Kelly Brothers Nurseries, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1963

145 N.L.R.B. 285 (N.L.R.B. 1963)

KELLY BROTHERS NURSERIES, INC. 285
Kelly Brothers Nurseries , Inc. and Retail Store Employees
Union, Local 345, AFL-CIO. Case No. 3-CA-1878. December 9,
1963
DECISION AND ORDER
On July 26, 1963, Trial Examiner James T. Barker issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Intermedi-
ate Report. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and, as explained more fully in The Remedy section,
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the modifications indicated herein.
The General Counsel has excepted to the Trial Examiner's finding
that four unfair labor practice strikers herein, Ellis, Kromer, K.
Rounsville, and Cotton, failed to make unconditional offers to return
to work. We find merit in this exception. The Trial Examiner ap-
parently overlooked Respondent's answer which admits that "on the
dates indicated employees Ellis, Kromer, K. Rounsville, and Cotton
stated they would like to return to work and were refused." On the
basis of Respondent's admission in its answer, we find that these em-
ployees made unconditional requests for reinstatement and that Re-
spondent violated Section 8(a) (3) and (1) of the Act by refusing to
reinstate them. Accordingly, we do not adopt the Trial Examiner's
findings of fact or conclusions of law with respect to these employees.
THE REMEDY 2
As we have found, inter alia, that Respondent violated 8(a) (3)
and (1) of the Act by refusing the reinstatement requests of employees
1 The Respondent 's request for oral argument is hereby denied as the record, including
the exceptions and briefs, adequately presents the issues and the positions of the parties.
-At the hearing, Respondent offered to prove, through the testimony of two supervisors,
that it had made unconditional offers of reinstatement to certain employees who, as we
have found, had previously been discriminated against. The Trial Examiner rejected
Respondent ' s offer of proof on the ground that it contained matters for compliance pro-
ceedings . In view of ( 1) the allegations in the complaint alleging that Respondent has at
145 NLRB No. 36.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ellis, Kromer, K. Rounsville, and Cotton, we will order Respondent,
to the extent it has not already done so, to offer them immediate and
full reinstatement to their former or substantially equivalent positions
and to make them whole for any loss of pay they may have suffered
from the date of their original requests for reinstatement to the date
of any unconditional offer of reinstatement.
The Trial Examiner further found that Evelyn Burrows had been
reemployed in March or April 1963. Although no exceptions were
taken to this finding, we note that the record shows only that she
was offered reinstatement in March 1963, and we so find. This find-
ing, however, does not affect the recommended remedy as to her.
We find that the nature of the violations, involving the Respond-
ent's refusal to bargain and its discrimination against striking em-
ployees, requires the inclusion of a broad cease-and-desist provision in
the Order.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Kelly Brothers
Nurseries, Inc., Dansville, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Retail Store Employees
Union, Local 345, AFL-CIO, as exclusive bargaining representative
of its employees in the unit found appropriate, as described in the
Intermediate Report.
(b) Interrogating employees, in an unlawful manner, concerning
their own or other employees' attendance at union meetings, their exe-
cution of union authorization cards, or their other union or concerted
activities; requesting its employees as a substitute for bargaining
through the above-named Union to form an employee committee for
the purpose of discussing grievances with management; warning em-
ployees that it would not have, and there would not be, a union in
the plant; warning employees that their strike or other activity in
support of the above-named Union was jeopardizing their job tenure;
and promising striking employees economic benefits if they would
abandon the strike and return to work.
(c) Discouraging membership in Retail Store Employees Union,
Local 345, AFL-CIO, or any other labor organization of its employees,
all times continued to refuse to reinstate these employees, and (2 ) the fact that the
Board must fashion an appropriate remedy, we believe the better practice would have been
to accept such testimony . However, we find that the Trial Examiner 's ruling was not
prejudicial in the circumstances of this case , as Respondent will be permitted to present
this evidence at the compliance stage to show a termination date for its backpay obliga-
tion. We shall fashion our remedy to provide for offers of reinstatement to these em-
ployees only in the event Respondent has not already made such offers.
KELLY BROTHERS NURSERIES, INC. 287
by discriminatorily refusing to reinstate its employees or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(d) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations of their own choosing, to join or assist Retail
Store Employees Union, Local 345, AFL-CIO, or any other labor
organization, to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to re-
frain from any or all 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 employment as authorized in
Section 8 ( a) (3) of the Act , as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Retail Store Employees
Union, Local 345, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) To the extent that it has not done so , offer to Cameron Cotton,
Esther Dudley , Kenneth Wensel, Donald Ellis, Rodney Kromer, and
Kenneth Rounsville immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their senior-
ity and other rights and privileges, in the manner set forth in "The
Remedy" section of the Intermediate Report, as modified herein.
(c) Make whole the above -named employees plus Leon Lyon, Lester
Sleight, David Wenner, and Evelyn Burrows, in the manner and ac-
cording to the method set forth in "The Remedy" section of the
Intermediate Report, as modified herein.
(d) Preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records, social secu-
rity payment records, timecards , personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Post at its Dansville , New York, warehouse , copies of the
attached notice marked "Appendix ." s Copies of said notice, to be
furnished by the Regional Director for the Third Region , shall, after
being duly signed by a representative of the Respondent , be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to its employees are customarily
In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "A Decision and Order" the words "A Decree of
the United States Court of Appeals , Enforcing an Order."
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees in an unlawful manner
concerning their own or other employees' attendance at union
meetings, their execution of union authorization cards, or their
other union or concerted activities; request our employees as a
substitute for bargaining through Retail Store Employees Union,
Local 345, AFL-CIO, or any other labor organization, to form
an employee committee for the purpose of discussing grievances
with management; warn our employees that we would not have
and there would not be a union in the plant; warn our employees
that their strike or other activity in support of the above-named
Union would jeopardize their job tenure; or promise our striking
employees economic benefits for abandoning the strike and re-
turning to work.
WE WILL NOT discourage membership in Retail Store Employ-
ees Union, Local 345, AFL-CIO, or any other labor organization
of our employees, by refusing to reinstate any of our employees,
or in any other manner discriminating against them in regard
to their hire or tenure of employment or any term or condition
of employment.
WE WILL bargain collectively in good faith with Retail Store
Employees Union, Local 345, AFL-CIO, as the exclusive repre-
sentative of all employees in the bargaining unit described below
with respect to rates of pay, hours of employment, and other con-
ditions of employment, and, if an understanding is reached, we
will embody such understanding in a signed contract. The bar-
gaining unit is:
All warehouse employees, including shipping, packing, and
maintenance employees and truckdrivers employed at our
Dansville, New York, warehouses, excluding office clerical
employees, professional employees, agricultural laborers,
KELLY BROTHERS NURSERIES, INC. 289
guards, night watchmen, and supervisors as defined in the
Act.
WE WILL, to the extent that we have not already done so, offer
Cameron Cotton, Esther Dudley, Kenneth Wensel, Donald Ellis,
Rodney Kromer, and Kenneth Rounsville immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges.
WE WILL make whole the following employees for any loss of
pay suffered by them as a result of our failure, as required, to
timely reinstate them to their former or substantially equivalent
positions of employment :
Evelyn Burrows Leon Lyon
Cameron Cotton Lester Sleight
Esther Dudley David Wenner
Kenneth Wensel Rodney Kromer
Donald Ellis Kenneth Rounsville
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist Retail Store Employees
Union, Local 345, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a) (3) of the Act, as
amended.
All of our employees are free to become or remain or to refrain from
becoming or remaining members of Retail Store Employees Union,
Local 345, AFL-CIO, or any other labor organization.
KELLY BROTHERS NURSERIES, INC.,
Erzployer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act 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
734-070--64-vol. 145-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo
2, New York, Telephone No. TL 6-1782, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on April 25, 1962, and first, second , third, and fourth amended
charges filed on May 2 and 17 and June 8, 1962, and February 25, 1963, respec-
tively, the Regional Director of the National Labor Relations Board for the Third
Region , on February 28, 1963, issued a complaint against Kelly Brothers Nurseries,
Inc., hereinafter called the Respondent , alleging violations of Section 8(a)(1), (3),
and (5 ) of the National Labor Relations Act, as amended , hereinafter called the
Act. In its duly filed answer , Respondent admitted certain allegations of the com-
plaint but denied the commission of any unfair labor practices. Pursuant to notice,
a hearing was held before Trial Examiner James T. Barker at Dansville, New York,
on May 7, 8, and 10, 1963. All parties were represented at the hearing and were
afforded full opportunity to be heard, to introduce relevant evidence , to present oral
argument , and to file briefs with me. Counsel for the General Counsel presented
oral argument and thereafter , on June 13, 1963, the Respondent filed a brief with me.
Upon consideration of the entire record and the brief of the Respondent , and upon
my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein, a New York corpora-
tion with its principal office and place of business in Dansville , New York, and a
retail store in Rochester , New York. It has been at all times material herein en-
gaged at said places of business and locations in the production , wholesale and
retail sale , and distribution of fruit trees, shrubs , evergreens , and other nursery stock.
