The C. L. Bailey Grocery Co.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen and guards, and supervisors as defined in the Act, is appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] THE C. L. BAILEY GROCERY COMPANY and Bus, SALES, TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION No. 637, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L. Case No. 9-'CA-391. August 13, 1959 Decision and Order On September 13, 1951, Trial Examiner Henry J. Kent issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report, and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby af- firmed. The Board has considered the Intermediate Report, the ex- ceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following exceptions, additions, and modifications :1 1. We find, in agreement with the Trial Examiner, that the Union represented a majority of Respondent's truck drivers, warehousemen, and helpers at least until March 8; that on March 5, union representa- tives, Jones and Kolometz approached Respondent's president, Knox, with a request to bargain ; that Knox told Jones and Kolometz that he wished to have some time to consider the situation and discuss it with Respondent's board of directors before meeting again with the Union; and that the Union and the Respondent met on March 8 and May 24, 1951, without coming to any agreement. I We note and correct the following minor inaccuracies in the Trial Examiner 's findings, which do not affect the validity of his ultimate conclusions nor our concurrence therein : (1) Dale Berga , Jr , called Kolometz by telephone on the night of March 6 , 1951, and not on March 7, at stated on page 593 of the Intermediate Report; ( 2) Wagner joined the pickets about 8 o'clock and not, as found by the Trial Examiner on page 594 of the Inter- mediate Report, about 9 o'clock; (3) Sutton was called for active duty about 2 weeks after the strike, and not about March 15. 1951, as it appears in footnote 19, page 595 of the Intermediate Report ; ( 4) Wagner signed on March 9 an application card for the local dated March 7, and not, as found by the Trial Examiner on page 594 , footnote 17, a card on February 9 dated February J. 100 NLRB No. 94. THE C. L. BAILEY - GROCERY COMPANY 577 Beginning on March 6 and continuing through March 8, 1951, the Respondent, as found by the Trial Examiner, launched a campaign of unlawful interrogation and threats of reprisal, which campaign was calculated to restrain, coerce, and discourage its employees from joining or remaining members of the Union. On March 12, 1951, the Union filed the instant charges alleging violations of Section 8 (a) (1) and 8 (a) (5) of the Act. Like the Trial Examiner, the Board finds that by its campaign of interrogation, threats of reprisal, and other acts of interference, re- straint, and coercion, detailed in the Intermediate Report, the Re- spondent violated Section 8 (a) (1) of the Act. In addition, the Board finds that the following acts, which the Trial Examiner failed to find violated the Act, also constitute violations of Section 8 (a) (1) : 1. Knox asked Dale Beiga, Jr., if he had filled out union cards, and whether he had dealings with Kolometz and Jones. 2. Knox told Jahn not to sign up with the Union, and that he had promised the employees a raise in wages. 3. Best asked Oesterle if he had joined the Union. 4. Knox asked Oesterle if he had joined the Union. 5. Best asked Sutton if he was a member of the Union. 2. Although we affirm the Trial Examiner's finding that there was no violation of Section 8 (a) (5) of the Act by the Respondent, we do so for reasons different from those advanced in the Intermediate Report. The Trial Examiner found evidence to support the Respondent's assertion that the Union failed plainly to disclose that it was seeking to bargain for a departmental unit limited to warehousemen, truck drivers, and helpers. This issue was the subject of test3imony by Jones, a representative of the Union. Jones' several recollections of the language which he used in defining the unit to Kr ox` in his request to bargain on March 5, were as follows : "we were here letting him know that we represented a majority of his people"; "I told Mr. Knox that we had organized his men and represented a majority of them"; "I told Mr. Knox that we represented a majority of his employees." 2 We find that the Union failed clearly to identify the unit for which it sought to bargain, for it is clear that Jones' request to Knox might more reasonably, on its face and apart from any other factors, have been interpreted as a request to bargain on the basis of a plant-wide unit, in which the Union did not have a majority, 2 At the hearing Jones further recalled his request to bargain as follows : "I informed Mr Knox that we- represented a majority of the people", "we said we represented a majority of his employees " Jones' recollection is confirmed by Kolometz , who testified that Jones stated to Knox that "we were here letting him know that we represented the majority of his people" ; and by Knox, who recalled that the union representatives came into his office and told him "that our employees wanted to organize to join the Union " 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than a request to bargain in the department unit where the Union had majority representation. There remains the question whether the Union's request was subse- quently clarified as a request to bargain within the unit where it actu- ally had majority representation. The record supports the Trial Examiner's finding that, after Jones had orally requested Knox to bargain, he handed him a copy of a proposed collective bargaining agreement. The General Counsel excepted to the failure of the Trial Examiner to find that this contract definitively set forth the classifica- tions of employees proposed to be represented by the Union, and to find that the contract, therefore, clearly showed the nature of the smaller unit which the Union desired to represent. Under the circum- stances, in spite of Jones' earlier contrary description of the unit, was the information contained in the proposed contract sufficient to place the Respondent on notice that the Union only wished to bar- gain for a unit of truck drivers, warehousemen, and helpers, rather than for all the employees. We think not. The pertinent provisions of the proposed agreement are as follows : ARTICLE 1. Union Security Section 1. The Local shall be the sole representative of all clas- sifications as covered by this agreement in collective bargaining with the Employer. ARTICLE 12. Wages The follow ing rates of pay shall be in effect during the period of this Agreement. Drivers_________________________ $1.50 per hour Warehousemen and Helpers______ $1.40 per hour Trial employees__________________ $1. 30 per hour for first 30 days, then they shall receive the rate of pay for the classification that is assigned to them. When this contract was presented to him, Knox glanced only at the wage rates set forth in Article 12, which is located on the last page of the contract 3 He did not look at Article 1 on the first page. There- fore, if he saw the classifications enumerated in article 12, Knox could not have known, in view of the relationship between article 12 and article 1, that these classifications of employees comprised the entire unit requested by the Union. Moreover, on the first page of 3 Knox asserted that the wage rates contained in the proposed contract were unduly high , but he did not say, contrary to the Trial Examiner 's finding on page 591 of the Inter- mediate Report , that wage rates for warehousemen and truck drivers were unduly high. Knox did not mention any employee classifications in his remark. THE C. L. BAILEY GROCERY COMPANY 579 the contract appeared the name of the Local, namely Bus, Sales, Truck Drivers, Warehousemen and Helpers, Local Union No. 637. From this name, Knox might well have found support for inter= 1)reting the Union's bargaining request as one for a broad over-all unit .4 When the language of the contract is considered, not only in con- nection with Jones' unequivocal description of the unit, but also with the name of the Local seeking to represent such unit, it is apparent that the Union did not define the smaller unit which it now claims to be appropriate as the unit it was seeking to represent. In view of the prohibition of the Act against recognition by an Employer of a union which does not represent a majority,' we do not believe it incumbent on an employer to resolve an ambiguity in a request to bargain. On the contrary, we believe that a union representative, who is pre- sumably versed in labor matters, should clearly define the unit for which recognition is sought. Such a requirement imposes on the union representative only the obligation to say what he means. Fail- ing to do so, he cannot be considered as having made the sort of request to bargain which imposes upon an employer a legal obligation to com- ply. It is not "nice rigidity," as our dissenting colleagues call it, for this Board to require that those who invoke its services should first fulfill their own obligations. We believe that the present case is controlled by the Board's deci- sion in Barlow-Many Laboratories, Inc