Associated Grocers of Port Arthur, Inc.

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this unlawful policy will best be protected if the notice is now posted in all of the stores within the unit. In addition the General Counsel recommended that copies of the notice should be mailed to all of the employees , supervisors, and officials of Respondent in the New Orleans unit. Under all the circumstances , this recommendation is accepted as to the Baton Rouge stores, where aggravated unfair labor practices have occurred at several of the stores, but not accepted as to other stores within the jurisdiction of the New Orleans unit because the number of these stores is not disclosed in the record and sending notices to all of the individuals connected with all of-these stores might prove to be a considerable burden upon Respondent. In addition, the General Counsel recommended that Respondent assemble and read the notice to all of its employees, supervisors, and officials within the New Orleans unit. Under all the circumstances, this recommendation is accepted as to the Baton Rouge stores but not as to the other stores. CONCLUSIONS OF LAW 1. The Great Atlantic & Pacific Tea Company, Inc., is engaged in commerce within the meaning of the Act. 2. Amalgamated Meat Cutters & Butcher Workmen of North America, Local 327, AFL-CIO, and Retail Clerks International Association, Local No. 1691, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. At various times in December 1960 and January and February 1961, and thereafter, Respondent unlawfully threatened employees , interrogated employees, made promises of benefit , and induced employees to spy upon and inform upon other employees, thereby interfering with, restraining , and coercing employees in the rights guaranteed in Section 7, Respondent thereby violating Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Associated Grocers of Port Arthur, Inc. and Local Union No. 393, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Cases Nos. 23-CA- 1096 and 23-RC-1516. November 20, 1961 DECISION AND ORDER On May 16, 1961, Trial Examiner William J. Brown issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, and recommending further that the election held on July 15, 1960, in Case No. 23-RC-1516 i be set aside and a new election held, as set forth in the Intermediate Report attached hereto .2 He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint -and recommended that the complaint be dismissed with respect thereto. Thereafter, the 3 Pursuant to the Board's Decision and Direction of Election Issued June 20. 1960 ( not published in NLRB volumes). 2 On January 11, 1961 , the Board issued a Supplemental Decision and Direction per- taining to challenges to certain ballots cast and to certain objections filed by'the Union herein to the conduct of the election . On January 24, 1961 , the Board ordered Cases Nos. 23-RC-1516 and 23-CA-1096 consolidated. 134 NLRB No. 47. ASSOCIATED GROCERS OF PORT ARTHUR, INC. 469 Respondent filed exceptions to the Intermediate Report and a support- ing brief. - The Board 3 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. 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. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Associated Gro- cers of Port Arthur, Inc., its officers, agents, successors, and assigns, shall : 1. Cease sand desist from interrogating employees concerning their union membership, sympathy, or activities, threatening employees with adverse consequences in the event of union organization, promis- ing employees benefits as a reward for rejecting union organization, or in any like or similar manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the Union herein or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its warehouse in Port Arthur, Texas, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respondent, be posted by Re- spondent 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 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 Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [ Members Rodgers, Fanning, and Brown]. In 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." 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations of the Act other than those found herein. IT IS FURTHER ORDERED that the election in Case No. 23-RC-1516, held July 15, 1960, be, and it hereby is, set aside, and that Case No. 23-RC-1516 be, and it hereby is, remanded to the Regional Director for the Twenty-third Region for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative.5 5 Any new election shall be conducted among employees in the unit found appropriate in the Decision and Direction of Election in this case issued June 20, 1960 , who are em- ployed during the payroll period immediately preceding the date of issuance of the notice of election. In the event the Respondent falls or refuses to comply with the terms of the Order in Case. No. 23-CA-1096, the Regional Director is also authorized to conduct the new elec- tion directed herein upon the written request of the Union. . IAPPENDIX 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 Labor Manage- ment Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union sympathies or activities nor will we threaten employees with ad- verse consequences in the event Local Union No. 393, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, secures a majority, nor promise them benefits as a reward in the event the Union does not