A. L. French Co.

National Labor Relations Board - Board Decisions

Dec 26, 1963

145 N.L.R.B. 627 (N.L.R.B. 1963)

A. L. FRENCH CO. 627
WE WILL offer to all strikers , upon their application , reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , dismissing if necessary any employees hired after
February 18, 1963, to replace these employees , and we will make each em-
ployee whole for any loss of pay suffered by him as a result of our failure to
reinstate him within 5 days after his application.
SOUTHERN TRANSPORT, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the strikers above referred to if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
their application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended , after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 746 Fed-
eral Office Building, 167 North Main Street , Memphis, Tennessee , Telephone No.
534-3161 , if they have any questions concerning this notice or compliance with
its provisions.
Action Wholesale , Inc. d/b/a A. L. French Co. and International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Local 959. Case No. 19-CA1-2553. Decem-
ber 36, 1963
DECISION AND ORDER
On June 19, 1963, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of those allegations of the complaint. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report. The General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and brief, and hereby adopts the findings, conclusions,
145 NLRB No. 61.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommendations of the Trial Examiner with the following
modification :
The Trial Examiner found that the Respondent violated Section
8(a) (3) of the Act by discharging employees Storck and Todd and
by causing employee Roseta to leave the Respondent's employment
"as if [it] had in fact discharged her." While we agree with the
Trial Examiner's findings as to Storck and Todd, we disagree with
his finding as to Roseta.
The record shows that at the time Rojcewicz, owner of the Re-
spondent company, discharged employee Storck, Roseta, who was
present, immediately requested that her check be made out also. She
testified that she resented the arbitrary manner in which Storck had
been discharged, and explained further, "I was frightened and I
thought possibly this could happen to me and I wished to leave the
premises before it happened to me." However, Roseta's private
thoughts and feelings, standing alone, do not provide a sufficient basis
to support the Trial Examiner's finding of unlawful discrimination
as to her. The record contains no suggestion that Respondent dis-
criminatorily altered Roseta's conditions of employment or otherwise
engaged in conduct of a kind calculated to force her to quit. Even
if she might have had reason to speculate that she too might soon be
discharged, her voluntary decision "to beat the gun" is insufficient
to impose liability on Respondent. Her action was no less voluntary
because of Roj cewicz's failure to resist or protest it. Under all the
circumstances, we cannot say that Respondent "caused" Roseta to
quit, or that her voluntary quitting, though acquiesced in by Respond-
ent, was tantamount to a constructive discharge violative of Section
8(a) (3) of the Act.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following addition and modifications :
1. The Recommended Order is hereby amended by substituting for
the first paragraph therein, the following paragraph:
Upon the entire record in this case, and pursuant to ;Section
10 (c) of the National Labor Relations Act, as amended, the
1 Member Fanning agrees with the Trial Examiner's ultimate conclusion that Respond-
ent's treatment of Roseta was unlawful and that she, as well as Storck and Todd, is en-
titled to reinstatement with backpay . Unlike the Trial Examiner , however, Member
Fanning would find that, when Respondent summarily discharged Storek because of her
union membership in the presence of Roseta, another known union adherent , it thereby
coerced Roseta into abandoning her employment rather than being subjected to like treat-
ment by Respondent . In his opinion, this conduct restrained and coerced Roseta in the
exercise of her rights under Section 7 of the Act to join , support, and assist the Union,
was violative of Section 8(a) (1), and warrants the award of backpay to her with
reinstatement.
A. L. FRENCH CO. 629
National Labor Relations Board hereby orders that Respondent,
its officers , agents, successors , and assigns, shall:
2. Omit the name Norma Roseta from paragraph 2(a).'
3. Add the following paragraph to the Recommended Order:
(b) Respondent shall, upon request, bargain collectively with
Local 959, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , as the exclusive repre-
sentative of all office, warehouse, and delivery employees of the
Respondent at its Anchorage , Alaska, office and warehouse, ex-
cluding guards and supervisors as defined in the Act , and, if an
understanding is reached , embody such understanding in a signed
written agreement.
4. Paragraphs 2(b), 2(c), and 2 ( d) are renumbered 2(c), 2(d),
and 2 ( e) respectively.
2 The notice is amended to omit the name of Noima Roseta from the fourth paragraph,
and to delete from the fifth paragraph the words "or any other labor organization of our
employees , in the following unit of employees " and substitute therefor the words "as the
exclusive representative of our employees in the following unit."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed December 18, 1962, amended February 1, 1963, by Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 959, herein called the Union, a complaint was issued on February 5,
1963, and amended on March 21, 1963. The complaint as amended, alleged that
Respondent, Action Wholesale Company, Inc., d/b/a A. L. French Co., herein
called Respondent, discriminatorily discharged two of its employees in December
1962, caused one employee to quit her employment on December 11, 1962, unlaw-
fully interrogated its employees concerning their union membership, activities, and
desires, threatened to sell its business, bargained directly with its employees instead
of with the exclusive representative of a majority of the employees and since Novem-
ber 24, 1962, refused and continues to refuse to bargain with the Union as the
exclusive collective-bargaining representatives of the employees, thereby violating
Section 8(a)(1), (3), and (5) of the National Labor Relations Act' The Re-
spondent's answer, as amended, denies the commission of any of the unfair labor
practices alleged.
