Petropoulos Brothers Appliances, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1968

169 N.L.R.B. 1161 (N.L.R.B. 1968)

PETROPOULOS BROTHERS APPLIANCES
Petropoulos Brothers Appliances , Inc. and Retail,
Wholesale and Department Store Union,
AFL-CIO. Cases 13-CA-7428 and 13-CA-7687
February 29, 1968
DECISION AND ORDER
BY MEMBERS BROWN,JENKINS, AND ZAGORIA
On September 11, 1967, Trial Examiner David
Karasick issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclu-
sions, and recommendations, as modified herein.
The Trial Examiner found that Respondent did
not question the Union's majority at the time of the
occurrence of the newspaper advertisement, the
decertification petition, and the employee's state-
ment that only five or six of the workers were in
favor of the Union, or at the meeting on June 27; or
in Respondent's letter of September 28 (we correct
the Trial Examiner's inadvertent misstatement of
this date). However, we note that Anderson, who
represented the Union during the negotiations,
testified without contradiction that Respondent's
attorney at the meeting on June 27 stated that there
was a question whether Respondent should bargain
with the Union in view of the decertification peti-
tion which the employees had circulated. ,
But, in spite of this statement, Respondent did
bargain with the Union at the June 27 meeting.
And, after the Union's telegram of September 23,
in which the Union stated it was willing to accept
the contract offer made at the June 27 meeting,
Respondent's attorney in its September 28 answer
to the Union' did not raise a question of majority. In
fact, Respondent's attorney in his September 28
letter advised he would confer with Respondent's
president upon'' his return from out of town after Oc-
tober 6, and would contact the Union regarding the
matters set forth in its telegram as soon as possible
thereafter. On December 5, the Union attempted
1161
to contact Respondent's attorney by phone and was
advised by his secretary that he was out of town
until December 8. On December 8, the Union's
representative again telephoned Respondent's at-
torney. At this time he advised the Union that
Respondent had filed an "RM" petition and would
no longer meet with the Union as the bargaining
representative of its employees.
In agreeing with the Trial Examiner's finding that
Respondent did not have a good-faith doubt of the
union majority, we think it significant that after the
Union on September 23 agreed to accept Respond-
ent's contract offer, Respondent did not raise a
question of majority but rather advised that it would
get in touch with the Union as soon as possible. We
note further that Respondent made no effort,
thereafter, to contact the Union.
THE REMEDY
We find merit in the General Counsel's request
that the remedy, in addition to the provisions set
forth by the Trial Examiner, should also include the
requirement that Respondent make whole em-
ployees Howard Leedle and George Willings for
the wages they lost as a result of being laid off on
May 16, 1966. Accordingly, having found that
Respondent discriminatorily laid off Howard Lee-
dle and George Willings on May 16, 1966, we shall
order that Respondent make them whole for any
loss of earnings they may have suffered as a result
of the discrimination against them. Backpay shall be
based upon the earnings which these employees
would normally have received during the applicable
period, less any net earnings during said period, and
shall be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, and shall include the payment of in-
terest at the rate of 6 percent per annum, to be com-
puted in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Petropoulos Brothers Appliances, Inc., Gurnee, Ill-
inois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge if they
engage in union solicitation or activities during non-
working time on the Respondent's premises other
than selling areas.
(b) Prohibiting its employees from talking to
their fellow employees about any labor organization
or about their wages or other conditions of employ-
ment during nonworking time on the Respondent's
premises other than selling areas.
169 NLRB No. 160
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Coercively interrogating employees about
their views regarding Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor
organization.
(d) Promising or leading employees to believe
that it will grant wage increases or other employee
benefits if they reject the Union.
(e) Discouraging membership in, and activities
on behalf of, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor or-
ganization of their employees, by laying off any em-
ployee, or in any other manner discriminating
against them in regard to their hire or tenure of em-
ployment or any terms or conditions of employ-
ment.
(f) Refusing to bargain in good faith with Retail,
Wholesale and Department Store Union,
AFL-CIO, as the authorized bargaining represent-
ative of its employees in the unit found appropriate.
(g) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form, join, or
assist Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging
in any or all such activities, except to the extent that
such rights may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Make whole, in the manner set forth in "The
Remedy" herein, Howard Leedle and George
Willings for any loss of earnings they may have suf-
fered as a result of the discrimination against them.
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records,. timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Recognize and, upon request, bargain collec-
tively with Retail , Wholesale and Department Store
Union, AFL-CIO, as the authorized bargaining
representative of the employees in the unit found
appropriate with respect to wages, rates of pay,
hours of employment, and other terms and condi-
tions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
(d) Post at its places of business in Gurnee, Il-
linois , and in Fox Lake, Illinois , if the latter is then
in. operation, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 13, after
being duly signed by an authorized representative
of the Respondent, shall be posted by the Respond-
ent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 13,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
' In the event that 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 En-
forcing an Order."
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 threaten employees with
discharge if they engage in union solicitation or
activities during nonworking time on our
premises other than selling areas.
WE WILL NOT prohibit our employees from
talking to their fellow employees about any
labor organization or about their wages or
other conditions of employment during non-
working time on our premises other than selling
areas.
WE WILL NOT coercively question em-
ployees about their views regarding Retail,
Wholesale and Department Store Union,
AFL-CIO, or any other labor organization.
WE WILL NOT promise or lead employees to
believe that we will grant wage increases or
other employee benefits if they reject the
Union.
WE WILL NOT discourage membership in,
and activities on behalf of, Retail, Wholesale
and Department Store Union, AFL-CIO, or
any other labor organization of our employees,
by laying off any employees, or in any other
manner discriminating against them in regard
to their hire or tenure of employment or any
terms or conditions of employment.
WE WILL recognize, and, upon request, will
bargain with Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, as the exclu-
sive, authorized representative of our em-
ployees in the appropriate unit, with respect to
wages, rates of pay, hours of employment, and
PETROPOULOS BROTHERS APPLIANCES
other terms and conditions of employment, and
WE WILL reduce to a signed agreement any un-
derstanding reached as a result of such bargain-
ing. The bargaining unit is:
All service, clerical, and sales em-
ployees at the Employer's Gurnee and
Fox Lake, Illinois, stores, excluding all
temporary employees and part-time em-
ployees, guards, confidential employees,
professional employees, foremen,
managers, and supervisors as defined in
the Act.
