Weinacker Brothers, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1965

153 N.L.R.B. 459 (N.L.R.B. 1965)

WEINACKER BROTHERS, INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
459
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that.
WE WILL NOT, except in emergencies, let any contracts for maintenance work
at our Bettis Atomic Power Laboratory covering projects of a nature which
could be performed by the employees of the works engineering department with-
out giving United Steelworkers of America, District 15, AFL-CIO, and its Local
Union 5852, notice of our intention to let such contracts, and an opportunity
to bargain with us over whether such contracts should be let.
WE WILL, upon request, bargain in good faith with the above-named Union
before letting any such contracts.
WESTINGHOUSE ELECTRIC CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107 Clark
Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. 471-
2977, if they have any question concerning this notice or compliance with its
provisions.
Weinacker Brothers , Inc. and Lorenzo Matthews, Harry W.
Wright , Local 458, Retail Clerks International Association,
AFL-CIO, and Elizabeth Ann Boyette , Donald Harris, Jack
Willis Smith and Local 458, Retail Clerks International Asso-
ciation , AFL-CIO. Cases Nos. 15-CA-2486-1, 15-CA-.486-f,
15-CA-2486-3, 15-CA-2/.86-4, 15-CA-2486-5, 15-CA-2486-6, 15-
CA-2486-8, 15-CA-2486-12. 15-CA-2486-15, 15-C1-2486-17, 15-
CA-2486-18, and 15-CA-2.501. June 25, 1965
DECISION AND ORDER
On April 15, 1965, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed limited exceptions to the Trial
Examiner's Decision and a brief in support of the Trial Examiner's
Decision. The Respondent did not file exceptions or a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
153 NLRB No. 40.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings," conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Weinacker Brothers, Inc.,
Mobile, Alabama, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order as
so modified :
1. Add the following as paragraph 2(c), the present paragraph
2 (c) and those subsequent thereto being consecutively relettered :
"(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
2. The telephone number for Region 15, given below the signature
line at the bottom of the Appendix attached to the Trial Examiner's
Decision, is amended to read: Telephone No. 527-6391.
1 Apart from the matters referred to below, no exceptions have been filed to the Trial
Examiner's findings, conclusions, and recommendations Accordingly, the Trial Exam-
iner's findings, conclusions, and recommendations are adopted pro forma.
In his factual findings concerning the discharge of employee Mildred Turner, the Trial
Examiner failed, apparently inadvertently, to find that Turner was discharged in viola-
tion of Section 8(a) (3) as well as of Section 8(a) (1). As the 8(a) (3) violation is
clear upon his factual findings, we find merit in the General Counsel's exception to the
Trial Examiner's failure to make the 8(a)(3) finding
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The charge in Case No. 15-CA-2486-1 was filed by Lorenzo Matthews on May 11;
the charge in Case No. 15-CA-2486-2 was filed by Harry W. Wright on May 11,
the charges in Cases Nos. 15-CA-2486-3, 15-CA-2486-4, 15-CA-2486-5, 15-
CA-2486-6, 15-CA-2486-8, and 15-CA-2486-12 were filed by Local 458, Retail
Clerks International Association,AFL-CIO, hereinafter referred to as the Union,
on May 11; the charge in Case No. 15-CA-2486-15 was filed by Elizabeth Ann
Boyette on May 12; the charge in Case No. 15-CA-2486-17 was filed by Donald
Harris on May 26; the charge in Case No. 15-CA-2486-18 was filed by Jack Willis
Smith on May 27; the charge in Case No. 15-CA-2501 was filed by the Union on
June 4; and an amended charge in Case No. 15-CA-2501 was filed by the Union
on July 29, all in 1964.
Based upon the aforesaid charges, an order consolidating the said cases and the
complaint herein were issued on August 31. 1964. Said complaint was amended on
September 16, and again on September 30, 1964. The complaint, as amended,
alleges that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended. Respondent, by its answer, denied that it committed
the unfair labor practices alleged.
WEINACKER BROTHERS, INC. 461
Pursuant to notice, a hearing was held at Mobile, Alabama, on October 12, 13, 14,
and 15, 1964, before Trial Examiner Stanley Gilbert. At the close of the hearing,
oral argument was waived Within the time set therefor, briefs were submitted by
the General Counsel and Respondent.
Upon the entire record herein, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Weinacker Brothers, Inc., an Alabama corporation with its principal office and
place of business in Mobile, Alabama, is engaged in the business of retail supermarket
operations, with subsidiary gasoline and oil services. During the 12-month period
preceding the issuance of the complaint, a representative period, Respondent, in the
course and conduct of its business operations, sold and distributed products of a
gross value in excess of $500,000. During the same period, Respondent received
goods and materials of a value in excess of $50,000, which were shipped directly to
its aforesaid place of business from points outside the State of Alabama.
As is conceded by Respondent, Respondent is, and has been at all times material
herein, an employer engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
As is conceded by Respondent, the Union is, and has been at all times material
herein, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Backgiound and summai y of events
The findings of fact set forth in this subsection of the Decision are based upon
credited testimony,) which was uncontradicted except as indicated. All dates referred
to in this Decision are in 1964, unless otherwise indicated.
The Union began its campaign to organize Respondent's employees in the latter
part of August or in September 1963. Jean Brooks who acted as executive secretary
for Robert M. Weinacker, Jr., apparently either the owner or principal owner of
Respondent, was engaged in duties which were, in effect, those of general manager,
until sometime after the employment of Horace Weaver in November 1963. During
November 1963, Brooks saw a union man in the store and advised Weinacker that
she suspected the Union was trying to organize Respondent's employees. Wemacker
ordered her to find out which employees were for the Union. She compiled a list
of employees for him who she had determined were for the Union from her interroga-
tion of the employees. During the period between November 1963 and February
1964 the policy was adopted at a management meeting "to weed out the union sym-
pathizers and to replace them with loyal employees." Weinacker told Brooks to give
department heads "instructions to find out who had signed union cards and to turn
the names over" to him and Weaver; Weinacker instructed the supervisor to tell
employees that it would do no good to join the Union and that he would close the
store before negotiating with it, and, on several occasions, Weinacker said in the
presence of Brooks that he would close the store "before [he would] go union."
It appears that, in December 1963, Weaver took over all hiring of new employees.
About that time Brooks interviewed an applicant and hired him, but he returned
shortly thereafter and asked her, "Who's boss you or Mr. Weaver?" When she
replied Weaver was the general manager, the applicant said, "Lady he just asked me
if I was for the Union or against the Union and I said I didn't know. He said he
couldn't use me." She later questioned Weaver about his action and Weaver told
her that he was in doubt whether the applicant would be loyal to management or
the Union, so he did not hire him.
Brooks testified that Weaver stated to her and other supervisors that there would
be no prounion employees left, that he would get rid of them. Thermon C. Freeman,
an admitted supervisor, testified that Weaver stated to him in December 1963, "Well
I promise you that there will not be any union at Weinacker's, not as long as I stay
'The testimony relied upon is that of Jean Brooks, an admitted supervisor, who was
employed by Respondent from August 1962 to February 21, 1964, Glenn York, an admitted
supervisor, who was employed by Respondent from February 1963 to February 2, 1964;
Thermon C. Freeman, an admitted supervisor, who was employed by Respondent from
June or July 1960 until August 1962, and from June 1963 until April 1, 1964; Clifford
Taggart, an officer and business agent of the Union; and employee Mildred Turner
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here, if I have to start at the front door and go out the back." He further testified
that Weaver asked him to find out if he knew anyone who had signed union cards and
to let him know and that he, Weaver, "would take care of the rest." Freeman testi-
fied that, again in January, Weaver stated to him that there would be no union in
the store "because we will just start at the front and go out the back and there won't
be any union." Weaver denied that he ever made any such statements or words to
that effect. This denial is not credited. Both Brooks and Freeman were convincing
witnesses. On the other hand, neither Weaver's demeanor nor the content of his
testimony was convincing. Furthermore, his denial is not credited in view of the
considerable amount of uncontradicted and credited testimony evidencing manage-
ment's hostility toward the Union and its intention to get rid of prounion employees
Several times during December 1963 and January 1964 Weaver asked Glenn York,
an admitted supervisor, to talk to the employees to get them to withdraw their author-
ization cards and instructed him to find an excuse to get rid of employees who were
for the Union.
Around the middle of December 1963, Clifford Taggart, an officer and business
agent of the Union, visited the store with another union representative. They intro-
duced themselves to Brooks and Taggart told her that he wanted to see Weinacker,
that the Union was requesting recognition, and that it represented a majority of
employees. Brooks replied that Weinacker would not see them, would not recognize
the Union, and would close the doors before he could do so. She also stated to
them, "The only good you can do around here is getting a lot of good employees
fired," and "When we find out what people signed union cards, they will be fired."
In the latter part of January, Mildred Turner, an employee, overheard Weaver
say to a man whom she could not identify that he, Weaver, wanted to get rid of the
people who signed union cards, and when the unidentified man said to Weaver,
"You have to have a reason for firing," Weaver answered, "I can always come up
2with an excuse for firing anyone."
Mary Richaidson, an admitted supervisor, told Brooks that she and Myrtis
Chaillot, also an admitted supervisor, planned to engage in surveillance of the union
hall at the time of a union meeting to learn which employees were for the Union,
and the day after the meeting Richardson indicated to Brooks that she had engaged
in such surveillance. Weinacker instructed Chaillot, in Brooks' presence, to find out
who belonged to the Union and fire them
The above findings of fact clearly demonstrate Respondent's hostility to the Union,
and its intent to rid itself of prounion employees and to commit other unfair labor
practices. They were considered in arriving at the findings hereinbelow of unfair
labor practices.
B. The representation proceedings and the appropriate bargaining unit
On December 19, 1963, the Union filed a petition with the Board seeking certifica-
tion as bargaining representative of the following described unit of Respondent's
employees:
All full-time and regular part-time employees at Respondent's Mobile, Alabama,
retail operation, including office clerical employees and the grocery, produce, meat,
drug, warehouse, and service station departments, excluding employees in the snack
bar, professional employees, watchmen and/or guards, and supervisors as defined
in the Act.
On January 20, 1964, a representation hearing was conducted and on February 13,
1964, the Regional Director for Region 15 issued a Decision and Direction of Election
finding said unit appropriate for the purposes of collective bargaining. Although the
Respondent, in its answer, denied the allegation in the complaint that said unit was
an appropriate bargaining unit, no evidence was introduced in support of said denial.
Therefore, even if it were assumed that the appropriateness of the unit could be
relitigated in this proceeding, it, nevertheless, must be concluded that said unit is an
appropriate unit for the purposes of collective bargaining, there being no evidence
inappropriate.
On March 9, 1964, a representation election was conducted among the employees
in said unit. Objections to the election were filed by Respondent and after the objec-
tions were investigated, said Regional Director on April 16, 1964, issued a Supple-
mental Decision and Certification of Representative, certifying the Union as bargain-
2 This finding is not considered as evidence of a violation of Section 8(a) (1) of the
Act inasmuch as there is no indication that Weaver knew he was being overheard by an
employee or could reasonably have anticipated being overheard However, it is indicative
of the hostility of the Respondent and lends weight to the findings of discriminatory
motive for the discharges set forth hereinbelow.
WEINACKER BROTHERS, INC. 463
ing representative for said unit. On April 25, 1964, Respondent filed a request for
review of said Regional Director's Supplemental Decision and Certification of Repre-
sentative, which request was denied by the Board on May 22, 1964.3
C. The issues
1. Whether Respondent violated Section 8(a)(1) of the Act by the conduct of
the following supervisors: 4 Jean Brooks, Myrtis Chaillot, Cecil Laws, Mary Richard-
son, Robert Tew, Colen Taylor, Claude Tingle, Horace Weaver, Robert M. Wem-
acker, Jr., and William Chavers.
2. Whether the following employees were discriminatorily discharged (named
according to the alleged dates of discharge) - Marguerite Etheredge, Sadie Burgess,
Mildred Turner, Burt Dock, Harry Wright, W. J. Williams, Cleveland Dortch, Eliza-
beth Ann Moyette, and Lorenzo Matthews.
3 Whether there were discriminatory reductions in the work hours of Burgess,
Boyette, Donald Harris, and Jack Smith
4. Whether there was a discriminatory denial of dining and restroom facilities
which had been previously used by certain employees.
5. Whether the Respondent refused to bargain in good faith with the Union after
its certification as the bargaining representative of Respondent's employees.
D. Interference, restraint, and coercion of employees
1. By conduct of Jean Brooks
Brooks testified that, in accordance with her instructions from Weinacker to find
out what employees were for the Union, she interrogated the employees and compiled
a list for him of those who she had determined were in favor of the Uniona It
appears from Brooks' testimony that, before she left Respondent's employ, she inter-
rogated all or substantially all of the employees in the store. She also testified that
she told them they would get fired if they joined the Union and that Weinacker would
close the store "before he would negotiate with the Union." Her testimony as to
her interrogation and threats was substantiated by a number of the employees. In
addition, Turner testified that Brooks stated in her presence and in the presence of
W. J. Williams that before Weinacker "paid union wages he would put us all into part
time, and pay us part time ... he would pay more people, and they would make less,"
and that she asked Williams if he would prefer ending up making only half of $44 a
week.6 All of the above testimony was uncontradicted and is credited.
