United Cigar-Whelan Stores Corp.

National Labor Relations Board - Board Decisions

May 1, 1956

115 N.L.R.B. 1214 (N.L.R.B. 1956)

1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to an election into the employer's office,3 individually, and urging them
to reject a union is in itself conduct which interferes with a free choice
by the employees and warrants setting aside an election, regardless
of the noncoercive tenor of the employer's actual remarks 4 An em-
ployer's reasons for holding such conferences are thereupon imma-
terial.
Accordingly, we find no merit in the Employer's exceptions, and
shall, therefore, order that the election be set aside and direct that a
new election be held.
[The Board set aside the election held on January 4, 1956.] _ . -
[Text of Direction of Second Election omitted from publication.]
8 The Employer contends that the interviews were not held in a "private office" as that
term is normally understood , and that, although the room where the interviews were
held is used by its president , it is also used for a number of other purposes . However,
it is not contended that the room was the normal work area of the employees interviewed.
We find, in view of the foregoing, that the conference room was, at least for the purposes
of the interviews , an office within the meaning of the Board 's rule. Supreme Trailer Com-
pany, 115 NLRB 962.
4 General Shoe Corporation, 97 NLRB 499; Qualiton, 115 NLRB 65 , and cases cited
in footnote 2, thereof.
United Cigar-Whelan Stores Corporation and Whelan Drug
Company, Inc. and United Transport Workers of America,
Ind. Case No. 10-CA-P229. May 1, 1956
DECISION AND ORDER
On October 25, 1955, Trial Examiner Robert L. Piper. issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent Whelan Drug Company, Inc., herein called Whelan, 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 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 Respondent United Cigar-Whelan Stores Corporation, herein
.called United, had not violated the Act, as alleged in the complaint,
and recommended that these allegations be dismissed. Thereafter,
Respondent Whelan and the General Counsel filed exceptions, to the
Intermediate Report, and supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
115 NLRB No. 188.
UNITED CIGAR-WHELAN STORES CORPORATION 1215
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner,' with such modifications as are reflected below.
1. The General Counsel contends that the Respondents, United and
Whelan, constitute a single employer within the meaning of the Act,
both for purposes of asserting jurisdiction over Whelan and of holding
United responsible for the alleged unfair labor practices committed by
Whelan.
The Trial Examiner found, on the basis of Whelan's commerce data
alone, that the Board's minimum jurisdictional standards have been
met, and recommended issuance of an appropriate order against
Whelan. He further found that United and Whelan do not constitute
a single employer within the meaning of the Act, and recommended
that the complaint be dismissed as to United. The General Counsel
has excepted to this latter finding.
The Trial Examiner properly found that jurisdiction should be
asserted over Whelan on the basis of its own operations 2 and found
that Whelan's agents independently committed the unfair labor prac-
tices involved. In these circumstances and in the absence of a con-
tention that Whelan is incapable of remedying the unfair labor
practices found or that enforcement of our order against Whelan alone
would not fully effectuate the policies of the Act, it is unnecessary
to determine whether United and Whelan can properly be held to be a
single employer within the meaning of the Act. Accordingly, we do
not pass upon the merit of the Trial Examiner's contrary finding.
2. We also agree with the Trial Examiner's findings that Respondent
Whelan discriminatorily discharged employees Harris, Frazier, and
Love, in violation of Section 8 (a) (3) of the Act, and that it com-
mitted 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
discharging any of its employees or in any other manner discriminating
' We are in agreement with the Trial Examiner that the issues raised by Respondent
with respect to compliance. with Section 9 (f) and (g) of the Act are not brie 1itiRable,
as they do not involve interpretation of the statutory language See Desaulmet s and
Company, 115 NLRB 1025
aUnited Cigar-Whelan Stores Corporation and Whelan Drug Company, Inc, 114
NLRB 1219
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in regard to their hire or tenure of employment or any term or condi-
tion of employment.
(b) 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 the Union or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to re-
frain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Sec-
tion 8 ( a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
-(a) Offer Harris, Frazier, and Love immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and make
each of them whole in the manner set forth in the section of the Inter-
mediate 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 and the rights of employment under the terms of this Order.
(c) Post at its warehouse and its various retail stores in Miami,
Florida, copies of the notice attached hereto marked "Appendix A."'
Copies of said notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed by Whelan's representa-
tive, be posted by Whelan immediately upon receipt thereof and main-
tained by it for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Whelan
to insure that said notices are not altered, defaced, or covered by
any other material.
(d)- Notify the aforesaid 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 discruninatorlly discharged Robert Lee Wll-
3In the event that this Oidei 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 Deciee of the United Stares Court of Appeals Tlntoicing an Oider"
UNITED CIGAR-WHELAN STORES CORPORATION 1217
liams, or that Respondent Whelan committed any unfair labor prac-
tices in violation of the Act, except as otherwise found herein.
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Decision and Order.
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 the United Transport
Workers of America, Incl., or any other labor organization of
our employees, by discharging any of our employees or by dis-
criminating in any other manner in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist the aforesaid
Union or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section &
(a) (3) of the Act.
WE WILL offer Benjamin Harris, Eugene Frazier, and Wilbur
Love immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
or any other rights and privileges previously enjoyed, and make
each of them whole for any loss of pay they may have suffered as
a result of the discrimination.
All our employees are free to become, remain, or refrain from be-
coming or remaining members in good standing of the above-named
Union, or any other labor organization, except to the extent that such
right may be affected by an agreement in conformity with Section 9
(a) (3) of the Act.
WHELAN 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,
390609-56-vol 115-78
- 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been duly issued and served by the General Counsel of the National
Labor Relations Board, and answers having been duly filed by United Cigar-Whelan
Stores Corporation (hereinafter called United) and Whelan Drug Company, Inc.
(hereinafter called Whelan and United and Whelan being hereinafter collectively
called Respondents), a hearing involving allegations of unfair labor practices in
violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, 61 Stat.
136, was held in Miami, Florida, on July 12, 13, and 14, 1955, before the duly desig-
nated Trial Examiner. In substance, the complaint alleges and the answers deny that
Respondents: (1) At various times between November 1954 and February 1955,
interfered with, restrained, and coerced their employees in the exercise of rights
guaranteed by the Act, and (2) at various dates between November 1, 1954, and
January 20, 1955, discriminatorily discharged four named employees because of
their union activities.
All parties were represented at the hearing and participated therein and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence pertinent to the issues, to argue orally upon the record, and to
file briefs and proposed findings of fact and conclusions of law. Counsel for all
parties waived oral argument. Briefs have been received and considered from counsel
for the General Counsel and for Respondents. At the conclusion of the General
Counsel's case-in-chief, his motion to withdraw paragraphs numbered 5 and 6 of the
complaint, containing certain allegations of interference, restraint, and coercion on
the part of Respondents, was granted without objection. Ruling was reserved on
Respondents' motions to dismiss the complaint, and upon the General Counsel's
objection to the receipt in evidence of Respondents' Exhibits Nos. 3 through 37, which
motions and objection are respectively disposed of by the following findings, con-
clusions, and recommendations. -
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
United operates a nationwide chain of retail drug and cigar stores. All parties
concede that it is admittedly within the Board's recently adopted jurisdictional stand-
ards for multistate chains of retail stores. However, the General Counsel contends
that United and Whelan constitute a single or joint employer within the meaning of
the Act, and that Whelan constitutes an integral part of such multistate chain, both
for the purposes of establishing the liability of United for the alleged unfair labor
practices and for the purpose of exercising jurisdiction over Whelan. Conversely,
Respondents contend that United and Whelan are separate and distinct corporate em-
ployers which do not constitute a single employer within the meaning of the Act, that
Whelan's operations are entirely independent of United, and that therefore United
can neither be found liable for any of the alleged unfair labor practices based upon
the activities of Whelan, nor may the Board assert jurisdiction over Whelan based
upon the Board's conceded jurisdiction over United. Respondents further contend
that, viewing the commerce data of Whelan alone and independent of that of United,
it does not meet any of the jurisdictional minimums required by the Board for intra-
state chains of retail stores. On the other hand, the General Counsel contends that,
even if Whelan be considered not an integral part of a multistate enterprise for
jurisdictional purposes, Whelan's commerce data alone meets the Board's jurisdictional
standards for intrastate chains of retail stores as set forth in Hogue & Knott Super-
markets, 110 NLRB 543.
The'same issues and contentions have recently been passed upon by Trial Examiner
George Bokat in Board Case No. 10-CA-2023 (not reported in printed volumes of
Board Decisions and Orders) between the same parties. While I have conducted my
own research and analysis of the law, including a careful consideration of the briefs
of the parties and the cases cited therein, I have independently come to the same con-
clusion concerning these issues as reached by Trial Examiner Bokat, and accordingly
deem it unnecessary to repeat herein the careful and complete analysis of the issues
and law set forth in his Intermediate Report.
With respect to the issue of whether Whelan constitutes an employer separate
and independent of United, or together they constitute a single employer within
the meaning of the Act so that United would be equally liable for any unfair labor
UNITED CIGAR-WHELAN STORES CORPORATION 1219
practices which might have been committed, I have concluded and find that Whelan
and United do not constitute a single employer within the meaning of the Act
and that Whelan is a separate and distinct corporation, although wholly owned by
United, with separate and distinct control of its own labor policies and employees,
and accordingly grant Respondents' motion to dismiss the complaint as to United.
The same facts analyzed by Trial Examiner Bokat concerning this issue are present
in this record. In addition to the cases cited and considered by him, I have also
based my findings and conclusions upon the following decisions: Ozark Central
Telephone Company, 83 NLRB 258; The Jefferson Company, Inc., 110 NLRB 757;
National Electronic Manufacturing Corporation and Mylsher Realty Corporation,
113 NLRB 620; and N. L. R. B. v. Concrete Haulers, Inc. and Wamix, Inc., 212
F. 2d 477 (C. A. 5). For the same reasons, I conclude and find that United and
Whelan do not constitute a single employer within the meaning of the Act for
the purposes of asserting jurisdiction.
With respect to the issue whether Whelan, viewing its commerce data alone, meets
the jurisdictional minimums established by the Board for intrastate chains of retail
stores, the same facts are present in this case as in the former. The parties entered
into the same stipulation concerning inflow of goods to Whelan from outside the
State of Florida. One of the minimums established by the Board in the Hogue &
Knott Supermarkets case, supra, for such intrastate chains is a direct inflow of
$1,000,000 or more. The issue narrows itself to whether certain tobacco and cigarette
purchases made by Whelan constitute direct inflow, since if they are added to its
conceded direct inflow, the total exceeds $1,000,000.
Briefly, Whelan orders such tobacco products directly from manufacturers in other
States. These manufacturers maintain stocks of their merchandise in public ware-
houses in Florida, from whence Whelan's, and other, orders are filled upon notice
from the manufacturers. Title does not pass to Whelan until delivery is made to it
at Miami.
Again, while I have conducted my own research of the law, including the parties'
briefs and cases cited therein, I have independently reached the same conclusion as
Mr. Bokat. In addition to the reasons and cases relied upon by him, a recent de-
cision of the Board's seems clearly dispositive of the issue. In United Warehouse
and Terminal Corporation, 112 NLRB 595, the Board found a public warehouse
to be a link in the chain of interstate commerce, and in view thereof, applied to it
the standard of a $100,000 annual income from services which constitute a part of
interstate commerce, and asserted jurisdiction. Manifestly, the out-of-State inflow
of the tobacco products herein must be to somebody. Since the Board has concluded
that such warehouses constitute a link in the chain of interstate commerce, they
cannot be the recipients of such inflow but are merely links in the process. Conse-
quently, the direct inflow of the tobacco products must be to those who receive them
from such links, in this case Whelan.
For all of the foregoing reasons, I conclude and find that Whelan constitutes an
intrastate chain of retail stores with a direct inflow of goods in excess of $1,000,000
purchased outside the State of Florida, and therefore it would effectuate the pur-
poses of the Act to assert jurisdiction in accordance with the standards established
by the Board.
II. THE LABOR ORGANIZATION INVOLVED
United Transport Workers of America, Ind. (hereinafter called the Union), is a
labor organization within the meaning of Section 2 (5) of the Act. Here too, as
in the preceding case, Respondents moved to dismiss the complaint because, they
alleged, the Union was not in compliance with Section 9 (f) and (g) of the Act,
and because the Union's corporate franchise issued by the State of New Jersey stated
that the Union was to be "a labor union of transport workers." Again I have made
my own research, including a careful analysis of Respondents' brief and the cases
cited therein, and have independently reached the same conclusions as Trial Ex-
aminer Bokat concerning these issues.
With respect to Respondents' contention that the complaint must be dismissed
because the Union is not in compliance with the filing requirements of Section 9
(f) and (g) of the Act, it must now be considered well settled that the Board will
not permit the litigation of compliance questions in unfair labor practice -cases,
which compliance has been administratively determined before the issuance of a
complaint. Even if the Board's rule were to the contrary and would permit the
litigation of the question of compliance in this case, I agree with Trial Examiner
Bokat's conclusion that the state of this record is not such as to warrant the inference
of noncompliance sought to be drawn by Whelan and overcome the previous ad-
ministrative determination of compliance with Section 9 (f) and (g) of the Act.
1220 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am also in accord, for the same reasons as stated by Trial Examiner Bokat, that
Whelan's argument that the Union is not entitled to represent these workers, because
its New Jersey corporate franchise states that it is to be "a labor union of transport
workers" but concededly also states that the Union has the right "to do any and all
other things and duties pertaining to a labor union," is without merit
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During 1954 Whelan operated 15 drugstores and 4 liquor stores in the State of
Florida, most of them in the greater Miami area. In May 1954 the Union, through
its vice president, Edward Hannes, and certain assistants hired by him, began an
organizational drive among Whelan's employees. Shortly after this organizational
drive began, Whelan through some of its supervisors indicated clearly its opposition
to its employees joining the Union or participating in its activities.