WE WILL make whole Howard Leedle and
George Willings for any loss of pay suffered by
their layoffs.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to form,
join, or assist the above-named Union or any
other labor organization, to bargain collectively
through representatives of their own choosing,
to engage in concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection, or to refrain from engaging in
any or all such activities, except to the extent
that such rights may be affected by an agree-
ment requiring membership in a labor organiza-
tion as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
PETROPOULOS BROTHERS
APPLIANCES, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 881 U.S. Courthouse and Federal Office
Building, 219 South Dearborn Street, Chicago, Il-
linois 60604, Telephone 353-7570.
1163
(herein called the Union) alleges that Petropoulos
Brothers Appliances, Inc. (herein called the Respondent),
had engaged in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) of the Act.
Upon the entire record in these proceedings, including
briefs filed by the Respondent and the General Counsel,
and from my observation of the demeanor of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE RESPONDENT
The Respondent, an Illinois corporation with its prin-
cipal office located in Gurnee, Illinois, and places of busi-
ness located in Gurnee and Fox Lake,' Illinois, is en-
gaged in the business of retail sales and servicing of elec-
tric appliances. In the course of its business operations,
the annual inflow of goods shipped to the Respondent
directly from points outside the State of Illinois is in ex-
cess of $50,000 and its annual retail sales exceed
$500,000. The consolidated complaint alleges, and the
answer admits, that the Respondent is engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Issues
The principal issues in these proceedings are:
(1) Whether the Respondent engaged in independent
unfair labor practices following approval by the Regional
Director on December 2, 1966, of a settlement agree-
ment in Case 13-CA-7428.
(2) Whether the Respondent violated Section 8(a)(5)
of the Act on and after September 28, 1966, and on
December 8, 1966.
(3) Whether the layoff of Howard Leedle and George
Willings on May 16, 1966, violated Section 8(a)(3) of the
Act.
(4) Whether the Respondent, during the month of
February 1966 violated Section 8(a)(1) of the Act by un-
lawful promises of benefits, interrogation, and threats of
discharge.
B. The Facts
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID KARASICK, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act
(herein called the Act) was heard in Chicago, Illinois, on
June 8, 9, and 12, 1967, pursuant to due notice. The con-
solidated complaint, dated April 4, 1967, based upon a
charge and amended charge in Case 13-CA-7428 and a
charge in Case 13-CA-7687, filed on April 19, July 14,
and December 15, 1966, respectively, by Retail,
Wholesale and Department Store Union, AFL-CIO
1. The prior Board proceedings
As noted by the Board in a previous decision involving
the parties in this case,2 the Union's attempt to represent
the Respondent's employees began on December 9,
1964, when it served on the Respondent a written de-
mand for recognition. On that date the Union represented
14 of the 27 employees in the unit. On the same day, the
Union filed a petition with the Board seeking an election.
I At the time of the hearing, the Respondent had ceased doing business
at the Fox Lake store.
2 Petropoulos Brothers Appliances, Inc., 154 NLRB 1655
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An election was held on January 22, 1965, which the
Union lost and to which it filed timely objections. In its
decision , the Board found that, after the Union had
requested recognition , the Respondent engaged in unfair
labor practices consisting of threatening employees, inter-
rogating them, and granting them benefits. The Board
further found that the Respondent's refusal to bargain
with the Union following its request for recognition was
not based on any doubt as to the validity of the Union's
majority and, in light of the Respondent 's subsequent un-
fair labor practices, was for the purpose of gaining time to
undermine the Union's support. Accordingly, the Board
dismissed the petition in the election case, vacated those
proceedings , and issued an order directing the Respond-
ent to bargain , upon request, with the Union. The
Board ' s Decision and Order was issued on September
27, 1965.
On November 17, 1965, the Respondent notified the
Regional Office of the Board in Chicago that it would
comply with the Order of the Board and was willing to
meet and negotiate with the Union. Thereafter, between
January 4, 1966, and June 27, 1966,3 the parties held ap-
proximately 14 bargaining sessions.
2. The settlement agreement in Case 13-CA-7428
On April 19, the Union filed a charge in Case
13-CA-7428 in which it alleged that the Respondent had
violated Section 8(a)(1), (3), and (5) of the Act.4 On Sep-
tember 7, the Regional Director dismissed so much of the
charge as alleged a violation of Section 8(a)(5) of the Act
on the ground that from his investigation it appeared that
the Respondent had not refused to bargain in good faith
by sponsoring a decertification petition or an advertise-
ment in the local paper urging employees to cross the
Union's picket line; and that, in addition, the Respondent
had not withdrawn contract terms previously agreed upon
between the parties, although it had withdrawn its offer of
a modified union shop when that term had not been
agreed to by the Union.
On October 17, the Regional Director issued a com-
plaint, based upon the remaining allegations of the charge
and amended charge , alleging violations of Section 8(a)(1)
and (3) of the Act. On December 2, the Regional
Director approved a settlement agreement with respect
to the matters alleged in the complaint . On December 6,
the Respondent filed a representation petition seeking an
election. On December 14, the Union filed a charge in
Case 13-CA-7687 in which it alleged that the Respond-
ent had failed and refused to bargain on and after Sep-
tember 27.
In a letter dated April 4, 1967, the Regional Director
informed the Respondent that he was withdrawing his ap-
proval of the settlement agreement in Case 13-CA-7428
because his investigation revealed that the Respondent,
following execution of the settlement , had committed in-
dependent unfair labor practices in violation of the agree-
ment and , in addition , events subsequent to the execution
of the agreement had demonstrated that the efforts at ad-
justment had failed to accomplish their purpose. On the
same day , the Regional Director consolidated Cases
13-CA-7428 and 7687 and issued the consolidated com-
plaint in these proceedings.