It is therefore concluded that, through the conduct of Brooks, Respondent did
unlawfully interrogate employees and threaten them with economic reprisals for their
adherence to the Union,7 in violation of Section 8 (a) (1) of the Act.
2. By conduct of Myrtis Chaillot
Employee Alma Garrison testified that, in the middle of December 1963, Chaillot
asked her and two other employees if they were going to join the Union and if they
3 It is alleged that after the Union was certified as the bargaining representative, Re-
spondent engaged in conduct constituting refusals to bargain in good faith in violation of
Section 8(a)(5) and (1) of the Act The details with respect to this issue are set forth
in another section of this Decision entitled "H. Respondent's refusal to bargain in good
faith".
' All of the people named were admitted to be supervisors except Robert Tew Robert Tew
was found to have been a supervisor in section III, D, 5, of this Decision (in which the
evidence concerning his supervisory status and conduct is set forth in detail)
'Among the employees whose names she remembered were on the list were Wright,
Turner, Etheredge, Williams, Donald Harris, Dock, and Dortch Six of said employees
were among the nine who were alleged to have been discriminatorily discharged and one
of those named was alleged to have had his workhours discriminatorily reduced (She
further testified that she did not put anyone on the list of whom she was unsure ) There-
fore, this, uncontradicted and credited testimony of those who were on the list was con-
sideied in disposing of the issues relating to the alleged discriminatory action against
said employees.
6 This statement was considered in the disposition, in other sections of this Decision,
of the issues of whether there were discriminatory reductions in the workhours of four
of the employees. It indicates that Respondent contemplated using the device of reduc-
ing workhours as a means of reprisal for adherence to the Union
7Including a threat to reduce their hours of work should the Union become their bar-
gaining representative, rather than give them full employment at union scale
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had talked to union men, and that Chaillot stated that if they joined the Union they
would lose their jobs. She also testified that, later in December, Chaillot asked her
the same question and when the witness responded, "I've told you and told you ...
I'm not going to join the Union," Chaillot said that Weinacker "told her to ask the
girls and get their answer because she had to turn it back into him because she wanted
to tell him how the girls felt about the Union " She testified further that Chaillot
stated that Weinacker would close the doors before he would accept the Union.
Etheredge testified that, about 2 weeks prior to her discharge (on January 13,
1964), Chaillot asked her what she thought about the Union and she answered that
she did not want to talk about it. Burgess testified that in January Chaillot asked her
whether, if a vote were taken, she would be for the Union and that she answered in
the affirmative. Burgess further testified that Chaillot told her she was asking other
employees how they would vote but that "it would not count."
Matthews testified that, in January, Chaillot told him that Weinacker had asked
her to question employees as to how they were going to vote and that he ieplied that
he thought that the voting was going to be by secret ballot. Matthews further testified
that on the day of the election, March 9, Chaillot asked him how he was going to vote
and said, "You better vote right .... If you git the Union in it's going to be tough."
Matthews also testified that on February 17, when he wore a union ,button on the job,
Chaillot and Weaver saw it and Chaillot remarked to him, "Boy, you're gitten brave."
The record is cleat that Chaillot and Richardson engaged in unlawful surveillance
by sitting in an automobile parked near the union hall at the time of a meeting in
order to determine which employees were attending the meeting and could, therefore,
be assumed to be in favor of the Unions
Chaillot denied that she ever asked any employee how he would vote or that she
ever questioned employees about the Union. She testified that the employees dis-
cussed the Union in front of her and that she only discussed the Union with them in
an "indirect way " Chaillot was not a convincing witness and in view of the uncon-
tradicted and credited testimony of Brooks that Chaillot had been instructed by
Wemacker to find out who belonged to the Union and fire them, and, further, in view
of management's hostility and plan to commit unfair labor practices, no reliance can
be placed upon her above denials. The above testimony of her interrogation of
employ ees and threats of economic reprisal is credited.
Therefore, it is concluded that Respondent, through the conduct of Chaillot,
engaged in unlawful interrogation, threats of reprisal for adherence to the Union, and
surveillance of employees' protected activity in violation of Section 8(a)(1) of the
Act.
3. By conduct of Cecil Laws
Employee Enna May Hall testified without contradiction, and it is found, that,
in January, Laws said to her and another employee that he did not care whether they
joined the Union or not, that their jobs were safe with him, but that if any new
employees came in they would have to tell Weaver they were not for the Union This
statement to an employee of a policy not to hire anyone who might be in favor of the
Union is not only violative of Section 8(a)(1) of the Act, but also corroborates the
above credited testimony of Brooks that Weaver was implementing such a policy.
4. By conduct of Mary Richardson
Based upon uncontradicted 9 and credited testimony it is found that Richardson
engaged in the following conduct: In the first part of December 1963, Richardson
asked Garrison if she were going to join the Union and stated that if employees
joined the Union they would be fired; early in 1964, Richardson stated in the presence
of Carlos and Donald Harris that Weaver "was going to fire everybody, that he was
going to clean house" (from the context of the conversation it is clear that she was
referring to "everybody" who was in favor of the Union); around election time,
Richardson asked Donald Harris how he and the Union were "getting along" and
said, "Let me tell you what I think about the Union ... all you all are gonna do is get
yourselves fired"; in December 1963 Richardson said to Turner that if any of the
personnel in her department joined the Union she would fire them and "that anybody
else in the store would be fired if they joined the Union, because Mr. Weiracker was
not going to have the Union come into the store"; a couple of weeks after the election,
Richardson stated to Betty Dailey that there would never be a union in the store as
8 Chaillot admitted engaging in such conduct and Carlos Harris testified, without con-
tradiction, that Chaillot told him that she and Richardson planned to engage in said
surveillance.
9 Richardson was not called as a witness.
WEINACKER BROTHERS, INC. 465
long as Weinacker owned it; in December 1963, Richardson "started cursing"
Matthews and told him she knew he was passing out union literature; in the last part
of March she talked to Matthews about the Union and named Williams, Donald
Harris, and Matthews as organizers of the Union, and stated that every time she saw
them they made her "sick to her stomach"; and Richardson accompanied Chaillot in
engaging in surveillance of employees' attendance of a union meeting.
Therefore, it is concluded that, by Richardson's conduct, Respondent engaged in
unlawful interrogation, threats of reprisal for adherence to the Union, surveillance of
employees' protected activities, and threats not to recognize and bargain with the
Union even if it was selected as the lawful representative of the employees, in violation
of Section 8 (a) (1) of the Act.
5. By conduct of Robert Tew
Respondent denied the allegation that Robert Tew was a supervisor (during the
period material herein) within the meaning of the Act. His supervisory status was
questioned at the time of the election, but, since his ballot was not determinative of
the result, no conclusion was reached by the Regional Director with regard thereto.
Weaver testified that Tew was hired by him to work directly under him in the
grocery department, immediately after the grocery manager had been terminated,
and that Tew did not have authority to hire or fire. (There is no indication in the
record that he exercised such authority.) According to Weaver, Tew was to relay
instructions to employees, keep their time, and tell them when to come and go on
breaks. Weaver further testified that he (Weaver) assigned the employees and Tew
carried out his instructions; that Tew checked registers at night and helped close the
store after the night manager was terminated; and that either he (Weaver) or Tew
gave the cashiers money.
According to the payroll record, Tew was hired on February 3, 1964, the day after
York, the grocery manager, left, and the payroll records indicate that Tew was
"assistant grocery manager" during the period when there was no manager in that
department, and received a salary of $100 per week. All other employees in the
grocery department were on an hourly basis and it appears that Tew earned at least
twice as much as was paid to the nonsupervisory employees.
Based upon uncontradicted and credited testimony it is found that, about the time
Tew was hired, Weaver told Carlos Harris and a number of the other employees that
Tew was "in charge," and stated to Donald Harris that York was fired and Tew was
taking his place; and Tew gave Jack Smith orders, told him what hours to work, told
the cashiers when to work, and approved customers' checks. Williams ciedibly
testified that he thought Tew was a supervisor, because Tew assigned employees,
checked cashiers, gave out work schedules, and gave him time off one evening in
February. Freeman, a supervisor in one of the other departments, testified without
contradiction, and it is found, that Tew attempted to give him orders, but he ignored
them. Although Brooks testified to the effect that Tew was not employed in a
supervisory capacity, she remained in the employ of Respondent for only a little over
2 weeks after Tew was hired by Weaver, and it appears that, by the time Tew was
hired, Weaver had usurped most of her managerial functions Furthermore, there
is no showing that she had observed what authority Tew exercised. Consequently
her testimony on this point cannot be given weight.
It appears from the above credited testimony that Tew had many of the attributes
characteristic of supervisors as defined in the Act. It is concluded, therefore, that,
not only did the employees have reasonable ground to believe that Tew was a super-
visor but that Tew was, in fact, a supervisor within the meaning of the Act.
Several of the employees testified without contradiction 10 as to Tew's conduct, and
their testimony is credited. Donald Harris testified that, sometime before the election,
Tew asked him when the next union meeting was to be held and, when he told him the
day, Tew elicited from him the appointed hour. Turner testified that, in the first week
in February, Tew told her unions were bad. that he did not believe in them, that the
store would be closed before the Union would come in, and that Weinacker "wouldn't
have it." Williams testified that, in February, Tew asked him if he believed in the
Union and stated that, "You won't get a union in here ... they will close the doors
before then." Williams also testified that after the election Tew said, "You think
you all got a union in here but you don't"; and that Tew further stated that there
would not be a union in the store, that "they would close the door, and get a whole
new crew." Boyette testified that, just before the election, Tew asked her if she were
going to vote for the Union and that, when she said that it was a private matter, Tew
10 Tew was not called as a witness.
796-027-66-vol 153-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated, "Your friends are backing out on you." She further testified that Tew said,
"If the Union comes here, Mr. Weinacker will close the doors and we'll all be out
of work."
It is, therefore, concluded that Respondent, by the conduct of Tew, engaged in
unlawful interrogation, threats of economic reprisal for adherence to the Union,
and threats that Respondent, in any event, would not accept the Union as the
collective-bargaining representative of its employees, all in violation of Section
8(a)(1) of the Act.
6. By conduct of Colen Taylor
Employee Cecil Robinson testified without contradiction, I I and it is found, that,
in the latter part of March, Taylor asked him how he had voted at the union election
and stated that he had been instructed to find out if Robinson "was part of the Union";
and that a few days later Taylor again interrogated him as to how he had voted and
stated that he was questioning him at the request of Weaver.
The above credited testimony not only constitutes evidence of unlawful interroga-
tion in violation of Section 8 (a)( I) of the Act, but also further discloses that such
interrogation was directed by top management.
7. By conduct of Claude Tingle
Dortch testified, without contradiction, to statements made to him by Tingle, who
was not called as a witness. According to Dortch, after Williams' discharge, Tingle
told him that Williams "was laid off on account of the Union" and that Matthews and
Donald Harris would probably be "the next ones they will take." 12 Dortch further
testified that Tingle stated to him that Weaver had said that Respondent had appealed
for another election, was getting rid of the people who were for the Union, that there
never would be a union, and that Respondent would close before accepting the Union.
The above testimony which is credited not only constitutes evidence of threats of
economic reprisal for adherence to the Union and a threat not to accept the Union as
collective-bargaining representative in any event, in violation of Section 8(a) (1) of
the Act, but also further discloses the intent of management to get rid of union
adherents and not to bargain with the Union even though it be the lawful representa-
tive of Respondent's employees.
8. By conduct of Horace Weaver
A considerable amount of testimony was elicited from employees of interrogation
by Weaver. When questioned about such interrogation, Weaver testified that he did
talk to most of the employees about the Union on an individual basis, but that he
"told each one that this was a free world, they could do whatever they like." He was
unable to recall the particulars of any instance of his conversations with employees
about the Union, but he did indicate that he did not ask them whether they belonged
to the Union.