A hearing was held before Trial Examiner George L. Powell at Anchorage, Alaska,
on March 21 and 22, 1963. All parties waived oral argument at the conclusion
of the hearing Both counsel for Respondent and counsel for General Counsel
filed briefs which have been carefully considered.
Upon the entire record 2 in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, an Alaska corporation, maintains an office and place of business
in Anchorage, Alaska, where it is engaged in selling candy, cigarettes, and like items,
at wholesale During its last calendar or fiscal year, the Respondent purchased
goods or services directly from outside the State of Alaska of a value exceeding
129 U S C Sec. 151 et seq
2 The General Counsel, in his brief, moved to correct the official transcilpt in certain par-
ticulars Not hearing objections from Respondent and because the requested correction
accords with my notes taken at the hearing, the motion is granted and the corrections
are noted
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000. I find that at all times material herein, Respondent has been engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, Local 959, is a labor organization within the meaning of Section 2(5)
of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issues: Whether Respondent interrogated its employees concerning their union
activities and threatened to sell its business in reprisal therefor in violation of Sec-
tion 8(a)(1) of the Act; whether Respondent discharged employees Edith Storck
and Frank Todd because of their union activities in violation of Section 8(a)(3)
of the Act; whether Respondent caused Norma Roseta to quit in violation of Sec-
tion 8(a)(3) of the Act;4 and whether Respondent violated Section 8(a)(5) of the
Act by refusing to bargain in good faith with the majority representative in an
appropriate unit, and by bargaining directly with an employee.
Background
Peter Rojcewicz bought the A. L. French Co. in December 1961, operated it
for awhile as a proprietorship, and then incorporated it. The business continued
and is continuing substantially the same as it was under the former owner. From
November 20, 1962, to December 11, 1962, the pertinent period of time, Respondent
had a manager, Myron Center; a salesman, Howard Thompson; a deliveryman;
office workers, Mrs. Edith Storck 5 and Mrs. Norma Roseta; and a warehouseman,
Frank Todd.
In the first half of November 1962,6 Roseta secured authorization cards from the
Union, signed one, and gave one each to Storck and Todd for them to sign. They all
signed and Storck gave them to the union organizer, Robert Erickson.7 The Union
wrote a letter to Respondent on November 20 notifying it that a majority of its
employees had authorized the Union to be their bargaining agent, and requested
bargaining. The Respondent has never replied and no bargaining meeting with
the Union has ever been held.8
Was Myron Center a Supervisor?
Myron Center's title was manager. He admitted on cross-examination that he
wrote letters for Respondent as "Manager." 9 He admitted talking to Storck asking
her to return to work for Respondent,10 admitted recommending her to Rojcewicz,
and admitted that his recommendation was followed in her hire. Roseta credibly
testified she first talked about a job to Salesman Thompson who referred her to
Center for interview who in turn interviewed her and hired her. Center testified
that he "coordinated" the work of Storck and Roseta, determined the stock for sale,
and worked out orders. He admitted that former employee Haag, who came to
work late one day, said to him, "I don't know why you're so damn mad at me for being
late." Further he admitted that Todd came to him for permission to go to the
doctor and that permission was granted after he and Rojcewicz "talked it over."
g This is based upon uncontradieted evidence adduced at the trial
4The complaint alleged alternatively that Roseta was a protest striker, hence an unfair
labor practice striker
5 She became manager around November 26, 1962
8 All dates are in 1962 unless otherwise noted.
7 According to Storck's credited testimony, after she could not get a definite answer
from the manager, Center, as to whether November 11 Is a holiday, she, Roseta, and Todd
decided to go to the Union and join up with it Roseta agreed to get the authorization
cards and Storck agreed to deliver them signed, to the Union. Roseta credibly testified
the three of them talked over the problem and she agreed to get the cards
8 The above facts are taken from admissions of Respondent, stipulations of the parties,
and credited testimony of Roseta and Todd.
9 He testified that much of his correspondence was handwritten and in it he did not use
the term "Manager."
10 Storck credibly testified that she had worked for A. L. French Co before it was pur-
chased by Rojcewicz. When she left it in January 1960, her position was taken by
Margaret Gagnon. In July 1962, at the request of Center, she worked during Gagnon's
vacation and when the latter left she took the job on a permanent basis, at the request of
Center, beginning September 4
A. L. FRENCH CO. 631
He testified that he was paid hourly since first hired but on cross-examination he at
first did not know his hourly rate of pay, finally stating he "believed" it to be $4 per
hour. Rojcewicz testified that Center was paid a "guaranteed" $800 per month,
one-half being paid twice a month. Storck and Gagnon testified that they, respec-
tively, when working, made out Center's paychecks and it was never computed on an
hourly basis but was based on $800 a month and was "split down the middle" and paid
twice a month.
Rojcewicz admitted instructing Center that all freight should be checked in.
Todd's job was to check the freight. Rojcewicz instructed Center after he, Rojcewicz,
found that Todd had not checked in certain freight from Garrison Fast Freight
and found that there was a shortage in it.