The Respondent contends : ( 1) that evidence of events
preceding the date of the settlement agreement in Case
13-CA-7428 cannot provide the basis for a finding that
the Respondent violated the Act; and (2) that even if such
evidence were permissible , the General Counsel failed to
establish that the Respondent had violated the Act. In es-
sence , the Respondent 's argument is predicated on
ground that the allegations as to refusal to bargain con-
tained in the charge and amended charge in Case
13-CA-7428 were dismissed by the Regional Director
on September 7; that the alleged violations of Section
8(a)(3) and ( 1) now included in the consolidated com-
plaint were the subject of the settlement agreement ap-
proved by the Regional Director on December 2; and
that the General Counsel concedes that there was no
violation of the terms of the settlement agreement with
respect to the averments of Section 8(a)(1) and (3) which
were involved.
I cannot agree with the Respondent 's position. I am of
the opinion that the alleged refusals to bargain on Sep-
tember 28 and December 8, as set forth in the con-
solidated complaint , are not matters which were covered
in the settlement agreement , and may be considered
without regard to that agreement.5 Even if one were to
take the view that the alleged refusal to bargain on Sep-
tember 28 was covered by the terms of the settlement
agreement, evidence as to that incident nevertheless
could be considered as background for the purpose of illu-
minating and explaining the Respondent 's conduct which
occurred thereafter on December 8, when it admittedly
withdrew recognition from the Union .6 For the reasons
hereafter stated , I have concluded that the Respondent
has violated the settlement agreement of December 2,
1966, and I have therefore considered both the presettle-
ment and postsettlement conduct of the Respondent in ar-
riving at a determination whether the allegations of the
consolidated complaint have been sustained.
3. The conduct of Nick Petropoulos in February 1966
On February 3, 1966, Howard Leedle, a member of
the bargaining committee of the Union, received a list of
the job classifications and salaries of the Respondent's
employees. On examining the document, Leedle noticed
that Bill Anthony, who, like Leedle, was a deliveryman
and who had worked for the Respondent 2 years longer
than Leedle, was receiving $10 a week less than Leedle
was being paid. Anthony was one of the employees who
was opposed to the Union. On February 7, Leedle at-
tempted to induce Anthony to support the Union but
Anthony refused by saying that he did not wish to be
9 All dates hereafter refer to 1966 unless otherwise indicated.
" More specifically, the charge alleged that the Respondent had refused
to bargain in good faith by attempting to induce employees individually to
refrain from supporting the economic demands presented by the Union;
by refusing to submit counterproposals as promised to the Union; and by
refusing to discuss grievances submitted by the Union. In addition, the
charge alleged that the Respondent had violated Section 8 (a)(3) of the Act
by discharging one Raymond Myer on April 13, 1966. This charge was
amended on July 13, 1966, to allege, in addition to the averments con-
tained in the original charge, that the Respondent had unlawfully laid off
Howard Leedle and George Willings on May 16, 1966; that it had at-
tempted to bargain directly with the employees during the week of May
25; that on June 27 it had circulated and solicited its employees to sign a
decertification petition ; and that on June 21 and 27 the Respondent had
withdrawn contract offers which had previously been agreed to by the
parties.
S Wallace Corporation v. N.L.R.B., 323 U.S. 248.
6 Northern California District Council of Hodcarriers and Common
Laborers of America, AFL-CIO (Joseph 's Landscaping Service), 154
NLRB 1384.
PETROPOULOS BROTHERS APPLIANCES 1165
mixed up in it. Leedle responded that Anthony should be
a union supporter since he had worked for the Respond-
ent 2 years longer than Leedle but was being paid $10 a
week less. Shortly after this conversation, Anthony con-
fronted Nick Petropoulos, president of the Respondent,
with the information which he had secured from Leedle
and asked Petropoulos, "How come Howard [Leedle] is
getting more money than I am?"
On February 8, the day after he had spoken to
Anthony, Leedle was not at work. When he returned to
work on the morning of February 9, however, Leedle was
called into the office of Nick Petropoulos. Petropoulos
told Leedle that he understood that Leedle was "talking
wages and talking about the Union around here." He con-
tinued by saying that he did not want any more of that
going on around the store. Petropoulos also said: "You
don't think I can fire you, do you, Howie?" Leedle
replied that he knew that the Respondent could discharge
him, that it could always find a reason to get rid of
someone if it wanted to badly enough. Petropoulos
agreed. In addition, Petropoulos stated that he would
have no more recruiting on the premises or union talk
around the store and that if he ever heard of it again that
Leedle would be discharged.7
On an undisclosed date in February, Leedle and
George Willings were delivering appliances to a retail
store which the Respondent then operated in Fox Lake,
Illinois. While Willings was engaged in his work, Nick
Petropoulos approached him and, in the presence of Store
Manager Patterson, asked Willings how the latter felt
about the Union. When Willings replied that he had not
thought too much about it, Petropoulos answered: "You
better, because it will cost you about $100 a year for fees
and dues." Petropoulos then patted Willings' shoulder,
said that he liked Willings and his work, and further stated
that after all of this was over with he would take care of
Willings.$
4. The layoff of Leedle and Willings
On May 5, the Union instituted picketing of the
Respondent's retail store. Some of the employees who
were adherents of the Union, including Howard Leedle
and George Willings, picketed at times when they were
not working. On Sunday evening, May 15, the Respond-
ent notified Leedle and Willings that they were not to re-
port to work on the following day because there was not
enough work for them to do. Leedle and Willings, who
was his helper, were one of the two delivery crews em-
ployed by the Respondent. The other delivery crew was
composed of Arnold Trustheim and Bill Anthony.
Willings and Leedle regularly made deliveries in town
7 The foregoing findings are based upon the testimony of Leedle Ac-
cording to Petropoulos, the conversation with Leedle occurred a week or
two after Anthony had confronted Petropoulos with the difference
between his wages and those of Leedle's and also a week or two after a
customer of the Respondent had approached Petropoulos in a restaurant
one morning and told him that two of the Respondent's employees who
had delivered a television set to the customer 's home had engaged in a
conversation regarding union activities and had made reference to the fact
that one of the Respondent's employees was being paid only $60 a week.