On the other hand there is the following testimony by employees:
Robinson testified that, in the latter part of February, Weaver asked him if he had
a union card; Carlos Harris testified that, in the first part of February, Weaver asked
him if he would sign a statement saying he had not signed a union card; William
Andrews testified that, in January, Weaver asked him if he had signed a union card
and whether he was for the Union or not; Donald Harris testified that, 3 weeks before
the election, Weaver asked him what he thought about the Union and if he had ever
been in a union before; Donald Johnson testified that, in the first part of February,
Weaver attempted to interrogate him and, when he would not answer, Weaver said
to him, "Well, you don't need to tell me no lie. I know you signed a union card";
Turner testified that, after she signed a letter dictated by Weaver withdrawing her
union authorization card, in the first part of January, Weaver asked her about the
union activities of other employees; Turner further testified that, in the first part of
February, Weaver asked her if she had written a letter to reinstate her union card and
also asked her who the ringleaders were in the Union; Etheredge testified that, in
the first part of January, Weaver asked her if she had signed a union card, that, when
she responded she had, he asked her if she would consider withdrawing the card, and
that when she stated she would not, Weaver said, "In other words if they are going
to lead you to a slaughter you are going to be right with them"; Wright testified that,
in January or February, Weaver asked him if he had been passing out union cards and
11 Taylor was not called as a witness.
19 This credited testimony was considered in arriving at the findings made with respect
to the discharge of Williams and Matthews and the reduction in the workhours of
Donald Harris.
WEINACKER BROTHERS, INC. 467
said that Brooks had told him that he had been doing so, and that he admitted he
gave one to Betty Dailey; Wright further testified that, during December and January,
Weaver asked him on several occasions if he had heard anything that was going on
about the Union; Betty Dailey testified that, a week before the election, Weaver asked
her how she felt about the Union and stated there would not be any union in the
store; Katie Black testified that, in December 1963, Weaver asked her what she
thought of the Union, and, in January, if she was going to a union meeting to be held
the following Sunday; Dortch testified that, 2 or 3 weeks before the election, Weaver
asked him if he had heard about the Union and if he had ever belonged to the Union;
Williams testified that, in December 1963, Weaver asked him whether he had signed
a card and, when he said he had not, Weaver asked him if he would sign a letter
saying he had not signed a card; Dock testified that, in January, Weaver asked him
if he knew anything about the Union or if he passed out cards, and that Weaver also
asked him if Williams passed out union cards; Boyette testified that, in the latter part
of December 1963, Weaver asked her if she knew about the Union and if she had ever
worked in a union store, and that Weaver said he heard some of the employees were
passing out union cards and asked her if she knew who they were; Burgess testified
that, in January, Weaver asked her if she had signed a union card and when she did
not reply he asked her what good she thought a union would do; and Burgess further
testified that he also asked her to write a letter withdrawing her union authorization,
which she refused to do.
All of the above testimony by employees of interrogation by Weaver is credited.
As has been indicated hereinabove, Weaver was not deemed to be a reliable witness
and his vague testimony attempting to negate the coercive effect of his admitted inter-
rogation of employees was unconvincing. Furthermore, uncontradicted and credited
testimony establishes that management was seeking to learn who the prounion employ-
ees were. Therefore, it is concluded that Respondent by the conduct of Weaver
unlawfully interrogated employees in violation of Section 8(a)(1) of the Act.
In addition, his statement to Dailey that there would not be a union in the store
constituted a threat not to bargain with the Union as the representative of Respond-
ent's employees. In addition to this threat, according to the credited testimony of
Williams, just before the election, Weaver stated to him that "the Union is not going
to come in this store ... we will close the doors before the Union [comes in]" and
added, "We will weed out all the troublemakers." 13
It is concluded that Respondent, by the conduct of Weaver, threatened employees
with economic reprisal for their adherence to the Union in violation of Section
8(a)(1) of the Act. In addition, the above testimony is corroborative of Respond-
ent's intent to get rid of employees who were in favor of the Union and not to accept
the Union as the collective-bargaining representative of its employees.
Turner testified without contradiction, and it is found, that, in February during
the course of a conversation with Weaver in which Weaver indicated that the Union
could cost the employees more than they would gain by joining it, she stated that
she felt that she deserved a raise and had asked for one, but had not received it; to
which Weaver replied, "You'll get a raise in September, and after this Union is
squashed.... I'll see if you can get a raise ." 14 It is concluded that by this state-
ment Weaver was offering Turner a promise of a raise conditioned upon the defeat
of the Union, in addition to the raise which it would be required to give its'employ-
ees (in September ) in order to comply with the minimum wage law. This promise
of benefit constituted a violation of Section 8 (a) (1) of the Act.
It appears from uncontradicted and credited testimony that Weaver, on at least
two occasions, drove slowly by the union hall at the time of a meeting of Respond-
ent's employees and looked toward the hall. It is concluded that, in the absence of
any explanation for such action by Weaver and in view of the pattern of Respond-
ent's conduct , that said action constituted a further instance of unlawful surveillance
by Respondent of Respondent's employees' protected activity in violation of Section
8 (a) (1) of the Act.
13 Weaver testified he had never told any employee he would fire him or her for union
activity . ( It is noted that no witness testified that he made such a direct threat.) If
this testimony by Weaver was intended as a denial of Williams ' above testimony, such
denial is not credited.
141t appears by the reference to the raise in September , Weaver was indicating the
raise that would be required to meet the minimum wage law. There are several instances
in the record of management ' s reference to a raise in September . It is not considered,
nor is it apparently contended , that references to this required raise constituted a promise
of benefit in violation of the Act.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carlos Harris, Etheredge, Williams, and Burgess testified that they were asked by
Weaver if they would write a letter withdrawing their union authorization cards and
Turner testified that she was asked by York to write such a letter which Weaver
dictated for her and which she signed. This uncontradicted testimony which is
credited constitutes evidence of unlawful interference and coercion by Respondent
in violation of Section 8(a) (1) of the Act.
Weaver testified that, on February 16, he was told that some of the employees
had come into the store wearing union buttons and passed them out to other employ-
ees. He further testified that the following week, or possibly the following day, he
saw some employees in the store wearing union buttons. He immediately promul-
gated a rule prohibiting employees from wearing buttons, which he read to the
employees. The rule was as follows: "No badge of any kind will be worn by any
employees who is [sic] in contact with the public or customers in this store." 15 The
button which was worn was approximately three-quarters of an inch in diameter.
There is no evidence that the union buttons caused customer complaints, occasioned
any loss of business to Respondent, caused any friction between union and nonunion
employees, or detracted from the dignity of Respondent's operation. Therefore, it
is concluded that the prohibition against wearing union buttons was violative of
Section 8(a)(1) of the Act. Harrah's Club, 143 NLRB 1356; Floridan Hotel of
Tampa, Inc, 137 NLRB 1484, enfd. 318 F. 2d 545, 548 (C.A. 5).
Weaver testified that, for some time prior to a visit to the store by union officials,
a plaque was displayed therein where it could be seen by employees and the public
which stated that the store was a member of the Better Business Bureau and "No
solicitations considered unless first submitted to the Better Business Bureau." A
paraphrase of the language on the plaque was read to union officials on the occasion
of their visit to the store, but was not read to employees.is The language of both
the plaque and the paraphrase would include a prohibition against activity by
employees on behalf of the Union, or with respect to other protected activities, not
only in working areas and on working time, but also in nonworking areas and on
nonworking time. There is no evidence of a need to extend such prohibition to
nonworking times and nonworking areas. Such a prohibition may, however, be
lawfully extended to the selling floor of a retail store however, even during employ-
ees' nonworking time. The May Department Stores Company, et al., 59 NLRB 976,
981. It is well established that in the absence of the necessity of such a broad rule
to maintain production and discipline, it is invalid and constitutes interference with
employees' rights guaranteed under Section 7 of the Act in violation of Section
8 (a) (1) of the the Act.
It is further concluded that Respondent violated Section 8 (a) (1) of the Act by
enforcing its rule prohibiting solicitation by union officials, while, as it appears from
the record, it was, at the same time, engaging in an extensive campaign against the
Union in working areas and on employees' working time. The May Department
Stores Company, d/bla The May Company, 136 NLRB 797.
9. By conduct of Robert M. Weinacker, Jr.
Employee Gladys Hilburn testified that, in February, Weinacker asked each of the
employees individually who had been assembled by Weinacker if she "were for the
Union or not." Boyette, Matthews, and Donald Harris testified that in the course
of a meeting with a number of employees Weinacker stated that "before he would
accept the Union he would close the door." 17
The above testimony was not contradicted and is credited.'8 Therefore, it is con-
cluded that Respondent, by the conduct of Weinacker, engaged in unlawful inter-
rogation of employees and threatened economic reprisal for adherence to the
Union in violation of Section 8 (a) (1) of the Act.
is A number of the employees testified that they were wearing union buttons in the
store, and substantiated Weaver's testimony as to the action he took with respect to their
doing so.
16 The paraphrase read as follows: "Policy of Weinacker Brothers, Inc -There shall
be no solicitation in the store , charitable, religious, political or otherwise "
17 It is not clear whether Harris, Boyette, and Matthews were testifying about the same
meeting or separate meetings. However, it is of no moment, for the purposes of this
Decision, which was the fact It is clear that Hilburn was testifying to a meeting other
than the one or ones to which the other three testified.
is Weinacker did not respond to a subpena by General Counsel and was not called as a
witness by Respondent.
WEINACKER BROTHERS, INC. 469
10. By conduct of William Chavers
Employee Andrews testified that on September 15, 1964, he received a subpena to
testify in this proceeding . He further testified that, on the following day, Chavers
asked him if he had received a subpena, that when he indicated he had, Chavers
said to him , in the presence of Betty Dailey, that if he did not report to work on the
day on which the subpena was returnable , he would be fired, and that , about an
hour later, Chavers came to him and told him that "he was joking , he didn't mean
that, he was just joking about it." The above testimony was uncontradicted and is
credited . It appears that Andrews and Dailey had reasonable grounds to believe
that Chavers was serious at the time he made the above statement . It is found that
he was not, in fact, "joking." It appears more likely that Chavers subsequently
realized the unlawfulness of his statement or was advised of it, and he attempted to
exculpate himself by later telling Andrews that he was joking at the time he made
the statement . In view of the many unfair labor practices found to have been com-
mitted by Respondent and of the finding that Chavers was serious when he made
the threat , it is concluded that Chavers ' subsequent statement that he was joking
did not effectively negate the coercive impact of said threat . Official notices may
be taken of the fact that threats can be conveyed under the pretense of a joke.
Therefore, it is concluded that Respondent by Chavers' conduct violated Section
8(a)(1) of theAct.ia
E. The discriminatory discharges
The discharges are considered below in the order of the dates on which they were
alleged to have occurred . The evidence with respect to each discharge has been
considered in the context of the evidence with respect to the other discharges and
the findings in the sections of this Decision titled "A. Background and suminaiy of
events" and "D. Interference , restraint, and coercion of employees."
1. Discharge of Marguerite Etheredge
Etheredge , who was employed as cashier in the grocery department , was dis-
charged on January 13, 1964. According to her credited testimony, she had signed
a union card and had attended union meetings . Although Weaver testified that
she had told him she was in favor of the Union , he further testified that he dis-
charged her because of calls from her creditors during business hours.
Etheredge testified as follows to the event of her discharge : Upon her return from
lunch, Weaver said to her that her "time " was ready for her, and when she asked
if she was fired, he answered , "Something about like that"; she asked him for the
reason and he stated that her creditors were constantly calling and threatening gar-
nishment and, when she said, "Well, they haven't garnished me," he replied that
she had also given an insufficient check; she pointed out to him that she had "picked
the check up"; he then reminded her of the day when she had "to take off in the
middle of the day" and she replied that that was an "emergency"; and he then said,
"That's the three reasons ." Weaver did not deny this testimony and it is credited.
It was found in the preceding section of this Decision that Weaver unlawfully
interrogated her as to whether she had signed a union card and, when she responded
that she had , he asked her if she would consider withdrawing the card, which she
refused to do. Brooks testified , without contradiction , that Etheredge was on the
list which she compiled for Weinacker of employees who she had determined were
in favor of the Union . Brooks further testified , without contradiction , that she
asked Weaver why Etheredge was discharged and that Weaver replied that Ether-
edge had admitted that she was in favor of the Union . Brooks also testified that it
was the previous practice not to discharge employees for bad checks or garnish-
ments. York testified, without contradiction, that Weaver told him Etheredge was
in favor of the Union and asked him, York, if he wanted to fire her or should he,
Weaver, do it; that he told Weaver to do it; that Weaver said Etheredge had written
a bad check and that that was an excuse to let her go; and that he then pointed out
to Weaver that Etheredge had already made the check good.
It is concluded from the above testimony of Etheredge , Brooks, and York, which
is credited , that Etheredge was discharged for discriminatory reasons in violation of
Section 8 ( a)(3) and ( 1) of the Act , and that the reason for the discharge to which
Weaver testified was merely a pretext.
"Inasmuch as his conduct was not alleged to be also violative of Section 8(a)(4) of
the Act, and, further , in view of the fact that such a finding would not alter the remedy
which will be recommended with respect to said conduct , no finding is made as to whether
it also constituted a violation of Section 8(a) (4) of the Act.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximately 8 months later Respondent sent Etheredge a letter offering her
reinstatement, which General Counsel concedes was a valid offer, and Etheredge
returned to work on October 6, 1964.