During the 12 months immediately preceding the issuance of the complaint herein
Respondent in the course and conduct of its business operations sold and distributed
nursery stock having a gross value in excess of $1,000,000. During the same period
of time the Respondent shipped and transported nursery stock valued in excess of
$50,000 from its places of business directly to States of the United States other
than the State of New York. During the same period of time, the Respondent re-
ceived nursery stock valued in excess of $50,000 transported to its places of business
directly from States of the United States other than the State of New York.
Upon these admitted facts, I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union , Local 345, AFL-CIO, hereinafter called the Union,
is and has been at all times material herein , a labor organization within the mean-
ing of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about March 29 , 1962 , a majority of the ware-
house employees employed at Respondent's Dansville , New York, warehouses desig-
nated the Union as their representative for the purpose of collective bargaining with
the Respondent, and that on that date , and at specified times thereafter, the Union
requested the Respondent to bargain collectively with it with respect to rates of pay,
wages, hours of employment , and other terms and conditions of employment of
the aforesaid employees . The complaint further alleges that the Respondent on
March 29, 1962, and thereafter did refuse to bargain collectively with the Union as
the exclusive collective-bargaining representative of the employees aforesaid, and
thereafter engaged in conduct calculated to undermine the Union 's majority status
and to interfere with , restrain , and coerce the employees in the exercise of the rights
KELLY BROTHERS NURSERIES, INC. 291
guaranteed them in Section 7 of the Act . Additionally the complaint alleges that on
or about April 18, 1962, and until May 25 , 1962, certain employees of Respondent
employed at the Dansville , New York, operation ceased work concertedly, which
cessation of work, the complaint continues , was both caused and prolonged by the
unfair labor practices of Respondent ; and that on various specified dates, 10 em-
ployees who had engaged in the strike made unconditional offers to return to their
former or substantially equivalent positions of employment , but were denied em-
ployment by Respondent because they had engaged in concerted or union activity.
The Respondent acknowledges in its brief the commission of technical unfair labor
practices in refusing to bargain with the Union , but it specifically contests the ap-
propriateness of the unit contending that all individuals employed therein were and
are agricultural laborers and/or casual employees . Additionally , it denies the
threats, interrogation , and promises of benefits attributed to it in the complaint.
Further, it contends that in the spring of 1963 it offered reinstatement to all laid-
off employees . Additionally , it asserts that the Union , the Charging Party herein,
is not an interested party in the proceeding having withdrawn its representation
petition pertaining to Respondent 's employees prior to filing the instant charges.
Moreover , with respect to this contention , Respondent contends in its brief that it
was denied information vital to the effective prosecution of its defense in the instant
matter by the Regional Director 's refusal to provide Respondent information "as
to the date of the Petition for withdrawal [ of the representative petition ] and the
date of its filing with the Regional Director." i
A. Organizational efforts
On March 26 , 1962, 13 employees of Respondent met with Union Representative
James Colombo and executed authorization cards. An employee committee was
formed ? Between March 25 and 29 , a total of 75 employees executed authorization
cards. Thereafter , on March 30, two other employees executed cards?
B. The bargaining request and refusal
In the meantime , on March 29, Union Secretary -Treasurer Harold Emma sent a
letter to Respondent containing the following text:
Please be advised that a vast majority of your employees have authorized
this Union to represent them for the purpose of negotiating a collective-
bargaining agreement.
Accordingly , we request that you set a date wherein we can prove our
majority and thereafter commence negotiations.
We would appreciate your prompt reply hereto.
Respondent received the letter on March 30. Thereafter , on April 5, Emma and
Union Representative Robert Miller called on William and John Kelly, Respondent's
president and secretary-treasurer , respectively , and orally requested Respondent
to recognize and bargain with the Union . The Kellys informed the union repre-
sentatives that they would not bargain with the Union and further advised them
that Attorney James Burke would act in their behalf in the matter. On April 10,
Emma telephoned Burke and again repeated the Union 's demand for recognition
and bargaining . Burke informed Emma that it was necessary for him to be out of
town and that he desired time to "look into the matter." Subsequently , on or about
April 16 , Emma again telephoned Burke and at that time Burke informed Emma
that Respondent would not bargain with the Union since it was Respondent's posi-
tion that their employees were agricultural laborers and were not "employees " within
the meaning of the Act?
1 There is no merit in the defense last advanced . The standing of a charging union seek-
ing vindication of guarantees and sanctions of the Act is not dependent upon its repre-
sentative status. Further while Respondent 's position with respect to the withdrawal of
the representation petition is obscure , if it is meant to imply that the withdrawal is in-
consistent with the Section 8(a) (5) allegations of the complaint , in view of the determina-
tions hereinafter made, the contention is without merit Joy Silk Mills, Inc, 85 NLRB
1263 If it is intended merely to reserve its position-advanced in colloquy at the hear-
ing-of nonconsent to the instant proceeding or to recognition of the Union without an
election , it likewise has no validity as a defense herein.
2 The credited testimony of Colombo
a The foregoing is predicated upon the stipulation of the parties.
+ The foregoing is predicated upon the stipulation of the parties
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing President John Kelly testified that he had not bargained with the
Union at any time since the receipt of the Union's March 29 letter and that the sole
reason was that he believed the individuals involved to be "agricultural employees."
Ultimately, pursuant to a petition of the Union and on the basis of a hearing duly
held in Case No. 3-RC-2855, the Board in a Decision and Direction of Election
issued December 11, 1962,5 found the following employees constituted a unit ap-
propriate for collective-bargaining purposes:
All warehouse employees, including shipping, packing, and maintenance em-
ployees and truckdrivers employed by the Employer at its Dansville, New York,
warehouses, but excluding office clerical employees, professional employees,
agricultural laborers, guards, night watchmen, and supervisors, as defined in
the Act.
On March 29, 1962, the day on which Union Representative Emma posted his
above referred to letter to Respondent, Respondent employed at its Dansville, New
York, place of business in the warehouse unit pertinent herein, 90 rank-and-file em-
ployees and 5 supervisors. One additional rank-and-file employee was employed on
March 30.6
C. The alleged interference, restraint, and coercion
1. Prestrike events
a. Donald Ellis
On March 29, employee Donald Ellis conversed with John and William Kelly
in John Kelly 's office. ? John Kelly asked Ellis if he had signed a union authoriza-
tion card. Ellis said that he had. Kelly asked Ellis what his dissatisfaction was
and inquired if he had not always received "fair and square treatment." John Kelly
also made reference to Respondent 's financial condition and further called Ellis'
attention to Respondent 's "open door" policy in dealing with its employees, and its
past policy of accommodating employees in solution of their personal problems.
He expressed surprise that in this instant situation Ellis had not brought his grievances
to him. With reference to the authorization card Kelly inquired if Ellis "knew
what it was." Ellis said that he did, whereupon John Kelly asked Ellis why he had
signed it. Ellis answered that he thought the employees "should have some different
benefits than what [they] were getting." John Kelly answered that "things like
that could be worked out among ourselves," stating the employees did not "need
a union or third party , and if [the employees ] had any complaints or any grievances
[they] should come to the office and talk them over first."
John Kelly then inquired if employees Cameron Cotton and Leonard Babcock
had been present at the March 26 meeting . In addition , he read several names
from a piece of paper and asked if those individuals had been present. John Kelly
added that there were others who had attended the meeting and wanted to know
their identity. Ellis answered tht he did not remember all of the individuals who
had attended the meeting.
Ellis credibly testified as follows with reference to John Kelly's further comments
concerning employees Cotton and Babcock:
He told me I shouldn't associate with them, that they tried to cause trouble
before, I shouldn't go up town on Friday nights with them, I was a family man
and the place for me was home with my family. I told him if I had to work
with them during the day, I could associate with them at night.
During the conversation the discussion turned to benefits which the employees
desired . A drinking fountain in the storage area and restroom facilities were dis-
cussed. John Kelly asserted that he would "try to straighten [these matter] out"
without "the third party." He further stated "there would be no Union as far as
he was concerned." 8
i Kelly Brothers Nurseries , Inc., 140 NLRB 38. The Board found, adverse to the Com-
pany, that the employees in the unit were not agricultural laborers or casual employees.
°The foregoing is predicated upon the stipulation of the parties.
7 Respondent denies having any knowledge of the employees' union activity prior to
March 30 and accordingly denies the conversation and others considered below occurred
on March 29 However, credited testimony of Kenneth Rounsville, hereinafter considered,
reveals Respondent had knowledge of the organizational efforts of its employees prior to
March 29.