No showing was made that Leedle was one of the employees to whom the
customer had made reference According to Petropoulos' version, the first
thing he told Leedle was that be had been hearing a lot of talk of Leedle
bothering other employees on company time, that Petropoulos did not
want any more talk going on around the store and did not want other em-
ployees bothered on company time; that he could discharge Leedle even
if the latter was on the negotiating team because Leedle was talking on
company time and in customers' homes; that what Leedle did after work-
ing hours was his own business; that this was final; that Petropoulos did
not want to hear about it again; and that if Petropoulos heard that this oc-
curred one more time Leedle would be discharged Leedle denied that on
this occasion Petropoulos mentioned the matter of talking about the
Union while in customers ' homes and he testified without contradiction
that Petropoulos had made such a statement at a meeting attended by all
the employees. Having originally testified that he had told Leedle that he
could be discharged even though he was on the negotiating committee,
Petropoulos on cross-examination denied that the negotiating committee
was mentioned during this conversation and also denied that any mention
was made of the Union. Immediately thereafter, however, he testified that
what he told Leedle on this occasion was that he could discharge him even
though he belonged to a union or no union Petropoulos further testified
that by had been told by Anthony that Leedle "kept bugging him all the
time about , Joining the Union and the picketing line" But when he was
questionedfurther and it was pointed out that the picketing had not begun
until May, be then testified' "I didn't say the picket line 1 said joining the
union " Based upon these and other contradictions in his testimony, my
observation of his demeanor as a witness and the fact that I find it difficult
to believe that he 'would have waited a week or two after his conversation
with Anthony and the information purportedly related to him by one of his
customers before speaking to Leedle, I do not credit his testimony and
find that the conversation occurred in the manner testified to by Leedle as
above set forth. The Respondent contends that Leedle is not a reliable
witness and points to certain alleged discrepancies in his testimony. I have
examined each of these and in addition I have considered the fact that on
cross-examination Leedle admitted that in November 1965, during a con-
versation with Gust Petropoulos , Leedle stated that he had received a
subpena to testify in this case , that he could hardly afford to take off time
from the job at which he was then working , having left the Respondent's
employment in June; that he did not want to be involved in the matter any
further; and that if he was compelled to come in and testify he would "just
tell them that I told a he, to get out from under it. But it don 't work out that
way." Leedle 's admission of his reluctance to become involved , his threat
to testify falsely , and his conclusion as to the futility of his threat has im-
pelled me to analyze his testimony with more than usual care . Both from
his testimony as a whole and his demeanor as a witness while testifying, I
am convinced that he was a credible witness.
8 The foregoing findings are based upon the testimony of Willings. Ac-
cording to Nick Petropoulos the conversation occurred in April rather
than in February According to Petropoulos' version he asked Willings.
"What do you think of all this mess?"; that Willings replied that he didn't
like it and wanted no part of it and was not in favor of the Union anyhow
and that Petropoulos responded by saying. "Well, I know, Tex [Willings'
nickname], you have had a raise coming for a long time but during
negotiations my hands are tied I can't give you a raise or anybody else a
raise in the firm " At that point, Petropoulos testified, the conversation
ceased because Leedle was coming out of the store again. Petropoulos de-
nied that at any time during this conversation he had told Willings that he
would give him a raise if he abandoned his union activities . When asked to
what he referred when he questioned Willings as to "this mess," since
Petropoulos had testified that the conversation and question occurred in
April which was before the picketing began, he further testified by way of
explanation that during the last negotiating session in April one of the
union officials had said that picketing would begin by Monday or Tuesday
and that everybody around the store knew about it The record shows,
however, that the last negotiating meeting of the parties in April was on
the 18th of that month and that picketing did not actually begin until May
5 which fell on a Thursday. The record further shows that the picketing
ended on June 10 and that Leedle's wages were increased from $74 to $90
per week on July 22. 1 do not understand why Petropoulos felt that he was
impelled to abruptly cease his conversation with Willings at the point that
he was saying that he could not give any of the employees a wage increase
while negotiations were going on merely because Leedle was approaching
them. The fact that Leedle was a member of the negotiating committee of
the Union would not explain why Petropoulos should have been hesitant
to make such a statement in his presence. I am not convinced that the con-
versation occurred in the manner related by Nick Petropoulos . For the
foregoing reasons and for the reasons previously related with respect to
his testimony , I do not credit Nick Petropoulos' version of the conversa-
tion in question and find that it occurred in the manner related by Willings
as above set forth
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while Anthony and Trustheim normally delivered ap-
pliances outside of town in the county area.
On May 16, Jerry Velas4uez, a serviceman, and
Danny Mateja, a part-time employee, made two delivery
trips on each of which they transported three appliances.
Leedle testified without denial that Velasquez told him
that each of these deliveries had been made in town.9 In
addition to the six appliances which were handled by
Velasquez and Mateja, the delivery crew composed of
Anthony and Trustheim made 12 deliveries. 10
On the afternoon of May 16, Leedle and Willings ap-
peared in front of the Respondent's store for the purpose
of walking the picket line. There they met two representa-
tives of the Union. They told the two union representa-
tives that they had been laid off and the latter suggested
that the four of them go at once to the office of the
Respondent to find out whether the layoff was to be per-
manent or temporary. The four men then went to the of-
fice where they met with Gust Petropoulos. The latter
stated that as far as he was concerned Leedle and
Willings could come back to work on Wednesday." One
of the union representatives asked Petropoulos, "If there
wasn 't enough deliveries , how come you took two other
men off their jobs to get the deliveries out?" The record
fails to show what answer, if any, Petropoulos made to
this question but he did state during the course of the con-
versation, according to the undenied testimony of Leedle,
that if the picketing went on for another 5 years, he would
still be in business ; that if he had to put the deliveries out
himself, he would do it; and that Leedle and Willings
could return to work Wednesday but there was no
guarantee there would be work for them the following
week as long as the picketing continued. 12
5. The bargaining negotiations
Between January 4 and June 27, 1966, the Respondent
and the Union held 14 bargaining sessions but failed to ar-
rive at any agreement. At the meeting on June 27, the
Respondent was represented by its attorney, Richard
Marcus, and Nick Petropoulos and Gust Petropoulos,
president and vice president, respectively. The Union
was represented by Henry B. Anderson, president of the
Chicago Joint Board; Manuel Galladora, a staff represen-
tative; Pat Isam, a representative of the AFL-CIO; and
Ray Boatman, George Commons and Lowell Murrie,
three of the members of the negotiating committee. In ad-
dition, the meeting was attended by Sam Masa, a concilia-
tor for the Federal Mediation and Conciliation Service.