Daniel Giannetta was employed at Whelan's 71st and Collins Avenue store in
Miami Beach as a night fountain manager. His immediate superior was a Mr.
DeSario, the fountain manager, a position stipulated as that of a supervisor within
the meaning of the Act. Giannetta testified that as soon as the Union started to
organize Whelan's employees in June or July 1954, DeSario told him that the Union
was no good, that they were a bunch of racketeers, and that any employee caught
joining it would be fired. DeSario continued to make such statements during 1954
while the Union was attempting to organize Whelan's employees.
Giannetta testified that during the organizational period four new employees were
hired at the`71st Street store. Before they started to work DeSario interviewed each
of them, told them they should not join the Union, and that they would be fired if
they did. Giannetta worked the evening shift and DeSario the day shift, the latter
leaving the store about 3:30 p. m. John L. Totten was Whelan's fountain supervisor in
charge of the fountain managers and their personnel at all of Whelan's stores. Totten
usually stopped in at the store around 5 p. in. each night. He contacted Giannetta
since DeSario had already left. When Totten observed that the store had a new
employee, he would ask Giannetta if that employee had been briefed about the Union
by DeSario. Giannetta said this continued until the Union stopped trying to organize
the employees. Giannetta said that the last time any reference was made to the
Union to him by DeSario or Totten was in February 1955.
Totten also told the employees that the Union was no good and that it was made
up of racketeers. On one occasion he showed the employees at the store a picture
of some woman taken in a State prison whom Totten said was the president of the
Union. Giannetta himself did not brief any of the new employees about Whelan's
opposition to the Union and its desire not to have them join, but when Totten inquired
of him if new employees had been so briefed, he advised Totten that DeSario had
done so before the employee started to work. Giannetta said he heard DeSario
tell one new employee that if Whelan learned that she joined the Union she would
be out of a job. On another occasion DeSario told Giannetta that Whelan obtained
their information about the employees' union activities through one of the employees
who was acting as a spy in the Union. On another occasion, Totten in Giannetta's
presence informed DeSario that somebody in the store had joined the Union, but
Whelan did not known who and that Totten was trying to find out. DeSario ques-
tioned all of the employees but according to Giannetta's knowledge never found
out. DeSario was not called as a witness. Totten testified but did not deny any
of Giannetta's testimony, and accordingly it stands undisputed in the record.
During November 1954 and January 1955 the alleged discriminatory discharges
of four employees occurred and will be considered hereinafter. On February 20,
1955, the Union scheduled a meeting for Whelan's employees at the Veterans of
Foreign Wars hall on 79th Street in Miami to inform them of a Board representation
case which had been heard on February 16. The Union called 2 meetings, 1 at
noon and the other at 5 p. m., in order to permit the employees of the early and late
shifts to attend . It notified all of the members in writing by mailing them a postcard
of the time and place of the meetings.
The complaint alleged, and it was undisputed in the record, that four of the officials
and top supervisors of Whelan engaged in surveillance of this February 20 meeting
of the Union. These four officials were John C. Hutsler, general manager of
Whelan's entire operations; Mrs. Vera Adams, Whelan's personnel director who
was also in charge of its bookkeeping; Eugene Wall, Whelan's warehouse manager;
and Totten, previously identified as Whelan's supervisor in chief of its fountains.
The General Counsel called as witnesses concerning this incident Hannes, vice presi-
dent of the Union; Edward Kahn and John Carroll, who were employed by Hannes
UNITED CIGAR-WHELAN STORES CORPORATION 1221
as part-time organizers for the Union; Murray Liebeskind, a Whelan employee who
attended the meeting; and Leon Juin, a friend of Hannes who drove him to the
meeting. Whelan called as witnesses concerning this incident Wall, Totten, and
Adams. Hutsler, although present throughout the hearing and called as an adverse
witness by the General Counsel concerning another point, did not testify concerning
this incident.
There is substantial and serious conflict between the testimony of the witnesses
called by the General Counsel and those called by Whelan concerning what hap-
pened on the afternoon of February 20, 1955. The testimony of the witnesses called
by the General Counsel concerning the incidents of February 20 is substantially in
accord. According to them, Hannes, Mrs. Hannes, Kahn, and Carroll all arrived
at the meeting hall about noon, the Hanneses being driven there by Juin in his car
,and Kahn and Carroll following them in another car. Shortly after they arrived at
the hall and entered the building, Kahn noticed Adams in back of the building looking
in and advised Hannes of that fact. Kahn then went outside in front of the building
and saw Hutsler drive by in his convertible at a speed of about 8 to 10 miles an hour.
As previously noted, this was not denied. Kahn also advised Hannes of this incident.
About 12:30 p. in. Kahn observed Mrs. Adams' son, a boy about 10 or 11 years
old, looking into the building through a large ventilating fan opening in the rear of
the building. Kahn observed Adams around the hall during the course of the after-
noon about 6 or 7 times, and saw Wall and Totten in the vicinity 3 or 4 times, looking
into the building where the meetings were to be held.
Only a few of the members showed up at the meetings. Mr. and Mrs. Duvall,
Mr. and Mrs. Constans, Beulah Bailey, and Murray Liebeskind, who arrived about
5 p. in., were the only members of the Union other than its officials and organizers
who appeared at the meetings that afternoon. Carroll said that about 12:15 p. m.
he heard Kahn say that he had seen Adams in back of the building looking into the
hall. Carroll went outside and saw her in back of the building. During the course
of the afternoon, he also saw Adams, her son, and Totten looking into the building
through the windows. Carroll also observed Adams' son looking through the fan
opening at the rear of the building and playing around the building. After Kahn
told Hannes that he had seen Adams looking into the building, Hannes went outside
and saw Hutsler drive slowly by in his car. Hannes said that during the course of
the afternoon, he saw Adams around the building looking in 2 or 3 times, saw Totten
once, and also observed Adams' son around the hall.
No additional members other than those already named showed up for the noon
meeting and the small group spent the afternoon sitting in the hall talking and wait-
ing for the rest of the members to appear. Hannes testified that at previous union
meetings usually from 25 to 30 members were present, that those meetings had been
called orally, and that on this occasion they had mailed out approximately 100
cards to the members notifying them of the meeting. Juin, who was not a member
of the Union or interested in its affairs, remained outside in his car which was
parked in front of the hall. About 4.45 p m. Hannes went out to the car to talk
to Juin and sat there with him for a few minutes. After about 10 minutes Mrs.
Hannes, Carroll, and Kahn joined Hannes at the car where they were standing
together in a small group. About that time, around' 5 p. in., Totten approached
the group and spoke to Hannes Hannes asked Totten what he was doing there
and Totten replied that he wanted to make sure that none of Whelan's fountain
help came to the meeting, and that if they did they would be fired the next morning.
About this time, the group was joined by Wall and Adams, who both stated that if
any of their employees came to the meeting they would be fired for doing so.
Hannes remonstrated with Whelan's officials about these threats. He told them
that if they took such action he would file charges with the Board against Whelan.
They advised Hannes that Whelan was not concerned about any charges that he
or the Union might file with the Board, and reiterated their threats to discharge any
employees who attended the meeting Shortly thereafter, around 6 p. in., the group
broke up and went their various ways.
The foregoing incidents were testified to by Kahn, Carroll, and Hannes, and their
testimony was substantially in accord. In addition, Liebeskind arrived at the hall
shortly after 5 p. in., stated that he observed the group across the street next to the
car, and saw Totten, Wall, Adams, Kahn, Carroll, and Hannes. All of the wit-
nesses for the General Counsel agreed that Juin had left the car before Totten, Wall,
and Adams approached it and was not present during the conversation. Juin testi-
fied that he drove Hannes to the meeting, remained outside in the car, and Hannes
joined him at the car about 5 p. m. where they sat talking for 10 or 15 minutes.
Juin testified in accord with the others that he left the car as Totten approached.
Juin said that after Hannes left the hall and came outside he was with Juin all of
the time until the others came up to the car.
0
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While there is substantial conflict between the foregoing testimony and the testi-
mony of Whelan's officials concerning the incidents of February 20, Whelan's
officials admitted that they engaged in surveillance of the meeting. Hutsler, as
previously stated, did not deny that he was in front of the entrance to the hall in
his automobile, and, accordingly, the testimony concerning him is undisputed in
the record. Adams, Totten, and Wall all admitted that they were present outside
the entrance to the hall for the purpose of observing who attended the meeting.
However, they contended that they only wanted to determine if any of Whelan's
fountain managers, supervisors within the meaning of the Act, attended the meet-
ing. Totten, Whelan's fountain supervisor, was the only supervisory official pres-
ent directly concerned with the fountain managers. Hutsler was Whelan's general
manager, Adams the personnel director, and Wall the warehouse manager. On
cross-examination, Wall admitted that he was interested in whether his warehouse
employees joined the Union, and Adams admitted that she was interested in all of
Whelan's employees in addition to the fountain managers.
Totten testified that Adams was given 1 of the cards notifying the employees of
the union meeting by 1 of Whelan's employees, and that she in turn showed the
card to Totten and advised him of the meeting. On the afternoon of February 20,
a Sunday, Wall was visiting Totten at his home. Totten suggested to Wall that
they drive to the hall and observe the union meeting. Wall agreed. They proceeded
to the hall in Totten's car, parking it directly across the street from the hall. Across
the street from the Veterans hall is a hotel, and some feet west of it on the same side
is a tavern known as the Modern Bar. Because of disagreement between the par-
ties as to the location of that bar, they stipulated that the Trial Examiner view the
site and determine exactly where the Modern Bar was located with reference to
the Veterans hall. This was done and a statement entered in the record and ac-
cepted by the parties that the Modern Bar is located on the north or opposite side
of 79th Street, 65 feet west of the entrance to the Veterans hall. It was also de-
termined and accepted that it was possible, standing inside of the tavern or sitting at
the bar in certain locations at or near its front windows, to observe the entrance
to the Veterans hall without difficulty.
The General Counsel's witnesses testified that the notice cards mailed out set
the time of the two meetings for noon and 5 p. in. Totten said he and Wall parked
across from the hall at about 3:45 and sat in the car for about 15 minutes, when
Wall left the car and entered the Modern Bar. A few minutes later he returned
to the car. Then the two men decided to go in the bar and have a drink, which
they did. Totten said that they discovered after they were in the bar that they
could observe the entrance to the hall so they stayed there. They were there for
possibly a half hour when, according to them, Hannes entered the bar, sat down
opposite them, and ordered a glass of beer. Totten joined Hannes, engaged in
some idle conversation, and bought him another beer. Totten said that shortly
after he joined Hannes, Adams joined them. Hannes asked Totten who Wall
was and Totten introduced Wall.
While the group sat at the bar and had several drinks and beers, Totten said
that Hannes remarked that he thought he was going to cease his union activity be-
cause he could not get enough votes for the Union Hannes then named a few
employees who had joined the Union. About that time Mrs. Hannes entered the
bar and there was further general conversation. According to Totten, the time
from when he parked his car until he left the bar was about an hour. When he
left the bar at or around 5 p. in. he saw Kahn and Carroll outside and spoke to
them. Totten said that he left the bar alone, that Wall remained inside, and
that Totten rejoined Wall in the bar later. Subsequently they left the bar together
and returned to Totten's home. Totten thought that Adams and Wall remained in
the bar talking to the Hanneses during the time he was outside and greeted Carroll
and Kahn. Totten denied that there was any conversation at Juin's car between
the group of union people and himself, Adams, and Wall, and denied that any
of Whelan's officials made any threats to discharge employees who attended the
meeting.
Totten said that he believed that the card he was shown by Adams concerning
the meeting indicated that it was at 5 o'clock, but did not explain why he arrived
in front of the entrance hall at 3:45. Totten denied that he had been in the vicinity
of the hall from noon on as testified by the witnesses for the General Counsel. Ac-
cording to Totten, he and Wall were alone in the bar when Hannes entered and
Totten joined Hannes at the bar. He said that Adams was not present then but
came in later and joined Hannes and himself at the bar when she noticed them
there.
0
UNITED CIGAR-WHELAN STORES CORPORATION 1223
Wall testified that he visited Totten at his home about 1 p. m. Totten asked
Wall to go with him to observe the union meeting to see if any of the fountain
managers attended. Wall agreed and they drove there in Totten's car. Accord-
ing to Wall, they got there about 3 p. in., parked across the street from the entrance,
and sat there for some time. Wall left the car to enter the bar, returned to the car,
and about 4 p. in. the two men went into the bar to get a drink. Wall confirmed
Totten's statement that they could observe the entrance to the hall from the bar
so they remained there. According to Wall, Adams joined them immediately after
they entered the bar and before Hannes appeared. They had 1 or 2 drinks at
the bar and then Hannes entered. Wall said that Hannes ordered a beer. and then
he and Totten exchanged greetings and Totten joined him. Shortly thereafter
Adams joined them. Subsequently they called Wall over and introduced him to
Hannes.
Wall said that during the conversation Hannes said that he was disgusted with
the way the union drive was going, was considering abandoning it, and told Adams
how all of Whelan's help liked her so much. About that time Mrs. Hannes came
in, was introduced to the others, and joined the group. Wall said that some 5 or
10 minutes later he and Totten left the bar and met Kahn and Carroll in front of
Totten's car. Wall said that Adams had left the bar to go to Whelan's 79th Street
store to pick up her son and that he and Totten stopped and talked to Kahn and
Carroll for a few minutes and then left to go home. Wall denied that any threats
were made by anyone, including himself, to discharge employees who attended the
meeting. According to Wall, the meeting between the Hanneses and the Whelan
officials in the bar was a pleasant one.