s In that case, the union did not represent a majority in the claimed unit, and made no request for bargaining in the unit found by the Trial Examiner to be appro- priate, in which it did have a majority. The Board there held that a prior appropriate request to bargain is a condition precedent to an 8 (a) (5) finding; as there had been no such request, it found no violation of Section 8 (a) (5). The principle there set forth is, in our opinion, applicable to the present case. Here, the Union neither represented a majority in the plant-wide unit for which we find it did request bargaining, nor requested bargaining for the smaller unit of truck drivers, warehouse- men, and helpers in which it did represent a majority. In fact, as late as May 24, 1951, the Union persisted in describing the unit in the loose manner in which it made its original request. On that date, the Union filed an amended charge in which it was stated that "we organized the 4 Thus, as salesmen and clerical employees , in addition to truck drivers , warehousemen, and helpers , comprise the entire complement of employees at the Respondent 's plant, the word "Sales" in the name of the local gives rise to a reasonable inference , when associated with Jones ' oral request, that the Union wished to represent a plant-wide unit. 5 The Board has held It to be an unfair labor practice for an employer to give exclusive recognition to a union not representing a majority . Ken-Rad Tube and Lamp Corporation, 62 NLRB 21 ; see also Barloio-Haney Laboratories, Inc, 65 NLRB 928 (Member Houston dissenting) U Footnote 5, supra 227260-53 -vol 100-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of the employees of the C. L. Bailey Grocery Com- pany.... While charging us with placing undue emphasis on the oral descrip- tion of the unit and with disregarding the description of the unit set forth in the contract, our dissenting colleagues would have us accord controlling weight to the delimitation of the unit in the contract and disregard the remarks of Jones as of no nioment. This we cannot do. In our view, each description of the unit must be considered in the light of the other, and when so considered, we do not understand how here they can be regarded as less than mutually inconsistent 7 In so holding, we are not asking labor organizations to observe the intricacies of the law of property. We require no words of art, or words without which a request to bargain is not proper, but only, as we have already emphasized, that a labor organization in words of its own choice clearly communicate to the Employer the extent of the unit of employees for which it wishes to bargain. No proper request to bargain having been made, there was no obliga- tion on the Respondent to bargain collectively. , It therefore becomes immaterial whether, as found by the Trial Examiner, the Respondent's doubt as to the majority was made in good faith. We shall accord- ingly dismiss the complaint herein, insofar as it alleges that the Respondent unlawfully refused to bargain with the Union. Order - Upon the entire record in the case, the National Labor Relations Board hereby orders that The C. L. Bailey Grocery Company, Marietta, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees concerning their membership and activities in a labor organization. (b) Promising and instituting changes in wages during a period when a question of representation is pending. (c) Requesting employees to resign from their membership in a labor organization. (d) Threatening to discontinue its business operations or other- wise threatening employees with economic reprisals if they become organized. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization to form, T In Jackson Pre88, Inc., relied on by our colleagues ( footnote 10), the unions re- questing bargaining asserted to the Employer that they were claiming representation for the employees on a list of names which was handed to the Respondent when the request to bargain was made. In that case , as distinguished from the instant case, oral reference was made to the- accompanying document as containing the names of employees for whom the unions wished to bargain. THE C. L. BAILEY GROCERY COMPANY 581 join, or assist Bus, Sales, Truck Drivers, Warehousemen and Helpers Local Union No. 637, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities except to the extent that such right may be affected by agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which it is found will ef- fectuate the policies of the Act : (a) Post at its plant in Marietta, Ohio, copies of the notice attached hereto and marked "Appendix A." 8 Copies of said notice, to be fur- nished by the Regional Director of the Ninth Region, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order what steps Respond- ent has taken to comply with the foregoing recommendations. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (5) of the Act. MEMBERS HOUSTON and STYLES, dissenting in part: We disagree with that portion of the majority's decision which dis- misses the 8 (a) (5) allegations of the complaint. Our colleagues find that the Union's bargaining request was for a plant-wide unit in which it lacked a majority, rather than for the departmental unit in which it did have a majority and that the Union thereby failed to fulfill the condition precedent to the Respondent's obligation to bargain. In so doing, our colleagues seem to be undisturbed that this unrealistic ap- proach permits a glaring evasion by this Respondent of its collective bargaining obligations under the Act. Arbitrarily removing from context Jones' remark to Knox that the Union "represented a majority of his employees," our colleagues forth- IIn the event that this order is enforced by a decree of a United States Court of Appeals. there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with find in this and similar utterances, a request to bargain in a plant-wide unit. Then, by assuming as proved the very issue in dispute, the majority states that "there remains the question" as to the clarifying effect of the contemporaneously proferred agreement upon the Union's unit request. But our colleagues gainsay the effec- tiveness of the agreement by a strange preoccupation with Knox's reading habits. Thus Knox's glance fortuitously omitted Article 1 with its unit description, alighting instead upon article 12. There- fore, the majority concludes, Knox could not have known that the classifications of drivers, warehousemen, and helpers listed in article 12 made up the proposed unit. Furthermore, our colleagues continue, in glancing at article 12, Knox gave no sign by his remarks that his glance was other than selective, taking in the high wage rates but happily omitting the parallel job classifications. "Knox might very well have found support for interpreting the Union's bargaining re- quest" as embracing salesmen and clericals, our colleagues add, in the inclusion of the word "Sales" in the name of the Union on page 1 of the contract. Aside from the fact that the Respondent first raised any question as to the unit in its answer to the complaint, no explana- tion is furnished how, if Knox perused only Article 12 on the last page, his selective glance nevertheless took in the name of the Union on page 1. Even assuming that Knox read the name of the Union, we fail to comprehend by what logical process of extension of terms, the word "Sales" gives rise to "a reasonable inference, when associated with Jones' oral request," that the Union also wished to represent the Respondent's office clericals .9 In this tortuous manner our colleagues find ambiguity in the scope of the Union's unit request while at the same time admonishing the Union to say what it means. We reject this reasoning. We think a union emphatically says what it means when it hands an employer a proposed contract clearly defining the unit in which it seeks to bargain. The mere fact that Jones inadvertently but under- standably used the phrase "a majority of [your] employees" or "people" rather than precise lawyer formulae, does not for us throw the Union out of court. Realistically construed in the context of an initial bargaining request, Jones' statements constituted nothing more than customary usage in trade union circles. Moreover, even if we were to examine the statements with the punctilio of our colleagues, we perceive no explicit mention therein of recognition, bargaining, or contract. Manifestly, the Respondent was not called upon to bargain with the Union on the basis of Jones' introductory comments-which seems to be the test applied by our colleagues-but in response to the 0 we are unaware that the Board has hitherto regarded union appellations or jurisdic- tion as of moment in representation matters. THE C. L. BAILEY GROCERY COMPANY 583 definitive request for those "employees" specifically delineated in the contract unit 10 In these circumstances, we should have thought that this Board would desire to employ a construction built of substance and not formalism. Instead, our colleagues in effect compel labor organiza- tions to approach the beginning of collective bargaining relationships with the nice rigidity of the lawyer who draws deeds or wills. Nor will a written unit claim