2. Discharge of Sadie Burgess
Burgess, who was employed as a cashier in the drug department, was discharged
on February 3, 1964. Chaillot, the manager of the drug department, testified that
she hired Burgess on November 9, 1963, and that at the time she told her that she
could not promise her anything beyond the holidays. Chaillot further testified that
the reasons she gave Burgess for her termination were to reduce the payroll, that
there were customer complaints, and that her daughter "hung around" the store
waiting for her. Chaillot further testified that she had reprimanded Burgess several
times, that she never discussed union activity with her in a "direct way," and that
she never saw her wear a union button. Chaillot admitted on cross-examination
that, after she hired Burgess, she hired two other employees 20 on a temporary basis
(for the same job as that of Burgess), both of whom were retained in Respondent's
employ for a considerable period after February 3, 1964. Chaillot's testimony on
cross-examination with respect to customer complaints about Burgess was vague and
unconvincing , and she could not remember the last complaint that was made. There
is nothing in her testimony to indicate what precipitated her decision to discharge
Burgess.
As found in the preceding section of this Decision , about 2 weeks prior to the
date of her discharge, Chaillot asked Burgess how she would vote with respect to
the Union and she told Chaillot that she would vote for the Union. Burgess testified
that, about an hour after this conversation, Chaillot told her she would have to split
hours with Skipper; and that the first week she worked about 28 hours and the second
week her work hours were cut to 24.21 Burgess further testified that she did not
think she was being discharged on February 3; that Chaillot told her she would call
her "if business picked up," but that she never received a call. To continue with
Burgess' testimony, in the middle of February she asked Chaillot why she had not
received a call, since she was supposed to split with Skipper and Skipper was work-
ing full time, to which Chaillot replied, "That was just the way it was." Burgess
further testified that it was at this point that Chaillot mentioned complaints about
her work for the first time; that when she asked Chaillot why she had waited until
then to tell her about the complaints, Chaillot did not answer her question, but did
state that she (Chaillot) still intended to use her when business picked up. Burgess
also testified that she had never been criticized about her work and denied that
Chaillot told her when she was hired that it was on a temporary basis.
As has been indicated above, Chaillot was not a convincing witness. In view of
this, and in view of the findings of unfair labor practices committed by Respondent,
of Respondent's intent to rid itself of prounion employees and of Brooks' testimony,
which was credited, that Weinacker had instructed Chaillot to find out which employ-
ees were for the Union and fire them, those portions of Chaillot's testimony which
contradict that of Burgess are not credited and Burgess' testimony is credited.
The General Counsel contends that not only was Burgess discriminatorily dis-
charged, but that there was also a violation of Section 8(a)(3) and (1) of the Act
by the reductions in her workhours beginning approximately 2 weeks prior to her
discharge. The timing of the notification of the first reduction in her workhours was
suspiciously contemporaneous with the discovery of her prounion sentiments, 1 hour
after Chaillot had elicited from her that she would vote for ,the Union. The record
does not disclose whether economic reasons did or did not exist for the requirement
that Burgess and Skipper split hours, nor does it show what reduction, if any, there
was in the workhours of Skipper. The payroll records disclose that an additional
drug cashier, Carolyn J. Hartsell, was hired on February 18, 1964, and an "extra
cashier" for the drug department was hired on February 23, 1964. In view of the
above findings of fact, it is concluded that the reduction in the workhours of Burgess
was in reprisal for her avowed intention to vote for the Union and for the purpose
of discouraging her from continuing in the employ of Respondent. It is further
concluded that after her workhours were further reduced the second week and
20 Dorothy Skipper on November 14, 1963, and Mildred Weninegar on December 10,
1963, according to the payroll records
2l According to the joint exhibit she worked 21/ hours and 2G,Fa hours the 2 weeks
preceding the discharge.
WEINACKER BROTHERS , INC. 471
Burgess continued her employment , Chaillot under the pretense of a layoff discrim-
inatorily discharged Burgess in accordance with her instructions from Weinacker to
fire union adherents.
Even if Chaillot 's testimony were credited that Burgess had been informed at the
time she was hired that it was on a temporary basis, it would not appear to be of
any consequence in view of the fact that Skipper and Weninegar , who were hired
after Burgess , also on a temporary basis according to Chaillot , were retained. Fur-
thermore , the attempt by Chaillot to indicate that by discharging Burgess she was
dropping a temporary employee who was no longer needed is further discredited by
the fact that 2 weeks later Respondent hired an additional cashier and 1 week after
that an "extra cashier" for the drug department.
Consequently , it is concluded that the reductions in the workhours of Burgess and
her discharge on February 3 were discriminatorily motivated in violation of Section
8(a)(3) and ( 1) of the Act.
3. Discharge of Mildred Turner
Mildred Turner , who was the head cashier in the grocery department , credibly
testified and it is found , that on Friday , February 7, 1964, during the course of her
work, she got some bleach in her eye ; that she went to the doctor after work for
diagnosis and treatment ; that on Monday , February 10, she worked with a patch on
her eye; that she was unable to work on the following Tuesday and called the store
to report that fact ; that she reported to Weaver every day for 2 weeks ; that about
February 28 (when she was told by the doctor that she could go back to work) she
went back to see Weaver and was told by him that other cashiers had been hired; 22
that she asked if she were fired and he said that she was not ; that she called the store
thereafter and was told that the Respondent still could not use her services ; and that
on March 9 , when she attempted to vote at the election, her vote was challenged on
the ground that she had been justifiably discharged . Turner further testified, and it
is found, that she had signed a union card , attended union meetings , and wore a
union button in the store while talking to Weaver . According to Brooks ' credited
testimony , Turner's name was on the list she had compiled for Weinacker of employ-
ees who she had determined were in favor of the Union.
On the first day of the hearing Weaver was called by the General Counsel as a
witness under Rule 43(b) of the Federal Rules of Civil Procedure , and on that
occasion Weaver testified that he had discharged Turner for being uncooperative,
for failing to carry out instructions , and for refusing to give him the keys to the
cash register in a very arrogant way unless she was given a receipt for them. Turner
testified without contradiction , and it is found , that on Monday, February 10, when
she reported to work she had only a $100 bank instead of the usual $3,000 which
was given her as head cashier; that when she checked out that day and cleared the
register with her key, Weaver asked to see her keys and said he did not know she
had them; that he said he would take them from her and she replied that she wanted
a receipt for them; that he threw the keys down on the counter before her and said
he would get a receipt for her. On the fourth day of the hearing when Weaver was
called to testify by Respondent and was questioned as to the personnel action taken
with respect to Turner , he testified that, sometime after she had been away from
work because of the injury to her eye , "I told her that we did not need her and that
I would notify her if we ever needed her ." (This would tend to corroborate Turner's
testimony that, on or about February 28, Weaver told her that she had not been
fired. ) At that time he was asked whether he recalled testifying that Turner was
discharged because of her arrogance with respect to the keys . He stated that he
did, and when asked whether he was changing his testimony , he answered that he
was not. Therefore , it is concluded that Respondent considered Turner as discharged
on February 10, 1964, and that she was, in fact, discharged on that date . This is
further supported by the fact that grocery cashiers were hired on February 28 and
March 5 instead of permitting Turner to return to work.
In view of the fact that the record discloses that Respondent had knowledge of
Turner's prounion sentiment by reason of her union button and the fact that her
name appeared on the list of prounion employees compiled for Weinacker, it is
concluded that she was discharged on February 10, 1964, according to Respondent's
plan to rid itself of union adherents, in violation of Section 8(a)(1) of the Act, and
z Grocery cashiers were hired , according to the payroll records , on February 22 and
28 (the approximate date Turner sought to return to work ) and on March 5.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the reason for her discharge advanced by Weaver was merely pretextual. The
pretextual character of his reason is supported by the credited testimony evidencing
the facts that Weaver planned to, and did, find excuses to discharge union adherents.
Sometime in August 1964, Turner received an offer of reinstatement from Respond-
ent which General Counsel concedes was a valid offer, and she was reinstated on
August 13, 1964.
4. Discharge of Burl Dock
Burl Dock, after having been employed by Respondent continuously from Octo-
ber 1958, was discharged on February 15, 1964, by Weaver. Dock testified as fol-
lows to his job duties:
Well, when I wasn't driving a truck I was working in the warehouse, or at the
grocery store, stocking shelves, packing bags, or cleaning up. Something like
that. Picking up bottles, anything that came along.
Dock had signed a union card and had attended union meetings. His name was
among those on the aforementioned list compiled by Brooks for Weinacker of
employees who, she had determined, were union adherents. It was found herein-
above that Dock had been unlawfully interrogated during the month of January by
Weaver, who asked him if he had been passing out union cards. In view of the sur-
veillance of at least one union meeting and the presence of Dock's name on Brooks'
list, it is concluded that Respondent had knowledge of Dock's union adherence, and
it appears he was suspected of passing out union cards.
Weaver testified that he discharged Dock because he "was a truckdriver and we
dispensed with the job." Dock testified that Weaver said to him that Weinacker
"wanted to cut down expenses, and he had to let me go ... that he hated to do it."
Although the record does not show that another truckdriver was hired, the payroll
records disclose that, during a period of approximately 2 weeks spanning the date
of Dock's termination, there were at least four persons hired for the grocery depart-
ment to which Dock was assigned, and one person for the "soda" department, to
perform jobs which Dock performed when not driving a truck.23 It is inferred from
this that, had not Respondent wanted to get rid of Dock because of his union adher-
ence, he would have been detailed to performing work as bagboy or porter, particu-
larly in view of his long tenure of employment.
Therefore, it is concluded from the above evidence that Dock was discrimina-
torily discharged in violation of Section 8 (a) (3) and (1) of the Act.
5. Discharge of Harry Wright
Harry Wright, whose job was that of receiving clerk, was discharged on Febru-
ary 25, 1964, by Weaver. Respondent contends that Wright was a supervisor within
the meaning of the Act. It appears that it was determined in the representation pro-
ceeding that Wright was a supervisor, and Respondent contends that his status should
not be relitigated in this proceeding. It is concluded that the finding with respect to
Wright's supervisory status in the representation proceeding is not binding in this
unfair labor practice proceeding, in the particular circumstances which exist in this
case.24
It appears that Weaver had represented at the representation hearing on Jan-
uary 20, 1964, that Wright had the authority to hire and fire. However, Brooks and
York, Wright's immediate supervisor, testified that Wright did not have such author-
ity. York further testified that Wright had no authority over Williams, who worked
on an average of 1 to 11/2 hours a day with Wright and was the only employee who
worked with Wright to some appreciable extent. Williams testified that Wright did
not give him instructions as to what to do. Furthermore, York testified that after
the representation hearing Weaver asked him if Wright had the authority to hire
and fire and he told Weaver that he did not have such authority. Wright testified
that after the hearing, York came to him and asked him if he knew that he was a
manager; that he asked, "Manager of what?"; that York said, "You can hire and
fire now"; that he then said, "I guess I can fire W. J. [Williams] and hire him back
then" and that York laughed; that York explained that Weaver had just come back
Four bagboys were hired during the said 2-week period, one on February 7. two on
February 14 (the day before Dock was discharged), and one on February 21. In addi-
tion, a porter was hired for the "soda" department, apparently on a part-time basis, on
February 17.
24 The issue was not fully litigated in the representation proceeding and the finding
therein was based merely on a misrepresentation of fact.
WEINACKER BROTHERS, INC. 473
from the "meeting" (representation hearing) and wanted to know if Wright could
hire and fire; that he told Weaver he could not; and that Weaver said, "We're telling
you he now can hire or fire." Wright testified that York was smiling when he
related the above to him. Williams testified that Wright joked with him about hav-
ing the authority to hire and fire one man, Williams. Dock, who occasionally worked
in the warehouse with Wright, testified that he was never told that Wright was his
supervisor, and that Wright did physical work. The above testimony of Brooks,
York, Williams, Wright, and Dock was uncontradicted and is credited.
Wright, who was hired in August 1963 at $60 a week, was raised to $75 a week
in November 1963, as pointed out by Respondent in its brief. However, it does not
appear that a weekly salary of $75 could have been considered by Respondent to
be one of the indicia of a supervisory position, since it contended that Tew, who
received $100 a week, was not a supervisor. From the above credited testimony it
is concluded that Weaver's statement at the representation hearing of Wright's author-
ity to hire and fire was a misrepresentation of fact, and that Weaver attempted to
remedy his misrepresentation by subsequently conferring on Wright a token of such
supervisory authority. There is no showing that Wright ever exercised any of the
authority attributed to supervisors. Therefore, it is concluded that Wright was not
a supervisor within the meaning of the Act.
Weaver testified that he discharged Wright to cut expenses. Wright testified with-
out contradiction, and it is found, that when Weaver told him he was discharged, he
asked for the reason and Weaver said, "Well, it's just one of my jobs"; and that he
asked Weaver if he had someone to replace him and that Weaver said he did. The
record discloses that Wright was replaced the day after his discharge by a new
employee, Wilburn Elliotte, at a salary of $60 a week.
