi Strauss,
supra) to use the election route in gaining representation
rights, and obtain authorization cards primarily to make
the required showing of employee interest, the fact that a
union may have stressed the election use (at a time it
thought it might have a fair election unobstructed by sub-
stantial independent unfair labor practices), rather than the
alternative use of proving majority interest in representa-
tion, does not preclude giving probative value to unambig-
uous authorization cards. Absent some other disability, the
use or proposed use of the cards to secure an election does
not alter their essential character as union designations.
Second, an employee's thoughts or afterthoughts as to
why he signed a union card and what he thought that card
meant cannot negate the overt action of having signed the
card, Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 743
(I).C., Cir. 1950), enfg. 85 NLRB 1263 (1949), cert. denied
341 U.S. 914; N.L.R.B. v. Gissel Packing Co., supra, 395
U.S. at 608; Levi Strauss, supra, 172 NLRB at 734.
Third, where employees testify under the eye of company
officials about card signing events which occurred much
earlier and prior to company activities that constituted un-
fair labor practices, there is wisdom in requiring fairly
strong evidence of misrepresentation before adjudging the
signed cards invalid, N.L.R.B. v. Southbridge Sheet Metal
Works, Inc., 380 F.2d 851, 855 (Ist Cir. 1967). For it is
certainly conceivable that the same threats and benefits
which shook an employee's original support for the union
also altered the employee's memory of the events that oc-
curred before the presentation of such threats and benefits.
By the time of trial, though employees may have changed
15 Thus employee Martha Roberts signed her card at the same time and in
the presence of employees Oster and Henson and Union Representative
Lang; employee Charmonte Brenner signed her card at the same time and in
the presence of employee Betty Meyer and Union Representative Lang: and
employee Ed Bonk signed in the presence of Union Representative Lang.
These were acceptable authentications, see Lifetime Door Co.. 158 NLRB 13.
21 (1966). enfd. 390 F.2d 272 (4th Cir. 1968).
16 Approving, among other things, Board precepts expressed in Cumber-
land Shoe Corporation, 144 NLRB 1268 (1963), and Levi Strauss & Co., 172
NLRB 732 (1968).
1132
WINCO PETROLEUM COMPANY
their minds with respect to union affiliation. the crucial
question in a refusal to bargain case is whether the union
had the support of a majority of the employees in an appro-
priate bargaining unit at the time the request to bargain
was made, and not whether that support remains intact
months later. N.L. R.B. v. International Union, United Auto-
mohile, Aerospace and Agricultural Implement Workers of
America, UAW AFL-CIO [Preston Products Company
Inc.], 392 F.2d 801, 807-808 (D.C., Cir. 1967), enfg. 158
NLRB 322 (1968); Levi Strauss, supra, 172 NLRB at 735.
Betty Meyer, Charmonte Brenner
Employee Meyer testified. Employee Brenner did not.
However, the combined testimony of Meyer and Union
Representative Lang established that Meyer and Brenner
signed their cards (G.C. Exhs. 13 and 15, respectively) the
same day, August 16, 1977, at the same time, immediately
following their joint discussion with Lang.'
Respondent attacks the validity of both cards because
both employees had previously, on August 9, 1977, signed
authorization cards for the Retail Store Employees Union
Local 655 (exh. R-2); therefore, says Respondent, it cannot
be said that either employee designated Teamsters Local
618 as an exclusive bargaining representative."
The cases that Respondent cites to support its position,
including the latest, United McGill Corporation, 235 NLRB
564 (1978), are cases where the same employees signed au-
thorization cards for two or more unions that were contem-
poraneously seeking to organize and represent the employ-
ees. In such situations the Board has with good reason held
that where an employee signs an authorization card for
each of two competing unions, the card for neither union
can be regarded as a valid designation. because it is not
possible to determine which union the employee is designat-
ing as his exclusive bargaining representative, J. W. Mortell
Company, 168 NLRB 435, 453 (1967).
These cases do not apply to the situation at bar. As set
out in section B above, the Retail Store Employees Union
Local 655 began an organizing campaign before the Union
in this case, Teamsters Local 618, became interested. Retail
Store Employees Union Local 655 decided to abandon its
campaign almost immediately after it started and wrote to
Teamsters Union Local 618 a letter dated August 10, 1977,
encouraging it to undertake organizing Respondent's em-
'7 Neither side called employee Brenner to testify, since it probably ap-
peared to them, as it appears to me. that employee Meyer sufficiently cov-
ered the circumstances attendant upon their signing of authorization cards
and events following, as summarized hereinafter.