which meets Board tests suffice because an employer may read it selectively or may not read it all. We cannot subscribe to a decision which so encumbers the bargaining process at its initial and crucial stage. On the contrary, we share the view expressed by the court in rejecting a narrow approach to the question of the existence of a proper request to bargain that- The Labor Management Relations Act is not a statute of frauds or an act prescribing the formalities of a conveyancing. No seal is required by its terms. Nor is any formula or form of words."' Consequently, we would find that on March 5, the Union made a proper request that the Respondent bargain in an appropriate unit of drivers, warehousemen, and helpers in which it had a majority. * Ac- cordingly, unlike our colleagues, we do reach the Trial Examiner's finding that the Respondent, in refusing the Union's request, was motivated by a bona fide doubt both of the Union's majority and of the unit claimed. In this, we believe the Trial Examiner erred. Faced with the Union's request on March 5, Knox expressed surprise that the employees wanted representation. He raised no unit issue. On March 6, 7, and 8, as we have found, the Respondent committed numerous unfair labor practices. Kolometz on March 8 asked Knox if the Respondent was ready to respond to the Union's bargaining pro- posal. Again there was no discussion of the propriety of the unit. In- stead, Knox replied that he "absolutely wanted no part of [the Union] ." On March 9 the Union called a strike of the Respondent's employees. On the same day, the Respondent's attorney, Fogle, informed the Union that if proof of majority were submitted, the Respondent would decide whether to invoke Board-representation procedures or volun- tarily recognize the Union. Here again no inkling was given that there was a unit issue between the parties. The Union made no reply and continued the strike until April 3. On May 24 the union repre- 10 In Jackson Press, Inc., 96 NLRB 897, the unions sought a unit of pressmen and their assistants excluding cutters and folders in the bindery and phrased their oral re- quest as "the employees of the pressroom . . ." at the same time handing the em- ployer a list of names consisting only of press employees The pressmen worked in the pressroom which also contained the bindery in another part of the same room. The Board regarded inter alia the simple display of the list of names as definitive of a request for a unit of pressmen. "Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732, 741 (C. A D. C.), enforcing as modified, 85 NLRB 1263 , and quoting from Lebanon Steel Foundry Co . v. N. L. R. B , 130 F. 2d 404 , cert. den., 317 U. S. 659. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives met with Fogle and requested that he negotiate a contract. Fogle asserted that the Union was not the majority representative, refused to agree to a check of cards against the March 5 payroll, and proposed instead a consent election. Jones stated that the Union did not have a majority on May 24 "because practically all the men were gone except two." The campaign of interrogations, threats of reprisal, and promises or benefit upon which the Respondent embarked immediately fol- lowing the Union's request to bargain cannot be viewed in isolation. They stamp the Respondent's refusal from the very outset as having been motivated not by honest doubt as to the Union's representative status but by a desire to gain time within which to undermine the Union's majority standing. The Respondent's belated attempt on March 9 to put the Union to proving its majority 12 came after the Respondent had already made its position abundantly clear both by the repeated violations of the law and the emphatic assertion of the_ day before that it "absolutely wanted no part of [the Union]." In the face of this patent rejection, we do not believe the Union was obliged to indulge in the obvious futility of revealing its cards 13 Nor are we impressed by the Respondent's apparent willingness to agree to a consent election after the termination of the Union's un- successful strike for recognition. Having succeeded by its conduct jn creating a coercive atmosphere thereby making a free choice of bargaining representatives impossible, the Respondent cannot now be heard to say that it sought a Board election to resolve a doubt as to majority or as to unit which it did not sincerely entertain 14 In the -latter connection, Jones and Kolometz testified, without contradiction, that at no time in the negotiations did the Respondent voice any objection to the unit. In any event, in view of the foregoing, we are of the opinion that the Respondent's refusal to bargain was no more motivated by good-f aith doubt of the unit than of the majority but rather by a complete rejection of the collective bargaining principle 15 12 The Trial Examiner found that on March 5, the Respondent questioned the Union's assertion of majority and that therefore the Union should have proved its majority. This finding is not supported by the record. Knox testified that, when the Union rep- resentatives approached him, he felt sure the Union did not have a majority of his employees and, therefore, he refused to sign the contract However, it is clear that the words "majority" or "majority of employees ," were not used by Knox in his conversa- tion with Jones and Kolometz , and that Knox did not state that he doubted the Union represented a majority. "Everett Van Kleeck & Company, Inc., 88 NLRB 785, enfd. 189 F. 2d 516 (C A. 2) 19 Everett Van Kleeck & Company, Inc., supra; Joy Salk Mills, Inc v. N. L. R. B., supra; N. L. R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1). 15 Inter-City Advertising Company, 89 NLRB 1103 , enfd. 190 F. 2d 420 ( C. A. 4), cert. den., 342 U. S. 908 , The court , citing N. L. R. B. v. Bites-Coleman Lumber Co., 98 F. 2d 18, 22 (C. A 9), upheld the Board's findings that the union's written request suffi- ciently defined the unit and that, in any event , the employer did not ask the union to clarify its unit claim but was, instead , motivated in its refusal to bargain by a positive rejection of the collective bargaining principle. THE C . L. BAILEY GROCERY COMPANY 585 Accordingly, we would find that on March 5, and at all times there- after, the Respondent refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the unit found appropriate, in violation of Section 8 (a) (5) and (1) of the Act. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : • WE WILL NOT interrogate our employees as to union activities in our plant, threaten our employees with loss of work, or other economic reprisals because of their union affiliation or activities, request our employees to resign from any labor organization, or promise to institute wage increases when a question of representa- tion of our employees is pending. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Bus, SALES, TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION No. 637, affiliated with THE INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, or any other labor organization to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from becoming or remaining, members of Bus, SALES, TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION No. 637, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. THE C. L. BAILEY GROCERY COMPANY, Employer. Dated-------------------- By-------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report STATEMENT Or THE -CASE Upon charges duly filed by Bus, Sales Truck Drivers, Warehousemen and Helpers Local Union No. 637, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint dated May 29, 1951, against C. L. Bailey Grocery Company, of Marietta, Ohio, herein called the Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, all charges filed by the Union and served upon the Respondent together with notice of hearing thereon were duly served upon the parties. With respect to the unfair labor practices, the complaint, as amended, alleged in substance that the Respondent (1) on or about March 5, 1951, and thereafter refused to bargain collectively with the Union as the exclusive representative of the Respondent's employees in an appropriate unit; and (2) that Respondent otherwise interfered with the rights of employees to freely organize particularly from March 5 to March 9, 1951, by : a. Questioning and interrogating its employees regarding their union member- ship and activities. b. Requesting its employees to resign from the Union. c. Promising wage increases to discourage activities and membership in the Union. d. Threatening to close down its business if the employees persisted in their union activities. e. Promised wage increases in derogation of the exclusive bargaining status of the Union. f. Unilaterally granting a wage increase on or about April 1, 1951. In its answer duly filed the Respondent generally admitted the factual al- legations concerning the nature of its business operations, but denied engaging in any of the unfair labor practices alleged in the complaint and further affirmatively averred in substance that it had announced a wage increase to its employees to become effective on March 1, 1951, before receiving knowledge of any-union activities, and