Respondent clearly had knowledge of Wright's adherence to the Union. Wright,
who had signed a union card and attended union meetings, had worn a union button
at work. Furthermore, Wright's name was on the aforementioned list which Brooks
compiled for Weinacker of union adherents. In addition, Wright testified, without
contradiction, and it is found, that he had a conversation with Richardson and Chail-
lot at the time they were engaged in surveillance of a union meeting, and invited
them to come into the meeting. Moreover, it appears that after Wright had sent a
union card to Dailey through Williams, sometime in January, Weaver asked him if
he had been passing out cards and that Weaver told him that Brooks had said he
had been passing out cards; that Weaver then confronted him with Brooks and asked
her whether or not she did not say that Wright had been passing out cards; that
Brooks stated he gave one to Dailey; that he admitted that he had, and explained
that it was one he did not need; and that Weaver replied, "Well, that's soliciting for
the Union."
In view of the above, and of the aforementioned evidence that Respondent
intended to and did find excuses to rid itself of union adherents, it is concluded that
Weaver's reason for discharging Wright (to cut expenses) was merely pretextual,2°
and that Wright was discriminatorily discharged in violation of Section 8(a)(3) and
(1) of the Act.
6. Discharge of W. J. Williams
Williams had been in the employ of Respondent from March 1957 until his
employment was terminated on April 18, 1964. Williams' immediate supervisor at
the time of his discharge, was Livears Chavers, manager of the grocery department
in which Williams worked as stock clerk. Chavers testified that he discharged Wil-
liams because he "goofed off" on whatever job he was placed, and that he, Chavers,
had no knowledge of Williams' union adherence at the time of his discharge. It is
noted that Chavers entered the employ of Respondent on April 6, 1964, so that he
had, at the most, only 12 days in which to observe the work performance of Wil-
liams, who had been in the employ of Respondent for over 7 years and was a "good
worker," according to York, the former manager of the grocery department.
Williams testified that, when Chavers notified him of his discharge, Chavers said
that he was doing something he hated to do, that he had nothing against him or his
work, that he was a good worker but that he had orders to discharge him, and that
Chavers offered to help him get another job. Essentially Chavers' testimony con-
stituted a denial of Williams' testimony of their conversation at the time of Wil-
liams' discharge. However, Williams' testimony is credited, not only because he
was a more convincing witness than Chavers, but also his testimony conformed to
facts established in the record such as, among others, Respondent's plan to get rid of
"5 The cut in expenses amounted to $15 a week, the difference between Wright's salary
($75) and that of his replacement ($60).
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union adherents, the unlikelihood that Chavers had had sufficient opportunity to
observe Williams' work performance, and that management was looking for an
excuse to discharge Williams.26
It is concluded that Respondent had knowledge of Williams' union adherence, not
only by reason of the fact that he was a union observer at the election, but also by
reason of the following credited testimony: Weaver had seen Williams wearing a
union button at the store and had asked him to remove it; Carlos Harris testified
that Weaver had stated to him he knew Williams was passing out union cards; Wil-
liams' name was on the aforementioned list compiled by Brooks of union sympathiz-
ers; Williams was seen by Richardson and Chaillot when they were engaged in sur-
veillance of a union meeting; Williams was asked by Weaver to withdraw his union
card, which he refused to do; and Matthews testified that Chaillot stated that she
knew Williams was one of the "organizers of the Union "
In view of the above, it is concluded that Williams was discriminatorily dis-
charged in violation of Section 8(a)(3) and (1) of the Act. This conclusion is
further supported by the uncontradicted and credited testimony of Dortch that
Tingle, an admitted supervisor, told him (Dortch) that he would be "laid off" for
the same reason that Williams was, that is, "on account of voting for the Union "
It was stipulated by all the parties that some period after his discharge Williams
received a valid offer of reinstatement from Respondent.
7. Discharge of Cleveland Dortch
Dortch was in the employ of Respondent from 1957 until his discharge on
April 24, 1964, except for a break of 3 months during the year 1963. Weaver testi-
fied that Dortch was discharged by the manager of the service station, Tingle, and
that he understood the reason therefor was that Dortch took too much time for lunch.
Weaver further testified that he had no knowledge of Dortch's union adherence
Dortch testified, without contradiction, and it is found, that on the Monday pre-
ceding his discharge (which occurred on Friday of the same week), Tingle called
him into his office and said that he would give him some information if he "prom-
ised not to tell"; that he told him (Dortch) that he (Tingle) was instructed to have
Dortch "off the payroll" by Friday; that the instructions were from Weaver and were
relayed by Richardson; that Tingle told him that he said to Richardson that he did
not have any reason for taking such action; that she told him that he "would have
to find something"; that he (Dortch) asked Tingle why he was being discharged and
that Tingle answered "for the same reason that W. J. [Williams] was laid off, on
account of voting for the Union." Dortch further testified without contradiction,
and it is found, that, during the same conversation, Tingle said that Weaver had
told him Respondent had appealed for another election 27 and was "getting rid of
the people they thought had voted" for the Union; and that Tingle warned him not
to say anything to management or he (Tingle) "would lose his job," and asked him
to continue to work until Friday. To continue with Dortch's uncontradicted and
credited testimony, on Friday, Tingle told him that he was letting him go in accord-
ance with his instructions from Weaver and that he was assigning as a reason that
he had come in "5 or 10 minutes too late on a lunch break" so that "it wouldn't hurt
him."
Williams testified, without contradiction, and it is found, that in the early part
of the week in which Dortch was discharged, Tingle told him (Williams) that he
(Tingle) had received word to get rid of Dortch by Friday, that he hated to do it,
that he had already told Dortch about it, and that Tingle stated, "The onliest thing
I can think of is to have him come in late after lunch." Although Weaver testified
that he had no knowledge of Dortch's union adherence, this testimony is not cred-
ited. It is inferred that Respondent had knowledge from the fact that Dortch had
attended union meetings and that Respondent had engaged in unlawful surveillance
thereof. Furthermore, Dortch was one of the employees whose name was on the
28 Williams testified without contradiction to a conversation which he overheard about
2 weeks prior to his discharge, as follows:
Mrs. Richardson asked Mr Tew if they had any way that "we could get rid of
W. J. [Williams] " And he said, no, he didn't know any. She spoke and said,
"Well, if he will do something, we can get rid of him." And he said, "Well, he's not
going to do that"
This testimony is credited
27 On April 25, 1964, Respondent filed a request for review of the Regional Director's
Supplemental Decision and Certification of Representative.
WEINACKER BROTHERS , INC. 475
aforementioned list of union sympathizers compiled by Brooks. In view of this
inference and of the uncontradicted and credited testimony 28 with respect to the
statements Tingle made to Dortch and Williams of the reason for Dortch's discharge
and of instructions to find an excuse for taking such action, it is concluded that the
reason assigned for Dortch's discharge was merely pretextual and that Dortch was
discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act.
It was stipulated by the parties that, sometime subsequent to his discharge,
Respondent extended to Dortch a valid offer of reinstatement.
8. Discharge of Elizabeth Boyette
According to the payroll records, Boyette was employed as a grocery cashier from
December 10, 1963, to April 29, 1964. Starting with the week after the election,
Boyette's workhours were appreciably reduced on successive weeks as follows: to
35 hours, 34 hours, 211/2 hours, 37 hours, 17 hours, and 24 hours, and she worked
6 hours during the last 2 days of her employment, April 27 and 28. The General
Counsel contends that the reduction in her workhours was in violation of Section
8(a) (3) and (1) of the Act, and that she was discriminatorily discharged on April 29.
Boyette testified without contradiction, and it is found, that when Tew or Chavers
told her that she was being cut down to 20 or 24 hours about the end of March, she
asked Chavers how he expected her to live on such reduced hours and that Chavers
replied that she "was so bright and intelligent" that she "could find a job anywhere."
The payroll records indicate that grocery cashiers were hired on February 22 and
28, March 5, April 20 and 24, and May 1, 1964, and a part-time cashier was hired
on April 3.
Both Weaver and Chavers testified that they had no knowledge of Boyette's union
activity. This testimony is not credited. According to Boyette's credited testimony,
she had signed a union card and attended union meetings. She further testified
without contradiction, and it is found, that she wore a union button at work and
Weaver spoke to her about it. According to her uncontradicted and credited testi-
mony, she was interrogated with respect to her union adherence by Weaver in
December and by Tew shortly before the election. In view of the interrogation of
the testimony about her button and of the surveillance of union meetings, it is
inferred that Respondent suspected or had knowledge of Boyette's union adherence.
Considering the number of grocery cashiers who were hired shortly before and dur-
ing the time her workhours were reduced, it is concluded that there was no eco-
nomic need for reducing her workhours, and that such action was taken for the
purpose of encouraging her to terminate her employment because of her known or
suspected adherence to the Union, in violation of Section 8(a) (3) and (1) of the
Act.
On April 29, Boyette reported to work in her then capacity as relief cashier.
Betty Dailey testified that Boyette was 10 to 12 minutes late and Chavers testified
that she was 45 minutes late. Dailey testified, without contradiction, and it is found,
that Boyette explained to Chavers why she was tardy, that Chavers said her expla-
nation was not a good one and walked away, and that Boyette left shortly thereafter;
that sometime later Chavers asked her where Boyette had gone and she replied,
"She quit. You fired her," and that Chavers replied, "No, I meant for her to go on
to work and work." It is not clear whether his action could or could not reason-
ably have been understood by Boyette as a discharge. Boyette testified that he did
not give her money with which to open her register. On the other hand, Chavers
testified that the money was in the register. It is not necessary to resolve this issue,
in view of Boyette's uncontradicted and credited testimony that the next day she
saw Chavers, that he asked her where she had gone, to which she replied that she
thought she was fired, and that he told her that "It was just as well because they
would have had to let [her] go anyway." It is concluded that if Respondent had not
wished to rid itself of Boyette, Chavers could have at that time corrected her impres-
sion that she had been fired and arranged for her to continue work. His statement
that they would have had to let her go anyway is contradicted by the fact that a
cashier was hired 2 days later, on May 1.
Therefore, it is concluded that Respondent seized upon the misunderstanding which
occurred on April 29 as a basis for the pretended understanding that she had quit.
It is further concluded that she was discriminatorily discharged in violation of Sec-
tion 8(a) (3) and (1) of the Act.
28 Tingle was not called as a witness.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Discharge of Lorenzo Matthews
According to the payroll records, Matthews was in the employ of Respondent from
1953 29 until his discharge on May 2, 1964, and his job classification was that of
porter in the drug department. It appears that, although he worked primarily in
the drug department, he performed other miscellaneous duties such as driving a truck.
Weaver testified that Matthews was discharged by Chaillot, manager of the drug
department, and that she told him (Weaver) that Matthews did not do his job well.
Weaver further testified that he never knew Matthews belonged to the Union Chail-
lot testified that the reasons for Matthews' discharge were that he was not doing his
work, he had passengers in his truck, was late several times, that she asked him to
stay away from the service station because she had been told he had been in a fight
there,30 and that he was asked to stay out of the warehouse, but kept going back.
She further testified that Matthews had been coming in late for 6 months prior to
his discharge and that she had mentioned it to him several times (but she could not
remember the last time she mentioned it to him before his discharge).
According to Matthews' testimony, which is credited, when Chaillot notified him
of his discharge, she told him she was going to have to let him go, and it is inferred
that she indicated that it was by Weaver's orders; 31 Chaillot told him he should not
have any trouble finding a job and offered to give him a reference; he was never
criticized for his work, for coming in late, or for spending too much time at the
service station; and his duties required him to go to the service station. Matthews
admitted that he did have members of his family in the truck in September 1963,
but testified, which testimony is credited, that Chaillot asked him who they were,
that he told her, and that she said nothing more about it. Weaver testified that he
saw a lady in Matthews' truck in December 1963, which Matthews denied. It is not
necessary to resolve this credibility issue for the reason indicated below.
It is concluded that Respondent had knowledge of or suspected Matthews' adher-
ence to the Union. According to further credited testimony of Matthews, in Decem-
ber 1963 Chaillot "started cursing" him and told him she knew he was passing out
union literature and he admitted that he offered it to somebody but "they didn't take
it"; in January Chaillot interrogated him as to how he would vote in the election;
in March Chaillot accused him of being a union organizer; and Matthews had signed
a union card, had attended union meetings ,32 and had worn a union button at work.
Chaillot was not a convincing witness as to her reasons for discharging Matthews.33
As to his coming in late, although she claimed that she had mentioned his tardiness
to him several times, she could not remember the last time she mentioned it to him
before he was discharged, so that it does not appear that an incident of tardiness
precipitated the discharge action. Even if Weaver's testimony were credited that he
saw a passenger in Matthews' truck in December (which Matthews denied), the
incident occurred 5 months prior to the decision to discharge him, and, therefore,
it is concluded, was too remote in time to have been a reason for the discharge. It
appears that the order that he stay out of the warehouse was given to him some-
time before the beginning of 1964. There is no evidence of any instance when he
was reprimanded for not doing so thereafter and Matthews' testimony was credited
that he was never criticized for his work. As to the claim that he was not doing
29 This might be an error since Matthews testified he started in 1956 and Chaillot that
he had been in Respondent's employ about 7 years However, it is not necessary to make
a finding of the date his employment began.
