United Cigar-Whelan Stores Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1955

114 N.L.R.B. 1219 (N.L.R.B. 1955)

UNITED CIGAR-WHELAN STORES CORPORATION 1219
operations, excluding sawmill employees, office clerical employees,
guards, and supervisors as defined in the Act, constitute an appropriate
unit for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.5
[Text of Direction of Election omitted from publication.]
MEmBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
5 The unit description was stipulated by the parties.
United Cigar-Whelan Stores Corporation and Whelan Drug Com-
pany, Inc. and United Transport Workers of America, Ind.
Case No.10-CA-2023. November 30,1955
DECISION AND ORDER
On July 1, 1955, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent Whelan Drug Company, Inc., herein called Whelan, had en-
gaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that Respondent Whelan had
not engaged in certain other unfair labor practices and that Respond-
ent United Cigar-Whelan Stores Corporation, herein called United,
had not violated the Act, as alleged in the complaint, and recom-
mended that these allegations be dismissed. Thereafter, Respondent
Whelan filed exceptions to the Intermediate Report, and a supporting
brief. Whelan's request for oral argument is denied, as the record,
including the exceptions and briefs, adequately presents the issues and
the positions of the parties.
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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with such modifications as are reflected
below.
1. The General Counsel contended in the complaint and at the hear-
ing that Respondents United and Whelan constituted a single em-
ployer under the Act, which, if true, would concededly bring both
Respondents within the Board's standard for assertion of jurisdiction
114 NLRB No. 185.
387644-56-voL 114-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over a multistate retail chain. United is a Delaware corporation which
owns and operates, inter alia, a nationwide chain of retail drug, cigar,
and liquor stores with annual sales in excess of $10,000,000. Whelan,
,one of several wholly owned subsidiaries of United, is a Florida corpo-
ration which operates, entirely within that State, 18 retail drug and
liquor stores, a warehouse, and a commissary. The unfair labor prac-
tices alleged in the complaint directly involve the employees of
Whelan.
The Trial Examiner found that Whelan is not an integral part of
the multistate enterprise operated by United, and that United and
Whelan do not constitute a single employer within the meaning of the
Act. He accordingly recommended that the complaint be dismissed as
to United. As no exceptions were filed thereto, we adopt this recom-
mendation without passing on the merits of the finding that they are
not a single employer. However, with respect to Respondent Whelan
alone, the Trial Examiner found that its operations satisfy the Board's
direct inflow requirement of $1,000,000 for an intrastate retail chain.'
In arriving at this conclusion, the Trial Examiner had to determine
whether certain purchases of Whelan in the amount of $223,576 con-
stitute direct inflow or indirect inflow within the Board's jurisdictional
standards. The sum involved represents the approximate value of
cigarettes and tobacco products annually purchased by Whelan under
-the following circumstances, as stipulated by the parties :
The cigarette manufacturers receive orders- sent by Respond-
ent Whelan from Miami, Florida, to their offices and plants in
Virginia, North Carolina, etc. The cigarette manufacturers
maintain stocks of their tobacco products and deliver large ship-
ments for that purpose at public warehouses such as Seaboard
Warehouse Terminal, Inc. in Miami, Florida; United Terminal
Warehouse, Inc. and Union Terminal Warehouse Co., Inc., in
Jacksonville, Florida, from which they supply their Florida job-
bers and chain store accounts and similar accounts in States con-
tiguous to Florida. Upon receipt of the orders from Whelan, the
manufacturers send a copy of the invoice showing the quantity
ordered to the public warehouse, the employees of which select
the merchandise from the inventories, pack and ship the quanti-
ties ordered to the Respondent Whelan, F. 0. B. Whelan's Miami
Depot. Title does not pass to Whelan until delivery is made to
the Miami Depot. The manufacturers are issued nonnegotiable
warehouse receipts for the merchandise which they ship to the
public warehouses.
Specific merchandise is not ear-marked for Whelan, placed in
the public warehouse, and supplied to it. All selections for deliv-
i Hogue and Knott Supermarkets, 110 NLRB 543.
UNITED CIGAR-WHELAN STORES CORPORATION 1221
ery to it are made out of the general inventory stock. Each of these
public warehouses handles many kinds of merchandise including
foodstuffs . The individuals who select the merchandise from the
warehouse inventory for delivery , who arrange for its shipment
and transport it to Respondent Whelan's Miami Depot are the
employees of the public warehouses , or of independent contrac-
tors hired by the warehouses to make the deliveries.
The Trial Examiner observed, as we do, that the purpose of the
tobacco manufacturers in shipping their products across State lines
into the ,public warehouses in Florida was necessarily in anticipa-
tion of the orders of Whelan and other purchasers within the State
and to facilitate prompt deliveries of such orders ; that title to the
merchandise passed from the out-of -State manufacturers to Whelan
with no independent broker or wholesaler intervening ; ' and, in sub-
stance, that the brief housing of the merchandise in public ware-
houses in Florida did not constitute a break in the practical continuity
,of movement of the goods until they reached Whelan's retail chain.3
The Trial Examiner accordingly found, and we agree, that Whelan's
purchases of cigarettes and tobacco products are in the category of
direct inflow under the Board's standards ,4 and that Whelan's oper-
ations meet the applicable standard . We conclude , therefore , that it
will effectuate the purposes of the Act to assert jurisdiction over Re-
spondent Whelan.
2. We also agree with the Trial Examiner 's findings that Respond-
ent Whelan discriminatorily discharged employees Williams, Jordan,
Sandefur , Kahn, and Vose in violation of Section 8 (a) (3) of the
Act, and that it committed independent violations of Section 8 (a)
( 1) as described in the Intermediate Report.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Whelan Drug Company,
Inc., Miami, Florida, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Transport Workers of
America, Ind., or any other labor organization of its employees, by
2 Cf. Brooks Woods Products , 107 NLRB 237; C. P. Evans Food Stores, 108 NLRB
1651 ; Homer Chevrolet Co., 110 NLRB 825.
See United Warehouse and Terminal Corp.. 112 NLRB 959 , wherein a public warehouse
of the same character as the warehouses to which the tobacco manufacturers here shipped
their products was held by the Board to constitute for jurisdictional purposes "a link [not
a break] in the chain of interstate commerce."
4 We do not, however , adopt the Trial Examiner 's reliance upon Central Cigar & Tobacco
Co., 112 NLRB 1094, which did not involve an intrastate retail chain , as here. See Hogue
and Knott Supermarkets, supra.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging or refusing to reinstate any of its employees or by dis-
criminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment.
(b) Interrogating its employees concerning their activities on be-
half of United Transport Workers of America, Ind., or any other
labor organization, in a manner constituting interference, restraint, or
coercion in violat ion of Section 8 (a) (1).
(c) Threatening its employees with loss of employment or with
other reprisals because of their membership in or activities on behalf
of a labor organization.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Transport Workers of
America, Ind., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Immediately offer Grant Williams, Freddie Lee Jordan,
Adrienne Sandefur, Edward Kahn, and Madeline T. Vose immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges and make them whole, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy," for any loss of
pay each may have suffered by reason of Respondent Whelan's
discrimination.
(b) Upon request preserve and make available to the Board or its
agents for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze and compute the amounts
of back pay due.