secure a majority. , WE WILL NOT in any like or similar manner interfere with em- ployees' rights to a free election of representatives nor will we in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other\concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become or remain members of the above-named or any other labor organization, or to refrain from such membership. ASSOCIATED GROCERS OF PORT ARTHUR, INC., Employer: Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. ASSOCIATED GROCERS OF PORT ARTHUR, INC. INTERMEDIATE REPORT AND RECOMMENDED ORDER 471 STATEMENT OF THE CASE Proceedings in Case No. 23-CA-1,096, the complaint case, commenced with a charge filed October 10, 1960. The complaint issued by the General Counsel .through the Regional Director for the Twenty-third Region alleges, in addition to jurisdictional facts," that the above-indicated Employer, hereinafter sometimes called the Respondent, engaged in various acts of interference, restraint, and-coercion within the purview of Section 8 (a) (1) of the National Labor Relations Act, as amended, hereinafter sometimes called the Act, and discriminatorily discharged employee Ezekiel Thibeaux in contravention of Section 8(a)(3) of the Act. Respondent's answer denies both the jurisdictional and unfair labor practice allegations of the complaint, and admits the fact of Thibeaux's discharge. By order dated January 24, 1961, the Board ordered consolidated with the complaint case proceedings conse- quent upon its Supplemental Decision dated January 11, 1961, in Case No. 23-RC- 1516, hereinafter sometimes called the representation case, involving unresolved issues raised by a challenge to voter Stewart and by objections to the election therein. The hearing was held at Port Arthur, Texas, January 31, through February 3, 1961, inclusive. All parties participated in the hearing and were afforded full opportunity to present evidence and argument on the issues in both cases. Subsequent to the hear- ing briefs were received from the General Counsel and the Respondent which have been fully considered by me. Upon the entire record herein; and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Associated Grocers of Port Arthur, Inc., is a cooperative wholesale grocer engaged in the purchase and warehousing of grocery and related items and their resale and delivery to independent retail grocer members. In its Decision and Direction of Election in the representation case the Board found that Respondent's direct inflow of goods from outside the State of Texas exceeded $50,000 annually, that Respondent is engaged in commerce within the meaning of the Act, and that it would effectuate the policies of the Act to assert jurisdiction. Absent evidence of material change, I make the same finding as to the complaint case . Bordo Products Company, 117 NLRB 313. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 393, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, hereinafter called the Union, is the Charging Party in the complaint case and the Petitioner in the representation case. At the hearing Respondent stipulated the labor organization status of the Union. Accord- ingly, it is found that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE CONDUCT OF THE ELECTION A. Introduction to the issues herein As noted above the Respondent Employer is a cooperative association wholesaling groceries to its member retailers. Each retail member is a shareholder in the amount of 15 shares of stock and purchases from Respondent grocery and allied items at the latter's cost plus a small markup.' Overcharges on the part of Respondent are pro- rated among its customer-stockholders on the basis of their volume of purchases. Respondent has about 41 employees, most of them engaged in work incidental to the warehousing and delivery of its merchandise. Dan Coleman, general manager, is in direct charge of Respondent's operations and reports directly to the board of direc- tors. Among the supervisory employees of Respondent are J. D. Moore, Rodney King, and Arvel Valentine. The Union filed a representation petition on March 7, 1960, and hearing was held thereon April 5 and 19. The Board's Direction of Election issued June 20 and the election was held July 15 resulting in a narrow defeat for the Union. On August 31 the Regional Director issued his report on the Union's challenges and objections and 1 Member customers are free to surrender their shares for refund if they become dis- satisfied with Respondent's service. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequent proceedings were had thereafter as referred to above . In the course of the proceedings before me, the Board issued an order removing the issue as to the eligibility of Stewart, the challenged voter. In his brief the General Counsel has con- ceded that the record is completely lacking in evidence relating to Union's objection No. 2.2 As a consequence unresolved issues before me in the representation case are those relating to the Union's objections on the basis of employer interrogation and coercion in the period immediately preceding the election (objection No. 6), and the act of the Employer in advertising for employment applications in a news- paper on July 12, 1960, 3 days preceding the election (objection No. 8). B. Interference, restraint, and coercion As issued the complaint alleged 14 separate violations; at the hearing on motion, I count was dropped and 2 were added. Each