Simon Bros. Co., Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1968

173 N.L.R.B. 906 (N.L.R.B. 1968)

906 DECISIONS OF NATIONAL
Simon Bros . Co., Inc. and Drivers , Salesmen, Ware-
housemen , Milk Processors , Cannery, Dairy Em-
ployees and Helpers , Local Union No. 695 , Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
30-CA-711
November 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On August 13, 1968, Trial Examiner James F Foley
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
AMENDED CONCLUSION OF LAW
We adopt the Trial Examiner's Conclusions of Law
with the following modification:
In Conclusion 3, omit the words "and promises of
benefits."
I Although we adopt the Trial Examiner 's finding that Respondent
violated Section 8(a)(1) of the Act by threatening and interrogating
employee Robert W. Hall, we do not find that any promise of benefit
was made to him. Neither do we rely on the Trial Examiner 's statement
that the remarks made to Hall were not accompanied by the safeguards
enunciated in Struksnes Construction Co., Inc., 165 NLRB No. 102,
which is clearly inapplicable here.
In adopting the Trial Examiner 's finding that Respondent violated
Section 8(a)(5) of the Act, we base our decision on the further ground
that Respondent had no right to withdraw recognition before it gave the
bargaining relationship to which it had agreed a reasonable time to
function . See Universal Gear Service Corporation, 157 NLRB 1169;
Sonora Sundry Sales, Inc., dlbla Value Giant, 161 NLRB 676, San
Clemente Publishing Corporation , Coastline Publishers, Inc, 167 NLRB
No. 2.
LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the Respondent, Simon Bros. Co., Inc., Madison,
Wisconsin, its officers, agents, successors, and assigns
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. In paragraph 1(b) omit the words "and pro-
mising them benefits."
2. In the second indented paragraph of the notice
omit the words "or promise them benefits."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner This case, Case 30-CA-
711, was brought before the National Labor Relations Board
(herein called Board), under Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), 61 Stat. 136,
73 Stat. 519, against Simon Bros. Co., Inc. (herein called
Respondent), on a complaint issued February 7, 1968, and
answer filed February 13, 1968. The complaint is premised on
a charge filed December 11, 1967, by Drivers, Salesmen,
Warehousemen, Milk Processors, Cannery, Dairy Employees
and Helpers, Local Union No. 695, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union).
It is alleged in the complaint that Respondent violated
Section 8(a)(1) of the Act by interrogating an employee on or
about November 7, 1967, regarding his union membership and
activity and his feelings about the Union, and requesting an
employee to act as its spokesman and tell the other employees
that if the Union became their bargaining representative there
would be shorter work hours and fewer persons employed.
It is also alleged in the complaint that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing on and
after November 7, 1967, to bargain in good faith with the
Union as the collective-bargaining representative of a unit of
employees consisting of drivers and warehousemen, although
on November 7, 1967, it recognized the Union as the
collective-bargaining representative of these employees, by
rejecting the collective-bargaining principle in attempting to
undermine the Union's status as bargaining representative by
the conduct alleged above as violative of Section 8(a)(1) of the
Act, and by withdrawing on or about December 6, 1967, its
recognition of the Union as bargaining representative it gave on
November 7, 1967, and by questioning on and after December
7, 1967, the Union's position it represented a majority of the
above employees although it had no reasonable basis for doing
SO.
In its answer of February 12, 1968, Respondent denied that
in violation of Section 8(a)(1) of the Act it interrogated an
employee on or about November 7, 1967, or requested an
employee on or about that date to act as it spokesman to tell
other employees that if the Union became their bargaining
representative there would be fewer work hours and fewer
employees. Respondent admitted the appropriateness of the
173 NLRB No. 135
SIMON BROS. CO. 907
unit alleged by General Counsel, and admitted that on or
about November 7, 1967, the Union requested recognition as
collective-bargaining representative of this unit, and that the
Respondent on or about November 7, 1967, recognized the
Union as the bargaining representative of this unit. But it
denied that the Union represented a majority of the employees
in this appropriate unit, and denied that it refused to bargain
in violation of Section 8(a)(5) and (1) of the Act by rejection
of the collective-bargaining principle and withdrawal of its
recognition of the Union as bargaining representative. It
affirmatively defended in its answer by alleging that it did not
engage in the conduct alleged in the complaint to violate
Section 8(a)(1) of the Act or any conduct designed to
undermine the alleged majority status of the Union, and by
alleging that it withdrew recognition of the Union as bargain-
ing representative on a belief, based upon information re-
ceived, that the Union was not selected by a majority of the
employees in the admitted appropriate unit.
A hearing on the complaint and answer was held before me
on April 1 and 2, 1968, in Madison, Wisconsin. The parties
were afforded an opportunity to present evidence, make oral
argument, and file briefs. Briefs were filed by General Counsel
and Respondent after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation with principal office
and place of business in Madison, Wisconsin, is engaged in the
distribution of liquor and related products. During the year
1967, a representative period, Respondent purchased and
received, in interstate commerce, from points outside the State
of Wisconsin, goods and materials valued in excess of $50,000.
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Assumption of
jurisdiction will effectuate the purposes 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
A. Undisputed Evidence
Respondent has approximately 25 employees. They are
drivers, helpers, warehousemen, office clericals, and salesmen.
It has a president and vice president. President Harold M.
Sipple runs the business and Vice President Anderson is sales
manager. Louis Schutz, a longtime employee, sees that returns
from deliveries and incoming freight are cleared from the dock,
that the freight is warehoused properly, and that outgoing
freight and orders are cleared from the dock into the waiting
trucks. Lloyd Tygum, another longtime employee, has charge
of putting up liquor orders in the basement where the liquor
department is located. He is sometimes assisted by Joseph
Burich and James Kublenski, two part-time employees who are
students. Burich works 20 to 24 hours a week and Kublenski
works 15 to 20 hours a week. Sipple handles the detail of
receiving the collections of the drivers. He, Anderson, and
Schutz check the liquor orders put up by Tygum, Burich and
Kublenski.
Richard Ramsey and William Gehring, two students at the
University of Wisconsin, work an average of 3 hours Saturday
only to make deliveries to fraternity houses at the university.
Thomas Castle, a retired driver, who has a full-time job as a
janitor at a school in Middleton, Wisconsin, also makes these
Saturday deliveries. In addition, he makes deliveries during the
week to two customers in Middleton, Wisconsin. He works for
Respondent from 5 to 10 hours a week. The fraternity house
orders are solicited by another student. He would be classified
as a salesman . A third student, Daniel Kittel, is available to
substitute for the two Saturday student drivers, or as an extra
man for them when their workload calls for additional
assistance!
During November and December 1967, Respondent had 15
employees in addition to Sipple, Anderson, Schutz, the
clericals and the salesmen. The 15 include the 2 students
employed during the week in the warehouse, the janitor
employed part time as a driver, and 2 students who work only
Saturdays, and their alternate.