The Respondent stated that it had made its final offer at
a meeting between the parties which had occurred on
June 21 and that there was no change in its position. The
Union requested a redraft of the contract for the purpose
of enabling it to review the Respondent's offer and then
hold another meeting . The Respondent refused to agree.
Nick Petropoulos stated that there would be no more
meetings ; that he was going to be out of town until Au-
gust; that Marcus had authority to bargain during his
absence but that as far as he was concerned the Union
had been presented with the Respondent's offer and it
would not be changed. The meeting ended without any
agreement being reached.13
On July 13, 1966, the Union filed a first amended
charge in Case 13-CA-7428 which alleged , inter alia,
that the Respondent had, by various acts, refused to bar-
gain on March 17, May 25, June 21 and 27, 1966. With
respect to the latter date, the first amended charge alleged
0 Velasquez testified that his regular duties were those of a repairman
but that he also delivered appliances on days the regular deliverymen were
off or if emergency deliveries were required where a promise had been
made to a customer that delivery would be made that day. Velasquez
further testified that he spent the morning of May 16 unloading new ap-
pliances from trucks which had arrived at the Respondent 's store, work
which normally is done by the deliverymen or warehousemen; that the af-
ternoon was spent in delivering appliances ; that he had quite a few ap-
pliances in the shop to repair at that time ; that he did not do any repair
work that day and as far as he knew no one else did ; and that Anthony and
Trusteim , the other two delivery drivers, also delivered appliances that
day. Although he testified that he did no repair work on May 16, the
Respondent introduced a worksheet for Velasquez for that day which
contained notations to the effect that Velasquez had performed repair
work from 8 until approximately 10:35 a.m .; that thereafter he worked in
the warehouse until 11 : 30; that he had lunch from 11:30 until 12:30; and
that he did further repair work from 12:30 until 1 :30, after which time he
was engaged in making deliveries for the balance of the afternoon. Gust
Petropoulos , who identified the document in question , testified that such
work records were made out by the service manager but as a rule the ser-
viceman himself was responsible for them as well . No evidence was in-
troduced to show who actually made out the record in question . The bur-
den of going forward with evidence sufficient to establish the adequacy
and reliability of the work record rested upon the Respondent since the
document was introduced by it as part of its affirmative defense. The
document was not shown to Velasquez at the time he appeared as a wit-
ness nor was the service manager called to explain when the work record
was prepared , who prepared it, or from what source the information as to
its contents was secured. On this state of the record , to the extent that the
testimony of Velasquez and the notations on the worksheet are in conflict,
I am inclined to rely on Velasquez' testimony . Accordingly , I find, as he
testified , that he did not perform any repair work on May 16, although
such work was waiting to be done . Even if the contrary were true, how-
ever, my ultimate conclusion with respect to the validity of the layoff of
Leedle and Willings , as noted hereafter , would remain the same.
10 The Respondent introduced in evidence the route sheet of Anthony.
Gust Petropoulos testified on direct examination that the route sheet in
question showed that Anthony and Trustheim had made nine deliveries on
May 16 . On cross-examination, however, he admitted that the route sheet
showed that there were 12 deliveries which included 2 pickups and I
repair and that I of the deliveries involved 2 appliances . He further ad-
mitted that the delivery sheet showed that the crew headed by Anthony,
which normally made only county deliveries , made at least one delivery in
town . When questioned further about the matter , he was unable to identify
whether 5 of the remaining 11 stops listed on the route sheet were within
the town area or the county area.
11 This would be the next workday for the two employees since their
regular day off was on Tuesday.
12 The foregoing findings are based upon the testimony of Leedle. Gust
Petropoulos ' recounting of the conversation in question is substantially
the same. He testified that he had stated that the two men were not laid off
permanently and that they could return to work on Wednesday. He ad-
mitted that during the course of the conversation he had stated that he
could not guarantee how long the men were going to work once they had
returned because if deliveries were slow there would be no work and he
further admitted having said that he would get out the deliveries himself if
he had to do so. He did not otherwise deny Leedle's testimony regarding
the conversation . Accordingly, I find that the conversation in question oc-
curred in the manner Leedle testified as above set forth.
13 The foregoing is a recounting in substance of Anderson 's testimony.
Marcus, who appeared as a witness on behalf of the Respondent , testified
that the latter was available for a further meeting and that he had not in-
dicated that he would not meet during the summer . From an analysis of all
of the testimony regarding the meeting , I am convinced that a fair con-
struction of the evidence leads to the conclusion that the Respondent
made it clear that Marcus had authority to carry on negotiations during the
absence of Nck Petropoulos but that both he and Marcus rejected as use-
less Anderson 's request that he be provided with a redraft of the contract
and that another meeting be held to review the matter.
PETROPOULOS BROTHERS APPLIANCES
that the Respondent had withdrawn contract offers which
had previously been agreed to by the parties. On Sep-
tember 7, 1966, the Regional Director dismissed the al-
legations of refusal to bargain which had been so filed by
the Union.
On September 23,, 1966, the Union sent the following
telegram to the Respondent:
ON THE BASIS OF YOUR STATEMENT TO THE NLRB
THAT YOU ARE WILLING TO ENTER INTO A CONTRACT
WITH THE PROVISIONS AS CONTAINED IN YOUR
STATEMENTS TO THE NLRB AND AS OFFERED AT OUR
NEGOTIATING MEETING ON JUNE 27, 1966, OUR
CHARGES AGAINST YOU RE: REFUSAL TO BARGAIN
WERE DISMISSED BY THE NLRB. ON BEHALF OF
RWDSU-AFL-CIO WE HEREBY INFORM YOU THAT WE
STAND READY TO ACCEPT YOUR CONTRACT OFFER
CONTAINING PROPOSALS AS OFFERED BY YOU AT
SAID MEETING ON JUNE 27, 1966. PLEASE SEND US A
COMPLETE COPY OF YOUR CONTRACT OFFER AND
PLEASE INFORM US NO LATER THAN MONDAY SEP-
TEMBER 26, 1966, AS TO A CONVENIENT DATE AND
TIME WHEREBY BOTH PARTIES MAY APPEAR TO SIGN
THE CONTRACT.