(c) Post at its 18 stores, warehouse, and commissary the notice at-
tached hereto marked "Appendix A." 5 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being signed by Respondent Whelan's representative, be posted by it
immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
5In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and'Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
UNITED CIGAR-WHELAN STORES CORPORATION 1223
shall be taken by Respondent Whelan to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps it has taken to comply
herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent. United violated the Act,
that Respondent Whelan discriminatorily discharged Georgia Ann
Formy Duval, or that Respondent Whelan committed any unfair labor
practices in violation of the Act, except as otherwise found herein.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in United Transport
Workers of America, Ind., or in any other labor organization of
our employees, by discharging or refusing to reinstate any of our
employees, or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of
their employment.
WE WILL offer to Grant Williams, Freddie Lee Jordan, Adri-
enne Sandefur, Edward Kahn, and Madeline T. Vose immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights pre-
viously enjoyed, and make them whole for any loss of pay suffered
as a result of the discrimination against them.
WE WILL NOT interrogate our employees concerning their activi-
ties on behalf of United Transport Workers of America, Ind., or
any other labor organization, in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8 (a) (1).
WE WILL NOT threaten our employees with loss of employment
or with other reprisals because of their membership in or activi-
ties on behalf of a labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the aforesaid labor
organization or any other labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining 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 organi-
1224 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
zation as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except as
that 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.
WIIELAN DRUG COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations
Act (61 Stat. 136), herein called the Act , against the Respondents , United Cigar-
Whelan Stores Corporation , herein called United , and Whelan Drug Company, Inc.,
herein called Whelan , upon charges filed by United Transport Workers of America,
Ind., herein called the Union , and upon complaint and answer , was heard , pursuant
to due notice, in Miami , Florida, on October 25 and 26 and November 9 and 10,
1954 . Thereafter the record was kept open for the submission of additional juris-
dictional data and finally closed on February 11, 1955. The allegations of the com-
plaint as amended at the hearing , denied by the answer , are that the Respondents
discriminated against six named individuals within the meaning of Section 8 (a) (3)
of the Act and also independently violated Section 8 (a) (1) of the Act.
All parties were represented at the hearing , participated therein, and were af-
forded full opportunity to present and meet evidence , to engage in oral argument,
and to file briefs. Both the General Counsel and the Respondents filed briefs. Mo-
tions by the Respondents to dismiss the complaint as amended are disposed of by
the following findings and recommendations.
From my observation of the witnesses , and upon the entire record in the case,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
United operates a nationwide chain of retail drug- and cigar -stores. Its sales ex-
ceed $ 10,000,000 per annum which concededly brings it within the Board 's jurisdic-
tional standards for multistate retail chain stores. United owns all of the stock of
its subsidiary , Whelan , which is the immediate Employer of the employees, here
involved , and both are engaged in almost identical operations. Whelan operates 19'
stores entirely - within the State of Florida , most of them being located in the Miami
area.
The General Counsel contends that Whelan functions as an integral part of the
parent corporation , constituting a single or joint employer relationship . The Re-
spondents contend that Whelan operates autonomously and independently of its
parent United except for certain audit controls and other indicia of ownership.
While resolution of this problem has an important bearing on the problem of
jurisdiction , it is not too vital since, as found below, I recommend assertion of jurisdic-
tion over Whelan . United is also charged with responsibility for the unfair labor
practices allegedly committed by its subsidiary Whelan. Here, too, Whelan appears
entirely capable, financially and otherwise , of remedying any violation of the Act
it may be found to have committed. However , without going into too much detail
about the relationship between the two Companies , and without citing and distinguish-
ing the numerous cases on what standards are to be anplied in this connection, I find
that the evidence on this point on the whole preponderates in favor of United.
UNITED CIGAR-WHELAN STORES CORPORATION 1225
United functions in two capacities. First, as a retail drugstore chain it directly
operates numerous stores in several Northeastern States from its warehouse and
office in New York City. Second, it is the parent or holding company of several
corporations, one of which manufactures pharmaceutical preparations under the
trade name of "Whelco," another which operates retail drugstores in the State of
California, and Whelan, which does likewise in Florida. In addition, United fran-
chises hundreds of independently owned drugstores which purchase their inventories
from the New York City depot, use the name "Whelan," and receive other services
supplied by United. All of the stores maintained by United or by its subsidiary
companies operate under the trade name of "Whelan."
The members of the boards of directors for both United and Whelan are for
the most part common to both organizations. However, aside from the fact that
all bills incurred by Whelan, except for minor and payroll expenses, are paid by
United as a method of auditing and controlling the finances of its subsidiary, the
evidence shows that in substantially all other respects Whelan operates independently
of United. Thus, Whelan owns and leases its own stores, maintains its own ware-
house and food commissary for its lunchcounters, does its own purchasing, de-
termines what prices to establish for its merchandise, develops its own advertising,
makes up its own payroll, issues its own checks, maintains its own set of corporate
books, and pays its own taxes.
Most important , Whelan maintains its own labor relations policies, has its own
personnel director, hires and fires its own employees, and determines their wages,
hours, and working conditions independently of any wage scale United pays its
employees. Althcugh the General Counsel makes the point that the president of
Whelan, who has final authority in matters of merchandising and labor relations,
is appointed by United and therefore ultimate control rests in it, nevertheless, the
record as a whole establishes that United has not interfered with or attempted to con-
trol the labor relations policies of its subsidiary. Whether it would ever attempt to do
so is entirely speculative and is an inference not justified by this record. Of course
the parent maintained an anxious interest in the financial health of its child but
the thermometer must have registered normal since there was no interference
in the day-to-day operations of Whelan. Nor does the record establish, as con-
tended by the General Counsel, that there is any actual interchange of rank-and-
file employees from parent to subsidiary or vice versa. While it is true that a few
employees of United obtained positions with Whelan, these were simply matters
of accommodation, done for the benefit of these employees who carried no seniority
or other employee status with them and started at Whelan as new employees. Other
minor evidence of integration, urged by the General Counsel, such as common
forms, instructions, and commissions on "Whelco" merchandise, used and received
by employees of both Companies, and common forms used in ordering and ad-
vertising merchandise, as well as merchandising and price suggestions from United to
all "Whelan" stores, I have considered and weighed but find insufficient to overcome
other and stronger evidence of independence and autonomy outlined above.
Accordingly, and in line with such cases as Orkin "The Rat Man," Incorporated,
112 NLRB 762; Modern Linen & Laundry Service, Inc., 110 NLRB 1305; Con-
solidated Gas Company of Savannah, et al., 107 NLRB 148, and Dan Dee Central
Ohio Corporation, 106 NLRB 1303, I find that United and Whelan do not con-
a single employer within the meaning of Section 2 (2) of the Act or thatstitute
Whelan is an integral part of a multistate enterprise for jurisdictional purposes. I
will therefore recommend dismissal of the complaint as to United.
