State Electric Supply Co.

National Labor Relations Board - Board Decisions

Dec 8, 1970

187 N.L.R.B. 73 (N.L.R.B. 1970)

STATE ELECTRIC SUPPLY CO.
State Electric Supply Company and Local No. 21,
United Bakery Workers Retail , Wholesale and
Department Store Union, AFL-CIO. Case
9-CA-5530
December 8, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 27, 1970, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached 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 the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.2
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, State Electric Supply Company,
Huntington, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
I As the record, exceptions, and brief adequately presents the issues and
positions of the parties, the Respondent's request for oral argument is
hereby denied
2 In adopting the Trial Examiner's finding that the Union had a valid
majority of authorization cards, we do not rely on the observations in
footnote 15 of the Trial Examiner's Decision
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The instant charge
was served on Respondent on February 13, 1970,1 the
complaint issued on March 25, and the case was heard on
I All dates are in 1970, unless otherwise indicated
2 For corrections of the transcript, see the order of June 24
73
May 12. Briefs were filed by Respondent and the General
Counsel. The issues litigated related to alleged violations of
Section 8(a)(1) and (5) of the Act.
Upon the entire record,2 the following findings and
recommendations are made:
1. RESPONDENT'S BUSINESS
State Electric Supply Company, herein called Respon-
dent, is a West Virginia corporation , and is engaged in the
business of selling electrical supplies , at wholesale , through
two supply houses in West Virginia , including one in
Huntington , which is the only one here involved . Respon-
dent annually ships to out-of-State customers goods valued
at more than $50,000. It is engaged in commerce under the
Act.
II. THE UNION
Local No. 21, United Bakery Workers Retail , Wholesale
and Department Store Union , AFL-CIO, hereinafter
called the Union , is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(a)(1) by
threats of reprisal and interrogation, by soliciting the
employees to abandon the Union, and by offering an
employee an inducement not to testify in the instant
proceeding?
2. Whether Respondent unlawfully refused to recognize
the Union?
A. Sequence of Events
Respondent has about 40 employees in its electrical
supply business at Huntington, West Virginia, the bulk of
whom work in its warehouse and as inside salesmen. On
February 5, Union Agent Johnson gave a number of union
cards to Walker, a warehouse employee, who on February
11, returned 19 signed cards. About 7:30 the next morning
Respondent's secretary-treasurer, F. Weisberg, having
learned of the solicitation of employees on behalf of the
Union, addressed a group of 15 to 18 employees, and told
them inter aka, that any one who was not happy with his job
was free to resign, in which case he would receive 2 week's
pay. Also, A. Weisberg, Respondent's president, suggested
to the same group of employees that morning that they
form their own committee for the purpose of presenting
grievances to Respondent.
About 8 o'clock the same morning, Manager Merrit told
the assembled employees that Respondent could not
operate with a union and would probably have to shut
down. There was conflicting testimony as to whether
Merrit, in addition, threatened discharge if the men did not
abandon the Union, and whether he finally ordered them to
withdraw their support of the Union or "punch out." At
any rate, about 9 a.m., at least 19 employees3 did punch out
and absented themselves from work. Later the same day,
3 Rider testified to 19, Johnson gave the figure as at least 21 . There is no
need to resolve this conflict
187 NLRB No. 9
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson twice contacted Respondent's manager, Merrit,
and requested recognition of the Union as the bargaining
representative of the employees. There was conflicting
testimony regarding Mernt's response, which will be
discussed below. The next day, February 13, the Union sent
a wire to Respondent, in which, purporting to speak as the
representative of the employees, it stated that they desired
to return to work. The same day, Respondent replied by
letter, expressing its readiness to reemploy the men, but
taking pains to disclaim any intention of recognizing the
Union as their representative. The men returned to work on
the 16th. Respondent has not recognized the Union.
B. Discussion
1. The procedural issue
At the outset, Respondent attacks the sufficiency of the
charge. The original charge herein, filed on February 13,
alleged that Respondent had violated Section 8(a)(1), (3),
and (5) of the Act, but specified as the basis of the charge
only certain discriminatory discharges. However, the
charge concluded with the allegation that Respondent had
infringed on the employees' rights under Section 7 of the
Act by "the above and other acts and conduct." At the
opening of the instant hearing, on May 12, it was agreed
that the Regional Director had either dismissed or
permitted withdrawal of the foregoing 8(a)(3) allegation in
the charge,4 and the General Counsel offered in evidence
an amended charge, which had just been filed and which
alleged violations of Section 8(a)(1) and (5), setting forth in
appropriate detail the basis for these allegations. Respon-
dent objected to the amended charge on the ground of
surprise. However, it is clear that the contents of the
complaint afforded adequate prior notice of the basis of the
8(a)(1) and (5) allegations in this proceeding and that
Respondent therefore had adequate opportunity to prepare
its defense. In its brief, Respondent takes a somewhat
different tack, contending that the original charge was
defective in that, with respect to the 8(a)(1) and (5)
allegations, there was no compliance with the instruction
on the charge form that specific reference be made therein
to relevant "facts, names, addresses, plants involved, dates,
places, etc." However, in Cromwell Printery Incorporated, et
al.,5 the Board rejected an identical contention, on the
ground that the requirement of specificity in the charge
form (as well as in Section 102.12(d) of the Board's Rules
4 Respondent's brief purports to reproduce the Regional Director's
letter of March 19 , which indicates a dismissal of the 8(a)(3) allegation of
the charge and asserts that the other allegations "remain under
consideration for further processing "
5 172 NLRB No 212 (TXD)
6 See also David B Klain, 127 NLRB 776, Plains Cooperative Oil Mill,
154 NLRB 1003, 1004-05
r In its brief, Respondent contends it was prejudiced by the late filing of
such amended charge However, Respondent fails to state how it was
prejudiced by an amendment which merely supplied certain details in
support of the 8 (a)(1) and (5) allegation There is some suggestion in
Respondent 's brief that , had the amended charge been filed earlier, the
Regional Director would have been afforded an opportunity to investigate
the basis therefor and would have dismissed such charge for lack of merit
This contention assumes that, before issuing the instant complaint, the
Regional Director did not properly investigate the merits of the 8(axl) and
and Regulations) went beyond the requirements of the
Acts In any event, any lack of specificity in the original
charge herein was cured by the amended charge.?