Haag must have considered Center his supervisor because he said to him, "I don't
know why you're so damn mad at me for being late." A fellow employee, unlike
a supervisor, ordinarily does not get "so damn mad" at another employee for being
late. Here, Haag, according to Center's own testimony, was concerned about the ex-
tent to which Center was "mad" at his tardiness and not concerned with the fact that
Center was "mad."
Both Storck and Roseta were hired by Center, and Center at one time gave Todd
permission to go to the doctor. It is significant that Todd would come to him in the
first place.
As to the freight incident, it is significant that Rojcewicz went to Center after
finding out that Todd was not checking in the freight, and told Center he did not
want any freight without first checking it. Checking in freight was Todd's job, not
Center's. Hence, this appears to be instructions as to company policy directed to
one who had authority to see it was carried out.
Finally, the credible testimony is that Center was salaried and not an hourly rated
employee. While this alone may not be dispositive of the supervisory issue it none-
theless weighs in that balance on the side of the supervisor.
I find from the above testimony that Center was a supervisor within the meaning
of the Act. He had authority, in the interest of Respondent, to hire or discipline
other employees, or responsibly to direct them or effectively to recommend such
action, and the exercise of such authority was not of a merely routine or clerical
nature, but required the use of independent judgment I do not credit his denials
of these powers.
As I have concluded that Center is a supervisor, there remain but five nonsuper-
visory employees working for Respondent. As three of them had signed cards
authorizing the Union to represent them (the two ladies and Todd) a majority of
the employees had selected the Union as their bargaining agent. But an essential
element in an allegation of a refusal to bargain is the establishment of an ap-
propriate unit.
The Unit
The unit set out in the complaint as a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9 (b) of the Act is
All office, warehouse, and delivery employees of the Respondent at its Anchor-
age, Alaska, office and warehouse, excluding guards and supervisors as defined
in the Act.
The Act itself states (Section 9(b)) that (the Board shall decide) an appropriate
unit "shall be the employer unit ... plant unit, or subdivision thereof." As the
above unit, in the instant case, covers all of Respondent's nonsupervisory employees,
it obviously is an appropriate unit either as an "employer unit" or a "plant unit"
and I so find. Now, as I have found above, three out of these five employees selected
the Union as their bargaining agent,ii and it represented a majority of the employees.
Rojcewicz admitted never questioning the unit when he received the Union's letter
dated November 20 requesting bargaining.
The Union
Uncontradicted and credible evidence was adduced through Robert M. Erickson,
Western Conference organizer of the Union, that the purpose of the Union was to
represent employees, that it dealt with employees concerning grievances, rates of
pay, and conditions of work, and that it admits employees into membership. I
n There was evidence that these three employees were not interested in having the Union
represent them once they had secured certain benefits and promises from Respondent, but
there was no evidence of revocation of the authorization cards, and in this case this is
the evidence necessary to disprove majority representation by the Union.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find the Union to be a labor organization within the meaning of Section 2(5)>
of the Act.
The 8(a)(1) Allegations
The complaint alleges that Respondent through Center and Rojcewicz at certain
specified times "interrogated its employees concerning their union membership,
activities, and desires," and by so doing violated Section 7 of the Act.
I find no persuasive evidence that Center ever did the alleged acts and will recom-
mend the complaint as to him be dismissed.
However, according to the credited testimony of Roseta, Storck, and Todd, and
by admissions of Rojcewicz, the following is a pertinent summary of what took
place at Respondent's place of business on Saturday, November 24, and thereafter.
This was the day on which Rojcewicz received the letter, dated November 20, from
the Union telling him that a majority of the employees had authorized it to bargain
for them. He came into the office where Center and Storck were working 12 and
asked Center if he knew anything about the letter. Center knew nothing about it
Then Rojcewicz asked Storck if she knew anything about the letter. She replied,
"Yes," and told him the action of the employees was brought on by his firing
employee Haag.13 According to Storck's credited testimony, Rojcewicz then got
upset and said, "Nobody was going to tell him how to run his business," and "that
ends the profit sharing plan." That ended this incident. Then Rojcewicz went to
the warehouse and asked Todd if he had signed a union card, to which Todd replied,
"I'm afraid I did." Rojcewicz never threatened him but did say the profit-sharing
plan would not be put into effect.
Later that same Saturday, November 24, Storck telephoned Roseta and told her
Rojcewicz had received the letter from the Union and related to her what had
happened. Then, according to Roseta's credited testimony, Roseta met with Howard
Thompson, the Respondent's salesman, about 3 o'clock in the afternoon at the
Roaring 20's-a bar where her husband was the bartender. She discussed the em-
ployees' grievances 14 with Thompson, among which was that she would not remain
at the job if Center remained the manager. Thompson, a witness for Respondent,
credibly testified that he met her and asked her why they had "signed up" with the
Union. She told him she just could not get any satisfaction from Center. He sug-
gested she talk to Rojcewicz and listened to her for some 2 hours going through the
complaints she, Storck, and Todd had, including the "Haag" affair. He admitted
that she told him the complaints, as she previously had testified. He also testified
that she told him she really did not want to join the Union but only wanted to use
the Union as a lever to get their demands
The following day Thompson telephoned Roseta, reporting that he had spent
some time talking with Rojcewicz, who was concerned about their eagerness to join
the Union and wanted to know their grievances. Thompson was to arrange a
meeting between Storck and Rojcewicz to discuss the grievances. He also reported
to her that Storck would be named the manager. Roseta then reported the Thomp-
son conversation to Storck and then to Todd.