The General Counsel contends that Whelan's operations fall within the Board's
jurisdictional standards even though such operations be considered entirely inde-
pendent of Whelan's relationship with United. This issue involves application of the
Board's policy standard which predicates exercise of jurisdiction over intrastate
chains of retail establishments whose direct inflow of out-of-State purchases exceeds
$1,000,000 in value. See Hogue and Knott Supermarkets, 110 NLRB 543. So far as
I have been able to ascertain there is no case in point under the Board's recent juris-
dictional standards to act as a guide to the policy decision as to whether it would
assume jurisdiction under the facts in this case, although there is no question about
the Board's legal power to do so.
The parties have stipulated that Whelan's total purchases for its 19 retail estab-
lishments, consisting of 15 drug and 4 liquor stores all operating within the State of
Florida, during a representative annual period are valued at $2,175,996.36, of which
amount $1.731,714.54 represents both direct and indirect purchases from outside
Florida. Whether the aforementioned $1,000,000 requirement is met here depends
on whether certain purchases of cigarettes, amounting in value to $223,576, are con-
sidered to be direct inflow as the General Counsel asserts or indirect inflow as Whelan
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends . The parties have stipulated as follows respecting the tobacco transactions
under consideration:
The cigarette manufacturers receive orders sent by Respondent Whelan from
Miami, Florida , to their offices and plants in Virginia , North Carolina, etc. The
cigarette manufacturers maintain stocks of their tobacco products and deliver
large shipments for that purpose at public warehouses such as Seaboard Ware-
house Terminal , Inc. in Miami , Florida; United Terminal Warehouse , Inc. and
Union Terminal Warehouse Co., Inc. in Jacksonville , Florida, from which they
supply their Florida jobbers and chain store accounts and similar accounts in
states contiguous to Florida . Upon receipt of the orders from Whelan , the man-
ufacturers send a copy of the invoice showing the quantity ordered to the public
warehouse , the employees of which select the merchandise from the invento-
ries, pack and ship the quantities ordered to the Respondent Whelan , F. 0. B.
Whelan 's Miami Depot. Title does not pass to Whelan until delivery is made to
the Miami Depot . The manufacturers are issued non-negotiable warehouse
receipts for the merchandise which they ship to the public warehouses.
Specific merchandise is not ear -marked for Whelan , placed in the public ware-
house, and supplied to it. All selections for delivery to it are made out of the
general inventory stock. Each of these public warehouses handles many kinds
of merchandise including foodstuffs . The individuals who select the merchan-
dise from the warehouse inventory for delivery , who arrange for its shipment
and transport it to Respondent Whelan's Miami Depot are the employees of
the public warehouses , or of independent contractors hired by the warehouses
to make the deliveries.
The American Tobacco Company annually sells in Florida more than
$25,000,000 of its products . Less than $ 83,500 are shipped to Whelan.
Liggett & Myers annually sells over $10,000 ,000 of its products in the State
of Florida . Its annual sales to Whelan were $48,275.
Philip Morris sells more than $6,000,000 in Florida. Its total sales to Whelan
for the period were $22,178.
Whelan asserts that the circumstances respecting the warehousing of cigarettes
in Florida constitute such a break in the interstate flow of the merchandise as to cause
the shipment to fall within the "indirect " rather than the "direct" inflow category.
It construes a number of Board cases on this point to stand for the proposition that
to be "direct" the goods must move from the seller to the out -of-State purchaser in a
straight unbroken line, and if the line is broken either by a change in the title or status
of the goods or by their coming to rest for storage for future distribution then the
movement is "indirect ." Respondent refers, for example, to Jonesboro Grain Dry-
ing Cooperative , 110 NLRB 481, which describes the "indirect inflow standard"
as being met when an enterprise "receives goods or materials from other enterprises
in the same state which those other enterprises received from out of state, valued
at. . " Considering either the cigarette manufacturers or the warehouses in the
present case to be the "other enterprises " within this definition , Whelan asserts that in
either event it receives merchandise within Florida from "other enterprises" which
such "other enterprises" in turn received from out of State. And in support of the
application of this definition to its claimed effect in the present case, Whelan cites
Homer Chevrolet Company, 110 NLRB 825; C. P. Evans Food Stores, Inc., 108
NLRB 1651; and Brooks Wood Products, 107 NLRB 237.
The General Counsel , on the other hand, asserts that the critical factor in delineat-
ing between "direct" and " indirect" inflow in the present case is the "ordering, pay-
ment and transfer of title," and he relies on Giant Markets, Inc., 107 NLRB 10, as
well as the same Evans Food Stores and Brooks Wood Products cases cited by Whelan.
In the Brooks Wood Products case a Michigan manufacturer sold and gave title
to its products to another Michigan concern ( Plymouth ), and Plymouth in turn sold
its merchandise to other Michigan enterprises (Budd and Kelsey-Hayes ) which used
the merchandise in their "very substantial interstate business" ( 107 NLRB 237, 238).
At Plymouth's request , the manufacturer shipped the merchandise in Michigan di-
rectly to Budd and Kelsey-Hayes. The Board held that the manufacturer 's business
is "entirely intra-state . twice removed from interstate commerce " and that, no
matter how great the volume, the manufacturer 's described operation is without the
scope of the Board's jurisdictional policy ( id.). The Board cites this Brooks Wood
Products decision in holding , in effect, in the Evans Food Stores case that the placing
of orders with a Texas broker insulates the Texas purchaser of national brand mer-
chandise from the exercise of the Board's jurisdiction . See, also, 0. B. Brown
Fertilizer Company , 110 NLRB 1912 . The particular role of Plymouth in the
Brooks Wood Products case and that of the broker in the Evans Food Stores case
UNITED CIGAR-WHELAN STORES CORPORATION 1227
is materially different from the warehousing role in the present case and accordingly
distinguishes both cases from the instant matter.
The Homer Chevrolet and Giant Markets cases, respectively cited by Whelan and
the General Counsel, are also inapposite. In the Homer Chevrolet case, a Michigan
concern sold used cars to out-of-State dealers who accepted delivery in Michigan.
The Board declined jurisdiction over the Michigan concern on a direct outflow theory
where the record in the case failed to indicate that the out-of-State dealers resold or
otherwise disposed of the cars in or out of Michigan. Cf. Mast Lumber Company,
Inc., 111 NLRB 18. And while the Board in the Giant Markets case did, as the Gen-
eral Counsel asserts, consider purchases by a retail establishment to be "direct inflow"
even though obtained through a local warehouse, the decision in that matter also
reveals that the warehouse and the retail establishment were commonly owned and
integrated businesses and together were a single employer whose warehouse and
retail employees constitute a single bargaining unit.
Now returning to the present case. The tobacco manufacturers ship their products
across State lines in order to satisfy the orders of Whelan and other purveyors of
such merchandise, and it is quite obviously to facilitate prompt delivery to Whelan
and other purchasers that the manufacturers maintain their inventory at the Florida
warehouses. The amount of the inventory must also anticipate future orders of
Whelan and the other purchasers, and the refilling of the inventory is determined by
the amount of all these purchases, including those of Whelan.
There is no dependable touchstone to determine whether inflow should be con-
sidered direct or indirect. The problem is one of drawing realistic lines based upon
a practical, analysis of the types of transactions and business practices involved, rather
than upon technical or arbitrary conceptions. Governed by this test it is apparent
that the warehousing of the tobacco products causes no lesser impact on interstate
commerce than does a shipment of tobacco without such warehousing interlude, and
to draw the distinction urged by Whelan would, in my opinion, involve economic
hair-splitting , particularly since it is clear that the warehousing was under the con-
trol of the tobacco manufacturers at all times and was designed for the convenience
of Whelan. No independent wholesaler or broker were in any way involved from
the time the order was placed to the time title passed from the tobacco manufac-
turers to Whelan upon delivery at its depot.