On November 7, 1967, about 9.30 a.m., Eugene Machko-
vitz, business agent of the Union, accompanied by a William
Renz, appeared at President Sipple's office and presented him
with seven authorization cards signed by seven of Respon-
dent's drivers, helpers, and warehousemen. The date of
November 2, 1967, on each of the cards is identified as the
date of signing. The narrative on each of the cards is a clear
and unequivocal authorization to the Union to act as the
signers' collective-bargaining representative. At the time Mach-
kovitz handed Sipple the cards, he also handed him a letter
dated November 6, 1967, signed by Donald Eaton, secretary-
treasurer and business representative of the Union, in which
the Union demanded recognition as collective-bargaining re-
presentative of Respondent's drivers and warehouse em-
ployees,2 and requested a meeting on November 15, 1967, for
the purpose of collective bargaining.
Sipple accepted the cards and the letter and had his
secretary prepare a reply in which he agreed to meet with the
Union on November 15, 1967. Later in the afternoon Sipple
telephoned Machkovitz and informed him that he could not
meet with the union representatives on November 15 as Vice
President Anderson, who would accompany him, could not be
present. Machkovitz agreed to meet on another date. Robert L.
Curry, attorney for Respondent, telephoned Machkovitz 7 to
10 days later and they set the date of November 20, 1967, for
a meeting.
Machkovitz and Eaton met with Sipple and Curry on
November 20, 1967. Curry stated that there was some
question whether the Union represented a majority of the
drivers, helpers, and warehousemen as Respondent had let two
employees go and had replaced them. Thereupon Machkovitz
showed to Curry and Sipple authorization cards signed by
I Bunch and Kublenski were hired in June 1967 . They work in the
warehouse and, on occasion , are helpers on the trucks . They receive
$1.95 per hour Ramsey and Gehring were hired in September 1967
Kittel has worked for Respondent only 2-3/4 hours, in the week ending
November 11, 1967. Ramsey , Gehring, and Kittel are paid $1.85 per
hour . The full-time employees receive $2 15 to $2.35 per hour.
2 Although the prehearing communications between the Union and
Respondent referred only to drivers and warehousemen as unit
employees, all parties agreed at the hearing that the unit also includes
helpers
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees James P. Ford and Robert L. Hawley on November
15, 1967. It is undisputed that Wilmer Lemke and David J.
Halzel, who had signed cards, were terminated as of November
18, 1967, and that Ford and Hawley began employment with
Respondent on November 7 and 13, respectively. Curry
accepted the cards of Ford and Hawley. He and Sipple stated
to Machkovitz and Eaton that Respondent recognized that the
Union represented a majority of the employees, and agreed
with the union representatives to a meeting on December 14.
On November 20, 1967, Respondent sent a letter to the
Union in which it stated it recognized the Union as the
representative for purposes of collective bargaining of its
employees in a unit of "All drivers and warehousemen,
excluding Office Clerical Employees, Guards, and Supervisors
as defined in the Act." In the letter, it also stated that in the
November 20 meeting agreement was reached that there would
be discussion during negotiations as to whether "the position
of Foreman ... shall be included within the unit," and
suggested that the "Student situation" be discussed in the
negotiations.
On Friday, December 1, employee Robert W. Hall, who
signed an authorization card, said to President Sipple that the
employees wanted him to be steward, he had been to a union
meeting, and he was unhappy about the situation. He also said
to Sipple that when he signed the authorization card he did
not realize that the card would be used to negotiate with
Respondent, and asked Sipple what he could do about
withdrawing his card as he was disgusted with the whole thing.
Sipple said he did not know. Sipple was able to reach Curry on
Wednesday, December 6, and informed him of his conversation
with Hall. After his conversation with Curry, Sipple talked to
Hall and said to him that if he did not wish to be represented
by the Union he should ask for his card back. He also said that
Hall would have to do this voluntarily. Hall said he would
write to the Union and ask for the return of his card. Sipple
told Curry on the same date what Hall said he would do.
Curry then telephoned Machkovitz and said to him that he
then believed the cards were unreliable, that there had been a
change in circumstances, and he was withdrawing Respon-
dent's recognition of the Union as bargaining representative
and intended to file for an election. On the same date, Curry
sent a letter to the Union in which he stated that information
had been received which satisfied Respondent that the
authorization cards should not have been accepted by it as a
reliable basis for establishing the majority status of the Union,
and in view of such a situation, "we believe that neither the
Union nor [Respondent] should proceed further in reliance
upon these cards and that your representation status should be
established by an election conducted by the N.L.R.B."
Curry also stated in the letter that on that day, December 6,
Respondent had mailed a representation petition to the
Board's Regional Office in Milwaukee, Wisconsin, to expedite
the determination of representation by a Board election.
Respondent enclosed in the letter the nine signed authoriza-
tion cards it had received from the Union. Respondent sent the
petition as stated. It was received by the Regional Office on
December 7. The Union received Respondent's letter on
December 7. It also received on December 7, a letter dated
December 6, from Hall in which he asked the Union to return
his authorization card to him. He stated in the letter that "I
never intended that you use my signed card to bargain with the
Company." Curry admitted on cross-examination that Hall's
withdrawal of his card was the only basis for Respondent's
withdrawal of recognition on December 6, for the reason that
the cards were unreliable evidence of a majority. Curry
testified for the Respondent that on November 20, when he
drafted Respondent's letter of recognition he had no know-
ledge that Ramsey and Gehring, two students, worked an
average of 3 hours on Saturday mornings delivering kegs of
beer to the fraternity houses. He further testified that the two
students to whom he made reference in the November 20
letter were students Kublenski and Burtch, part-time em-
ployees who worked 15 to 20 and 20 to 24 hours, respectively,
during the week, in the warehouse.
The unfair labor practice charge was filed on December 11,
1967. In a letter dated December 28, 1967, to George Strick
of the Board's Milwaukee Regional Office, Egon W. Peck, Esq.,
attorney for Respondent, in response to Strick's request for
the details of Respondent's withdrawal of recognition, stated
that Respondent had concluded that its prior recognition was a
mistake and it had a good-faith doubt that the cards reliably
reflected a desire of a majority of the employees to be
represented by the Union. Peck stated that this position was
premised on Hall's withdrawal of his authorization card for the
reason he stated to President Sipple that at the time he signed
the card, Machkovitz, business representative of the Union,
told him "that the decision as to whether or not the union
should go to the company and ask for representation would be
made by the employees at the meeting called by the union for
that purpose, and that he signed the card with that definite
understanding," and "that the cards were presented to the
company contrary to that understanding."4
B. Facts in Controversy
With the withdrawal of recognition and the filing of the
charge, there are in issue the question whether Hall's card is to
be counted, whether employee Schutz is a supervisor, and
Ramsey and Gehring, the two students who work 2-3/4 hours
to 4-1/2 hours Saturday only, are in the appropriate unit's
whether Respondent and its President Sipple dissipated the
majority representation of the Union by threatening Hall and
promising him benefits, and by threats to other employees
through Hall.