Adams testified that she knew of the meeting because she had been given the
cards by two employees. She informed Totten of the meeting. According to
Adams, she met Totten and Wall in the bar by prearrangement made the day be-
fore. Adams said she left home about 1:30 p. in., took her son and a friend of his
to a movie, and then proceeded to the 79th Street store where she, her son, and the
friend had something to eat. She said that about 10 minutes to 4 she went to the
bar and met Wall and Totten, who were then alone. Hannes entered the bar after 4
o'clock. According to Adams, contrary to the testimony of all of the other witnesses
including Totten, the meeting was scheduled for 4 p. in. After they had been in
the bar for some time Hannes came in. Totten bought him a drink and introduced
him to Wall.
According to Adams, Hannes said, that he was going to abandon organizing the
employees because he could not get any cooperation from them, proceeded to in-
form the three Whelan officials that they had in their employ many disloyal people
who were working behind their backs for the Union, and named a considerable
number of employees. Subsequent to this conversation, Mrs. Hannes entered the
bar and joined the group. Adams said that at no time did she see Kahn or Carroll.
She said that she left the bar before the others to pick up her sop at the movie
and that no conversation occurred outside the bar. Subsequently she testified that
she arrived at the bar at 4:20 p. in. to see if any employees attended the meeting
scheduled for 4 o'clock. She said that both Totten and Wall were present when
Hannes told them that they had a number of disloyal employees and who they
were.. Adams denied that at any time on February 20 did she, Totten, or Wall make
any threats to discharge employees who attended the meeting.
Hannes denied that he was ever in the Modern Bar, stated that he did not even
know of its existence, and said that he was a diabetic and did not drink. Carroll
testified that Hannes remained in his presence in and about the meeting hall until he
went out to join Juin at the car about 4:50 p. m. Carroll said he was sitting at
a window, could see Hannes at all times, and he never left the car or entered the
bar. Carroll subsequently joined Hannes at the car with the others when Totten,
Wall, and Adams came up to the car. Juin confirmed that Hannes was with him
at all times and never entered the bar.
Hannes, Kahn, Carroll, Liebeskind, and Juin impressed me as credible witnesses,
and their testimony concerning the incidents of February 20 was substantially in
accord. On the other hand, the testimony of the witnesses for Whelan concerning
the incidents of February 20 conflicted to some extent, in some cases of lesser signi-
ficance and in others of greater significance. Although the meetings were sched-
uled for noon and 5 p. m. and Adams and Totten admittedly saw the written notice
of them, according to Totten he did not arrive there with Wall until about 4 p. m.
According to Wall, they arrived there about 3 p. in. According to Adams, she
arrived there about 20 minutes after 4 to observe who attended a meeting scheduled
to begin at 4 p. m. They all admitted that they were there to engage in surveil-
lance of the meeting, but contended that it was only to see if any fountain man-
J224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agers attended. This contention was to some extent contradicted by the admis-
sions of Wall and Adams on cross-examination. In addition, it was not explained
why it was necessary for 4 Whelan officials, 3 of whom were not directly connected
with the fountain managers, to engage in surveillance of a union meeting to see
if any such fountain managers might attend. According to Totten, he and Wall
were alone in the bar when Hannes entered. According to Wall and Adams, she
was present in the bar before Hannes arrived
According to Wall and Totten, their decision to observe the meeting and who came
to it was a spur-of-the-moment decision reached Sunday afternoon at Totten' s home.
According to Mrs. Adams, she met Totten and Wall at the Modern Bar by prearrange-
ment . The testimony of the same three witnesses concerning the alleged meeting and
conversation with Hannes in the bar is also conflicting. According to their testimony,
all three of them were together and present when Hannes is alleged to have said that
he was disgusted with the union drive, was going to abandon it, and named a
number of union members who were disloyal to Whelan. Adams testified that
Hannes said that he was giving up because he could not get any cooperation from
the employees, then told the Whelan officials that they had disloyal people who were
working for the Union, and proceeded to name more than 10 such employees.
To begin with, it is somewhat incredible that the vice president of a union engaged
in an organizational drive should name to management officials employees who had
joined the Union, and advise management that they were disloyal to it. Although
Wall and Totten were present during this conversation, they did not corroborate
Adams. Totten said that Hannes stated that he was disgusted with the way the
drive was going and was going to drop it because they could not get enough members.
He also said that Hannes named a few employees who had joined the Union. How-
ever, Totten made no mention of Hannes' alleged statement that a number of em-
ployees were disloyal to Whelan. Wall said that Hannes stated that he was disgusted
with the way the drive was going and was planning to abandon it. Contrary to
Adams' and Totten's testimony, he said that Hannes told Adams how all of the em-
ployees liked her so much and were loyal to her.
Wall testified that he and Totten left the bar together and were joined by Carroll
and Kahn in front of Totten's car. According to Totten he left the bar alone and
Wall was still inside the bar when Totten met Carroll and Kahn. Adams said that
she left the bar before anyone else in order to pick up her son at the movies and never
saw Carroll or Kahn. All three officials denied having been in the vicinity of the hall
from noon on as testified by the witnesses for the General Counsel. Totten said that
the meeting he came to observe was scheduled for 5 p. m. Adams' testimony con-
cerning her movements that afternoon is confused and difficult to understand. She
said she left home about 1:30 p. in. and took her son and a friend of his to a movie.
She then said that she went to the 79th Street store, arrived there about 3 p. m.,
and her son, his friend, and she had something to eat. It was not explained how the
son and friend could be there if she had taken them to a movie as she said. About
10 minutes to 4 she left the drugstore and proceeded to the bar. If her testimony
concerning eating at the 79th Street store with her son is correct, presumably he
was still there when she left the store. However, she testified that she left the bar
before the others in order to pick up her son at the movies. Wall testified that she
left the bar to return to the 79th Street store to pick up her son.
A preponderance of the credible evidence in the entire record convinces me, and
I find, that Whelan through its supervisory officials engaged in surveillance of the
meeting of the Union on February 20, 1955, thereby interfering with, restraining, and
coercing their employees in the exercise of the rights guaranteed by the Act.' I fur-
ther find Whelan's alleged reason for engaging in the surveillance, namely, to see if
any supervisors attended the meeting, to be without merit, both because I find it not
to be the true reason in view of the admissions by Whelan's officials on cross-examina-
tion , and because such open surveillance of a union meeting would have the natural
effect or tendency of interfering with, restraining, and coercing employees in the
exercise of rights guaranteed by the Act, and therefore the intention or motivation
of Whelan in engaging in such conduct would be immaterial in view of such effect-2
I Hoot Heatri Corporation, 108 NLRB 1353 , Fniclceihoc1ei Manicfactnrinq Company,
Inc, 109 NLRB 1195; Wells Dairies Cooprratvne, 110 NLRB 875, Franchester Corpora-
tton, 110 NLRB 1391 , Casa Grande Cotton Oil Mill, 110 NLRB 1834, Cornell-Dubilier
Electric Corporation, Ill NLRB 277; Contract Battery Manufacturing Co., 112 NLRB
765, L C Pi^odncts, tits, 112 NLRB 872; Brown and Root, Inc , 112 NLRB 1068; and
Oregon Frozen. Foods Company, ct at , 112 NLRP. 150.1
h Radio Officers' Union of the Con nieicial Telegiaphei Union AFL v N L R B, 347
U S 17
UNITED CIGAR^WHELAN STORES CORPORATION 1225
On Sunday afternoon , February 27, 1955, a week later , the Union held another
meeting, this time at 901 Pennsylvania Avenue, Miami Beach , Florida, the home of
Hannes. Again Supervisors Totten and Wall admittedly engaged in surveillance of
that meeting. The Union again notified its members of the meeting in writing, and
this meeting was a single meeting scheduled for 5 p. in. The testimony of the wit-
nesses called by the General Counsel was in accord concerning the incidents of
February 27.
Carroll arrived at the meeting about 4:40. About 5 p. m. he went out on the
porch and observed Totten and Wall drive up in front of the apartment in their auto-
mobile and park on the same side of the street directly in front of the building.
Carroll observed the make of automobile and took its license number. Wall got
out of the car and walked to the back of the apartment. About that time Kahn
came out of the apartment. He asked Carroll what Totten and Wall were doing
there. Wall proceeded to the back of the apartment where there was a municipal
parking lot separated from the back window of the apartment by a small alley about
4 feet wide. Wall stood on the edge of the parking lot nearest the back window
looking into the apartment through it Carroll said that Wall and Totten changed
places at intervals, one being in the front and the other in the back.
About this time several employees arrived at the meeting and were also looking
out the back window from where they could see either Totten or Wall, depending
on which was stationed in the back at the time While Wall was on the parking lot
looking in the back window Carroll went out and talked to him. According to
Carroll, Wall asked him if they were not tired of having meetings and said that if it
were not for them they could be fishing that day Carroll asked him why they did
not go fishing. Carroll asked Wall what he was doing there. Wall .replied that he
was going to fire any of the warehouse employees that he caught attending the meet-
ing. Carroll told him that that would be against the law. Wall replied that he
should not be ridiculous, he had already stopped 2 of his men, and he would wager him
100 to 1 that they would not be working for Whelan any more
During the course of this conversation Kahn approached and tried to persuade
Carroll to cease the discussion with Wall and return to the apartment. Kahn said
he went out to get Carroll away from Wall. Kahn did not hear the conversation
between Carroll and Wall. After trying to persuade Carroll to return to the apart-
ment, Kahn started walking back through the alley to the house and met
Totten. Kahn asked Totten what he was doing there. He replied that he was
there to make sure that nobody attended the union meeting and if he caught anybody
he would fire them. Carroll and Wall were approaching Totten and Kahn, and
Wall said that that went for him too. Carroll and Kahn then returned to the
meeting.
Only about 5 or 6 employees attended the meeting. The meeting lasted until a
little after 6 p. in. Shortly before the meeting broke up, Totten and Wall returned
to their car, drove around the block, and returned to the front of the apartment.
They left shortly before the meeting ended. Hannes, in substance, corroborated the
foregoing testimony by Carroll and Kahn with respect to those incidents that he
observed. He saw Wall in back of the building looking through the kitchen window
and also saw Carroll talking to him and heard part of the conversation Hannes
heard Wall say that he was going to fire anybody who attended the meeting . Hannes
saw Kahn try to persuade Carroll to leave Wall and heard Totten and Wall say
they would fire any of their employees who attended the meeting. The meeting ended
between 6.15 and 6:30 p. in. Wall and Totten had driven away about 6 p. in.
Liebeskind also attended this meeting He arrived about 5 p. in He saw Totten
and Wall sitting in the car parked in front of the building. Liebeskind entered the
apartment and stayed inside until the meeting ended. He saw Wall and Totten
alternately in front of and in back of the building. Liebeskind did not hear any
of the conversations that took place. Eugene Frazier, one of the alleged discrimi-
natees, also attended this meeting He arrived about 5 p. m. and saw Totten sitting in
the car in front of the building. After Frazier entered the building he saw both Wall
and Totten in back of the building looking in the window. Frazier saw Totten and
Wall several times but heard none of the conversations
As in the case of the preceding meeting, Totten and Wall admitted that they
engaged in surveillance, but again claimed the same alleged reason, which I have
found to be without merit. Wall again was visiting Totten at his home. Totten
suggested that they observe the union meeting in Miami Beach. Totten admitted
that they parked directly in front of Hannes' home Totten said that they sat in the
car for some 15 or 20 minutes when Wall went to corner drugstore to get a drink.
He was away for 15 or 20 minutes while Totten remained in the car. Totten said
that he saw three of Whelan's employees enter the house to attend the meeting.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Wall returned to the car he told Totten he had just seen the same three em-
ployees. Totten replied that he had also seen them enter the building. Totten
decided to leave the car to go to the drugstore. He returned after 10 or 15 minutes
and they continued to sit in the car for about 20 minutes more, then drove around
the block once returning to the front of the apartment, and then left. Totten denied
that he was ever behind the building at any time that afternoon, or that he had ever
talked to anybody in the vicinity of that building.
In general, Wall's testimony was to the same effect. He said that Totten told him
that he had heard there was going to be another meeting and asked him if he would
go along to observe it. They proceeded to the place of meeting and parked directly
in front of Hannes' house. Wall said that after they sat there for some time he
went to the corner drugstore. When he returned he stood on the street corner
about one-half block from the building. He met Carroll and engaged in general
conversation with him. According to Wall, Kahn came up during this conversation
and told Carroll that the meeting was ready to start. They proceeded down the
street into the alley and into the house. Wall then returned to the car at which
time he saw three employees enter the building. A few minutes after Wall returned
to the car Totten went to the drugstore. According to Wall, Totten was gone 10 or
15 minutes. After he came back they remained in the car for a short time. About
6 o'clock they drove around the block once and then left. For the same reasons
previously expressed, I credit the testimony of the witnesses called by the General
Counsel.
A preponderance of the credible evidence in the entire record convinces me and I
fnd that Whelan, through its supervisors, Totten and Wall, engaged in surveillance
of the union meeting on February 27, 1955, thereby interfering with, restraining; and
coercing its employees in the exercise of rights guaranteed in the Act.
The complaint, in addition to alleging surveillance of the meetings of February 20
and 27, 1955, also alleged, with respect to the second meeting, that Totten and Wall
threatened reprisals and loss of employment to any employees attending the meeting.
The credited testimony establishes that such threats were made at both meetings.
Because the complaint contained no such allegation concerning the February 20
meeting, such a finding is not made with respect to that meeting . A preponderance
of credible evidence in the entire record convinces me and I find that Whelan, through
its supervisors, Totten and Wall, threatened to discharge its employees for attending the
union meeting on February 27, 1955, thereby interfering with, restraining, and
coercing its employees in violation of Section 8 (a) (1) of the Act.