that the increase was thereafter deferred until April 1, 1951, in order to avoid filing a special report in addition to the regular quar- terly reports required by the United States Government regarding social security and withholding income tax returns. Pursuant to notice, a hearing was held from June 18 to 23, 1951, at Marietta, Ohio, before the undersigned Trial Examiner duly designated to conduct the hear- ing by the Chief'Trial Examiner. The General Counsel, the Respondent, and the Union were all represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, over objection from counsel from the General Counsel, the undersigned granted a motion by the Respondent to exclude all witnesses from the hearing except two representatives of the Union and two representatives of the Respondent, until they had given their testimony for the x The General Counsel and his representative in this case are referred to herein as the General Counsel. The National Labor Relations Board is referred to as the Board. THE C. L. BAILEY GROCERY COMPANY 587 respective parties? At the same time a motion by the Respondent to dismiss the complaint, because the allegations in the complaint were broader than the averments in the charge, was denied. At the close of the heaping, a motion by the General Counsel to conform the pleadings to the proof in respect to formal matters was granted. The parties were then afforded but waived an opportunity to present oral argument and were granted 20 days' time to file briefs. Time was thereafter extended until August 23 to file briefs, and briefs from the Respondent and the General Counsel have been duly received. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The C. L. Bailey Grocery Company, an Ohio corporation, is engaged in the buying and wholesale sale and distribution of groceries, having its offices and only place of business at Marietta, Ohio. During the past year it has sold approximately $1,500,000 worth of goods, about one-third of which was shipped and delivered to points from its warehouse in Ohio to points in the State of West Virginia. During the same period of time, it purchased goods for resale in excess of $1,000,000, about 80 percent of which was received from points without the State of Ohio. II. THE ORGANIZATION INVOLVED Bus, Sales, Truck Drivers, Warehousemen and Helpers Local Union No. 637, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. Factual and labor relations background For many years past the Respondent has operated its wholesale grocery business in a three-story building located in Marietta, Ohio. Its offices are located in the front half of the first floor. The remainder of the first floor is occupied for warehouse purposes with a loading dock extending across the rear of the premises.' The basement, and the second and third floors are used solely for warehouse purposes. In connection with the business operations, the Respondent employs 6 outside salesmen who work on a weekly salary basis under the immediate supervision of Robert Knox, the Respondent's president ; 6 female clerical employees who, work 40 hours per week on an hourly rate under the immediate supervision of Gill Lindamood, the Respondent's secretary-treasurer, and are principally en- gaged in nonmanual work, involving bookkeeping operations, the typing of bills, S The hearing was held in a large assembly room on the ground floor of the Washington County Court House at Marietta , Ohio, and because there was no suitable place nearby for the witnesses to sit while waiting to be called to testify, they were permitted to sit in the rear of the room about 80 feet distant from the actual situs of the hearing, L The office is separated from the warehouse space by a wall containing three doors with upper panels of glass which doors open into the warehouse space. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and invoices all of which work is done in the plant office ; and 15 other rank- and-file male employees who work under the immediate supervision of Arthur Best, the warehouse foreman. This latter group is comprised of warehousemen, truck drivers, and helpers, all of whom are hourly paid, usually on a 45 hour a week basis. The record is not entirely clear as to which employees in the warehouse department customarily engage mainly in trucking operations, but shows that the full time of all employees in this category is not spent on truck- ing operations and that they spend a substantial part of each day at the ware- house doing the same work as that performed by the inside warehouse employees. As indicated by the small total number of employees, the business is a com- paratively small one for a business of this kind, and that consequently there is some overlapping in the duties carried on by the outside salesmen, the ware- house, and the trucking group. For instance, some of the salesmen work in the warehouse an hour or two each week checking stock inventories with ware- housemen. Salesmen also go into the warehouse occasionally to pick up samples, or other cartons of small items, to take with them on their sales route and on occasions they sell and make delivery of such items to customers from the small stock they carry in their automobiles. On rather infrequent occasions, salesmen make deliveries of a case of canned goods or a large carton of packaged sugar to one of their regular retail store customers, but they never make deliveries of a substantial part or a complete customer's order. Truck drivers occasionally take orders from a customer when making a delivery, and they thereafter turn such orders into the Respondent's office to be regularly handled, but truck drivers are not required to solicit orders from customers. Insofar as the record shows, no labor organization ever attempted to organize any of the employees before February 1951, when the charging union herein started its organizational campaign. In July 1950, Foreman Best hired one Gene Mathews for work as a city truck driver. A few days after Mathews started to work (according to the credited and undenied testimony of Raymond Schulteis, a warehouse worker) Knox came out to the loading dock and in the presence of Schulteis criticized Best for hiring Mathews because, according to Knox, Mathews was reputedly a union agitator. Schulteis further credibly testified that he interposed on this occa- sion and told Knox that he, Schulteis, was well acquainted with all the mem- bers of the Mathews family and felt sure that Mathews would cause no trouble at-the plant, whereupon Knox walked away after warning Best to keep his eye on Mathews.4 and to discharge Mathews if he started any trouble. 2. The organization of warehousemen and truck driver employees by the Union William Kolometz, a witness called by the General Counsel, credibly testified without contradiction that: he is the business representative of the charging Union ; he met with Dale Berga, Jr. (an over-the-road truck driver for the Re- spondent) in February 1951 and gave Berga a supply of union cards entitled "Teamsters Union Authorization Cards," requesting Berga at the time to solicit fellow employees to sign the cards; later in February Berga returned 9 of the cards which had been signed by some of the Respondent's employees working as warehouse employees, truck drivers, or helpers under the supervision of the warehouse foreman, Arthur Best ; and thereafter Kolometz called an organiza- 4 Mathews thereafter was not subjected to any discriminatory treatment ; he joined the Union in February 1951 ; went out on strike with other union adherents on March 9, 1951; and was reemployed early in April 1951, after the strike was abandoned under circum- stances not shown by the record. THE C. L. BAILEY GROCERY COMPANY 589 tional meeting of the employees who had signed said authorization cards at the home of employee Edward Skinner, one of the signers, on the night of February 27, 1951. According to other undisputed and credited testimony by Kolometz, Lewis Jones (secretary-treasurer of the charging-local union) and Kolometz attended the meeting held in Skinner's home on behalf of the Union and eight of the nine employees who had signed the authorization cards, namely Gene Mathews, Barry Sutton, Raymond Schulteis, Roy Berga, Robert Patterson, Edward Jahn, Dale Berga, Jr., and Edward Skinner were also present there.' Kolometz further credibly testified without contradiction that the above named eight employees all signed application cards for "Teamsters, Chauffeurs, Ware- housemen and Helpers Union, Local No. 637" at this meeting, in his presence and on his request, and that after a short discussion regarding the provisions to be included in a proposed collective bargaining agreement with the Respondent, Jones asserted in substance that it was the Union's policy to take a strike-vote when organizing employees in case it later was deemed advisable to exert eco- nomic pressure to bolster up negotiating demands, whereupon a strike-vote was taken among the employees present at the meeting and unanimously passed, and that the employees were then told the Union would call upon the Respondent on the following Monday to negotiate an agreement. 