8 The foregoing is predicated principally upon the testimony of Donald Ellis as supported
in some aspects by the testimony of John and William Kelly. While I found the testimony
KELLY BROTHERS NURSERIES, INC. 293
b. Lester Sleight and Leon Lyon
The same day, March 29, William Kelly entered the steel building at the plant,
caused the three packaging machines to be shut down, and called Sleight, Lyon,
and two other employees, whose identity is not established in the record, outside
the building and there spoke to them . He inquired of the employees concerning any
complaints or "gripes" that they might have. During the conversation he asked
the employees if they "knew anything about the Union." 9
c. Cameron Cotton
Cameron Cotton credibly testified that on the same day, March 29, he was called
into the office and there conversed with John and William Kelly. John Kelly said
that he had a list containing the names of eight individuals who he knew had
attended the meeting of March 26. He read the names off to Cotton and inquired
"who else" had attended. Cotton refused to supply the names but stated that he
had been present and had signed a card. John Kelly stated that he knew that
Cotton had been the "originator of getting in touch with the Union." John Kelly
credibly testified concerning the balance of the conversation as follows:
I asked him what was troubling him, we had always had good relations with
our help, the success of our Company depended upon loyal employees, that we
had made progress over the recent years
That as far as I knew, that people working for us, they were satisfied, we
were a small operation, both my brother and I saw the employees everyday,
if there was any grievances or any complaints, I was surprised that he or others
hadn't brought them to our attention. I further stated that any of the boys
who wanted accommodations, wanted an advance on their pay or a loan,
if they wanted to borrow a truck or any accommodations, they had always
found my door open, and that I was surprised in this case they hadn't done
the same thing. His reply was "All we want is the Union." I said "What can
the Union do that we can't do ourselves?" I suggested "If you want to have
a grievance committee, you could form your own committee. We will talk over
any grievances present and go from there. If we can't make progress, then
we'll make other arrangements ." He said "Well, you have your association,
your American Association of Nurseries where you get together to peg prices
and to organize against labor." He said "You have taken an active part in
the Dansville Board of Trade to keep other industry out of town so you'll have
plenty of labor." I said "Cam, do you really mean what you're saying?" He
said "I certainly do." My reply was "If he spent as much time in an effort to
promote the community and bring in new industry in here as I have, I'd really
feel insulted. If you feel that way it's just a waste of time to talk to you."
I mentioned the fact that we had made advances to some of the boys. I men-
tioned the fact that within the last few months one of the boys had occasion
to apply for a mortgage from the bank where my brother is a Director. Due
to the fact that my brother was on the committee, he got quick action. Bill
insured [sic] them that he had steady work and he was a good employee. The
only word I could get from Cotton was that, well, he just wanted a Union.
I also stated to him, "You have made the statement publicly that you have
broke Maloney's Nursery. If you're out to break us, what good would it be
to us or the employees. If we go broke, our job is gone and everybody's job
of John Kelly concerning this incident to be credible, I am convinced that his testimony
does not fully describe the entire conversation, but that, rather, the testimony of Donald
Ellis accurately depicts that portion of the conversation to which John Kelly did not refer.
6 The credited, uncontradicted testimony of Lester Sleight. By use of 'Sleight's pretrial
affidavit, the General Counsel attempted to refresh Sleight's recollection relating to
William Kelly's alleged Interrogation of the employees concerning card signing activity
After referring to his pretrial affidavit for that purpose, Sleight testified, "According to
the statement which was written when my mind was fresh about what went on . I do
recall that he [Kelly] asked if we had signed any union cards or if we knew anything
about the Union." Sleight further testified, however, that lie had no independent recollec-
tion of what was said on the occasion in question No effort was made to establish a
foundation relating to the taking of the pretrial statement or to offer it as past recollection
recorded Accordingly, on the state of the record, I find that the General Counsel failed
to establish that during the conversation William Kelly did, in fact, inquire if the em-
ployees had signed union cards.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is gone." That in substance is what I said. I could get no reply from Cotton
except "We want a Union."
I told him we had been advised by Counsel and by the American Association
of Nurseries that we were definitely agricultural and, as such, we didn't come
under the jurisdiction of the National Labor Relations Board. I felt under those
circumstances, if the boys wanted to have their own committee or Union, we
could accomplish the same thing, no third party was needed to straighten out
the differences between us. I emphasized the fact that we were small, not
owned by outside interests, didn't have outside management, the primary stock-
holders were in touch with the employees every day, and as far as we knew,
we had a pleasant and a satisfactory atmosphere. I told him I thought this
was a poor time to be bringing up any trouble. All winter we had been working
short hours and money was safe. We could discuss any differences then.
Now, we were in the beginning of our season where we had to do all of our
shipping in the short time and our success or failure depended on what we did
in the short time. I told him about our finances, how I had worked myself
into the verge of a nervous breakdown two years ago when business was bad and
our credit was extended to the breaking point, we borrowed all the money
we could to prevent having any general lay-off of our regular employees, and
that I was surprised that now when we thought we were going to have a fairly
good season that supposedly loyal employees would be trying to cause us
trouble, that at the time he was there, both he and I should be working and
that every hour that we lost was good money hours by comparison to other
parts of the year.10
d. Kenneth Rounsville
Also on March 29, William Kelly called on employee Kenneth Rounsville at his
home. William Kelly stated that he had heard from "an outside source, up town
somewhere" that the Union was trying to organize the employees. Kelly stated
that he had heard there were "cards circulating" and asked Rounsville if he had
signed one. Rounsville stated that he had and Kelly asked if he knew what he
had signed. Rounsville stated that he had. Thereupon Kelly asked if he could
speak with Rounsville 's wife who was also an employee of Respondent . Rounsville
asked his wife to join the conversation. Kelly stated that he was not aware "there
was anybody that had any grievances" and asked Mrs. Rounsville what some of the
grievances were. Mrs. Rounsville stated that the "biggest one" seemed to be the
lack of any unemployment insurance. William Kelly stated that he "didn't want
a bunch of foreigners coming in and running his business ." He further stated that
he would not have "a third party in there." ii
e. Kenneth Rounsville and Ed Wing
On March 30 employees Kenneth Rounsville and Ed Wing were called into the
office and there conversed with William and John Kelly. John Kelly credibly testi-
fied concerning the conversation as follows:
I asked him [ referring principally to Rounsville ] what his grievances were,
I thought he was satisfied, that my door was always open if there were any
complaints. I said "If you want to borrow a truck or want to borrow money,
which you have, from us, you have felt free to come in and I have always
accommodated you. And now, if you have some grievances with us, why don't
we talk this over? If you want to have a group of your own, let's give it a
try and see if we can't settle any differences that might exist." His stock
answer was "We want a Union." I called his attention to the fact that we gave
him permission to cut trees, Christmas trees. I said "Did you ever tell us how
many Christmas trees you cut?" He said "No." "Did you ever get a bill
SU The foregoing is supported by the credited testimony of William Kelly. I do not
credit Cotton's testimony to the effect that John Kelly stated "there would be no union,"
that he would "close the doors before he had a third party come in"; that the Company
would be "broke up and the employees would be sorry because they would not have any
job." Cotton's testimony in these respects seems to be his own interpretation of the mean-
ing of John Kelly's statements rather than a literal repeating of Kelly's actual remarks.
Neither do I credit Cotton's testimony to the effect that John Kelly asked him to sign a
petition to "get the union out" and stated his intention to have "other people" sign the
same petition.
u The foregoing is based upon the credited testimony of Kenneth Rounsville.
KELLY BROTHERS NURSERIES, INC. 295
for [sic] us?" "No." "Don't you think you have been treated fairly and we
should receive the same treatment from you?" I told him that I gave preference
to his wife. We were criticized by other women because we put her on early.
We had her help with the catalogs in February and March rather than putting
on somebody else, and just tried to appeal to his sense of fair play; if there
was any differences between us, we should talk it over in the same manner which
he would come in to seek accommodations which were always granted. He
went on to say about the Board of Trade. I didn't go to any length with him.
I just figured that he had his mind made up and it would be a waste of time for
me to go any further.
Concerning his attitude toward the Union, John Kelly, credibly testified as follows:
. I told him the same thing that I told the other boys, "We're definitely
agricultural, we were advised by our Counsel and by the American Association
of Nursery Counsel that we don't come under the N.L.R.B. jurisdiction." I
felt that as a small operation, the fact that we saw the employees every day,
if there were any differences, we could work them out, and they could have
one of their own committees. I made no threats or promises whatsoever.12
Moreover, during the conversation John Kelly stated that he had spoken to the
local parish priest concerning the Union, and had concluded that "as a result of
my being sick . . . [Respondent] can't afford a union, and we're not going to have
a union." 13
f. Storage area meeting
On March 30 several employees who had attended the March 26 union organi-
zational meeting at which an employee committee was formed, met with William
Kelly in the plant storage area. Employees attending the meeting included Cotton,
Kromer, Ellis, Rounsville, and Wensel. Kelly asked the employees if they "couldn't
try to iron out this thing between the Company and [the employees] and avoid a
third party." Kelly further suggested that the employees form a committee to
achieve this end. He told the employees to "think it over" and stated that he would
call the employees together early the next week to find out what they had decided.14
g. Bulb room meeting
On April 3, William Kelly again met with the group of employees with whom he
had spoken on March 30 concerning the formation of a committee. He asked the
employees what they had decided in this regard. Kenneth Rounsville credibly
testified concerning the meeting as follows:
At that meeting, Bill Kelly asked what we thought about forming a committee.
He said that we should-we should all get together and air our complaints.