In Walling v. American Stores Co., 133 F. 2d 840, 846 (C. A. 3), an action under
the Fair Labor Standards Act of 1938, 52 Stat. 1060, the court held that:
Where goods are shipped from one State and briefly housed in another for the
convenience of the owner in making an efficient distribution of those goods to
its local retail outlets . . . there is . . . a practical continuity of movement of
the goods until they reach the . . . retail stores. The maintenance of the
warehouse . . . is not to break that continuity but to make it even, economical
and uninterrupted.
In American Stores the Court relied upon another FLSA action, Walling v. Jackson-
ville Paper Co., 317 U. S. 564, 568,1 in which the Supreme Court stated that:
Once the goods have entered the channels of interstate commerce, Congress
[has not] stopped short of control over the entire movement of them until their
interstate journey was ended. No ritual of placing goods in a warehouse can
be allowed to defeat that [Congressional] purpose. A temporary pause in
their transit does not mean that they are no longer "in commerce" within the
meaning of the Act. As in the case of an agency . . . if the halt in the move-
ment: of the goods is a •convenient, intermediate-step in, the,, process of getting
them to their final destinations, they remain "in commerce" until they reach
those points. Then there is a practical continuity of movement of the goods
until they reach the customers for whom they are intended. That is sufficient.
Any other test would allow formalities to conceal the continuous nature of the
inter state transit which constitutes commerce.
I conclude that Whelan's tobacco purchases in question properly fall within the
direct inflow category and since the total amount of Whelan's direct inflow therefore
exceeded $1,000,000 yearly, it is sufficient to bring Whelan within the Board's juris-
I These court decisions are particularly significant in view of the jurtidictional differ-
ences between the Labor Management Relations Act and the Fair Labor Standards Act,
the LMRA applying to certain prescribed conduct "affecting commerce" while the juris-
dictional purview of the FLSA is limited to certain activities "in commerce." The per-
tinent difference between the two statutes would seem to be reflected in the distinction
between the Board's concepts of direct and indirect commerce on the on hand and only
direct commerce on the other. Cf. Higgins v. Carr lirethers Co., 317 U. S. 572, 574.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dictional standards. After this conclusion was reached, the Board issued a Decision
and Direction of Election in Central Cigar d Tobacco Co., 112 NLRB 1094, where
in a somewhat analogous situation it asserted jurisdiction:
The Employer is engaged in the warehousing and wholesale distribution of
tobacco products and related items within the Orlando, Florida, area. During
1954 practically all its sales were made locally. During the same period,
it purchased in Florida about $2,000,000 worth of merchandise. The mer-
chandise was shipped into the State by several large tobacco companies which
warehoused the merchandise in Florida and retained title thereto until it
was shipped to the Employer. Since the Employer's inflow of goods into the
State exceeded $1,000,000 a year, we find that the Employer is engaged in com-
merce within the meaning of the Act and whether it be considered direct or
indirect that it will effectuate the purposes of the Act to assert jurisdiction herein.
[Emphasis supplied.]
Likewise here, if the Board finds it unnecessary to determine whether the tobacco
purchases of Whelan constituted either direct or indirect inflow, 1 would recommend
that the Board assert jurisdiction since Whelan's inflow of goods into the State ex-
ceeded $1,000,000 and it would effectuate the purposes of the Act to do so.
11 THE LABOR ORGANIZATION INVOLVED
I find, contrary to Whelan's contention, that United Transport Workers of America,
Ind., is a labor organization within the meaning of Section 2 (5) of the Act, which
admits employees of Whelan to membership, and exists for the purpose, in whole or
in part, of dealing with employers concerning the terms and conditions of employment
of. their employees.
Whelan contends that the Union "has failed to comply with the filing require-
ments imposed on it" by Section 9 (f) and (g) of the Act and "that such failure is
so obvious and apparent from the record that this case must be dismissed without
awaiting an administrative determination" of compliance by the Union. Whelan
recognizes that the Board will not permit litigation of the question of compliance.
But it argues that the testimony of the Union's vice president, Edward Hannes, in
the representation hearing which, has been made a part of the record in this case,
demonstrates that the Union "has no system of record keeping, keeps no record
of disbursements, and has no bank account." From this testimony, argues Whelan,
it is "obviously impossible" for the Union to meet the Act's financial filing require-
ments "in the absence of the records which it admittedly does not keep." The
testimony elicited by Whelan's counsel on cross-examination of Hannes stemmed
from Hannes' testimony on direct that the Union was a labor organization under
the Act. Hannes testified in part that the Union kept records and gave a report
each year to the Board. Further cross-examination on this point was stopped by
the hearing officer who stated. "It has been administratively determined that the
petitioner is in compliance with the sections of the Act requiring the filing of the
necessary financial reports and other data."
The state of this record is such as not to warrant the inference of noncompliance
sought to be drawn by Whelan and to overcome the previous administrative de-
termination of the Union's compliance with Section 9 (f), (g), and (h) of the Act.
It is Board practice to permit parties to representation or complaint pioceedmgs to
cause to be instituted an administrative investigation of compliance matters where
warranted. This privilege is still available to Whelan.
The Union was incorporated in 1946 under the laws of New Jersey. Its corporate
charter provides in part that the "purpose for which it is formed is to act and be
a labor union of transport workers, and to do any and all other things and
duties pertaining to a labor union; Whelan contends that in attempting to
represent retail drug store employees it is exceeding the powers granted to it by the
State, and that any contract made by the Union covering persons other than transport
workers would be ultra vires and unenforceable against it. Whelan then advances
the rather ingenious argument that it "would be deprived of a right and privilege
conferred on it by Section 301 of the Taft-Hartley Act: the right to sue and recover
judgment against a union which breaches its contract."
While it may be that the phrase in the Union's corporate charter "to do any and all
other things and duties pertaining to a labor union" permits it to represent any kind
of employee, nevertheless, even if Whelan were correct in its interpretation that the
Union was limited by its charter to representing only transport employees and there-
fore any contract Whelan made with the Union would not be binding on the Union,
I would still find no merit in its argument . It is well settled that State law is not
determinative of rights and obligations under the Act, except where the Act itself
UNITED CIGAR-WHELAN STORES CORPORATION 1229
expressly provides otherwise. Hill v. Florida, 325 U. S. 538; N. L. R. B. v. Hearst
Publications , 322 U. S. 111; Consolidated Vultee Aircraft Corporation, 108 NLRB
591, 592, footnote 4.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
Sometime in June, 1954 2 the Union, under the guidance of its vice president, Edward
Hannes, began to organize the employees of Whelan. Apparently the Union con-
centrated most of its early drive at Whelan's Lincoln Road store in Miami Beach,
probably the busiest of its stores. It was here that most of the discharges later de-
scribed took place and where the Union was successful in getting many of the em-
ployees to sign a petition designating the Union as their collective-bargaining repre-
sentative. The Union's early campaign encompassed 3 additional stores of Whelan,
and on July 2 it filed a representation petition with the Board seeking to become bar-
gaining representative of the employees of these 4 stores. A hearing on this petition
took place on August 3. On November 5, the Board dismissed this petition because
it found the unit requested to be too narrow in scope and therefore inappropriate.