3 Schutz held the position referred to as foreman . Respondent
claims Schutz is a leadman and is in the unit As stated infra, it also
claims that part -time students Kublenski and Bunch are in the unit and
are the students referred to in the November 20 letter
4 This is rebutted infra by General Counsel
5 According to the General Counsel, Schutz is a supervisor, and
Ramsey and Gehring lack a community of interest with the other
drivers, helpers, and warehousemen , and are not in the unit Respondent
contends that Schutz is a leadman and not a supervisor and that the
hours worked delivering beer on Saturday by Ramsey and Gehring give
them sufficient community of interest with the other employees who
work as drivers , helpers, and warehousemen to be included in the unit
If Schutz is a supervisor and the 2 students lack community of interest
with these other employees , then there are 12 employees in the unit,
and if Hall's card is counted , the Union has majority of the 12
employees . On the other hand , if Schutz and the 2 students are in the
unit there are 15 employees in the unit Eight is a majority If Hall's
card is counted , the Union would have only seven of the eight If Hall's
card is not counted, it would have only six of the required eight
SIMON BROS . CO. 909
1. Hall's Card
The narrative on the card which Hall signed and otherwise
completed on November 2, 1967, is
I, the undersigned, employee of Simon Bros. Home
Address, 180 Columbus Tel. No. 837-7812 hereby autho-
rize the Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers "General" Local
Union 695 to represent me for purpose of Collective
Bargaining and, in my behalf, to negotiate and conclude all
agreements as to hours of labor, wages and other conditions
of employment.
The full power and authority to act for the undersigned
as described herein supersedes any power or authority
heretofore given to any person or organization to represent
me.
The card is captioned "AUTHORIZATION FOR REPRESEN-
TATION," and has a blank for the signature of the employee
signing, one for the signature of a witness, one for the date of
signature, and one for a printing of the signer's name. The
name of Wilmer Lemke is in the blank for witness, the date of
November 2, 1967, is in the blank for date, and the name of
Robert W. Hall is in the blank for printing of the name of
signer. The signature of Hall is in the blank for signature of
employee
Employee Wilmer Lemke, in the presence of employees Carl
J. Whiting, Jr., and Delmar K. Tietz, handed Hall two cards on
the morning of November 2 between 7 a in. and 8 a.m. on the
warehouse dock. Hall was loading Tietz' truck. Lemke said to
Hall that the employees needed his signature and that the cards
were for the Union to represent the drivers and warehousemen.
Lemke also said to Hall to read the card, and that everyone
else had signed 6 Hall said to Lemke he did not have time to
sign, and Lemke said he would load Tietz' truck for him. Hall
took the cards inside the warehouse, signed them, and then
gave them to Lemke in the presence of Whiting and Tietz
Lemke inserted his name on the cards as the witness Lemke
gave to the Union Hall's cards and cards signed by himself and
five of the other employees.'
On November 21, 1967, a meeting of employees who had
signed cards was held at the Union's office. Hall was one of the
employees present Machkovitz was present for the Union.
Demands to be incorporated in a contract proposal were
discussed. At the end of the discussion an employee said they
should have a steward. Machkovitz objected because they did
not have a contract. The employees said they wanted a
representative on the bargaining committee. Someone men-
tioned Hall's name. Someone said to hum that he was a good
talker. He said, "Okay, I'll take it."s
On November 24, 1967, the Union had a draft of the
contract proposal. Whiting picked up a copy at the Union's
office Whiting then held a meeting of employees at his home
at which the proposal was discussed in detail Hall was present,
as were the other four drivers. One helper was also present. At
the end of the meeting, Hall said that Whiting was best
qualified to be on the bargaining committee, that he was in
touch with the Union more than any of the employees.
Whiting then took over the assignment of employee spokesman
on the bargaining committee which Hall had held since
November 21 9
2. Employee Schutz' duties
Longtime employee Schutz, contrary to the drivers, helpers,
and warehousemen in the unit, is salaried 10 and receives a
yearend bonus. Schutz, daily, gave Lemke specific directions as
to what he was to do each day In the event Lemke
encountered any problem while working outside, he tele-
phoned the Respondent and spoke to either Sipple or Schutz.
During the period of Lemke's employment, February to
December 1967, Schutz had an office near the warehouse
dock. No one shared the office with him. Driver Tietz received
daily instructions from Schutz. Other employees regularly
received directions from Schutz with respect to the work they
were to do. When Tietz, like Lemke, had problems out on the
road, he consulted either Sipple or Schutz. When merchandise
was handled in the warehouse, the warehousemen or drivers
were assigned specific tasks by Sipple or Schutz.
Sipple identified Schutz as the individual who has the
responsibility of running the warehouse and seeing that the
stock is put away. He amplified this, by testifying Schutz'
duties were to help the drivers get their vehicles loaded in the
morning, receive goods during the day, keep the warehouse in
order, and see that the merchandise was loaded for delivery
during the day. Sipple also testified that while he usually
instructed students Bunch and Kublenski regarding their
respective duties, in the event of his absence, "Schutz will tell
them what to do." He also testified that in the event a driver
completes his route and returns to the warehouse early, and
there is merchandise or inventory to be handled in the
warehouse, the driver works in the warehouse under the
direction of Schutz. As stated supra, President Sipple, Vice
President Anderson, and Schutz check the liquor orders put up
by Tygum, Burtch, and Kublenski
6 Machkovitz testified that from March 1967 to late October 1967,
he talked sporadically with some of Respondent's drivers about their
selecting the Union as their bargaining representative and about
November 1, 1967, employees Lemke and Whiting came to his office
and said that the employees were ready He gave them blank
authorization cards. Cards were signed on November 2, 1967, by
employees Lemke, Whiting, Miller, David J Halzel , John A Halzel, and
Tietz as well as Hall As stated supra, Ford and Hawley, replacements
for Lemke and David J. Halzel , signed cards on November 15, 1967.
7 This is Lemke's testimony which I credit It is corroborated by the
testimony of Whiting and Tietz Although Hall testified , he was not
questioned by either General Counsel or Respondent regarding his
signing of the authorization cards He was subpenaed as a witness by
General Counsel Respondent did not cross-examine Lemke, Whiting, or
Tietz regarding their testimony on direct examination about Hall's
signing of the authorization cards, or call Hall as a witness to meet this
testimony of Lemke, Whiting, and Tietz . Respondent relies on Sipple's
testimony of what Hall told him on December 1, 1967 Hall disclosed
himself as a truthful witness , and the presumption remains that he
would have testified truthfully on this matter had Respondent called
him
8 This is Machkovitz' testimony which I credit. It is corroborated by
the testimony of Lemke and Whiting. Hall, although he was present and
a witness, was not questioned about the meeting by the General Counsel
or called by Respondent to meet Machkovitz' testimony
9 This is Whiting's testimony , which I credit Hall was not
questioned about this meeting although he was present
10 The only other employees of Respondent who are salaried and
receive bonuses are the corporate officers and the office employees
Schutz does not hire , fire, promote, or discharge employees, or
recommend such action
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Sipple's alleged threats and
promises of benefit
Hall testified that he was in Sipple's office occupied by his
secretary when Machkovitz and Renz, the Union's representa-
tives, called on Sipple about 9 30 a.m. on November 7.
According to Hall, Sipple dictated a letter, during which time
he had some authorization cards in his hand, and he held them
out in his direction and asked him if he signed one of them.
Upon refreshing his recollection by reference to a statement he
gave General Counsel on January 2, 1968, he testified that
Sipple asked him if he was "one of the instigators of having
these cards signed and brought in." Hall testified there were
three female clerks and one male clerk in Sipple's office.' I
Sipple testified that on the morning of November 7 he left
his inner office where the representatives of the Union were
and went to his outer office and dictated a letter in which he
agreed to meet with the Union on November 15, in response to
the request for a meeting in the November 6 letter handed him
by the Union's representatives. He testified, however, that he
had only one conversation with Hall, and it was in the
afternoon. Hall testified that he did not consider the few
words he had with Sipple in the morning to be a conversation.