B. The discharges
1. Benjamin Harris
Harris was employed by Whelan in its warehouse as a packer from January 1954
until his discharge on January 7, 1955. The latter date was stipulated by the parties
as the date of his termination. Harris joined the Union around the middle of
December, approximately 3 weeks before he was fired. Within a day or so of
Christmas 1954, Hannes, the vice president of the Union, visited the warehouse in
connection with his organizational activities and engaged in a brief conversation
with Harris . Both Harris and Hannes saw Adams and Mrs. Mary Lou Martin,
who was in charge of Whelan 's commissary and stipulated to be a supervisor , watch-
ing them from the warehouse while they were talking. Adams knew who Hannes
was. Harris and Hannes also saw Totten in the vicinity, but testified that he did
not see them talking to each other . When Harris learned that Hannes was a union
representative, he told Hannes that he did not want to talk with him about the
Union then. Martin spoke to Hannes and told him not to bother the employees by
talking to them. Thereupon Hannes left the scene. Martin told Harris that Hannes
was a union man and Harris should keep away from him. Adams observed the
conversation between Hannes and Harris but said nothing . None of the foregoing
was denied by any of Whelan's witnesses, and accordingly stands undisputed in
the record.
As a packer, Harris' job was to pack the merchandise which had previously been
picked and brought to the packing area by another employee for delivery to the
various drugstores, and to mark the appropriate store number on the various pack-
ages after they were completed. After he packed the merchandise he loaded it upon
handtrucks. Other employees subsequently loaded the packages upon the delivery
truck. In addition to his duties as a packer, Harris also did porter or general cleanup
work, usually the first half hour after coming to work in the morning. Thereafter
he spent the day performing his packing duties. Harris testified that he never did
UNITED CIGAR-WHELAN STORES CORPORATION 1227
anything wrong while working and was, never reprimanded concerning his work.
He said that during the first 2 weeks of his employment , approximately a year before
he was fired , he was reprimanded for marking -the wrong store numbers on certain
packages which he had packed, but that had never happened again nor had he ever
been reprimanded again. He also said that he had been late for work 1 or 2 times
but had always notified Wall, superintendent of the warehouse , given him a reason
for the tardiness , and had not been reprimanded . He also said that one Saturday
he was sick and did not come to work, but notified Wall and gave him his reason.
He said that the employees had been instructed to notify Wall whenever they could
not get to work and that he had always lived up to those instructions.
On January 7, 1955, Wall called Harris into Hutsler 's office at the warehouse.
Harris testified that Adams was present . According to Harris, Wall said that he
had to fire Harris but that he hated to do it. Harris asked Wall why he was fired
and Wall said it was because Harris was "messing around" with the Union. Wall
said that he would give Harris all the references he might need to obtain another
job. Thereupon , Harris accepted his pay and went home.
Wall testified that he fired Harris because of his laziness , inefficiency , and un-
reliability . Whelan called four witnesses , Wall, Adams, Robert Ray Bovinett, and
Mrs. Crotile Bishop, the latter two employees at the warehouse , to substantiate its
reasons for discharging Harris. Wall's testimony concerning Harris was limited
to his last 6 or 7 months of employment , inasmuch as Wall did not become superin-
tendent of the warehouse until June 1954. Harris' regular workweek was Monday
through Friday , 7:30 a. in. to 5 p. in. with a half hour for lunch. Any time worked
in excess of this was considered overtime . Wall said Harris did not report for work
on several Saturdays after Wall asked him to do so . Wall testified that Harris
was late 2 or 3 days every week during his last 6 months' employment . Wall said
that Harris was a very slow worker and made many mistakes by marking the wrong
store numbers on the packages for delivery . Wall said that on occasions he found
Harris loafing in the restroom . Wall testified that during his 6 or 7 months as
superintendent he spoke to Harris about 8 or 10 times concerning his being late,
about 4 times concerning his mistakes in marking packages, and about 4 times con-
cerning his slowness as a worker . Wall said that he kept Harris on in the hope
that he would improve.
Wall did not attribute the discharge on January 7 to any specific conduct of Harris
which occurred at or about that time. According to Wall , he called Harris into
Hutsler's office and told him that he was being let go because his work was not
satisfactory , he had been warned about being late and not coming to work on Satur-
days, and had not changed his ways' and cooperated with Wall. Wall denied that
he made any reference whatsoever to the Union or Harris' activities therein, and
said that he did not know that Harris belonged to the Union . According to Wall,
Adams offered Harris a position as a porter in one of the drugstores which he refused
to accept . Apparently Wall was not present at the time that this alleged offer was
made by Adams, because according to their testimony Wall sent Harris to Adams
for his pay and at that time she made the offer of another position.
Bovinett was employed by Whelan as a picker . The pickers ' duties were to pick
the merchandise ordered by the stores , place it on handtrucks , and transport it to
the packing area for packing . Bovinett did not impress me as a reliable and credible
witness. His testimony , particularly on cross-examination , revealed numerous con-
flicts and inconsistencies , and on the whole he impressed me as a witness willing
to exaggerate and ascribe to Harris any conduct which might discredit him and
justify his discharge . Wilbur Love, one of the alleged discriminatees, testified that
Bovinett joined the Union pursuant to Love's solicitation.
Bovinett testified that Harris was the only packer. Wall testified that Bovinett
was wrong and that there were two packers working during the time that Harris
was employed . Bovinett said that in his job as a picker he needed handtrucks upon
which he placed the merchandise which he picked , and because of Harris' constant
slowness in doing the packing work , the handtrucks were not available for Bovinett's
use because the packing had not been completed and the merchandise was still on
the trucks. According to Bovinett , from the time that Harris started to work through-
out his entire employment , Bovinett was constantly complaining to him about his
slowness and getting after him to empty the handtrucks so that Bovinett could use
o them . He first testified that he had many times , 12 or more, done the packing him-
self in order to secure the handtrucks and not wait for the packing to be done by
Harris. He testified that he complained to Wall two times about this. Wall, although
he testified that Harris was a slow worker , did not corroborate Bovinett's testimony
that he complained to Wall about Harris.
1228- DECISIONS OF NATIONAL"-LABOR RELATIONS BOARD
Bovinett subsequently testified that he complained to Wall every time Bovinett
had to do the packing himself, and yet he conceded that he had complained to Wall
only two times. The inconsistency is apparent. If he had to do the packing more
than 12 times and complained to Wall every time he must have complained to Wall
more than 12 times. On the other hand, if he complained to Wall every time that
he had to pack in order to get the trucks and only complained to Wall twice, then
that must have happened only two times. On direct examination Bovinett said
that 3 or 4 times he had seen Harris come to work late during the month of August
1954. On cross-examination he said that he had seen Harris come to work late at
least six times or more. Bovinett said that he knew of approximately three times
when Harris failed to come to work when he should have. Bovinett said that Harris
was approximately 50 percent less efficient than the employee who succeeded him as
the packer. According to Bovinett, Harris was practically worthless as an employee.
A f so, it seems most unlikely that Whelan would have kept him in its employ for
approximately a year. On the whole, Bovinett's testimony did not impress me as
being credible.
Mrs. Crotile Bishop, a Whelan employee who worked as a picker of toiletries,
cosmetics, and related products, testified that occasionally Harris would be sent
in to help her and that he was very slow as a worker. She said that she had to show
him where to put each package while he was assisting her, but admitted that she
had never made any complaints to anyone about his work for her. Consequently,
whatever the nature of his work for her it could not have been a reason for his
discharge. In any event, it was undisputed that this was work with which he was
not familiar. Bishop, after testifying that her then assistant performed the job much
-better, admitted that there was no way tb compare Harris with her present assistant
because the latter was employed full time on that job and therefore was familiar with it.
In connection with Whelan's contention that one of the reasons for Harris' dis-
charge was that he was frequently late for work, Whelan offered in evidence four
timecards allegedly punched by Harris on the time clock for the weeks ending
December 15, 22, and 29, 1954, and January 12, 1955, respectively. Harris testified
that he could not identify the cards as his and in fact did not believe they were be-
cause of certain times punched on them Whelan attempted to identify and explain
the cards through Adams, but she admitted that she did not understand how the time
on the cards was calculated and relied entirely on Wall's advice as to how much time
an employee had worked any given week. This included both whether an em-
ployee had worked a full week, and also how much if any overtime Concerning
Harris' discharge, Adams testified that after Wall fired him Wall sent Harris to
her for his pay and that she then offered him a job in one of the drugstores as a
porter which he refused.
Wall also was called to explain the four timecards received in evidence as Whelan's
exhibits and to attempt to demonstrate that they established that Harris was fre-
quently late for work. Although the General Counsel sought to secure Harris'
timecards for the months before December 1954 for purposes of comparison, he
was advised by Whelan's counsel that because of a change in bookkeepers the time-
cards before December had been destroyed. A careful analysis of Wall's testimony
and the timecards reveal that they do not support Whelan's contention. Wall testi-
fied that the employees in the warehouse were supposed to punch the time clock
each day when they reported to work, each noon when they went to lunch and when
they returned, and each evening when they checked out for the day. However,
Wall admitted that the timecards were not successful because the employees for the
most part did not punch them and that therefore he personally kept a record of
their time, including all overtime. At the end of each workweek he instructed
Adams whether each employee had worked a full week and how much overtime each
employee had worked He admitted that he did not rely on the timecards because
they were so sporadically used
The timecard marked on its face as being for the week ending December 15 is
marked on the other side, where the time clock punches appear, as being for the
week of December 29. Adams was unable to explain the two dates, but insisted that
the card was for the week of December 15. This card showed that Harris punched in
at 9:34 on a Sunday morning, which was used to demonstrate how late he was.
-However, Wall testified that the employees in the warehouse did not work on Sun-
day at any time. Assuming that Adams' testimony is correct, then the other time-
card dated December 29, Exhibit No. 1B, must be the correct card for that week.
During that week, December 25 fell on a Saturday According to the timecard,
Harris worked Saturday, Christmas Day, in spite of the admitted fact that none of
the employees including Harris worked Christmas Day.
0
UNITED CIGAR-WHELAN STORES CORPORATION 1229
Actually, it would appear that the card containing the two dates is more prob-
ably the card for Christmas week, inasmuch - as it indicates that there was no punch-
ing in on Christmas Day. However, Adams insisted that card was for the week of
December 15 and that Exhibit No. iB was the correct card for the week of De-
cember 29. The card for the week ending December 22 contained nothing unusual
except that there were no times punched for Tuesday and Wednesday, the last 2
days of the payroll week, although Wall's notation on the card stated that Harris
worked a full week plus 2 hours overtime. In the same manner, while the card
for the week ending January 12 had entries only on Tuesday, Wednesday, and
Thursday, nevertheless Wall's notation thereon indicated that Harris worked a
full week plus 31/2 hours overtime.
Wall's testimony indicates that if Harris was frequently late it was not con-
sidered important by either Wall or Whelan. Wall admitted that he advised Adams
at the end of each week whether or not an employee was to get a full week's pay and
how much overtime. Obviously if an employee was regularly late it would have
been - a simple matter for Wall to deduct that time from either his overtime or
the full week, yet in each instance Harris is credited not only with a full week but
overtime. The only time of arrival punched on any of the cards not within 30
minutes of 7:30 was the 9:34 a. in. on a Sunday, mentioned above, and according
to Wall's testimony the employees never worked Sundays. Wall admitted that he
did nothing about employees being late and did not deduct either from their pay
for the regular week or their overtime unless they were absent either a half or a
full day.
In rebuttal of the various reasons advanced for Harris' discharge, the General
Counsel recalled Harris and also called Frazier. Frazier, who worked for Whelan
during the entire period that Harris was employed and worked as a packer when
he was not busy driving the truck, testified that there had been approximately four
packers while he worked there and that Harris had been as good as any of the other
packers. Harris admitted that he was late for work once or twice but said that
he always had told Wall the reason and had not been reprimanded. Harris said that
he had never received any complaint about working too slow and had never refused
to work on Saturdays when requested to do so. He said that the only time he
ever missed working on a Saturday was when he was sick and had so notified
Wall. He said that the Saturday when he was sick was the only Saturday he had
ever missed working when requested to work. Harris also testified that he came
to work at the same usual time during December as he had the preceding year.
He said that no one had complained to him or reprimanded him for being late for
work, except on one occasion about 3 weeks after he started to work in January
1954 he was late because he was not used to the hours, was reprimanded for it, and
it never happened again . He also said that the only time he ever made a mistake
marking the wrong store numbers on packages was about 2 weeks after he started
to work, was reprimanded for it, and it never happened again. Whelan did not
explain why, if Harris was constantly late, frequently did not come to work when
he was supposed to, constantly made mistakes, and was an extremely slow worker,
he was offered another position as they contended Harris denied that he was
offered any other position at the time he was fired
It has been found that almost from the inception of the Union's organizational
activities, Whelan, through its supervisors, threatened its employees with discharge if
they joined the Union, warned new employees not to join the Union on penalty of
discharge, and engaged in a campaign to ascertain which employees had joined
or were sympathetic to the Union. None of the foregoing facts were denied
By such action Whelan made clear its opposition to the Union and what course of
action it would take when it ascertained that an employee had joined the Union.
In addition, it has been found that after Harris' discharge, Wall, Adams, and Totten
all stated on the occasions of the union meetings of February 20 and 27, 1955, that
they would discharge any employee they found attending the meetings. Shortly
before Harris' discharge he was seen talking to Hannes , vice president of the Union
and the leader of its organizational drive, by two of Whelan's supervisors, Adams
and Martin, and was warned by Martin to keep away from Harries because he was
a union man . This was also not denied . I find Harris to be a reliable and credible
witness and accordingly credit his testimony that Wall said that he was fired be-
cause of his union activities , and his testimony denying his alleged laziness, ineffi-
ciency, and unreliability. I am satisfied that the various reasons advanced by
Whelan for Harris' discharge were merely an afterthought , and not the real reason
therefor. -
A preponderance of credible evidence in the entire record convinces me and I find
that Whelan discriminatorily discharged Harris because of his membership in the
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union or activities therein , thereby discriminating against him in regard to his
hire and tenure of employment, discouraging membership in the Union, and inter-
fering with, restraining, and coercing its employees in violation of the Act.