The Board therefore found it unnecessary to pass on the jurisdictional issue, among
others, that I have resolved above.
On June 24, Grant Williams, employed as a dishwasher at the Lincoln Road store,
signed the union petition at the solicitation of Hannes just outside the store shortly
after he finished his work that day. When Williams turned to walk to his bus he
was stopped by Leo Golden, manager of the Lincoln Road store. "What is that you
signed?" asked Golden. "I don't know exactly. Some kind of union," replied Wil-
liams. Golden said, "You went and signed something and don't know what it is?"
When Williams replied it was for the Union, Golden asked why he had signed and
Williams said, "I didn't think it would hurt me, so I signed it." Williams then ex-
cused himself to catch his bus. The next day Golden, accompanied by John Totten,
who is in charge of all of Whelan's soda fountains , again asked Williams why he had
signed for the Union. Williams again repeated that he did not believe the Union
would hurt him. Totten then said, ". . . and you're a deacon of the church, and yet
you sign something and you don't know what you sign. . Suppose it might hurt the
company you're working for?" Williams replied, "I didn't think it would hurt no-
body." Two days later, on June 27, Williams was discharged because, as I describe
later, of his interest in the Union.
Paul Fleming, also employed at the Lincoln Road store, signed the union petition
the same day as Williams. On June 27, Golden asked Fleming if he had joined the
Union and on receiving a negative reply Golden said, "You'd better not, or I'd fire
you like I did Deke." Williams was known as "Deke."
Freddie Jordan was employed as a porter and dishwasher at the Washington Avenue
store. Shortly after joining the Union on June 26 or 27, Store Manager 9eorge
Greenstein asked Jordan if he had joined the Union. "I told him yes, I had." Green-
stein made no reply and walked away. A little later Jordan asked Greenstein if he
"stood a good chance of getting fired," and Greenstein replied, "Yes; but I'll have to see
what, the office has to say about it first." Three or four days later Jordan was dis-
charged because of his union activities. I treat with his case below.
Adrienne Sandefur was discharged by Whelan on June 27. Her case is discussed
later. About the same day Vera Adams, employment and accounting manager of
Whelan, arranged to transfer employee Georgia Ann Formy Duval to the Lincoln
Road store as a replacement for Sandefur. During the conversation with Duval,
Adams advised her "not to have anything to do with the union; that one girl had
already been released because of the union."
Late in June, Murray Liebeskind joined the Union. Several days later Manager
Golden asked him if he had joined the Union. When Liebeskind indicated that he
had not made up his mind as yet Golden said, "Well don't join the union.... It's a
phony organization. They're a bunch of racketeers.... Besides, they're not recog-
nized." A little later Golden told Liebeskind, "It's a good thing that you didn't join
the union. You're lucky."
Edward Kahn, whose case is described later, joined the Union early in June and
was active in soliciting other employees of the Lincoln Road store. On July 10,
A. Herbert Smith, president of Whelan, visited the Lincoln Road store with Beniamin
Thaw, executive vice president of United. Smith told Kahn he was there "to look into
the union" and asked Kahn if he had joined. "I'm not saying I did or I didn't,"
replied Kahn, adding however that he thought it would be a good thing to have a
union , 'that the employees were underpaid, and that he had belong-,d to one in
2 Unless otherwise indicated all the events herein described took place in 1954.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York. Golden then joined the group and after replying to a request iron
Kahn for some time off, Golden walked over to one of the female employees and'
asked if she had joined the Union and whether she knew of any employee that had
joined. Smith then asked the same question of Kahn who replied that if he did,
he would not tell. Later in the day Totten asked Kahn about the Union and Kahn,
repeated what he had told Smith earlier.
About 2 days after the questioning of Kahn, Golden interrogated employee Ben.
Stewart about joining the Union, admonishing him, "If you do, I'm going to fire
you." Several days later this witness was again questioned by Golden about joining
the Union.
It should be noted that Whelan made no effort to dispute the evidence I have just
recited, which reveals a pattern of systematic interrogation about union activities by
top supervisory officials in a context of threats and illegal discharges that clearly
amount to interference, restraint, and coercion of its employees within the mean-
ing of Section 8 (a) (1) of the Act.3 Golden, Greenstein, Adams, and Totten did
not testify nor was any explanation offered for their failure to take the witness
stand. Nor was any request made to take the deposition of Smith who had suffered'
a heart attack not long before the hearing. Thaw, who was called as an adverse
witness by the General Counsel, admitted being with Smith then the latter inter-
rogated some employees about the Union. The totality of the conduct of these
officials of Whelan constituted a clear-cut violation of the Act.
B. The discharges
1. Grant Williams
Williams, who had worked for the Dade Pharmacy chain of stores for about
8 or 9 years at the time of its acquisition by Whelan in 1946, continued in the em-
ploy of Whelan for 2 or 3 years and then left. He returned to work for Whelan in
November 1953 at the Lincoln Road store. As related earlier, Williams was inter-
rogated by Golden on June 24, and by Golden and Totten on June 25, as to why
he had joined the Union. On each occasion Williams took the position that he had
signed because he did not believe the Union would hurt him. On June 27, Williams
was discharged by Assistant Manager Maltz with these words: "Grant, they're laying
you off. Here's your money. . . . I am sorry." And testified Williams, "that's all
that was said."
Uncontradicted and credible testimony directly bearing on the motivation for
Williams' discharge is found in Fleming's version set forth earlier. Fleming, still
employed by Whelan, was questioned by Golden about joining the Union the day
after the discharge of Williams. Fleming, who had signed for the Union the same
day as Williams, denied it when asked by Golden whether he had joined. "You'd
better not, or I'd fire you like I did [Williams]," threatened Golden.
This was the Government's case-a strong, prima facie showing of discrimination
in violation of the Act. Whelan did not choose to defend its actions as to Williams
and presented no witnesses to support its tentative position stated while Williams was
being cross-examined, that he "was let go because of his age-the difficulty he was
having in doing his job efficiently." Williams, who operated an electric dishwashing
machine, testified credibly that no complaint had ever been made about his work
and that he was 67 years of age.
Since the prima facie showing of illegal discrimination against Williams went un-
rebutted.I.find that,he.was discharged in violation of'Section 8 (a) (3) of the Ac14
2. Freddie Lee Jordan
As in the case of Williams, Whelan presented no defense regarding its discharge
of Jordan. He began to work for Whelan in February or March 1954 as a porter
and dishwasher at the Washington Avenue store. About June 26 Jordan signed
the union petition upon the solicitation of Hannes. Ten or fifteen minutes later
3 See L. C. Products, Inc, 112 NLRB 872; Taylor-O'Brien Corporation, 112 NLRB I;
Sears, Roebuck R Co, 109 NLRB. 632, footnote 2; The Union News Company, Ila
NLRB 420
4In Respondents' brief, there appears the following statement
Because the employer felt that it had established its case on jurisdictional grounds,
with the exception of Lamberson it offered no witnesses to controvert any of the
testimony with respect to the merits of the complaint cases. In respect to Messrs
Williams and Jordan it must be acknowledged that'it would have been helpful to the
employer to present testimony because the record is incomplete.