Accordingly, Respondent's objection to the adequacy of
the charge is rejected.
2. The 8(a)(1) issues
a. F. Weisberg
Lambert testified that about 8 a.m. on February 12, F.
Weisberg, Respondent's secretary-treasurer, addressed 15
or 16 warehouse employees, stating that, if they did not
"call off" the Union, they would be discharged, threatened
to cancel Blue Cross and other benefits, and declared that
any employee who wanted to leave would be given 2 weeks'
"extra" pay. Mays' version of this speech was that F.
Weisberg asserted that there would be no union in
Respondent's establishment under any circumstances, that
existing hospitalization benefits would be abolished, and
the employees could have 2 week's pay and quit. According
to Poindexter, F. Weisberg on that occasion asked the
employees who started the Union, declared he would not
have a union, threatened to shut down, and declared that
anyone not satisfied with hisjob could receive 2 weeks' pay
and leave the premises.8
F. Weisberg explained that the occasion for his remarks
on the 12th was a report he received from his brother (A.
Weisberg) that two employees had been threatened by a
union solicitor. While denying that he uttered any of the
other remarks ascribed to him by the employee witnesses,
F. Weisberg admitted that he told the men that they did not
need a Union, urged them to reconsider, and offered to
discuss their problems and "do anything we can to help
them." He admitted, also, the offer of 2 weeks' pay to any
employee who was not happy and wished to resign, but
insisted that this was merely a statement of Respondent's
long-standing policy of making such payment to any
employee who quit for personal reasons. However that may
be, the fact remains that in the midst of a union campaign,
and in the context of an antiunion speech, Respondent
admittedly did invite any malcontents to quit, offering
them an inducement to do so in the form of 2 weeks' pay.
Under the circumstances, it must have been clear to the
employees that the foregoing invitation was addressed to
the union adherents among them, and that the message that
was being conveyed was that such adherents were persona
non grata and their departure would be welcome. Thus,
(5) allegations in the original charge The only apparent basis for this
assumption is that the more detailed amended charge was not filed until
after the complaint issued However, the fact remains that , without the aid
of a detailed charge, the Regional Director developed sufficient evidence to
enable him to draft a complaint, which set forth in adequate detail the
alleged violations of the Act
Under these circumstances, one cannot assume that the delay in filing
the amended charge precluded the Regional Director from conducting a
proper investigation Nor is there any reason to suppose, in any event, that
he would have reached a different conclusion as to the merits of the
original charge if the amended charge had been sooner filed , for, the latter
instrument does not conflict with, but merely amplifies, the former
" Employee Dunford testified that on that occasion either Fred
Weisberg or his brother, Arthur, told the employees to renounce the Union
or they would all "go "
STATE ELECTRIC SUPPLY CO. 75
even if one accepts F. Weisberg's version of his speech, it
would be necessary to find that it was calculated to serve as
a warning to the employees that union adherents had no
future with Respondent and that it would take advantage of
any opportunity to hasten their departure. It follows that by
such conduct Respondent violated Section 8(a)(1).
Moreover, on the basis of demeanor, I credit the mutually
corroborative testimony of Lambert and Mays that on that
occasion F. Weisberg warned that certain benefits would be
withdrawn in reprisal for employee union activity, and the
testimony of Lambert, which was substantially corroborat-
ed by Poindexter, if not by Mays, that F. Weisberg
threatened that adherence to the Union would result in loss
of employment.9 It is accordingly found that by such
threats Respondent additionally violated Section 8(a)(1) of
the Act.
b. Merrit
In the morning of the 12th, Manager Merrit arrived at
Respondent's premises just as F. Weisberg was completing
his remarks to the employees, and Merrit took over at that
point. On the basis of the mutually corroborative testimony
of Lambert, Poindexter, and Rider, it is found that Merrit,
on that occasion, declared that the employees would have
to choose forthwith between giving up the Union or giving
up their jobs. I find further that, as Rider testified, and
Merrit, himself, in effect admitted, he threatened that
Respondent would shut down rather than deal with a
Union.10
Rider testified, also, that both he and Walker were
interrogated on the same occasion about their solicitation
on behalf of the Union. Merrit professed to be unable to
recall any such interrogation, but admitted that he might
have asked the assembled employees what the Union could
do for them. Even such interrogation, in the context of the
threats described above, would be coercive. Moreover,
absent any unequivocal denial by Merrit, I credit Rider's
testimony as to the interrogation of himself and Walker,
and it is found that by such conduct, as well as by the
threats uttered by Merrit, as found above, Respondent
additionally violated Section 8(a)(l).