2. Eugene Frazier and Wilbur Love
Frazier and Love were employed by Whelan as its delivery truckdriver and helper,
respectively, at the time of their discharge on January 20, 1955. Frazier began work-
ing for Whelan in 1952 as a packer , about 9 months later became a truck helper,
and about 4 months thereafter in 1953 became the truckdriver, at which position
he continued until discharged .' Whelan operated only one truck to deliver its drugs
and merchandise to all of its stores in Florida. (Whelan also operated a commissary
truck with which this case is not concerned.) Love began working for Whelan in
1951 as a packer. In 1952 he was drafted. He was discharged in February 1954
and immediately returned to Whelan as a packer. About a month later he became
Frazier's helper on the truck.
Both of them joined the Union sometime in July 1954 shortly after the organiza-
tional drive began and thereafter became very active in the organizational drive. Be-
cause they worked together , they carried on their organizational activities together.
-They contacted at least 15 employees at the warehouse and the stores where they made
deliveries , and signed up from 8 to 10 employees as members of the Union.
As previously found, Wall became superintendent of the warehouse in June 1954.
Prior to his coming Whelan had suffered substantial losses of merchandise in the
warehouse through theft. Wall said because of this he adopted a number of security
measures to prevent any further losses, among which measures was having the truck
driven by Frazier and Love periodically followed by members of Whelan, Wall him-
self, a trucking agency, and a detective agency. Frazier and Love testified that while
they contacted the various employees at the different stores about the Union, they did
not secure their signatures as members during working hours because of advice they
had received from the Union. Instead, they returned to secure such signatures after
working hours or over the weekend. Frazier and Love actively continued to attempt
to secure members for the Union until the time of their discharge . They testified
that the last employee they persuaded to join the Union did so about 2 weeks prior
to their discharge.
When Hannes visited the warehouse around Christmas and engaged in a conversa-
tion with Harris, referred to above in connection with Harris ' discharge , Hannes over-
heard a conversation between Hutsler and Wall. According to Hannes, Hutsler
asked Wall if he had checked up on the Frazier,matter and had the truck followed
in order to determine if they ( presumably Frazier and Love ) were engaging in or-
ganizing activities during the day. Wall replied that that had been taken care of.
Although Wall testified at considerable length and Hutsler was present throughout the
hearing, this testimony was not denied and accordingly stands undisputed. This
undenied testimony and the close surveillance of the truck during the 6 months
preceding the discharge of Frazier and Love clearly established Whelan's knowledge
of their active participation in the Union 's organizational campaign . Whelan's at-
titude toward the Union, its threats to its employees that they would be discharged
if they joined the Union, its warnings to employees not to join the Union, its attempts
to ascertain whether employees had joined the Union, its discharge of Harris be-
cause of his union activities, and its threats to discharge employees who attended
meetings of the Union, have previously been found.
Frazier and Love testified that they received 2 pay increases during the 6 months
preceding their discharge, 1 some months before and 1 a week before they were fired.
With respect to the latter they said that Wall advised them that he was increasing-
their pay 5 cents an hour, but that they had not received it at the time they were
discharged. Whelan denied the second increase, but stipulated that both Love and
Frazier received an increase in pay on November 4, 1954. Both Frazier and Love
testified that their work had been satisfactory, that they had not been reprimanded
in connection with their work prior to their discharge , and that as far as they knew
there had been no complaints about their work.
On January 20 while they were making a delivery at one of the drugstores, Wall
called Frazier at the store and asked him and Love to stop at Wall's office when they
returned to the warehouse. Upon their return they went to Wall's office. Wall ad-
vised them that he was sorry but he had to fire them. Frazier asked him why. Wall
replied that he had orders to do so from Hutsler because they were signing up em-
ployees for the Union and Whelan did.not want that. Love then asked Wall if that
applied to him because he had always done his job right . Wall replied that he had
heard that Love also was helping sign up members for the Union . Frazier told
Wall that he had been advised by the Union that he would not be fired for signing
UNITED CIGAR-WHELAN STORES CORPORATION 1231
up employees . Wall replied that he could now see that he was fired for doing so.
Love substantially corroborated Frazier's testimony concerning this incident. Love
added that Wall told him if he had not been helping Frazier sign members for the
Union , Love would still have his job. According to Frazier , Love asked Wall if he
would give Love a recommendation to get another job if he needed it and Wall said
that he would give him a reference anytime he wanted one . Frazier and Love then re-
ceived their pay and left the warehouse.
Wall denied any knowledge of Frazier 's and Love 's union activity or membership
and that they had been fired for that reason . However , as previously noted, Wall
did not deny the conversation between Hutsler and himself concerning Frazier's
and Love's organizational activities in connection with their delivery route. Wall
testified that he had had their truck followed upon numerous occasions because of
his concern over security problems, but admitted that there had been no losses what-
soever since he had become superintendent of the warehouse . Wall first testified
that when he fired Frazier and Love on January 20 he called them into his office and
told them he was sorry but that he had to fire them because they did not return, from
their deliveries in a reasonable length of time, he was paying them too much overtime,
they did not want to help him put away orders for merchandise at the warehouse, and
it was necessary for him to have more competent help. Subsequently on cross-exam-
ination Wall added an additional reason for their discharge , testifying that he also
told them that he had to fire them because there were so many discrepancies in their
deliveries and their work was not satisfactory . On further cross-examination, Wall
conceded that their work not being satisfactory meant the same thing as too many
discrepancies and was not a separate reason.
In elaboration of the foregoing general reasons, Wall and other witnesses called
by Whelan testified concerning 11 specific incidents or kinds of misconduct by Love
and Frazier . Some of the 11 reasons consisted of specific incidents which happened
only once, while others consisted of misconduct or violations of rules which persisted
throughout the time Wall was superintendent of the warehouse . Many of the alleged
11 incidents or reasons for firing Frazier and Love either occurred long before or were
of long-standing duration when they - received their pay increase from Wall on
November 4, 1954. The 11 different incidents or reasons are considered seriatim.
One of the reasons alleged for firing Frazier and Love, although not specified by
Wall, according to his testimony , when he fired them , concerned certain broken
merchandise brought from one of the stores to the warehouse. During the week
beginning January 3, 1955 , Whelan was in the process of closing its Coconut Grove
store ' In connection therewith it was necessary to return to the warehouse certain
merchandise and showcases . Frazier and Love were instructed to perform that
work in addition to their regular deliveries , and accordingly worked overtime that
week bringing the merchandise and fixtures back to the warehouse . Wall testified
that he went to the Coconut Grove store , helped Love and Frazier load certain
showcases onto the truck , and at the time they were undamaged. Wall instructed
them to return to the warehouse and if he was not there to park the truck and-it
would be unloaded the next morning The next morning Wall secured several
other employees in addition to Love and Frazier, including Bovinett , to assist in
the unloading of the showcases . Wall said that when they opened the truck and
started to unload the showcases , he found that the glass in 2 of them was broken
and that I of them was damaged so badly that it had to be scrapped . Wall asked
Love and Frazier what had happened . They replied that they did not know of
anything . According to Wall, Frazier and Love said that they returned to the
warehouse via 27th Avenue , which was being repaired . He asked them why
they came that way when they knew they had glass showcases . They replied that
they did not think it would make any difference Bovinett testified that he helped
unload the truck and that the glass in two of the showcases was broken.
Both Frazier and Love admitted that they moved fixtures from the Coconut Grove
store to the warehouse and that they helped unload the showcases from the truck.
They both denied that any of the showcases were broken . They testified that they
returned to the warehouse by the usual route down the Shore Drive past Dinner
Key and north on Second Avenue to the warehouse . They said that was the way
they usually returned to the warehouse from the Coconut Grove store . They said
that they never returned to the warehouse via 27th Avenue. Frazier and Love
impressed me as reliable and credible witnesses and accordingly I credit their ver-
-sion of this incident . In addition, Wall in testifying concerning the reasons he gave
Frazier and Love for their discharge did not include the broken cases as one. Ac-
cordingly I find that this was not the real reason, or one of the reasons, that Whelan
discharged Frazier and Love. -
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another reason assigned by Whelan for the discharge of Frazier and Love was
that they accumulated too much overtime in connection with their deliveries This
was one of the reasons specified by Wall at the time of their discharge Before any
of the witnesses for Whelan had testified, Frazier testified on cross-examination
that he and Love never had any complaints from Wall about coming back to the
warehouse too late or about the overtime they worked in making their deliveries,
and that in fact during the 5 or 6 months before they were discharged they did
not make nearly as much overtime as they had prior thereto. Wall testified that
after Frazier and Love were fired, he changed the system of deliveries so that
thereafter they were made most of the time by only one truckdriver without a
helper. However, he also testified that under the new system the unloading was
done by store personnel. It was undisputed that when Frazier and Love were mak-
ing the deliveries they did the unloading without the assistance of the store personnel.
Wall testified, and it was subsequently stipulated, that between February and
May 1955, the new truckdriver put in substantially less overtime than Frazier and
Love had during the same period of 1954. This merely serves to corroborate
Frazier's testimony that they put in considerable more overtime in the first 6 months
of 1954 than they did in the 5 or- 6 months prior to their discharge. Furthermore,
it does not support Whelan's contention that Frazier and Love worked too much
overtime, because it was admitted that the system was changed after Frazier and
Love left and that the unloading was done by the personnel at each store. Obvious-
ly, when Frazier and Love had to do the unloading alone, it would require them
more time than when it was done with the assistance of the store personnel. Whelan
offered no records to contradict Frazier's testimony that he and Love worked sub-'
stantially less overtime during the 5 or 6 months preceding their discharge than they
had before. Whelan admitted that its busiest season was during October, November,
and December. It was also undisputed that during the week of January 3 the
closing of the Coconut Grove store necessitated overtime work by Frazier and Love.
Wall testified that he frequently complained to Frazier and Love about their
returning to the warehouse too late and thus accumulating too much overtime. It
is worthy of note that the period during which Love and Frazier worked the most
overtime preceded November 4, 1954, when Wall gave both of them a raise in pay.
Wall, when testifying about Harris' timecards and explaining how Wall computed the
overtime of his employees, as hereinbefore discussed, admitted that frequently he
did not remain at the warehouse after closing time, that when employees worked
overtime they would tell him about it the next day, and that he would take their
word for it including the amount of time worked and in all such cases credit them
for payroll purposes. He admitted that was true with respect to Frazier and Love
a great number of times. It is difficult to reconcile Wall's alleged concern over
the excessive amount of overtime worked by Frazier and Love with this testimony
that he frequently took their word for it and always credited them with such overtime.
In rebuttal, both Frazier and Love testified that Wall never complained to them about
working too much overtime and that they had never taken more time than was
necessary to do their job. For the same reasons as previously stated, I credit Frazier
and Love and accordingly find that their working too much overtime was not the
real reason , or one of the reasons, why Whelan discharged them.
Apparently in connection with either the aforesaid reason of excessive overtime
or an instruction or rule of Whelan concerning unauthorized stopping of the truck
while making deliveries, which according to Wall's testimony was not one of the rea-
sons specified by him at the time of the discharge, Wall testified concerning two
alleged instances of such unauthorized stopping by Frazier and Love. The first of
these occurred around July 1954, and was admitted by Frazier and Love. This
was before Frazier and Love joined the Union. Frazier testified on direct examina-
tion'that he and Love had just left the warehouse when Hannes stopped the truck
across the street from the warehouse in order to talk to them. At this time, neither
Frazier nor Love knew Hannes or who he was. Wall observed the truck stopped
and after speaking to Hannes told Frazier and Love to continue on. He told them
that they should never stop the truck when they were making deliveries or going
from one store to another, and that that was a rule. Frazier said they followed it
thereafter and never again stopped the truck on any occasion except for business pur-
poses. Frazier said that they were never again warned about stopping the truck.
Love corroborated his testimony.
Wall corroborated the fact that this incident happened about the first week of July,
shortly after he became superintendent of the warehouse . He testified that he re-
ceived permission from the general manager of Whelan who preceded Hutsler to
follow the truck. He said that Frazier and Love left the warehouse , drove out of
the driveway, and turned left at the corner . Wall got into his car in order to trail
UNITED CIGAR-WHELAN STORES CORPORATION 1233
the truck . When he turned the corner he discovered that the truck was parked at
the curb . He stopped behind the truck and walked up to it. He noticed a man
standing there with one foot on the running board talking to Frazier and Love.
He asked them why they were parked there and they did not answer . He then asked
the man who was talking to them if he worked for Whelan or was a policeman.
He replied that he was not. He then instructed the man to get away from the truck
and told Frazier and Love to continue their run . They were making a delivery to
North Miami.
The man talking to Frazier and Love, subsequently identified as Hannes, left the
scene when requested to do so by Wall. Wall said that he told him not to stop the
truck again because it was illegal . Wall said that he did not know who the man
was, that he did not think he was Hannes , and that he thought possibly that he was
Carroll , one of the union organizers . As previously noted, it was then that Wall
instructed Frazier and Love never to stop the truck between deliveries or make any
other stops than those officially required . According to Frazier and Love, they
never did so again . This happened long before Frazier and Love were given their
raise by Wall . Wall testified that the following day he told Frazier and Love that he
was following and having the truck followed . Wall admitted that he asked Frazier
and Love if they knew who the man was and thby said they did not . Frazier and
Love denied that Wall told them that he was following or having the truck followed.