count is separately discussed below, introductory lettering conforming to the complaint. (a) The complaint alleges that in the period June 1 through July 15, 1960, J. D. Moore, assistant manager, interrogated employees concerning union membership. Kirby Veazie, a truckdriver for Respondent, testified that on the day before the elec- tion Moore asked him about signing a card for the Union and advised him to vote against it. Moore admits talking to Veazie about the Union and concedes that he may have done so on more than one occasion; he denied ever asking Veazie if he had signed a card or was a member. ' Truckdriver Warren Roberson testified to a conversation with Moore about a month before the election in the course of which Moore asked him if he knew any- thing about the Union and advised him to vote against it. Roberson also recounted a second conversation with Moore about a week before the election in which Moore again inquired as to what if anything Roberson knew about the Union and again advised him to vote "No." Moore admits having a conversation with Roberson sometime in May or early June but asserts that he stated only that the Company was opposed to the Union and felt it was not the best for the employees. Fredrick Smith, a warehouseman and truck helper for Respondent, testified to a conversation with Moore about 2 weeks before the election in which Moore asked him if he was for the Union or for the Company. Moore admits talking to Smith but places the day of the conversation as May or early June and, while not specifically denying interro- gation, states that the conversation generally consisted of Moore's expression of opposition to the Union. Jerry Thomas, a truckdriver for Respondent, testified to a conversation with Moore about 3 days before the election in which Moore asked him if he knew anything about the Union and whether any "guys" ever told him anything about it. Moore testified that his conversation with Thomas occurred in May or early June and consisted only of a general statement of opposition to the Union. Mack West, a truckdriver for Respondent, testified to a conversation with Moore a few days before the election in the course of which Moore asked him if he knew anything about ,the Union, if any of the other "guys" had told him anything about it and which way he was going to vote.3 Moore testified that his conversation with West was in May or the first part of June and denied asking him about the Union or whether anyone had told him about the Union or which way he was going to vote. Ezekiel Thibeaux, the alleged discriminatee, testified to several conversations with Moore commencing about June 1. In the initial conversation Thibeaux testified that Moore specifically inquired as to whether Thibeaux was "against the company" or "wanted the Union." In subsequent conversations about 2 or 3 weeks later Moore inquired as to whether Thibeaux was attending union meetings. The third conversa- tion with Moore, according to Thibeaux, took place 2 days before the election, in which Moore asked him if he was still with the Company. Moore denied ever asking Thibeaux if he was for the Union or for the Company. I was favorably impressed with the demeanor of Roberson, Smith, Thomas, and West particularly, and accept- ing their testimony, I find that Moore interrogated them as alleged and that Respond- ent thereby interfered in violation of Section 8(a)(1). (b) The complaint alleges that on or about July 1, General Manager Coleman threatened employees with less hours of work if the Union organized the plant. The proof offered in support of this allegation of the complaint is to be found in the 2 The Union does not dispute this concession. Objection' No. 2 related to failure to post the sample ballot. 3 Although the cross-examination of West indicated a discrepancy between his testimony at the hearing and his pretrial signed statement, I credit his testimony before me on my appraisal of him on the stand. ASSOCIATED GROCERS OF PORT ARTHUR, INC. 473 testimony of Smith to a conversation with Coleman about 2 weeks before the elec- tion, in the course of which Smith asked for a loan and Coleman agreed to give it to him and then referring to the Union said that if the Union came in there would probably be layoffs and since Smith was the youngest he would probably be the first laid off. Upon motion of the Respondent at the hearing I struck Smith's testimony on the grounds it was not embraced within the allegations of the complaint. I granted the request of counsel for the Union that the testimony be considered as evidence in the representation case . Coleman's version of this conversation agrees with Smith's in that it started in connection with the latter's request for a loan, but Coleman testifies that Smith introduced the Union and inquired as to the applicability of seniority in the event of the Union's coming in, Coleman's role being that of confirming that ordinarily seniority applies where a union organizes a plant. I shall recommend dismissal of this count of the complaint. (c) The complaint alleges that on or about July 1 Respondent 's buyer, King, in- terrogated employees concerning the Union. Veazie testified that King talked with him about the Union about 1 week before the election and inquired if he had signed a card . Smith testified that about a month before the election , King asked him if he had attended union meetings and whether anyone had talked to him about