"I'm not guaranteeing that we can do anything about them, but I'm willing to
listen," words to that effect. He said "You don't have to be afraid to tell me
anything, any improvements or complaints you have. You won't be fired for
what you think," he said. He said "I'll go outside and, when you come to a
conclusion, you can call me back in. Hash this over among yourselves," so be
went outside. We cast paper ballots and put our opinion on the ballot and put
it in the box and called Bill back in, and he started looking at the papers, and
after he counted out seven or eight of them, he said, "Boys, this doesn't look
good." He said "I want you to understand we're not going to have a Union in
here. I'm not made of jelly and I'll fight this to the last letter " Then he
asked if we had any other opinions on how we could improve this place, improve
13 The foregoing is supported by the credited testimony of William Kelly, and by por-
tions of the testimony of Kenneth Rounsville and Ed Wing. I do not credit the testimony
of Kenneth Rounsville to the effect that John Kelly stated that Respondent would "go
out of business" before it would recognize the Union. Employee Ed Wing who was also
present during this conversation was equivocal in his testimony regarding this matter.
He admitted that he could not remember whether John Kelly had made this statement
on this occasion or during some other conversations.
11 The credited testimony of Kenneth Rounsville Ed Wing credibly testified Kelly
asserted that he "wouldn't have the Union, he didn't want the Union " I do not credit
John Kelly's denial of having informed the employees that he would not have a union
14 The foregoing is predicated upon the credited testimony of Kenneth Rounsville and
Kenneth Wensel Cotton's testimony to the effect that Kelly stated affirmatively on this
occasion in conjunction with his suggestion that the employees form a committee that
"we were not going to have a union" has no other record support and I do not credit it.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the efficiency of production and things like that and they gave him, different
ones gave their own opinion and Bill wrote them down on a paper. That's
all I can remember.15
Approximately 30 minutes after the meeting William Kelly in chance meeting with
Kenneth Rounsville inquired what the employees had decided about the committee.
Rounsville answered that he did not know but that "from what I've heard, I don't
think they want a committee." Rounsville further stated, "It's my opinion we
should have a Union." William Kelly answered: "There won't be any Union
in here." 16
h. Steel building meeting-April 13-male employees
On April 13, John and William Kelly met with all of the male employees in the
steel building on Respondent's premises. The following credited testimony of
Kenneth Rounsville accurately reflects what occurred at the meeting:
John Kelly did most of the talking. He brought up the subject of having
been sick and hadn't did [sic] too well financially. They were trying to get out
of the hole. He stated there were different people around there he had helped
out. He mentioned that we ought to get together and form a committee, that
he couldn't see where a Union would help us any because he didn't want a
third party coming in there anyway in the first place. Well, after he talked
on it for awhile, he asked various members that had been present at the meeting
when the first cards were signed if they had anything to say.
He asked if I had anything to say. I said "No." He said "You had plenty
to say before" then he talked more about this committee, that we could get
together and iron out our complaints, see if something could be done about
them. Then he asked different men around there-I can't remember their
names-what they thought about it and they said it was all right with them.
He said, I remember he asked them-particularly, he asked Rudy Pfuntner [a
supervisor] and Rudy said he didn't know what it was all about. He asked me
what I thought about forming a committee. I said "I'm sorry, John, but I
don't have the same opinion as you." That about ended the conversation at
our meeting.
i. John Kelly-Rounsville conversation-April 13
Shortly after the meeting in the steel building, Kenneth Rounsville was called into
Respondent 's office and there conversed with John Kelly. Kelly spoke to Rounsville
saying, "Ken , I want you to realize you've got a large family and you 're jeopardizing
your job by all this activity ." Rounsville responded , saying, that he had given
the matter much thought, felt he was "doing the right thing" in supporting the Union,
and asked Kelly to respect his position.17
j. William Kelly-Rodney Kromer conversation-April 14
On April 14, Kromer conversed with William Kelly in the plant storage area.
William Kelly, who was going through the storage building, approached Kromer at
his work station and asked him if "he or any of the other men" had "ever
thought . . . further about the suggestion . . to form . .. a committee."
Kromer answered that he had not and the conversation ended.18
13 The testimony of Rounsville is supported by that of employees Cotton, Kromer, and
Weasel John Kelly did not testify in detail concerning this incident His general denial
of ever having stated that he would not have a union is not sufficient to overcome credited
testimony with respect to this incident
16 The credited, undenied testimony of Kenneth RounsvilIe
17The credited testimony of Kenneth Rounsville. I reject John Kelly's denial that he
did not, as testified by Rounsville, in words or substance state that Rounsville was jeop-
ardizing his job by his activities. Rounsville impressed me generally as a credible witness
with an accurate recollection of the event. On the other hand, John Kelly admitted that
he had no clear recollection of the incident
19 The credited testimony of William Kelly. I do not credit Kromer's testimony to the
effect that Wslliam Kelly stated on this occasion that if Kromer wanted a raise or was
having financial trouble to come in the office and "he would see what he could do" for
Kromer. Kromer's testimony in this regard impressed me as being hesitant and equivocal.
On the other hand, William Kelly categorically denied having made the statement which
Kromer attributes to him. I credit William Kelly.
KELLY BROTHERS NURSERIES, INC. 297
k. Kromer-John Kelly conversation-April 17
Kromer testified that on April 17, as he was entering the office and John Kelly
was leaving John Kelly spoke to him stating that, "he had heard there was going to
be a walkout" and for Kromer "to forget about the third party, to come into work."
Further according to Kromer, John Kelly stated "if there was a walkout . . . I
would be jeopardizing my job . . ." John Kelly denies having made this statement
to Kromer or to any other employee. I credit Kromer's testimony and reject John
Kelly's denial. While the decision to strike was not made until the employees met
with the union representatives on the evening of April 17, the pendency of a walkout
appears to have been the subject of some speculation as evidenced by John Kelly's
statement to the assembled female employees at the plant, as discussed below, and
to have been a matter of concern to him. His efforts to convince Kromer not to
join the walkout is in keeping with his subsequent efforts (discussed below) to have
employees abandon the strike and return to work.
I. The meeting of female employees-April 17
On the afternoon of April 17, John and William Kelly assembled the female
employees in the bulb room at the plant and there John Kelly spoke with them.
John Kelly commenced by observing that he understood that the employees had
been contacted by the Union and invited the employees to air their grievances
with him. He indicated his willingness to "sit down and talk over" their grievances
with the employees. He stated that they could form a committee of their own
choosing, asserting further that the Company "wanted to have and thought [it]
had loyal employees." He stated to the employees that they were then entering
the "busy period" and indicated his surprise that they would have "this unrest."
As the conversation progressed, individual employees volunteered their complaints
and commented on a variety of matters relating to facilities and benefits. John
Kelly would respond advancing the Company's point of view on the matters
discussed.19
During the meeting, John Kelly stated that in the event of a walkout or strike
employees who participated "could be replaced." He further stated that employees
who did not participate in the walkout but remained at work "would be remembered
in the future." 20
2. The strike
On April 17, 1962, a meeting was held which was attended by approximately 79
of Respondent's employees. Also present were five union officials including, James
Colombo, Harold Emma, and Robert Miller. Colombo commenced the meeting
by introducing Emma who read to the group the letter which he had sent to
Respondent on March 29, 1962. Emma thereupon told the gathering of attempts
that he and Union Official Miller had made to gain recognition from Respondent.
Emma asserted, in substance, that they had been unsuccessful in these attempts.
The union officials discounted the effectiveness of the employee committee then
under consideration by the employees. The discussion turned to the strategy to be
followed in the existing circumstances, and Emma suggested that the employees
could "take a straight strike vote." A discussion of the hardships and economic
consequences of a strike followed and Respondent's failure to answer Emma's
"The credited testimony of John Kelly as supported by the credited testimony of Evelyn
Burrows , Esther Dudley , Verna Taylor , and Elthea King The facilities and benefits dis-
cussed were restroom facilities , a drinking 'fountain, loss of overtime pay, and unemploy-
ment compensation
2a The credited testimony of Cathryn Cornbau as supported by the credited testimony of
Evelyn Burrows I do not credit the testimony of Marjorie Rounsville and Esther Dudley
to the effect that Kelly said any employee that "went on a picket line would be replaced "
Neither do I credit John Kelly's testimony to the extent it is a denial of having made the
statements attributed to him by Cornbau and Burrows In making the above credibility
resolution I have carefully evaluated the testimony of witnesses called by the Respondent
who also attended the meeting in question While respondent 's witnesses Verna Taylor,
Elthea King , Josephine West, and Helen Truax, who impressed me as generally truthful
witnesses , appeared not to recall having heard John Kelly make the statement attributed
to shim, my analysis of their testimony leads me to the conclusion that the testimony of
Cornbau and Burrows is a more accurate gauge of John Kelly's comments Blakely's
recollection of the meeting was too tentative and fragmentary to be reliable Ruth
Sleight had no recollection of the details of the meeting
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 29 letter was considered . Employees asserted that they had been "threatened
with their jobs" and Colombo advised them that a strike was a weapon for counter-
ing the Respondent 's action . The employees voted to strike . The strike com-
menced on April 18 and ended approximately May 25, 1962 , after which the strike
effort appears to have dissipated.21
3. Early strike reaction
a. John Kelly-Kenyon conversation-April 18
On April 18 Clayton Kenyon conversed with John and William Kelly in the Re-
spondent 's office. John Kelly credibly described the conversation as follows:
Early in the morning , 7:30, the picket lines were there. I said to Clayton,
I said "What 's there to this? Are you dissatisfied?" "No," he said , "I think
I made a fool of myself." I said, "Well, why don't you go back to work?