The complaint alleges that on February 12 Respondent's
9 Poindexter's testimony about a threat to shut down, in the context of
an antiunion speech , is little different in substance from Lambert's
testimony about a threat to discharge all those present, if they did not
abandon the Union. While Mays mentioned only an assertion that
Respondent would not operate under a Union under any circumstances,
such remark was readily construable as meaning that rather than deal with
a Union Respondent would discontinue its operations . It is unnecessary to
decide whether F. Weisberg uttered all the variations of the same theme
thus ascribed to him by the three employees. It suffices that all three were
in agreement that in one form or another he expressed the thought that
union activity was incompatible with the maintenance of existing
operations and existing employment opportunities . (Since there was no
evidence that Arthur Weisberg made any similar threat, it is found that
Dunford's testimony (see preceding footnote) had reference to a remark
made by Fred Weisberg, and it is to that extent corroborative of the like
testimony by the other three witnesses on this point.)
10 Merrit's version of his remarks was that he stated only that
Respondent would be "forced to shut down " because "it couldn't have a
union in this type of business." At a later point in his testimony, Merrit
added that he explained to the employees that Respondent could not
remain competitive under a union . Even if one credits such testimony,
Merrit's remarks would not qualify as a prediction of economic
warehouse foreman, B. Mills, "informed employees to form
a group and decide on giving up all activity for the Union."
Rider testified that at the conclusion of Merrit's remarks
on the 12th, B. Mills, an admitted supervisor, instructed the
assembled employees to caucus privately and decide
whether they would renounce their union activity or walk
out, that the employees did caucus, that Walker reported to
Merrit and B. Mills, that the employees had decided to go
out on strike, and that 19 employees then left pursuant to
this decision. Poindexter confirmed that the employees
caucused in private that morning to consider Merrit's
ultimation that they choose between their jobs and the
Union, and elected to walk out rather than give up the
Union. However, Poindexter was silent as to any involve-
ment by B. Mills in the incident. Lafferty agreed that there
was such a caucus, which resulted in the walkout, but
insisted that the caucus was suggested by F.-Weisberg
rather than B. Mills. Dunford's version was that the
walkout was in response to an ultimatum by the Weisbergs
to renounce the Union or quit.
B. Mills denied that he suggested the caucus, and
Merrit's version was that the employees asked for
permission to discuss in private among themselves whether
to remain at work or walk out in support of the Union, that
he and B. Mills then left the room, and that they were
thereafter told by the employees that they had decided to
walk out.
It is clear, therefore, that, while there was general
agreement that the employees caucused on the question of
what action to take with regard to the Union, and that they
told management that they had decided to walk out as a
demonstration of their adherence to the Union, there was
conflicting testimony as to who instigated the caucus, and
as to whether it was suggested by management or
originated with the employees. It would serve little purpose
to resolve this conflict, since it has already been found that
Merrit had earlier given the employees a choice between
quitting the Union or theirjobs,ll so that all that is involved
here is the question whether B. Mills in effect seconded this
ultimatum by urging the employees to consider those
alternatives in a private caucus. As any finding on that
point would not affect the remedy, I do not pass on the
allegation as to B. Mills. A. Weisberg admitted that, as
consequences beyond Respondent 's control , under the test laid down by
the Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. There, it was
held that, to qualify as such a prediction , the employer's statement "must
be carefully phrased on the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences beyond his control or to
convey a management decision already arrived at to close the plant in case
of unionization." Here , there is no evidence or claim that any such decision
had actually been made, and to assert, even before the Union had made
any demands, that unionization would so far impair Respondent's
competitive position as to force it to close is not, so far as the record shows,
a statement of "demonstrably probable consequences" or, as the Court put
it elsewhere in its opinion , a "reasonable prediction based on available
facts." See Rounsaville of Nashville, Inc., 182 NLRB No. 89; General
Electric Wiring Devices, Inc., 182 NLRB No. 130.
11 Although the caucus was apparently for the purpose of considering
what action to take in response to this ultimatum , I do not construe the
walkout as a mass resignation , but, in view of Rider's aforenoted testimony
that Walker advised Merrit that the employees had decided to strike in
support of the Union, and in the absence of any evidence of any other
purpose of the walkout, it is found that it was in fact a strike rather than a
mass quit.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related above, in the morning of the 12th he suggested to a
number of employees that they form a committee for the
purpose of presenting grievances to Respondent. The clear
implication of this was that such action would obviate the
need for representation by an outside union. While this was
not alleged as a violation, the matter was sufficiently
litigated and was sufficiently related to other allegations of
the complaint. Accordingly, it is found that by the
foregoing suggestion Respondent further violated Section
8(a)(l).12
3. The 8(a)(5) issue
a. The appropriate unit
The complaint alleges, it was in effect stipulated at the
hearing, and it is found, that the following unit is
appropriate for collective bargaining:
All Respondent's employees at its Huntington, West
Virginia, location , including inside sales personnel, ware-
house employees, and miscellaneous truckdrivers, but
excluding all outside salesmen, office clerical employees,
and supervisors as defined in the Act.
b. The Union's majority status
It was agreed at the hearing that on February 12, there
were 31 employees in the foregoing unit,13 and there were
received in evidence 21 cards, which were duly proved to
have been signed by such employees. Of these cards 19 were
signed and delivered to the Union before the 12th, and 214
were signed and delivered to the Union in the morning of
the 12th, after the mass walkout. The cards contained no
reference to an election , purporting only to be applications
for membership in the Union and authorizations of the
Union to represent the subscribers in collective bargaining
concerning terms of employment.