the Union. Kenneth Gregory testified that about 1 week before the election King approached him and said that he had heard that Gregory was the contact man for the Union and asked him if he realized what he was doing. Lawrence Seypion testified to a conversation with King about a week before the election in which King asked his opinion about the Union and urged him to persuade other employees to vote against the Union. King testified that he had only one conversation with Veazie and that was in April shortly after Respondent received notice of the Union's petition. He testified to a conversation with Smith but asserted it was on the same day that he discussed the Union with Veazie, namely, in April. He conceded a conversation with Gregory about 2 weeks prior to the election in which he approached Gregory and told him that he had heard he was active in the Union and further asked him if he had thought through what he was doing. With respect to any conversation with Seypion, King testified that he talked about the Union with Seypion at or about the same time as his conversations with Veazie and Smith. On my evaluaion of the witnesses, I find and conclude that King interrogated employees as alleged and that Respondent thereby interefered in violation of Sec- tion 8 (a)(I). (d) The complaint alleges that on or about July 1, Moore interrogated employees concerning their union sympathy and told them if they voted for the Company they would get a raise and if they voted for the Union they would get a strike. Smith testi- fied to a conversation about 2 weeks before the election- in which Moore asked him if he was for the Union or for the Company and when told that he was for the Com- pany Moore said that if the employees voted for the Union, they would vote for a strike and if they voted for the Company, they would vote for a raise. Moore testified to a talk with Smith some 3 or 4 days before the election in which he showed Smith an unmarked ballot and expressed the hope that he would vote "No." Moore also testified to a conversation he places some time in May or the first part of June in the course of which he told Smith that the Company was opposed to the Union and that there were certain disadvantages to be considered in union representation . He denies that there was any discussion of the possibility of a raise in that conversation. I find Smith credible and accordingly find the allegations of the complaint sustained. (e) The allegations of the complaint that Moore threatened fewer hours of work do not appear to be substantiated by evidence, and I shall recommend their dismissal. (f) The complaint alleges that on or about July 11 and 12, Respondent threatened employees with replacement if the Union won the forthcoming election. On July 12 the Company placed an ad in the Port Arthur News help-wanted column advertising for white employees in the warehouse. The advertisement is in evidence as General Counsel's Exhibit No. 3.4 Coleman testified that approximately 100 applicants re- sponded and arrangements were made for them to fill out their forms at a table placed out on the loading dock within sight of employees. A large majority of the warehouse and truckdriver employees are Negro. Abraham Allen, Jr., testified to a conversation with Valentine about a week before the election in which Valentine stated that the Company had enough applications to hire more men and let the existing employees go if they voted the Union in.5 Abiatha Scott who particularly impressed me as trustworthy, testified that Valentine talked to him during the week of the election and referring to "all the white boys " putting appli- i s King conceded this to be the first advertisement specifying white warehouse help. 5 Valentine did not recall any conversation with Allen. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cations in said they had received 119 and that if the employees voted for the Union and struck Respondent would continue operating with the applicants as replacements and that some of them were highly qualified. On cross-examination Scott added that Valentine expressly stated that he was not making a threat to the job. Smith testified to a conversation with Valentine occurring about 3 weeks before the election in the course of which Valentine stated he was concerned about "these here guys that came up to fill these applications" and stated that they could replace employees if they struck. On cross-examination Smith's testimony indicated that he was the one who raised the question with Valentine as to why "these guys" were coming up to fill applications. Perry Lavergne testified to a conversation with King on the day before the election in which King stated that the fellows who were filling out the applications were not replacements except in the event that the Union got in the warehouse and called a strike, the Respondent would have someone they could depend upon. Valentine testified to a conversation with Lavergne sometime between May 1 and 15. Valentine denied ever having a conversation about the Union with Abiatha Scott. He does not recall any conversation with Smith about the applicants for employment. King conceded that he talked to Lavergne within the week preceding the election, stated that he knew Lavergne was shook up over the number of appli- cants at the warehouse and assured him that he need not be, that the Company did not intend and hoped it would not have to replace anyone, but