A" General Counsel contends, among other things, that since Respondent
checked the authorization cards on August 26, 1977, and voluntarily ac-
corded recognition of the Union immediately following the card check, Re-
spondent cannot now litigate the validity of the authorization cards, notwith-
standing its later repudiation of recognition, citing Broadmoor Lumber
Company, 227 NLRB 1123, 1132 (1977). The point made in Broadmoor was
derived from Moisi & Son Trucking, Inc., 197 NLRB 198, fn. 2 (1972). fol-
lowed by E. L. Rice and Company of Souhgate. Inc., 213 NLRB 746, 748-
750 (1974), enfd. 524 F2d 1148 (6th Cir. 1975). However, in all three cases
the employer did not offer or avail itself of the opportunity to present evi-
dence of misrepresentation of majority status or that employees were in-
duced to sign authorization cards by union misrepresentation. In the case at
bar, Respondent has done the opposite and offered evidence of what it be-
lieves is misrepresentation in this area; accordingly, it would appear to be
incumbent upon me to deal with Respondent's allegations on their merits.
ployees, providing information concerning Respondent and
its employees' interest in unionizing, and including in that
connection the authorization cards of employees Meyer and
Brenner which Retail Store Employees Local 655 had ob-
tained on August 9, 1977.
The Union (Teamsters Local 618) became interested in
organizing as a result of the encouraging stimulation and
withdrawal of the Retail Store Employees Union and began
its campaign on August 16, 1977, when Union Representa-
tive Lang visited employees Meyer and Brenner at the Tele-
graph Road station. After Lang discussed their previous
signing for the no longer interested Retail Store Employees
Union, noting, said employee Meyer, that an automotive
union such as Local 618 was more suited to Respondent's
employees than a union that represented grocery stores,
and discussed Local 618's pay scale and benefits, the two
women signed the authorization cards now in issue. The
Union continued its campaign for the next 9 days, obtain-
ing 10 more signatures, until August 25 when Respondent
asked it for the meeting of August 26 and recognized the
Union in that meeting.
From August 16. 1977. forward, the Union (Teamsters
Local 618) was the only union seeking to represent Respon-
dent's employees and, specifically, Retail Store Employees
Union Local 655 was not competing for that designation.
Moreover, in signing their authorization cards for Team-
sters Union Local 618 on August 16, employees Meyer and
Brenner expressly revoked any prior contrary designation
(see text of the cards quoted at the outset of this sec. F).
Since the Union was the only union seeking to represent
Respondent's employees since August 16, 1977, there is no
doubt that the authorization cards signed by Respondent's
employees Meyer and Brenner on August 16 were designa-
tions of the Union as exclusive bargaining representative,
and were valid for that purpose, unless Respondent's fur-
ther arguments prevail.
Respondent contends that the Union misrepresented to
employees Meyer and Brenner that the only purpose of the
authorization card was to get an election.
Employee Betty Meyer testified that Union Representa-
tive Lang, after discussing with her and employee Brenner
what the Union could do for them to improve wages, work-
ing conditions, and benefits, showed them the union autho-
rization cards. Lang told them, said Meyer, that the Union
had to have a majority of the people sign the cards to get
things going; that there would be a ballot box put in each
station, and the employees would have a secret vote: and
that the cards were confidential. Meyer further testified that
she and Brenner filled out the cards, signed, and handed
them to Lang.
Employee Meyer also testified that sometime after Au-
gust 26, after she had been interrogated by Manager Buech-
ting, Jr. (unlawfully, as found sec. D above) about her sign-
ing a union card and who was responsible for starting the
signing, and after he revealed that he had seen her card,
and threatened to deprive her of vacation benefits and
make more onerous the working conditions of employees,
she wrote out a letter addressed "to whom it may concern"
saying that she wanted to withdraw from the Union and did
not want to be in it. She said that employees Charmo;te
Brenner and Joyce Mitchell had written similar letters and
she left hers with them at the Telegraph Road station, with
I 1133
DI)[('ISIONS (): NA I (NA. I.ABOR R:I.ATIONS BOARI)
no envelope and no instructions as to what to do with it.
('[here was no evidence that any such letter or letters were
delivered to the union.)