They said that the man who stopped the truck was Hannes, that at that time they
had not joined the Union , and that they did not know him then.
' Whelan 's witnesses testified about another alleged incident of Frazier and Love
both stopping the truck and also taking what Whelan contended was a wrong route
back to the warehouse. This occurred in the first week of January 1955 when Frazier
and Love were working overtime to return the fixtures and merchandise from the
Coconut Grove store which Whelan was closing. On direct examination Frazier
testified that about 2 months before they were fired Wall instructed them to proceed
directly from one store to another without taking any side trips, and that he and
Love did not know why they were given that instruction then . Frazier said that
on the evening of January 5 they were at the Coconut Grove store and Totten was
there . Totten asked Frazier and Love which route they were taking back to the
warehouse . They advised him that they were returning via the Beach way, which
was the way they customarily did. Frazier said that Totten followed them from the
store back to the warehouse , and that they did not stop the truck on any occasion
other than for traffic . Frazier said they returned directly to the warehouse , that when
they arrived there Totten passed by , and that Love and he had no conversation that
evening at the warehouse with either Wall or Totten . Frazier said that he asked
Love why Totten was following them but that Love said that he did not know.
It has been established that Whelan adopted a practice of following the trucks.
Frazier said that during that week they were late returning to the warehouse almost
every night because they were working overtime returning the merchandise from the
Coconut Grove store . Love corroborated the testimony that Totten asked them
which way they were returning to the warehouse and that Frazier told Totten the
route they were going to take . Love also said that Totten followed them and that
they had no conversation later that day with either Totten or Wall about the incident.
Wall testified that he had instructed the men to proceed directly from store to store.
He said that that evening Totten reported that he had followed the truck from the
Coconut Grove store and that Frazier and Love had tried to stop at one point on
the way back , but that when they found that he was following them they did not
stop but continued on. According to Wall , he talked to Frazier and Love when they
got to the warehouse . He said Love asked him why they were being followed, and
that he told them it was a security measure because of the losses of merchandise that
had happened in the past. Wall did not testify that he reprimanded Love or Frazier
about attempting to stop on the way back to the warehouse or about the route that
they followed . According to Wall , the only conversation that took place was his
explanation of why he was having the truck followed in response to their questions.
Totten testified that on the evening of January 5 around 6:30 or 6 : 45 p. in. he
followed the truck from the Coconut Grove store to the warehouse . Totten said
that he was at the store and Wall requested him to follow the truck when it left
there . He said that he asked Frazier and Love at the store which route they were
going to take and that they told him they were going to take the 27th Avenue route.
According to him, 27th Avenue or 22nd Avenue was a direct route back to the
warehouse , although he conceded that there were other direct routes, including the
one taken by Frazier and Love , but said that it went through more congested areas
and consequently more traffic . Totten said that after they drove off in the truck
he followed them in his car . Instead of turning on either 27th or 22nd Avenue,
390609-56-vol. 115-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they continued on the Shore Drive straight into town , and within a block or so of
the El Commodore Hotel stopped the truck. According to Totten, they drove down
Brickell Avenue, which is a direct route into town, is the Shore Drive, and is U, S.
Highway No. 1. According to the map of Miami received in evidence , this is one
of the direct routes which could be taken back to the warehouse.
Totten said that the truck stopped and stood still for several minutes but that
nobody got out of the truck . He said that there was no traffic light or other traffic
conditions which necessitated the stop. According to him , they then started up and
proceeded through town up Second Avenue towards the warehouse. He said that the
truck stopped at a stop sign , and both of the men got out and came back and asked
him why he was following them . He told them that it was a security measure because
they had a lot of valuable merchandise in the truck. He said they then returned to the
truck and drove to the warehouse. He followed them there and reported to Wall
around 7:30 p. in He said that there was no conversation between the men and
himself at the warehouse , or between Wall and the men in his presence . He said
that he never had any conversation with Frazier and Love about that incident.
Totten said that when they told him they were going to return to the warehouse via
27th Avenue, he knew that it was torn up by construction but said nothing to them.
However, he previously testified that he believed 27th Avenue was a direct route
back to the warehouse and a better one than they followed
It is interesting to note that in connection with the alleged broken cases, which
happened the night before, Whelan contended that Frazier and Love returned to
the warehouse via 27th Avenue, and that they should not have done so because it was
torn up and under repair. Yet, on the following night, Totten contends that they told
him they were returning via 27th Avenue, that that was a direct route, and ap-
parently contends that they should have followed that route and-were wrong in taking
a different route because it was not as direct a method of return to the warehouse.
According to Frazier and Love, on both of those occasions and all other times, they
returned from the Coconut Grove store via the Shore Drive and Northwest Second
Avenue. Whelan apparently contends that on January 4 they were wrong in re-
turning to the warehouse via 27th Avenue, and on January 5 they were wrong in not
returning to the warehouse via 27th Avenue.
According to Wall's and Totten's testimony, Frazier and Love were never spoken to
or reprimanded about following the wrong route or attempting to stop the truck on
that occasion. As previously found, Frazier and Love impressed me as credible wit-
nesses and accordingly I credit their testimony concerning this incident.
Another incident which apparently applies to Whelan's contention that one of the
reasons for the discharge was too much overtime involved returning to the warehouse
from Whelan's drugstore in Ft. Lauderdale. Wall testified on direct examination that
he spoke to Frazier and Love around the first week in September about working too
much overtime and about taking too long in going from one store to another and in
returning to the warehouse He told them that when they went to the Hollywood
and Ft. Lauderdale stores each week they used 2 hours more than necessary He
said that their only response was that they could not help it. However, on cross-
examination, instead of this happening each week, Wall testified that it happened on
one occasion. They weie supposed to proceed directly back to the warehouse after
making their delivery in Ft. Lauderdale, the last stop on the delivery route going
north. He said that they should make the return trip in about 1 hour and 10
minutes, and that it took them 3 hours and 20 minutes that day. He said that he had
called the manager of the store who had told him when the truck left the store,
and that they did not arrive at the warehouse until 3 hours and 20 minutes later.
Wall admitted that he did not know if anything might have occurred to cause the
delay, such as the bridge being up at the crossing in Ft. Lauderdale. He conceded
that the store was north of the river and the canal, and that it was possible that the
bridge was up. It is clear that his testimony on cross-examinaion was substantially
different from that on direct examination. This incident occurred before Wall gave
Frazier and Love the pay raise. Frazier and Love testified that they never took 3
hours to bring the truck back to the warehouse from Ft. Lauderdale, and the longest
they had ever taken was from 45 minutes to 1 hour. I credit Frazier's and Love's
testimony concerning this incident.
I am convinced and find that Frazier and Love did not work excessive overtime by
making side trips, by not taking direct routes between stops on their delivery runs, by
taking wrong routes back to the warehouse, or by making unauthorized stops with the
truck after they were instructed by Wall not to do so, and such alleged reason was
merely an afterthought by Whelan, and, in any event, not the real reason for their
discharge.
UNITED CIGAR-WHELAN STORES CORPORATION 1235
Another alleged reason advanced by Whelan, although not specified by Wall,
as one of the reasons for discharge at the time thereof, was an incident when Frazier
and Love allegedly left the truck unattended in the vicinity of a Miami department
store to run a personal errand . Wall testified , and Frazier and Love admitted, that
they had been instructed never to leave the truck alone at any time or to leave it
unlocked between stores, because of the valuable merchandise and because of cer-
tain governmental regulations concerning the transportation of liquor and nar-
cotics. Wall testified that Hutsler said he saw the truck parked in front of Richard's
Department Store unattended and wanted to know the reason. Wall replied that he
would investigate the matter as soon as the men returned to the warehouse. This
was around Christmas 1954.
Wall said that he spoke to Frazier and Love the next morning. One of them, he
could not recall which, said that they went into the store to pay a bill. Wall
asked them why both of them went and why they left the truck unattended. They
offered no explanation but admitted that they had done it. Wall said he reprimanded
them severely because there was liquor on the truck, and emphasized that they were
never to leave the truck unattended when there was liquor on it. He said that they
told him it would not happen again. Hutsler, although present throughout the hear-
ing and called for cross-examination om a minor issue by the General Counsel, did
not otherwise testify. Accordingly , Wall's testimony that the truck was actually
parked outside Richard's Department Store is hearsay. Both Frazier and Love
denied that they ever left the truck outside Richard's Department Store unattended,
that Wall ever spoke to them about it, or that they ever heard of such an incident.
They both conceded that they had received specific instructions from Wall not to
leave the truck alone when they were both working, and that one of them should
remain with it at all times. Frazier pointed out that when he made deliveries alone
it was necessary for him to leave the truck unattended while making the deliveries, but
that other than such times the truck was never left unattended . Frazier said that
neither of them had an account at Richard's Department Store. I credit Frazier
and Love and find that this was not the real reason , or one of the reasons, they were
discharged.
Another incident which also happened around Christmas 1954 involved Frazier
and Love leaving the truck door unlocked. Frazier testified that they inadvertently
left the warehouse platform with one of the truck doors swinging open, and that they
proceeded only about 3 feet from the platform when Wall stopped them and advised
them that the door was not locked and open. According to Frazier , that was the end
of the incident . Bovinett corroborated the testimony of Frazier . Bovinett said
that they had just pulled away from the warehouse when he observed that the truck
door was swinging open. Bishop, another witness called by Whelan, testified about
the incident but then admitted that her knowledge of it was based on hearsay , because
she had not seen it and had only heard Wall complaining about it in the warehouse
For some unexplained reason Wall, although he testified that he had instructed the
drivers always to keep the truck locked between deliveries , did not mention this inci-
dent or testify concerning it. In addition , it was not one of the reasons for dis-
charge Wall specified at the time thereof.
At most, the incident seems trivial . Frazier and Love apparently inadvertently
left the door open, which fact was discovered before they had proceeded more
than 3 feet , and the door was closed and locked before they left the warehouse.
Wall apparently did not consider the incident significant enough to advance it as
one of the reasons for the discharge at the time thereof , or to mention it in connec-
tion with his testimony It was established by stipulation that in May 1955, 4
months after the discharge of Frazier and Love, Wall adopted a different practice
which involved locking the truck at the warehouse and giving keys only to the store
managers , so that only the store managers could open the truck . Wall admitted
on cross -examination that although Whelan claimed to have so many complaints
against Frazier and Love , this change in the method of locking the truck was not
adopted during their employment nor until 4 months after they had been dis-
charged . I find that this incident was not the real reason , or one of the reasons,
for the discharge of Frazier and Love.
The next reason advanced by Whelan was that shortly after Christmas 1954
Frazier and Love refused to make a delivery and in effect refused to do their jobs.
Wall first testified that he had quite an argument with Frazier and Love because
they refused to make a delivery . Wall said that there was some special sale
merchandise on the truck which had to go out at once to 4 or 5 of the stores. How-
ever, in his testimony immediately following, he clearly indicated that only Love
and not Frazier refused to make the delivery. He said that Love refused to make.
the delivery because he wanted to go home early and it would make him over an
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11
hour late that evening. Wall said that Frazier did not want to go either, but that
he finally went Wall testified that he secured another employee to go with Frazier.
Wall said that Love kept arguing with him and rather than argue he told Love
to go home . This occurred around 2:30 p. in. If Love actually refused to per-
form his job, no explanation was offered why he was neither fired nor reprimanded
at the time . In addition, this was not one of the reasons Wall specified at the time he
fired them. Bovinett , whom I have previously found not to be a credible witness
unless otherwise corroborated, testified about this incident before anyone else, and
he attributed the refusal to work to Frazier as well as Love, although according to
Wall Frazier actually made the delivery and did not refuse to do so. Bovinett said
that Frazier and Love both flatly refused to make the delivery when asked to do
so by Wall. He said that one of them then went home, and that possibly it was
Love. He said that they wanted to quit work early because they had something
planned , and therefore did not want to take the truck out even though it was dur-
ing their regular working hours. Both Frazier and Love denied that any such
incident happened, and said that they never had any arguments with Wall and never
refused to obey orders. I credit Frazier and Love and find that this was not the
real reason , or one of the reasons, they were discharged.
Two additional reasons were assigned for Love's discharge only and are treated
together inasmuch as they are closely related. Whelan contended that Love
refused to obey orders given him by Wall (an occasion other than that referred
to above) and was sarcastic to Wall. Wall specified at the time of the discharge of
Frazier and Love that they did not want to help him put away merchandise. It
was undisputed that in addition to their delivery work, Frazier and Love did pack-
ing when they were not delivering. They spent as much as one-third to one-half
of their time packing. Wall said that around December 1 he asked Love to go
back into the warehouse some 50 feet and bring out some cases of merchandise.
According to Wall, Love replied that he would see about it. Wall did not say that he
refused to do it. Both Frazier and Love denied that any such incident ever happened,
that Love ever refused to obey orders or was sarcastic to Wall, testified that it
was part of their regular job to assist in the packing of merchandise when they were
not delivering, and said that they did so regularly without complaint. Love testified
that he never had any arguments with Wall and was never sarcastic to him. I credit
Frazier and Love and find that this was not the real reason, or one of the reasons,
they were discharged.
, The final reason advanced by Whelan for the discharge of Frazier and Love
was that they made numerous mistakes in their deliveries, such as delivering too
much merchandise to one store and not enough to others and leaving the wrong
packages at the stores. Wall, in testifying on direct examination as to the reasons
he specified when he discharged Frazier and Love, did not include their mistakes
in delivery or discrepancies, as he characterized them, but on cross-examination in-
cluded this as one of the reasons he specified to them at the time of their discharge.