3. The appropriate unit and representation of a majority therein The complaint alleges : "All truck drivers, warehousemen and helpers employed by the Respondent, excluding all office and clerical employees, and all guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act." The Respondent's answer asserts, in effect, that the Union claimed to represent a majority of all nonsupervisory employees' and, in effect, urges in its brief that in view of the limited scope of its operations a plant-wide unit including outside salesmen and the office clericals together with the warehouse group constitute a more appropriate unit. At the hearing, the Respondent offered evidence as related above, in section A-1 of this report to show an overlapping of functions particularly in respect to the work performed by outside salesmen, warehousemen, and truck drivers. As shown above, the undersigned found that there was some overlapping of functions in the duties performed by. salesmen, warehousemen, and truck drivers, but the record as a whole discloses that such overlapping does not exist to a substantial degree. In addition, the salemen are paid on a salary basis and work under the direction of Knox, Respondent's president, whereas the warehouse group are paid on an hourly basis and work under the almost exclusive super- vision of Best, the warehouse foreman. Authority to determine the appropriateness of a bargaining unit is solely vested in the Board by the Act. The Board, substantially always, has found that ware- house employees and truck drivers may constitute an appropriate bargaining Raymond Wagner, a deaf mute, who had also signed one of the nine authorization cards, did not attend this meeting. O The amended charge filed by the Union on May 23, 1951, states : "We organized the majority of the employees of the C. L. Bailey Grocery Company, 135 Second Street, Mari- etta, Ohio, on Tuesday. February 27, 1951." And thereafter, when the union representa- tives presented a proposed contract the name of the Union appearing therein was stated as Bus, Sales , Truck Drivers, Warehousemen and Helpers , Local Union No. 637 . On this occasion the union representatives also orally claimed to represent a majority of all the employees of the Company. 590 DECISIONS OF NATIONAT LABOR RELATIONS BOARD unit and it has customarily excluded salesmen and office clerical employees from such a unit.? Accordingly, in conformance with established Board policy, I find that the 15 rank-and-file employees consisting of warehousemen, truck drivers, and helpers in the so-called warehouse department, and who comprise an integrated, homo- geneous; bangainiiig unit, constitute an appropriate collective bargaining unit within the meaning of Section 9 (b) of the Act. The record shows that Arthur Best, the warehouse foreman, has authority to hire, discharge, and transfer employees within the unit and therefore I find that he should be excluded from a bargaining unit because he is a supervisor as defined in the Act. The record convincingly shows that 8 of the 15 rank-and-file employees in the above-described unit voluntarily signed application cards for the Union at the meeting held at employee Skinner's home on February 27, 1951, thus designating the Union to represent them as bargaining agent. In addition to the above findings regarding what transpired at the first meeting of the parties on March 5, 1951, Knox further testified in substance, that the Union insisted he sign a contract almost forthwith, that after he refused to do so and stated that he wanted time to consider the matter and to discuss it with Respondent's board of directors, the parties mutually agreed to meet again in about a week. Knox further testified that on one occasion during the discussion which lasted about one-half an hour he, Knox, had requested the Union to submit a list of names of the employees represented by the Union, but that the Union refused to do so. Jones and Kolometz in substance admitted urging Knox to negotiate an agreement promptly, but each denied that Knox had requested a list of names of the union adherents, but admitted that Knox agreed to meet with them again in about a week. Although the undersigned concludes that neither the Respondent's nor the Union's version in respect to the proceedings had on March 5 was entirely ac- curate, it conclusively appears that Knox expressed surprise when the Union asserted that it represented a majority of the Respondent's employees and in substance disputed this claim, and that the Union on this occasion, neither expressed nor evinced any willingness to furnish proof to support its claim.' Furthermore, the verbal assertion by the Union that it represented a "majority of all the Respondent's employees" in conjunction with the ambiguous name adopted by the charging local, namely Bus, Sales, Truck Drivers, Warehousemen and Helpers, Local No. 637, lends support to Respondent's assertion that the Union failed to plainly disclose that it was seeking to bargain for a departmental unit as set forth in the complaint rather than a plant-wide unit which latter unit the Respondent asserts should constitute the appropriate bargaining unit. Although Edward Jahn, one of the eight employees who signed an application card at this February 27 meeting, thereafter voluntarily quit his job on March 8, 1951, he, Jahn, never took any steps to set aside his formal designation of author- ity given to the Union to represent him. Accordingly, I find that the Union, in fact, was the majority representative of the employees in the above-found appropriate unit until, at least, March 8, 1951 s 7 California Cigarette Concessions, Inc., 91 NLRB No. 123; Hannaford Bros. Co., 78 NLRB 869. 8 The record shows that Knox had been employed in this business for substantially all of his adult life, that he had been managing head of the business since 1931, and during this time the Respondent had never had occasion to deal with any labor organization representing any of the employees 9It is established by a long line of Board and court decisions that the majority status of a labor organization may be predicated upon application cards See, e. g., Harris- Woodson Co. Inc., 77 NLRB 819; Nubone Corset Company, Inc., 62 NLRB 322, enfd. 155 F 2d 588 (C. A. 3) ; Lancaster Garment Company, 78 NLRB 934; Lebanon Steel Foundry Company v N. L R. B., 130 F. 2d 404 (C. A. D. C.). 'THE - C. L. - BAILEY' GROCERY, COMPANY 591 4. The requests to bargain ; interference, restraint, and coercion ; and the strike a The first bargaining meeting on March 5, 1951 It is undisputed that Jones and Kolometz, the two above-mentioed represent- atives, met-with Knox (Respond'ent's President) on Monday afternoon March 5, 1951, at the latter's office in the plant; that on this occasion, after Jones had introduced himself and Kolometz as representatives of the charging Union, Jones asserted to Knox that the Union represented a majority of all the Respond- ent's employees [emphasis supplied], whereupon Knox in substance asserted he was surprised to learn that any of the employees wanted union representa- tion; " that the three men then stepped into Knox's private office where Jones handed Knox a copy of a proposed collective bargaining agreement (in evidence) which Knox hurriedly scanned over, and then asserted that wage rates stated therein for warehousemen and truck drivers were unduly high ; and that. Knox then insisted he would require time to consider the situation and also to discuss it with the Respondent's board of directors before meeting again with the Union." b. Interference, restraint, and coercion 1. By Respondent's president, Knox Raymond Schulteis, a warehouse employee called as a witness by the General Counsel, credibly testified, in substance, and without denial: He was putting up an order for delivery near a small office in the plant used by the salesmen when Knox asked him to step into the nearby office as Knox wanted to talk to him; that Schulteis complied with the request, whereupon Knox then asked Schulteis if the latter had been asked to join a union and also whether Schulteis had done so, and that after he, Schulteis, stated in substance that he was unwill- ing to discuss the matter with Knox, Knox then told Schulteis that two union officials had called on Knox on the day before and made wage demands beyond the Respondent's ability to meet, and that Knox then told Schulteis the Respond- ent had already decided to give the employees a wage increase before the Union came on the scene, but the appearance of the Union might upset the plan. During his later cross-examination Schulteis further testified that his first understanding was that an immediate raise was contemplated until Knox later explained that the increase would not be given until April 1, 1951, due to accounting difficulties, and that this was the first information Schulteis had received concerning the proposed increase. Knox, when he was later called as a, witness for the Respondent failed to contradict Schulteis' above version of the March 6, 1951, conversation with Schulteis. He frankly admitted that he had engaged in conversation regarding union activities with several employees after March 5, 1951, but credibly asserts in substance that he endeavored to make plain to the employees that they were 1O Kolometz admitted during cross -examination that he had instructed the union ad- herents when conducting , organizational activities to carry in these activities quietly and unobtrusively and to avoid discussing matters of union concern to persons who were not adherents of the Union . There is no convincing direct evidence in the record showing that the Respondent had any knowledge of these activities before march 5. Knox testified that the first information received concerning such activities came from the union repre- sentatives at this meeting . Because Knox's testimony in this respect has not been fin- peached or otherwise convincingly discredited , I accept it as credible and true. 11 The above findings are based upon the testimony given by witnesses Kolometz , Jones, and Knox which is in substantial agreement. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free to engage in such activities ." In addition , according to undisputed testi- mony by Knox and Best, the Respondent had intended to grant wage increases to the warehouse employees on March 1 , 1951, but later deferred the effective date of the proposed increases until April 1, 1951, after Lindamood, Respondent's treasurer, told Knox, on or about March 2 or 3, 1951, that if wage increases were granted in March the United States Government would require special reports regarding income tax withholding data and social security returns, in addition to, the, regular quarterly returns pertaining to these matters required of employers at the beginning. of each quarterly yearly' period." On the other hand, substantially all of the witnesses called by the General Counsel in substance denied that they had ever received any information that the Respondent intended to grant them a wage increase until after the union representative had called on Knox regarding contract negotiations on March 5, 1951. Since the testimony of Knox and Best regarding the Respondent's initial intention to grant a wage increase on or about March 1, 1951, to the warehouse employees has not been discredited or impeached, I conclude and find that although Respondent may have tentatively decided to grant a wage increase at this time, it made no formal or other announcement regarding the proposed wage increase to its employees until after the Union had submitted its claim of majority representative to the Respondent on March 5, 1951. 2. By Foreman Best Schulteis further credibly testified, in substance, that a day or two after Knox interrogated Schulteis regarding union activities he, Schulteis, overheard employees Mathews, Sutton, and Cunningham discussing the Union with Best, that on this occasion Best turned toward Schulteis and asked the latter, "What are you going to do," whereupon after Schulteis replied, "I am going to do what the majority do," Best asserted, "Hell they will put its all out of a job,"-"We will all be out of work." Employee Edward Skinner, also a witness called by the General Counsel, cred- ibly testified without denial that on March 7 or 8, 1951, Best came to Skinner while the latter was at work in the warehouse and told Skinner that Knox had requested Best to ask Skinner if the latter had signed a card for the Union, that Skinner replied "Yes," and that about 1 hour later Best returned and asked Skin- ner to send in a letter of resignation to the Union, but that Skinner refused to do so. Employee Edward Jahn, another witness called by the General Counsel, credibly testified without denial, that he had signed an application card for the Union on February 27, and had been employed as a truck driver for the Respondent until " Employees Jahn and Patterson , who were called as witnesses by the General Counsel, admit that Knox had told them shortly after March 5, 1951 , that they were privileged to join a Union , and Mathews another witness for the General Counsel testified that Knox during a conversation with Mathews regarding Union activities told Mathews that he, Knox, was not opposed to labor unions, but considered Respondent 's plant too small to require organization. 13 Best also vaguely testified that he believes he told employees John Jett and Charles Crumbley, warehouse department employees , during the latter part of February that a wage increase would be granted to the warehouse employees effective on March 1, but Jett and Crumbley were not called to support this testimony by Best. Clarence Cesterle, a witness called by the Respondent , by way of conclusory testimony said he overheard some employees, who he could not presently identify , talking about a prospective wage Increase early In March, but his testimony is too vague and indefinite to support a con- clusion that the alleged conversation pertained to a March 1, 1951, wage increase. THE C. L. BAILEY GROCERY COMPANY 593 he, Jahn, voluntarily quit his job on March 8, 1951, that about a day or two be- fore he quit Best came to Jahn and told Jahn, in substance, that if the Union or- ganized the employees a truck driver would not be permitted to work over 40 hours a week and would have no helper.19 Best, when later called to testify as a witness on behalf of the Respondent, credibly testified in substance and without contradiction : He was foreman of the Respondent's warehouse employees ; that he was unaware of any union activities among the employees until the afternoon of March 5, 1951, when Knox told him that two union officials who had just called on Knox claimed that the•Unio"mrep- resented a majority of the Respondent's employees, and then asked Best if the latter had been aware that a Union was attempting to organize the employees, whereupon Best replied, "No," and that thereafter, during the next few days, he, Best, interrogated employees Skinner, Schulteis, Mathews, and Sutton regarding union activities. Best, however, failed to categorically deny the statements at- tributed to him by Schulteis, Skinner, and Jahn, all of whom worked under the immediate supervision of Best. Because I deemed Skinner, Schulteis, and Jahn to be reliable and trustworthy witnesses, I have credited their above testimony and find that in addition to in terrogating these three employees regarding union activities, Best, in effect, (1) threatened that the plant would close if the employees organized; (2) that Best requested Skinner to resign from the Union; and (3) that he told Jahn that truck-driving employees would be required to work without helpers and receive no overtime work if the plant was organized. Since the record shows that Best had authority to hire and discharge warehouse department employees the Re- spondent is clearly responsible for any antiunion conduct engaged in by Best. c. The Union's threat to strike According to the credited and uncontradicted testimony of Kolometz, Ray Berga, Jr., called Kolometz by telephone on the night of March 7, 1951, and related to Kolometz that management representatives were interrogating employees re- garding union activities and had promised to give the employees a wage increase. According to Kolometz, he went to Marietta, Ohio, on the following day, namely March 8, 1951, and called upon Knox at the Respondent's plant at about 2 or 3 o'clock'on that afternoon. Kolometz said he told Knox that he had returned earlier than the date earlier agreed upon on March 5, and asked Knox if he was ready to give an answer to the Union's proposal whereupon, according to Kolometz Knox asserted that he, Knox, "wanted no part of us." 15 Kolometz further credibly testified in substance and without denial that he accused Knox of having committed unfair labor practices by interrogating employees regarding union memberships and promising to give them a wage increase on April 1, 1951; and that he then told Knox the Union had filed charges with the Board and intended to strike the plant on the next morning, but that in the interim Kolometz could be reached at the Lafayette Hotel in Marietta, Ohio. 14 Jahn had agreed to take a job with the Railway Express Company at Marietta, Ohio, on March 2 , 1951. He thereafter notified Knox on March 6 that he was quitting his job with the Respondent and left on March 8, the day before the other union adherents went out on strike. _ 16 Kolometz took the sting out of this alleged retort by testifying a little later that : During the conversation Mr. Knox indicated that he did not have anything against labor unions. As a matter of fact, [Knox claimed] when he, Knox, recently built his new home , Knox had employed all union labor . [ and that] after Knox had finished talking about that, lie, Knox, stated that his heart-was not too good and he had turned the*[negotiation] matter over to his attorney 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the same night, the Union held a meeting for the employees at the labor hall in Marietta, Ohio, which meeting was attended by employees Gene Mathews, ]Barry Sutton, Raymond Schulteis, Roy Berga, Robert Patterson, Dale Berga, Jr., and Edward Skinner, seven of the employees who had signed application cards for the Union on February 27, 1951.16 According to Kolometz those present agreed to go out on strike on the next morning. d. The strike on March 9, 1951; the Respondent's request for proof of majority representation The undisputed and credited testimony