Virtually all the signatures on the cards were obtained by
Walker, who testified that, in supplying him with the cards,
Union Agent Johnson explained (a) that they would be
submitted to the Board' s Regional Office to "verify" that
the Union had the support of the employees, (b) that at the
same time the Union would seek recognition from
12 The complaint was amended at the hearing to allege unlawful
inducement of Rider by A Weisberg not to attend the instant proceeding
Rider testified that a week before the instant hearing, when Rider referred
to the fact that he was going to attend such hearing , A Weisberg offered
him one week 's pay to stay out of court A Weisberg admitted that Rider
indicated his intention to testify at the hearing but denied that he was
offered any inducement not to appear The witness added that Rider on
that occasion made some remarks indicating a vindictive attitude toward
Respondent As Rider did not dispute the latter testimony , I am reluctant
to credit him wherever contradicted , absent corroborating testimony or
circumstances . Accordingly, it will be recommended that this allegation be
dismissed.
13 G. C. Exh. 4 lists 33 names , but it was stipulated that two were
employed at another location
14 The cards of Mays and Booth
is While the Board , with court approval, does not give any weight to
testimony by a card signer concerning his subjective intent, where such
testimony is offered to "negative the overt action of having signed a card"
(Levi Strauss & Co, 172 NLRB No. 57, Joy Silk Mills, inc. v N LR B, 185
F.2d 732 (C.A D.C )), the reason for this is the unreliability of such a
recantation by an employee "under the scrutiny of company counsel and
officials" (N L R B v. Southbridge Sheet Metal Works, 380 F 2d 851 (CA
1), NLRB v Preston Products, 392 F 2d 801 (C A D C )), and
Respondent, and (c) that, if that was refused, the men
would walk out and the Union would then seek an election.
Walker averred that he repeated this explanation to any
employee who asked about the purpose of the cards.
Although he pleaded inability to recall what other reference
he may have made to an election, Walker insisted that he
did not say that the cards were needed for an election or
that there would have to be an election.
Walker added that Johnson explained that the cards
imposed no obligation on the employees other than the
acceptance of union representation.
Respondent seeks to invalidate certain of the cards on the
ground that they were obtained by misrepresentation.
Consideration of these cards follows.
Booth's card was one of the two signed on February 12,
after the employees walked out. He testified variously (a)
that he was told only that the purpose of the card was to
obtain Union recognition, and (b) that Walker represented
that the only purpose of the card was to get an election.
While asserting that he signed the card to get an election,
the witness explained that he wanted an election as a means
of obtaining representation by the Union. As already
stated, Walker denied that he told any employee that the
cards were needed for an election. By the time of the
hearing, Walker had admittedly become disenchanted with
the Union, and, being no longer desirous of union
representation, had no reason to testify falsely in aid of the
Union's cause . Accordingly, while Booth seemed to be a
sincere witness , Walker's contrary testimony and Booth's
own conflicting versions of Walker's remarks impel the
conclusion that Booth either misunderstood, or was
honestly mistaken in his recollection of, Walker's remarks
and that Walker did not tell him that the sole purpose of the
card was to get an election . In any event, it is clear from
Booth's testimony that he did not sign the card because he
wanted to get the union solicitor "off his back" or expected
to have a chance to vote for or against the Union in a secret
ballot election, after having considered the matter further,
but that at the time of signing he had already made up his
mind that he wanted the Union and regarded an election, if
one was held, only as a means of reaffirming that decision
and obtaining union representation.15 That Booth's
"particularly where company officials have previously threatened reprisal
for union activity " N L R B v. Gissel Packing Co, 395 U S 575, 608
There is no comparable reason for rejecting such subjective testimony
where, as here , it does not negate, but dovetails with, the evidence of intent
supplied by the overt act of signing and is delivered despite the open
hostility of Respondent to the Union and despite prior threats of reprisal
for union activity Moreover, where respondent seeks, as here , to set aside a
card for false representation, it does not suffice to show only that such a
representation was made. Here , as in any other branch of an jurisprudence,
a misrepresentation alone will have no legal effect unless it was relied on,
or, as the Board put it in Levi Strauss & Co, supra, unless there is
"affirmative proof that the signing was the product of misrepresentation
" (Emphasis supplied.) Thus, where a solicitor falsely states that the
only purpose of the card is for an election, but the employee signs it, not
because he particularly wants an election, but because he has a present
desire for union representation and regards an election as an opportunity
to express that desire, it cannot be said that the card would not have been
signed but for the misrepresentation It is not apparent , therefore, how it
can be determined that the signing of a card is the product of
misrepresentation without delving into the employee 's reason for signing
In some cases, it may be possible to infer such reasons from objective
circumstances, as where the employee contemporaneously demonstrates his
present desire for union representation by joining in a strike in support of
STATE ELECTRIC SUPPLY CO. 77
paramount object in signing the card was to obtain union
representation is confirmed, moreover, by the objective
circumstance that he joined in the mass walkout, and that
he did so, as he testified, to demonstrate his desire for
representation by the Union. It follows that, even if it be
assumed that Walker represented the purpose of the card to
be solely to obtain an election, that was not what induced
Booth to sign the card, and, absent such inducement, there
is insufficient basis for invalidating the card. Booth's card
will be counted.