that if the Union was voted in and a contract was not acceptable the Respondent had to know whether it could operate or not. I find that Respondent interfered with and coerced employees by the July 12 adver- tisement; its specification of white help, unexplained, plainly would have the natural effect of intimidating the existing Negro complement. Although I find the remarks of Valentine and King to be noncoercive, I find also that they would not suffice to allay the coercive effect of the advertisement. (g) The complaint alleges ,that on or about July 14, King threatened an employee with loss of employment unless he made a speech against the Union. Thibeaux testified to a conversation with King 2 weeks before the election in which King told Thibeaux that he and Coleman thought it a good idea for Thibeaux to urge the boys to vote against the Union. The subject was, according to Thibeaux, renewed the day before the election in a conversation with King at the warehouse at which time King said that if Thibeaux wanted to prove that he was a real company man he could do it, and inquired if Thibeaux would be willing to give a speech to the employees and their wives at the company party scheduled for that evening and point out the dis- advantages of the Union. Thibeaux demurred and expressed doubt that his wife would approve, whereupon King urged him to consult his wife. Thibeaux made no speech but did attend the election eve dinner with his wife at which they were cor- dially welcomed by Coleman. Nowhere does it appear that King, who also suggested antiunion talks to Lawrence Seypion and Smith, made an express or implied threat as to the consequences of failing to make the speech referred to-hereunder. I shall recommend dismissal of this count. (h) The complaint alleges that on or about July 14 Valentine threatened employees with loss of work if Respondent's operations became unionized. Abraham Allen testified that about a week before the election Valentine said that he had enough applications to hire some more men and let the present employees go if they voted the Union in. McKinley Allen testified that about the same time Valentine, in the presence of employees Dozier and Smith, said that if the Union came in the em- ployees would be working 40 hours per week (which would be a reduction in the length of the workweek). Harry Lavergne testified that Valentine, about a week before the election, said that the Employer did not want the Union in the ware- house and that if it came in the Company would cut the hours down to 40 hours a week with a reduction in take^home pay. Valentine did not recall any conversation about the Union with Abraham Allen but did testify to a conversation with Dozier while McKinley Allen was standing by which, according to Valentine, occurred sometime in April. Valentine testified that Dozier inquired concerning a rumor that the hours would be cut to 40 per week if the- Union came in and Valentine stated that he did not know about any plans in that regard but that in most cases union operations work about 40 hours. Valentine testified that sometime in May he participated in a conversation with a group of employees including Lavergne in the course of which one of the boys inquired as to the possibility of the hours being cut in the event of the Union's success to which Valentine expressed a lack of knowledge as to the outcome in that regard. ASSOCIATED GROCERS OF PORT ARTHUR, INC. 475 I find these conversations occurred at the time and in the manner testified by the General Counsel's witnesses. I find that the statements to Lavergne and Abraham Allen amounted to threats in violation of Section 8(a) (1). (i) The complaint initially alleged that on or about July 14, 1960, J. D. Moore interrogated employees concerning union sympathy and affiliation. At the hearing the complaint was amended by deleting paragraph i, the substance thereof being incorporated into paragraph (a), as amended at the hearing. (j) The complaint alleges that Coleman, in an election eve speech at a company- sponsored party, told employees that if they voted against the Union the Company would furnish parties, picnics, and other forms of entertainment for them and their families. It is uncontroverted that on the evening before the election the Company spon- sored a party for employees and their wives at a downtown hotel and that the assemblage was addressed by General Manager Coleman. The bulk of Coleman's remarks on that occasion were read, the text of them being in evidence as General Counsel's Exhibit No. 4. The issue herein is whether or not in unrecorded, prefatory remarks Coleman made the promise of benefit referred to in the complaint. Six employees present at the preelection dinner testified as to the contents of Coleman's preliminary remarks. Five of these witnesses, Veazie, Scott, Roberson, Seypion, and Thibeaux, testified that Coleman merely expressed a desire to have more parties for families of employees in the future; Roberson testified that such parties would, according to Coleman, have to wait the clearing up of the election, the union situation being referred to by Coleman as a mess according to Seypion and Thibeaux. Only Abraham Allen testified, and that after some prompting by the General Counsel, that Coleman's remarks were to the effect that the Company would have more picnics if the employees voted the Union out. Coleman initially denied mentioning the possibility of picnics