He said that during the 6 months preceding their discharge they made at least 150
such mistakes. According to him, the mistakes were delivering the wrong parcels
to various stores, or too many parcels to some stores and not enough to others. On
direct examination , before the subject was raised by Whelan, Frazier and Love
testified that during their entire employment they made only a few mistakes in
delivery, and that all of those except one were not their mistake, but were due to
mismarking the packages or an incorrect count of the packages in the first place.
Frazier admitted one instance where he left a package at one of the stores which
was supposed to go to another store He said the other three mistakes in deliveries
that he could recall involved mismarked packages, so that the package was left at
the wrong store because of incorrect marking by the packer. This of course would
not be a mistake on the part of the driver or helper Love on direct examination
testified that he could recall only one occasion when they had been reprimanded for
leaving anything at the wrong store, and on that occasion it was not their fault be-
cause the package had been marked with the wrong store number. He subsequently
said that as far as he could recall that might have happened twice.
In order to understand this contention concerning delivery mistakes, it is neces-
sary to outline briefly Whelan's method of operation . The operation began at
the warehouse with the pickers selecting the merchandise ordered by the various
stores and transporting it on handtrucks to the packers. The packers then packed
large cartons or packages for the various stores with the particular merchandise
ordered according to the classification of such merchandise . They were also re-
quired to mark each package with the correct store number . Each of Whelan's
stores had a different number , so that when deliveries were made by Frazier and
Love, the packages went to the stores whose number appeared thereon . The pack-
UNITED CIGAR-WHELAN STORES CORPORATION 1237
ers entered on a form used by Whelan, called a delivery receipt, the number of
full and partially full packages under the particular classification of merchandise
listed on that form.
The form consists of a sheet of paper with a list in the left hand column of the
various categories of merchandise delivered to the particular store, such as cigars,
cigarettes, candy, general sundries, drugs, cosmetics, etc. Under each of these
categories a line extends horizontally across the page The page has various verti-
cal columns following the category column. The next column contains the in-
voice number of the merchandise and is not material to this case. The next column
is entitled "full pack." Under it the packer notes after the appropriate category the
number of full packs he has packed. The next column is headed "repacks." The
packer enters in that column the number of repacks which he has packed. The
next column is headed "total," and the column after that, which contains no heading,
was used by Wall to enter a tally count. These delivery forms were made out in
triplicate for each individual store delivery.
At the time the merchandise was loaded on the truck, Love threw the packages on
the truck in Wall's presence, calling out the categories of merchandise, and Wall made
a tally mark on the original copy of the delivery receipt with a red pencil in the right
hand column . Wall was supposed to make a single tally mark for each package placed
on the truck. As Love threw the packages on the truck, Frazier stacked-them. They
loaded the truck for at least several stores at one time. The particular merchandise for
each store was loaded in reverse order so that in unloading the truck it would follow
in order. Wall made a tally mark of each package. After he made 4 tally marks
under a particular category, he ran a diagonal line through them in the usual manner
indicating a total of 5, and then continued on in the same manner if the number of
packages under that category exceeded 5. In this way Wall observed each package
loaded on the truck and made a tally mark for each package. Thereafter under the
column headed "total," Wall translated the tally marks into the numerical number they
totaled. For example, if there were 11 tally marks, then he would write the figure
i l in the total column.
At the foot of this delivery receipt was a sum total under the heading "total prices,"
where Wall again in red pencil entered a numerical figure which represented the sum
total of all the totals listed on the receipt. This total was supposed to represent the
number of packages to be delivered to that particular store. Each delivery sheet
had the date and appropriate store number on it. The original copy was left at the
warehouse and the driver took the other two copies with him. At the time of un-
loading at the stores, the driver and the store manager counted the packages as they
were unloaded and entered such count on the same form. The store manager would
then sign the receipt at the foot of the form indicating that he received the number
of pieces counted by him and the driver at the time of delivery. The third copy of
the form was left at the store, and the driver ultimately returned the receipted copy
to the warehouse. '
Wall said that he concluded that Frazier and Love made at least 150 mistakes in
delivery during the 6 months before they were fired because of the numerous dis-
crepancies in these delivery sheets. Wall was referring to the fact that on a number of
these delivery receipts the total number of pieces entered by him on the original
sheet did not coincide with the total counted and receipted for by the store manager.
In some cases, the total received by the store exceeded the number of Wall's original
tally, and in other cases, was less than Wall's original tally. Wall testified that the
complete delivery to the several stores usually came out even with the total of the
several delivery sheets. He explained that if there were 100 pieces for 1 store and
100 pieces for another and Frazier and Love delivered 98 pieces to the first store,
subsequently in making delivery at the second store they would unload 102 pieces.
He referred to such variances as the numerous mistakes Frazier and Love made.
He said that such mistakes could not be the fault of the packer who originally marked
the store numbers, because the deliveries did- not agree with the tally Wall made.
Wall's tally followed the store number placed on the package by the packer, and there-
fore the delivery to the stores should coincide with his tally. This of course assumed
that his tally and totals were correct, an assumption which the evidence hereinafter
discussed proves unsound Wall conceded that the packers made mistakes in placing
the wrong store numbers on the packages, but contended this could not explain the
discrepancies between his totals and the totals delivered, because his totals would
reflect the store numbers entered by the packers, and the deliveries should have been
made to those stores in any event.
Frazier said that the mistakes referred to by Wall were not and could not be
mistakes of the driver. He conceded that on one occasion he and Love had mis-
takenly delivered a package to the wrong store. He said that they discovered their
error when they arrived at the next store and that they returned to the first store,
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picked up the package , and corrected the error . He said that they always delivered all
of the packages placed on the truck, and as long as the total number of pieces de-
livered to all of the stores equaled the total number tallied, he did not believe that
the driver had made any mistake, but only that a mistake had been made in the
original tally. He said that this must be so because they always left the pieces
marked for each store at the respective stores. He said that frequently the number
of packages left at a particular store exceeded the number shown on Wall's tally, but
that they did not view this as a mistake by them because those packages were marked
for that store , and because subsequently it always turned out that each store received
the merchandise it ordered.
This latter point was particularly significant . Frazier and Love both testified that
during the entire course of their employment on the truck , there were never any
complaints from the stores that they did not receive the merchandise they ordered.
This would clearly indicate that the mistakes were made in the tally and not in the
delivery. If the stores did not receive the merchandise ordered, they would naturally
inquire why they had not . If Wall , in making a tally mark , credited one store either
with too many packages or not enough packages , this would make no difference
in the ultimate delivery to the store . The consideration hereinafter of the delivery
receipts received in evidence reveals that this frequently was the case.
For the same reason, Frazier and Love were not unduly concerned when a de-
livery to one store totaled less or more than the tally , because they knew from ex-
perience that the subsequent deliveries the same day to the other stores would correct
the differences and total out correctly . They also knew from experience that the
stores actually received all the merchandise they ordered . It was undisputed that
throughout this entire period there was no loss or shortage of merchandise Wall
so admitted . Frazier and Love testified , and in view of the foregoing admission it
seems evident , that they always delivered all of the merchandise on the truck to
the various stores. Each delivery run included three or more stores. Since there
were no shortages and Frazier and Love always delivered all of the merchandise placed
on the truck , if the actual count of the merchandise made at the time of delivery
totaled either less or more than the tally count made by Wall, there must have been
a mistake in the tally count.
It would be impossible for Frazier and Love to deliver more merchandise than was
on the truck . Frazier said that he could recall a few times where they delivered a
number of packages to a store substantially in excess of the total tallied by Wall.
According to Frazier that was Wall's mistake because the pieces were numbered
for that store and delivered to it . The subsequent analysis of the delivery receipts in-
troduced by Whalen reveals that Frazier's conclusion was correct . Frazier specifically
mentioned 1 instance where about 20 packages more than were tallied were delivered
to a store . This coincides with an exhibit subsequently considered , and was spe-
cifically an error by Wall. The record establishes that Frazier and Love delivered
thousands of packages every month to Whelan's stores Some of the stores had
numbers which might appear quite similar in handwriting , such as store No. 59 and
store No. 54 . Frazier pointed out that frequently the stores would advise them that
they were short a package or so at the time of delivery, but then when they returned
later the store would tell them they had found all the merchandise. Frazier said
that occasionally when the packages either exceeded or were less than the tally he
would check back over them to make sure that they had that store number on
them, and if they did he would leave them at that store.
Love in general corroborated Frazier's testimony . He pointed out another situa-
tion which might account for some of the differences between the amounts delivered
and the tally sheets. He said that on certain occasions when they were loading an
entire float of merchandise of one particular category , such as drugs , instead of
counting the individual packages as they were tossed on the truck , Wall walked around
the float and counted the packages by sight, and it was possible that a mistake could
be made in such counting . Frazier said that to the best of his recollection there
was no greater number of discrepancies between the tally count and the delivery
count during December than in any of the preceding months Love said there
might be more mistakes than usual during the December Christmas rush , because
of additional sales and Christmas merchandise going to the various stores , but that
he could recall no occasion that month or any other time when any of the stores
reported that they were short any merchandise they had ordered after they had
checked through the packages delivered.
In order to prove that Frazier and Love committed numerous mistakes in delivery,
Whelan had Frazier identify a number of the delivery sheets for December. Frazier
was able to identify them because the actual count of delivery shown on the second
copy was entered in pencil thereon by Frazier. Counsel for Whelan stated there
were 74 delivery sheets for the month of December , but because 40 of them showed
UNITED CIGAR-WHELAN STORES CORPORATION 1239
no variance between the totals on the original tally sheet and the totals delivered,
he was offering in evidence only the remaining 34. These were identified as
Whelan's Exhibits Nos. 3 through 37, with No. 18 withdrawn because it proved to
contain no discrepancy between the original tally and the delivery. Each of these
exhibits shows a variance between the tally total entered on the original copy by Wall,
and the actual number of pieces delivered at the store. Frazier testified that if the
total number delivered on an entire delivery to all stores was either less or more than
the total of the tallies made by Wall, then the mistake had to be Wall's because
every package on the truck was delivered and receipted for. In cases where the total
delivery equaled the total tally but varied with regard to individual stores, then
the mistake might have been made in the delivery, might have been made in the
tallying, or might have been made in the marking by the packers. It was not
possible in those cases to ascertain whether or not the mistake was made by Frazier
and Love. For this and other reasons, the General Counsel objected strenuously
to the receipt in evidence of these exhibits, on the ground that they were of no pro-
bative value to establish that Frazier and Love had made any mistakes. At the
hearing ruling was reserved on the receipt of these exhibits. Whelan's Exhibits Nos.
3 through 37, exclusive of Exhibit No. 18, are hereby received in evidence.
A careful analysis of Whelan's Exhibits Nos. 3 through 37 reveals that in nearly
every case the variance between the original tally made by Wall and the number of
pieces delivered was caused by Wall's mistake, and that Frazier and Love made
practically no mistakes. In making this analysis, I have grouped together those
delivery receipts dated the same day, which would have been part of the complete
delivery made by Frazier and Love that day. It is not possible, of course, to be
certain that any one group for any particular day includes all of the delivery receipts,
inasmuch as Whelan did not offer the other 40 receipts for the month of December.
In view of the great number of mistakes found in the original tallies, I feel it is
not safe to assume that the 40 delivery receipts not received in evidence contained
no such mistakes.
Exhibits Nos. 9, 10, and 20 are dated December 1 and accordingly are analyzed
together. No. 20 is apparently the delivery receipt referred to by Frazier when
approximately 20 packages more than Wall's tally were delivered to 1 store and re-
ceipted for by the manager. No. 9 shows an original tally by Wall of 169 packages.
Frazier's tally on the copy receipted by the store manager shows that 170 packages
were delivered, 1 more than the amount tallied by Wall. However No. 10 shows a
tally by Wall of 132, and a delivery by Frazier of 131. One more item was de-
livered to the first store and 1 less item to the second store. The total delivered to
the two stores equals the original tally. The big discrepancy, however, appears
in, Exhibit No. 20. Wall's tally shows a total of 75 packages, and Frazier's count
shows that 97 packages were delivered. An analysis of Wall's original tally quickly
reveals the error, which was made by Wall. Under the category of general sundries,
he tallied 22 packages but forgot to enter the total in the total column Therefore,
when the column was added it totaled 75, or 22 less than Wall's tally count. Wall
entered the totals in the total column and added the entire total at the foot of the
sheet. The actual number of pieces delivered, 97, was exactly the same as that
shown on Wall's tally.
Exhibits Nos. 6 and 8 are delivery sheets dated December 2. No. 6 shows a total
tally of 106 and a total of 103 delivered. A comparison of the total entered by Wall
in the total column with the totals entered by the packers under the full and repack
columns shows on 1 item, general sundries, that the packers listed 2 packages
whereas Wall listed 5. Otherwise the number of packages listed by the packers and
those tallied by Wall agree. This is a difference of three more than the packers
counted, or the difference' between the number totaled by Wall and the number
delivered. On Exhibit No. 8 the same type of difference appears. Wall's total was
94 and the total delivered was 96, or 2 more. Under "general sundries" the packer's
total was 10 whereas Wall's was 9. Under the category "patents," the packer's count
totals 14, whereas Wall's count is 13, making a difference of 2 less than the packers
counted, or the difference between Wall's count and the amount delivered. The
variance between the total delivered is only 1, since the first delivery was 3 less than
Wall's count and the second delivery 2 more. Inasmuch as the other 40 delivery
sheets for December were not offered in evidence, it is not possible to tell what the
other delivery sheets for December 2 would show. It is entirely possible that similar
mistakes appear on those sheets and the difference of one might well be explained
by an examination of all of the sheets for the deliveries on December 2.