Thompson credibly testified that on the following Monday (November 26) morn-
ing at 8 o'clock he met with Roseta, Storck, and Todd 15 for 15 minutes, during
which time a list of things the employees wanted was prepared to be presented to
Rojcewicz with Storck to be the representative to talk to him. He testified that
Storck promised to write a letter to the Union withdrawing her authorization.
On the list of things the employees wanted were such things as vacations, legal
holidays, and sick leave According to Storck's credited testimony she then went
over each demand with Rojcewicz in his office and he agreed to every one. Addi-
12 Roseta was not working that Saturday She and Storck earlier had arranged with
Respondent whereby they would take turns working all day Saturdays rather than each
working one-half day every Saturday
13 Haag is not involved in the case except that his leaving triggered Roseta, Storck, and
Todd into signing the union authorizational cards
14 Her testimony on this point follows
A Mr Thompson told me that he had spent a good part of the afternoon talking
to Mr Rojcewizc [sic] in regard to our contacting the Teamsters Union And he
asked me what our grievances were and what brought it about. I explained in detail
what our grievances were with the idea that these grievances would be related to
,Mr. Rojcewizc [sic]. He told me lie would tell Mr Rojcewizc [sic] what our griev-
ances were.
15 He said Roseta had requested the meeting , but also testified that Rojcewicz had sug-
gested the meeting to get the plans of the employees
A. L. FRENCH CO. 633
tionally he said, "You also heard that I give Christmas bonuses?" He gave her
the insurance plans he had been working on to read and get her agreement. She
agreed to talk to Roseta and Todd and "see if they were in agreement with all this"
and to let him know later in the day. She then reported back to Rojcewicz that
Roseta and Todd were in agreement . She then told him that since he was giving
them all they wanted they no longer needed the Union . To this, she said, "he
seemed real pleased." Rojcewicz admitted talking to Storck , but at her request.
When Storck left the meeting with Rojcewicz she met with Roseta and Todd in the
warehouse . There she told them that Rojcewicz had agreed that they should have
at least 1 week's vacation and seven legal holidays and Storck would be the manager
instead of Center. Also that he had remarked about a profit-sharing plan, a
pension plan , and a bonus.
Roseta then told Storck that she was very satisfied and saw no purpose in joining
the Union if Rojcewicz would give the same benefits without the Union. Todd told
the ladies that he would go along with them and not join the Union since they were
satisfied with Rojcewicz ' promises. 16
After lunch the day Storck met with Rojcewicz , he, Rojcewicz , came in to where
the ladies were working and said to Storck that he was going to sell the business.
She asked him why and he replied that his head accountant had told him he
"couldn't possibly operate the business with the union involved " Both ladies then
told him they had no intention of joining the Union as they were satisfied with the
conditions that he had offered them . He replied that the Union would get in
anyway.
Todd credibly testified that Rojcewicz came into the warehouse the following
Wednesday or Thursday , where he was working and told him, . you people
are asking too much , I can 't meet your demands" and that if the shop went union
he would have to sell as he cannot meet demands . Todd told him . they were not
going union.
Storck credibly testified that 2 or 3 days after the three employees had told
Rojcewicz they did not need a union , he told her that if she went to the Union to
withdraw they would blackball her. He said this would be bad for Todd, a "wage
earner," and that the correct answer was to hold an election . She then told him to
go ahead and have an election and they would vote it down
As to plans for an election , Rojcewicz testified that he telephoned the Board's
Regional Office, told the Region his problem, and was promised some forms for an
election, but that nothing further happened . He never received anything from the
Regional Office nor did he follow up on his request . I need make no finding as to
what actually took place nor if fault there be, whose it was. I only note that nothing
happened for about 2 weeks when on December 11, 1962, Storck and Todd were
discharged and Roseta quit.
As to the contemplated sale of the business , Respondent put on witnesses who
credibly testified they had talked with Rojcewicz about buying when he told them he
was thinking of selling, with these talks being held in the spring of 1962, and as late
as September 1962 No sale has been made
As to fringe benefits, Respondent 's accountant credibly testified that action was
taken, after December 1961 , to inaugurate a profit-sharing plan, an insurance plan,
and a hospitalization plan, and that when Resoondent was incornorated in June,
pension plans and hospital plans were discussed. Then as late as October or early
November 1962, Rojcewicz brought him some insurance proposals for analysis.
None of these plans were put into effect before the critical date of December 11,
1962.