'Ihe testimony of' employee Meyer indicates that she
knew, and was not told differently by Lang when she
signed the union card that she was applying for member-
ship in the Utnion and authorizing the Union to represent
her in collective bargaining, as the signed card unambigu-
ously stated. Iler ineffectual attempt to "withdraw rom the
Union" and cancel the relationship created by the signed
card attests to her awareness at the time of the significance
of the card signing. Moreover. Union Representative
Lang's representation, as Meyer stated it. that the Union
needed a majority of the employees' signatures to get things
going, was quite consistent with his preceding discussion of
getting the employees improved wages, working conditions,
and benefits, as well as of' using the cards for obtaining a
secret ballot election. I the solicitor's stress was on the use
for obtaining an election it was not contradictory of the
plain statement on the card of using it as a designation of
the Union as representative for collective-bargaining pur-
poses even though he may not have explicitly referred to
that use. See consideration one, above. in judging alleged
union misrepresentations, and Ilctldroml ('omlpai,. 223
NL.RB 1409. 1410 11 (1976), reversed on other grounds 558
F.2d 1137 (3d ('ir. 1977).
That employee Meyer was told her card would he kept
confidential was not the equivalent of' telling her that it
would be used only lor the purposes of obtaining an elec-
tion. N.L.R.B. v. Gissel Packing Co., Inc., supra, 395 U.S.
575, 584, fn. 5 (1969): and the fact that the representation
as to confidenliality was breached is irrelevant to the reli-
ability, and hence the validity, of the union authorization
card, N.L.R.B. v. Bover Brothers, Inc., 448 F.2d 555, 560
(3d Cir. 1971), cert. denied 409 U.S. 878 (1972).
Accordingly, I find that there was no misrepresentation
by the Union in obtaining the signed authorization cards of'
employees Meyer and Brenner, and the cards were valid
designations of the Union as bargaining representative.
Joyce Scharringhausen, Alan Rayl, Bruce ('aby. Keith
Wright
Respondent contends that the authorization cards for
these four employees were invalid because Union Repre-
sentative Lang told them the purpose of the card was to get
an election.
Employee Joyce Scharringhausen testified she met with
Union Representative Lang twice in regard to signing an
authorization card. On the first occasion, he introduced
himself said he was attempting to see how many employees
were interested in the Union. that a number of the girls had
signed union authorization cards. and asked was she inter-
ested. She answered, she would have to think about it. I.ang
told her, said Scharringhausen, that the purpose of the
cards was to have an election, there would be a meeting and
then an election. However, she added, Lang also told her
that he would try to get a standard automotive contract
from the employer, the same as he had at other stations:
and that he would try to present the standard Teamsters
agreement to the employer.
At the second meeting with Lang. said employee Schar-
ringhausen, she told Lang she was interested in the Union,
she read the authorization card. filled it out, and signed it.
She saw .ang a third time. after the Buechtings had inter-
rogated and threatened the employees about the card sign-
ings. andt told Lang she was disappointed and upset that the
Ilnion had shown the cards to the employer, said she felt
she had been misinfornmed. and did not want any part of
going Union.
This last was apparently a reaction to the Respondent's
unifalir labor practices, but it is obvious from employee
Stharrilghausen's account that Ulnion Representative Lang
did not misrepresent that the authorization card was some-
thing other than it purported to be: indeed. he described for
her the dual purposes and use to which the card might be
put. Scharringhausen's card was a valid designation of' the
Union as bargaining agent obtained without misrepresenta-
tion.
Employee Alan Rayl testified that he filled out and
signed the card in Union Representative Lang's presence:
that he had seen the card before: that Lang told him that
signing did not mean he was in the Union but meant that
the Union would represent him: that if the company would
not acce pt the cards, they would be used for obtaining an
election: however, the card did not itself count as a vote,
but there might be an election under certain conditions.
limployee Rayl also testified that sometime later he told
the union representative he had not liked the Union show-
ing the card to Respondent, but that he did not tell the
Union he wanted his card back nor did he try to get it back.
From employee Rayl's account, in signing his authoriza-
tion card he received a fairly complete and accurate de-
scription of what the signed card signified and the dual use
to which it might be put. here was no misrepresentation.
and the card was a valid designation of the Union as bar-
gaining representative.
Employee Bruce Caby testified that he met twice with
Unioni Representative Lang. In the first meeting, said Caby,
Lang told him he was taking a poll of the employees to see
who of the employees was interested in the Union. Caby
said he would discuss it with other employees. In the second
meeting, said Caby, he discussed signing an authorization
card. Lang saying he needed a majority of the employees to
indicate interest in having an election to accept or reject the
Unioi. Caby then read the card, filled it out, and signed it.
Employee Keith Wright testified that he filled out an au-
thorization card for Lang in a hurry because he was busy.
Wright said l.ang told him if a majority of the employees
signed there would be an election, that the card was part of
a survey to see if there could be an election to vote the
Union in.
In both the cases of employees Caby and Wright, the
stress of the card solicitor was on the election route that the
Union might use in gaining representation rights. Such
stress was not contradictory of or inconsistent with the
clearly stated essential character of the cards as union des-
ignations. See consideration one in judging misrepresenta-
tion, supra, and see The Great Ailanltic & Pacific Tea Conm-
pwant In(., 230 NLRB 766, 767 (1977): Randall P. Kane.