Gibson, who signed on February 10, was not clear as to
who solicited him, opining at one point that he did not
think it was Walker, but elsewhere expressing the belief that
Walker told him he could withdraw the card at any time. As
the only other solicitor for the Union, so far as the record
shows, was C. Stutter, who testified only that he obtained a
signed card from V. Mills, and, in view of Gibson's own
foregoing reference to Walker, it is inferred that he was the
union solicitor in this instance. Gibson added that such
solicitoi made no reference to an election, explaining only
that the purpose of the card was to "get a Union in State
Electric." Gibson joined in the walkout. Respondent
appears to contend, nevertheless, that his card should be
rejected because of the assurance given Gibson that he
might withdraw the card at any time. The Board has
indicated that it regards as misleading a representation that
the signing of a union card imposes no obligation, because
of the implication therein that no legal consequences may
attach to such signing, whereas such consequences may in
fact attach if a recognition demand is made on the basis of
the cards while they are still unrevoked.16 However, it is
difficult to see how any fault can be found with the instant
statement that the cards may be withdrawn or revoked at
any time. That is a correct statement of the law so far as it
goes,17 and expresses no view as to the effect of such
revocation on the Union's right to continue to represent the
employees. I do not believe that the failure to spell out all
the consequences of revocation, including the circum-
stances under which revocation would affect the Union's
right to continue to represent the bargaining unit,
constitutes adequate ground for invalidating a card.
Certainly, it cannot be said here that the unambiguous
language of the card was "deliberately and clearly canceled
... with words calculated to direct the signer to disregard
and forget the language above his signature." 18 In any
event, since Gibson's participation in the walkout in
response to Respondent's ultimatum that the employees
the union, which is what happened here However, absent such objective
evidence, inquiry into the employee's state of mind to determine the extent
of his reliance on the misrepresentation would seem unavoidable
16 Silver Fleet, Inc, 174 NLRB No 141, Eckerd's Market, Inc, 183
NLRB No 40
i7 While there was evidence that Walker in a few cases (discussed
below) refused to honor a request for return of the card, such return was
not essential to revocation , it being sufficient that the employee manifested
his intent to revoke , and such intent is given due effect below with respect
to such cards
18 N L R B v Gissel Packing Co, 395 U S 575, 606
is He testified that he left soon after hearing Merrit's ultimatum to the
employees either to repudiate the Union or punch their timecards and
leave I infer from this that he left tojoin the walkout This is confirmed by
the mutually corroborative testimony of Rider, Poindexter, and Merrit,
himself, that all those who attended the meeting with Merrit walked out in
response to his ultimatum
choose between their jobs and the Union reflected a
deliberate decision to cast his lot irrevocably with the
Union, such participation should resolve any doubt as to
the firmness of his desire for union representation. Gibson's
card will be counted.
Lambert, who signed on the 10th, testified variously that
Walker told him the purpose of the card was (a) to
"organize the Union in State Electric Supply Company,"
(b) "to vote a Union in," and (c) to have an election, and
that after 30 days the employees would not be "obligated to
anything." However, Lambert insisted that he signed, not
because he wanted an election , but because he wanted a
Union. He joined the walkout on the 12th to demonstrate
his allegiance to the Union. 19 His case appears to be on all
fours with Booth's.20 Lambert's card will be counted.
Ross, who signed a card on February 10, testified
variously (a) that Walker said that the purpose of the cards
was to find out whether or not there were enough
employees who wanted to vote for the Union, (b) that "to
his understanding" Walker said the purpose of the cards
was "to have an election," and (c) that Walker said that the
cards were not binding to any extent. Ross joined in the
walkout and insisted that he signed the card because he
wanted the Union. In view of Walker's contradiction of
Ross' testimony insofar as it implies that Walker said the
only purpose of the card was to obtain an election, as well
as the vagueness of such testimony, I find that Ross was
mistaken in that regard. Walker's alleged representation
that the purpose of the cards was to determine the extent of
prounion sentiment would seem to be substantially
accurate. As for his disclaimer that the cards had any
binding effect, there was no unequivocal denial by Walker
of such disclaimer and Ross ' testimony to that effect is
therefore credited. However, since it is clear from Ross'
testimony, as well as his conduct in joining the walkout,
that he signed the card because of a firm desire for union
representation, and not because of any reliance on the
foregoing disclaimer, his card will be counted.21
Dempsey, who signed his card on the 10th, testified that
he was not sufficiently literate to read, that the card was
read to him by Walker, and that he did not recall any
reference by Walker to an election, but that Walker did
promise that, if the employees decided within 30 days that
they did not want the Union, they could "drop" it.
Dempsey joined the walkout. That Dempsey had a firm,
present desire for union representation is clear not only
from the fact that he signed the card but also from his
20 The only noteworthy difference is the alleged remark by Walker to
Lambert that the card imposed no obligation after 30 days Walker pleaded
no recollection of any discussion with Lambert concerning the obligatory
effect of the card At any rate , it is clear from what has been said above
that Lambert signed the card because of a present desire for representation
by the Union, and it would be sheer speculation to say that he was
influenced to any extent by any implication in Walker's remarks that the
card would have no binding effect after 30 days and that any decision the
employees had made in favor of union representation could then be
rescinded Moreover, in joining the walkout , in response to Respondent's
ultimatum, Lambert, like Gibson, showed that he had no reservations
about an irrevocable commitment to the Union
21 In this respect Ross' case, like those of Lambert and Gibson, is
distinguishable from Silver Fleet, supra, and Eckerd's Market, supra, where
there was no objective circumstance (and little other evidence ) to show that
the signing of the card was not the product of the misrepresentation
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in the walkout. For reasons already stated,
particularly the fact that Dempsey participated in the
walkout, I do not regard Dempsey's testimony concerning
Walker's assurance that the men could "drop" the Union
within 30 days as requiring invalidation of Dempsey's card.
It will be counted.
J. Martin, who signed on the 10th, testified that Walker
asked him to sign the card "for the purpose of a Union,"
and, although initially stating that he "understood" Walker
to say that the cards "would represent us in an election,"
almost immediately thereafter confessed that he did not
remember what Walker did say. The witness insisted,
however, that he read the cards and understood their
purport and that he knew the cards were "for a Union." J.