11 Other than this testimony there is no evidence that he did get into a fight Matthews
denied that he was ever in a fight at the service station, and, in view of the hearsay
nature of the testimony of Chaillot, Matthews' denial is credited.
31 His testimony was as follows
. , she says, "I will have to let you go " She says, "You been expecting this "
Well, I didn't say anything so she tell me, she say, she started using the pronoun
he, she said, "He told me that I would have to let you go" and then she said, "He, she
said you came in late a couple of mornings and" she said he, she said "He said you
caused confusion at the service station."
Q. Did you ask her who he was?
A. No, I took it for granted who he was
S2 Chaillot was one of the supervisors who engaged in unlawful surveillance of em-
ployees' attendance of a union meeting.
33 As indicated hereinabove in considering the testimony with respect to her conduct
found violative of Section 8(a) (1) of the Act, Chaillot was not an impressive witness.
WEINACKER BROTHERS , INC. 477
his work well, this testimony was not convincing. It is inferred that he would not
have been retained in Respondent's employ for 7 or more years if he were not a
good worker.
Dortch testified without contradiction, and it is found, that Tingle told him within
the week prior to Dortch's discharge that Matthews would probably be the next to
go because of his union activity, and that Tingle also told him that Weaver "was
trying to get something on" Matthews and to warn Matthews.
In view of the conclusion that Respondent suspected, or had knowledge of, Mat-
thews' adherence to the Union, of Dortch's uncontradicted testimony that Tingle
told him Weaver was looking for an excuse to discharge Matthews because of his
union activity, and of the unconvincing character of the testimony of Chaillot as to
the reasons for discharging him, it is concluded that the reasons she advanced were
pretextual and that Matthews was discriminatorily discharged in violation of Section
8 (a) (3) and (1) of the Act.
F. Discriminatory reduction in workhours of Harris and Smith 34
According to a joint exhibit of the parties, the workhours of Jack Smith were
reduced, starting at the end of April, from 44 hours to 30 hours for 2 weeks, and
then to 24 hours (except for 1 week of 20 hours) up to the time of the hearing, and
that Harris' workhours were reduced, starting at the same time, from 44 hours a
week to 32 hours for the first week, to 30 hours the second week, and then to 24
hours a week (except for 2 weeks in which he worked 20 pours) up to the end of
his employment (the week of July 19, 1964).
According to the payroll records, Donald Harris entered the employ of Respondent
in February 1959, and had the job classification of stockboy and bagboy in the grocery
department. Harris had worked as a stockboy for approximately 2 years until he
was transferred to the job of bagboy about the time Respondent started reducing his
workhours. He testified, and it is found, that when his workhours were reduced to
24 hours a week, he asked Chavers the reason for it and received the answer, "You
know why." Harris further testified, and it is found, that he had signed a union card,
attended union meetings, and wore a union button which was seen by Weaver.
According to the credited testimony of Carlos Harris, Weaver stated to him, in the
course of interrogating him about the Union, that Donald Harris was passing out
union cards. According to the credited testimony of Matthews, Chaillot named
Donald Harris as one of the organizers of the Union. Donald Harris was one of
those named on the aforementioned list compiled by Brooks of employees she had
determined were in favor of the Union.
Jack Smith who entered the Respondent's employ in January 1961, had worked
exclusively as a bagboy. Smith testified, and it is found, that he had signed a union
card, attended union meetings,35 and served as a union observer at the election (on
March 9).
It is concluded that Respondent suspected or had knowledge of the union adherence
of both Harris and Smith by reason of the foregoing testimony. Although Chavers
testified that he had no knowledge of Harris' and Smith's union activities at the time
he cut their workhours, this testimony is not credited. Chavers testified that, subse-
quent to the time he started the reduction of their workhours and to the discharge of
Williams (on April 18), he was told by Weaver to keep Harris and Smith on the pay-
roll "because of their union activity." There is no explanation of how Respondent
acquired knowledge of their union activity at this late date. In view of the above
credited testimony, it is concluded that Respondent was in the possession of such
knowledge before it took action to reduce the workhours of Harris and Smith.
It is concluded that the reduction in the workhours of Harris and Smith was
because of their adherence to the Union, in reprisal therefor,3° or in an attempt to
encourage them to quit Respondent's employment. Although Chavers testified that
the reason for the reduction in their hours was because of their "refusal to work" and
in order to achieve a reduction in the payroll, it is noted that neither he nor the two
employees testified that he stated to them as a reason for the reduction of their work-
hours their refusal to work, and there is no evidence that they were ever reprimanded
for their work performance. Furthermore, the second reason assigned, reduction in
3' It was found, hereinabove, that, prior to their discriminatory discharges, the work-
hours of Burgess and Boyette were unlawfully reduced.
35 As found above, Respondent engaged in unlawful surveillance of the attendance of
employees at union meetings.
36 As found above, Brooks threatened that Weinacker would hire more people and reduce
workhours before paying union wages.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll, is not supported by the record. The payroll records disclose that Respondent
had numerous opportunities to give Harris and Smith full-time employment instead
of hiring additional people 37
Therefore, it is concluded that the reasons assigned for the reduction in the work-
hours of Harris and Smith were merely pretextual and that said reduction was dis-
criminatorily motivated in violation of Section 8 (a) (3) and (1) of the Act.
G. Discriminatory denial of dining and restroom facilities
Williams testified that he and other Negro employees customarily had lunch in the
kitchen and used the kitchen restroom; that sometime after the union organizational
campaign started, Richardson stated to him, "No union employees allowed in the
kitchen"; and that when he asked Weaver about it later, Weaver said "he had no
business being in the kitchen whatsoever," that he should use the restroom at the
service station. Matthews testified that, in January, Richardson advised him that he
could not use the kitchen or restroom off the kitchen and when he asked why, she
replied, "Ask Mr. Taggart." This undoubtedly was a reference to Clifford Taggart,
one of the union officials, who was active in organizing the employees.
There is no evidence in the record which would disclose a reasonable basis for the
denial of these facilities to the employees who had previously followed the custom of
using them. In view of this and the above testimony which was not contradicted 38
and is credited, it is concluded that the use of the said facilities was denied to certain
employees for discriminatory reasons, as a reprisal for their union adherence, in vio-
lation of Section 8 (a) (3) and (1) of the Act.
H. Respondent's refusal to bargain in good faith
1. The contentions of the parties
General Counsel contends that Respondent violated Section 8(a) (5) and (1) of the
Act by the following conduct:
(a) The failure of Respondent to meet with the Union subsequent to the Union's
certification on April 20, 1964, from that date until August 11, 1964.
(b) The failure of Respondent to furnish information requested by the Union.
(c) Respondent's unilateral changes in certain terms and conditions of employment
of employees in the unit without notification or bargaining with the Union.
(d) General bad faith on the part of Respondent in initially failing to meet with
the Union as certified bargaining representative and then in meeting with the Union
and failing to bargain in good faith.
Respondent contends "that the record herein consistently establishes that the
general counsel and the charging parties have not sustained their burden of proof
that the Respondent `refused, and continues to refuse, to bargain collectively with
the Union .......
There is no dispute with respect to the facts relevant to the issues raised by the
above contentions; the dispute is with respect to what inferences may appropriately
be drawn from said facts.
sr Following is a list of people who were hired between April 23 and June 25, 1964, for
the job classification of bagboy, stockboy, or both:
Name Classification
Date
hired
If ter-
minated,
date
Elbert E Black ------------------------- Stockboy---------------------------- Apr. 23 May 9
Pat A. Tate----------------------------- Bagboy---------------------------- May 6 June 10
David E Harvell--------------------_-- Stockboy---------------------------- May 18 June 30
Randall0 Chiles--------------------_- Bagboy----------------------------- May 25 June 10
Edward M Smith-----------------------
Ronnie M Wade-------------------------
Stockboy----------------------------
Bagboy (part time) ---------------
June 1
June 4 June 10
Edward T. Corcoran-------------------- Stockboy---------------------------- June 11 Aug. 1
Roland S. Hinds------------------------- Stockboy and bagboy--------------- June 11 Aug 22
Robert R Strata------------------------ Bagboy----------------------------- June 11 Aug. 15
Roger J Morgan------------------------- Stockboy---------------------------- June 22 June 23
Timothy 0. Gard----------------------- Stockboy and bagboy--------------- June 25 July 6
38 Richardson was not called as a witness.
WEINACKER BROTHERS, INC. 479
2. Summary of events relating to the bargaining
On April 16, 1964, the Union was certified as the collective-bargaining representa-
tive for the unit found appropriate hereinabove.
On April 20, the Union wrote Respondent requesting certain information with
respect to seniority, job classifications, and rates of pay, and suggested April 27 as a
date to begin negotiations.
By letter dated April 24, Respondent's attorney advised the Union that the Respond-
ent was requesting a review of the Regional Director's decision and certification of
the Union, and that "accordingly" he did not "feel that it would be appropriate for
negotiations to begin."
On April 25, Respondent filed a request for review of the Regional Director's
Supplemental Decision and Certification of Representative.
Near the end of April, Respondent reduced the workhours of Harris and Smith
without prior notification to, or consultation with, the Union.
On May 22, the Board denied Respondent's request for review.
By letter dated May 25, the Union again requested of Respondent the aforemen-
tioned information and suggested June 1 as a date to start negotiations.
On June 1 employee Charles H. Weekley's salary was increased from $50 to $55 a
week, and on June 30 his rate of pay was changed to $1 an hour. Respondent did
not give prior notice to the Union of either of said actions nor did it consult the
Union with respect thereto.
According to a stipulation of the parties, from June 1 to July 15, "there were
numerous phone calls initiated by Otto Simon [attorney for the Union], to Mr. Nettles
[attorney for Respondent] requesting and, actually, demanding times for meetings for
negotiations on the part of the Union"; and in the course of their telephone conversa-
tions, Nettles stated that he was unable to meet with the representatives of the Union,
because he was representing his brother in an election contest case (which ran from
June 2 until the middle of July), and was attending a reserve military training camp
(between June 20 and July 4), and Nettles also stated, "I have handled this from
the very beginning. Mr. Weinacker wants me to continue handling it . . . and Mr.
Weinacker wants me to meet [with the Union] instead of anyone else."
Between June 1 and July 15 the Union communicated directly with Respondent
requesting a meeting to negotiate a contract by the following actions: On June 17
Taggart made such a request of Weaver and was told "to take it up with the Union's
attorney"; on June 22 the Union sent a telegram to Respondent requesting a meeting
on the following morning (and requesting also the aforementioned information) in
reply to which, Respondent sent a telegram, that same day, stating that neither Nettles
nor Weaver was available and advising that "these men" be contacted after July 1; on
June 23, Taggart went to Respondent's store where he met Chavers and informed
Chavers that he was there for the purpose of negotiating a contract with Weinacker
according to the aforementioned telegram the Union had sent on the preceding day,
and was advised by Chavers that he was instructed to tell him to take the matter up
with the Union's attorneys and that there would be no meeting.
On July 21 the Union sent a letter to Nettles requesting a meeting and suggested
that it be "during the week beginning on Monday, August 3, 1964."
On July 27 Nettles responded to said letter, setting August 11 as a date for the
meeting and stating that an earlier date was not possible because a hearing on an
appeal in the aforementioned election case was set to commence on August 3.
On August 11 the first meeting for the purpose of negotiations was held.39
On August 17 two employees received $5 wage increases and one employee received
a $7.50 wage increase without prior notification to, or consultation with, the Union.
On August 25 a second meeting for the purpose of negotiating was held39
On September 1 the third meeting was held.39 It was at this point that Respondent
complied with the above-mentioned requests of the Union for certain information
relating to seniority, job classifications, and rates of pay.
Also on September 1 employee Forrest A. Dalton's rate of pay was changed from
$75 a week to $1.61 an hour without prior notice to, or consultation, with the Union.
On September 15 a fourth meeting was held.39
During the week commencing September 20, the Union's attorney, Simon, called
Nettles, who informed him that he, Nettles, was to confer with Weinacker on Septem-
ber 28 at which time the whole matter would be reviewed with Weinacker; and asked
him (Simon) to be patient until after that conference.
19 The details of what occurred at the four bargaining sessions are set forth herein-
below in section III, H, 3, entitled "The bargaining".
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 28 Nettles called Simon and informed him there had been a lengthy
discussion with Weinacker, that Weinacker "had not definitely made up his mind"
and asked Simon to be patient, "that he possibly might [make up his mind]."
On September 30 or October 1 Simon called Nettles and asked him if Weinacker
"had made up his mind" and Nettles informed him that Weinacker had not, but that
another conference was scheduled on October 7.