On September 28, 1966, Marcus sent the following
letter to the Union:
Due to'the fact that Mr. Nick Petropoulos is cur-
rently out of town, your telegram to him has been
referred by his office to the undersigned.
I have been advised that Mr. Petropoulos will not
return to the city until after October 6, 1966. Ac-
cordingly, I shall confer with him upon his return and
contact you regarding the matters set forth in your
telegram as soon as possible thereafter.
Having heard no further from the Respondent follow-
ing receipt, of Marcus' letter of September 28, Anderson
called Marcus on December 5,14 was advised that the
latter was out of town, and requested that Marcus call
when he leturned. On December 8, Anderson called
Marcus again. On this occasion Marcus told Anderson
that the Respondent had filed a petition for an election
with the Bbard;15 that it was taking the position that the
Union did not represent the employees; and that the
Respondent could no longer meet with the Union.
Thereafter, on December 14, 1966, the Union filed a
charge in Case 13-CA-7687, alleging that the Respond-
ent had unlawfully refused to bargain on and after Sep-
tember 27,' 1966.
C. Discussion of the Issues and Concluding Findings
1. The bargaining allegations
a. The appropriate unit
There is no dispute that all service, clerical , and sales
employees at the Respondent's Gurnee and Fox Lake, Il-
linois, stores, excluding all temporary employees and
part-time employees , guards, confidential employees,
14 Anderson testified that on a couple of occasions between September
28 and December 5 he had called Marcus but was told that he was out of
town. The record is silent as to the dates upon which these calls were
made or whether Anderson left a message on each occasion requesting
that Marcus return the call
1s The petition to which Marcus referred hadibeen filed on December 6.
s Poole Foundry and Machine Company, 95 NLRB 34, 36, enfd. 192
F.2d 740 (C.A. 4), cert. denied 342 U.S. 954; N. J. MacDonald & Sons,
1167
professional employees, foremen, managers, and super-
visors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
b. The alleged refusals to bargain and the Union's
majority
Where the Board has issued an order, as in this case,
requiring an employer to bargain, the sanctions of such an
order continue for a reasonable period of time
thereafter.", The General Counsel asserts that the
Board's order directing the Respondent to bargain in
these proceedings has not been remedied. It is his conten-
tion that although the parties met for a total of 14 bargain-
ing sessions between January 4 and June 27 a reasonable
period of time did not elapse in which the bargaining rela-
tionship was given a "fair chance to succeed" 17 because
during that period the Respondent engaged in simultane-
ous unfair labor practices.
The Respondent, on the other hand, argues that: (1) it
has not failed in its duty to bargain as required by the Act
since the Union never requested bargaining between June
27 and December 8, 1966; and (2) the Respondent was
justified in withdrawing recognition from the Union
because it had a reasonable basis for doubting that the
Union any longer represented a majority.
The first of these assertions is based on the premise
that the Union's demand of September 23 was for the
sole purpose of signing a contract based upon the
Respondent's prior final offer; that the parties had not at
that time reached full agreement even though the Union
erroneously was of that impression18 since exact wages
of specific employees (rather than general wage rates and
other matters) were not fully resolved; and that the
Respondent was under no duty to proceed beyond this
since the Union made no further request for bargaining at
that juncture.
What the Union was saying to the Employer in its tele-
gram of September 23 was that it was willing to accept
what the Respondent had last offered to it. That fact
remains unchanged no matter what term the Union may
have used to describe the effect of its acceptance. And
the fact that Anderson may have erroneously believed
that acceptance of the Respondent's offer constituted a
final agreement, even though the exact wages of the
specific employees in the unit and other matters were not
then fully resolved, does not alter this conclusion. If
further bargaining was required in the Respondent's
opinion, it was obligated to say so; if it was not, it was
obligated to meet with the Union, as the latter had
requested, and sign a written memorial of the agreement.
If, as the Respondent says, it believed that the Union was
in error in thinking that a binding agreement had been
achieved, its duty to bargain in good faith required that it
so inform the Union and thus afford the latter an opportu-
nity to change its position, if it so desired. Instead, as
Marcus' letter of September 28 indicated, the Respond-
Inc., 155 NLRB 67, 71.
" Franks Bros Company V. N.L.R.B., 321 U.S 702, 705.
Is At least Nick Petropoulos shared this view with the Union for he
testified that on June 27 the Respondent "had offered them a final con-
tract." Nevertheless, the Respondent contended at the hearing, and the
General Counsel conceded, that Anderson erroneously believed that the
Union's acceptance of the Respondent's last proposal in itself constituted
a contract and I accept this view of the evidence.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent led the Union to believe that the latter 's acceptance
of the Respondent ' s offer was being taken under con-
sideration and that the Union would thereafter receive a
reply. But no reply was made during a period of 2-1/2
months and then only after the Union pressed for an
answer. In view of these facts, I cannot agree that the
Union did not request the Respondent to bargain between
June 27 and December 8 nor can I regard the Respond-
ent's conduct on and after September 28 as consonant
with its duty to bargain in good faith.
The second assertion of the Respondent is that it had
reasonable grounds for doubting the majority status of the
Union on December 8 because certain incidents oc-
curred which indicated disaffection from, or opposition
to, the Union on the part of the employees . These in-
cidents , the Respondent contends , were: a newspaper ad-
vertisement which appeared on May 23, signed by a
majority of the employees in the unit, urging that the
Union's picket line be ignored ; a decertification petition
containing the names of approximately 15 employees
which was shown to Marcus by one of the employees on
June 21 ; 19 a change in the composition of the union
negotiating committee , three of whose five members quit
the Respondent 's employment in June, July, and August
while a fourth was promoted to a supervisory position in
December ; a statement made to Nick Petropoulos in
May by one of the employees who declared that only 5 or
6 of the workers were in favor of the Union while 25 or 26
were against it; and the Union 's failure to request the
Respondent to bargain from June 27 to December 8.