Martin joined in the walkout. Such objective demonstration
of his prounion sentiments serves to dispel any doubt about
his reason for signing the card and dispenses with any need
to evaluate his self-contradictory and vague testimony
about Walker's remarks. His card will be counted.
Lively, who signed on the 11th, testified that, in soliciting
him, Walker said that there would be an election and that a
majority was needed . I do not regard this as implying that
the card would not be used for the purpose stated thereon.
In view of this, as well as the fact that Lively demonstrated
his union sentiments by joining the walkout, his card will be
counted.
V. Mills, who signed on the 10th, testified that he was
solicited by C. Stutler and was told that, if enough cards
were signed, there would be an election. However, C.
Studer denied that he made such a statement, and V. Mills
could not say who made it. In view of V. Mills' vagueness
and C. Stutler's denial, it is found that he did not make the
foregoing representation and there is insufficient basis in
the record for finding when it was made or by whom. Since,
upon the present record, it might as well have been made
after the signing of the card, as before, such representation
cannot, for that reason alone, affect the validity of the card.
In, any event, here, as in the case of Lively, the
representation was not of su.-h a nature as to require
rejection of the card. It will be counted.
Dunford, who signed on the 10th, testified variously that:
(a) in soliciting him, Walker told him the card was "for a
Union," and the witness signed for that reason, (b) Walker
asked him only if he wanted to sign the card, (c) Walker
told the employees, the day before he began to solicit them,
that he would have to take a vote to see if the majority
wanted the Union, and that there would be an election, but
he made no reference to the cards at that time, (d) Walker
told the employees that the purpose of the cards was to see
if enough men wanted a Union to warrant holding an
election and that, if enough of them signed, there would be
an election to determine the question of union representa-
tion, but the foregoing remarks were made several days
after the witness signed his card, and (e) in soliciting the
employees Walker said the cards would be counted to see
how many wanted the Union and "then they'd go on from
there," but he made no reference to an election at that time.
While there is much apparent confusion and self-contradic-
tion in the foregoing testimony, it is clear at any rate that
Dunford did not claim that before he signed his card he
heard any representation by Walker linking the cards to an
election or implying that the cards would be used solely to
obtain an election and that the only statement that could
possibly be so interpreted was made several days after
Dunford signed (by which time the Union had already
made its request for recognition ). Moreover , Dunford made
his desire for union representation abundantly clear by
joining the walkout , explaining at the hearing that he and
the others walked out because they did not want to give up
the Union . His card will be counted.
Perry, who signed on the 10th , testified , in effect, that he
was told by Walker that the cards "were supposed to be in
an election ." However , he promptly disclaimed any
imputation to Walker of any reference to an election. Perry
joined the walkout . Even if one credits his apparently
retracted testimony that Walker said the cards would be
used in an election , such testimony would not invalidate
Perry's card , particularly in view of his participation in the
walkout. His card will be counted.
Lafferty signed his card on the 10th but on the 11th asked
Walker to return his card , which Walker refused to do.
Lafferty did not join in the walkout . His card will not be
counted.
Jeffrey testified that he signed a card on the IOth and that
his request for return of his card on the 11th was rejected by
Walker . The latter professed to be unable to recall whether
he received such a request . Jeffrey did not join in the
walkout . Absent any unequivocal contradiction thereof by
Walker , Jeffrey's testimony as to his attempt to revoke is
credited and his card will not be counted.
It has been found that, of the 21 signed cards, only
Jeffrey's and Lafferty 's may not be counted . It follows that
on February 12, the Union had 19 valid signed cards, which
constituted a clear majority of the 31 employees in the
appropriate unit.
c. The demand and refusal
Union Agent Johnson testified that about 10 o'clock in
the morning of the 12th he proceeded to Respondent's
place ri' business, found that the employees had already
walkeu out, and, approaching Manager Merrit, told him
that the Union had obtained signed cards from a majority
of Respondent's employees and asked for recognition.
According to Johnson Mernt rejected the request, declaring
that Respondent would sooner sell its business, move, or
shut down. Johnson added that that afternoon he again
spoke to Memt and asked for recognition, offering to show
the signed cards, but was again rebuffed. The next day,
when the Union transmitted to Respondent, on behalf of
the striking employees, their offer to return to work,
Respondent replied, inter aha, that it did not recognize the
Union's representative status and that the proper way to
achieve such status was through a Board election.
While acknowledging that Johnson asked for recognition
in the morning of the 12th, and that he might have told
Johnson that Respondent would liquidate rather than deal
with the Union, Merrit contended that he indicated at the
same time that he would have to take the matter up with the
Weisbergs but that he in fact failed to do so. He admitted
the second request for recognition that afternoon but
professed to be unable to recall what reply he made.
Respondent's president, A. Weisberg, testified that he
STATE ELECTRIC SUPPLY CO. 79
talked to Merrit about the Union between 10 and noon on
the morning of the 12th, but was evasive as to what he
learned that day of Johnson's request for recognition.
However, the witness finally admitted that in the afternoon
of the 12th he was told by Merrit that he had spoken to a
"man" who was trying to organize the employees and
claimed to have cards signed by them.