Sipple denied he asked Hall in the morning if he signed one of
the cards. He made no reference in his testimony to Hall's
testimony that he asked him if he was one of the instigators of
having the cards signed and brought in.' 2
About 2 or 3 hours later on November 7, Sipple talked to
Hall in the basement of the warehouse where the liquor orders
are made up. Vice President Anderson, Schutz, and Tygum
were present. On direct examination, Sipple testified that he
"just asked Bob what it was all about," and Hall "just said that
the boys wanted to find out what the union had to offer."
Sipple then testified that "that was all that was said." He also
testified on direct that he "asked [Hall] what the cards meant,
and he said the cards meant that they were going to have a
meeting with the union to see what they could offer them.
And that was the sum of the conversation." Hall testified that
Sipple asked him about the wage scale of the Union, and also
said that, " seeing as this-he had had this confrontation with
the union, that he could no longer speak to us about union
matters, and so on, but I could more or less be a spokesman
for him to let the fellows know what his views of the union
were, that the work week would be altered, and possibly the
number of employees would be altered." After refreshing his
recollection by referring to the statement dated January 2,
1968, he gave to the General Counsel, Hall testified that Sipple
said "we would not be working a 50-hour work week that we
11 Hall was a truthful witness, as his demeanor and substantive
testimony , considered in context, discloses He was , however, a
reluctant witness At the time he testified he did not favor representa-
tion by the Union He was subpenaed by General Counsel to give
testimony that favored the Union He did not volunteer
12 The question that arises here is whether Sipple avoided meeting
the testimony of Hall that he asked if he was one of the instigators, etc ,
by having a mental reservation , like Hall, that he did not consider this
question he asked Hall as constituting a conversation , and then denying
he had a conversation with Hall in the morning If the question whether
Hall was one of the instigators , etc , is not a conversation , then Hall's
testimony that Sipple asked this question is left unrebutted I credit
Sipple 's denial that he did not ask Hall if he signed one of the cards
13 The contract proposal which the Union and employees drafted to
submit to Respondent called for a 50-hour workweek The regular
workweek was 50 hours prior to the organizational activity of the
Union
are now, and that we would not need the total number of
employees that we have at the present time s1 3
4. Hall's alleged threats as agent
of Respondent
Employee Whiting testified that about the end of the
workday of November 8 or 9, 1967, he and employee Edward
B Miller were on the warehouse dock, and Hall came out of
the warehouse and talked to them, and said that Sipple had
told him to get one or two of them together , and tell them
that they were going to get the raise they were asking for but
that there would be only one man on the truck , 8 hours a day,
and some of them would be leaving 14 Employee Delmar Tietz
testified that shortly before 5 p .m , on an evening after
November 7, 1967, Hall and employees Miller, James Ford,
and John Halzel were talking about the Union , and Hall said
that they would not be getting a Christmas bonus and that
their hours would be cut because of their trying to get the
Union in Respondent 's business.' 5
5. Attorney Curry's testimony
for Respondent
Curry testified that he requested the meeting on November
20, because some unusual circumstances existed at the time
the Union brought in the cards to Sipple on November 7. He
testified that at the November 20 meeting he said that
Respondent was in the process of laying off two employees
and hiring two replacements at the time of the November 7
meeting, and that Respondent was not taking this action
because of the union activity of the two employees being
terminated. Curry testified that the newspaper ads soliciting
replacements had been placed before the union activity
began.16 Curry also testified that he told Machkovrtz and
Eaton that Respondent felt that it had a fluctuating work
force and, therefore, there was a necessity for an election, 17
that Machkovitz then produced signed authorization cards for
the two replacements, and he and Sipple on behalf of
Respondent recognized the Union as bargaining representative
after Machkovitz and Eaton said the Union would not agree to
an election. He testified that Respondent recognized the Union
because it had 7 signed authorization cards, and he was of the
opinion that the appropriate unit was comprised of 13
employees, including Schutz, Bunch, Kublenski, and Castle.
He testified that he had no knowledge at the time of the
November 20 meeting that Ramsey and Gehring were em-
ployed Saturday afternoons to make deliveries to the frater-
nity houses at the university. He also testified that the union
14 As stated, the workweek was 50 hours Some trucks had regular
helpers and others were assigned helpers
15 Although Miller was present during the conversation of Novem-
ber 8 or 9, according to Whiting 's testimony , Miller was not called by
General Counsel to corroborate Whiting's testimony Respondent did
not call Hall to give testimony regarding this conversation even though
he was friendly to Respondent at the time of the hearing General
Counsel did not call Ford, Miller, or Halzel to corroborate Tietz'
testimony about the conversation they had with Hall Respondent did
not call Hall to give testimony regarding it
16 Machkovitz adrrutted on cross-examination that at the November
7 meeting in Sipple ' s office that Sipple mentioned the termination of
two employees and their replacement , and that he said that such actions
were those of management and would be left to Respondent
17 Curry testified he made similar statements to Herb Hoschel,
president of the Union, on November 9, 1967, and to Van Curran, an
official of the Union, on November 13.
SIMON BROS . CO. 911
representatives were of the opinion there were nine in the unit,
and that Burtch, Kublenski, Castle, and Schutz were included.
Curry testified that Sipple stated that the "foreman, Mr
Schutz" had indicated to him that he would not be a member
of the Union, and Sipple discussed with Machkovitz and Eaton
the problem arising from the wishes of an employee, whom
Curry believed was not a supervisor, who was doing substantial
work as a member of the unit, but did not want to be a union
member. According to Curry, he and Sipple, at the November
20 meeting, looked for some way to work out Schutz' position
in the Union in subsequent discussions with the union
representatives. Curry testified there was agreement that the
matter would be discussed later.
Machkovitz testified that at the November 20 meeting
Curry and Sipple raised the question whether the employees
would object to the part-time employment of students on
Saturday afternoons. He testified that Eaton and he felt no
one had done any real hollering about the part-timers so that
they did not know what the reaction was, but they would ask
the people about it and see how they felt about part-timers
coming in. He testified that Curry raised the question whether
the employees would object to the foreman doing work that
the other fellows did, like doing work that the other fellows
did, like helping them load trucks, and they felt nobody would
object to a little help like lifting cases and kegs.
6. General Counsel's use of Sipple's affidavits of January 8
and 15, 1968, and Hall's affidavit of January 2, 1968
Sipple's and Curry's testimony clearly discloses that Sipple
on November 7 and 20, 1967, and Curry on November 20,
1967, contended that the unit was comprised of 13 employees.
This number included Schutz, Burtch, and Kublenski, but did
not include Ramsey and Gehring. Sipple took the same
position on January 8, 1968, when he gave a statement to a
representative of the General Counsel. This position is reflect-
ed on page 3 of the statement On page 2 of the statement
Sipple stated that Respondent had 13 rank-and-file truck-
drivers, helpers and warehousemen. This number included
Schutz as Respondent contended he was not a supervisor.