Inc., d/h/a The Catalyst,. 230 NLRB 355. 363 (1977).
The statements by Lang in the cases of ('aby's card and
Wright's card were not misrepresentations. and the cards
1134
were valid designations of the Union as bargaining repre-
sentative.
Judy Shepherd Oster
Respondent claims that employee Oster's authorization
card was invalid because she was coerced into signing by
threat of Union Representative Lang that if she did not sign
the card she would lose her job if the Union came in.
The facts do not support the claim. Employee Oster testi-
fied that she met with Union Representative Lang on three
occasions, and on the third occasion, August 22, 1977. filled
out and signed a union authorization card, along with fel-
low employees Martha Roberts and Steve Henson. who
filled out and signed their cards. At the second meeting
there was a question raised whether employees had to join
the Union. Accordng to Oster, Lang said employees did not
have to join the Union, but if the stations went Union, all
employees would have to join to keep their jobs because
Missouri was a "closed shop state." Lang testified that he
did not use the term "closed shop" or "closed shop state."
that he spoke of the union-security clause in the standard
union contract, which, if adopted after the shop went
Union, would permit a 31-day working period before an
employee would be required to join the Union. Recognizing
that Lang was an experienced union representative and or-
ganizer in Missouri for many years, it is quite likely that
employee Oster rather than he (Lang) confused the term
closed shop with union security: nevertheless, it was clear
from the testimony of both that there was no representation
made that an employee, specifically Oster. was under haz-
ard of discharge if she did not join the Union before the
shop was unionized. Oster did not sign under threat that she
sign or lose her job if the Union came in.
Hence the precedent that Respondent has relied upon.
The Rowand Compan,. Inc., 210 NLRB 95 11974), is not
apposite to the facts of this case. In Rowand the union so-
licitor told several employees, who were asked to sign au-
thorization cards, if the job were organized by the union
and the employees did not belong to the union they would
not be permitted to work Quite properly. the Board re-
garded that statement as an implied threat to the employees
that their jobs would be in jeopardy i the union organized
the project and they had not signed union cards.
A more appropriate precedent. fitting the facts in the case
at bar. is Sat-On-Drugs, Inc., 227 NLRB 1638, 1645 (1977).
There the union solicitor stated to the card signer that if the
store went union he would have to join the union in 30 days
or find a new job. The Board upheld the finding that this
statement was not a threat and did not invalidate the dis-
puted card.
Employee Oster signed her union authorization card
without threat or coercion by the Union. and it was a alid
designation of the Union as bargaining representative.
Von Vandiver
Respondent has advanced seseral contentions to inali-
date employee Von Vandiver's union authorization card.
namel. ( 1) that the union agent misrepresenIted the card to
be for a surves and if there were interest in the Ilnion there
WINCO PETROLEUM COMPANY
would be a supervised election: (2) that the union agent
misrepresented that the Utnion already had signed 90 per-
cent of the employees: and (3) that the General Counsel
failed to establish when Vandiver's card was signed.
Employee Vandiver testified to meeting Union Repre-
sentative Lang at the Telegraph Road station on the night
of August 23. 1977. and engaging in a long discussion with
Lang over a period of an hour or hour and a half'. at the end
of which he filled in and signed in Lang's presence a union
authorization card, which was not dated (G.C. Exh. 8).
Lang also testified that he obtained Vandiver's signed card
on August 23.
Vandiver, who attended college during the daytime, testi-
fied that in the course of the conversation Union Represent-
ative Lang said he was attempting to organize the employ-
ees, and they discussed what the Union had to offer. In
connection with signing the authorization card, Vandiver
testified that Lang did not use the words "making a survey"
but that he. Vandiver, got the impression that this was sign-
ing to obtain a survey to see if the employees were inter-
ested in the Union. as a result of which, Lang said, there
would be a secret, supervised election. Lang also said, ac-
cording to Vandiver, that even if he signed the card and
joined the Union, he would still have another chance to say
no if he wanted to.
Thus, employee Vandiver's testimony indicates that he
was told of the dual uses of the authorization card includ-
ing, what the card unambiguously stated, that he was ap-
plying for membership in the Union and designating the
Union as his representative for collective-bargaining pur-
poses. There was no misrepresentation by the Union as to
the uses or nature of the card that Vandiver signed, and the
card was not invalid on that alleged ground.