It is found, therefore, that there were two direct requests
for recognition on the 12th, in addition to the representa-
tion claim in the Union's wire on the 13th, and that on the
latter date Respondent disclaimed any intention of
recognizing the Union without a Board election. Moreover,
on the basis of demeanor, I credit Johnson's testimony that
in the morning of the 12th Merrit flatly refused recognition
threatening liquidation of Respondent, and I further credit
Johnson's further testimony, which was not disputed by
Merrit, that in the afternoon of the 12th the latter again
rejected a request for recognition of the Union.
It is, accordingly, found that both on the 12th and on the
13th Respondent refused to recognize the Union, and has
persisted in such refusal.22
It has already been found that the majority of those in the
appropriate unit had validly designated the Union as their
representative at the time of Respondent's refusals of
recognition and that Respondent in the morning of the 12th
repeatedly threatened reprisals against the employees on
account of their union activity.
Respondent contends that any refusal by it to recognize
the Union may, nevertheless, not be deemed unlawful
under the rule of the Gissel case, supra, pointing to the
holding therein that the Board may issue a bargaining order
based on a card majority, where the employer has engaged
in unfair labor practices, only if the Board finds that they
are of such a nature that it is unlikely that their effect on the
employees can be erased by traditional remedies. Respon-
dent contends that such a finding is precluded here, inter
alia,23 (a) because of the "minimal" nature of Respondent's
unfair labor practices and (b) because the fact that the
employees walked out despite such unfair labor practices
demonstrated that they had no effect on their desire for
union representation.
As to (a), it has been found that in the morning of
February 12, in captive audience speeches addressed to a
majority of the employees in the unit, Respondent's top
management , inter alia, threatened to discharge all union
22 In its original answer , Respondent admitted the allegation of the
complaint that the Union on February 12, made an oral request for
recognition as the bargaining agent of the employees in the unit found
above to be appropriate. While, at the hearing, Respondent amended its
answer to deny this allegation, Respondent's counsel answered in the
affirmative when asked to stipulate that G. C. Exh. 9 represented a list of
"the employees in the appropriate unit in which the demand was made on
February 12, 1970, for recognition by the Union," and, in its brief,
Respondent makes no reference to this matter. It would seem therefore
that Respondent does not dispute that there was a proper bargaining
demand. In any case, the record warrants a finding to that effect for the
following reasons:
It is clear from the findings in the text above that requests for
recognition were addressed on February 12, by Johnson to Merrit, who
was the manager of the instant operation, that he purported to speak for
Respondent in rejecting such request, and that Respondent on February
13, in writing confirmed such rejection. These circumstances suffice to
establish a request for recognition and a refusal. There remains only the
question of what employees Johnson was claiming to represent, when he
appeared on the scene during the walkout. While his testimony was not
adherents, to shut down the plant rather than deal with the
Union, and to withdraw certain fringe benefits because of
employee union activity, and ordered the employees to give
up the Union or punch out, thereby in effect conditioning
their future employment on abandonment of union activity.
While Respondent later permitted them to return to work,
there is no evidence that it has at any time announced to the
employees any change in its attitude toward the Union or
their union activities or publicly retracted its avowed
determination to shut down rather than deal with the
Union. In Gissel, 24 itself, the Court approved the issuance
of a bargaining order, where the unfair labor practices
consisted only of communications from management to the
employees which were calculated to convey the impression
that selection of the union by the employees in an election
could lead to closing of the plant. And, since Gissel, the
Board has held that violations of Section 8(a)(1) far less
pervasive than those here involved rendered unlikely the
holding of a fair election and that the issuance of a
bargaining order was therefore warranted.25
As for (b), this is in effect a contention that the mass
exodus by 19 employees on the 12th demonstrated that
Respondent's coercive acts did not succeed in undermining
their allegiance to the Union and so did not preclude the
holding of a fair election. However, it is not clear how
Respondent can contend, on the one hand, that the Board
should treat such exodus as a manifestation of unwavering
support for the Union by the majority of the unit
employees, and, on the other hand, contend that at the time
of the Union's demand there was a question concerning
representation, which could be resolved only by a Board
election. It must have been as apparent to Respondent then
as it is now that those who walked out in response to
Respondent's ultimatum still wanted the Union, despite
Respondent's campaign of intimidation, and that they
constituted a clear majority of its warehouse employees. In
Pacific Abrasive Supply, Co.,26 the Board pointed out that
the Court in Gissel had left open the question whether an
employer, even though he engages in no unfair labor
practices, nevertheless violates Section 8(a)(5) by refusing
to grant recognition to a union, if "he has knowledge
independently of the cards that the union has a
majority."27 In Pacific Abrasive the Board found that,
independently of the cards presented to the respondent, it
had knowledge of the union's majority status from
specific on this point, the inference is warranted that he was claiming to
represent all employees in the categories involved in the walkout-namely,
the warehouse employees, truckdrivers and inside salesmen . Moreover, that
Respondent understood that these were only categories involved in the
Union's organizing campaign is indicated by the fact that, as the record
shows, they were the only ones summoned by the Weisbergs in the
morning of the 12th to hear their anti-Union remarks.
23 There is no need to dwell on Respondent's contention at this point
that no violations of Section 8(a)(1) have, in fact, been proved. Nor is there
any need to discuss at length Respondent's apparent contention that Gissel
requires a showing of coercive conduct occurring after a demand for
recognition has been made or after an election petition has been filed. I do
not so read Gissel.
24 N. L. R. B. v. Gissel Packing Co., supra, 615-620.
25 Dawson Metal Products, Inc., 183 NLRB No. 25.
26 182 NLRB No. 8.