Conclusions as to the 8 ( a)(1) Violations
Rojcewicz did, on November 24, ask Storck if she knew anything about the Union's
letter of November 20 in which he had learned for the first time of the union ac-
tivities of Roseta , Storck, and Todd . She replied and told him she did and why
the action was taken He then went to the warehouse and asked a similar question
of Todd. He was given an answer similar to that of Storck . In both instances he
said, "That ends the profit -sharing plan" or words to that effect
Under certain safeguards not present in this case . an employer havinI doubt of a
Union's majority may question them 17 But when he asked them about their union
16 Roseta testified that when she was first hired she talked over fringe benefits such as
vacations and holidays with Center , but he told her there was nothing current pending
changes in the corporate setup , but that they would happen But she was not aware of
anything being done until after the Union sent the letter of November 20
17 Blue Flash Express, Inc, 109 NLRB 591
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity concluding with a reference to the fact that some benefit would be lost, even
though it had never been mentioned up to that time, he undoubtedly is interfering
with the rights his employees have to join or not join a union, or to engage in or not
engage in concerted activities 18 And, indeed, by signifying they were losing a
benefit, albeit one not yet in effect, he undoubtedly coerced his employees. These
actions violated Section 8 (a) (1) of the Act and I will recommend the Respondent
cease and desist from them and similar actions.
In addition I can arrive at no conclusion under these facts other than that
Rojcewicz further interfered with his employees' union activities by starting a chain
of events beginning with Thompson's first meeting with Roseta at the Roaring 20's
and the plan to have one person, Storck, come to him with the grievances of his
employees. Even if he originally never asked Thompson to act as a go-between, he
did participate in the plan and this is sufficient to hold he was interfering with his
employees' rights as given them by the Act. I add at this point that the Act does
not require an employer to "love" or even to "like" a union. Neither is there a
violation of the Act when an employer "dislikes" or "hates" unions. These strong
feelings are not illegal but they may explain actions of employers. Here, there is
direct evidence of asking an employee, under circumstances tending to interfere
with his statutory rights, what he knows about a union and then telling him of a
loss of a benefit he may have later had he not taken the union action be admitted
taking. The ruling of the courts and the Board are that "interrogations," "inter-
ference," and "coercion" are legal conclusions to be drawn from the facts, and that
the question of whether or not an employee in fact felt coerced is irrelevant. There
was "interference" here.
In conclusion, then, Respondent did violate Section 8(a)(1) of the Act by the
above actions
Also the Employer's statement that he would have to sell his business because
he could not meet the employees' demands or the Union's demands (it makes no
difference which) violates Section 8(a)(1) of the Act. An employee is coerced
by presenting him with another practical problem brought about because he was
only exercising his lawful rights under the Act. The employer has no legal right
thus to thrust on an employee a problem of who his next boss, if any, will be even
though in a given case the employee is very capable of solving it and may welcome
the challenge to his problem-solving capacity.
Further, the Employer here violated Section 8(a) (1) of the Act by injecting himself
into the private rights of his employees by discussing with them the consequences of
seeking to withdraw from the Union, i.e., a possible "blackball," and suggesting
the answer to be an election-knowing at the time and told by the employee that the
Union would lose the election because he now had satisfied the employees who had
authorized the Union to represent them and they would vote "No Union." This
is the rankest kind of interference, being in the nature of a contrivance to avoid his
responsibilities under the law. (See: Reserve Supply Corporation of L.1., Inc. v.
N.L.R.B., 317 F. 2d 785 (C.A. 2) enfg. 140 NLRB 330.
Thus it is seen that in the law of this vital and dynamic business of labor relations,
an employer can violate the Act even if his actions might have been prompted with a
sincere regard for the livelihood and wellbeing of his employees.
The 8(a) (3) Allegations as to Storck and Todd
Tuesday, December 11, about 3 o'clock in the afternoon, Rojcewicz came into
the office where Storck and Roseta were working and loudly said to the former,
"Get out! Get out! Write your check and get out of here " She replied, "Pete,
Is Sections 7 and 8 provide*
RIGHTS OF EMPLOYEES
SEC. 7 Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in section 8(a) (3)
UNFAIR LABOR PRACTICES
SEC 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7 ;
A. L. FRENCH CO. 635
what are you talking about?" He told her that she had been giving out confidential
information to one of his competitors and he did not want to discuss it any more and
for her to make out the check and get out.
Roseta, "frightened" by the appearance of Rojcewicz, asked Storck to make out her
check too. When asked at the hearing why she did this, she replied that she thought
Rojcewicz would also fire her and she wished to leave before that happened.
After Storck had made out both checks, Rojcewicz walked back into the room.
He looked at Roseta's check for a moment and then saying, "So long as I have no
office force I might as well clean house," he went out and called to Todd telling him,
. I had no office help and therefore we couldn't make up any orders and I
wouldn't be needing him." None of the three have been offered reinstatement.
The above facts are largely uncontroverted and come from the testimony of
Rojcewicz, Roseta, Storck, and Todd.
Respondent's Position
Rojcewicz testified that he was talking to Knott, a competitor operating Frigid
Fruit & Produce, and quoted him an incorrect price for one of his articles. Knott
corrected him by quoting Respondent's correct price. Knott was asked how he knew
it and replied that his wife had told him through a leak from Storck. Knott testified
this did not happen more than once. Rojcewicz immediately went back and fired
Storck as set out above.
