Wilson Furniture Co.

National Labor Relations Board - Board Decisions

Feb 10, 1970

181 N.L.R.B. 54 (N.L.R.B. 1970)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson Furniture Company and Retail Store
Employees Union , Local No 11 , Retail Clerks
International Association , AFL-CIO Cases
7-CA-7230 and 7-RC-9282
February 10, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On October 9, 1969, Trial Examiner Sidney J
Barban issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision The Trial Examiner also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that these allegations be dismissed
Finally, the Trial Examiner found merit in the
Union's objections to the conduct of the election
held on March 6, 1969, in Case 7-RC-9282, and
recommended that the election be set aside '
Thereafter, Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision
and supporting briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the findings"
conclusions, and recommendations of the Trial
Examiner with the following modifications
l The Trial Examiner found that William
Tafelsky was not a supervisor within the meaning of
the Act at all material times We agree We also
agree with the Trial Examiner's finding that
Respondent discharged Tafelsky because of his
activities on behalf of the Union, in violation of
Section 8(a)(1) and (3) of the Act
2 We agree with the Trial Examiner's findings
that Respondent violated Section 8(a)(1) of the Act
On November 14 1969 the Regional Director for Region 7 set aside
the election in Case 7-RC 9282
'Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board s established policy not to overrule a Trial
Examiner s resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products Inc 91 NLRB 544 enfd
188 F 2d 362 (C A 3) We find no such basis for disturbing the Trial
Examiner s credibility findings in this case
181 NLRB No 14
by (1) inquiring as to whether employees knew
anything about the Union, (2) threatening to fire
employees favoring the Union, (3) inquiring into
employee attitudes to the Union, (4) threatening
employees with loss of certain privileges if the
Union came in, and, (5) engaging in, and creating
the impression of, surveillance, including
surveillance at the local Holiday Inn the evening
before the election, when the Union held a final
organizational meeting therein
3 The Trial Examiier recommended dismissal of
the Section 8(a)(5) allegation of the complaint for
the assigned reason that certain of the signed union
authorization cards upon which the General Counsel
relied to establish the Union's majority status were
invalid Specifically, the Trial Examiner held that
the cards solicited by employee Tafelsky could not
be counted toward the Union's majority because,
although Tafelsky was not a supervisor, he had
formerly held a position of "high regard with
management" and the termination of this "high
regard" had not been communicated to the
employees at the time of the solicitations by
Tafelsky, so that the employees had good cause to
believe that he was acting for management As
noted, we agree that Tafelsky was not a supervisor
However, we disagree with the Trial Examiner's
finding that Tafelsky's former position of "high
regard with management" had not been clearly
dissipated when he obtained the employees'
signatures to union authorization cards
Respondent is a furniture retailer, employing 18
unit employees (salespeople, office clericals,
warehousemen, and maintenancemen), as well as 6
supervisors, including Mr and Mrs Leonard, the
owners Tafelsky was hired in May 1963 as a
truckdriver, but became a furniture salesman within
a year During the period January-July 1967, when
the then store manager and his assistant left
Respondent's employ, Tafelsky assumed many of
their responsibilities and duties Thereafter, Tafelsky
left Respondent's employ to enter a hospital and,
upon his release in November 1967, was reluctantly
rehired by Mrs Leonard, but at a reduced salary
Prior thereto, in September 1967, while Tafelsky
was in the hospital, Spurr, an experienced store
manager, was hired by Respondent
Spurr testified that Tafeisky was his "right-hand
man" because the latter had many duties not
entrusted to other salespeople Some of these
responsibilities and duties were buying and pricing
merchandise for Respondent, attending furniture
markets with representatives of management, giving
advice and assistance to other salespeople, arranging
display windows and furniture in the showroom, and
sometimes opening the warehouse on Saturday
mornings to permit the start of deliveries The Trial
Examiner found, and we agree, that most of these
duties devolved upon Tafeisky because he was one
of Respondent's most experienced salesmen, and
that he was not a supervisor within the meaning of
l
WILSON FURNITURE COMPANY 55
the Act since merely holding a position of
responsibility or having important duties not shared
by other employees is insufficient to establish such
status.
In October 1968, Respondent hired John
Hammer, and a month later announced to the
employees that he was the personnel manager. Soon
after being hired, Hammer began assuming many of
Tafelsky's former duties. He took over Tafelsky's
buying and pricing duties, attended the January
furniture market in Chicago in his stead, and
assumed certain personnel functions, such as
scheduling employees' hours. Moreover, when
Tafelsky lost his warehouse keys in January 1969,
he was not given a replacement set by Respondent,
so he must have ceased opening the warehouse at
that time. The Trial Examiner concluded that since
Tafelsky bore no title, and the employees had never
been told that he had supervisory authority over
them, his position of influence over the other
employees at best was equivocal after Hammer's
appointment.
Nevertheless, the Trial Examiner concluded that
when Tafelsky solicited the nine employee signatures
on January 14, 15, and 16, the employees had cause
to believe that he did so as a spokesman for
management. We believe this conclusion is
inconsistent with the above findings and, given the
additional facts that Tafelsky was out of the store
much of the time selling carpets to customers at
their homes and that there was no employee
testimony indicating that they regarded him as a
spokesman for management, we find the
authorization cards solicited by Tafelsky and used to
establish the Union's majority status are valid.
Since Tafelsky signed an authorization card on
January 8, we find that the Union represented 10 of
the 18 unit employees when it first requested
recognition on January 17. The Union also made
written demands for recognition on January 20 and
31, while securing the signatures of three more
employees on January 17 and 27, and February 24,
respectively. Respondent rejected the requests for
recognition and, on February 6, agreed to a consent
election in Case 7-RC-9282, which the Union lost
on March 6, by a vote of 9-7. As noted above, the
Regional Director for Region 7, following the Trial
Examiner's recommendation, set aside the election
on November 14, 1969.
We find that Respondent's extensive violations of
Section 8(a)(1) and (3) could reasonably be expected
to have the effect of undermining the Union's
majority and destroying the conditions necessary to
the holding of a free and fair election. In our
opinion, the unambiguous cards validly executed by
a majority of the employees in the unit represent a
more reliable measure of employee desires on the
issue of representation than would a rerun election.
We conclude that, in order to protect the statutory
rights and interests of employees, to remedy the
violations of Section 8(a)(1) and (3) committed, and
to effectuate the policies of the Act, it is essential
that the Respondent, Wilson Furniture Company, be
ordered to recognize and bargain with the Union as
the statutory representative of its employees for the
purposes of collective bargaining.3 Accordingly, we
find that by refusing to recognize and bargain
collectively with the Union on or after January 17,
1969, Respondent violated Section 8(a)(5) and (1) of
the Act.
AMENDED CONCLUSIONS OF LAW
Delete conclusions (4) and (5) of the Trial
Examiner's "Conclusions of Law" and substitute
therefor the following:
(4) By refusing on and after January 17, 1969. to
recognize and bargain collectively with Retail Store
Employees Union, Local No. 11, Retail Clerks
International Association, AFL-CIO, Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act.
(5) By discharging William Tafelsky for his union
activities Respondent has engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of
the Act.
(6) By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
(7) The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Wilson Furniture Company, Traverse City,
Michigan, its officers, agents, successors, and
assigns, shall take the following action:
1. Cease and desist from:
(a) Discouraging membership in Retail Store
Employees Union, Local No. 11, Retail Clerks
International Association, AFL-CIO, or any other
labor organization of its employees, by discharging,
or in any other manner discriminating against any
employee in regard to his hire, tenure, or any term
or condition of employment.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with the aforesaid Union,
as the exclusive representative of its employees in
the unit agreed to in the consent election agreement
in Case 7-RC-9282, to wit:
All regular full-time and regular part-time
employees employed by Respondent at its stores
'N L R B v. Gtssel Packing Company. 395 U S 575; George A Angle,
d/b/a Kansas Refined Helium Company, 176 NLRB No 115
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located at 123-125 South Union Street and 401 E.
Eighth Street , Traverse City, Michigan , including
salesmen , office clerical employees , warehousemen
and maintenance employees , but excluding
technical employees, confidential employees,
guards and supervisors ( including store managers
and assistant store managers ) as defined in the
Act.
(c) Threatening or engaging in reprisals to
employees if they join or assist a labor organization,
or select a representative for collective bargaining.
(d) Engaging in or creating the impression of
surveillance of the union activities of its employees.
(e) Interrogating employees concerning their
union activities in a manner constituting
interference, restraint, or coercion in violation of
Section 8(a)(1).
(f) In any other manner, interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer William Tafelsky immediate and full
reinstatement to his former or a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination against him,
in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy."
(b) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all the employees in the above-described unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(c) Preserve and make available to the Board or
its agent, upon request, payroll and other records to
facilitate the computation of backpay.
(d) Notify William Tafelsky if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(e) Post at its operations in Traverse City,
Michigan, copies of the attached notice marked
"Appendix A."° Copies of said notice, on forms
provided by the Regional Director for Region 7,
after being duly signed by an authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily displayed.
'In the event that this Order is enforced by a judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the said Regional Director, in writing,
within 10 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations of the Act not specifically found herein.
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT discharge or refuse to employ any
employee because he joins or helps Retail Store
Employees Union, Local No. 11, Retail Clerks
International Association, AFL-CIO, or any other
union.
WE WILL NOT refuse to bargain with Retail Store
Employees Union, Local No. 11, Retail Clerks
International Association, AFL-CIO, as the exclusive
representative of our employees in the bargaining unit
agreed to in the consent election agreement.
WE WILL NOT threaten you with, or inflict reprisals
upon you because you join or assist a labor union
WE WILL NOT spy upon or attempt to watch your
union meetings or any union activities, or try to make
you feel that we are spying upon or watching your
union activities.
WE WILL NOT ask you about your feelings about or
your activities for a labor union , or about the feelings
or activities of other employees for a labor union.
WE WILL NOT in any other way interfere with your
right to-
- Organize yourselves, or form, join or help unions
- Bargain for your working conditions through a
representative freely chosen by a majority of our
employees in an appropriate unit.
- Act together for mutual aid or protection of your
working conditions.
- Refuse to do any or all of these things
WE WILL offer to William Tafelsky immediate and
full reinstatement to his former job, or to a
substantially equivalent job, without loss of seniority or
any other right or privilege and WE WILL make him
whole for any pay or benefits he lost because of the
discrimination against him, with interest.
WE WILL notify William Tafelsky if serving in the
Armed Forces of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
WILSON FURNITURE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
WILSON FURNITURE COMPANY 57
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard before me at Traverse City, Michigan, on June 24,
25, 26, and 27, 1969. The complaint in Case 7-CA-7230
(based upon charges filed by the above-named Charging
Party, herein called the Union, on March 14, 1969),
alleging that the above-named Respondent has engaged in
conduct violative of Section 8(a)(1), (3), and (5) of the
Act, was consolidated with a notice of hearing on
objections filed by the Union to an election among certain
employees of Respondent in Case 7-RC-9282, and issued
on April 24, 1969.
The answer to the complaint admits allegations of the
complaint sufficient to support the assertion of jurisdiction
under the current standards of the Board, and to support
a finding that the Union is a labor organization within the
meaning of the Act, but denies the commission of any
unfair labor practice.
At the outset of the hearing, Respondent moved that
the hearing upon objections in Case 7-RC-9282 be severed
from the hearing upon the complaint, on the basis of the
decision in N.L.R B v Chelsea Clock Company, 411
F.2d 189 (C.A 1). This was denied subject to
reconsideration after study of the briefs herein. This issue
is considered hereinafter.
Upon the entire record in this matter, from observation
of the witnesses, and after due consideration of the briefs
filed by the General Counsel and the Respondent, the
Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
I SUMMARY OF THE FACTS AND ISSUES
The Respondent is engaged in the retail sale of
furniture and related items at two locations in Traverse
City, Michigan However, only one of its stores and its
related warehouse operation is involved in this proceeding
(sometimes referred to herein as "the store"), the other
location being usually manned by only one person,
Charles Phelps, who the parties apparently agree is
manager of that store.
About January -8,,1969, William Tafelsky, who was
employed by Respondent as a salesman , and who
Respondent asserts was also a supervisory employee, had
occasion to talk with Thomas Greilich, an agent of the
Union, about organizing employees of the Respondent.
Shortly thereafter, Tafelsky, with assistance from Greilich,
obtained a number of authorization cards on behalf of the
Union from employees engaged in sales, office, and
warehouse activities at Respondent's operations.