27 Elsewhere, the Court described the Board 's position in this regard as
being "that an employer could not refuse to bargain if he knew, through a
personal poll for instance , that a majority of his employees supported the
union ...:. N. L. R. B. v. Gissel Packing Co., supra, 594.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversations with the employees and from the fact that all
those in the unit had struck in support of the union's
request for recognition. The Board concluded from this that
there was "no dispute as to the question of representation at
the time of Respondent's refusal to grant recognition and
thereafter" and that such refusal therefore violated Section
8(a)(5), even though Respondent had engaged in no other
unfair labor practices. So, here, even if it be assumed that
Respondent's coercive conduct did not preclude the
holding of a fair election, it would be proper to find that its
refusal to recognize the Union violated Section 8(a)(5),
because there was "no dispute as to the question of
representative at the time of Respondent's refusal to grant
recognition," a clear majority of the unit employees having
elected to demonstrate to Respondent their adherence to
the Union by walking off their jobs.
It is accordingly found (a) that there was no dispute as to
the question of representation, in that Respondent had
independent knowledge of the Union's majority status
when it sought recognition, and Respondent's refusal of
recognition was therefore unlawful for that reason alone;
and (b) that, even if there were here a dispute about
representation , Respondent's unfair labor practices were so
pervasive as to render it unlikely that traditional remedies
will insure the holding of a fair election, and reliance on the
Union 's cards and issuance of a bargaining order is
therefore appropriate under Gissel.
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 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 within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be directed to cease
and desist therefrom and, upon request, bargain collectively
with the Union as the exclusive representative of all
employees in the unit set forth above and, if an
understanding is reached, embody such understanding in a
signed agreement.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act:
All employees of Respondent at its Huntington, West
Virginia , location, including inside sales personnel,
warehouse employees, and miscellaneous truck drivers,
but excluding office clerical employees and supervisors
as defined in the Act
4. At all times since February 11, the Union has been
the exclusive representative of the employees in the
aforesaid unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. By refusing on February 12 and thereafter to bargain
with the Union as the exclusive representative of the
employees in the said appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. By ordering employees to abandon their union
activity or quit work, by urging them to form their own
grievance committee rather than seek union representation,
by coercively interrogating its employees about their union
activities, by threatening them with discharge, loss of
benefits, and plant shut down on account of such activity,
by soliciting the resignation of union adherents, and by
offering them a bonus to do so, Respondent has interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed to them by Section 7 of the Act and
thereby has violated Section 8(a)(l) of the Act.
7. The aforesaid 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 fact and
conclusions of law and upon the entire record in this case, it
is recommended that Respondent, State Electric Supply
Company, Huntington , West Virginia , its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about their
union activities.
(b) Threatening its employees with plant shut down,
discharge , or loss of economic benefits if they become
members of , or assist, Local No . 21, United Bakery
Workers Retail , Wholesale and Department Store Union,
AFL-CIO.
(c) Soliciting union adherents to quit their employment
and offering them inducements to do so.
(d) Suggesting to employees that they form their own
organization to represent them in dealing with manage-
ment , instead of seeking representation through an outside
union.
(e) Ordering employees to abandon their union activity or
quit work.
(f) Refusing to recognize and bargain with said Union as
the exclusive representative of its employees in the
following unit:
All employees of Respondent at its Huntington, West
Virginia , location , including inside sales personnel,
warehouse employees , and miscellaneous truck drivers,
but excluding office clerical employees and supervisors
as defined in the Act.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act, except as
permitted by the proviso in Section 8(a)(3).
STATE ELECTRIC SUPPLY CO.
2. Take the following affirmative action , which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with Local No. 21,
United Bakery Workers Retail , Wholesale and Department
Store Union , AFL-CIO, as the exclusive representative of
all the employees in the appropriate unit described above,
and, if an understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its Huntington , West Virginia , establishment
copies of the attached notice marked "Appendix." 28 Copies
of said notice , on forms provided by the Regional Director
for Region 9 shall be signed by Respondent 's authorized
representative , and posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing 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.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.29
29 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided by Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals , the words in the notice reading "POSTED BY ORDER OF
THE NATIONAL LABOR BOARD" shall be changed to read "POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT
OF APPEALS, ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD"
29 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
had taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self -organization
To form , join , or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
81
To refrain from any and all of these things
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT ask you questions about your activity
on behalf of Local No. 21, United Bakery Workers
Retail , Wholesale and Department Store Union,
AFL-CIO, or any other union.
WE WILL NOT threaten you with loss of your job or
any benefits you now have unless you give up your
union activity.
WE WILL NOT threaten to shut down our business
because of the Union.
WE WILL NOT ask those employees who want a union
to quit theirjobs or order them to punch out unless they
give up the Union.
WE WILL NOT tell our employees to set up their own
grievance committee instead of bringing in a union to
represent them.
WE WILL recognize Local No. 21, United Bakery
Workers Retail , Wholesale and Department Store
Union , AFL-CIO, as the only collective -bargaining
representative of our employees in the bargaining unit
which is:
All our employees at Huntington , West Virginia,
including inside salesmen , warehouse employees
and miscellaneous truckdnvers , but excluding
office clerical employees and supervisors as
defined in the Act.
WE WILL bargain on request with that Union on
wages , hours , and conditions of employment and any
agreement we reach will be put in writing and signed.
All our employees are free tojoin or not tojoin Local No.
21, United Bakery Workers Retail , Wholesale and Depart-
ment Store Union , AFL-CIO.
Dated By
STATE ELECTRIC SUPPLY
COMPANY
(Employer)
(Representative ) (Title )
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office, Room
2407, Federal Office Building, 550 Main Street Cincinnati,
Ohio 45202, Telephone 513-684-3663.