There's lots of work to be done . Let's go get going." So he went back to work.
At one point in the discussion John Kelly observed , "Well, if you want to put us
out of business with the strike , we'll just have to take the consequences." 22
b. William Kelly-Dorothy Owens telephone conversation
On the evening of the first or second day of the strike Dorothy Owens received
a telephone call from William Kelly . Kelly asked Owens why she had not returned
to work . Owens answered , in substance , that she was in favor of the strike's
objectives . Conversation ensued concerning the purpose of the strike and William
Kelly remarked , "Well, if you would return to work, I can promise you a raise in
wages and favoritism in the future." 23
4. Picket line conversations
After the strike commenced on April 18, and during the 8-day period that fol-
lowed, John and William Kelly conversed at different times with several of the
picketing employees relative to their return to work.
a. Ed Wing
The first such conversation occurred between William Kelly and Ed Wing on
April 18. On this occasion William Kelly asked Wing, a full -time order filler,
to return to work observing that "quite a few of the other ones had already gone
back in." Kelly further commented that Wing should "go back in and join them."
Wing stated that he could not go back in until the rest of them went back. The
conversation ended at this point.24
"The foregoing is based upon the credited testimony of James Colombo , John Ellis,
Kenneth Rounsville , Cameron Cotton , and Rodney Kromer.
"' Kenyon did not impress me as a witness possessed of a vivid recollection of the events
concerning which he testified I do not credit his testimony to the effect that one of the
Kellys stated "he would close the doors before he would recognize the Union."
2' The credited testimony of Dorothy Owens . William Kelly admitted having a con-
versation with Dorothy Owens but did not recall the date. I credit Owens ' testimony that
this conversation took place on the first or second day of the strike . I have considered
Kelly's testimony to the effect that any discussion of wages related to a raise that had
been granted to all female employees as a result of their complaint registered at his
April 17 meeting with them in the bulb room , but I do not credit him in this respect
Kelly 's assertion that wage increases were discussed at the bulb room meeting which took
place just a day or two prior to the event in question has no record support . Moreover,
lie was unable to recall whether the general wage increase to female employees was made
during the third or fourth week of April In the circumstances , I credit Owens ' testimony
to the effect that the wage increase was held out to her individually and no mention was
made of it general wage increase
24 The foregoing is based on the credited testimony of Ed Wing and that of William
Kelly whose version of the incident supports the foregoing I do not , however, credit
Ed Wing 's testimony on direct examination that William Kelly remarked during this
conversation in connection with his request that Wing return to work , "you wouldn't
want to jeopardize your job, would your" Wing 's testimony on cross- and redirect
examination was ambivalent and cast doubt upon the accuracy of his recollection in this
respect.
KELLY BROTHERS NURSERIES, INC. 299
b. Esther Dudley
Esther Dudley credibly testified that John Kelly conversed with her on the picket
line. John Kelly asked her "to go back to work," and further said that "he would
give [her] more an hour and more in working time." John Kelly denies having
made the latter statement attributed to him by Esther Dudley. However, I credit
Dudley 25
c. Donald Ellis
Donald Ellis, employed by Respondent on a full-time basis as a truckdriver and
general handyman, conversed with John Kelly on April 19 on the plant premises.
Kelly suggested to Ellis that he should return to work and "not be out front with
the rest of the men," and that Ellis "could come back in and go to work and forget
it." Ellis answered he would return to work when Kelly "settled with the rest of the
fellows and the Union . and not until then." During the conversation, Kelly
indicated that he would "try to give [the employees] benefits" that had been dis-
cussed at the April 3 meeting with the male employees 26
d. Kenneth Rounsville
Also on April 19, John Kelly conversed with Kenneth Rounsville on the picket
line. Kelly drove up in his automobile, stopped and stated to Rounsville, an em-
ployee of some 7 years' standing, that he had "better get back to work." He further
stated during the conversation "you might lose your job over this." Rounsville
answered that this was up to him and Kelly remarked, "No, it's up to you." There-
upon Kelly departed the scene27
e. Lester Sleight
On the same day, April 19, John Kelly approached Sleight, a full-time employee,
on the picket line and asked him to come into the storage area of the plant. There
they conversed. John Kelly credibly testified concerning the conversation as
follows:
. I said "What's bothering you?" I said "Don't you appreciate anything I
have done for you?" "Well," he said "Yes," he said "But I got to go along
with the boys." I said "Don't you realize you would probably be in jail
right now if I hadn't made several phone calls and my brother went to bat for
a lawyer and got you out of jail last summer to help you' We never had any
charges for our efforts. We were glad to help " I said "Didn't you appreciate
it?" "Well," he said "I guess I did," I said "Now, I can't understand how you
would be a participant in the strike when you haven't given us an opportunity to
talk to you to talk over anything that might be bothering." He said "Why don't
you have Clayton Kenyon come out? He was one of the organizers of the
Union, and now he's the first one to walk across the picket line " I said "That's
none of my doing." I said, "You have to make up your own decision as to
what you do." I said "I thought we treated you fair. We helped you every
time we could. You say you have got no complaint, you have got to go along
with the boys " I said, "If, that's it, I can't argue any more." That was the
course of the conversation. He had no complaints. He was apparently
happy. He appreciated what we had done a year ago, but now he was more
or less talked into it.28
25 In crediting Dudley I have considered the credited testimony of Dorothy Owens relat-
ing to her telephone conversation with William Kelly wherein a similar offer of increased
pay was made
=e The foregoing is predicated upon the credited testimony of Donald Ellis. Ellis im-
pressed me as a credible witness I do not believe that the conversation between John
Kelly and Ellis was as limited as the testimony of Kelly would indicate. I am convinced
that Ellis' testimony more accurately reflects the substance of the conversation However,
I am not convinced that included in the "benefits" that Kelly would "try to give" was
additional monetary compensation Increased wages were not discussed at the April 3
meeting and it is significant that in his testimony Ellis did not make reference to monetary
compensation until his redirect examination and after a leading question by the counsel
for the General Counsel.
"The credited testimony of Kenneth Rounsville I do not credit John Kelly's version
of this conversation.
211 do not credit Sleight's version of this conversation. He indicated a certain de-
ficiency of recollection of specifics and he did not recall all of the conversation. I find
John Kelly's version more reliable.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f. Cameron Cotton
The following day, April 20, John Kelly conversed with Cotton in front of the
plant storage area. Cotton credibly testified concerning this conversation as follows:
... Mr. Kelly again accused me again of ruining Maloney Brothers. He told
me that every hour I kept the employees out there on the picket line I was
costing him thousands of dollars, and I told him then that I wasn't keeping the
people out there, if he would just talk to the Representatives, we would all go
back to work. He said he would have nothing to do with the Union Repre-
sentatives. He said I was never to enter his door again 29
g. Rodney Kromer
On or about April 26 Kromer conversed with John Kelly at the picket line near
the company parking lot. John Kelly, who had just parked his automobile, stated
to Kromer, "Forget about this and go into work and . [everything] will be
forgotten." Kromer stated he "wouldn't go in without the third party [Union],"
and John Kelly answered, "There would be no third party." Kelly went on to
state that he had "lost a lot of money and he could get along on what scrounge
help he had until he could get better." The conversation ended at this juncture 30
h. William Kelly-Ed Wing conversation
On or about April 28, William Kelly, accompanied by his family, drove to the
home of employee Ed Wing. There he conversed with Wing in Wing's front yard.
William Kelly credibly testified concerning this incident as follows:
. His wife was nearby and I asked him when he was coming back to work.
I told him again that we had plenty of work for him, this was the busy time,
he could have all the overtime he wanted, just like the other people have had the
opportunity of having during our busy season. I said "Why don't you come
back to work?" And also "When are you going to come back to work?"
... He said he didn't know when he was coming back to work, he was going
to stick it out with the other men In substance, that when they came back to
work . . . he would also come back to work; something to that effect. .
Knowing that he had a growing family, knowing that within the past year he
purchased a home and was paying on it, I said, "Ed, do you need some money
to tide you over 'till you get back to work?".. "No," he didn't need any
money and he was thinking of taking another job, I said after that, in effect
"Well, when you make up your mind to come back to work, the door is always
open. We'll welcome you back just like we have any time in the past-during
my previous conversation with you." That was the substance of my conversa-
tion with Ed Wing that particular evening.31
i. Employees seek reinstatement
The strike that commenced on April 18 did not cause a cessation of Respondent's
operations. Employees began reporting to work on the first day of the strike and
the picketing, which had been conducted by many pickets on the initial day, ceased
completely on May 8 and for several days following. On May 14, and for approxi-
mately a week thereafter, two or three individuals picketed.32 The strike effort had
ended completely by May 25.33
There is no evidence that the Union endeavored to negotiate any strike settlement
or communicated with Respondent concerning the reinstatement of any employee.