On January 17, 1969, in the afternoon, Greilich and
another union representative went to Respondent's store
where they spoke to Russell Spurr, manager of the store,
concerning recognition of the Union as representative of
Respondent's employees for the purpose of collective
bargaining. When Spurr referred them to the
Respondent's attorney, F. R. Williams, one of the union
representatives then called Williams, stated that the Union
had been designated by a majority of Respondent's
employees on authorization cards, that the Union sought a
meeting to prove this, after which it was requested that
the Respondent recognize the Union and bargain with it
for a collective-bargaining contract. Williams refused the
Union's requests and suggested that the Union file a
petition with the Board for certification as bargaining
representative, which the union agent indicated would be
his probable course of action.
On this same day, Beatrice Leonard, president and part
owner of Respondent (herein referred to as Mrs. Leonard,
in contradistinction to her husband, who is also an officer
of Respondent) called Tafelsky into a conference in her
office, during which she was critical of Tafelsky's
performance of his duties and asserted that he would be
deprived of 'certain privileges and benefits, as discussed in
more detail hereinafter. That same evening, Mrs Leonard
called the sales and warehouse employees together and
briefly spoke to them about the Union Mrs. Leonard
testified that she "simply said I have dust learned that the
union has been in and some of you are for the union. I
just want you to know management knows it, so that you
won't be feeling you have to be secretive about it. Let's
dust have it out in the open." She also stated on
cross-examination that she told the employees that she
didn't want tension in the operation and that they should
"go out after business "'
The following day, January 18 Mrs. Leonard spoke to
Tafelsky again briefly, apparently concerning his union
activities
On January 20 and January 31, the Union confirmed
and repeated in writing its request for recognition as
bargaining agent of Respondent's employees and for
bargaining, which Respondent, by letter dated January 21,
again rejected.
On or about February 4, according to Respondent's
brief, the Union filed a petition for certification in Case
7-RC-9282, and on February 13, the Regional Director
approved an agreement for consent election which had
been executed by the parties about February 6, providing
for an election to be held on March 6.
On February 24, Tafelsky was discharged under
circumstances considered in detail hereinafter.
The results of the election held on March 6, were nine
votes against the Union, with seven votes for the Union,
and (according to the amended tally of ballots) two
challenged ballots, which were not sufficient to affect the
results. As previously noted, the Union duly filed
objections to conduct affecting the results of election upon
which the Regional Director has directed that a hearing be
held before the Trial Examiner.
'Mrs Leonard gave the only testimony concerning this event , and that
was curiously contradictory Thus she first asserted that Spurr did not tell
her that the Union had "brought cards in for quite a while after they did,"
indicating that it was some time after the cards were brought in before she
spoke to the employees, while later she stated that Spurr told her of the
union visit of January 17, late that same evening or the following morning,
whereupon she spoke to the employees at 5 30 that evening, she also stated
that upon learning of the Union's visit she immediately called her attorney
who told her not to talk about the Union , which advice she followed,
further, Mrs Leonard asserted that she spoke to the employees on this
occasion due to "this undercurrent" which she felt, and in order to end "all
this whispering and so on around," while thereafter she testified that she
didn 't remember any whisperings and wasn't particularly aware of any
tensions at the time, finally, though she originally denied that she spoke of
tensions to the employees, she later several times insisted that she had
spoken to them of tensions.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the period beginning about January 17, 1969,
and continuing through the date of the election , General
Counsel contends that Respondent interfered with,
restrained , and coerced its employees in the exercise of
their rights under the Act by various conduct, including
threats and acts of reprisal and discharge because of their
Union activities , coercive interrogation , promises of
benefit , surveillance and the impression of surveillance of
Union activities , and threats that a managerial employee
would quit if the Union were successful , and thereby
violated Section 8(a)(1) of the Act, and interfered with the
election . Because of the conduct of Respondent , General
Counsel alleges that the results of the election should be
set aside and the Respondent be ordered to recognize the
Union as the representative of the employees in an
appropriate unit and to bargain with the Union for the
terms of employment of the employees . General Counsel
finally claims that the discharge of Tafelsky was based
upon his union activities and was thus violative of the Act,
for which a remedy of reinstatement with backpay is
requested.
Respondent denies that it engaged in any unfair labor
practices It is asserted that Tafelsky' s discharge was for
good cause, and that in any event he is not entitled to
protection under the Act because , it is claimed , he was a
supervisory employee. It is further argued that because a
substantial number of the union authorization cards were
secured by Tafelsky, an asserted supervisory employee, the
Union has not been properly designated by an uncoerced
majority of the employees in an appropriate unit The
General Counsel argues that Tafelsky was not shown to
have been a supervisor within the meaning of the Act.
Both Respondent and the General Counsel assert that
the determination of Tafelsky' s status is crucial to the
decision of this matter . General Counsel 's brief is devoted
entirely to that issue as is nearly 50 pages of Respondent's
very detailed 81-page brief.
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Interference With Employee Rights
1. The evidence
Interrogation : ( 1) On January 15, 1969 , during a
coffeebreak outside the store , Tafelsky secured the
signature of Hammer , the store personnel manager, on an
authorization card for the Union . After signing, Hammer
questioned Tafelsky as to whether specific other
employees had signed cards Tafelsky refused to give
Hammer this information , and Hammer became upset at
this. Hammer also made two telephone calls to Tafelsky
in the following week in which he sought to ascertain from
Tafelsky who had signed union cards According to
Tafelsky the two were friends and he visited with Hammer
at his home during this period . These instances of
interrogation were not alleged in the complaint as a
violation , although other activity by Hammer was
Hammer did not testify.
(2) Employee Marie Luehr testified that about the time
"that word was getting around that the store was trying to
organize ," Ardella Hoyt , office manager and treasurer of
Respondent, came to her and "asked me if I knew
anything about the National Retail Clerks Association,
that she would like an answer yes or no, and made it very
emphatically , and I told her that I couldn ' t give her an
answer yes or no." Hoyt then turned and left. This
testimony was not denied by Hoyt.
(3) Employee Adele Frook testified that she had three
telephone calls from Mr . Leonard , an officer of the
Respondent , at home in the evening . All she recalled of
the first was that Leonard called to advise her that
Respondent had let Tafelsky go. During the second call,
Leonard asked if the Union had offered her anything, and
expressed surprise when she stated that the Union had
not. (Frook testified that the Union never discussed wages
in her presence ) Mr. Leonard told Frook that the Union
.had offered another employee a $10 increase . Frook also
recalled , in somewhat uncertain terms, that Leonard asked
her attitude toward the Union , apparently in relation to
the election then pending. There is indication that this
statement was not contained in written statements made
about the time by Frook. She further recalled that in the
second conversation , Leonard stated that Frook should be
aware that Respondent was not running "a peanut stand."
Leonard did not testify . Respondent argues that Frook's
testimony was inherently incredible , in particular, her
assertedly belated recollection that Leonard asked her
attitude toward the Union From my observation of
Frook, and study of her testimony , I cannot say that her
testimony should be discarded as incredible on its face. It
is possible that the Union did not discuss wages in her
presence so far as she can recall , and that an item in her
conversation with Leonard , which she had previously
forgotten or thought irrelevant , was jogged into her
memory by cross-examination . Frook' s testimony was not
particularly impressive , but in the absence of any denial, I
am not prepared to hold it does not warrant credit.
Threats and Acts of Reprisal - It is alleged that Mrs
Leonard, Ardella Hoyt, and John Hammer engaged in
threats and acts of reprisal against employees because of
Union activities These will be considered approximately
in chronological order
(1) Tafelsky testified that on January 17, the day that
the Union representatives visited the store seeking
recognition , Mrs. Leonard called him to her office about
4:30 in the afternoon . He states that when he arrived,
Mrs. Leonard asked him what he wanted ; when he replied
that he didn ' t know what she meant , Mrs Leonard said
"Well, I'm sure you do, aren 't you happy here?", that
Mrs. Leonard continued , saying that Tafelsky was lazy,
lax in his duties, rebellious, belligerent , a drunkard and a
troublemaker ; Tafelsky reminded Mrs. Leonard that since
July 23, 1967, he had had nothing to drink , whatsoever,
and asked why she wouldn ' t leave the past alone; that
Mrs. Leonard replied , "The hell I will"; and at this point,
Mrs. Leonard again asked Tafelsky what he wanted, and
if he wasn 't happy at the store ; Tafelsky replied "No,"
that "[anything ) any person in this organization . . . tries
to do for the benefit of the company you destroy , and why
you continue to harass people is beyond my
comprehension".
Tafelsky testified further that Mrs. Leonard was talking
in a very high tone of voice, gritting her teeth, snapping
her fingers and waving her hands wildly in the air; that
she said , " I'll take care of you before this is done. Seeing
as you have refused the [lobs] of assistant manager and
personnel manager, you will now start punching a
timecard again, and I'm going to lower your salary back
to fifty-five dollars a week . you don ' t get ahead in
this organization . . . I've increased your salary in the
past. I've given you a five hundred dollar bonus. I've paid
doctor bills for your nerves"; that Mrs Leonard
concluded that "if conditions were to improve , she hoped
that her faith in [Tafelsky] would be restored."
WILSON FURNITURE COMPANY 59
In subsequent testimony, Tafelsky stated that Mrs
Leonard told him on this occasion that she was going to
lower his salary because "I was in favor of Unions."
The following day, according to Tafelsky, Mrs.
Leonard called him into her office again, and said to him
that, "well, big shot, seeing as you know it all, best think
things over, stop threatening employees, stop talking to
employees or else." At this point, Tafelsky stated, the
conversation was interrupted, and apparently was not
resumed Tafelsky asserted that he did not know what
Mrs. Leonard meant in stating that he had been making
threats.
Mrs. Leonard, who had been in the hospital in
Minneapolis in the fall of 1968, testified that she returned
to the store briefly in December, and then, 2 days after
her return in January, Spurr and Hoyt both told her that
they had had considerable trouble in keeping contact with
Tafelsky when he was out of the store, that he wasn't
keeping appointments with customers to show carpet
samples, and was spending time over at "the coin shop,"
and that they asked her to talk to Tafelsky.
There seems to be no question but that Tafelsky spent a
considerable part of his time, probably the majority of his
time, selling for Respondent out of the store, particularly
on carpet sales. Respondent did not stock carpet and it is
indicated that Tafelsky took carpet samples to the
customers. Mrs. Leonard testified that Tafelsky could "go
out of the store any time he wanted to, to get any order
there is to get," and that he did not have to consult with
her or with Spurr, but could use his discretion as to how
much time he would spend in the store or out of the store.
Tafelsky did not punch a timecard, as did the other
salesmen. Mrs. Leonard stated that, "He was in the store
and out of the store as he saw fit . . . he didn't punch
any card . . . he was very nice. He let the office know
where he was going and where he could be reached, but
no one kept any account of his time."
Mrs. Leonard states that she called Tafelsky into the
office the same day that Spurr and Hoyt spoke to her
about Tafelsky's absences,' and asked him "what the
trouble was," and that he responded by telling her, during
the course of 15 minutes, "a great many things that was
wrong with me personally, was wrong with the store,"
"how no one had ever been able to get any place there,
and he didn't know why he was ever working there, and
he wished he'd never worked there . . just as fast as he
could talk, all kinds of unkind things." She asserts that
she sat for 15 minutes without saying anything, and then
told Tafelsky that from that point on she wanted him to
punch a timeclock because no one could find his
whereabouts, and that if he continued "acting the way you
are, I am going to put you back to $55 a week." (At that
time Tafelsky was receiving $80 a week plus his
commissions.)
Mrs. Leonard specifically denied that she told any
employee on or about January 17, 1969, that he would
have to punch a timecard because he favored the Union,
or that on January 17 or 18, 1969, the employee would be
discharged if he continued his efforts on behalf of a union.
In response to a specific question, Mrs. Leonard also
stated that she did not tell Tafelsky that there had been
'Respondent's brief asserts that this occurred in "early January," rather
than on January 17, as Tafelsky testified However, though the time "early
in January" was suggested to her, Mrs. Leonard does not seem to have
clearly adopted it, or to have established any other specific date for the
event Singularly, neither Hoyt nor Spurr testified to making such a report
to Mrs Leonard, though Spurr testified, as set forth hereinafter , that he
had been having such difficulty with Tafelsky
any change in his duties, authority, or responsibilities
Because of doubts as to the reliability of the testimony
of both Mrs. Leonard and Tafelsky in a number of areas,
I have carefully considered these accounts of the
conference. As to the date of the conference, Tafelsky is
specific as to the date and his means of identifying it,
while Mrs. Leonard's testimony is most vague on the
point, Tafelsky is therefore credited For the remainder,
aside from Tafelsky's assertion that Mrs. Leonard
mentioned his involvement with the Union, the two
versions are principally different in point of emphasis,
both agree that Mrs. Leonard wanted to know what was
wrong with Tafelsky, that Tafelsky gave some sort of
angry reply, and that Mrs. Leonard told Tafelsky that he
would have to start punching a timecard, and threatened
to (or said she would) reduce his salary.