As to the last of these matters upon which the Respond-
ent relies , the evidence fails to support its position. I be-
lieve that a reasonable construction of the facts in this
record impels the conclusion that the Union 's telegram of
September 23, which accepted the Respondent's final
offer, constituted a request to bargain for the reasons
previously stated . The newspaper advertisement, the
decertification petition , and the employee 's statement to
Nick Petropoulos all were incidents which occurred in
May or June ; yet the Respondent raised no question as to
the Union ' s majority at the time of their occurrence, or at
the time it made what it termed its final offer on June 27,
or on October 8 when Marcus responded to the Union's
telegram of September 23.20 Between June 27 and
December 8, the only additional matter upon which the
Respondent contends it relied was the change in composi-
tion of the negotiating committee . Such an occurrence
can hardly be regarded as an objective criterion upon
which to base a reasonable and good-faith doubt of the
Union 's majority . On this record , I cannot conclude that
the Respondent entertained a good -faith doubt as to the
Unitn's majority.
Absent reliable evidence upon which a reasonable
doubt as to the Union ' s majority may be entertained, its
majority status as found by the Board in its decision on
September 27, 1965,21 is presumed to continue. Ac-
cordingly , I find that on September 27, 1965, and at all
times thereafter , including December 8, 1966, the Union
represented a majority of the employees in the unit
heretofore found to be appropriate.22
The final question remains whether a reasonable period
of time elapsed during which bargaining was given a fair
opportunity to succeed from the date of the Board's
Order of September 27, 1965, to the date of the Respond-
ent's refusal to bargain on December 8, 1966 . Over a 6-
month period , the parties held 14 bargaining sessions, the
last of which occurred on June 27 . This alone is impres-
sive but not conclusive . The parties here were bargaining
for a first contract with all the special difficulties com-
monly encountered in such a situation . They therefore
could not draw upon a reservior of experience and
familiarity derived from an established bargaining rela-
tionship which had existed over a period of years.13 The
Respondent argues that the Union made no request to
bargain between June 27 and December 8, thus implying
that the Union was sleeping on its rights . The evidence,
however, leads me to a different conclusion . Following
the failure of the parties to agree on June 27, the Union
filed a charge alleging , among other matters , that the
Respondent had unlawfully refused to bargain on that
date. This allegation was dismissed by the Regional
Director on September 7. On September 23 the Union
informed the Rspondent that it would accept its last offer.
Thereafter , the delay of 2-1/2 months until December 8
was attributable to the Respondent 's failure to respond,
despite its promise to make its position known during the
interim. In light of these facts , I cannot agree that the
Union had failed to pursue its bargaining objective or that
the bargaining process was given a fair opportunity to
succeed . Under these circumstances , a reasonable period
of time could not be regarded as having elapsed when the
Respondent withdrew its recognition of the Union on
December 8 nor could such a period of time be presumed
to have elapsed on September 23 when the Union offered
to accept the Respondent 's last proposal . On neither of
those dates had an impasse in bargaining occurred nor did
the sequence of events establish a reasonable basis for
doubting the Union ' s majority. Instead , it is reasonable to
conclude that the Respondent delayed giving a final
answer to the Union 's telegram of September 23, not
because it believed that no full agreement had been
reached , or that the parties had arrived at an impasse, or
because the Union had lost its majority, but rather
because it wished the delay for the purpose of later assert-
ing that it was warranted in withdrawing recognition. Ac-
cordingly , I find that the Respondent refused to bargain
in good faith by failing to respond , on and after September
28, 1966, to the Union 's proposal and by withdrawing
recognition from the Union on December 8, 1966, and
that it thereby violated Section 8(a)(5) and (1) of the
19 No showing was made that this petition was ever filed with the Board
or what action was ultimately taken with respect to it.
20 Notwithstanding the fact that at the meeting on June 27 , both Marcus
and Nick Petropoulos expressed doubt as to the Union's majority, the
former referring to the fact that the employees had voted against the
Union in the election and had circulated a decertification petition and the
latter stating that the only members of the Union then remaining were the
three individuals on the negotiating committee who were then present, the
Respondent at that time nevertheless continued to recognize and bargain
with the Union and Marcus testified that he did not at that time suggest to
the Union that he did not consider it to be the bargaining representative of
the employees.
Petropoulos Brothers Appliances , inc., 154 NLRB 1655.
22 Moreover , the Board's Order imposed a duty to bargain for a
reasonable period of time , irrespective of fluctuations in the Union's
majority Poole Foundry and Machine Company, supra , N J Mac-
Donald & Sons , Inc., supra at 71 For the reasons stated hereafter, I have
found that a reasonable period of time did not elapse under the circum-
stances present in these proceedings
2a Cf. N. J MacDonald & Sons, Inc., supra
PETROPOULOS BROTHERS APPLIANCES 1 169
Act.24 I am led to this determination without regard to the
unfair labor practices which occurred in February and on
May 16, as noted hereafter. When I further consider
those activities, however, in a view of the Respondent's
conduct as a whole, I find added support for the conclu-
sion so reached.
2. The allegations of interference, restraint, or coercion
The threat made by Nick Petropoulos to employee
Howard Leedle on February 9 that Leedle would be
discharged if he talked to other employees about the
wages they were receiving or if he engaged in union so-
licitation or activities on the Respondent 's premises con-
stituted an unlawful prohibition against engaging in union
activities on company premises during nonworking
hours25 and an unwarranted threat, each of which vio-
lated Section 8(a)(1) of the Act. In addition, Nick
Petropoulos' interrogation of employee George Willings
on an undisclosed date in February as to how he felt
about the Union and his statement that after all of this
was over he would take care of Willings constituted un-
lawful interrogation and a promise of benefit which ex-
ceeded the permissible bounds of free speech, thereby
also violating Section 8(a)(1) of the Act.