The complaint alleges that Respondent denied reinstatement to 11 employees who
had participated in the strike that commenced on April 18, despite their unconditional
"° John Kelly denies having had this conversation with Cotton I am not convinced
upon my observation of him as he testified that Cotton was the caliber of witness who
could fabricate this testimony out of the whole cloth. On the other hand, John Kelly had
many conversations with many different individuals during this period and it is entirely
conceivable that he could fail to remember this specific conversation In the circum-
stances, and on the present record, I credit Cotton
30 The credited testimony of Rodney Kromer John Kelly was not interrogated concern-
ing this conversation
31 The testimony of Ed Wing supports this testimony but I am convinced that William
Kelly's version more accurately reflects the entire conversation
ss The credited testimony of John Kelly
33 Union Representative Colombo so testified.
KELLY BROTHERS NURSERIES, INC. 301
request that they be reinstated.34 The record is devoid of evidence suggesting that
Cameron Cotton, Donald Ellis, Rodney Kromer, or Kenneth Rounsville at any time
pertinent herein sought reinstatement to their former positions of employment.
However, during the period April 25 through May 3, six of the striking employees
personally contacted William or John Kelly seeking reinstatement to their former
positions. On April 25, employee Leon Lyon contacted William Kelly at Respond-
ent's office. Lyon, who worked for Respondent from approximately March to
December each year, asked William Kelly if he could return to work but Kelly
stated that he "was all filled up right then" and suggested that Lyon check with him
in a few days. Lyon returned in approximately a week and a half and spoke with
William Kelly in the shop. Lyon asked Kelly if he had any work and Kelly
answered, "Not right yet." During periods pertinent to the allegations of the com-
plaint, Lyon did not again return seeking employment from Respondent.35
One evening approximately 2 weeks after the strike commenced Kenneth Wensel
spoke with John Kelly seeking to return to work. Wensel had been in Respondent's
employ for 8 years on a full-time basis. Kelly told him to contact him the follow-
ing morning, which Wensel did. Wensel spoke with John Kelly in Respondent's
office. John Kelly stated that he "hadn't talked it over with Bill yet" and invited
Wensel to return the next day. Wensel returned as instructed and was told again
to "come back tomorrow" as he had not discussed the matter with his brother.
Accordingly, the following day Wensel returned and spoke with both John and
William Kelly. John informed Wensel that he could not take him back on a full-
time basis but would give him a part-time job. Wensel stated that he could not
support his family on part-time wages and Wensel inquired if he could return part-
time "for more money." John Kelly advised Wensel that if he could find a better
job somewhere else to take it but that if he could not to come back and he would
give him part-time employment. The conversation ended at this point.
At approximately the same juncture, 2 weeks after the commencement of the
strike, employees Ed Wing, Bill Tarbell, David Wenner, and Lester Sleight spoke with
William Kelly at Respondent's place of business. Both Wing and Tarbell requested
permission to return to work and were permitted to do so. However, William Kelly
told Sleight, a full-time machine operator, to "check with him later." He told
Wenner, who in 1962 had worked full time between March and June, to "come back
in the morning." Sleight returned the following day, was told by William Kelly that
he did not have any work for him, and was invited by Kelly to again contact him
concerning the matter. He did not do so.
David Wenner did not specifically contact William Kelly the following morning
but William Kelly observed him on the picket line. Neither Kelly nor Wenner
mentioned the matter of reemployment.
On May 3 Esther Dudley contacted William Kelly by telephone seeking to return
to work. Dudley normally worked for Respondent as an order filler from approxi-
mately February to July and in the fall. William Kelly informed her that he would
not discuss the matter over the telephone and invited her to come to the Company's
office. Esther Dudley and her sister, Evelyn Burrows, went to the office and sought
reemployment. John Kelly stated that no help was needed "right now" and invited
the women to contact him in "a couple of days" stating that he "wanted to see how
they was [sic] going to work out." Dudley asked John Kelly if she and her sister
were "laid off or fired" and Kelly answered, "No, get in touch with me in a couple
of days." On May 7, Dudley called William Kelly by telephone and asked if she
and her sister could come to work. William Kelly answered in the negative stating
that they were going to keep the help that they had hired. In answer to Dudley's
inquiry if she and her sister could "draw unemployment," Kelly told them to "go
ahead" because they were not "going to let the girls go that they had." 36
j. Conclusions as to the Respondent's refusal to bargain
The Respondent raises no issue concerning the majority status of the Union on
March 30, the date on which it received the Union's letter claiming to represent a
majority of Respondent's employees and requesting bargaining. Neither does Re-
spondent deny the sufficiency of the Union's claim and request. Respondent rests
its defense solely upon its assertion, subsequently advanced before the Board in the
ss The name of one former employee, Elvin Whitehead, was deleted by amendment at the
hearing
as The record reflects, however, that Lyon was reemployed on March 25, 1963
36 All the foregoing incidents were testified to credibly by the employee participants and
are undisputed in the record I credit their testimony.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation hearing and by it rejected , that the individuals employed at its Dans-
ville establishment were and are agricultural and/or casual employees. The evidence
establishes that Respondent 's rejection of the Union's bargaining request was predi-
cated upon advice of counsel as to the exempt /casual status of the employees and
that its refusal preceded any Board determination of the issue . In its brief Respond-
ent admits to "technical unfair labor practices" but asserts their commission resulted
from acts taken in a good-faith belief that they did not violate the law. Whatever the
surface appeal this plea may have, it can be of no avail here, for the Board in Tom
Thumb Stores, Inc., 123 NLRB 833, and in Keystone Floors, Inc. d/b/a Keystone
Universal Carpet Company, 130 NLRB 4 , enfd . 306 F . 2d 560 (C.A. 3), considered
and rejected similar pleas . In the Tom Thumb case the Board held an employer
may not refuse to bargain for a traditionally appropriate unit upon the bare claim
that such a unit is inappropriate . In so finding the Board stated:
In the instant case the Union was the representative of a majority of the
employees and the unit is appropriate . The statutory requirements had been
met by the Union and the obligations on the part of the Respondent to bargain
had become fixed. We cannot agree that the Respondent could evade its
obligation by rejection of the unit . We have imposed considerable risk upon
a union which seeks to enforce its rights under Section 8(a)(5). It must
establish that it has been designated by an uncoerced majority of the employees,
that the unit is appropriate , and that there has been both a demand and a
refusal . If there is failure of proof in any one of these conditions its resort to
the Board will have been in vain. It seems both equitable and in conformity
with the statute to impose the same risk upon the employer who denies his
obligation . Under the circumstances we find that no real issue was posed by
the Respondent and that it rejected the proffered contract solely because it
objected to the inclusion of a class of employees , all of them female, which
had in the past proved troublesome . In electing to rely solely on a contention
we find to be without merit, it acted at its peril and in violation of the Act.
[Footnote citation deleted.]
Subsequently in the Keystone case the Board affirmed a Trial Examiner's rejec-
tion of the employer 's claim that it was not required to bargain with the union
because its refusal was predicated upon a good -faith claim that its salesmen were
not "employees" but independent contractors . I see no ground for distinguishing
this facet of the Keystone decision from the instant case.
Further, here, like the Trial Examiner in Keystone, I do not rely solely upon
precedent for finding , as I do, that Respondent violated Section 8(a)(1) and (5)
by its refusal to bargain with the Union . Assuming that Respondent did have a
good-faith doubt as to the status of its employees , it did not seek Board resolution
of the issue by resort to a representation proceeding , nor did it at any time question
the majority status of the Union . Rather, as hereinafter found , it commenced im-
mediately to engage in conduct calculated to undermine the Union 's majority status,
thwart its organizational efforts, and interfere with , restrain , and coerce its em-
ployees in the exercise of their statutory rights. As the Board stated in the Keystone
case, " [ s]uch conduct is manifestly inconsistent with any claim the Respondent
acted in good faith when it refused to recognize and bargain with the Union." 37
Accordingly in view of the foregoing , I conclude and find that on March 30, 1962,
the Union represented a majority of Respondent 's employees in a unit appropriate
for collective bargaining and by refusing to meet with the Union and bargain for
the reasons which it advances, Respondent violated Section 8 ( a)(1) and ( 5) of the
Act.38
k. Conclusions as to interference, restraint , and coercion
The instant proceeding involves a Respondent Company of moderate size, head-
quartered in a small town and presided over by two brothers who over a period
37 See also Joy Silk Mills , Inc, 85 NLRB 1263 , enfd. as modified 185 F. 2d 732
(CA.DC.), cert. denied 341 U S 914; Laabs, Inc, 128 NLRB 374.
ii The mere fact that at a date subsequent to its original request that Respondent
bargained with it, the Union filed a representation petition , does not mean that the Union
abandoned its demand for bargaining and that the Respondent was relieved of its obliga-
tion to bargain. It is well established that a union's filing of a representation petition
does not itself suspend an employer's bargaining obligation , absent evidence of a good-
faith doubt . Galloway Manufacturing Corporation, 136 NLRB 405, 409. Respondent at
no time questioned the Union ' s majority status but , rather, as hereinafter found, engaged
in a series of interrogations , threats, and promises designed to defeat the Union.