Employee Vandiver also testified that in the conversation
with Union Representative Lang. Lang told him that a
large percentage 90 percent- -of the employees had al-
ready signed cards and. though the Union needed only 51
percent to obtain an election, if more signed it would look
better to the Board.
As the Board and courts have held. puffing or misrepre-
senting the number of others who have signed will not in-
validate a clear and unequivocal designation card signed by
an employee. unless there is objective evidence that the
card would not have been signed but for the subscriber's
reliance on the misrepresentation. Local 153, lntcrna/ional
lie.di.' Glrrmerlnt WorAcr.v' L 'nion .s L. R. B., 443 F.2d 667.
669 (D.C.. Cir. 1970). cert. denied 403 U.S. 905 (1971). affg.
,Marie Pilips. Inc.. 178 NLRB 340. 340 341 (1969): and
see Roncl Plaza .Apartmrentrs 232 NlRB 409. 416 (1977).
In Vandiver's case there w\as no objective evidence. or fi)r
that matter een ia subjective suggestion by him, that the
reference to 90 percent signing by other employees was the
decisive factor in causing him to sign the authorization
card. Tlhereflre. V'andiver's card was not nsalidated be-
cause of the union agent's statement relative to the number
of other card signers.
Fmploee Vandiver was quite clear on his direct testi-
mony that he had met with Union Representative ang and
signed the undated authorization card for him on the night
of August 23. 1977. lie apparentls had also said the same
thing in his alida;lit to the Board. given before the hearing.
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lang also testified to receiving the card from Vandiver on
August 23.
On cross-examination by Respondent, Vandiver wavered
as to his certainty that he had signed on August 23, specu-
lating that it might have been later, though he did not
change his testimony regarding his long meeting with
Union Representative Lang on August 23 (and this was the
only time he met with Lang).
From Vandiver's other testimony it was apparent that his
confusion stemmed from Manager Buechting's unfair labor
practices, in particular Buechting's unlawful interrogation
of Vandiver regarding signing a union card and meeting
with a union representative. Vandiver testified that some-
time after his meeting with Union Representative Lang of
August 23, on approximately September 1, he was asked by
Buechting, Jr., if he had signed a union card and he told
Buechting, Jr., that he had not. Buechting, Jr., commented,
said Vandiver, "I didn't believe you would." Shortly there-
after, in the same week, Buechting, Jr., asked Vandiver if
the union man had been around to see him "again, after the
first time he had come around," indicating Buechting's
awareness of the earlier meeting of Vandiver and Lang.
Vandiver replied no, and Buechting, Jr., commented it
would be improper for Vandiver and the union man to be
talking while Vandiver was on the job.
Vandiver knew then, or learned later, that the Union had
shown the employees' authorization cards to Respondent
on August 26 (he said he thought it was August 27, 28, or
29), and concluded, from Buechting's comments, that his
authorization card had not been among those shown to the
Buechtings by the Union.
When the Board attorney investigated this case (before
the hearing), Vandiver said he conjectured with the attor-
ney on how it could have been possible, if he signed the
authorization card before the Union showed all of the cards
to Respondent, that his card was not shown to Buechting,
Jr. From this conjecture he jumped to the further conclu-
sion that maybe he signed the card in mid-September, but
after going over the case narrowed it down to August 23.
The fact is that the Buechtings did see and checked 12
cards on August 26 and, as Union Vice President Hermann
testified (sec. C, supra), employee Vandiver's card was I of
the 12. President Buechting, Sr., in his testimony concern-
ing the meeting with the union representatives of August
26, acknowledged (three times) that he received and saw 12
cards. Manager Buechting, Jr., hedged in his testimony,
saying Hermann had handed him 11 or 12 cards, he wasn't
sure, and didn't remember which it was. However, Buech-
ting, Jr.'s memory was clearer and more positive much ear-
lier, following the August 26 meeting, in a talk with em-
ployee Dorothy Tedder (noted in sec. D above) when he
unlawfully interrogated and threatened her. Buechting, Jr.,
told Tedder that there was not going to be any Union be-
cause the employees were evenly divided 12 employees for
and 12 employees against. It was well established that the
Buechtings saw and acknowledged the authenticity of 12
authorization cards of which Vandiver's card was 1.
Employee Vandiver, despite his conjecturing, did not re-
pudiate his testimony that he signed the authorization card
and handed it to the union agent on August 23, 1977; and I
find Respondent's objection, that General Counsel failed to
establish the time of signing, to be without merit.'
The authorization card of employee Vandiver was a valid
designation of the Union as bargaining representative.
Michael Basler
Respondent claims that employee Michael Basler's card
was invalid because the union agent misrepresented that
the purpose of the card was to evidence his willingness to
attend a union meeting to hear what the Union had to offer.