shows that warehouse department employees Mathews, Sutton, Schulteis, Roy Berga, Patterson, Dale Berga, Jr., and Skinner all reported to Kolometz in front of the plant for strike duty at about 6: 30 o'clock on the morning of March 9, or about 1 hour before the plant opened, and that Kolometz assigned them to picket duty. The record indicates that the seven other rank-and-file warehouse employees, including Raymond Wagner, a deaf mute, all regularly reported for work on this morning but that Wagner came out of the plant and joined the pickets about 9 o'clock on this same morning." Wagner remained on the picket line for about a day and a half. He then quit picketing and returned to work in the plant where he has continuously been employed up to the time of the hearing.18 About 10 o'clock on this same morning Knox handed Kolometz a letter addressed to the Union which had been written by Charles Fogle, counsel for the Respondent, which in substantial part reads : We believe the strike which has been called is unauthorized and so advise you by this letter as notice that an attempt will be made to hold your Union responsible. No legal claim has been made by your Union that it represents the majority of the employees of the Company and for that in such majority status your Union is the bargaining agent.. If you will make claim that your Union represents the majority and are willing to assume the burden which the law places upon your Union to prove that status, you can be assured of the cooperation of the Company in your efforts at such proof. Upon receipt of your claim of majority status, the Company has its choice, as we understand the law, of obtaining an investigation by a representative of the National Labor Relations Board and of requiring an election or recognizing such status on behalf of your Union. la Edward Jahn, the other employee who signed one of these cards on February 27, had voluntarily quit his job and ceased working for the Respondent earlier on this day and Consequently did not attend the meeting 'I As previously mentioned Wagner signed a designation card for the "Teamsters Union" on February 13. Thereafter he did not attend the organizational meeting held on February 27, did not sign an application card for the local at that meeting, nor did he attend the strike meeting held on February 8 He signed an application card for the local dated February 7, 19 51, on February 9, 1051, during the time he was out on strike 1a Wagner was called as a witness by the Respondent In view of his affliction, it was impossible to interrogate him in the customary manner that persons similarly afflicted give testimony, namely through an interpreter, for he was unfamiliar with the sign alphabet ordinarily used by such persons Although the record indicates that he had been afflicted with thi. disability for many years, he could read and write to a limited extent But, when he was requested to fill out a blank union card at the hearing. it appeared that if left to his own resources lie would be unlikely to fill in the blanks correctly without prompting. The fact that he quit picketing on or about tbe•second day of the strike casts doubt an the validity and weight that otherwise might be given to the fact that Wagner bad sign-d an application card. . THE C. L. BAILEY GROCERY COMPANY 595 In these cases, Mr. Kolometz, it is the policy of our office to pursue the course which the law provides. It is urged that you call off the strike and that your Union proceed in the same way. Will you kindly advise our office your conclusion. We will be glad to discuss the case with you. Kolometz admits that he received the letter and that the Union made no effort to communicate with Fogle regarding the various statements made therein. Jones, the other union representative concerned in the matter, testified that the letter was ignored because of the strike. The strike continued and a picket line was maintained until on or about April 3, 1951, when the strike was either settled or abandoned under circumstances not disclosed by the record. All of the striking employees but Wagner and Sutton remained out on strike until about April 3, 1951, when those who desired to return to work were offered reemployment without discrimination. On April 4 or 5, 1951, Mathews, Schulteis, Roy Berga, Patterson, and Dale Berga, Jr., returned to work, but Skinner, who had also participated in the strike, did not wish to return to work at the plant because he had started to farm the land on which he lived.19 e. The third and last request to bargain by the Union On May 24, 1951, Jones and Kolometz, the two union representatives, called on Charles D. Fogle, counsel for the Respondent, and requested Fogle to negotiate an agreement. According to Kolometz, Fogle, on this occasion, took the position that the with- drawal of the Union's charges was a condition precedent to further negotiations, but the accusation is not supported by a realistic consideration of the entire record,20 for the testimony of Jones, who was in charge of the matter on behalf of the Union, in a more complete recital regarding what transpired at this meeting, refutes Kolometz' assertion. Jones testified in substance that on May 24, 1951, when he requested Fogle to negotiate a contract with the Union, Fogle asserted that the Union was not the majority representative of the Respondent's employees, whereupon Kolometz interposed and offered to have the union cards checked against the March 5, 1951, payroll of the Respondent, which proposal Fogle presently refused to entertain,' and that during the ensuing discussion Fogle also asserted that the Respondent had grounds for filing a charge that the Union had engaged in an unlawful secondary boycott during the recent strike, but would not file a charge if the Union would withdraw the charge filed by the Union and agree to settle the dispute by entering into a consent election agreement, a proposal that the Union would not entertain. The following was developed during the cross-examination of Jones regarding the matters discussed at the May 24 meeting : Q. Now directing your attention to the meeting at our office on May 24, you may state to the Trial Examiner, if you will, Mr. Jones, whether we did 20 As noted above Wagner returned to work about the second day of the strike and Sutton, who had enlisted In the Armed Forces of the United States about 2 weeks before the strike, was called for active duty about March 15, 1951, and Is still on duty in the Armed Forces. Within 3 or 4 weeks after they returned to work Mathews and Schultels voluntarily quit their fobs and Patterson was discharged for lawful cause. 2D The record Indicates that Kolometz was prone to base his testimony upon conclusions that at times are not supported by the facts. 21 This was the first time the Union ever offered to submit any proof regarding its claim that It was majority representative. 227260-53-vol. 100--3 39, 596 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD not explain to you that there had never been a recognition of your Union as a bargaining agent for these employees by anybody ; and that ought to be determined first? A. That was your opinion at the time. Q. And that the refusal to bargain was placed solely upon the premise that there had been no recognition of your Union as representing the majority? A. I do not understand your question. Q. I guess I did state it wrong, that any refusal to bargain was, placed squarely upon the ground that the company had never recognized your Union as representing a majority, and would not do so now until after an election? We placed it on that ground did we not? A. That was the proposal you made that night. Q. And was it not proposed that there be an election by consent and if you represented a majority that we would negotiate? A. That was on May 24th. Q. Yes. A. Yes sir, you said that. Q. Well, was not that also proposed as far back as March 8? n A. Yes, but we were on strike at that time. [Emphasis supplied.] Q. Mr. Jones, you were carefully examined on whether anybody objected to the appropriateness on those which were in a unit. I want to ask you some questions about our conversation in the office. Is it not true that we placed our refusal to bargain solely upon the ground that we did not think- or denied you had a majority status? Did we not tell you that and asked you to remember it? A. Yes. B. Conclusions The issues are (1) whether the Respondent has refused to bargain in good faith with the Union, and (2) whether the Respondent by the above and other acts and conduct has interfered with the self-organizational rights of its employees. Regarding the first issue, the General Counsel, pursuant to the allegations in the complaint, contends : All truck drivers, warehousemen, and helpers employed by the Respondent, excluding all office and clerical employees, and all guards, professional employees, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act ; that on March 5, 1951, and thereafter the Union was and is now the exclusive bar- gaining representative of the Respondent's employees in the above-described unit within the meaning of Section 9 (a) of the Act ; and on March 5, 1951, and there- after the Respondent refused to bargain with the Union. As