Mrs. Knott also testified. She said she was concerned about the loyalty of both
Storck and her employee Margaret Gagnon. Her testimony is:
A. I really don't know anything except my bookkeeper was involved with
another bookkeeper that was stirring up trouble, and I didn't want to get
involved, and I think competition can be done on a friendly basis without
having leaks in the company.
TRIAL EXAMINER: Did you hear any leaks?
The WITNESS: I didn't encourage it. I am too busy running that business
and whenever anything started, I would try to avoid it.
TRIAL EXAMINER: But you never heard of any leaks?
The WITNESS: Well, I knew what A. L. French was charging for their stuff.
TRIAL EXAMINER: How did you hear that?
The WITNESS: Through Mrs. Gagnon.
TRIAL EXAMINER: She told you that?
The WITNESS: Yes.
Mrs. Knott's testimony, as quoted above, was that she knew Respondent's prices
through her bookkeeper, Gagnon. However, she would not testify that there was
a leak from Respondent although pointedly asked this question by the Trial Examiner.
Her most illuminating observation was, "I really don't know anything except my
bookkeeper was involved with another bookkeeper that was stirring up trouble, and
I didn't want to get involved." Then she added a general observation "and I think
competition can be done on a friendly basis without having leaks in the company."
Her bookkeeper "was involved with another bookkeeper that was stirring up trouble."
The only "trouble" was the Union which Storck had helped bring in and the grievances
which she brought up with Rojcewicz. This appeared to be more important than the
general statement about friendly competition without leaks.
Mrs. Storck and Mrs. Gagnon did have lunch together occasionally. They had
known each other for years. Gagnon took Storck's place at the A. L. French Co. in
January 1960. Storck relieved her during the July 1962 vacation period, and finally,
when Gagnon left to work for Frigid Fruit & Produce, Storck came back to A. L.
French Co. as a full-time employee on September 4, 1962. Both Gagnon, as of
September, and Storck knew Respondent's prices. Storck denied disclosing confi-
dential information.
Analysis of the 8(a)(3)
Under the Act,19 an employer may fire an employee for any reason whatsoever
and no one may substitute his judgment as to the severity of the punishment for that
19 The Act provides.
SEC. 8 (a) It shall be an unfair labor practice for an employer-
s • s s • n s
(3) by discrimination In regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employer. 20 But the Act makes it an unfair labor practice under Section
8(a)(3) if an employee is discharged because he engaged in union activity. Such
a discharge would discriminate against an employee and the discharge would dis-
courage other employees from engaging in such activity. As the Act gave employees
rights to engage in union activity, obviously these rights cannot be enjoyed if em-
ployers fire those so engaged. This is simple. The hard part lies in determining
the real reason why a given employee is fired.
Rojcewicz said he discharged Storck because she gave out confidential information
on his prices to a competitor. He found this out when he himself was quoting prices
to the competitor. He was told the leak was from Storck through Gagnon, who he
knew was familiar with his prices. Why then was he so angry and wished to fire
this employee whom he had elevated to manager only 2 weeks before and who was
thoroughly familiar with his business and with the business before he bought it? Why
did not he check with Storck to get her side of the story? Of course this would not
be expected were he an impulsive, head-strong person. But there was no evidence
of this. He impressed me as a conservative businessman. Hence his actions are
suspicious because they are so out of character. This thing Storck was alleged to
have done was the very thing he was doing when it came to his attention.
Storck's discharge certainly points to her union activity. She was the one who
had told him what the November 20 letter was about and she was the one who had
met with him as the representative of the employees over the list of grievances on
November 26. She had even told him they would vote out the Union in an election.
But an interesting thing about an election is that an employer may not have one
unless he has reason to doubt the majority representation of the Union. Rojcewicz
at no time doubted this He knew the three-mentioned employes had in fact signed
union authorization cards So he knew a majority wanted the Union. Hence he
could not have had an election. This may have accounted for the fact that he made
no further effort to hold an election after November 27, the date he allegedly tele-
phoned the Board's Regional Office.
His 8(a)(1) activities set out above show he was desirous of getting rid of the
Union. He gave in to all of the employees' grievances in an effort to cause them
to leave the Union. They even told him they would not push for a union and were
satisfied after they got their demands. Neither he nor they, apparently, knew a
union authorization could not be revoked (for the purpose of causing a loss in
majority status) when the revocation resulted from undermining tactics of the
Employer More of this will be developed later under Section 8(a)(5)
It appears to me that the reason given for discharging Storck was a pretext with
the real reason being her union activities This is based on the fact that the given
reason, under the circumstances. is inherently incredible. This incredible reason
coupled with Rojcewicz' knowledge of Storck's union activities, plus his efforts to
undermine the majority status of the Union, and his interference and coercive tactics
discussed above, lead to the sound inference that he discharged her for union activities
in violation of Section 8(a) (3) and I so find.