Actually Respondent had 16 employees, assuming Schutz was
not a supervisor, as Ramsey, Gehring, and Kittel were
employees even though employed only part time and not in
the unit. On January 15, 1968, or thereabouts, Sipple
submitted a supplemental statement. Among other things, he
stated therein that in addition to the 13 employees mentioned
on page 2 of the January 8 statement, Respondent also
employed students Ramsey, Gehring, and Kittel on a part-time
basis to deliver beer on Saturday to the fraternity houses. The
unit reference on page 3 of the statement was not amended.
This part of the January 15 supplement merely corrects an
error made in the January 8 statement.
In evaluating the credibility of Sipple, the January 15
supplement and the January 8 statement are to be considered
in the making of a determination whether Sipple's testimony
at the hearing is impeached by a prior statement I find
nothing in Sipple's affidavit and its supplement that impeaches
Sipple's testimony at the hearing. He testified that Respondent
has 16 employees exclusive of salesmen, clerical personnel, and
management. He was not asked to give a legal conclusion as to
what employees are or were included in the unit I find no
18 See N L R B v Quest-Shon Mark Brassiere Co, Inc, 185 F 2d
285, 289 (C A 2), cert denied 342 U S. 812
competent, relevant, or material admissions against interest in
the statement or its supplement not made by Sipple at the
hearing as a witness for General Counsel or Respondent I,
therefore, reject the offer in evidence of the affidavit and
supplement, identified as General Counsel's Exhibits 9 and 10,
for the purpose of impeachment and as constituting admissions
against interest. In some jurisdictions a written statement of a
witness is admissible as evidence corroborating his oral
testimony. It was not represented that this is the law in
Wisconsin, or that the exhibits were offered for that purpose.
Affidavits are not a substitute for oral testimony except where
they constitute admissions against interest by a party.i 8
Hall's affidavit of January 2, 1968, which he gave to a
representative of the Board's Regional Office in Milwaukee,
Wisconsin, on January 2, 1968, was used to refresh his
recollection by counsel for General Counsel when he testified
for General Counsel about threats and promises of benefits by
Sipple. Respondent contends that Hall's January 2 affidavit is
unreliable because Hall gave an affidavit to Attorney Curry on
December 20, 1967, contrary to his affidavit of January 2 The
material part of the January 2 statement recites the affiant's
recollection at that time of actual events and circumstances of
alleged interrogation by Sipple on November 7, 1967, regard-
ing his signing an authorization card, and Sipple's alleged
request on that date to Hall that he act on Respondent's behalf
in an effort to undermine the Union. The statement given by
Hall to Curry on December 20 is silent in regard to the actual
events and circumstances of November 7, 1967. There is
nothing in the December 20 statement which contradicts the
recital in the January 2 statement of what happened on
November 7.
I do not consider Hall's affidavit of January 2, 1968,
unreliable, as Respondent contends, because of Curry's testi-
mony that at the time he took Hall's statement on December
20, he asked Hall "whether or not he knew or was aware of
any contact by the Company, by Mr. Sipple or any company
representatives with any union member and which would
amount to any threat to any person for joining the union, or
any offer of benefits," and he answered, "No, he knew of
nothing " I find that this broad general question of Curry
calling for a legal conclusion from Hall, and Hall's answer do
not repudiate the detailed statements of events and circum-
stances set out in Hall's affidavit of January 2, 1968, regarding
the November 7, 1967, incidents. Curry asked the question
and obtained the statement in connection with Respondent's
preparation of its defense in this case. Hall testified truthfully
regarding the November 7 incidents as a witness for the
General Counsel under subpena, although he favored the
position of Respondent and not that of the General Counsel or
the Union. I have previously found that he testified truthfully
but reluctantly. He did not volunteer. Respondent did not
cross-examine him on this testimony.
Analysis, Credibility and Evidentiary Resolutions,
Findings and Conclusions of Fact and Lawi 9
I conclude and find that an appropriate unit of Respon-
19 Credibility resolution and resolutions of conflicts in evidence
have been made upon evaluation of demeanor testimony and oral and
written evidence considered in context See Felix MacKevicius d/b/a
Brighton Bakery , 158 NLRB 512, fn 1,NLRB v United Brother-
hood of Carpenters, Local 517, AFL, 230 F 2d 256, 259 (C A I),
N L R B v Universal Camera Corporation 179 F 2d 749 (C A
reversed on other grounds 340 U S. 474
2),
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's employees is a unit comprised of Respondent's drivers,
helpers, and warehousemen. The drivers and helpers do work
in the warehouse and on the warehouse dock. The Union and
Respondent agree that it is an appropriate unit 20
The Union and Respondent agree that the unit on Novem-
ber 7, 1967, and thereafter included the five full-time drivers,
two full-time helpers, two full-time warehousemen, Castle, a
part-time driver, and students Burtch and Kublenski, part-time
warehousemen and helpers. In issue are whether Schutz is a
rank-and-file employee and in the unit, and whether students
Ramsey and Gehring, employed only Saturday for an average
of 3 hours, have sufficient community of interest with the
other employees to be in the unit General Counsel contends
that Schutz is a supervisor and not in the unit, and that
Ramsey and Gehring lack community of interest with the
other employees and are not in the unit. Respondent contends
that Schutz is a leadman but not a supervisor and should be
included in the unit, and that the average 3 hours Ramsey and
Gehring work on Saturday qualify them as unit employees.
Respondent does not contend that Kittel is in the unit.
Schutz does not hire, fire, discharge, or recommend. There
is unrebutted evidence that Schutz has a separate office and
telephone for his exclusive use at the rear of the warehouse.
Sipple, who testified that he gave the instructions to the
employees, has an office at the front of the warehouse where
the business with customers is conducted Sipple, according to
Curry's testimony, referred to Schutz as Foreman Schutz in his
discussion with Union Representatives Machkovitz and Eaton
on November 20, 1967. Curry referred to him as foreman in
his testimony and in the letter of Respondent of December 20,
1967, sent to the Union which he prepared. Schutz is salaried
and receives a Christmas bonus. Only corporate officers and
clerical employees are salaried and receive an annual bonus. I
credit Lemke's and Tietz' unrebutted testimony about Schutz'
duties as showing that Schutz, like Sipple, gives instructions to
drivers and drivers depend on him for instructions, assigns
employees to work in the warehouse and on the warehouse
dock, assigns helpers to trucks and the semitrailer driven by
Hall, and, like President Sipple and Vice President Anderson,
checks liquor orders. President Sipple corroborated their
testimony with respect to Schutz' giving instructions in his
absence and in checking the liquor orders Schutz performs
some manual work in connection with his duties of operating
the warehouse dock and warehousing inventory. There is no
evidence of the amount of manual work Schutz performs.
However, it is a reasonable inference, and I make it, that
Schutz would not have a separate office if he were merely a
leadman or a rank-and-file employee, or engaged primarily in
doing manual work. Nor would he instruct drivers, and assign
work to drivers, warehousemen, and helpers, or be referred to
as foreman by President Sipple or by Attorney Curry.