UNITED CIGAR-WHELAN STORES CORPORATION 1231
Manager Greenstein , as described earlier, asked Jordan if he had joined . Green-
stein got an affirmative reply. A little later Jordan asked Greenstein if he stood a
good chance of getting fired . "Yes," replied Greenstein, "but I 'll have to see what the
,office has to say about it first." Jordan got his answer on June 30 when the assistant
manager told him that on Greenstein 's orders Jordan was "not to come back any
more" except to return on Friday for his pay. On Friday , Greenstein told Jordan
he "was sorry the way it happened , but there was nothing he could do about it "
Greenstein then offered to give Jordan a good reference if he needed one to get
another job . Jordan asked Greenstein why he was fired but received no reply to
this question.
During cross -examination of Jordan , Whelan 's counsel indicated that Jordan was
hired as a temporary employee to replace another employee on leave and that
when the permanent employee returned Jordan was let go. Jordan testified credibly
that he was hired as a permanent employee and was never told that his job would
be temporary or dependent upon the return of another employee who was on leave.
Whelan 's contention as to Jordan ended there and was not supported by any
testimony . I find that the General Counsel proved a prima facie and unrebutted
case of discrimination against Jordan because of his union activities . I therefore
find that Jordan was discharged in violation of Section 8 (a) (3) of the Act.
3. Adrienne Sandefur
Sandefur was employed on February 18, 1954 , and worked at the Lincoln Road
store. She signed the union petition on June 24 in the store at the request of a
nonemployee solicitor . On June 27 , Assistant Manager Maltz handed Sandefur
3 days' pay then due her and said she was laid off. When Sandefur asked for the
reason , Maltz said , "Well, the rainy season and all-you know , they don't need
you." Sandefur protested , "Don't tell me that ," she said , "because they always need
three girls here , and you know it."
The next day Sandefur went to see Vera Adams who is in charge of personnel
for Whelan . "You know it , I suppose . I was laid off," Sandefur told Adams.
"Yes, I know it," replied Adams, "You joined the Union , didn 't you?" Sandefur,
admitting that she had , remarked that "so did a lot of other girls." Adams replied,
"Well, you know we don 't want a union down here." Adams told Sandefur that
one of the reasons why Golden had discharged her was because Sandefur had said,
"Now that the Union is in they can't fire anybody ." Sandefur told Adams that she
had never made any such remark. Sandefur asked whether there was anything
wrong with her work and Adams replied that Sandefur had been "reported as being
a good worker."
The conversation ended with Adams' promise to try and find work for Sandefur
in another Whelan store, and she asked Sandefur to telephone her the next day
about it. Over the period of the next several weeks Sandefur kept telephoning
Adams but no job ever materialized . Finally, Sandefur stopped calling Adams be-
cause in the last conversation Adams suggested that Sandefur seek a job at Wal-
green's, a rival chain of drugstores , and promised to supply Sandefur with a good
reference.
During cross -examination of Sandefur , Whelan's counsel suggested that Sandefur
had been discharged because of the "slacking -off of business. . . . Another rea-
son was that she was not good at her job." Again , however, Whelan produced no
witnesses in support of its position . Neither Adams nor Golden testified . Sandefur
testified credibly that no complaints had ever been made about her work and that
Adams said she had received good reports about the witness. As to the slack-
ening of business , Sandefur testified that she saw a new girl in her place the next
morning. This was corroborated by Georgia Ann Formy Duval who was transferred
from another Whelan store to the Lincoln Road store on June 28 in place of Sande-
fur. Adams telephoned Duval and told her of the transfer . Duval replied that she
did not want to tranfer but Adams said she would make more money there. Adams
also advised Duval in an obvious reference to Sandefur "not to have anything to
do with the Union ; that one girl had already been released because of the Union."
On the basis of the credible , uncontradicted testimony as to Sandefur , it is clear
that she was discharged because of her union activities in violation of Section 8 (a)
(3) of the Act.
4. Edward Kahn
Kahn worked in New York for United, the parent corporation, as a fountain man-
ager , a supervisory position called by Kahn a "soda chief," from October 1953 until
February 9 , 1954 . At that time Kahn was compelled to move to Florida because of
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his wife's illness. An official of United suggested that Kahn see Smith, Totten, and
Adams in Miami . Kahn did so and was hired and after working a few days at
another Whelan store was assigned to the Lincoln Road store where he was placed
in charge of the soda fountain on the night shift.
It is the contention of Whelan that Kahn was an assistant soda fountain man-
ager and a supervisory official within the meaning of the Act. There is no dispute
that the position of soda manager is a supervisory one. The General Counsel con-
tends that Kahn was at best a sort of strawboss but with no authority to hire and
fire employees, or to responsibly direct other employees, or to make effective recom-
mendations concerning their status. Considerable testimony was adduced by the par-
ties on this question . Although a careful examination of the duties and responsi-
bilities involved reveals a borderline issue, nevertheless I am persuaded that the
evidence preponderates in favor of a conclusion that Kahn was not a supervisory
official under the Act.
Thus, Kahn testified that he was never told that he had any supervisory authority
and never exercised any. Kahn had two employees working behind the fountain
with him and was primarily responsible for the making of sandwiches. On one
particularly busy evening he asked one of the day fountain girls to work an extra
hour and she replied that Kahn was not going to tell her what to do. She reported
the matter to Golden who raised a "fuss" with Kahn saying, "Who are you?"
and "Where do you get any authority to fire anybody in the store?" Madeline Vose
who had worked behind the fountain with Kahn testified without contradiction that
she was never told that Kahn "was the boss" and that she received her orders from
the day fountain manager. Kahn testified that it was the fountain manager who
ordered all the fountain supplies and took inventory. If Kahn ran short of sup-
plies at night he would have to go to Maltz, the assistant manager of the store, to
get permission to order additional supplies. Nor did Kahn receive any bonus which
he testified it was customary to give the fountain manager every 3 months. He did
admit that the fountain chief promised him something from her bonus if he saw
to it that things ran smoothly at night and kept his eye on the cash register but said
she never gave him anything.
The only witness that Whelan called to establish the supervisory status of Kahn
was Bob Lamberson who became, as he termed it, "night fountain manager" of
the Lincoln Road store on September 1, 1954. Kahn last worked for Whelan on
July 13. Lamberson testified that he took orders from the day fountain manager,
Bill Meyers, and could recommend to him the hiring and firing of girls although
he never had occasion to exercise such authority. In this connection Lamberson
testified on cross-examination:
Q. Who, in management, told you regarding your authority to make recom-
mendations to Mr. Meyers?
A. Who told me?
Q. Was it Mr. Meyers, or was it some higher official?
A. Well, Mr. Meyers said that he [Meyers] was in complete charge, and
he told me if there was anything I wanted to needed [sic], to see him about it.
Thus, Lamberson testified that Meyers fixed the hours of the girls on Lamberson's
shift and if a girl wanted to take time off she would speak to Lamberson who in turn
would see Meyers and the latter would be the one who made the decision. It would
appear that Lamberson had only routine authority to direct the work of the two
employees who worked behind the fountain counter with him.