The case of Roseta, at first blush, looks like a "quit " But why did she quit and
why didn't Rojcewicz talk to her? Rojcewicz never said a thing to her. Picture a
sound, practical businessman quitely losing his whole office force and going out of
business. It is incredible. Why should he speak up, however, if this were exactly
what he wished? It is not necessary that it be established that he knew or had reason
to know that a discharge of Storck would cause Roseta to quit although there is some
evidence which would lead to that conclusion. The reason why the three employees
signed the union cards was because of the recent "Haag discharge" and Rojcewicz
was told this. There is no question but what this discharge of Storck, being as
arbitrary as it was, did frighten Roseta into quitting. She quit before she would be
discharged. Hence Rojcewicz, having put into action this chain of events, caused
her to leave the Respondent as if he had in fact discharged her. Accordingly this
also violates Section 8(a)(3)
Todd's case tends to prove that of Roseta. Rojcewicz went right out and "cleaned
house " He fired Todd giving as the reason that he did not need a warehouseman
with no office help. But he did not fire Center, nor his salesman, Thompson, who
could not sell without an office force to back him up. Nor did he fire the deliveryman
who had neither an office force nor a warehouse to give him anything to deliver
The discharge reason for Todd, when analyzed. is not reasonable nor credible. The
inference that he was fired for his known union activities is most compelling and I
find he to was discharged in violation of Section 8(a)(3) of the Act.
20 N L. I? B v T. A McGahey, et al d /b/a Columbus Marble Works,
233 F 2d 406, 413
(C A 5). See also N L.R B v Hudson Pulp & Paper Corporation, 273 F. 2d 660, 666
(CA 5)
A. L. FRENCH CO. 637
The 8(a)(5) Allegations
Respondent was notified by letter dated November 20 that the Union represented
a majority of his employees and wished to bargain. At the time he received the
letter he was told by both Storck and Todd that they and Roseta had so authorized
the Union. Thus the Union did in fact represent a majority of all his nonsupervisory
employees, a fact which he never questioned. But he never replied to the letter. He
stipulated that he made no effort to even answer the letter. But under the law, an
employer must meet and bargain in good faith with the majority representative of
his employees in an appropriate unit. By not doing so he violates Section 8(a)(5)
of the Act 21 There was no questioning of the unit, which was found above to be
appropriate.
Likewise, an employer who makes unilateral changes in the terms and conditions
of employment of his employees without first bargaining with the majority repre-
sentative violates Section 8(a)(5) of the Act. Respondent agreed to the grievances
of the employees on November 26 which up to that time were not known conditions
of employment, and hence, without bargaining with the Union, he "unilaterally"
put them into effect This, I find, violated Section 8(a) (5) of the Act.
Further for an employer to bargain with an individual over terms and conditions
of employment when there was in existence a majority representative is also a refusal
to bargain in good faith within the meaning of Section 8(a) (5) of the Act 22 Not
only did Respondent meet and bargain with Storck, but he had even suggested that
she meet with him as the representative of the employees. This is a flagrant by-
passing of the majority representative which violates Section 8(a) (5) and I so find.
Likewise Respondent's threats to sell should a union be the majority agent induced
the employees to promise to revoke their authorizations. He is responsible for this
because he started it all by his threat to sell. This is a deliberate undermining of
the majority representative and violates Section 8(a) (5) of the Act because it is not
possible to bargain in good faith with the agent of the employees while at the same
time attempting to destroy the agent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
The Respondent's unfair labor practices strike at the heart of the rights guaranteed
employees by Section 7 of the Act.23 The rights involved are closely related to
other rights guaranteed by Section 7. The Company's independent violations of
Section 8 (a) (1) evince a general hostility to the right of employees to engage in
legitimate concerted activities 24 and because of the nature of the unfair labor
practices found, there is reasonable ground to believe that Respondent will infringe
upon such other rights in the future unless appropriately restrained. Therefore, in
order to make effective the interdependent guarantees of Section 7, I shall recom-
mend an order below which will have the effect of requiring the Respondent to refrain
in the future from abridging any of the rights guaranteed employees by Section 7.25
4 The Act provides:
Sec. 8 (a) It shall be an unfair labor practice for an employer-
t
(5) to refuse to bargain collectively with the representatives of his employees,
subject to the provisions of section 9(a)
22 See Rockwell Manufacturing Company , Kearney Division, 142 NLRB 741.
22 N.L R B v Entwistle Mfg. Co, 120 F 2d 532 (C A 4)
24 Rockwell Manufacturing Company, Kearney Division , 142 NLRB 741
25 May Department Stores v. N .L R.B., 326 U.S 376; Bethlehem Steel Company v.
NLRB.. 120 F. 2d 641 (CA.DC).
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent has discriminatorily discharged and refused to
reinstate Edith Storck and Frank Todd, and has discriminatorily caused the quit of
Norma Roseta and refused to reinstate her, I will recommend that Respondent be
ordered to offer them immediate and full reinstatement to their former or substan-
tially equivalent positions, and make them whole for any loss of earnings they may
have suffered because of the discrimination against them, by payment to them of a
sum of money equal to the amount of wages they would have earned from the date
of the discrimination to the date of the offer of reinstatement together with interest
thereon at the rate of 6 percent per annum and that the loss of pay and interest be
computed in accordance with the formula and method prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716, to which the parties hereto are expressly referred.