With respect to December 3, again only 2 delivery receipts were received in evi-
dence, Exhibits Nos. 5 and 21 The same type of mistake by Wall appears in
Exhibit No. 21. Under the heading "cosmetics" he tallied 2 packages but forgot to
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enter the numeral 2 in the total column . Therefore his ultimate total was 119 while
the actual number of packages delivered was 121 . The difference is the number
which Wall forgot to add. With respect to Exhibit No. 5, Wall 's total of packages
was 84 and the number delivered was 86 . Frazier and Love could not have deliv-
ered packages which were not on the truck. Therefore there must have been either
a mistake in tally, or if not, the other delivery sheets for December 3 not received
in evidence might account for the fact that Frazier and Love delivered two more
packages than Wall's tally showed.
Numerous examples of the same kind of mistakes appear throughout the 34
exhibits and it would unduly lengthen this report to analyze each one individually.
For example , Exhibit No. 31 shows a total by Wall of 103 and a total delivered of
95. In this instance , Frazier made a mistake in addition . In adding 16 to 50 he
totaled 56. As a result his ultimate total of 95 was 10 short and should have been
105. This is the only instance of a mistake in addition by Frazier that I was able
to find in all of the exhibits . Frazier 's practice was to enter on the delivery re-
ceipt signed by the store manager a numerical figure for each number of pack-
ages unloaded , add to it the next number entered , and so on until the last addition
made the final total . In this instance the total packages delivered exceeded by
two Wall 's count . Exhibit No . 32 is also dated December 15. Wall 's count totals
104 and the amount delivered totals 105. As in the other instances , it is not pos-
sible to ascertain how Frazier and Love could have delivered more packages than
were tallied on that day without examining the rest of the delivery sheets for that
particular date. On Exhibit No. 13 Wall's count was 59 packages and the packages
delivered were 58. However , Wall made a mistake in addition and the correct total
is 58.
Another example occurs in Exhibits Nos. 15, 16, and 17, all dated December
29. On Exhibit No. 15 Wall totaled 114, and again made a mistake in addition.
The correct total is 113. The delivery sheet shows that 111 pieces were delivered,
2 less than Wall's tally. However, on each of the other 2 deliveries that day the
number delivered exceeded Wall's tally by 1, so that the total number of pieces
delivered exactly equaled the total tallied in the first place. Inasmuch as it was
undisputed that none of the stores complained that they had not received all mer-
chandise ordered , the deliveries must have been correct and the mistake must have
been made in tallying 2 excess packages for the first store instead of 1 each for the
other 2 stores. Another example of the same type of mistake by Wall is found in
Exhibit No . 24, the delivery receipt for December 27 Wall again forgot to enter
in the total column seven packages he tallied . His total with this omission was
21. The number of pieces delivered was 28, exactly the amount tallied. On
Exhibit No. 28 , Wall again added the total column wrong . - His ultimate total
was 163 while the correct total is 158. The delivery receipt shows that 158 pack-
ages were delivered.
The analysis of Whelan's delivery receipts , including the examples mentioned
above, convinces me that Frazier and Love did not make numerous mistakes dur-
ing the month of December as contended by Whelan, but on the contrary did a
competent job, especially in view of the fact that it was a busy season and they de-
livered thousands of packages to the various stores . I am convinced and find that
their alleged discrepancies in deliveries was not the real reason , or one of the rea-
sons, for their discharge
I credit the testimony of Frazier and Love that Wall, when he discharged them
January 20, 1955, told them that it was because of their activities in securing mem-
bers for the Union among Whelan's employees, and find that such was the real
reason for their discharge . A preponderance of credible evidence in the entire
record convinces me and I find that Whelan discharged Frazier and Love because
of their union activities , thereby discriminating against them in regard to their
hire and tenure of employment , discouraging membership in the Union, and inter-
fering with , restraining , and coercing its employees in violation of the Act.
3. Robert Lee Williams
The complaint alleged that Whelan discriminatorily discharged Williams No-
vember 1, 1954. The parties stipulated that Williams ' employment was terminated
November 10, 1954. Williams worked for Whelan a short time in 1953. He
returned to Whelan's employ in 1954 as a porter at the Coral Gables store. As
a porter , his duties were to clean the store , put stock away, wash dishes at the
fountain , and in general perform the necessary janitor services . He joined the
Union about the middle of July 1954. At the Coral Gables store Whelan employed
2 reporters, 1 working the early shift from 7 a in. to 3 p. m., and the other the after-
UNITED CIGAR-WHELAN STORES CORPORATION 1241
noon shift from noon to 8 p . in. During the several months prior to Williams' dis-
charge, he worked on each shift at different times.
Williams was discharged by orders of Mehaffey, the manager of the Coral Gables
store. On November 10, Williams was working the afternoon shift. He was re-
quested by the pharmacist in charge of the store to see him before he left for the
day. Williams did so. The pharmacist advised him that he was discharged and
had him sign a receipt for his final pay. When Williams asked the pharmacist why
he was fired, the pharmacist replied that he knew nothing about it and told Williams
to call Mehaffey to ascertain the reason. Williams called Mehaffey the next morn-
ing. According to Williams, Mehaffey said that it was a long story but that Williams
had been securing members for the Union, and Whelan did not want the Union.
Williams said he told Mehaffey that he (Williams) knew nothing about that. How-
ever, Williams also testified that Mehaffey never told him exactly why he was fired,
and only said that Whelan did not want the Union. Williams admitted that dur-
ing the course of the conversation Mehaffey also said that Williams and the phar-
macist could not get along together.
Whelan's reasons for discharging Williams were that when he worked the early
shift he was frequently very late for work, as much as an hour or two, that he fre-
quently slept on the job when he was supposed to be working, and that he frequently
left the drugstore without permission or notice to anyone and remained away when
he was supposed to be working. Mehaffey, the store manager who fired Williams,
was not called as a witness . Michael Hernandez, the soda fountain manager at the
Coral Gables store, testified that Mehaffey was no longer with Whelan, had had
an operation, and was sick. Hernandez testified that he frequently found Williams
sleeping in the back of the store during working hours. Hernandez said that he
complained about this a number of times to both Williams and Mehaffey. He said
that Williams was very late to work many times on the morning shift. Hernandez
said that they did not object to an employee being 15 or 20 minutes late, but that
when he came in an hour or more late it was not only objectionable but drastically
interfered with the operation of the store. The porter was supposed to mop and
clean the store before customers started arriving, and if he arrived in the morning
an hour or more late it was not possible for him to clean the store because the
customers would already be in it.
Hernandez said that over one weekend the store was not cleaned at all because
Williams did not arrive until about 9:30 a. m., Saturday, and it was then too late to
clean the floor, the porters were not required to clean the floor on Sundays, and on
Monday Williams again came about 9:30 and the store could not be cleaned. He said
that Mehaffey complained to him that the store was dirty. Hernandez replied that
there was nothing he could do about it because Williams had been too late that week-
end, both Saturday and Monday. Hernandez said that he told Mehaffey a number of
times that Williams was coming to work late. Hernandez complained to Williams
about it and told him that if he did not mend his ways he would be fired. Hernandez
said that several times Williams disappeared from the store during working hours and
absented himself for a considerable period of time . Hernandez said that 1 day
Mehaffey tried to find Williams to do something but he was gone for three-quarters
of an hour. When he returned Hernandez told him not to do that and if he had to
leave the store to let them know when he left. Hernandez said he frequently found
Williams asleep in the store and complained to him about it. He said he never gave
Williams permission to sleep on the job. Hernandez said that there was always
plenty of work for a porter at the store, and that he warned Williams about sleeping
6 to 10 times.
Nora Bailey, another witness called by Whelan, worked as a soda fountain clerk
at the Coral Gables store. She worked the afternoon shift and was familiar with
Williams' work on that shift. She said that she frequently, almost every day, ob-
served him sleeping in the kitchen during working hours. She said that he was repri-
manded for doing so in her presence by Mehaffey. She also said that several times
dirty dishes would pile up in her department and she had to go back and wake up
Williams in order to wash the dishes. She said that 1 day he disappeared from the
store for about 2 hours and it caused her inconvenience because of not having clean
dishes.
Williams in effect admitted most of the misconduct charged to him by Whelan.
Williams admitted that he occasionally arrived late at the store, but said that this was
due to a difficulty in bus scheduling because he lived so far away, and that it did not
exceed 15 or 20 minutes. He said that he explained it to Mehaffey, who told him
that it was all right as long as it did not exceed 15 or 20 minutes, and that if he was
going to be later he should call Mehaffey and notify him. However, Williams also
admitted that it was important to get to the store on time in order to do the cleaning
before the customers arrived. Williams was not called in rebuttal and consequently
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not specifically deny Hernandez' testimony concerning the weekend when Williams
arrived so late both working days that the store was never cleaned. Williams admitted
frequently sleeping on the job, but said that everyone knew about it, nobody com-
plained about it, and that he did so only when there was no work for him to do.
However, he admitted that Hernandez frequently found him sleeping and commented
to him about it, although according to Williams it was not a complaint. Williams also
admitted leaving the store on occasions on personal errands or to talk to friends, but
said that it was never for more than a few minutes. However, he admitted that
Mehaffey could not find him 1 day and complained to him about leaving the store.
Williams admitted that some of the times when he was late customers were already
in the store before he got to the cleaning . He also admitted that Hernandez had
complained to him about leaving the store to visit with friends
The only evidence concerning any knowledge by Whelan of Williams' union ac-
tivity was his testimony that 1 day Mehaffey saw him outside the store talking to
Carroll. When Mehaffey spoke to Williams about it, Williams told Mehaffey that
Carroll was a bill collector. There is nothing in the record to establish that Mehaffey
knew otherwise. The only other evidence was Williams' testimony that 3 or 4 days
before he was fired he was talking to a newly hired porter about joining the Union.
Williams said that Hernandez observed them talking together, but did not hear what
was said. None of this evidence establishes that Whelan was aware of Williams'
membership in the Union or his activity on behalf of it.
However , even assuming that Whelan was aware of Williams ' union membership
and activities , I am not satisfied that such was the reason for his discharge . Williams
in substance admitted all the misconduct attributed to him. He admitted that he was
frequently late, and although he claimed that Mehaffey authorized it, then admitted
that his arriving late affected the operations of the store. He did not specifically
deny that the store was not cleaned for an entire weekend . His testimony that he
frequently slept on the job without complaint does not seem credible. It is difficult
to believe that a busy drugstore would permit a porter to sleep on the job regularly
without complaint . I credit the testimony of Hernandez and Bailey . Williams ad-
mitted that Mehaffey and others had complained to him about leaving the store without
permission . This corroborated the testimony of Hernandez concerning the incident
when Mehaffey was seeking Williams. Bailey testified that Williams ' sleeping inter-
fered with her work because the dishes piled up, which contradicts his testimony that
he only slept when there was no work to do.
Although the matter is certainly not free from doubt , particularly in view of
Williams' testimony concerning what Mehaffey said when Williams was fired and
the fact that this testimony is undenied because Mehaffey did not testify, I am
satisfied and find that the General Counsel has not sustained the burden of proof and
clearly established that the reason for Williams' discharge was his union membership
and activity . In view of his admitted misconduct , it seems more probable that the
reasons advanced by Whelan for his discharge were the actual and real reasons. In
any event , since the burden of proof is upon the General Counsel to establish that
Williams was discriminatorily discharged , I am not satisfied that this burden has been
met and accordingly find that Whelan did not discharge Williams because of his
union membership or activities.
IV. THE REMEDY
Having found that Whelan has engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the polices of the Act. It has been found that Whelan dis-
criminatorily discharged Harris, Frazier , and Love. I shall therefore recommend that
Whelan offer each of them immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights and
privileges , and make each of them whole for any loss of earnings he may have suffered
by reason of the discrimination against him, by payment to each of a sum of money
equal to that which he normally would have earned as wages from the date of his dis-
charge to the date of the offer of reinstatement , less his net earnings during such
period.3 The back pay shall be computed in the manner established by the Board
and Whelan, upon- request, shall preserve and make available to the Board payroll
and other records necessary to analyze the amount of back pay due and the rights of
employment.4
The character and scope of the unfair labor practices indicate an intent to defeat
self-organization of the employees. I shall therefore recommend that Whelan cease
Crossett Lumber Companij, 8 NLRB 440
4 F IV Woolworth Company, 90 NLRB 289
GENERAL TRUCK DRIVERS 1243
and desist from in any manner interfering with , restraining , or coercing its employees
in the exercise of rights guaranteed by the Act.5
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. United and Whelan do not constitute a single employer within the meaning of
the Act.
2. The activities of Whelan set forth in section III, above, occurring in connection
with its operations described in section I, above, have a close, intimate, and sub-
stantial 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.
3. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
4. By discriminating in regard to the hire and tenure of Harris, Frazier, and Love,
thereby discouraging membership in the Union, Whelan has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Whelan has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
7. Whelan has not engaged in the unfair labor practice, as alleged in the complaint,
of discharging Williams because of his union membership or activities.
[Recommendations omitted from publication.]
5 ilfay Depa, tment Stares v. N. L R B , 326 U S 376
General Truck Drivers, Warehousemen and Helpers Union, Local
630, AFL-CIO; and General Truck Drivers , Warehousemen
and Helpers Union, Local 542, -AFL-CIO and California Asso-
ciation of Employers . Case No. 21-CC-213. May 1, 1956
DECISION AND ORDER
On February 13, 1956, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto.' Thereafter the General Coun-
sel filed exceptions to the Intermediate Report with supporting brief.
The Respondent Unions filed no exceptions.
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 Inter-
mediate Report, the General Counsel's exceptions and brief, and the
'The Trial Examiner incorrectly stated that Local 980 won the election at the Barlow
plant and that baigaining negotiations were conducted between representatives of the
Local and of Barlow The correct name of the Employer should be Hallberg instead of
Ballow It appeals that this is clearly a clerical eiroi
115 NLRB No. 195.