On October 8 Simon called Nettles and was again informed by Nettles that no
decision had been reached.
On October 12 the hearing in this proceeding commenced and on the evening of
that day there was a fifth meeting for the purpose of negotiations, but, due to the
lateness of the day and in order for the parties to have time to prepare for the next
day's hearing, it was agreed that no negotiations be attempted.
3. The bargaining
Following is a summary of what occurred at the four meetings of the negotiators
for the parties, according to the uncontradicted and credited testimony of Clyde C.
Shaver, Jr., International representative of the Union and spokesman for it at the
bargaining table.
a. Fust meeting (August 1l)
This meeting lasted a little over 2 hours. The Union presented its proposed con-
tract and the various provisions were read and discussed as to "meaning and intent."
During the course of the meeting, after it was clear that a provision was fully under-
stood, it was asked by the Union if there could be an agreement on the provision and
Nettles answered that he would rather not agree on anything, that he just wanted to
get the Union's "intent on the language of the contract." Nettles also said that
Respondent would offer some counterproposals at the next meeting.
b. Second meeting (August 25)
This meeting lasted over 4 hours. The parties agreed to go through the provisions
of the contract and where the Company had a counterproposal it would offer it and
the Union would offer any changes if it had any to suggest. With respect to their
discussion of the 40 or more provisions in the Union's proposed contract, contained in
"articles" thereof or in "clauses" (subdivisions of the articles), the results may be
summarized as follows: the Respondent offered 9 counterproposals of which 7 were
accepted 40 by the Union and 2 were rejected; 41 the Union agreed to the deletion of
5 provisions.42 No agreement was reached on most of the provisions in the proposed
contract, and it appears that the only provisions that were accepted by the Respondent
were those consistent with its then policy and practice. The Union asked if the
Respondent had any counterproposals with respect to wages and Respondent's nego-
tiators stated they would submit one at the next meeting. The Union also asked for
counterproposals on such matters as holidays, vacations, arbitration, grievances,
seniority, and checkoff of dues.
c. Third meeting (September 1)
This meeting lasted for approximately 40 minutes. The Union asked the Respond-
ent to "go back through the proposals and see what open articles with respect to which
they could agree" and the Respondent accepted the procedure. The Union asked if
the Respondent had a counterproposal on money. Nettles "explained" the financial
condition of the Respondent and said that all the Respondent could do "was offer
the minimum wage of $1.15 an hour for the employees in the drug, grocery, and
warehouse departments, and $55 a week for filling station employees, with unlimited
90 Among the counterproposals accepted were a workweek of 42 hours instead of the 40
hours proposed by the Union, and a 10-hour workday before overtime must be paid, in-
stead of the 8-hour workday proposed by the Union
4i One of the counterproposals the Union rejected was the counterproposal to article X
concerning seniority, because of the provision in the counterproposal that "The Company s
judgment in these matters shall be final," and because of the refusal of Respondent to
limit loss of seniority due to discharge to discharges "for just cause."
42 Such as the deletion of certain union-security clauses (one of which was to the effect
that Respondent's rejection of applicants for employment would be on a nondiscriminatory
basis with respect to union membership), provision for night pay under certain conditions,
provision for 5 days of sick leave after 1 year's service, and a provision that "each em-
ployee is to punch only his or her timecard as a condition of employment."
WEINACKER BROTHERS, INC. 481
hours." 43 Nettles offered to submit a financial report of the Respondent that was in
the process of being prepared, and Shaver stated that he had no interest in receiving
it since he had information as to accounting practices of the Respondent which would
make the report an inaccurate picture of its financial position. At this meeting the
Respondent also indicated that it would not accept the "checkoff clause" because it
was a "cost item." At the close of the meeting Shaver explained that he "could not
negotiate a contract at just minimum wage an hour with no holiday clauses or vaca-
tion, nor that type of seniority, not that type of contract." It was at this meeting
that the Respondent presented the information concerning seniority, job classifications,
and rates of pay, which the Union had first requested on April 20 and had requested
two more times thereafter (on May 25 and June 22). Apparently, no agreement was
reached on any of the provisions which had been "left open" at the second meeting.
d. Fourth meeting (September 15)
This meeting lasted for approximately 2 hours. The Union asked Respondent if
it had some counterproposals with respect to wages other than the minimum wage
required by law, and one of Respondent's negotiators replied by asking what was the
least amount the Union would accept and stated that "he felt that the other things
would fall in line if they could get an agreement on money." The Union submitted
some figures to which the Respondent's negotiators responded that the proposal would
be too costly to the Company. Respondent submitted a counterproposal with respect
to the grievance and arbitration provisions which the Union refused to accept, most
importantly because it provided that before there could be arbitration, the Respondent
would have to consent to it. At the close of the meeting the Union suggested that
the Respondent's negotiators try to get together on a counterproposal on wages, and
that the Union would be glad to meet with them to discuss "whatever they felt they
could come up with." At the close of the meeting there was some mention of getting
in touch with each other, but no arrangements were made as to a date for a subsequent
meeting.
There were no further bargaining sessions after the fourth meeting. During the
course of the fourth meeting the Union suggested that if Weinacker could meet with
the union representatives, they might be able to work out their difficulties, to which
the representative of Respondent stated that it would be impossible to get Weinacker
to participate in the negotiations. As set forth in the "Summary of Events," after
the fourth meeting Simon, the attorney for the Union, had several telephone conver-
sations with Nettles, attorney for Respondent, in which Nettles asked him to be
patient and told him that he and his associates were conferring with Weinacker and
were hopeful that Weinacker would come to some decuson. The last conversation
was on October 8 (4 days before the hearing commenced in this proceeding), during
which Nettles again inforrned Simon that no decision had been reached by Weinacker.
4. Conclusions
Section 8(d) of the Act defines collective bargaining as, inter aria.
... the mutual obligation of the employer and the representative of the employ-
ees to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder ....
As was pointed out in N.L R.B. v. Kentucky Utilities Company, 182 F. 2d 810, 813
(C.A. 6), "The duty to bargain collectively presupposes negotiations between the
parties carried on in good faith, with a common willingness among the parties to
discuss freely and fully their respective claims and demands and, when they are
opposed, justify them on reason." Although this obligation does not compel either
party to agree to a proposal or require the making of a concession, it does contem-
plate, as the Board and the courts have uniformly held, a willingness to enter the
discussions "with an open mind and purpose to reach an agreement consistent with the
respective rights of the parties." 44 Simply entering "upon a sterile discussion of
43 The minimum required under the minimum wage law which the Respondent put into
effect on September 3 was $115 per hour, and, according to the payroll records, only one
of the employees at the service station at that time was receiving less than $55 a week.
(One received $50 a week, one $55 a week, one $60 a week, and one $70 a week.)
"L. L. htajure Transport Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5) ; see also,
for example, N.L R B. v. Darlington Veneer Company, Inc., 236 F 2d 85, 89 (C A. 4) ;
NLR.B. v. Herman Sausage Company, Inc., 275 F 2d 229, 231-232 (C.A. 5).
796-027-66-vol 153-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-management differences," 45 is not sufficient. The language of the court in
N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134 (C.A. 1),
cert. denied 346 V.S. 887, is applicable to the instant case. The court stated:
... this is not a simple case where the employer has made a clear refusal to
recognize or bargain with the certified representative of its employees. Rather,
it is one where the employer engaged in a lengthy series of bargaining con-
ferences, which got nowhere In such a case the question is whether it is to be
inferred from the totality of the employer's conduct that he went through the
motions of negotiation as an elaborate pretense with no smceie desire to reach
an agreement if possible, or that it bargained in good faith but was unable to
arrive at an acceptable agreement with the union.
Furthermore, in determining whether an employer has bargained in good faith its
bargaining conduct should also be considered in the context of its conduct with respect
to the organization of its employees (in this case, in the context of the unfair labor
practices of Respondent found hereinabove, its manifest hostility to the Union, and
the expressed intention not to accept the Union as the collective-bargaining repre-
sentative of its employees). Exchange Parts Company, 139 NLRB 710, 715.
The Union was certified on April 16. On April 20 it wrote Respondent suggesting
April 27 as a date to begin negotiations. It was not until August 11 that the Respond-
ent's negotiators met with those of the Union. Respondent refused to meet with the
Union during the pendency of its petition for review of the Regional Director's Sup-
plemental Decision and Certification of Representative from April 25 to May 22.4c
When, on May 25, the Union again requested a meeting suggesting the date of June 1,
the Respondent delayed complying with the request for a meeting on the ground
that its principal negotiator (Nettles) was unavailable because of other commit-
ments. This excuse, viewed in context of Respondent's unfair labor practices,
hostility to the Union, and expressed intention not to bargain with the Union, is con-
sidered as part of its pattern of conduct evidencing the intention to evade its statutory
obligation to bargain with the Union in good faith. Exchange Pails Company, supra.
Respondent's delay in furnishing the Union with the information the Union
requested relevant to the bargaining negotiations is further evidence of this pattern
of conduct. The information had been first requested on April 20, and the request was
repeated on May 25 and June 22. It was not furnished until September 1, the date
of the third bargaining session, and there is no explanation for the delay.
Additional evidence of this pattern of conduct was Respondent's failure to notify
or consult with the Union with regard to the reduction in working hours of two
employees and the changes in rate of pay of five other employees.
Finally, its conduct at the bargaining table was not that of a party "with an open
mind and purpose to reach an agreement consistent with the respective rights of the
parties," but rather reduced the bargaining meetings to a "sterile discussion of union
management differences." While on the one hand the Union made concessions to
Respondent by accepting most of Respondent's counterproposals, the Respondent
made no concessions, but only agreed to such provisions as were consistent with its
existing practice and policy. Although the negotiators for both the Union and the
Respondent agreed that "money" was the key to the successful conclusion of the bar-
gaining, the Respondent offered the Union no more than it was required by law to
pay as a minimum wage. While the failure to offer more than the minimum wage
prescribed by law is not per se a refusal to bargain in good faith, the conduct of
Respondent with respect to bargaining about wages indicates a lack of good faith.
At the conclusion of the last bargaining meeting on September 15, the Union
suggested that the Respondent's negotiators try to get together on a counterproposal
on wages, and stated that the Union would be glad to meet with them to discuss
"whatever they felt they could come up with." It appears that Weinacker held the key
to breaking the impasse. However, Respondent's negotiators indicated that it was
impossible to bring Weinacker into the negotiations. It appears that Respondent's
negotiators attempted to persuade Weinacker to grant some concession after the last
bargaining meeting, for on several occasions Nettles asked Simon to be patient, that
he and his associates were conferring with Weinacker and were hoping that Weinacker
would make up his mind. The last meeting was on September 15, and despite at
45 N L.R B. v. American National Insurance Co., 343 U.S. 395, 402.
40 The General Counsel contends that the pendency of Respondent 's petition for review
of the Regional Director's Decision and Certification of the Union did not stay Respond-
ent's obligation to meet and bargain with the Union . There is, however, no need to pass
upon this contention in view of the finding hereinbelow that its conduct after May 22
evidenced a refusal to bargain in good faith in violation of Section 8(a) (5) and (1)
of the Act.
WEINACKER BROTHERS, INC. 483
least two such conferences with Weinacker, apparently up to the date of the hearing
Weinacker still had not "made up his mind." The record clearly established
Wemacker's avowed intention not to accept the Union as the bargaining representative
of Respondent's employees. It is inferred that Weinacker did not have an "open
mind" and a "purpose to reach an agreement consistent with the respective rights of
the parties," in view of the fact that his negotiators did not have the authority to
grant a wage increase and, he, while retaining such authority, refused to meet with the
union negotiators, thus frustrating any meaningful opportunity to bargain on this
crucial point.
Therefore, it is concluded from the totality of Respondent's conduct in relation to
the Union that Respondent was attempting to evade the statutory requirement to
bargain in good faith with the Union, and thereby violated Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occuiring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
In view of the findings detailed above that Respondent engaged in unfair labor
practices, it will be recommended that Respondent be required to cease and desist
from such unfair labor practices and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent did, commencing at least on May 25, 1964,47
unlawfully refuse to bargain in good faith with Local 458, Retail Clerks International
Association, AFL-CIO, with respect to the unit of Respondent's employees described
hereinabove, which is an appropriate bargaining unit, it will be recommended that
Respondent be ordered to bargain in good faith with said Union, upon request, and,
if an understanding is reached, such understanding be embodied in a signed agreement.
Having found that Respondent has discriminated against Burl Dock, Lorenzo
Matthews, Harry Wright, Cleveland Dortch, Marguerite Etheredge, Mildred Turner,
W. J. Williams, Elizabeth Boyette, and Sadie Burgess with respect to their hire and
tenure of employment by reason of Respondent's termination of their employment, it
will be recommended that Respondent be ordered to offer those of them who have
not heretofore received valid offers of reinstatement full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges 48 It will be further recommended that Respondent make
said employees whole for any loss of earnings they may have suffered because of its
discrimination against them by payment of a sum equal to the amount they normally
would have earned as wages from their respective dates of discharge to the respective
dates offers of reinstatement are or were made to them, together with interest thereon
as provided below. The loss of pay should be computed in accordance with the
formula and method prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and the interest, payable in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716, should be computed at the rate of 6 percent per annum on the amount
due in each instance for each calendar quarter (under the Woolwoitli formula)
beginning with the end of the first calendar quarter and continuing with each suc-
ceeding calendar quarter until payment of such amount is properly made.