KELLY BROTHERS NURSERIES, INC. 303
of time prior to the incidents here involved through their actions demonstrated
their willingness to proffer to employees, where possible, assistance in the resolution
of their personal problems and difficulties. To Respondent's chief officials, John
and William Kelly, employee resort to an outside force or "third party" for the
purpose of improving working conditions was viewed as an act of disloyalty and
ingratitude.
Learning of the Union's advent and feeling strongly that it had no proper role
to play in their establishment and that it came at a disadvantageous time financially
and from the standpoint of production, John and William Kelly embarked immedi-
ately upon a systematic campaign to dissuade employees from continued allegiance
to the Union. Persuasion sometimes took the form of mere unconditional appeal
to loyalty and to a sense of appreciation for past acts of the benevolence. But more
often, their coordinated offensive was accomplished by interrogation, threats, promises,
and suggestions designed to impede and defeat the Union.
Thus, viewed in context one with another, and against the Kellys' fixed refusal to
recognize and bargain with the Union, I find the following conduct of John and/or
William Kelly was violative of the Act:
(1) John Kelly's questioning of Donald Ellis on March 29, whether and why he
had signed an authorization card; and his further interrogation on the same occasion
as to the meeting attendance of Cotton, Babcock, and other employees.
(2) William Kelly's inquiry made to employee Rounsville on the same day con-
cerning his card signing activities.
(3) John Kelly's questioning of employee Cotton concerning employee attendance
at a March 26 union meeting; Kelly's use of a list on this occasion and during his
March 29 conversation with Donald Ellis purporting to contain names of individ-
uals who had attended the meeting; and William Kelly's March 29 interrogation of
employees Sleight and Lyon if they "knew anything about the Union."
(4) John Kelly's statement to Ellis on March 29 that needed benefits could be
worked out among employees without a "third party" and that "there would be no
Union as far as he was concerned"; William Kelly's statement during his conversa-
tion with Mrs. Rounsville on March 29 in context of a discussion of employee
grievances that he "would not have a third party"; John Kelly's statement to Kenneth
Rounsville the next day in context with his suggestion that the employees could
have their own committee that he had been told by the parish priest that because
of illness he could not afford a union and "we're not going to have a union";
William Kelly's retort to assembled employees in the bulb room on April 3 follow-
ing the employee poll rejecting the suggested committee, "Boys, this doesn't look
good . I want you to understand we're not going to have a Union in here.
I'm not made of jelly and I'll fight this to the last letter"; William Kelly's state-
ment to Rounsville on April 3 following the aforesaid meeting, in context of a dis-
cussion of the employee committee, that "there won't be any union in here"; and
john Kelly's answer to employee Kromer's April 26 remark that he would not
return to work without the Union, wherein Kelly said that "there would be no third
party" and that he had "lost a lot of money and he could get along on what
scrounge help he had until we get better."
(5) Considered together with the foregoing, the request vigorously and frequently
advanced by Respondent's officials at the March 30 storage area meeting, the April
3 meeting of the employees in the bulb room, the April 13 meeting of male em-
ployees in the steel building, and at the April 17 meeting of female employees in
the bulb room, that the employees form a committee for the purpose of discussing
grievances with management without the resort to a "third party"; as well as individ-
ual conversations occurring on March 29 between Cotton and William or John Kelly,
on March 30 by William and John Kelly with employees Kenneth Rounsville and
Ed Wing, William Kelly's April 3 and 13 inquiry of Kenneth Rounsville, and his
April 14 inquiry of Rodney Kromer designed to promote and ascertain the degree
of employee acceptance of the suggestion.
(6) John Kelly's April 13 statement to Rounsville that he was "jeopardizing his
job" by his union activities, Kelly's April 19 statement to Rounsville on the picket
line that he "might lose [his] job over this [picketing] ... it's up to you," Kelly's
April 17 statement to employee Kromer that in the event of a walkout Kromer
"would be jeopardizing [his] job," and John Kelly's April 20 admonition to Cameron
Cotton that he "would have nothing to do with the union representatives" and that
Cotton was "never to enter his door again."
(7) John Kelly's statement to the assembled female employees on April 17 that
in the event of a walkout or strike employees who did not participate therein but
remained at work would be "remembered in the future"; John Kelly's statement to
Esther Dudley on the picket line to the effect that if she would go back to work he
would give her "more an hour and more in working time"; William Kelly's similar
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to Dorothy Owens on the first or second day of the strike that if she would
return to work he could promise "a raise in wages and favoritism in the future";
John Kelly's statement to Donald Ellis on April 19 in the context of a return to
work request that he would "try to give [the employees] benefits" that were dis-
cussed at the April 13 meeting of the male employees.
On the other hand, I do not find violative of the Act the Kellys' reminders to
employees of past favors, for they did not contain the implication that future acts
of assistance were conditioned upon rejection of the Union; John Kelly's admonition
to Donald Ellis, devoid of accompanying threats or inducement, not to associate
with Cotton or Babcock who had "tried to cause trouble before"; William Kelly's
picket line request to employee Ed Wing to return to work, unaccompanied by any
inducement to do so; his similar request to Wing on April 28 at Wing's home, for
Kelly's reference to overtime work merely was to the normal, seasonally opportunity
extant and was not advanced as a promise of reward to be accorded Wing alone;
nor Kelly's offer to Wing on this occasion of money to tide him over until he got
"back to work," for this offer was by its nature not conditioned upon Wing's aban-
donment of the strike but was consistent with other acts of generosity extended in the
past by the Kellys to their employees.
1. Conclusions as to the refusal to reinstate
As found, before the strike commenced on April 18, Respondent engaged in a
series of incidents designed to interfere with the employees' statutory rights and,
further, adamantly refused to bargain with the Union although it had been designated
by a vast majority of the employees as their representative for such purpose. These
acts were uppermost in the minds of the employees as they convened at the April 17
meeting and voted to engage in a strike against Respondent. It is clear that the
strike was an unfair labor practice strike having been caused by the unfair labor
practices of Respondent, and that the employees who engaged in the strike were
unfair labor practice strikers 39 As such, by well-established precedent, they were
entitled to reinstatement to their former positions of employment upon request, dis-
placing if necessary newly hired replacements4e
In view of the foregoing I find that strikers Leon Lyon, Kenneth Wensel, David
Wenner, Lester Sleight, Esther Dudley, and Evelyn Burrows made unconditional
requests for reinstatement and were denied employment. This denial of employ-
ment came during the period when the work force and activity were seasonally high;
a condition that normally lasted through late May or early June 41 Further, there is
credited evidence that during this period Respondent had hired new personnel which
it still retained as of early May 42
In these circumstances, the General Counsel established a prima facie case as to
the aforesaid employees by showing Respondent failed to honor their unconditional
request that they be reinstated. Accordingly, from the foregoing, I conclude and
find that Respondent violated Section 8 (a) (1) and (3) of the Act by refusing until
the 1963 season commenced to reinstate the above-named employees to their former
positions of employment, or to offer them substantially equivalent employment after
they had made unconditional requests for reinstatement.43
I similarly conclude and find that Respondent further discriminated against
Cameron Cotton. Although there is nothing of record to suggest that Cotton had
at any time requested reinstatement, the futility of such a request is apparent when
it is remembered that on April 20, on the picket line, John Kelly, in effect, charged
sB National Furniture Manufacturing Company, Inc., 130 NLRB 712; West Coast
Luggage Co, 105 NLRB 414
*a White's Uvalde Mines, 117 NLRB 1128, 1130-1131.
41 John Kelly testified that on March 29, 1962, Respondent employed 95 individuals ;
on April 12, 1962, 156 on May 3, 146; on May 8, 127; and on June 18, 61.
"William Kelly's comment to Dudley on May 7 suggests this. John Kelly's remarks
to Kromer on April 26, that he could get along on what "scrounge help he had." reveals
a resort to replacement personnel
"See, eg, Webb Fuel Company, 135 NLRB 309, enfd 308 F. 2d 936 (CA. 6).