On balance, I find that Kahn, although possessed of some kind of strawboss func-
tions, did not responsibly direct those under him nor did he possess authority to hire
or fire or make effective recommendations concerning promotions, discipline, or
discharge. The state of the record compels a finding that Kahn was not a super-
visor within the meaning of the Act. Whelan did not see fit to call Totten, fountain
supervisor of all 15 of its drugstores, Manager Golden, or even the day fountain
manager, Meyers, any one of whom could have shed additional light on this problem.
On July 10, 1954, Kahn asked for and obtained permission to take a 2-week leave
of absence because his wife had only a few days to live. His wife died on July 13
and Kahn started his leave that day. On July 18, Kahn informed Totten, supervisor
of fountains, that he wished to return to work before the end of the 2-week period.
Totten informed Kahn that he would not be put back to work at the Lincoln Road
store. Kahn then asked whether there were any complaints about his work and
when Totten said there were none, Kahn asked whether it was because of the Union.
"Well, I don't have to tell you, because you wouldn't tell me whether you joined the
Union or not," Totten replied . It will be recalled that Kahn was interrogated about
the Union on July 10 by President Smith , Manager Golden , and Supervisor Totten;
UNITED CIGAR-WHELAN STORES CORPORATION 1233
that although Kahn refused to indicate whether he had joined or not he did say
the employees were underpaid, that a union would be a "good thing," and that he had
belonged to one in New York. However, Totten did say he had 4 or 5 openings in
other stores and indicated the possibility of placing Kahn in one of them. Totten
suggested that Kahn see him at the personnel office the next day. Kahn not only
saw Totten the next day but practically every day that week but was never given a
job. Thereafter, testified Kahn, whenever he telephoned Totten he was told Totten
was not in.
It is the contention of the General Counsel that Kahn was not offered reemploy-
ment because of his union activities. Whelan's primary defense is that: "Kahn was
a supervisor and could have been discharged for union activity. Certainly, the
testimony at the hearings established that he was most active, within and without,
the store in this respect." But adds Whelan in its brief, "Kahn was never discharged,
nor was there a refusal to rehire him," because:
arrangements were under way for him to take over as manager of a fountain
at another store. Kahn's testimony, accepted at face value, may reveal some
confusion on the part of the company's supervisor as to the precise day (because
of the incipient transfer of the then incumbent fountain manager ) he would
start. But any confusion Kahn resolved into certitude by going on the picket
line and by openly conducting the Union's campaign. [Emphasis supplied.]
Whelan's opposition to the Union has been so clearly established, the pattern of
illegal discharges in the cases of Williams, Jordan, and Sandefur so apparent from
the facts recited, that thus far I have found it unnecessary to set forth my rationaliza-
tion for the conclusion reached in each of these cases. It may not be so apparent in
the case of Kahn, although if I have resolved the supervisory issue correctly I believe
the discrimination clear. As indicated earlier, the Lincoln Road store appeared to
be the focal point of the Union's organizational campaign. And it was here that
Whelan's opposition to the Union shows up most. Whelan was aware of Kahn's
union activities. On July 12, the day before Kahn took his leave of absence, Man-
ager Golden remarked to Kahn, "Eddie, I hear that they're making you the steward
of the Union." Kahn concededly was an excellent worker and Whelan's refusal to
return him to work at his job at the Lincoln Road store finds a rational explanation
only in Whelan's opposition to Kahn's union activities. In fact Whelan takes the
position that it wanted to promote Kahn to a fountain manager's position at another
store and was waiting only until a vacancy actually materialized. No explanation
was offered as to why Whelan should deprive itself of the services of a valued em-
ployee in the interim and why Kahn was not returned to his old job. As Whelan
conceded in its brief, a picket line was established at the Lincoln Road store and
Kahn joined it This, says Whelan, caused its confusion as to the precise day Kahn
would start to work as a fountain manager "resolved into certitude." If Kahn had
been a supervisor under the Act, Whelan could have resolved its confusion in this
manner, otherwise it could not legally do so.
Since I have found against Whelan on the supervisory issue, I am compelled to
find a discriminatory refusal to rehire Kahn or what amounted, in effect, to his dis-
charge in violation of Section 8 (a) (3) of the Act. The General Counsel established
a prima facie case of union motivation in terminating Kahn on July 27, 1954, the
end of his 2-week leave, a case that Whelan saw fit not to refute except to the extent
that it offered some limited testimony that Kahn was a supervisor.
5. Madeline T. Vose
Vose was employed as a fountain girl at the Lincoln Road store. She joined
the Union late in June upon the solicitation of Kahn. Sometime in September the
Union commenced picketing the Lincoln Road store. Eddie Meye,,s, who was
the fountain manager, remarked to Vose, "Well, you signed that petition. Why
aren't you out there picketing with your Communist friends?" Meyers made similar
comments to Vose on a number of other occasions when the Union was picketing.
According to Vose she needed some extensive dental work and made arrange-
ments with Meyers to take a week's leave of absence for that purpose beginning
Sunday, October 24. She was due to return to work on Monday, November 1.
Meyers told Vose that he would arrange to have a replacement for her for that
week.
On October 23, Vose waited on Kahn and Hannes, the Union's vice president.
After they left, Meyers "screamed" at Vose, "Don't you wait on them again."
As Vose was preparing to leave at the end of that day she told Meyers that she would
not see him until November 1. Meyers replied, "You're not going to any den-
tist . . . . You're going to a meeting to prepare yourself for court on Monday."
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(The hearing in this case commenced on Monday, October 25.) Vose protested
that it was not true, that she was going to see her dentist on Monday. Meyers per-
sisted, "You know you're going with them. They're out there now, and you're going
to prepare for that court on Monday. . . . If that's what you're going to do, you'd
better forget about coming back."
On Friday, October 29, Vose telephoned Meyers and told him she would be in
to work Monday morning. Meyers replied that he needed "a couple of days" and
asked Vose to call him on Sunday. Vose did so and again told Meyers she would
see him Monday morning. Meyers replied, "Well, what do you think I'm supposed
to do? Fire somebody so I can hire you back?" Vose protested that she had to work
for a living and needed money for her dentist and said she was getting a "run-
around." Meyers then suggested that Vose call him on Tuesday and Vose asked
what he meant by that. Meyers again said, "What do you expect me to do? Fire
somebody so I can take you back?" Vose then hung up and made no further effort
to get in touch with any of the supervisors about her position.
On the following Wednesday, Vose joined the picket line in front of the Lincoln
Road store. Manager Golden, who had been on vacation the preceding week,
voiced surprise on seeing Vose picketing. Vose told Golden she had been fired.
He didn't fire you," Golden replied. "Yes; he did," said Vose, "He told me that he
wasn't going to fire somebody so he could hire me back, and that was just as good
as telling me not to come back." An hour or so later, Personnel Manager Adams
asked Vose what she was doing on the picket line. Vose repeated what she had
told Golden. Meyers, who heard the conversation, called Vose a "goddam liar."
Neither Golden, Adams, or Meyers, then or later, asked Vose to return to work.