and parties in the future but later recalled that he mentioned the possibility of having more parties and picnics for employees and their wives and children. He denied conditioning such picnics and parties on employees voting the Union out and denied that he referred to any "union mess" as a necessary preliminary to be disposed of. King's testimony as to Coleman's remarks agrees in substance with that of Coleman's. The weight of the evidence does not appear to support the allegations of the complaint that Coleman conditioned future picnics and parties on a vote against the Union; I shall, accordingly, recom- mend dismissal of this count. (k) The complaint alleges that on or about July 14, King promised employees a raise if they would vote against the Union. Lavergne testified that King approached him on that day and told him that a "no" vote was a vote for a raise and a "yes" vote was a vote for a strike. King admitted saying that a "no" vote could mean a raise and a "yes" vote could mean a strike but placed his remark in the middle of a conversation in which he referred to the possibility of a strike in the event of the Union's making contract demands unacceptable to management. The evidence fails to indicate that King promised any employees a raise in return for their "no" votes as contemplated by the complaint. I shall recommend dismissal of this count. (1) As amended at the hearing, the complaint alleges that commencing June 1 and continuing to the date of the election, Valentine interrogated employees con- cerning union sympathy and affiliation. Veazie testified that sometime about the middle of June Valentine asked him what he knew about the Union and whether he had signed a card. Newkirk testified that about the same time Valentine asked him whether he knew anything about the union business.6 Scott testified that during the week of the election Valentine asked him whether "the boys" had invited him to the meeting. Thibeaux testified to a conversation with Valentine in the week of the election in the course of which Valentine, according to Thibeaux, inquired as to the name of the leader of the Union and specifically whether it was employee Corley or Bishop.7 Valentine admitted discussing the Union with Veazie but asserted the talk oc- cured in the latter part of April or the first of May. He denied talking at any time with Scott about the Union. Valentine admitted talking to Thibeaux about the 6 Newkirk credibly testified that in this conversation Valentine said that he knew Newkirk and Thibeaux were in effect couriers between Houston and Port Arthur with union cards. 7 Abraham Allen, Jr., Lavergne, Roberson, Seypion, and Hill also related Valentine discussing the Union, but their accounts either fail to include interrogation or report interrogation prior to June 1. Valentine's testimony that his talk with Newkirk occurred in April is inaccurate in view of Newkirk's credible account of the time, unshaken by cross-examination. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union during the first part of the week of the election and, although he did not cate- gorically deny any conversation with Thibeaux where employees Corley and Bishop were mentioned, he testified that he did not recall such. I was particularly impressed with the demeanor of Scott and Newkirk and I find their evidence sufficient to sustain this count of the complaint. (m) The complaint alleges that on or about July 14, Coleman told employees that Respondent would never sign a contract with the Union. There does not appear to be evidence substantiating these allegations of the complaint and I shall recom- mend dismissal. (n) The complaint alleges that on or about September 1, 1960, Respondent granted wage increases in an attempt to defeat the Union. The evidence indicates that the Respondent raised the wages of its employees 18 cents an hour. Coleman testified that in February 1960, after inventory taking, an 18-cent an hour increase was decided on to bring the truckdrivers to $1.50 and the order pullers to $1.44. The increase had not been put into effect, however, by the filing of the petition on March 7 and Coleman sought legal counsel as to the propriety of making the increase effec- tive in view of the petition; his attorneys advised against it. After the election was held it was put into effect on August 25 in the amount previously decided upon. The General Counsel's brief asserts that the relatively large size of the increase coupled with the lack of evidence by way of confirmation of Coleman's testimony that the increase had been decided upon prior to the advent of the Union establishes that the raise was granted for the purpose of interfering with employees' freedom of choice. General Counsel does not take the position that any pay increase during the pendency of the representation case would be a per se violation, but asserts that on the record the inference should be made that the increase herein was a reward for the rejection of the Union. I find Coleman a credible witness. The increase, accepting as a fact that it was decided on prior to the advent of union organization, was not a violation of the Act. Nor is a violation betokened by the circumstance that the increase was withheld until after the election and then given when the results were known to be adverse to the Union. Seven months is long enough to wait to effectuate what the record in- dicates to have been a bona fide business