Employee Basler testified that he was approached by
Union Representative Lang on August 19, 1977, and that
he had a discussion with Lang about the Union, as a result
of which he read and signed an authorization card and gave
it back to Lang (G.C. Exh. 9).
According to Basler, the discussion began with his inter-
est in what the Union had to offer. Lang told him that the
Union needed the signatures of a majority of the employees
on authorization cards to approach the company about
having a meeting of the Union, the company, and the em-
ployees, and telling the company that there was employee
interest in having a union; and that the cards would be used
to show proof to the employer that the Union had a major-
ity of the employees, who would like to hear what the
Union had to offer. Lang further told him, said Basler, that
the Union would not turn the cards over to the company.
As already indicated in section D above, employee Basler
was heavily badgered by Manager Buechting, Jr., with un-
lawful interrogation concerning his signing a union card
(which he at first denied) and card signing by others, fol-
lowed by threats of more onerous working conditions or
closing the stations if the Union came in, and importuning
to get his union card back, after he reluctantly admitted
signing when Buechting, Jr., told him he had seen his card.
When Basler finally admitted signing a union card, he told
Manager Buechting, Jr., he was only interested in what the
Union had to offer, not in joining the Union; and he attrib-
uted to the union agent, that signing was only for informa-
tional purposes and not for joining the Union. Nevertheless,
he refused to request the Union for return of his card.
In employee Basler's case, the stress of the union solici-
tor's explanation of the proposed card purpose and use was
on approaching the employer for recognition and negotia-
tion (rather than on obtaining an election), which was well
within the stated purpose of the authorization card. Basler's
excuses to his employer in attempting to evade the force of
the unfair labor practices, including attribution of some of
his thoughts to the union agent, have to be viewed in the
light of considerations two and three, above, in judging al-
9 Respondent made the subsidiary claim that it was entitled to examine
the Board's attorney, who took employee Vandiver's pretrial affidavit, on
how Vandiver narrowed down the date of signing the card to August 23, and
that the General Counsel's refusal under Board Rule 102.118 to permit the
Board attorney to testify, following Respondent's subpena, was a denial of
due process. Quite apart from the policy aspect of the rule, in my view this
claim is also without merit. The Board attorney obviously had no direct
knowledge of the signing of the card by Vandiver or the presentation of the
cards to the Buechtings, and reaching for a Board attorney's speculations as
a result of Vandiver's after-the-fact conjectures, where the issue was capable
of determination and was determined by the testimony of the principals and
the concerned employee witnesses in the case, strikes me as a diversion from
the issue and irrelevant.
1136
WINCO PETROLEUM COMPANY
leged misrepresentations. In any event, the fairly full expla-
nation of the card use, consistent with its purpose, that Bas-
ler received from Union Representative Lang, negates any
alleged misrepresentation in connection with the signing by
Basler.
The union authorization card of employee Basler was a
valid designations
G. Bargaining Order
As found in section C above, Respondent, on August 26,
1977, voluntarily recognized and commenced bargaining
with the Union as the exclusive collective-bargaining repre-
sentative of the employees. Once recognition was granted,
the obligation to bargain continued until there had been
reasonable opportunity for bargaining to succeed. By repu-
diating the recognition and bargaining on approximately
September 2, except for the I day of bargaining, no time for
bargaining had elapsed, and Respondent's refusal to bar-
gain since September 2 violated Section 8(a)(5) and () of
the Act. Hence a bargaining order in this connection should
issue for failure and refusal to bargain since September 2,
1977. Brown & Connolly, Inc., 237 NLRB 271; Jerr-Dan
Corp., 237 NLRB 302; Toltec Metals, Inc. v. N.L.R.B., 490
F.2d 1122, 1126 (3d Cir. 1974).
Apart from Respondent's overt repudiation of its volun-
tary recognition of the Union, I also find that issuance of a
bargaining order is warranted as a remedy for Respondent's
unfair labor practices that commenced approximately Au-
gust 27, 1977, shortly before its overt repudiation of recog-
nition, and continued in September, October, and Novem-
ber, 1977, as described in section D, above.
The misconduct included threats of closing the stations
or changing to more onerous working conditions if the
Union came in; and, for antiunion reasons, reducing hours
of work, altering vacation policy, instituting a reprimand
system, promising and granting a preferred time-off benefit,
and discharging an employee. In this small unit of 19 em-
ployees, the unfair labor practices of Respondent had only
to affect a very few employees in order to foreclose a fair
and free election, N.L.R.B. v. Solboro Knitting Mills, Inc.,
572 F.2d 936, 944 (2d Cir. 1978); and the same dampening
effect upon a fair and free election is attributable to the
duration of the Respondent's antiunion campaign, which
began a short time after the start of the Union's organiza-
tional effort and continued for approximately 3 months
thereafter, J. P. Stevens & Co., Inc., Gulistan Division v.