I conclude and find that Schutz responsibly directs em-
ployees, and in doing so exercises independent judgment. I
conclude and find that he is a supervisor within the meaning of
the definition of supervisor in Section 2(11) of the Act To be
20 See Don Kerr, Inc, 129 NLRB 526, and Harvey Russell
(California Association ofEmployers), 145 NLRB 1486, 1488
21 Jas H Matthews & Co v N L R B, 354F 2d 432, 434-435
(C.A. 8), enfg 149 NLRB 161, 171, Crown Aluminum Industrials Corp
v NLRB , 352 F 2d 84 (C A 3), enfg 150 NLRB 58, N L R B v
Hamilton Plastic Molding Co, 312 F 2d 723,725-727(C A 6), enfg as
a supervisor, it is necessary that independent judgment and
only one of the duties in Section 2(11) be exercised. Evidence
of the doing of manual work while persuasive against super-
visory status is not conclusive in the presence of evidence of
supervisory duties. I do not accept Sipple's testimony that
Schutz acted only at his direction in each instance. He
admitted that Schutz acted in his absence. Moreover, it would
be impossible for Schutz to perform the duties he performs in
directing employees and engage in them as often as he does, if
he had to consult Sipple each time or receive predirection
instructions.2 i Schutz, therefore, is not a unit employee.
Ramsey and Gehring, unlike Burtch and Kublenski, have no
association with the full-time employees of Respondent. Their
lack of association with them, their preoccupation as students
at the University of Wisconsin, their work delivering to
students like themselves on Saturday when the regular em-
ployees are not working or only sporadically working, and the
relatively few hours, an average of 3, they work per week,
disclose the absence of a community of interest with the
regular drivers, helpers, and warehousemen employed by
Respondent. Burtch and Kublenski, on the other hand, work
20 to 24 hours and 15 to 20 hours, respectively, during the
week as warehousemen and helpers. These numbers of hours
and the circumstances of their employment give them a
community of interest with the regular employees with respect
to wages, hours, and working conditions that Ramsey and
Gehring do not have.22 Ramsey and Gehring are not,
therefore, in the unit.
I conclude and find that on November 7, 1967, and
thereafter, the appropriate unit included 12 employees. Seven
unit employees signed authorization cards on November 2,
1967 Two of the seven, D. Halzel, a helper, and Lemke, a
driver, were discharged on November 18, 1967. Their discharge
had been contemplated since before November 7, 1967.
Respondent advertised for replacements for them about
November 1. Robert Hawley, the replacement for Lemke was
hired on November 8, 1967, and James Ford, the replacement
for D. Halzel, was hired on November 13, 1967. Hawley and
Ford signed authorization cards on November 15, 1967. It
appears to me, the Trial Examiner, that in the circumstances of
this case, Lemke and Hawley, his replacement, are one
employee, and D. Halzel and Ford, his replacement, are one
employee, for the purpose of determining the number of
employees designating the Union to represent them. There is a
presumption that the jobs manned by Lemke and D. Halzel
would continue to be manned by employees desiring to be
represented by the Union.23 This presumption became a fact
on November 15, 1967, when Hawley and Ford signed cards.
Technically, Lemke and D. Halzel were employees on Novem-
ber 7.
modified 135 NLRB 371, Jones Packing Company, 159 NLRB 988,
enfd 396 F 2d 801 (C A 6), Irving Air Chute Company, Inc, 149
NLRB 627, 633-635, enfd 350 F 2d 176 (C A 2). Precision Fabrica-
tors, Inc, 101 NLRB 1537, is inapposite . The employee in question
spent at least 80 percent of his time operating a machine, and exercised
authority of a routine nature pursuant to another 's direction
22 Midwestern Manufacturing Company, Inc, 158 NLRB 1698,
reversed in part 388 F.2d 251 (C A 10), Brown-Forman Distiller
Corporation, 118 NLRB 454, 455, Belcher Towing Company, 122
NLRB 1019, Quality Markets, Inc, 160 NLRB 44, 45, Newburgh Mfg
Co, 151 NLRB 763, 765-766
23 See St John 's Associates, Inc, 166 NLRB No 30, enfd 392
F 2d 182 (CA 2)
SIMON BROS. CO. 913
When the Union demanded recognition on November 7,
1967, it represented a majority of employees in the unit Seven
of the twelve employees had designated the Union to represent
them. Respondent did not refuse to recognize the Union as
bargaining representative It withheld decision as Sipple was
contemplating whether there was a majority because of the
imminent discharge of Lemke and D. Halzel. The reliability of
the cards as a means of determining majority representation
was not questioned.
I conclude and find that on the morning of November 7,
1967, about 9.30 a.m. when Union Representative Machkovitz
and Eaton were in his private office, and he was in his outer
office preparing a letter in which he agreed to meet with union
representatives on November 15, Sipple asked employee Hall, a
card signer, who had come into the outer office when he was
preparing the letter, if he was "one of the instigators of having
these cards signed and brought in." As stated supra, Sipple
denied he had a conversation with Hall, but left unrebutted
Hall's testimony that he asked this question Respondent did
not cross-examine Hall on this testimony, nor call the three
clericals who were in the outer office when Sipple spoke to
Hall.24
I conclude and find that a few hours later on November 7,
in the warehouse where the liquor orders are made up, in the
presence of Vice President Anderson, Supervisor Schutz, and
employee Tygum, Sipple asked Hall what the card signing was
all about and Hall replied that the cards meant that the
employees were going to have a meeting with the Union to see
what it could offer them. Sipple then asked Hall about the
wage scale of the Union, and said that since he had the
confrontation with the Union, he could no longer speak to the
employees about the Union but Hall could be a spokesman for
him to let the fellows know what his views of the Union were,
and that under the union they would not be working a 50-hour
workweek, and the number of employees Respondent then
had would not be needed. I have credited Hall's testimony of
what Sipple said and Sipple's testimony of what Hall said upon
evaluation of Hall's testimony and Sipple's testimony, includ-
ing their demeanor testimony, in the context of the record as a
whole Respondent did not cross-examine Hall on his testi-
mony even though he was friendly to Respondent and
appeared by subpena as General Counsel's witness Respondent
did not call Vice President Anderson, Supervisor Schutz, or
employee Tygum to testify about the conversation although
they were present. Tygum had not signed a card.25
I conclude and find that Sipple's question to Hall on the
morning of November 7, 1967, is illegal interrogation and
violative of Section 8(a)(1) of the Act The words in the
question, particularly the word "instigators," was threatening.
An organizational program was going on. Sipple knew of the
organizational effort from the meeting he was having in his
inner office with the representatives of the Union. He also
knew about it under the small plant rule from the organiza-
tional effort pointed up by Lemke and Whiting on November
2, 1967, by the solicitation of signatures on authorization
cards.2 6 Sipple's question, in addition to being a threat on its
face, was not accompanied by the safeguards that the Board
has held should accompany an inquiry to an employee about
his union activity during an organizational effort 27
I conclude and find that Sipple's question to Hall in the
warehouse a few hours later on November 7, and his rejoinder
to Hall's reply in which he asked Hall to convey his views
about the Union to the other employees, particularly that
there would be less hours of work and less employment,
constitutes illegal interrogation, a promise of benefit to Hall,
and a threat to Hall and to the other employees. These
statements of Sipple were likewise not accompanied by the
safeguards which the Board found should accompany them
during an organizational campaign .28 President Sipple's irrita-
tion expressed in his threatening question 2 hours earlier had
resulted in the consequences the Board and the courts have
found result from this type of question by a member of
management.29 Hall, with a fear of being discharged instilled
in him by Sipple's earlier interrogation, began moving away
from the organizational effort. Sipple, quick to see Hall's
reaction to his earlier interrogation and to take advantage of it,
made the promise of benefit to Hall and the threats of less
hours of work and less employees He saw in Hall's ambiguous
answer to his question about the meaning of the cards the
seeds of an undermining of the employee support for the
Union as bargaining representative. There is nothing in the
record to show that under a contract with the Union there
would be economic consequences over which Respondent
would have no control or any other legitimate reason that
would force a reduction in hours of work and the number of
employees. The Union's contract proposal provides for a
regular workday of 8 hours and a regular workweek of 50
hours. These were the regular workday and workweek before
the organizational activity began. Sipple's statement that there
would be less hours of work and less employees under a union
contract is not protected by Section 8(c) of the Act.30
I conclude and find that on November 20, 1967, in a
meeting attended by its representatives and union representa-
tives, Respondent recognized the Union as collective-bargain-
ing representative for Respondent's employees in a unit of
drivers, helpers, and warehousemen and agreed to meet with
the Union on December 14, 1967, to negotiate a contract.