With respect to the assertion that Mrs Leonard
mentioned Tafelsky's union activities, I also credit
Tafelsky. On the record as a whole, I am satisfied that
Mrs. Leonard, on January 17, knew of the visit of the
Union representatives that day, and was aware of
Tafelsky's activities as well. He had made no secret of
them, and Personnel Manager Hammer, an admitted
supervisor, was clearly aware of what Tafelsky was doing.
Mrs Leonard was plainly hostile to the Union, and I do
not believe that she would have refrained from mentioning
it. I do not consider it necessary to resolve any remaining
conflicts as to what was said on this occasion, other than
to say that it is inconceivable to me that Mrs Leonard's
participation in the conference was as restrained and
moderate as she stated.
(2) After this conference Tafelsky began punching a
timecard until his discharge on February 24, 1969. His
salary was not reduced.
(3) Darlyne Powell testified that Office Manager
Ardella Hoyt spoke to her about the Union, about
January 22. Powell's testimony (based upon an analysis of
both her direct and cross-examination) was that she and
another employee, Beki Judd, were in the office, when
Hoyt said that she did not want Respondent to have a
union because she had heard that unions weren't any
good; "that Bill Tafelsky had started the Union, and I
asked Mrs. Hoyt why they didn't fire Bill, and she said
that they couldn't at that time, but there wasn't any
reason why she couldn't afterward." At another place,
Powell indicated that the "afterward" referred to after the
voting, and that Hoyt said that Tafelsky wouldn't be the
only one that would be fired after the election. According
to Powell, Hoyt also said "if we had a union, that we
would have to take coffee breaks at a certain time, and
when we went to the bank we'd have to go [and come]
straight back, we couldn't stop anywhere along the way,
that there would be certain rules and all employees would
be treated equal, and that we couldn't drink coffee at our
desks"
After Hoyt left the office on this occasion, Judd told
Powell that she did not want to vote for the Union
because she didn't want to get fired.
Powell conceded that she initiated one conversation
with Hoyt about the Union and it may have been this
conversation.
According to Hoyt, Powell initiated the conversation
with her by stating that the Union would be a good idea
because everyone would be treated equally, and that Hoyt
replied that would mean that the employee who went to
the bank to make the deposit every day would have to go
and come directly back, and not stop off to shop for 5 or
10 minutes (which Hoyt asserted at the hearing was the
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
custom).3 Hoyt further testified that it was her
"understanding that under the union, you had a coffee
break at a specific time, and it was for a specific amount
of time," but did not clearly state what she recalled saying
to Powell concerning this. In answer to specific questions,
Hoyt denied that she ever told Powell at any time that
"employees who voted for the Union would be fired," or
any statements similar to that."
Powell was a nervous, apprehensive witness, though
manifestly trying to give truthful testimony. On the other
hand, Hoyt's testimony with respect to this conversation
was abbreviated, somewhat indirect and did not leave an
impression of solid reliability. However, with respect to
employee side trips to the store and coffeebreaks the two
accounts are essentially alike and Powell's testimony
agrees that Hoyt made reference to all employees being
treated equally in this respect. It is therefore found, on the
basis of the entire record, that Powell initiated this part of
the conversation, as Hoyt stated, by referring to the fact
that under the Union all would be treated equally, and
that it was in this context, as Powell's account itself
indicates, that Hoyt asserted that the employees'
coffeebreaks and side trips would be restricted.
Powell's testimony that Hoyt referred to Tafelsky in
relation to starting the Union and that Hoyt said that
although he could not be discharged now, Respondent
could discharge him later, was convincingly given, and
was not substantially shaken on cross-examination.
Further, her comment with respect to Judd's reaction to
Hoyt's statements, which was not controverted, had the
ring of truth, and tends to support the assertion that
Hoyt's statements to the women carried the threat of
discharge. Hoyt' s denials were not so impressive, and
notably avoided reference to Tafelsky by name, as might
have been expected.' In the circumstances, Hoyt's
testimony is not considered to overweigh that of Powell,
which is credited in this respect.
(4) Somewhat after the above events, Hoyt had
conversations with Marie Luehr, in late January or early
February with respect to the Union. According to Luehr,
Hoyt first told her that if the Union came in, Hoyt would
quit and that she had told Mrs. Leonard of this, but later
Hoyt stated to Luehr that she had changed her mind
about quitting because the office "was not going to
unionize and there would be some changes made, that she
was going to bring in her niece, Sandra, and train her in
all phases of office work."
Hoyt denied that she told any employee during this
period that if the Union came into the store she would
quit. She also denied that she said anything like that to
"Mrs. Powell," but testified that "I made the statement
that I had worked all these years without a union, that I
didn't think I needed one now, that I did not want to pay
union dues." Hoyt denied telling Mrs. Leonard that she
intended to quit, which was confirmed by Mrs. Leonard.
At a meeting of the employees addressed by Mrs.
Leonard on or about February 17, among other matters,
Mrs. Leonard stated that she knew there were people
against the Union because she "had one person come in
and give her resignation if the union came in." Mrs.
Leonard testified that she was referring to Bertelle Ritter,
'After testifying to the above , Hoyt was asked her reason for making
this statement to Powell , and replied, "Because she told me everyone
would be treated equal and if one person could do that, that would not
mean everyone was treated equal."
'Since Respondent contends that Tafelsky was not then an employee
within the meaning of the Act , the denial may well have been meant to
give the appearance of including Tafelsky without doing so in substance.
who assertedly had so stated to Mrs. Leonard a week
before the meeting. Mrs. Leonard did not name the
person she was referring to in her comments to the
employees However, as noted, there was a substantial
basis for the employees believing that the reference was to
Hoyt. Tafelsky clearly so understood the reference, and
Hoyt admitted to Mrs. Leonard after the talk that she
was aware that Tafelsky thought the reference was to
Hoyt. Under the circumstances, it is found that Hoyt had
given the employees the impression that she would quit if
the Union came in, and she was aware of this.
(5) Tafelsky testified that about January 23, he met
Hammer in the store, on which occasion Hammer
"yelled" at him, asking if Tafelsky knew "what the hell
you're doing with the employees around here," and when
Tafelsky replied that he did not know what Hammer
meant, the latter replied, "for your information, if the
union does not get in here, there will be hell to pay, and if
it does there will be twice as much hell, because she, Mrs.
Leonard is going to wipe out a whole mess of you, and we
know Adele Frook is all in favor of the Union " Verina
Drinan apparently overhead part of this conversation. She
stated that on an occasion when she passed Hammer and
Tafelsky in the store, she heard Hammer state in a raised
voice, "If you think things are bad in this store now, you
ought to wait until this union gets in." Drinan did not
hear any other part of the conversation.
(6) Evon Cram stated that on an occasion, Hammer
invited her to have coffee with him, and during their
conversation stated that "if this union gets in here . . .
you'll feel kind of silly out there picketing, those boys can
get kind of rough," that he had belonged and should
know. Cram testified that he further stated that "it's
possible that if the union does get in , it will necessitate
letting someone go because of the added expense to the
company."
Hammer did not testify
Surveillance or the Impression of Surveillance- (1)
General Counsel apparently contends that Hammer's
comments to Tafelsky on January 23, noted above,
conveyed the impression that Respondent had the
employees' union activities under surveillance.
(2) On Wednesday, March 5, 1969, the evening prior to
the election, the Union had a scheduled meeting at the
Holiday Inn in Traverse City. Mr. and Mrs. Leonard
were at the Holiday Inn that evening, and were seen by
employees, Mr. Leonard sitting in the lobby before and
after the meeting, and Mrs. Leonard in a passageway
close by the dining area, which the employees passed to go
to the meeting room. Both Mr. and Mrs. Leonard took
specific occasion to direct some of the employees who
came into the Holiday Inn at the time to the place where
the meeting room was located, Mr. Leonard calling loudly
across the lobby to one of the employees, giving directions
to the meeting room.
The record shows that Mr. and Mrs. Leonard, both
prior to and after the evening in question , frequently had
dinner at the Holiday Inn on Wednesday evenings, often
with guests. Mrs. Leonard testified that she was aware
before March 5, the Union was going to hold a meeting
there that evcning and had been uncertain about going,
but had decided to go anyway since the Leonards had
invited guests to accompany them. However, when their
guests at the last moment were unable to go, Mr. and
Mrs. Leonard went with two other persons, one of them
an employee of the store. She recalled directing one of the
employees who, she indicates, seemed confused, to the
meeting room. Mrs. Leonard stated that she and her
WILSON FURNITURE COMPANY
guests remained at the table talking after their meal, and
that Mr Leonard wandered off to the lobby, accounting
his presence there, where he was seen by departing
employees when the union meeting broke up. The union
meeting began between 7:30 and 8 p.m. and ended
between 10:30 and 10:45 p.m.
(3) The parties stipulated that "On March 6th, 1969,
the day of the representation election in Case 7-RC-9282,
after the election and after the counting of the ballots, at
approximately 3:15 p.m., Mrs. Beatrice Leonard at the
Union Street Store made the following statement, which
was within the hearing of several employees. . . Seven to
nine , and I know who the seven are She then named
employees Marie Luehr, Adele Frook, Verina Drinan,
Evon Cram, two warehouse employees and others whose
names are not known, at this time."
Mrs. Leonard admitted the remarks, stating that she
made them to no one in particular. In essence, she stated
that she had made the computation which she expressed
from things that had been said to her and things she had
observed. According to Mrs. Leonard, employees had
come to her and said they were "company"; that since she
had been a close personal friend of Adele Frook, and
Frook did not come to her and say she was "company,"
Mrs. Leonard knew she was not; that Marie Luehr had
previously been frequently upset with Mrs. Leonard, but
during this period was "so terribly sweet that it didn't
take me long to know [her attitude];" that at a meeting in
the community hall (presumably devoted to the Union),
Mrs. Leonard "watched Evon Cram's face [and] I knew
[her attitude];" and lastly that she knew who the Union
observer was and "who his pal was", accounting for their
votes. Mrs. Leonard stated that if the vote had come out
any differently, she would have known that she had been
misinformed and could not have figured out the vote.
Apparently after making this statement, Mrs. Leonard
turned to Cram and Frook and asked how Respondent (or
Mrs. Leonard) had "failed" them.
2. Analysis and conclusions
Interrogation: There is adequate evidence of coercive
interrogation of employees by Respondent in violation of
the Act. The circumstances and character of the
interrogation of Luehr and Frook, in the context of this
case, shows a deliberate intrusion into the employees'
right not to be put in a position in which they must
acknowledge to management their involvement (or
noninvolvement) with the Union, particularly during the
period when, Respondent was demanding an election to
ascertain the employees' desires as to union
representation. Respondent offered no reason for the
interrogation and none appears. Though the evidence of
interrogation is not widespread, the questioning of Luehr
was sharp, made by a supervisor who patently considered
the Union seriously to her personal disadvantage, and led
Luehr into an evasive answer. (The extent to which such
evasive answer was susceptible to interpretation by
Respondent adverse to the employee is shown by Mrs.
Leonard's testimony concerning her remarks after the
election.) The interrogation of Frook, made over the
telephone at her home, was also propounded in a context
of management displeasure with the Union and an
indication of accusation of Frook and also evoked an
evasive comment from her. It is also noted that during
this period, Respondent was additionally seeking to
ascertain the union involvement of the employees by
methods of surveillance made clearly evident to the
employees, as well as by other subtle observation and
61
evaluation of employee conduct in relation to the Union
Though the interrogation of Tafelsky by Hammer is not
found to have been in violation of the Act because of
circumstances surrounding those acts and because they
were not alleged in the complaint, they conformed to the
pattern of Respondent's other activities as found herein.