related above, I concluded and found, in conformance with the estab- lished policies of the Board, that the above-described unit is an appropriate bargaining unit, and that, at least, until March 8, 1951, the Union, in fact, repre- sented a majority of the employees in said unit. On the other hand, the Respondent, in effect, contends that, in good faith, it entertains doubt that the unit is an appropriate unit and also disputes the Union's a This, of course, relates to the letter the Respondent served on the Union on March 9, 1951, which letter was ignored by the Union. No further request to bargain was made by the Union until May 24 , or several weeks after the strike petered out. THE C. L. BAILEY GROCERY COMPANY 597 claim regarding majority representation in any unit that may be found to be appropriate. A realistic consideration of the entire record has convinced me that the Re- spondent's above defense has been asserted in good faith. At the first bargaining meeting between the parties on March 5, 1951, the Union not only claimed to represent a majority of "all of the Respondent's em- ployees," but the name used by the Union, (Bus, Sales, Truck Drivers, Ware- housemen and Helpers Local Union No. 637)," at at., was likely to mislead an employer into believing that the Union ordinarily sought to include salesmen in bargaining units represented by the Union in a business similar to that con- ducted by the Respondent. The Employer expressed surprise at the Union's claim to be the majority representative of its employees and a realistic considera- tion of the entire record fails to show that the Respondent was aware that the Union had been organizing the employees. The Union evinced no willingness to support its claim by offering to submit any proof in support of its said claim and the meeting ended with the agreement to meet again in about 1 week. The record shows that the Respondent's business is a comparatively small one for a business of this nature, that it only employs 27 rank-and-file employees in all categories, and that there is an overlapping to some extent in the duties performed by salesmen, warehousemen, and truck drivers. Consequently, Re- spondent's insistence that a plant-wide unit is a more appropriate bargaining, unit in view of all the circumstances surrounding this case may not, in my opinion, be regarded merely as a captious defense improvidently asserted to defeat the Union, but that it, at least, raises a proper question of representation. Under these circumstances, an employer is not obligated to give full faith and credit to an unsupported claim by a Union that the latter is majority representa- tive in a unit asserted by the Union to constitute an appropriate bargaining unit and immediately begin contract negotiations. The record reveals that the Union was not as dilligent and cooperative in en- deavoring to settle the problems concering representation which the Act requires, but seemingly preferred to rely on economic pressure to enforce its demands. Had the Union met with Respondent's counsel at the beginning of the strike (called 4 days after the first meeting) as the latter requested in his March 9, 1951, letter, it is possible that the question concerning representation might have been resolved and that an agreement satisfactory to both parties could have been negotiated, but the Union chose to ignore the request and the strike which proved fruitless thereafter continued for over 3 weeks. Although, the Respondent's unfair labor practices, more particularly set forth below, raise a question of the Respondent's good faith, the Respondent met with the Union whenever requested and, in my opinion, reasonably attempted to cooperate with the Union in an endeavor to settle the question of representation which existed. Upon the basis of the foregoing and the entire record, I am of the opinion and find that a question of representation was raised in good faith by the Respondent which was not resolved before the hearing, and that consequently the Respondent has not refused to bargain in good faith with the Union." In respect to the second issue a clear preponderance of the credible and con- vincing evidence supports a finding that the Respondent has interfered with the rights of employees to freely organize under the provision of the Act. Respondent's president, Knox, not only interrogated employee Schulteis re- garding union activities in the plant, a day or two after the Union had made 23 Cf. Wood Manufacturing Co, et al., 9,5 NLRB 633 ; Collins Baking Co., 90 NLRB 896. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its claim to be the majority representative of the employees, but Knox, on the same occasion, also told Schulteis that the Respondent was going to give the employees a wage increase at the beginning of the following month. Such con- duct by an employer would clearly tend to weaken the allegiance of an employee to his union?4 The Respondent contended, in effect, that the wage announcement mentioned above was not an unfair labor practice, because it had previously been announced to employees in February that a wage increase would be granted on March 1, before the Respondent had knowledge of any union activities, and that the effective date of the increase had been deferred solely to avoid accounting diffi- culties. This defense is without merit, because a preponderance of the substan- tial and convincing evidence in the record fails to show that the rank-and-file employees were ever informed of a prospective wage increase until after the Union had presented its demands to the Respondent. The statement of Foreman Best to Schulteis, made about the same time that Knox informed Schulteis of the prospective wage increase, that the business would be shut down if the Union organized a majority of the employees clearly constituted a threat of reprisal to those employees seeking to engage in union activities and was more than a mere expression of opinion by a supervisor which is protested by the Act. Likewise, in view of his supervisory position, Best's request to employee Skinner that the latter resign from the Union, shortly after Best had interrogated Skinner regarding the latter's membership in the Union, clearly constitutes interference with the rights of employees to freely organize. In addition, Best's remark to Jahn, one of the Respondent's truck drivers, that overtime work and helpers would be denied to the truck drivers if the Union organized the plant also clearly constitutes a threat of reprisal which would discourage employees from joining the Union. It is immaterial that no discrimination in fact has been disclosed in the record, or that Knox and Best may have engaged in such illegal conduct because of ignorance of the law. On the basis of all the foregoing and the entire record I conclude and find that by the above-related conduct and utterances by Respondent's president, Knox, and its foreman, Best, that the Respondent has interfered with the self- organizational rights of employees guaranteed in Section 7 of the Act, thus also violating Section 8 (a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. 24 Moreover, in or about January 1950 , Knox had earlier indicated anti-union prejudices before Schulteis, because in the presence of Schulteis, on that occasion , Knox had repri manded Foreman Best for hiring Gene Mathews, an alleged "union agitator" and warnea Best to keep his eye on Mathews and to discharge Mathews if the latter stepped out of line. CARTER PUBLICATIONS, INC. 599 The Respondent's illegal activities , for instance, interrogating employees re- garding their union membership and activities ; announcing a wage increase to the employees when an outstanding question of representation was pending ; re- questing employees to resign from the Union ; and threatening to close the plant or to subject employees to other economic reprisals if the Union organized them (almost immediately after the Union had requested the Respondent to bargain) clearly indicates a purpose to defeat self-organization of its employees. I am convinced that the unfair labor practices committed by the Respondent are potentially related to other labor practices proscribed by the Act, and that the danger of their commission in the future Is to be anticipated from the Re- spondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the remedy recommended is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Re- spondent cease and desist from in any manner -infringing upon the rights of employees guaranteed by the Act f' Upon the basis of the foregoing and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. Bus, Sales, Truck Drivers, Warehousemen and Helpers Local Union No. 637, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent has not refused to bargain within the meaning of Section 8 (a) (5) of the Act. (Recommendations omitted from publication in this volume.] =May Department Stores V. N. L. R. B., 826 U. S. 876; Premier Worsted M{Rs, 85 NLRB 985. CARTER PUBLICATIONS, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER. Case No. 16-RC-990. August 13, 1962 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before H. Carnie Russell, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 100 NLRB No. 98.