Respondent confirmed the recognition and agreement to meet
in a letter to the Union dated November 20 and received by
the Union on November 21. At the outset of the November 20
meeting, Respondent, by Attorney Curry, informed Machko-
vitz and Eaton, who represented the Union, in response to the
Union's demand of November 7 that it recognize the Union as
bargaining representative, that the termination of Lemke and
D. Halzel and Respondent's intention to terminate them
before the organizational activity began showed Respondent
had a fluctuating work force, with the result that an election
was necessary to determine if the Union represented a
majority. When Machkovitz produced the signed cards of Ford
and Hawley, the replacements for Lemke and D. Halzel, and
24 See NLRB v A P.W Products Co, 316 F 2d 899, 903 (CA
2), and Interstate Circuit, Inc v US, 306 U S 208, 225-226
25 See cases cited fn . 24, supra
26 Mobile Paint Manufacturing Company of Delavwre, Inc, 168
NLRB No 97, Struksnes Construction Co, Inc., 165 NLRB 1062,
Angwell Curtain Company, Inc v N L R B, 192 F.2d 899, 903 (C A
27 See Struksnes Construction Co,Inc , cited fn. 26, supra
28 N L R B v . Camco, Inc, 340 F 2d 803 (C A. 5), enfg in part 140
NLRB 361, and cases cited fn 26, supra
29 See Struksnes Construction, supra , and Cameo, Inc, supra
30 See Jones Packing Company , 159 NLRB 988 , enfd 396 F 2d 801
(C.A 6)
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said the Union would not consent to an election, Curry and
Sipple, on behalf of the Respondent, recognized the Union as
representative of 13 employees, including Schutz, Castle,
Burtch, and Kublenski. I credit Curry's testimony that Ramsey
and Gehring were not considered. The Union had a majority
even if Supervisor Schutz were in the unit.
I conclude and find that Respondent bargained in bad faith,
in violation of Section 8(a)(5) and (1) of the Act on December
6 and 7, 1967, by withdrawing its recognition of the Union as
bargaining representative which it gave on November 20, 1967.
Respondent, by Curry, informed Machkovitz on December 6
that he then believed that the authorization cards which
showed the Union to represent a majority on November 20
were unreliable, that there had been a change in circumstances,
and he was withdrawing Respondent's recognition of the
Union and intended to file for an election. On December 6,
Curry sent a letter to the Union, which it received on
December 7, in which he stated in writing what he said to
Machkovitz. Curry testified that the statement he made on
Respondent's behalf that the cards were unreliable was
premised on Sipple's statement to him on December 6 that
Hall asked him on December 1, 1967, what he could do about
withdrawing his card as he had been to a meeting of the Union
and the employees had wanted him to be steward, and he had
not realized when he signed the card that it would be used to
negotiate with Respondent, and Hall's decision to withdraw
the card by a letter to the Union after he had been apprised by
Sipple on December 6, on Curry's advice, that he could
withdraw it if he did it as his own voluntary act. As on
November 20 when he also referred to the unreliability of the
cards, he was not questioning the use of the authorization
cards as a method of determining majority representation.31
As can be readily seen from the language of the authoriza-
tion card Hall signed, which is stated supra, there is an
unequivocal and unambigious authorization by the signer to
the Union to act as his bargaining representative. It is an
authorization only, and not an application for membership as
well, as many are. So the clarity of the collective-bargaining
authorization is not blurred by dual purpose language that
constitutes an application for membership as well as an
authorization. Egon W Peck, attorney for Respondent, in his
letter of December 26, 1967, to the Board's Regional Office
stated that Hall told Sipple that when he signed the card on
November 2, 1967, Machkovitz told him that the decision
whether to ask or not ask for recognition would be made by
the employees at a meeting called by the Union for that
purpose, and he signed the card with that understanding, and
the signed cards were presented to Respondent contrary to
that purpose. The oral testimony of Lemke, Whiting, and
Tietz, who were present when Hall signed the card, discloses
that Machkovitz was not present when Hall signed the card,
and that when Lemke handed the card to Hall he said to him
that the employees needed his signature and the cards were for
the Union to represent the drivers and warehousemen. Mr.
Peck, who cross-examined for Respondent, did not cross-
examine Lemke, Whiting, or Tietz on this testimony. Nor did
Respondent call Hall, who was opposed to recognition on and
after December 6, 1967, to meet the testimony of Lemke,
Whiting, or Tietz, or rebut the presumption arising from the
language on the authorization card.3 2 I can only assume that if
Hall had been called by Respondent to testify he would have
testified adversely to 1t.33 I have credited the testimony of
Machkovitz, Lemke, and Whiting that at a union meeting on
November 21, 1967, the day after Respondent recognized the
Union, Hall accepted the position of employee representative
on the bargaining committee. Hall was not called by Respon-
dent to meet this testimony. Sipple corroborated it to some
extent by his testimony that Hall told him he was asked to be
steward Here again I can only conclude that if Respondent
had called Hall to testify, he would have testified adversely to
Respondent.34 This evidence shows, and I find, that Hall
signed the card, with the intention of authorizing the Union to
act as collective-bargaining representative. 35
The evidence shows, and I have found, that Hall equivo-
cated about the objective of the card signing in the conversa-
tion he had with President Sipple on November 7 in the
warehouse where the liquor orders were made up. He had been
subjected to Sipple's threatening interrogation earlier that
morning. Contrary to the objective he had when he signed the
card on November 2, that is to authorize the Union to act as
bargaining representative, he said to Sipple that he and the
other employees signed the cards to see what the Union could
offer them. First of all, it is not necessary for employees to
sign cards for this purpose They can find out easily what the
Union would seek as bargaining representative, on their behalf,
from their employer. Disclosing the benefits of representation
is a vital and necessary part of the Union's organizational
effort. There is no evidence that the Union refused to disclose
these benefits unless it was presented with cards signed by a
majority of employees. Such action by the Union would have
defeated rather than brought about its selection as bargaining
representative.