decision. (o) The complaint, as amended at the hearing, alleges that General Manager Coleman interrogated employees concerning their union membership and activities in the period June 1 through July 15, 1960. Abraham Allen, Jr., testified that about a week before the election Coleman asked him if he knew anything about the Union. McKinley Allen testified that sometime in June, Coleman asked him whether the fillers had been holding any meetings. Tom Credit testified to a conversation with Coleman at the warehouse in July in which Coleman asked him for any informa- tion he could get about the union effort. Scott testified that 2 days before the elec- tion at the warehouse Coleman asked him whether he attended the union meeting the preceding night. Hill testified to a conversation with Coleman the latter part of June or the first of July in which Coleman stated, apparently in a questioning manner, that the Company had information that Hill attended the union ;meeting. Bernis Gaines testified that about 2 or 3 weeks before the election, Corem; tn asked him whether he attended the union meeting and when he received an affirmative reply inquired of him whether Tom Credit had been present at the meeting. Coleman denied interrogating Abraham Allen during the week before the election concerning his knowledge of the union activities. He admits that he interrogated McKinley Allen but only about the time union activities started. He denies ques- tioning Credit about the Union and denies any conversation of an interrogatory nature with Hill. He recalls a conversation with Gaines sometime in the first part of July but does not recall any union connection to the discussion. I find Scott and Hill particularly credible witnesses and, accepting their testimony, find this count sustained by a preponderance of the evidence. (p) As amended at the hearing the complaint alleges that Moore, King, and Valentine in the period July 7 to 15, 1960, showed employees a sample ballot marked "no," while telling them that a "yes" vote was a vote for a strike and a "no" vote was a vote for a raise.8 Scott testified that on the Thursday before the election King approached him with a sample ballot marked in the "no" column, and stated that a vote in the "yes" column meant a strike and a vote "no" meant a raise. King denied showing a marked ballot to any employees. Smith testified that about a week before the election Valentine approached him with a sample ballot which had been marked with an X in the "no" box and at that 8In view of the particularity of the complaint, it is unnecessary to appraise testimony of Veazie, Credit, Lavergne, Sinegal, West, and Seypion which reflect one or more but not all of the specific elements of the complaint. ASSOCIATED GROCERS OF PORT ARTHUR, INC. 477 time stated that a "no" vote was a vote for a raise and a "yes" vote was a vote for a strike. Valentine in effect denied this. I was by no means unfavorably im- pressed by Valentine but I accept Smith's testimony as the more credible. Thibeaux testified that 2 days before the election Moore approached him with a sample ballot which had been marked in the "no" column and stated that a vote on the one side meant a raise and a vote on the other meant a strike. Moore did not specifically dispute this testimony and, accordingly, I credit Thibeaux. I find the allegations of this count sustained as indicated by my specific findings above. C. The alleged discriminatory discharge Ezekiel Thibeaux was hired as a truckdriver April 14, 1956. He signed a card early in the Union's organizational campaign and attended all the union meetings. There appears to be some doubt, however, as to the extent of company awareness of his union activities; thus, early in June or late in May, Moore engaged him in an extended conversation and argument as to the merits of union organization and finally inquired as to Thibeaux's sympathies to which Thibeaux replied that he was against the Union and satisfied with existing working conditions. In a later conversation Moore stated that the Company had been hearing that Thibeaux had in fact been attending the union meetings; Thibeaux again denied that he was a union adherent and stated that he was with the Company all the way.9 Two days before the election, according to Thibeaux, Moore again inquired as to his sympathies, showed him a sample ballot, and instructed him how to vote; Thibeaux again stated that he-was going to vote with the Company. Thibeaux also testified to a conversation with Coleman about the first of June in which they agreed that the employees should vote the Union out. He had another conversation with Coleman, about 2 weeks before, the election in the course of which Coleman angrily accused Thibeaux of bullying activities in the warehouse 10 and said that Thibeaux's pending request for a loan of funds would have to wait the outcome of the election. Again on the morning of the election Coleman inquired as to how Thibeaux enjoyed the preceding night's supper. At that time Thibeaux again protested his innocence upon the bullying charges and Coleman told him to "get it straight with the boys." Thibeaux had a conversation with Valentine during the week of the election in which he volunteered that employees Dozier and Mitchell were leaders in the union activity and that they were the ones who were most critical of management. According to Thibeaux, Valentine at that time expressed the view that Coleman and the