Hoyt also indicated to Luehr that she had inside
information the store "was not going to unionize"
Threats and Acts of Reprisal- It is found that the
following activities constituted violations of the Act- (1)
Hoyt's threat to Powell and Judd that employees favoring
the Union would be discharged; (2) Hammer's threat that
conditions in the store would become worse, through
Respondent's acts of reprisal, if the Union came in, made
to Tafelsky and overheard by Drinan; (3) Hoyt's
statement to Powell that if the Union came in this would
mean the end of certain privileges enjoyed by the office
workers, such as stopping off at a store when returning
from making deposits at the bank, and having coffee at
their desks as was their custom. It is clear that these were
privileges enjoyed by the office employees who had
different working conditions from those of the salespeople
on the floor, who would be unlikely to be sent to the bank
with deposits and whose normal functions in dealing with
the public might militate against promiscuous coffee
drinking. In the circumstances of this case , it is found that
Hoyt made this statement in an effort to make the office
workers believe that they would lose privileges normally
accorded to them as office employees if they voted for the
Union, as a part of Hoyt's campaign to defeat the Union,
and not because she believed from information from
others that the Union would insist that these privileges be
taken away from the office people or that such privileges
be given to the salespeople.5
Since Mrs Leonard's conversations with Tafelsky, on
January 17 and 18, and, in part, Hammer's conversation
with Tafelsky (mentioned in the preceding section) may
have different legal consequences depending upon the
resolution of the contention that he was a supervisor, no
findings are made on these matters at this point.
It is further found that the following activities,
discussed in the preceding section, did not violate the Act,
and it will be recommended that the allegations of the
complaint with respect to these matters be dismissed:
(1) Those activities of Hoyt and Mrs. Leonard
indicating (or appearing to indicate) that Hoyt would quit
her employment with Respondent if the Union came in, in
the absence of any evidence that the employees had reason
to believe that such action would be to their detriment.
Cf. Tyson & Van, Inc, 176 NLRB No. 19.
(2) Those statements by Hammer to Cram (who knew
that Hammer had previous experience with the Retail
Clerks Union) that she would feel silly picketing, that the
"boys" could get rough, and that it "was possible" that
someone would be let go as a result of extra expense to
the Respondent, if the Union came in.
Surveillance and the Impression of Surveillance: On
record in this matter it is difficult to come to any
conclusion other than that the Leonards went to the
Holiday Inn on the evening of March 5, to observe the
employees attending the union meeting, and went out of
'Consideration has been given to the fact that Powell testified that she
was not personally affected by these remarks of Hoyt , for whom she
continued to work at the time the testimony was given However, it is the
reasonable tendency of the activity to interfere with the employees ' rights,
rather than whether it actually coerces any particular employee , that is
controlling , and, as has been found, the remarks with which we are here
concerned would clearly have such a tendency
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their way to make sure that the employees realized that
they were being observed The Leonards were aware that
the meeting was to be held that evening and were
sufficiently concerned about their presence there in the
circumstances that they considered the advisability of
going. It was first stated that they decided to go anyway
because they had invited guests to accompany them.
However, when their invited guests advised that they could
not go, the Leonards went to the Holiday Inn that evening
nevertheless, securing two other companions. No reason is
given for this persistence. It is not shown that reservations
had been made that could not be broken, or that there
were other reasons that would impel their presence at that
place at that time Indeed, though the evidence is that
they frequently went to dinner at the Inn on Wednesday
nights, it was not shown that this was an invariable
practice, from which their absence on this night would
have been an unusual departure
In many areas of the law where there is a conflict of
rights an adjustment must be made. Obviously, the
Leonards had as much right to eat at the Holiday Inn as
the Union had to meet there. However, since the Leonards
insisted upon going and remaining there just at the times
that they knew would inevitably bring them into contact
with employees going to and leaving the meeting, they
must be held to have intended the consequences which
could reasonably be anticipated would flow from their
actions. that the employees would note their presence and
would be inhibited thereby in the free exercise of their
rights under the Act. The Leonards further took overt
action designed to accentuate this result. In these
circumstances, it is found that Respondent engaged in acts
of surveillance, and gave its employees the impression of
surveillance in violation of the Act.
In view of the above finding, it is considered
unnecessary to discuss other evidence to the effect that
Mrs. Leonard engaged in similar activity after the
election, or that Hammer likewise gave an impression of
surveillance during one of his conversations with Tafelsky.
B. The Alleged Discrimination
1. The discharge of Tafelsky
On Monday, February 24, 1969, Spurr met with
Tafelsky in the store, after store hours (about 5.45 p.m.
- the store was apparently locked since it was necessary
for Spurr to let Tafelsky in, and let a policeman out at
the same time), for the purpose of terminating his
employment. So far as appears only Hammer was present
in addition to Spurr and Tafelsky
According to Tafelsky (in pertinent part), "Mr. Spurr
stated that I don't like to do this, but I expect you know
what's coming. He said, your duties as assistant manager,
as of late have been lax. Your sales were low in January.
You were continuously leaving the store and not telling
anybody where you're going, . . . you have been taking
people over to Ben's Restaurant and threatening them that
if they didn't vote for the Union they'd be fired, and that
is in direct conflict with your status, and we have enough
evidence to back that up." Tafelsky stated that Spurr also
said that Tafelsky "did not oversee the warehouse in the
capacity that he should have," and asked for Tafelsky's
keys to the store. When Tafelsky asked about
compensation due him, Spurr said that Tafelsky should
pick up his pay at the office of Williams, Respondent's
attorney.
While this conference was going on, one or more police
cars were parked in the back of Respondent's store, an
unusual occurrence not accounted for in this record.
However, from the fact that the police were present in the
store just prior to the meeting, and Respondent also
thereafter arranged to have the police present to prevent
Tafelsky from coming in the store to vote in the election
10 days later, it is inferred that the police were present on
this occasion at Respondent's request, in connection with
Tafelsky's discharge.
Spurr did not testify as to the occurrences on this
occasion or what was said, but was asked merely to
comment upon the statements testified to by Tafelsky.
Spurr asserted that the failure to oversee the warehouse
mentioned by Tafelsky had to do with Tafelsky's failure
to open the warehouse on Saturdays on time. Other than
that Spurr referred to only one asserted deficiency of
Tafelsky's: that when Tafelsky was supposedly out of the
store on calls, it was hard to trace him down when
necessary, for no one, assertedly, knew where he was.
According to Spurr this became "more prevalent" after
Tafelsky began working a second job in the evening,
which Spurr placed as in September 1968.6 Tafelsky,
however, gave up the second job the first part of January,
as Spurr testified.
Spurr did not refer to or explain the accusation that
Tafelsky had allegedly threatened employees, nor did Mrs.
Leonard testify with respect to her similar accusation
made to Tafelsky on January 18. No evidence that
Tafelsky had done so was adduced. Tafelsky denied that
he had engaged in such conduct. In the circumstances, it
is found that Tafelsky had not threatened employees as he
was accused
Though Spurr, himself, did not testify to any complaint
about Tafelsky's sales, Tafelsky testified that his sales in
January were low. He explained that January was
"normally a poor month for the year," that because of the
time taken in arranging the Christmas window and the
fact that he had taken his vacation in December he had no
back orders for "on-arrivals" in January,' and he had
spent 10 days in January in inventorying stock Tafelsky
denied that at any time prior to February 24, Respondent
had made any comment or complaint to him about low
sales.
Tafelsky denied that he ever held the position of
assistant manager, or that he had been told that he held
that position, or, in fact, that he had ever been offered
that position.
With respect to his time away from the store, Tafelsky
testified that the majority of his sales were made out of
the store, particularly those involving carpeting. He
asserted that as of January 1, he began turning in a card
to the office showing where he was going and the
telephone number where he could be reached. Tafelsky
stated that Spurr also put up a blackboard near the door
for such notations, which he admitted he "occasionally"
missed, but claimed to have had his name on the board
90% of the time he was out. He further testified that he
had turned in an index card and put his name on the
board showing his whereabouts on the day he was
discharged.'
`The record shows, however, that Tafelsky apparently took on the
second job in July when Mrs Leonard was in the hospital , at which time
he informed her of this
'it appears that since Respondent did not stock carpet, customers would
order from samples, the sale being made, it seems, on arrival of the goods
at the store The term "on arrival ," it was stated , applied to all such
special orders
'Tafelsky also referred to some restriction on his making appointments
with customers out of the store on Saturdays, which was instituted in
WILSON FURNITURE COMPANY 63
2. Tafelsky's alleged supervisory activities
Tafelsky was hired in May 1963, as a truckdriver
working out of the warehouse, by Guy Fowler, who at
that time was in charge of the warehouse as well as
second in command to Vern Gray, then Respondent's
store manager. Tafelsky became a salesman in the store
approximately a year later, where he continued to be
employed when Fowler, in January 1967, left
Respondent's employ, and when Gray, in February 1967,
left on an extended vacation, which preceded Gray's death
in July of that year. It is a primary contention of
Respondent that during this period from January until
July, when Tafelsky himself was admitted to a lengthy
stay in a hospital, Tafelsky was invested with the duties
and authority formerly exercised by Fowler, and thus
became a supervisor.
It is clear from the record as a whole, and no claim is
made to the contrary, that Tafelsky was never given a title
and the employees were never told that he had supervisory
authority. The testimony of Ivan Sanborn, who is in
charge of the warehouse, shows that after Fowler left,
supervisory authority over the warehouse operations then
devolved upon Sanborn, which he has since continuously
exercised.' It is also evident from the record that Tafelsky
did not hire and was not consulted in the employment of
sales and warehouse employees during the period in which
he was alleged to have been a supervisor, indicative of the
fact that he did not possess this authority clearly held by
Fowler. (Evidence of his activities in respect to the tenure
of a carpenter and a carpet layer, asserted in support of
such authority will be considered hereinafter.) Certain
duties formerly performed by Fowler, some of them quite
significant which did devolve upon Tafelsky, in whole or
in part, after Fowler left, will be considered hereinafter, as
well as evidence that was adduced to support the claim
that Tafelsky exercised supervisory authority over
warehousemen on Saturdays when Sanborn was not there,
and on frequent occasions when warehouse employees
assisted in rearranging furniture while Tafelsky was
furnishing display windows or arranging furniture displays
on certain floors.
Respondent asserts that its sales personnel are of a high
caliber and thus need little direction in their work. The
record, in fact, does not indicate that Tafelsky actually
supervised the sales activities of the other employees,
although it appears that they did come to him with
questions and for advice and assistance. It is claimed that
on these occasions Tafelsky advised the others on the
basis of authority rather than as the most experienced
salesman, and that he exercised significant functions with
respect to their working conditions, as will be more
extensively detailed hereinunder. However, since
Tafelsky's own sales activities appear to have kept him
out of the store for extensive periods, as a practical
matter, his opportunity for immediate supervision over the
sales help would have been limited.
February 1969, and which he attributed to his Union activities This was
not alleged by General Counsel or otherwise proved. Spurr, when asked on
cross-examination how Tafelsky's second job conflicted with store hours,
referred to an unspecified occasion when he suspected Tafelsky was at the
second job on a Saturday when Tafelsky had claimed to be sick Since
Tafelsky ceased the second job about the first of January , this occasion
must have been before that time
'Though Sanborn voted in the election without challenge, Respondent in
its brief agrees that upon the record in this case , he is a supervisor as
defined in the Act
On the record as a whole, including the matters
hereinafter discussed in more detail, I am convinced that
the sales personnel did not consider that Tafelsky
possessed the authority previously exercised by Fowler.
Thus Evon Cram (who worked under Fowler and agreed
that he was "second in command"), when asked to
compare Fowler's relationship to the employees with that
of Tafelsky, referred to Fowler as an older man who "had
a very different way with him" and "was quite demanding
in [these] respects." Cram stated that she had expected
that Tafelsky would be made "managerial personnel," but
that though he performed some of the duties Fowler had
performed, she "didn't feel he had charge of anything. I
dust felt that he was being kind of the goat, because he
was the only one available down on the floor to do all
these things and to ask all these questions and no one
seemed to want to assume any responsibility " She did not
look upon Tafelsky as "second in command" and "didn't
feel he got that position.""
Cram said that at that time after Fowler left in early
1967, she and other salespeople were accustomed to going
to Ardella Hoyt, Respondent's treasurer and office
manager, with their problems. Tafelsky stated that during
this period, Mrs. Leonard and Hoyt were directing the
work of the salespeople, that he was not.
Mrs. Leonard testified that about the time Fowler left
in January 1967, she had a talk with Tafelsky at her home
during which she states she asked Tafelsky to take over
Fowler's duties, which she described as being in charge of
selling, ordering, and pricing carpets, acting as
merchandiser, attending furniture shows, buying case
goods and tables and assisting Mrs Leonard in buying
upholstered pieces, and being in charge of the warehouse.
(She also at another place referred to Fowler as an
"adviser" to the warehouse.) She asserts that Tafelsky
said he would like to do this. According to Mrs. Leonard,
she told Tafelsky that he would receive the same weekly
salary and commission rate that Fowler had Though Mrs.
Leonard recalled that this was done earlier, it appears that
Tafelsky did not receive this increase (to $55 a week plus
commissions) until June 1967, 5 months later.