N.L.R.B., 441 F.2d 514, 521 (5th Cir. 1971), cert. denied
404 U.S. 830.
In sum, by refusing to bargain with the Union as re-
quested (after repudiating its initial recognition and bar-
gaining of August 26, 1977), and instead engaging in this
course of unlawful conduct which has undermined the
Union's majority status and prevented the holding of a fair
election, Respondent also violated Section 8(aX5) of the
Act, Trading Port, Inc., 219 NLRB 298, 300-301 (1975).
Under the circumstances of the case, the sentiment of the
unit employees expressed through the union authorization
:0 Respondent also objected to the validity of the card of employee Steve
Henson on the ground that he was a statutory supervisor. That contention
was disposed of in sec. A above, where Henson was found to be an em-
ployee, and not a supervisor, within the meaning of the Act.
cards is a more reliable measure of their desires on the issue
of representation than holding an election would be. To
remedy Respondent's unfair labor practices, including its 8
(a)(5) refusal to bargain, a bargaining order is necessary,
whether the violations be viewed as category one unfair
labor practices under Gissel Packing Co., supra, 395 U.S. at
613-615, see J. P. Stevens & Co. Inc., Gulistan Division v.
N.L.R.B., supra, 441 F.2d at 521-522, or as category two
unfair labor practices, see N.L.R.B. v. Kaiser Agricultural
Chemicals, etc., 473 F.2d 374, 382-383 (5th Cir. 1973). The
bargaining order will be issued as of August 27, 1977, the
date Respondent embarked on its course of unlawful con-
duct.2
CONCLUSIONS OF LAW
1. All station employees employed at Respondent's gaso-
line sales stations in Pevely, Festus, and Oakville, Missouri,
comprising regular cashiers, regular relief cashiers, and the
night maintenance or utility employee, but excluding office
bookkeepers or office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
2. By August 26, 1977, a majority of the employees in
the above-described unit had designated the Union as their
exclusive representative for collective bargaining with Re-
spondent, and on that day Respondent recognized the
Union as the exclusive bargaining representative of its em-
ployees and began collective-bargaining negotiations with
the Union. By approximately September 2, 1977, Respon-
dent repudiated its recognition and the bargaining it had
commenced.
3. Instead, on about August 27, 1977, Respondent initi-
ated and continued for several months a course of miscon-
duct that interfered with its employees' union activities and
that was designed to discourage their union affiliation and
membership.
4. Respondent's misconduct comprised coercive interro-
gation of its employees concerning their signing of union
authorization cards, signing by other employees, who was
responsible among the employees for starting the signing,
why did employees feel they needed a Union, and would
they support the Union if there was picketing; creating the
impression of surveillance of employee union activities;
threats, if the employees brought the Union in, of closing
the stations, of making the working conditions more oner-
ous, of reduction in working hours and vacation benefits, of
delayed payment for scheduled paid vacation time, and of
barring employees from communication with management
on problems; importuning and soliciting employees to ob-
tain return from the Union of signed authorization cards;
promise and grant of preferred time off to encourage em-
ployee assistance to Respondent in fighting the Union and
21 While the difference between a bargaining order issued as of September
2 (as a result of the overt repudiation of recognition) rather than as of Au-
gust 27 (as a result of embarking on a course of unlawful conduct) appears to
be slight. Nevertheless, the earlier date would seem to be more comprehen-
sive and justified under Trading Port, supra, 219 NLRB at 301. and see
Broadmoor Lumber Co, supra, 227 NLRB at 1123, fn. 2 commenting on a
similar point.
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discouraging union support; and warning am employee not
to communicate grievances to a union representative. Re-
spondent's actions were unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. Respondent's misconduct also included discrimina-
tory actions in reducing the hours of work of several em-
ployees, altering the vacation policy and practice affecting
several employees, instituting a reprimand system and acti-
vating it against a supporter of the Union, and discharging
employee Judy Shepherd Oster. Respondent's actions were
intended to discourage employee interest and membership
in the Union and were unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
6. Respondent's repudiation of its recognition of and
bargaining with the Union described in paragraph 2, above,
was an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act. Moreover, by commission of the
unfair labor practices enumerated in paragraphs 4 and 5
above, Respondent undermined the majority in the unit of
employees that the Union represented on August 26, 1977,
and has made impossible the holding of a fair representa-
tion election. so that Respondent's refusal to bargain with
the Union since August 27, 1977, when it embarked on the
described course of misconduct, constituted an unfair labor
practice also in violation of Section 8(a)(5) of the Act.