So Hall was afraid to answer truthfully Sipple's question
about the purpose of the card signing because of the earlier -
threatening interrogation, and as found, Sipple was quick to
sense the fear, take advantage of it, and play upon it by
promises of benefit and further threats. Sipple's pressure on
Hall bore fruit when Hall came to him on December 1 and said
he wanted his card back. Without this card, the Union would
not have a majority. Sipple knew that the face of Hall's card
bore language unequivocally authorizing the Union to act as
his representative, as he had the signed cards including Hall's
since November 7, and also knew that Hall and the other
employees did not have to sign cards to find out from the
Union what it could demand as bargaining representative from
Respondent on the employees' behalf. Sipple was also aware of
the threatening interrogation, and other threats, and promises
of benefit, to which Hall had been subjected as a card signer.
He was the perpetrator of them. He then exploited the
consequences of the fears he instilled in Hall, and communi-
cated to Curry, and eventually to Peck, Hall's desire to have his
card back, but withheld from these attorneys that Hall wanted
the card back not because he never intended to have the Union
represent him but because of the illegal pressures he placed on
him.
31 See Strydel Incorporated, 156 NLRB 1185 33 See Cases cited fn 24
32 Levi Strauss & Co., 172 NLRB No 57, Cumberland Shoe 34 Again see cases cited fn 24.
Corporation , 144 NLRB 1268 , and Order Amending Decision , Jan. 13,
1964 , enfd 351 F 2d 917 (C A 6)
35
Levi Strauss & Co , and Cumberland Shoe Corp , supra in 32
SIMON BROS . CO. 915
It is for these reasons, that I conclude and find that
Respondent in bad faith refused to bargain on December 6,
1967, and thereafter, by withdrawing its recognition of
November 20, 1967, on December 6, and in rejecting the
collective-bargaining principle by undermining, dissipating, and
destroying the majority representation of the Union.36
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's opera-
tions described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
To remedy Respondent's refusal to bargain, rejection of the
collective-bargaining principle, and attempt to dissipate the
majority representation of the Union, I will recommend that
Respondent be required, upon request, to bargain collectively
with the Union as the collective-bargaining representative of a
unit of Respondent's drivers, helpers, and warehousemen, but
excluding office clerical employees, guards, professional em-
ployees and supervisors, as defined in the Act, regarding wages,
hours, and other terms and conditions of employment and, if
an agreement is reached, to embody it in a signed contract.37
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, the Trial Examiner makes the
following
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of the Act
2. The Union is a labor organization within the meaning of
the Act.
3. Respondent interfered with, coerced, and restrained
employees, in violation of Section 8(a)(1) of the Act, by
interrogation, threats, and promises of benefits
4. An appropriate unit of Respondent's employees for
purposes of collective bargaining is a unit of its drivers, helpers,
and warehousemen, but excluding office clerical employees,
guards, professional employees and supervisors, as defined in
the Act.
5. On November 2, 1967, a majority of the employees in
the above-described unit designated the Union as bargaining
36 Joy Silk Mills, 85 NLRB 1263, modified and enfd 185 F 2d 732,
741 (C A.D C ), cert denied 341 U . S. 914, Levi Strauss & Co, 172
NLRB No 57 , Cumberland Shoe Corp , 144 NLRB 1268 , and Order
Amending Decision , January 13 , 1964, enfd . 351 F 2d 917 (C A 6),
Jones Packing Company, 159 NLRB 988 , enfd 396 F .2d 801 (C.A. 6),
Consolidated Rendering Company, d /b/a Burlington Rendering Com-
pany, 161 NLRB 1 , enfd 386 F . 2d 699 (C.A. 2)
37 See cases cited In. 36.
representative to represent them in collective bargaining with
Respondent regarding wages, hours, and other terms and
conditions of employment, and on November 7, 1967, the
Union requested the Respondent to bargain with it on behalf
of these employees.
6. On December 6, 1967, and thereafter, Respondent in
bad faith refused to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
7. The aforementioned unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of facts and
conclusions of law, and upon the entire record in the case, I
recommend that Respondent, Simon Bros. Co., Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees with respect to their rights to
engage in union activity, to assist Drivers, Salesmen, Ware-
housemen, Milk Processors, Cannery, Dairy Employees and
Helpers, Local Union No. 695, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-
ca, or to authorize this Union to act as their collective-bargain-
ing representative.
(b) Threatening employees and promising them benefits to
thwart the Union's organizing activity, their assisting the
Union, and their authorizing it to act as their collective-
bargaining representative.
(c) Refusing to bargain collectively with the Union as the
exclusive bargaining representative of Respondent's employees
in an appropriate unit of drivers, helpers, and warehousemen,
regarding wages, hours, and other terms and conditions of
employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-organi-
zation, to form labor organizations, to join or assist the Union
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining,
or other mutual aid or protection, or to refrain from any and
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 modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act.
(a) Upon request, bargain collectively with Drivers, Sales-
men, Warehousemen, Milk Processors, Cannery, Dairy Em-
ployees and Helpers, Local Union No. 695, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the
employees in the appropriate unit found herein of drivers,
helpers, and warehousemen, but excluding office clerical
employees, guards, professional employees and supervisors, as
defined in the Act, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment, and, if an agreement is reached, to embody such
agreement in a written contract.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its place of business in Madison, Wisconsin,
copies of the attached notice marked "Appendix."38 Copies
of said notice, on forms provided by the Regional Director for
Region 30 (Milwaukee, Wisconsin), after being duly signed by
the Respondent's representative, shall be posted by Respon-
dent, 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 Respondent to
insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 30, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.39
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial Examiner's
Decision and Recommended Order Respondent notifies the
Regional Director in writing that it will comply with the
foregoing recommendations, the National Labor Relations
Board issue an Order requiring the Respondent to take the
action aforesaid.
38 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words the Recommended Order of a Trial Examiner " in the notice In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
39 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read , " Notify said Regional
Director , in writing , within 10 days from the date of this order, what
steps Respondent has taken to comply herewith "
WE WILL NOT threaten employees or promise them
benefits to thwart the above Union' s organizing activity,
their assisting the Union, and their authorizing it to act as
their collective-bargaining representative.
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive bargaining representative of Respon-
dent's employees in an appropriate unit regarding wages,
hours, and other terms and conditions of employment.
WE WILL NOT in any any other manner interfere with,
restrain, or coerce employees in the exercise of their rights
to self-organization, to form labor organizations, to join or
assist the Union or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of
collective bargaining, or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL upon request, bargain collectively with
Drivers, Salesmen, Warehousemen, Milk Processors, Can-
nery, Dairy Employees and Helpers Local Union No. 695,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive repre-
sentative of our employees in the appropriate unit of
drivers, helpers, and warehousemen, but excluding office
clerical employees, guards, professional employees and
supervisors, regarding rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and,
if an agreement is reached, to embody it in a written
contract.
All our employees are free to become or refrain from
becoming members of Drivers, Salesmen, Warehousemen, Milk
Processors, Cannery, Dairy Employees and Helpers, Local
Union No. 695, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that
WE WILL NOT interrogate employees with respect to
their rights to engage in union activity, to assist Drivers,
Salesmen, Warehousemen, Milk Processors, Cannery, Dairy
Employees and Helpers, Local Union No. 695, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or to authorize it to act as their
collective-bargaining representative.
SIMON BROS CO, INC
(Employer)
Dated By (Representative) (Title)
Harold M. Sipple, President
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Second Floor Commerce
Building, 744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 272-3861.