In Mrs. Leonard's words, during this period, Tafelsky
"just assumed the duties of Mr. Fowler until Mr Gray
came back [from his vacation] and had a heart attack .. .
and we realized that there were just the two of us to run
the store . . We did everything together, just as much
as it 's humanly possible, and Mr. Tafelsky had full charge
over, as far as I was concerned in my knowledge, the
whole operation."
However, in July, 6 months after Fowler's departure,
Tafelsky was committed to a hospital for a lengthy stay,
himself About this same time Store Manager Gray died
Respondent secured the services of Fowler again until the
last week in November, and hired an experienced furniture
store manager, Russell Spurr, on September 13, 1967.
Mrs. Leonard testified that at the urging of Tafelsky's
"From observation of Tafelsky as a witness , he appeared rather young
and energetic, undoubtedly an excellent salesman, as Mrs Leonard stated,
but not as mature as the record indicates Fowler to be Indeed , certain
testimony adduced to show Tafelsky's supervisory authority rather seems
to indicate that the sales people did not consider that he had effective
authority over them Thus Store Manager Spurr stated that Tafelsky in
mid-1968, asked for the title of sales manager because employees would
not listen to him Spurr states that he refused the title Also, Ritter,
another salesperson who had been in the store longer than any of the
others, stated that she was unwilling to accept Tafelsky's statement that it
was alright for her to go to lunch on one occasion until told to do so by
Mr. Leonard , who was infrequently in the store
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doctor, and against her own inclinations, she rehired
Tafelsky when he was released from the hospital, in
November 1967, though at a reduced salary. According to
Spurr, after Fowler left, he told Tafelsky that "I expected
him to help me in the operation of [the] store, with the
personnel, and in other words, I expected him to be my
right arm, carry on work down on the floor with the
personnel that I wasn 't able to supervise, didn't have time
for, and I simply depended upon him to run the show, you
might say, on the floor, as far as store displays was
concerned and window displays, even supervising the
warehouse."
In February 1968, Tafelsky's compensation was raised
to that he had been receiving before he went into the
hospital, because, according to Mrs. Leonard, he had
proven himself, was back at his old duties, and his sales
were very good. In July, while Mrs. Leonard was in the
hospital, Tafelsky asked for a substantial wage increase,
and Spurr increased his weekly salary to $80 plus his
regular commission." This was not quite double the
compensation paid to the next highest paid sales person in
the store. When Mrs. Leonard returned from the hospital
she gave Tafelsky a $500 bonus.
During this period and up until his discharge, it is
contended that Tafelsky performed duties and exercised
authority which marked him as a supervisor within the
meaning of the Act. This evidence will now be considered.
Hire and Tenure of Employees
While there is no evidence that Respondent ever
specifically advised Tafelsky or any other employee that
Tafelsky had authority to hire, discharge, or effect
changes in the tenure of employees, or effectively
recommend such, there was extensive evidence taken with
respect to four matters of this character, which
Respondent in its brief refers to as "incidents."
1. The Makowski Incident: Mel Makowski, who had
been originally employed by store manager Gray,
apparently as an independent contractor, laid carpets sold
by the Respondent at the customers' premises. Tafelsky
was in charge of the carpet department and apparently the
only regular salesman assigned to the department
(Several of Respondent's salespeople were similarly in
charge of other departments.) In early spring 1968,
Makowski advised Tafelsky that he had received an
attractive offer from a competitor of Respondent and was
considering leaving. Tafelsky communicated this to Mrs.
Leonard and Spurr. Makowski also spoke with Spurr and
advised him of the terms of the offer. Tafelsky was
instructed by Mrs. Leonard, in particular, to do whatever
was required to retain Makowski. Tafelsky dealt with
Makowski and his wife at their home on this matter and
encountered some difficulty, which he discussed with
Spurr and Mrs. Leonard during the course of this matter.
Tafelsky finally persuaded Makowski to continue his
relationship with Respondent on the same financial terms
that had been offered by Respondent's competitor.
2. The Incident of the Carpenter: According to
Tafelsky, Mr. Leonard requested him to find a carpenter
to work on Mr. Leonard's rose farm; the carpenter was
also used in setting up Respondent's Christmas window
during the first week in December 1968. Tafelsky states
that he located the man and sent him to Mr. Leonard,
who was thereafter hired. (Spurr, who indicated that he
"It was at this time, Spurr testified that he refused Tafelsky ' s request to
be made sales manager . Tafelsky denied making such a request
knew that the carpenter was working for an owner of
Respondent, stated that Tafelsky told him that he had a
man to do the work on the Christmas window, "and what
it would cost.") Tafelsky submitted a bill for the
carpenter's services for the store based upon information
received from the carpenter, which was questioned by
Hoyt, Respondent's office manager and treasurer. After
consulting with the carpenter, Tafelsky resubmitted the
carpenter's bill showing different hours worked, but for
the same amount, which was paid by Respondent.
3. The Drinan Incident. Verina Drinan was hired in
mid-September to be in charge of Respondent's draperies
department. According to Mrs Leonard, after
Respondent's "interior designer," Ann Bork, left,
Respondent had no one who knew anything about
draperies until Drinan was secured Mrs. Leonard states
that about 2 weeks after Drinan had been hired, Tafelsky
came to her and "suggested letting Verina go," because
she was not a good salesperson, and had interfered with
one of his carpet sales, during which the customer
exhibited resentment at Drinan Mrs. Leonard states that
she told Tafelsky to let Drinan go.
Spurr states that about the same time Tafelsky came to
him and said that Drinan was driving customers away
from the store and "they felt that we should let her go."
Spurr testified that he told Tafelsky that since they had no
one to replace Drinan , it would be necessary to put up
with her until a replacement could be secured.
Drinan was not terminated until she left Respondent's
employment after the election on March 6. Mrs. Leonard
stated that she complained to Spurr about Drinan's
continued employment when she spoke to him in
November over the telephone from the hospital and told
him to let her go immediately. She states that when she
returned to the store she asked Spurr about Drinan again,
"but the union cards had been presented and there was
nothing he could do." Spurr stated that as late as
February he had been seeking a replacement' for Drinan,
and had not secured one at the time of the hearing.' 2
Tafelsky denied recommending that Drinan be
discharged, and did not recall Mrs. Leonard telling him to
let her go. Tafelsky recalled that in December, upon his
going to Spurr with a complaint from a customer about
draperies, the latter told him that because of a number of
complaints about draperies, Respondent was going to
terminate Drinan He states that he protested the timing
of the proposed discharge
4. The John Hammer Incident: Hammer was employed
by Respondent in October 1968. Although Tafelsky refers
to Hammer in January as a friend, there is no indication
that they were acquainted before Hammer was hired, or
that Tafelsky played any part in his employment with
Respondent In the latter part of November 1968,
however, according to Spurr, Tafelsky came to him, on
two occasions, and, in the words of Spurr, "Bill said that
he thought that it would help the store and help me if we
appointed John Hammer assistant manager. . . . he was
referring to discipline ... problems of coming in on time,
and if they went out to report where they were going,
where they could be reached and . "" Spurr asserts
that he told Tafelsky that he would consider the
suggestion, and that he did so. At the time, Mrs. Leonard
"Spurr first stated that other salespeople in the store knew he was
looking for a replacement for Drman, but became vague and uncertain
when asked for details Drman testified that she was unaware that Tafelsky
had asked for her termination , although they frequently discussed working
conditions at the store
"On cross-examination , Spurr expanded on this stating that Tafelsky
WILSON FURNITURE COMPANY
was in a hospital out of town, and Spurr stated that he
had a phone conversation with her during that period, in
which he suggested to Mrs. Leonard "that we make John
Hammer - or give him a title to help us on our
personnel problem," that "Bill thought that it would help
us to take care of some of our problems, to make it a
little easier to handle the personnel " Spurr testified that
Mrs. Leonard did not want to "jeopardize Bill's position,"
but agreed that Hammer be given the title of personnel
manager , not assistant manager ." After this conversation
Spurr formally announced to the employees that Hammer
would be the new personnel manager . Hammer took over
the scheduling of employees, and presumably other
personnel problems, as well as supplanting Tafelsky in
such duties as pricing furniture, and also went to the
January 1969, furniture market with Spurr, in place of
Tafelsky. Hammer was apparently put on a salary at this
time.
Tafelsky testified that the only two conversations with
management personnel which he could recall concerning
Hammer's proposed promotion were with Mr. Leonard
and Ardella Hoyt. He states that while Mrs Leonard was
in the hospital, he had occasion to discuss a difficulty in
the carpet department with Mr. Leonard, during the
course of which Mr. Leonard asked Tafelsky if he thought
it would be a good idea to make Hammer personnel
manager , to which he says he replied that it made no
difference to him, that he (Tafelsky) didn't have any
authority. Tafelsky states that he thereafter repeated this
conversation to Ardella Hoyt.
Also bearing on the issue is a conversation between
Hammer and Tafelsky in January 1969, concerning the
Union, in which Tafelsky testified that Hammer told him
that Hammer had been hired as Spurr's assistant, but that
Respondent didn't want "to come right out" and say this
for fear of hurting the feelings of Bertelle Ritter and
Tafelsky (who were among the most senior of the
salespeople). Neither Hammer nor Mr. Leonard testified;
Hoyt did not mention the conversation asserted by
Tafelsky.
Tafelsky did recall an argument between himself and
Spurr "that the number of duties I had to perform over
and above selling were-too much, and I wasn't making a
living , and some of [those] duties should be shifted to
someone else," but denied that Hammer's name was
mentioned in the conversation.
After careful consideration of the above incidents, it
seems to the Trial Examiner that, even if Respondent's
version of these events were accepted, these incidents
hardly indicate that Tafelsky was exercising supervisory
authority within the meaning of the Act, to hire,
discharge, promote, or otherwise effectively affect the
tenure of employees, or effectively recommend such
action. The actions attributed to Tafelsky seem perfectly
consistent with those which might be expected of a
responsible sales employee concerned with his
was asking that Hammer be made assistant manager to relieve Tafelsky of
responsibilities , that Hammer could do the scheduling , discipline employees
when they got out of line, and perhaps take care of the warehouse on
Saturdays Spurr stated that he told Tafelsky that he was Spurr's
righthand man and he depended upon Tafelsky
"Mrs Leonard stated that she objected to making Hammer assistant
manager because she considered Tafelsky was assistant manager, but also
because Hammer was so new with the organization As she stated, "Cripe,
you make a new man who just come in assistant manager , then what do
you make him , owner" It was in this same conversation that Mrs
Leonard assertedly told Spurr to let Drinan go.
65
employment
Moreover, I was not impressed with the testimony of
Mrs. Leonard and Spurr in respect to these matters. For
example, it is difficult to believe that Mrs Leonard, on
two occasions, as she says, ordered Drinan's termination.
If she had insisted upon this without qualification, as she
states, it unquestionably would have been done. Moreover,
although she first returned to the store for short periods in
December 1968 (when she apparently first met Hammer),
before the advent of the Union cards, she did not then
insist on Drinan's release, but, according to her testimony
waited until after the union cards were presented.
Furthermore, she would unquestionably have been just as
aware of the necessity to replace Drinan as Spurr states
he was, and would have been just as unlikely to have
ordered her termination so abruptly in October and
November. Moreover, most incredibly, Mrs. Leonard
indicated at the hearing that she still did not know why
Spurr had not carried out her asserted direct order in
November to release Drinan, stating that "you would have
to ask him why he didn't do as I asked him to do"
Finally it is difficult to understand why Spurr, who
assertedly had been resisting Mrs. Leonard's direct orders
to release Drinan because he did not have a replacement,
did not let her go when Respondent secured a new interior
designer about this same time.
Also, with respect to Hammer, it strains the
imagination that, a mere 4 months after Spurr refused to
give Tafelsky the title of Sales Manager to assist in
employee discipline, according to Spurr's testimony,
Respondent did give Hammer, merely upon the
recommendation of Tafelsky, as Respondent seems to say,
the title of personnel manager to assist in personnel
discipline, notwithstanding Hammer's short employment
record. It seems clear that Respondent's actions in regard
to Hammer and Drinan were the result of its own
inclinations, rather than due to anything Tafelsky may
have said on these subjects.
Buying and Pricing Merchandise
A very considerable part of the testimony was
concerned with Tafelsky's authority to buy and price
merchandise with some measure of discretion. It would
greatly, and unnecessarily, lengthen this decision to set
forth the various minute factors litigated on both sides.
Based upon a close analysis of the record, and balancing
the testimony of General Counsel's witnesses and
Respondent's witnesses on the subjects, I believe that
Tafelsky had less discretion in these areas, and consulted
with management more, than Respondent's witnesses
would indicate. Thus, in respect to Tafelsky' s discretion in
buying at the furniture markets, I credit his testimony
that after returning from the markets, he and Mrs.