Having found that Respondent has also discriminated against Elizabeth Boyette
and Sadie Burgess with respect to their hire and tenure of employment by reason
of the reduction in their workhours prior to the time they were discriminatorily dis-
charged, it will be further recommended that Respondent make each of them whole
47 Although it appears that the Union originally requested Respondent to bargain with
it on April 20 and Respondent refused to do so because it planned to and did file a peti-
tion for review of the Regional Director's Supplemental Decision and Certification of
Representative , it is unnecessary to pass upon the question of whether Respondent's un-
lawful refusal to bargain commenced on April 20, rather than the later date when the
Union's request was renewed after Respondent 's petition was denied. The recommended
remedy would not be affected , even if the earlier date were found as the date when
Respondent 's unlawful refusal to bargain commenced.
48 It was found hereinabove that, prior to the hearing in this proceeding , Cleveland
Dortch, Marguerite Etheredge , Mildred Turner , and W. J. Williams received valid offers
of reinstatement.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of earnings they may have suffered because of said discrimination against
them by payment of a sum equal to the amount each normally would have earned as
wages for the hours of work of which they were deprived from the respective dates
their hours of work were reduced to the date of their respective discharges, together
with interest thereon. The loss of pay and interest should be computed in the manner
set forth hereinabove.
Having found that Respondent has discriminated against Jack Smith with respect
to the terms and conditions of his employment by reason of the reduction of his
workhours, it will be recommended that Respondent be ordered to offer him rein-
statement to normal workhours. It will be further recommended that Respondent
make him whole for any loss of earnings he may have suffered because of the dis-
crimination against him by payment of a sum equal to the amount he normally would
have earned for the hours of work of which he was deprived from the date his hours
were reduced to the date of offer of restoration to full employment together with
interest thereon. The loss of pay and interest thereon should be computed in the
manner described hereinabove.
Having found that the Respondent has discriminated against Donald Harris with
respect to the terms and conditions of his employment by reason of the reduction in
his workhours, and it appearing that said employee is no longer in the employ of
Respondent,49 it will be recommended that Respondent be ordered to make him
whole for any loss of earnings he may have suffered because of the discrimination
against him, by payment of a sum equal to the amount he normally would have earned
for the hours of work of which he was deprived from the date his hours were reduced
to the date his employment was terminated, together with interest thereon. The loss
of pay and interest thereon should be computed in the manner described hereinabove.
Having found that Respondent has discriminated against certain of its employees by
denying them the dining and restroom facilities they had customarily used, it will be
recommended that Respondent be ordered to restore to them the use of said dining
and restroom facilities.
Inasmuch as the unfair labor practices committed by the Respondent are of a char-
acter striking at the root of employees' rights safeguarded by the Act, it will be further
recommended that the Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed its employees in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 458, Retail Clerks International Association, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The following is an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees at Respondent's Mobile, Alabama,
retail operation, including office clerical employees and the grocery, produce, meat,
drug, warehouse, and service station departments, excluding employees in the snack
bar, professional employees, watchmen and/or guards, and supervisors as defined
in the Act.
4. Respondent interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act, in violation of Section 8 (a)( I) of the
Act, by the following conduct:
(a) Unlawfully interrogating employees with regard to their own and their fellow
employees' union activities and sentiments.
(b) Threatening to close the store before accepting the Union as the collective-
bargaining representative of its employees.
(c) Threatening to discharge employees for adherence to the Union
(d) Threatening not to hire any employees who are in favor of the Union.
(e) Threatening to reduce hours of work of employees should the Union become
their bargaining representative, rather than to give them full employment at union
scale.
(f) Threatening to engage in, and engaging in, surveillance of employees' protected
activities.
(g) Soliciting employees to withdraw their union authorization cards and helping
them to accomplish such action.
se In the absence of any allegation or contention that Donald Harris was, or should be
considered to have been, discharged for discriminatory reason , no finding with respect
thereto has been made, and consequently there will be no recommendation with respect to
his reinstatement.
WEINACKER BROTHERS, INC. 485
(h) Promising a benefit for withdrawing adherence to the Union.
(i) Prohibiting the wearing of union buttons.
(j) Promulgating and maintaining a rule prohibiting solicitation by employees
on behalf of the Union or with respect to other protected activities in nonworking
areas and duiing nonworking time except on its selling floor.
(k) Enforcing a no-solicitation rule prohibiting solicitation by union officials while
engaging in an extensive antiunion campaign in working areas and on employees'
working time.
(1) Threatening to discharge an employee for responding to a subpena to testify
in a National Labor Relations Board hearing instead of reporting to work.
5. Respondent violated Section 8(a)(3) and (1) of the Act by the following
conduct:
(a) Discriminatorily discharging Burl Dock, Lorenzo Matthews, Harry Wright,
Cleveland Dortch, Marguerite Etheredge, Mildred Turner, W. J. Williams, Elizabeth
Boyette, and Sadie Burgess.
(b) Discriminatorily reducing the workhours of Elizabeth Boyette, Sadie Burgess,
Jack Smith, and Donald Harris.
(c) Discriminatorily denying certain employees the dining and restroom facilities
they had customarily used.
6. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain
in good faith with said Union, commencing on May 25, 1964, as the collective-
bargaining representative of the unit described hereinabove.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions of law, and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the Respondent, Weinacker Brothers, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed under Section 7 of the National Labor Relations Act, as amended,
by engaging in the following conduct:
(1) Unlawfully interrogating employees with regard to their own and their fellow
employees' union activities and sentiments.
(2) Threatening to close the store before accepting the Union as the collective-
bargaining representative of its employees.
(3) Threatening to discharge employees for adherence to the Union
(4) Threatening not to hire any employees who are in favor of the Union.
(5) Threatening to reduce hours of work of employees should the Union become
their bargaining representative, rather than to give them full employment at union
scale.
(6) Threatening to engage in, and engaging in, surveillance of employees' pro-
tected activities.
(7) Soliciting employees to withdraw their union authorization cards and helping
them to accomplish such action.
(8) Promising a benefit for withdrawing adherence to the Union.
(9) Prohibiting the wearing of union buttons.
(10) Promulgating and maintaining a rule prohibiting solicitation by employees
on behalf of the Union or with respect to other protected activities in nonworking
areas and during nonworking time except on its selling floor.
(11) Enforcing a no-solicitation rule prohibiting solicitation by union officials
while Respondent is engaging in an extensive antiunion campaign in working areas
and on employees' working time.
(12) Threatening to discharge an employee for responding to a subpena to testify
in a National Labor Relations Board hearing instead of reporting to work.
(b) Refusing to bargain in good faith with Local 458, Retail Clerks International
Association, AFL-CIO, as the collective-bargaining representative for the following
appropriate unit:
All full-time and regular part-time employees at Respondent's Mobile, Alabama,
retail operation, including office clerical employees and the grocery, produce,
meat, drug, warehouse, and service station departments, excluding employees in
the snack bar, professional employees, watchmen and/or guards, and supervisors
as defined in the Act.
(c) Discouraging membership in said Union, or in any other labor organization of
its employees, by discriminating in regard to their hire and tenure of employment or
any term or condition of employment.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Denying employees dining and restroom facilities they had customarily used
before they were discriminatorily prohibited from using them.
(e) In any other manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to join, form, or assist labor organiza-
tions, including the above-named labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which it is deemed will effectuate the
policies of the Act:
(a) Upon request, bargain in good faith with Local 458, Retail Clerks Interna-
tional Association, AFL-CIO, as the exclusive representative of the employees in the
unit described in paragraph 1, (b), above, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer to Burl Dock, Lorenzo Matthews, Harry Wright, Elizabeth Boyette, and
Sadie Burgess immediate and full reinstatement to their former or substantially
equivalent position, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suffered as a result of
the discrimination against them, as provided in the section of this Decision entitled
"The Remedy."
(c) Make Cleveland Dortch, Marguerite Etheredge, Mildred Turner, W. J.
Williams, and Donald Harris whole for any loss of earnings they may have suffered
as a result of the discrimination against them, as provided in the section of this Deci-
sion entitled "The Remedy."
(d) Offer to Jack Smith immediate and full reinstatement to normal workhours
and make him whole for any loss of earnings he may have suffered as a result of the
discrimination against him, as provided in the section of this Decision entitled "The
Remedy."
(e) Make available to its employees dining and restroom facilities they had cus-
tomarily used before such use was discriminatorily prohibited.
(f) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Recommended Order.
(g) Post at its store in Mobile, Alabama, copies of the attached notice marked
"Appendix." 50 Copies of such notice, to be furnished by the Regional Director for
Region 15, shall, after being signed by an authorized representative of the Respondent,
be posted immediately upon receipt thereof, and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(h) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondent has taken to comply herewith.51
51 If this Recommended Order is adopted by the Board , the words " a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order".
61 If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 15, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, and coerce our employees in the exer-
cise of rights guaranteed under Section 7 of the National Labor Relations Act, as
amended, by engaging in the following conduct:
1. Unlawfully interrogating employees with regard to their own and their
fellow employees ' union activities and sentiments.
WEINACKER BROTHERS, INC. 487
2. Threatening to close the store before accepting the Union as the
collective-bargaining representative of our employees.
3. Threatening to discharge employees for adherence to the Union.
4. Threatening not to hire any employees who are in favor of the Union.
5. Threatening to reduce hours of work of employees should the Union
become their bargaining representative, rather than to give employees full
employment at union scale.
6. Threatening to engage in, and engaging in, surveillance of employees'
protected activities.
7. Soliciting employees to withdraw their union authorization cards, and
helping them to accomplish such action.
8. Promising a benefit for withdrawing adherence to the Union.
9. Prohibiting the wearing of union buttons.
10. Promulgating and maintaining a rule prohibiting solicitation by
employees on behalf of the Union or with respect to other protected activi-
ties in nonworking areas and during nonworking time except on the selling
floor.
11. Enforcing a no-solicitation rule prohibiting solicitation by union
officials while we engage in an antiunion campaign in working areas and on
employees' working time.
12. Threatening to discharge an employee for responding to a subpena to
testify in a National Labor Relations Board hearing instead of reporting to
work.
WE WILL NOT refuse to bargain in good faith with Local 458, Retail Clerks
International Association, AFL-CIO, as the collective-bargaining representative
for the following appropriate unit:
All full-time and regular part-time employees at our Mobile, Alabama,
retail operation, including office clerical employees and the grocery, pro-
duce, meat, drug, warehouse and service station departments, excluding
employees in the snack bar, professional employees, watchmen and/or
guards, and supervisors as defined in the Act.
WE WILL NOT discourage membership in said Union, or in any other labor
organization of our employees, by discriminating in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT deny employees dining and restroom facilities they had cus-
tomarily used before they were discriminatorily prohibited from using them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to join, form, or assist
labor organizations, including the above-named labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL, upon request, bargain in good faith with Local 458, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of the
employees in the unit described above, and, if an understanding is reached,
embody such undersanding in a signed agreement.
WE WILL offer to Burl Dock, Lorenzo Matthews, Harry Wright, Elizabeth
Boyette, and Sadie Burgess immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of earnings they may
have suffered as a result of our discrimination against them.
WE WILL make Cleveland Dortch, Marguerite Etheredge, Mildred Turner,
W. J. Williams, and Donald Harris whole for any loss of earnings they may have
suffered as a result of our discrimination against them.
WE WILL offer to Jack Smith immediate and full reinstatement to normal
workhours and make him whole for any loss of earnings he may have suffered
as a result of our discrimination against him.
WE WILL make available to our employees dining and restroom facilities they
had customarily used before such use was discriminatorily prohibited.
All our employees are free to become or remain members of Local 458, Retail
Clerks International Association, AFL-CIO, or of any other labor organization, or
to refrain therefrom.
WEINACKER BROTHERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396, if they have any question concerning this notice or
compliance with its provisions.
Ref-Chem Company and General Teamsters , Chauffeurs, Ware-
housemen and Helpers , Local 583, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case No. 16-CA-13070. June 25, 1965
DECISION AND ORDER
On February 8, 1965, Trial Examiner W. Edwin Youngblood issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and brief,
and the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent Ref-Chem Company, Odessa, Texas, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.'
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed June 17, 1964,1 by General Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local 583, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Union or the Charging Party, a complaint was issued against the Respondent on
'The telephone number for Region 16, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 335-2145.
1 Unless otherwise indicated, all dates herein are in 1964.
153 NLRB No. 51.