Whelan contends that it never discharged or laid off Vose and at best Vose was
"distressed by [Meyers'] lack of diplomacy at being asked to be patient for a few
flays;" It is clear, however, that Meyers caused Vose's distress and there was suffi-
cient evidence adduced by the General Counsel relating it to Meyers' annoyance
with Vose's union activities or Meyers' suspicion that Vose had taken time off in
order to assist the Union in the hearing to establish a prima facie showing of illegal
discrimination; a showing sufficient to shift the burden of going forward with the
proof to Whelan. Meyers, however, was never called as a witness, nor was any
showing made that he was unavailable, to explain why he did not live up to his
arrangement with Vose to let her return to work on Monday, November 1, and why
on the day prior thereto he repeatedly told Vose that he was not going to discharge
"somebody" to put her back to work. Vose was given a leave of absence for 1 week
and in her own words got a "run-around" when she tried to return to work. In plain,
everyday language Vose was told by Meyers that there was no vacancy for her and
he left Vose with the not unreasonable conclusion that she was discharged. On
this state of the record, Vose was justified in terminating her conversation with
Meyers and awaiting Whelan's invitation to return to work if in fact Meyers had
not intended to discharge her. It never came. It is entirely speculative therefore
whether, if it had come, Vose would have elected to remain on the picket line as a
striking employee or return to work, or would have ever gone on the picket line had
she been permitted to return to work as originally agreed upon. Whelan caused
he original discrimination and made no attempt to remedy it by recalling Vose to
work and therefore must bear responsibility for the legal entanglement it got itself
into as a result. I find that, however called, Vose's termination of employment on
November 1, 1954, was brought about by Whelan in violation of Section 8 (a) (3)
of the Act.
6. Georgia Ann Formy Duval
It will be recalled that on June 28, 1954, Duval was transferred to the Lincoln
Road store to replace Sandefur, whose case I have discussed earlier. Duval was
reluctant to transfer because she preferred working in a "neighborhood store" rather
than one frequented by tourists "and different faces every day." Despite Adams'
warning to keep away from the Union Duval joined in the latter part of July. The
hearing in the representation case, mentioned earlier, took place on August 3. In
support of a brief filed by the Union it obtained affidavits from a number of
employees, including Duval. A copy was furnished to Whelan. On August 25,
Manager Golden asked Duval, "What do you mean, signing affidavits for the Union?"
Duval replied she did so because other employees had signed. Golden remarked
that he thought Duval "a more intelligent person than to sign affidavits for something"
she did not "even known what it's about."
Thereafter and until the day Duval was discharged on October 10, she testified
that she was transferred back and forth to different departments and different shifts.
The General Counsel contends it was because of Duval's union activities. Although
UNITED CIGAR-WHELAN STORES CORPORATION 1235
suspicious, I find the testimony insufficient to warrant this inference. The state of
this record is such that it may well be that absent union activities Duval would have
received the same assignments and the evidence does not preponderate in the
General Counsel's favor.
On Saturday night, October 9, Duval handed a union circular to Fountain Man
Bob Lamberson. Since August 25, when Golden made the remark about the union
affidavit, Duval testified, "everybody in the store knew I had joined the Union." A
discussion about the Union then ensued, with Lamberson evidently advising Duval
to stay away from the Union, and during which Duval said to Lamberson, "Why
don't you damn Yankees go back up North." Two female customers sitting at the
counter overhead the remark and one of them said, "If we Yankees went back up
North, you Southerners would be eating hay." Duval replied, "We never ate hay
before." While there was considerable conflict in the versions of Duval and
Lamberson as to what transpired that evening and thereafter, they are fairly well"
In agreement as to what I have just related. I do not find it necessary to resolve
the conflicting parts of their testimony to reach a resolution of the alleged discrimi-
nation against Duval.
The next morning Manager Golden asked Duval if she had insulted two lady
customers the night before "by saying for the damn Yankees to go back up North."
Duval denied saying it to the customers. I find it immaterial to determine whether
the version of this incident that Golden received came from the two customers as
Golden told Duval it did or whether he received it from Lamberson. There was
some evidence that Lamberson had informed Golden that Duval had insulted a
customer. The issue is whether Golden used this incident as a pretext to discharge
Duval because of her union activities or rather because Golden believed the version
of it he received or even in believing Duval that he still felt that she had exercised
poor taste and bad judgment. At the end of the same day that Golden had spoken
to her, Duval was told by Assistant Manager Maltz that she was no longer employed
at that store because "she had insulted a customer."
I have made a most careful analysis of all the facts and circumstances relating to
Duval. I am still not persuaded beyond suspicion even without having the benefit
of Golden's testimony, that the General Counsel has established his burden by a
preponderance of the evidence that Duval was discharged because of her union
activities. Golden became aware of Duval's union membership at least by August
25, yet he did not discharge her until October 10, immediately following an incident
that was good cause for discharge. And Duval was told the specific reason therefor,
unlike the other discharged employees described earlier, most of whom Whelan had
no hesitancy in discharging without seeking a pretext therefor. While it is possible
that Duval was discharged in violation of the Act the General Counsel has not
succeeded in ripening that possibility into that state of persuasion required by the
Act. I will therefore recommend the dismissal of the complaint as to Duval.
• IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Whelan set forth in section III, above, occurring
in connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Whelan has 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. Having found that Whelan dis-
criminatorily discharged Grant Williams, Freddie Lee Jordan, Adrienne Sandefur,
Edward Kahn, and Madeline T. Vose, I recommend that Whelan offer them im-
mediate and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges, and make them
whole for any loss of earnings that each may have suffered by payment to them
of a sum of money equal to that which they normally would have earned from the
date of the discriminatory discharge or termination of employment to the date of
Whelan's offer of reinstatement, less their net earnings during said period. The
back pay provided for herein shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289; earnings in
one particular quarter shall have no effect on the back-pay liability for any other
period.
387644-56-vol . 114-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I will also recommend that Whelan, upon reasonable request, make available to
the Board and its agents all ' payroll and other records pertinent to an analysis of
the amounts due as back pay.
Since I found that Whelan by various acts interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in the Act and particularly be-
cause the discriminatory discharges heretofore found strike at the roots of em-
ployee rights safeguarded by the Act, and the totality of this conduct discloses
a propensity on Whelan's part to continue, although not necessarily by the same
means, to defeat self-organization, it will also be recommended that Whelan cease
and desist from infringing in any manner upon the employee rights guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Whelan is, and at all times relevant herein, was, engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. United Transport Workers of America, Ind., is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Grant
Williams, Freddie Lee Jordan, Adrienne Sandefur, Edward Kahn, and Madeline T.
Vose, thereby discouraging membership in the Union, Whelan has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Whelan has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent United did not violate the Act as alleged in the complaint nor
did Respondent Whelan discriminatorily terminate the employment of Georgia
Ann Formy Duval as alleged in the complaint.
[Recommendations omitted from publication.]
WTOP, Inc. and Radio & Television Broadcast Engineers & Tech-
nicians, Local No. 1215, International Brotherhood of Electri-
cal Workers, AFL, Petitioner. Case No. 5-RC-1754. November
30,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Henry L. Segal, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9,
(c) (1) and Section 2 (6) and (7) of the Act for the following rea-
sons:
114 NLRB No. 194.