Leonard would go over the purchases and cancel those
which they decided Respondent did not need Hoyt's
testimony, as well as that of Mrs. Leonard, as to
Tafelsky's close cooperation with them in respect to store
problems has also been considered. Moreover, I find the
record convincing that other, nonsupervisory, employees
also exercised a certain amount of authority and
discretion in these areas while Tafelsky was employed and
possibly more after he was terminated.
Nevertheless, the record leaves no doubt that in the
areas of buying and pricing merchandise Tafelsky had
more responsibility and discretion than the other sales
people, at least until the employment of Hammer.
Impressive to my mind is the fact that while other
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salespeople went to the markets to buy, or assist with
buying, for the store on occasion, they were concerned
with smaller departments. Tafelsky seems to have gone to
the furniture markets on a rather regular basis, and was
involved in the purchase of substantial items until near the
end of his employment Tafelsky's testimony was that he
attended about five such markets (which occurred three
times a year), apparently commencing after the departure
of Fowler in January 1967. However, the record shows
that he did not attend markets held in October 1967,
about the time he returned from the hospital, or in
January 1969, when Hammer apparently took his place.
Both Tafelsky and other salespeople placed special
orders at the store, though here, too, his activities were
the more substantial
Similarly, although other employees clearly had
responsibilities in respect to pricing merchandise, Tafelsky
undoubtedly had a greater discretion and responsibility in
this area. However, Tafelsky's testimony is not disputed
that after the employment of Hammer the latter took over
the pricing of furniture, and Tafelsky thereafter did little
of this.
In this same general area, Respondent's witnesses
stated that Tafelsky had authority to approve sending
merchandise out to customers on approval, and to accept
returns of merchandise from customers. It was also
testified that he was the only employee who violated
Respondent's asserted rule against discounts to customers
on furniture on the floor." It was further stated that
Tafelsky had responsibility for taking care of customer
complaints in the carpet department, and Hoyt asserted
that Tafelsky occasionally would vary Respondent's
normal credit terms. However, the only instance she could
recall was an occasion on which she approved his
statement to a customer that she could have credit beyond
that usually extended.
Employee Working Conditions
(1) Salespeople
While Respondent admits that its sales force, being of a
high caliber and apparently experienced, needed little or
no direction in their work, considerable evidence was
adduced concerning the fact that other salespeople were
accustomed to going to Tafelsky with their questions and
problems, as with questions whether certain suites of
furniture could be broken up, or, in the case of new
employee Miller, how he should go about taking an
afternoon off, or, as stated in footnote 15, above, whether
a discount could be given It would also appear that on
occasion, a salesperson might go to Tafelsky to intervene
with Warehouse Foreman Sanborn to arrange a special
delivery for furniture which they had sold, or possibly
could sell, but on which the customer wanted a particular
delivery. However, it was also normal for the salesperson
to go directly to Sanborn for this purpose. There is a
paucity of evidence, however, that the other salespeople in
seeking Tafelsky's advice and assistance on these
"Bertelle Ritter states that she went to Tafelsky to determine whether
she could give a discount on a certain piece of furniture , because at one
time she had understood that it could be done and another time that it
couldn't She states that Tafelsky said she could , Ritter volunteering that
she would not have done so on her own authority Employee Miller stated
that he discovered after Tafelsky had left that he had sold carpet out of a
dismantled display window at cost plus freight Tafelsky denied giving
discounts to customers , except that he recalled one occasion when he had
sold some items at slightly less than selling price through error
occasions did so because they considered that he had
supervisory authority in those areas as distinguished from
his experience and knowledge generally.16
It is also contended that Tafelsky had authority to
schedule employees The testimony is quite generalized
and is in conflict (to a certain extent Tafelsky's testimony
on the point seems conflicting). So far as this record
shows, Tafelsky's activities in regard to scheduling appear
routine, and in any event all the witnesses seem to agree
that when Hammer was employed he took over this
function
It is undisputed that Tafelsky had the keys to the store.
These, and apparently the keys to the warehouse, were
given to him by store manager Gray, and during Gray's
illness Tafelsky opened and closed the store. Sometime
after Tafelsky returned from the hospital, he was again
given keys to the store and the warehouse Tafelsky and
employee Miller locked up the store on alternate Friday
nights When Tafelsky was at a market, Miller had his
keys and locked the store. Tafelsky also locked up the
store on a number of Saturday nights. It is clear that on
some Friday and Saturday nights during the winter when
the weather was stormy, and as employee Ritter stated,
the employees were standing around with nothing to do,
Tafelsky closed the store before the normal closing time
and let the employees go home. Tafelsky testified that Mr
Leonard had told him that when the weather was bad, and
employees would have a difficult time getting home, he
could close early. He stated that he had done this between
six to eight times, but not during the winter immediately
prior to his discharge." Hoyt gave testimony to the
contrary.
(2) Warehouse employees
There was some testimony to the effect that Tafelsky
could give orders or had some supervisory authority over
Sanborn, the warehouse foreman, based, apparently, on
Tafelsky writing up sales which required special deliveries.
Based upon the record as a whole, and Santorn's
testimony in particular, this is not credited. Though
Sanborn indicated a feeling of asperity toward Tafelsky
for promising special deliveries without consulting with
Sanborn first, the latter indicated that he took a special
effort to make the deliveries because he considered it his
obligation to satisfy the customer rather than that
Tafelsky had supervisory authority over him./e Although
"In this regard, consideration has been given to the testimony of
Sanborn that in his trips to the store he had frequently seen salespeople
ask Tafelsky "things" about how certain items could be sold and therefore
thought Tafelsky a supervisor However, in the absence of any evidence
that Tafelsky was exercising discretion in setting or applying the policy
involved in these situations , Sanborn 's testimony is not inconsistent with
Tafelsky's giving advice on his experience and expertise rather than on the
basis of authority In one such instance shown by the record, Adele Frook
sought to sell an item which was in a display window Tafelsky refused on
the basis that Mrs Leonard had established a rule against selling items
from the windows When Frook appealed to Mrs Leonard , she confirmed
that Frook might not take the item from the window for a customer
"Hoyt, in response to a leading question , also testified that during the
period when Gray was ill , Tafelsky granted tune off or excused employees,
though she stated that "lots of times he talked it over with me " Tafelsky
denied that employees came to him for such purposes or that he gave
permission He stated that during this period, the employees went to Hoyt
with such problems Employee Cram testified to the same effect Since
there is no indication that Tafelsky may have taken such action after the
time of Gray 's illness (i e , after July 1967 ), it is considered unnecessary to
resolve this conflict
"Sanborn explained , "customer been told that she 'd get and had to do
WILSON FURNITURE COMPANY
there appeared to be some contention at the hearing that
Tafelsky might circumvent Sanborn's authority on those
occasions when warehouse employees assisted Tafelsky in
the store, the record as a whole shows that the assignment
of warehouse employees to assist Tafelsky, or other
salespeople, in the store was made through Sanborn.
Tafelsky was regularly assisted in the store by
warehouse employees in the rearranging of furniture on
certain floors, and in dressing display windows. Miller and
Ritter, who were responsible for other floors, were
similarly assisted in rearranging their floors, and Ritter
also used the warehousemen in dressing a window for
which she was responsible. So far as appears, the direction
of the warehouse employees involved telling them where to
place the furniture which was being moved. Also, in the
course of dressing the display windows, Tafelsky would
request any saleslady who was not busy to assist him in
selecting accessories (lamps, etc.) to be used in the
window.
It is further strongly argued that Tafelsky exercised
responsible authority over the warehousemen on Saturday
mornings, when Sanborn was not there. The record shows
that for some period before his discharge, Tafelsky
regularly opened the warehouse at 8 a.m on Saturday,
before the regular opening hour for the store, so that the
warehousemen could get started with their deliveries.
According to Tafelsky, at Spurr's request, he began
opening the warehouse on Saturday mornings,
approximately in January 1968 Tafelsky asserted that the
usual procedure was for Sanborn to call Tafelsky over to
the warehouse on Friday evening "and lay out Saturday's
deliveries for me," telling Tafelsky just how he wanted
them delivered. The next morning, Tafelsky states he
opened the warehouse, gave the drivers the clipboard with
the deliveries and let them go. Tafelsky further stated that
"to his knowledge" he had not done this after June or
July 1968. Tafelsky indicated that about that time, "in the
warehouse another set of keys were made for Saturdays
when delivery schedule was reduced," at which time he
says the keys were shared between employees Randy
Brown and Fred Bodell . Tafelsky also asserts that in
January 1969, when he thought he had lost his keys,
Respondent changed all the locks and he thereafter
received only keys for the store.
Warehouse Foreman Sanborn testified that for about a
year before his discharge, Tafelsky supervised deliveries
on Saturdays, and that this continued until he left.
Sanborn stated that Tafelsky was "supposed to unlock the
warehouse for the fellows and get them started on their
deliveries." With respect to the cooperation between
Sanborn and Tafelsky in this regard, Sanborn testified,
.. if I had a customer or two that I would promise a
certain time on Saturday, I would draw his attention to it,
but we never really routed them. As any special run come
up or anything to go anywheres on Saturday like over to
Leland, a special run , why he would tell the boys to do
it." The indication was that some such special runs would
come from sales made Friday night or on Saturday.
As previously noted, Store Manager Spurr testified that
Respondent had difficulty with Tafelsky frequently failing
to open up the warehouse on Saturdays from the time he
took on his second job until he was discharged. Spurr first
attributed this to Tafelsky's second job, but, upon being
reminded that Tafelsky had given up this second job about
it " In the case of Tafelsky, and the other salesmen who would request a
special delivery, Sanborn stated that he would generally get it worked out
"somehow or other "
67
the first of January 1968 (possibly upon Spurr's urging),
Spurr asserted that this delinquency continued until the
end of Tafelsky's employment
Warehouse employee Randy Brown also testified that
Tafelsky opened the warehouse on Saturday mornings
until he was discharged, though with some delinquencies
in this regard." After Tafelsky left, Brown says the
warehouse employees were given keys to let themselves in.
While Tafelsky was there, Brown stated that on
Saturdays Tafelsky would tell the warehouse employees to
make their deliveries, getting the delivery orders from the
pigeon hole set aside for Saturday deliveries. If the
warehouse employees were not busy, Tafelsky would tell
them what else needed to be done, such as rearranging on
the floor, bringing merchandise to the store, and preparing
for Monday deliveries After letting the warehouse
employees in and telling them what to do, Tafelsky would
leave them and go over to the store On frequent
occasions, Brown testified, "if we got all our work caught
up, I usually went to Bill and asked him if we could leave,
and . . . if he didn't have anything for us to do, he'd tell
us to leave."
A major conflict among the witnesses concerns
Tafelsky's assertion that his activities in regard to the
warehouse ceased prior to his discharge It is noted that
the time when Tafelsky claims he stopped opening up the
warehouse (June or July 1968) approximates the time he
apparently began his second job, which is also the time
that Spurr contends that Tafelsky began neglecting the
warehouse. It is inferred from this, and, to a lesser extent,
Brown's testimony, that, at least after about July 1968,
Tafelsky did not regularly open the warehouse or direct
the warehousemen on Saturdays as set forth above.
Tafelsky's further testimony that after he lost his keys in
January, he was not thereafter given keys to the
warehouse would seem logical in the circumstances. This
is particularly so when it is recalled that about that time
Tafelsky was also being relieved of various other
responsibilities aside from his selling. It is also likely that
it was at that time, when the locks were changed, that the
warehousemen were given keys to let themselves in, rather
than a month or so later, when Brown seemed to recall
this occurred. I believe that Brown and Sanborn were
mistaken in their recollection that Tafelsky continued
opening the warehouse until he was terminated, and Spurr
is not credited in his assertion that Respondent continued
having trouble with Tafelsky in this regard after the first
part of January 1969
3. Analysis and conclusions
From the facts set forth, and the record as a whole, it
is concluded that whatever other responsibilities Tafelsky
may have had, he was not a supervisor within the meaning
of the Act.
The Act defines a "supervisor," in pertinent part, as
one with authority "to hire, transfer, suspend, lay off,
recall, promote, discharge, assign , reward, or discipline
other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such
action, if . . the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
"It is noted that Brown first stated that Tafelsky continued to open the
warehouse until "pretty close" to the time he was discharged When
pressed on this, Brown testified , "Oh, I don't know when he stopped or
what " However, when specifically asked if Tafelsky was doing this for two
months prior to this discharge on February 24, Brown answered "Yes "
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
independent judgment."