3. The layoff of Leedle and Willings
The Respondent contends that Leedle and Willings
were laid off because of a lack of delivery work. Gust
Petropoulos testified that at the end of the working day on
Sunday, May 15, there were only eight items awaiting
delivery. He admitted on cross-examination, however,
that while 15 or 20 items would represent an average
number of deliveries for that day of the week, on other oc-
casions during the past year there had been as few as 5 or
6. Yet the credible evidence shows that neither Leedle,
who worked for the Respondent approximately a year
and a half until he voluntarily quit in June nor Willings,
who was still working for the Respondent at the time of
the hearing having first been employed approximately a
year before, had ever previously been laid off on occa-
sions when there were no deliveries to be made but in-
stead had worked in the warehouse or in the basement of
the store.26
Although the delivery crew composed of Anthony and
Trustheim normally made deliveries in the county and
Leedle and Willings delivered appliances in town, Gust
Petropoulos admitted that on May 16 Anthony and
Trustheim made at least one delivery in town and that he
was unable to determine from the Respondent's records
whether 5 of the remaining 11 stops listed on the route
sheet for that delivery team were also within town rather
than in the county area.
The Respondent argues that the layoff was effected
along seniority lines and that no new employees were
brought in to do the delivery work. While it is true that
Anthony and Trustheim had greater seniority than did
Leedle and Willings, it is also true that these were the
only two delivery crews employed by the Respondent. In
addition, at least 7 and perhaps as many as 12 of the 18
deliveries made that day were in town, an area normally
serviced by Leedle and Willings rather than by Anthony
and Trustheim. While no new employees were hired to do
the delivery work, other employees were impressed into
service by the Respondent for that purpose. Velasquez,
a serviceman engaged in the repair of appliances who nor-
mally did no delivery work except in an emergency, was
used on May 16, together with Mateja, a part-time em-
ployee, to perform the duties normally performed by Lee-
die and Willings. Upon the foregoing facts, I cannot con-
clude that Leedle and Willings were laid off because of a
lack of work as the Respondent contends.
As previously noted, the Respondent was opposed to
Leedle's activity as a member of the union negotiating
committee in speaking to Anthony about the latter's wage
rate and on February 9 Nick Petropoulos threatened to
discharge Leedle if he talked about the Union or recruited
for it on the Respondent's property; and on an undis-
closed date in the same month, Nick Petropoulos inter-
rogated Willings as to the latter's attitude toward the
Union and promised to "take care of' Willings after the
Union's efforts directed at securing a contract were over.
The Respondent also resented and was opposed to the
picketing which the Union had initiated on May 5. When
Leedle and Willings inquired on May 16 as to the dura-
tion of the layoff, Gust Petropoulos told them that if the
picketing went on for another 5 years, the Respondent
would still be in business; that if he had to make the
deliveries himself, he would do it; and that they could
return to work but there was no guarantee that there
would be work for them the following week as long as the
picketing continued.
On the basis of the foregoing facts and upon the record
as a whole, I am convinced and find that the Respondent
laid off Leedle and Willings on May 16, not because of a
lack of delivery work, but because of their union member-
ship and activities. No contention is here made that the
picketing of the Respondent's premises was illegal. While
the Respondent may have resented and been opposed to
such activity as well as to other union activity, including
that on the part of Leedle in speaking to Anthony about
his wage rate, it was not entitled to express its resentment
or opposition, as it here did, by discriminatory action
directed against its employees. Accordingly, I find that
the Respondent, by laying off Howard Leedle and
George Willings on May 16, 1966, violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. All service, clerical, and sales employees at the
Respondent's Gurnee and Fox Lake, Illinois, stores, ex-
cluding all temporary employees and part-time em-
ployees, guards, confidential employees, professional em-
ployees, foremen, managers, and supervisors as defined
24 Even if I were to consider evidence of the Respondent 's conduct
between September 28 and December 8 only as background and not as
constituting an unfair labor practice in itself, I would nevertheless con-
clude that the Respondent's refusal to bargain further with the Union on
December 8 violated the Act and the settlement agreement approved by
the Regional Director on December 2
25 The record contains no evidence nor does the Respondent contend
that the prohibition was confined to selling areas of the store.
26 The foregoing finding is based upon the testimony of Leedle and
Willings. Gust Petropoulos testified that employees were laid off two or
three times a year due to lack of work On cross-examination , he admitted
that no one had been laid off for lack of work in the year following the
layoff of Leedle and Willings
1170 DECISIONS OF NATIONAL
in the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
2. At all times since September 27, 1965, the Union
has been, and still is, the exclusive representative of all
the employees within said appropriate unit for the pur-
poses of collective bargaining in respect to rate of pay,
wages, hours of employment, or other conditions of em-
ployment, within the meaning of Section 9(a) of the Act.
3. By refusing at all times after September 28, 1966,
to recognize and bargain with the Union as the exclusive
representative of the employees in the above-described
appropriate unit, and by its action on December 8, 1966,
in withdrawing recognition from the Union, the Respond-
ent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
4. By the foregoing conduct and by the conduct
detailed in section III, B , 3, supra, the Respondent has in-
terfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act and
thereby has engaged , and is engaging , in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. By discriminating with respect to the hire and
tenure of employment, and the terms and conditions of
employment, of Howard Leedle and George Willings,
thereby discouraging the free exercise of rights guaran-
teed in Section 7 of the Act, and discouraging member-
ship in or activities on behalf of the Union, the Respond-
ent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
6. The aforesaid unfair labor practices, are unfair labor
LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent refused to recognize
and bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act, I will recommend that, upon request,
Respondent recognize and bargain collectively with the
Union as the exclusive representative of all its employees
in the appropriate unit with respect to rates of pay, wages,
hours, and other terms and condtions of employment,
and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
Because of the character and scope of the unfair labor
practices found to have been engaged in by Respondent,
I will recommend that Respondent cease and desist from
in any other manner interfering with, restraining, and
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
[Recommended Order omitted from publication.]
U. S. GOVERNMENT PRINTING OFFICE : 1970 OL - 350-212