7. Respondent's unfair labor practices described in para-
graphs 4, 5, and 6, above, affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent:
(1) Cease and desist from its unfair labor practices.
(2) Offer to reinstate employee Oster, and give her back-
pay from the date of her discharge, November 21, 1977,
said backpay is to be computed on a quarterly basis as set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
approved in N.L.R.B. v. Seven-up Bottling Co., 344 U.S. 344
(1953), with interest as prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977)22
(3) Bargain with the Union, upon its request.
(4) Post the notices provided for herein because Respon-
dent violated fundamental employee rights guaranteed by
Section 7 of the Act.
(5) Because there appears from the manner of the com-
mission of this conduct an attitude of opposition to the pur-
poses of the Act and a proclivity to commit other unfair
labor practices, it will be further recommended that Re-
spondent cease and desist from in any manner infringing
with the rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Fntwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941): P. R. Mallorv & Co., Inc. v. N.L.R.B., 400 F.2d 956,
959-960 (7th Cir. 1968). cert. denied 394 U.S. 918 (1969);
N.L.R.B. v. The Banta (ompany, 353 F.2d 320, 323-324
(5th Cir. 1965).
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
22 See generally. Is Plumbing Healwing Co(; 138 NLRB 716 (1962).
ORDER23
The Respondent, Winco Petroleum Company, Pevely,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their signing of union authorization cards, or signing by
other employees, or who among them was responsible for
starting the signing, or why they needed the Union, or
whether they would support the Union if there was picket-
ing.
(b) Creating the impression of surveillance of employee
union activities.
(c) Threatening employees, if they bring the Union in,
with closing the stations or making working conditions
more onerous.
(d) Threatening employees, if they bring the Union in,
with reduction in working hours or vacation benefits, or
with delayed payment for scheduled paid vacation time.
(e) Threatening employees, if they bring the Union in,
that communication with management on problems will be
barred.
(f) Importuning and soliciting employees to obtain re-
turn from the Union of signed authorization cards.
(g) Promising or granting employees preferred time off to
encourage their assistance to Respondent in opposing the
Union and to discourage their support of the Union.
(h) Warning employees not to communicate grievances
to a union representative.
(i) Discharging or reprimanding or otherwise disciplin-
ing employees, or reducing the hours of work of employees,
because they engage in activities for, or support, the Union.
(j) Altering vacation policy or practice to reduce vaca-
tion benefits, or instituting a reprimand system, because
employees engage in activities for, or support, the Union.
(k) Discouraging employees from support of or member-
ship in the Union or other labor organizations by discharge,
layoff, reduction in hours of work or vacation benefits, or
other discrimination affecting their tenure or conditions of
employment.
(I) Refusing, upon request, to bargain with the Union as
the exclusive collective-bargaining representative of Re-
spondent's employees in the following appropriate unit:
All station employees employed at Respondent's gaso-
line sales stations in Pevely, Festus, and Oakville, Mis-
souri, comprising regular cashiers, regular relief cash-
iers, and the night maintenance or utility employee,
but excluding office bookkeepers or office clerical em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act.
(m) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
23 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1138
WINCO PETROLEUM COMPANY
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make employee Judy Shepherd Oster whole, in the
manner set forth in the section of the Decision entitled
"The Remedy," for any loss of earnings incurred by her as
a result of her discharge on November 21, 1977.
(hb) Offer to said employee immediate and full reinstate-
ment to her former job or, if the job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(c) Preserve and, upon request. make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to ascertain the backpay due under the terms of this
recommended Order.
(d) Expunge from Respondent's records any reference to
the reprimand, dated September 28, 1977, discriminatorily
issued to employee Stephen (Steve) Henson.
(e) Upon request, bargain collectively with the Union as
the exclusive collective-bargaining representative of the
above-described unit of station employees, with respect to
rates of pay, wages, hours, and other terms and conditions
of employment and, if an agreement is reached, embody the
agreement in a written contract.
(f) Post in the stations at Pevely, Festus, and Oakville,
Missouri. copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided hb the Re-
gional Director for Region 14 (St. Louis. Missouri). after
being duly signed by one of Respondent's authorized repre-
sentatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places. including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken bh Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 14. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
24 In the event that this Order is enforced hb a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted h\ Order of
the National Labor Relations Board" shall read "Posted Pursuantl o ai Judg-
ment of the United States Court of Appeals Fnforcing an Order ot the Na-
tional Labor Relations Board"
139