With respect to these factors, Tafelsky clearly had no
authority to hire, discharge, discipline, transfer, lay off,
recall, promote, assign, suspend, or reward other
employees using his own independent judgment or
discretion.
Further, such direction or assistance which Tafelsky
may have given the sales employees, on the record
considered as a whole, appears to have been based upon
his knowledge and experience rather than upon any
authority over the employees conferred upon him by
Respondent. Even during the period when it might be
assumed that Tafelsky would have exercised the greatest
amount of authority, from January 1967 to July of that
year, when Fowler had gone and Gray was unavailable,
the employees were not advised that he had supervisory
authority over them and there is little indication that the
employees so regarded him, or that he exercised any
discretionary control over the employees.
Certainly, when Tafelsky returned to the store in the
fall of 1967, after his stay in the hospital, he was in
disfavor with Respondent. Though he thereafter "proved"
himself and was granted a substantial increase and bonus,
this appears to have been on the basis of sales
accomplishment and other responsibilities rather than on
the exercise of supervisory duties over the employees.
Though Spurr, the store manager appointed while
Tafelsky was in the hospital, asserted that he considered
Tafelsky his "right arm" after the latter's return to work,
I have the firm impression that his attribution of
supervisory responsibilities to Tafelsky during this period
was exaggerated.2° In fact, Respondent admits that there
was little need for direction of its salespeople. Indeed,
inasmuch as Tafelsky spent so much time out of the store,
there was also not much opportunity for exercise of any
such discretionary direction, and it is found that he had no
such authority nor exercised any such direction of sales
employees."
Tafelsky's relationship to the warehouse employees in
rearranging furniture in the store and in display windows,
which was no different in character from that of other
salespeople to these same warehouse employees, was
clearly of a routine and nonsupervisory nature. Tafelsky's
relationship to the warehousemen on Saturdays presents a
closer question, but on the whole record, including the fact
that Tafelsky apparently spent little time with the
warehousemen on Saturdays, being engaged in the store
and elsewhere in his normal sales activities, and that his
relationship with the warehousemen even on that day
appears to have been largely routine, it is found that this
activity, which diminished in the latter part of 1968 and
ceased in January 1969, did not transform Tafelsky's
position into that of a supervisor, within the meaning of
the Act.
Respondent emphasizes in its brief a number of
asserted responsibilities entrusted to Tafelsky, not given to
other employees (or not to the extent permitted Tafelsky),
"Thus considerable emphasis is placed on the fact that Tafelsky was left
"in charge" on a number of Saturday afternoons , in Spurr's absence
Aside from Tafelsky's denial that he had actual supervisory authority on
these occasions , these were few in number and ceased shortly thereafter
Further emphasis is placed upon Tafelsky's conduct on occasion in closing
the store early in wintry stormy nights However , even here it is undenied
that he was following instructions from Mr Leonard
"Mrs Leonard 's testimony that Tafelsky 0 K.'d sales slips was taken,
though objected to, subject to production of the documents . They were not
produced and no explanation was offered Tafelsky's denial that he had
approved such slips is therefore credited
such as the fact that he held keys to the store and
warehouse and opened and closed the store on certain
days, exercised discretion in buying and pricing
merchandise, pledged Respondent's credit, did not punch a
timecard, acted for Respondent in retaining the services of
the carpet laying contractor, handled customer complaints
and the like. These matters, as well as the fact that
Tafelsky was paid considerably more than the other
salespeople, have been carefully considered. It is clear,
however, that a person does not become a supervisor
within the meaning of the Act because he holds a position
of responsibility or is entrusted with important duties not
shared by his fellow workers. See, e.g., N L.R B v. The
Little Rock Downtowner, Inc , 414 F.2d 1084 (C.A. 8)
(employee "responsible for physical maintenance of the
entire motel," who "hired painters on a contact basis,
negotiated the cost to the company, directed the progress
of the work, decided what rooms were to be painted, and
exercised discretion in purchasing supplies" held not to be
a supervisor, where the employee regularly consulted the
employer, received authorization to hire painters who were
paid by the employer who also decided how the rooms
were to be painted.)
In any event, as has been noted previously, after the
employment of Hammer in October 1968, it is clear that
Tafelsky's responsibilities other than selling were largely
being transferred to Hammer. With the exception of one
instance in which Hoyt claims that Tafelsky closed the
store early on a wintry night in January 1969 (denied by
Tafelsky), there is a paucity of evidence of exercise of any
alleged supervisory functions by Tafelsky after the advent
of Hammer. Even in those areas in which Tafelsky had
exercised some measure of discretion, the buying and
pricing furniture, the evidence indicates that Hammer
succeeded to Tafelsky's duties. This is graphically
illustrated by Hammer's attendance at the January
furniture market with Spurr, while Tafelsky remained at
home. Since Tafelsky bore no title, and the employees had
never been told that he had supervisory authority, his
position of influence over the other employees at best was
equivocal." If not substantially eroded by the obvious
evidence of Tafelsky's diminished responsibilities, any
position of influence which he may have had with the
employees was certainly destroyed by Respondent's
manifest displeasure with him in January and his
demotion to punching a timecard. The testimony of Spurr
and Mrs Leonard to the effect that they considered
Tafelsky to be a supervisor until the time of his discharge
is not credited.
In sum , it is found, as previously noted, that during the
times material to this matter Tafelsky was a full time
salesperson, and though he had exercised important
responsibilities during certain parts of his employment, he
did not possess or exercise supervisory authority over
employees within the meaning of the Act.
Although not argued or briefed by the parties, the
possibility has also been considered and researched that
Tafelsky might be considered a "managerial employee"
(defined by the Board as those employees who "formulate,
determine and effectuate an employer's policies " See
Howard Johnson Company, 174 NLRB No. 182, TXD),
and thus might not be entitled to protection under the
"Bertelle Ritter, Respondent ' s senior salesperson , whose testimony
exhibited a particular resentment toward Tafelsky , stated that he could do
things that the other employees could not do, because " it was accepted by
the Leonards and Mr Spurr and by Ardella [Hoyt]," while the others were
not
WILSON FURNITURE COMPANY
Act. Cf. N L.R.B. v. North Arkansas Electric
Cooperative, Inc, 412 F.2d 324 (C.A. 8).=' The issue is
troublesome and complicated by the fact that this point
was specifically not litigated in this matter. However, in
the present case, even if Tafelsky were considered to have
been a "managerial employee" within the Board's
definition at certain times during his employment (with
respect to his functions as a buyer and his apparent
authority to pledge Respondent's credit, see, e.g.,
Denton's, Inc, 83 NLRB 35; Swift & Co., supra; Howard
Johnson Company, supra), he clearly could not be
considered such after the confrontation with Mrs. Leonard
on January 17, 1969, and was certainly not a "managerial
employee" within the definition of the Board at the time
of his discharge on February 24, 1969.
The reasons given for Tafelsky's discharge were
obviously pretextual. The evidence clearly shows that
Tafelsky had been marked by Respondent for discharge
because of his union activities. Respondent, being aware
of the almost even division among the employees eligible
to vote, as has been noted, apparently decided that it
would be necessary to let Tafelsky go before the election
rather than await the outcome, as Hoyt stated was the
original contemplation of Respondent. Spurr's statement
to Tafelsky that the latter must have known that this was
"coming" had obvious reference to Respondent's
expressed displeasure with Tafelsky's Union activities. The
presence of the police and the instruction that Tafelsky
could obtain the compensation due him from
Respondent's lawyer are also incompatible with
Respondent's claim that this was a termination based
merely upon unsatisfactory performance.
The reasons given Tafelsky for his discharge also do
not bear up under analysis. The claim that Tafelsky was
difficult to contact when out of the store seems to have
reference to a time prior to the confrontation between
Mrs. Leonard and Tafelsky on January 17, which was
clearly brought on by Tafelsky's union activities. Though
Tafelsky admitted that he was remiss on occasion in these
matters, there is no claim that Respondent had ever
previously criticized him for such lapses, and at one point
in her testimony Mrs. Leonard actually praised Tafelsky
on this score, saying "he was very nice. He let the office
know where he was going and where he could be reached"
though no one kept account of his time when he was
engaged in sales activities out of the store. In the
circumstances, it is concluded that these omissions of
Tafelsky were not considered serious until Tafelsky began
his Union efforts, and were utilized against him in reprisal
for those activities.
Like Tafelsky's asserted delinquencies in letting
management know his whereabouts when out of the store,
his asserted failure to oversee the warehouse on
Saturdays, as noted previously, referred to matters which
"To this point , the Board has usually considered "managerial
employees" in the context of excluding them from bargaining units of
other employees , but in doing so has broadly stated , by way of dicta, that
because they are "allied with management ," "such individua ls cannot be
deemed to be employees for the purposes of the Act " See Swift & Co
115 NLRB 752, 754 But compare Packard Motor Car Co v N L R B,
330 U S 485, where the Supreme Court indicated that , in the absence of
statutory exclusion from coverage under the Act, individuals do not lose
the protection of the Act merely because they were allied with and acted in
the interest of their employer. Whether "managerial employees" as defined
by the Board are excluded from the protection of the Act, as supervisors
presently are under amendments to the Act following the Packard Motor
case, is now before the Board for decision in the North Arkansas case,
upon remand from the court
69
were not proximate to the time of his discharge, and were
brought up here to justify the action. Respondent made no
effort to support the accusation that Tafelsky had
threatened employees, or to contradict Tafelsky's
reasonable explanation for the decrease in his sales for the
month of January.
On the basis of the above and the record as a whole, it
is found that Respondent discharged Tafelsky because of
his Union activities and with a purpose of discouraging
membership in and adherence to the Union in violation of
Section 8(a)(3) and (1) of the Act.
Certain actions of Respondent with respect to Tafelsky
alleged to have been in violation of employee rights under
the Act have been hereinabove reserved pending resolution
of Tafelsky's status under the Act. It having been found
that Tafelsky was not a supervisor within the meaning of
the Act, and that he clearly did not enjoy any managerial
status after his confrontation with Mrs. Leonard on
January 17, 1969, it is held that Hammer's threats to
Tafelsky made on January 23 violated Section 8(a)(1) of
the Act. However, the claim that Mrs. Leonard's action in
ordering Tafelsky on January 17 to begin punching the
timeclock and threatening to reduce his pay violated the
Act raises some difficult problems, and would require a
determination as to whether Tafelsky was entitled to the
protection of the Act at that date. Inasmuch as I am
convinced that the threats of reprisal by Respondent
because of the employees' union activities, which have
been previously found, fully justify an order to
Respondent to cease and desist from threatening or taking
reprisals against employees for their union activities or
membership, I find it unnecessary to pass upon these
remaining issues.
C. The Refusal To Bargain
1. The appropriate unit
The complaint alleges and the answer admits that the
following, which was agreed in the consent election
agreement in Case 7-RC-9282, is an appropriate unit for
the purposes of collective bargaining within the meaning
of the Act: "All regular full-time and regular part-time
employees employed by Respondent at its stores located
at 123-125 South Union Street and 401 E. Eighth Street,
Traverse City, Michigan, including salesmen , office
clerical employees, warehousemen and maintenance
employees, but excluding technical employees, confidential
employees, guards and supervisors (including store
managers and assistant store managers) as defined in the
Act."
2. Eligible employees
A list of "employees as of January 17, 1969," obviously
prepared by Respondent, containing 25 names was
received in evidence. Respondent agrees with the General
Counsel that Beatrice Leonard, Frank W. Leonard, H. R.
Spurr, John Hammer , Ardella Hoyt, and Ivan Sanborn,
whose names appear on the list, are supervisors within the
meaning of the Act and as such should be excluded from
the unit. As previously noted Respondent also contends
that Tafelsky should be excluded from the unit as a
supervisor. With these exceptions, Respondent contends
that the remaining persons named should be included
within the unit. The General Counsel on two occasions in
the record seemed to agree with this position of
Respondent, except that he contended that Tafelsky
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be included in the unit.
However, it is noted that among those who would be so
included in the unit are Charles Phelps and David Spurr,
concerning whom the Regional Director states in his
"Report on Objections and Determinative Challenged
Ballots" in Case 7-RC-9282: "Both Employer and
Petitioner have submitted statements to the undersigned in
which both agree that Spurr and Phelps were not eligible
to vote, David Spurr being the son of Manager H. Russell
Spurr and Charles Phelps being the manager of the
Employer's Eighth Street store in Traverse City."