Respondent's offer of part-time employment to Kenneth Wensel, a full-time employee
of long standing, did not fulfill Respondent's obligation under the Act I have considered
the testimony of William Kelly that Leon Lyon, David Wenner, Lester Sleight, and
Evelyn Burrows were reemployed on specified dates during March and April 1963 While
these considerations are pertinent in fashioning an appropriate remedy and of significance
in the complaint stage of this proceeding, they do not absolve Respondent from the viola-
tions here found
KELLY BROTHERS NURSERIES, INC. 305
him with responsibility for the strike losses and warned Cotton "never to enter his
door again." 44
While it is clear from the evidence that Donald Ellis, Rodney Kromer, and
Kenneth Rounsville, like the other employees in question, joined the strike at its
inception and participated in picketing, unlike the other employees above dscussed,
they did not seek reinstatement during the period April 27 through May 23, 1962, as
alleged in the complaint, or thereafter. Nor upon this record am I able to conclude
that their efforts to do so had been rendered constructively futile by Respondent's
treatment of other strikers who sought reinstatement.45 The evidence suggests that
Respondent reemployed many former strikers and it is established that Respondent
reinstated Ed Wing, a striker and member of the group that led the organizational
effort, and it also reinstated employee Bill Tarbell, who, while not a member of the
commitee, had participated in the strike. Moreover, as bearing on the issue of
futility, earlier, during the strike, Respondent had specifically requested each of the
three employees individually to return to work and these requests did not show
personal animosity deriving from the employees' union or strike activity. No reason
is advanced by the General Counsel for the failure of these employees to individually
make application. Neither is there affirmative evidence showing their availability
for employment by Respondent during the period in queston. Further, there appear
to be no contributing factors present to explain their failure to apply such as a mis-
taken supposition that a blanket request by the Union had obviated the need for
individual initiative.46 It is further to be noted that these individuals were neither
alleged nor shown to have been discharged discriminatorily while engaged in a
protected strike.47
In the circumstances, I conclude and find that General Counsel failed to sustain
the separate allegations of discrimination contained in the complaint pertaining to
Respondent's asserted discriminatory refusal to reinstate Donald Ellis, Rodney
Kromer, and Kenneth Rounsville. However, as unfair labor practice strikers they
retained their right to reinstatement upon proper application, as hereinafter discussed
in the section entitled "The Remedy." 48
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of 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 the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondent , upon request, bargain collectively
with Retail Store Employees Union, Local 345, AFL-CIO, as the exclusive bargain-
ing representative of the employees in the appropriate unit described herein, and,
in the event an understanding is reached , embody such understanding in a signed
agreement.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of Evelyn Burrows, Esther Dudley, Leon Lyon, Lester Sleight,
David Wenner, and Kenneth Wensel by rejecting their unconditional request for
reinstatement to their former or substantially equivalent positions ; and against
"There is no evidence to suggest that in the spring of 1962, Cotton did not desire re-
instatement This conclusion would not be altered by evidence showing arguendo that
he refused Respondent 's asserted offer of reinstatement in the spring of 1963. See foot-
note 48, infra.
4a John Kelly's April 19 remark to Rounsville that he "might lose his job over this
[picketing]" contained none of the certainty and volition of his categorical statement the
next day to Cotton.
4e Cf Efco Manufacturing, Inc., 108 NLRB 245, 248-249
47 Cf. Happ Brothers Company, Inc , 90 NLRB 1513, 1518-1519
48 At the hearing Respondent offered to prove that in the spring of 1963 it extended un-
conditional reinstatement to Ellis, Kromer, and Rounsville, as well as to Cameron Cotton,
Kenneth Wensel, and Esther Dudley. This offer of proof was rejected on the ground
that the evidence offered was Insufficient as a defense to the allegations of the complaint
to which it was directed but was properly for the compliance stage of this proceeding.
7 3 4-0 7 0-6 4-v o f 14 5-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cameron Cotton by rendering any request by him constructively futile. As the
evidence reveals that Evelyn Burrows, Leon Lyon, Lester Sleight, and David Wenner
were reemployed by Respondent effective in March or April 1963, no offer of rein-
statement to them need be made by the Respondent. However, as it appears that
Cameron Cotton, Esther Dudley, and Kenneth Wensel have not been reinstated, it
will be recommended that, to the extent that it has not done so, Respondent offer
them immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, dismissing,
if necessary, any individual newly hired by Respondent on or after April 18 ,1962.
It will further be recommended that the Respondent make whole Evelyn Burrows,
Cameron Cotton, Esther Dudley, Leon Lyon, Lester Sleight, David Wenner, and
Kenneth Wensel for any loss of pay suffered from the date of their original requests
for reinstatement to the respective dates of their reinstatement, or in the case of
Cotton, Dudley, and Wensel, to the date of any unconditional offer of reinstatement,
by paying to them whatever sum they would have earned as wages during the period.
Backpay shall be computed in accordance with the formula in F. W. Woolworth
Company, 90 NLRB 289, together with interest added thereto at the rate and com-
pounded in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
It has been found that Donald Ellis, Rodney Kromer, and Kenneth Rounsville
were unfair labor practice strikers, who, as of the date of the hearing herein, had not
made application to Respondent for reinstatement to their former position of employ-
ment. But evidence offered and rejected at the hearing as properly cognizable at the
compliance stage of this proceeding suggests Respondent in the spring of 1963, may
have offered them unconditional reinstatement to their former positions of employ-
ment. Thus, to the extent that it has not already done so, it will be recommended
that upon their application Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions of employment dismissing, if
necessary, any individual newly hired by Respondent on or after April 18, 1962; and
make whole said employees for any loss of pay they may suffer by reason of Respond-
ent's refusal, if any, to reinstate them, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages during a period from
5 days after the date of his application to return to work to the date of Respondent's
offer of reinstatement. Backpay shall be computed in accordance with the formula
in F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra.
As Respondent 's operations are seasonal in nature , and Donald Ellis, Rodney
Kromer, or Kenneth Rounsville, as well as Cameron Cotton, Esther Dudley, and
Kenneth Wensel may have been employed on April 18, 1962, in seasonal positions,
accordingly, to the extent that any or all of them were so employed, the offer of
reinstatement to that or those individuals , if required , is to become effective at such
time as the Respondent's next succeeding season begins. No backpay shall be com-
puted for Cotton, Dudley, Ellis, Kromer, Rounsville, or Wensel for any period in
which they normally would not have worked for Respondent, nor shall any sums they
respectively earned elsewhere during such periods be deducted from any backpay
which may be due them, respectively.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail Store Employees Union, Local 345, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All warehouse employees , including shipping, packing, and maintenance em-
ployees and truckdrivers employed by the Respondent at its Dansville, New York,
warehouses , but excluding office clerical employees , professional employees, agri-
cultural laborers, guards, night watchmen, and supervisors as defined in the Act,
constitutes a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. On March 30, 1962, and at all times thereafter, the Union was and has been
the exclusive bargaining representative of all employees in the aforesaid unit for the
purpose of collective bargaining.
5. By failing and refusing at all times since March 30, 1962, to bargain with the
Union as the exclusive bargaining representative of the employees in the above-
described appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
RETAIL CLERKS UNION, LOCAL 7 7 0, AFL-CIO, ETC. 307
7. By discriminating in regard to the hire and tenure of employment of Evelyn
Burrows, Cameron Cotton , Esther Dudley , Leon Lyon , Lester Sleight , David Wenner,
and Kenneth Wensel , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and ( 1) of the Act.
8. The Respondent has not violated Section 8 (a) (3) and ( 1) of the Act as alleged
in the complaint with respect to Donald Ellis , Rodney Kromer , and Kenneth Rouns-
ville , or in any other manner not specifically found herein.
[Recommended Order omitted from publication.]
Retail Clerks Union , Local 770, AFL-CIO, and Retail Clerks
International Association, AFL-CIO and Food Employers
Council, Inc.
Retail Clerks Union , Local 770, AFL-CIO, and Retail Clerks
International Association , AFL-CIO and United States Hard-
ware & Paper Co. and Wesco Merchandise Co. Cases Nos.
01-CC-280 and 21-CC-287. December 9, 1968
SUPPLEMENTAL DECISION AND ORDER
On June 27, 1960, the Board issued its Decision and Order in the
above-entitled case 1 in which it found that Retail Clerks Union,
Local 770, AFL-CIO, referred to herein as Retail Clerks or Local
770, had violated Section 8(b) (4) (A) and (B) of the Act in effect
before the 1959 amendments.'
Thereafter, Local 770 petitioned the United States Court of Appeals
for the District of Columbia to review and set aside the Board's Order,
and the Board filed a cross-petition seeking enforcement of its Order.
On July 6, 1961, the court affirmed, as modified in part, the Board's
finding as to a violation of Section 8(b) (4) (B), set aside the find-
ing as to a violation of Section 8(b) (4) (A), and remanded the case
"for further findings and conclusions with a view to clarification of
the Board's disposition of the matter." 3 On August 23, 1961, the
court denied a petition for rehearing filed by U.S. Hardware and
Wesco, Charging Parties.
Thereafter at the Board's request, the parties filed briefs relating
to the issues presented by the court's remand. The Board also held
oral argument at which all parties appeared and participated.
The Board has considered the entire record in the case, including
the oral argument and briefs on remand, and finds as follows :
1127 NLRB 1522.
2 The language of Section 8(b) (4) (A) which is pertinent in this proceeding now appears
as part of Section 8(b) (4) (B).
s Retail Clerks Union Local 770, Retail Clerks International Association , AFL-CIO
( United States Hardware and Paper Company, at al.) v. N.L.R.B., 296 F. 2d 368 (C.A.D.C.).
145 NLRB No. 33.