Having found that Respondent has refused to meet and bargain in good faith with
the Union, the majority representative of the employees in an appropriate unit, I
will order it to do so and reduce to writing any agreement they may reach.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 959, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees about the letter from the Union, by threatening
employees with loss of benefit, e.g., "that ends the profit-sharing plan," after being
told by them of the Union, by starting or agreeing to a plan to meet and bargain
with an employee over grievances when there was a majority representative of the
employees, by so meeting and bargaining with an employee over grievances, by
holding out promises of benefit if the employees would give up the Union, by co-
ercively threatening to sell because of the Union, and by interfering with employees
by suggesting how they could eliminate their representative without fear of conse-
quences, e.g., "blackball," Respondent interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the Act, in viola-
lation of Section 8(a) (1) of the Act.
4. By discharging employees Storck and Todd because of their union activities,
and permitting employee Roseta to quit because of her union activities, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
5. By not making an effort to meet and refusing to bargain in good faith with
the majority representative of his employees in the aforesaid appropriate unit, by
making unilateral changes in the terms and conditions of employment of his em-
ployees without first bargaining with the majority representative of his employees,
by bargaining with an individual employee over terms and conditions of employ-
ment when there was in existence a majority representative of the employees, by
attempting to undermine the majority representative of the employees in the afore-
said appropriate unit with threats to sell and inducements to employees to revoke
their union authorizations, Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. A preponderance of the evidence does not support allegations in the complaint
that Respondent violated Section 8(a)(1) of the Act except in the respect above
found.
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I hereby issue the following:
RECOMMENDED ORDER
Action Wholesale Company, Inc., d/b/a A. L. French Co., its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(b) Threatening employees with the loss of benefits and the sale of business
because of their union activities.
(c) Promising benefits to employees if they would give up their union activities.
(d) Interfering with the rights of employees by making suggestions as to how the
employees could eliminate the Union.
A. L. FRENCH CO. 639
(e) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 959, or any other labor organiza-
tion of its employees , by discharging its employees or permitting them to quit as a
consequence of such discharge , because of their concerted or union activities, or in
any other manner discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
(f) Refusing to meet and bargain with the majority representative of the employees
in the previously described appropriate unit.
(g) In any other manner interfering with, restraining , or coercing employees in the
exercise of their right to self-organization , to form labor organizations , to join or
assist International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Local 959, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from engaging in such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer Edith Storck, Frank Todd, and Norma Roseta immediate and full
reinstatement to their former or substantially equivalent positions without prejudice
to all rights and privileges to which they are entitled , and make them whole in the
manner set forth above in the section entitled "The Remedy."
(b) Preserve until compliance with any order for reinstatement or backpay made
by the Board is effectuated and, upon request , make available to the said Board
and its agent, for examination and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and all other records rela-
tive to a determination of the amount of backpay due, and to the reinstatement and
related rights provided under the terms of any such order.
(c) Post at its place of business in Anchorage, Alaska, copies of the attached
notice marked "Appendix A." 26 Copies of said notice , to be furnished by the Regional
Director for the Nineteenth Region, shall , after being signed by Respondent's rep-
resentative , be posted by Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not -altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in writing , within
20 days from the receipt of this Intermediate Report , what steps Respondent has
taken to comply herewith 27
It is further recommended that the complaint be dismissed insofar as it alleges
violations of Section 8 (a) (1) of the Act, except as herein specifically found.
zo If this Recommended Order Is adopted by the Board , the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice If the Board 's Order is enforced by a decree of a United States Court of
Appeals , the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals , Enforcing an Order" for the words "A Decision and
Order "
If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Nineteenth Region, in writing, within
10 days from the date of this Order , what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees about their union activities, nor
threaten them with loss of benefits should they engage in union activities, nor
promise benefits to employees to give up their union activities , nor threaten to
sell because of the union activities of our employees , nor interfere with the
union activities of the employees by suggesting methods whereby they could
eliminate their majority representative without fear of consequences.
WE WILL NOT discourage membership in International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America, Local 959, or
any other labor organization of our employees by discharging employees because
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their concerted or union activities, or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from engaging in such
activities.
WE WILL offer immediate and full reinstatement to Edith Storck, Frank Todd,
and Norma Roseta, and we will make them whole for any loss they may have
suffered as a result of the discrimination against them.
WE WILL, upon request, bargain collectively with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 959,
or any other labor organization of our employees, in the following unit of
employees with respect to rates of pay, wages, hours of work, and other condi-
tions of employment and, if an understanding is reached, embody such under-
standing in a signed agreement:
All office, warehouse, and delivery employees at our Anchorage, Alaska,
office and warehouse, excluding guards and supervisors as defined in the
Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining members of the above-named or any other labor organization.
ACTION WHOLESALE COMPANY, INC.,
D/B/A A. L. FRENCH CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with
its provisions.
Hankins Container Company , a Division of The Flintkote Com-
pany and Southern States Regional Council, Region 5, Inter-
national Woodworkers of America.' Case No. 15-CA-p3191.
December 26, 1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices sand recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
1 Southern -States Regional Council, Region 5, is an administrative subdivision of Inter-
national Woodworkers of America , AFL-CIO, which is the labor organization involved
herein.
145 NLRB No. 62.