Other than this, the record in this matter shows that
David Spurr is involved in advertising functions for the
Respondent, and Phelps ordinarily operates the Eighth
Street store by himself and would appear to have little
contact with the employees engaged at the main store. In
the circumstances, it is concluded that David Spurr should
be included in the unit for the purposes of decision in
Case 7-CA-7230. There seems to be agreement among the
parties that he should be included, and the Board, in the
absence of agreement among the parties for such
exclusion, would not normally exclude an otherwise
eligible employee merely because he was the son of the
store manager See, e.g., Buckeye Village Market, Inc.,
175 NLRB No. 45. On the record as a whole, however, it
is found that Phelps is the store manager of the Eighth
Street store and as such is by definition of the unit
excluded from the appropriate unit found herein.
It is therefore found that as of January 17, 1969, and
thereafter, at times material to this matter, there were at
least 17 employees within the aforesaid appropriate unit,
or 18 including Tafelsky.
3. The Union ' s majority status
Of the 18 employees (including Tafelsky) in the
appropriate unit , 11 signed authorization cards
unambiguously designating the Union as their
collective-bargaining representative on or before January
17, 1969. Another such card was executed on January 27,
and still another on February 4, 1969 Respondent,
however, contends that a majority of the cards, which
were solicited and obtained by Tafelsky, should be
considered invalid for that reason. This contention will be
considered further hereinafter.
In addition , Respondent argues that the three cards
dated January 17, and 24, and February 4 should not be
counted because they were signed on the day the Union
made its request for recognition or thereafter; and that the
card of Marie Luehr should be invalidated on the basis
that, on cross-examination , she indicated that the purpose
in signing the card, was "only" to get an election.
However, since the Union repeated its requests in writing
on January 20 and 31, and from the nature of its demand,
it is clear that the Union's request for recognition and
bargaining was a continuing demand. Similarly,
Respondent' s response , particularly as set forth in its
letter of January 24, shows an adamant and continuing
rejection of the Union's demand, which would have made
further requests of the Union's part futile." In these
circumstances, it is found that, if otherwise valid, the
authorizations dated January '17 and 27, and that dated
February 4, 1969 should be counted as designations of the
Union.
19t is noted that Respondent 's letter, in addition to asserting a desire
that the Union 's representative status be determined through a secret ballot
election so that the employees could "express themselves in a free and
As to the card signed by Marie Luehr, there is no
question in my mind, from observation of the witness and
on the basis of the record as a whole, that it was
explained to her that the purpose in signing the card was
to secure representation through the Union, though an
election would probably later be required. Luehr read the
card before she signed it, and there is no evidence that she
signed it with any reservations or reluctance. Indeed, if
Mrs Leonard is correct, Luehr also voted for the Union.
4. Analysis and conclusions
Even though Tafelsky has been found not to have been
a supervisor at times material to this proceeding, there
can be no question but that his duties and responsibilities
during substantial parts of 1967 and 1968, including
pricing furniture, attending furniture markets with
Respondent' s management , holding the keys to the store
and the warehouse, assisting and advising the salespeople,
giving directions (though mainly routine) to the
warehousemen and the like, put him in a position in which
the employees could well identify him with the
management of Respondent and his actions with the
policies and desires of management. See McKinnon
Services, Inc , 174 NLRB No. 169. In such circumstances
generally, where the employees have good reason to
believe that the person soliciting authorizations for a
union occupies a position of trust with management and
speaks for management, the Board has voided the cards
obtained and held that the employer could not legally
recognize the Union so designated. See Hampton
Merchants Association, et al. 151 NLRB 1307; Sinko
Manufacturing and Tool Company, 149 NLRB 201; but
cf. Purity Food Stores, Inc (Sav-More Food Stores), 150
NLRB 1523.
In I A.M v. N L R B., 311 U.S. 72, where it was
contended that a union had been validly designated
because those soliciting cards for the Union were not
supervisors and could not be said to be acting for the
employer, the Court said (311 U.S at 80): "We are
dealing here . . . with a clear legislative policy to free the
collective bargaining process from all taint of an
employer's compulsion, domination , or influence. The
existence of that interference must be determined by
careful scrutiny of all the factors, often subtle, which
restrain the employees' choice and for which the employer
may fairly be said to be responsible. Thus, where the
employees would have just cause to believe that solicitors
professedly for a labor organization were acting for and
on behalf of management, the Board would be justified in
concluding that they did not have the complete and
unhampered freedom of choice which the Act
contemplates."
Thus authorization cards for a union have been held
equally tainted, and the employer equally responsible for
their solicitation , whether secured by a supervisor or by
one placed by the employer in a position where the
employees can with good cause believe that he speaks for
management . In either case, the law evinces the same high
regard for the right of the employees to exercise an
independent and voluntary choice, free from interference
untrammeled way," also claims a good faith doubt with respect to the unit
which the Union stated it represented This asserted doubt was not
supported at the hearing , nor is it argued in Respondent 's brief In any
event, the unit which the Union claimed to represent , "all regular full-time
and part -time employees , except supervisors and guards within the meaning
of the . Act," corresponds to the unit agreed by the parties in Case
7-RC-9282, and found herein
WILSON FURNITURE COMPANY
or undue influence by the employer, or the employer's
representative, in that choice.
In the present case, Tafelsky had for some time
occupied such a position of trust and influence with
Respondent. While it is true with the advent of Hammer,
as part of management, Tafelsky's former position was
being eroded, and, in fact, Tafelsky was clearly
dissatisfied with Respondent' s management (as evidenced
by his bitter discussion with Mrs. Leonard in
mid-January), in the absence of any evidence that this
dissatisfaction was communicated to the employees at the
time the majority of the cards were solicited, or that his
former position of high regard with management had
clearly been dissipated (as occurred in the discussion with
Mrs. Leonard and Tafelsky's being placed on the
timeclock thereafter), it is found that these cards
designating the Union were invalid and cannot be used to
establish the Union's representative status. It will
therefore be recommended that the allegations in the
complaint that the Respondent refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act be
dismissed.
71
decision in that case was its conviction that the Regional
Director, by not acting on the objections until the Board
affirmed the Trial Examiner, had, in fact, delegated to the
Board the decision in Ultsch's supervisory status, which
function, it is asserted, the parties in the representation
case had entrusted to the Regional Director alone. Thus
the court said, in pertinent part (411 F.2d at 192-193):
Precisely because of the scope given the Regional
Director in the manner of arriving at the decision which
by consent has been vested in him by the parties, it is
vital that he in fact, not merely in form, make that
decision and that the procedures adopted by him not be
inconsistent with the overriding purpose of securing an
expedited decision from the Regional Director himself. .
.. And if the procedures and circumstances leading up
to a resolution of a consent election controversy clearly
indicate an abandonment of decision making by the
Regional Director, we would deem this to be, however
well intentioned, just as "arbitrary and capricious" as
not holding a hearing in some cases. [citation omitted]
In our view the procedures and circumstances of this
case amounted to such an abandonment . .
III. THE OBJECTIONS TO THE ELECTION
A. Respondent 's Motion To Sever
As noted hereinabove , Respondent (in this section
referred to as the Employer ) asserts, on the basis of the
opinion in N L R B v Chelsea Clock Co., 411 F.2d 189
(C.A. 1), that the hearing on objections to the election in
Case 7-RC-9282 (the representation case) should be
severed from the decision on the allegations of the
complaint in Case 7-CA-7230 (the unfair labor practice
case ). It is contended that the delegation to the Trial
Examiner of the hearing on objections was improper
because the Employer , having executed an agreement for
consent election , had a right to a decision by the Regional
Director on the issues, with a saving of time and expense,
which could not be delegated ; and that by consolidating
the hearing on objections and the complaint case, the
Regional Director had, in fact , delegated his function of
adjudication to the Trial Examiner, which , the Employer
asserts, was arbitrary and capricious.
In Chelsea Clock , where the employer had also signed
an agreement for consent election , a majority of the
employees voted for the union there involved The
employer filed objections to the election on the ground
that one , of its asserted supervisors , Ultsch, had assisted
the Union . Ultsch also filed charges asserting that the
employer had discharged him in violation of the Act, upon
which the Regional Director issued a complaint, and,
since the supervisory status of Ultsch was material to both
cases, consolidated the two cases for hearing before a
Trial Examiner . The Trial Examiner found that Ultsch
had been a supervisor , but held that his activities did not
provide grounds for overturning the election , severed the
election case and remanded it to the Regional Director
After the Board affirmed the Trial Examiner, the
Regional Director confirmed the validity of the election
and certified the Union . This process, the court noted,
took 13 months from the election to the certification of
the union . The court held that the Regional Director's
actions were arbitrary and capricious , invalidating the
election and justifying the employer 's refusal to bargain.
While the court was highly critical of the time
consumed in processing the objections to the election in
Chelsea Clock, it is clear that the basis for the court's
The procedure followed by the Regional Director is
rendered even less acceptable by the availability of
alternatives. He could have reached a decision without
consolidation, or if consolidation were deemed
desirable, he could have severed the representation case
and decided it after the Trial Examiner determined
Ultsch's supervisory status We hold, in accordance
with the Board's well established rule, that the Regional
Director and not the Board must decide disputes in
consent elections. We add only that if the attractiveness
of consent elections is to be preserved, he must do so in
timely fashion.='
In the opinion of the Trial Examiner, the court's
decision in Chelsea Clock, does not support the
Employer's motion that the election case should be
severed and remanded to the Regional Director without
passing on the issues involved. The court did not hold, and
the Employer does not contend, that the Regional
Director is without authority to order a hearing on the
issues here involved, or that such a hearing may not be
held before a Trial Examiner Indeed, the court indicated
that where consolidation of the issues was deemed
necessary, it would be appropriate for the Regional
Director to reserve decision on the issues in the election
case until after the Trial Examiner's decision. Further, in
the present case, with the exception of one matter referred
to hereinafter, the issues in the representation and the
complaint cases are largely identical. And it has not been
shown that either time or expense would have been saved
"The court , in Chelsea , also stated that , in its opinion , the consolidation
there placed the Regional Director in a position of conflict of interest This
is not easy to understand It seems obvious that when a complaint is issued
(as in Chelsea or in the instant case) alleging a discharge in violation of the
Act, the Regional Director thereby states his determination , upon the facts
before him, that the individual discharged was not a supervisor excluded
from the protection of the Act The fact that the Regional Director may
(by consolidating an election case with the unfair labor practices case) at
the same time reserve decision on the same issue raised by objections to an
election, would seem to evidence merely a willingness in the election case
to reassess his prior determination upon a better record made at the
hearing, rather than a conflict of interest In any event, the employer in
this case has not specifically claimed any such asserted conflict of interest
in the consolidation of the issues here
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if the Regional Director had ordered two hearings instead
of consolidating the hearings, or if the Trial Examiner
severed the cases It being clearly evident that the
Regional Director had authority to note these matters for
hearing, and that the Trial Examiner had authority to
hear them and make such findings and conclusions as are
justified by the record, and in the absence of any other
good cause shown, the motion to sever, without decision,
is denied
B. Conduct Affecting the Election
In addition to the conduct of the Respondent -Employer
considered above, the objections to the election allege four
other instances of conduct which , it is asserted , improperly
affected the election . Of these, evidence has been noted
only in support of the allegation that the Employer, on the
day of the election , in the view and hearing of other
employees sought to prevent Tafelsky from voting and
called the police to remove him from the store premises.
However, since other conduct of the Employer occurring
prior to the election held on March 6, 1969, which has
previously been found in violation of the Act, interfered
with the employees ' free choice in the election , and, it is
found , furnishes ample grounds for invalidating the
election , it is unnecessary to pass upon this further
incident , which was not alleged as an unfair labor
practice It will therefore be recommended to the Regional
Director that the election in Case 7-RC-9282 be set aside
and that a new election be directed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All regular full-time and regular part-time employees
employed by Respondent at its stores located at 123-125
South Union Street and 401 E Eighth Street, Traverse
City, Michigan, including salesmen, office clerical
employees, warehousemen and maintenance employees,
but excluding technical employees, confidential employees,
guards and supervisors (including store managers and
assistant store managers) as defined in the Act, constitute
an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. By the acts and conduct herein found violative of the
Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, which unfair labor practices
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
5. Respondent has not violated Section 8(a)(5) of the
Act.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It will be recommended that Respondent offer William
Tafelsky immediate and full reinstatement to his former
or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him to the date of
reinstatement, less interim earnings, and in a manner
consistent with Board policy set out in F W Woolworth
Company, 90 NLRB 289, to which shall be added interest
at the rate of six percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co, 138 NLRB 716
In order to make effective for the employees of the
Respondent the guarantee of rights contained in Section 7
of the Act, it will be recommended that the Respondent
cease and desist from in any manner infringing upon the
rights guaranteed to that section
[RECOMMENDED ORDER omitted from
publication.]