other management officials had been of the opinion that Thibeaux and Newkirk had been the leaders of union activity on the basis of the fact that they were the only ones whose truck routes took them close to Houston where the Union and the Board had offices. According to Thibeaux, he had a conversation with King on the day following Coleman's accusation of bullying activities in which Thibeaux explained that as a Mason he could not get involved in trouble and he would like King to straighten it out with Coleman and assure him of Thibeaux's innocence of the bullying charge. Later in the day, King said that, after talking to Coleman, they thought it would be a good idea for Thibeaux to make a speech against the Union. On the day before the election King specifically asked Thibeaux to make such a speech at the Company's supper that night; Thibeaux demurred on the ground that his wife did not approve of such activity. The record appraised on its totality indicates that the Respondent was doubtful as to Thibeaux's sympathies. Respondent's counsel asserted at the outset of the proceeding before me that Thibeaux was discharged for dereliction of duty primarily in connection with his handling of customers.ii Coleman testified that the primary basis of his discharge was complaints from customers, specifically from member-customers Bean, L. & A., and Mrs. Wyatt, and that he discharged Thibeaux sometime on the afternoon of September 19, after receiving a written complaint earlier that day from Bean. This complaint, in evidence as Respondent's Exhibit No. 10, complained about Thibeaux's rough handling and breakage of merchandise and referred to a previous complaint about him.ia 9 Driver Johnny Newkirk testified that about the middle of June, Valentine accused him and Thibeaux of circulating union cards , a charge which Newkirk denied. 10 This'accusation suggests that Respondent believed Thibeaux to be active , in organiz- ing for the Union ; it is, however, at most a suggestion n Coleman credibly certified at the outset of the hearing that he had received no com- plaints about other drivers 19 The basis for the discharge according to Coleman is member-customer displeasure with Thibeaux; the reasonableness of their displeasure is not an issue and, as a consequence, 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coleman testified that Mrs. Wyatt complained to him early in 1960 about Thi- beaux's failure to pay his grocery bill, and that he told Thibeaux at that time that he wanted the bill paid. Mrs. Wyatt later called in and reported that Thibeaux had been observed taking a package from the Associated truck and giving it to another person in ,a private automobile. It appears that her report was made to the shipping clerk who questioned Thibeaux about it and received and was satisfied with .the explanation that Thibeaux had bought some ice Dream off a distributor's cluck and, meeting his wife in the family car, had turned it over to her. Coleman had two or three additional conversations with Mrs. Wyatt one of which included another complaint that Thibeaux had not paid his bill. When Coleman first questioned Thibeaux about his account with Mrs. Wyatt, Thibeaux said that he did not think it was right for Mrs. Wyatt to make the report. When Coleman later talked with Mrs. Wyatt she informed him that Thibeaux had "bawled" her out about her officious intermeddling and that he had also, on .other occasions while in her store, complained before other customers that Mrs. Wyatt's store lacked certain merchandise available at the warehouse. She also .complained that Thibeaux had openly critcized her prices and had even called from her store to that of a nearby competitor to verify that meat was cheaper there than in Mrs, Wyatt's, Coleman also received a report from Guerrera, Respondent's shipping clerk, to the effect that Griffith of L. & A., a member grocer, had complained that Thibeaux stacked merchandise in such a way as to cause it to fall over, and also to make the labels unreadable. Griffith further said that he did not want Thibeaux back in the store. On or about July 12 Coleman told Thibeaux that he would not lend him money as Thibeaux had requested, because they were having too many complaints on his arguing with customers and disturbing them. Thibeaux inquired as to the source of the complaints and Coleman reminded him that they had already discussed complaints from Mrs. Wyatt, and referred additionally to complaints from Bean who had reported that he did not want Thibeaux back in the store, and the new complaint from L. & A. to the same effect. Thibeaux said they were all lies. Coleman not only refused to lend him money at that time but testified, and I credit him, that he stated that he would have to terminate Thibeaux's service if there were any more complaints. General Counsel's Exhibit No. 10 (Bean's written complaint) was, according to Coleman, received September 19. On receiving it Coleman called Bean on the telephone and Bean repeated that he did not want Thibeaux in the store at all. Thereupon Coleman decided to terminate Thibeaux and instructed his office as- sistant to write his `check. He called Thibeaux in and gave him his termination check. David Griffith, an employee of L. & A. Grocery and the stepson of the owner, testified that during the first part of June, while he was in charge of L. & A.'s store, he called in to Guerrera and complained that a large quantity, some 150 cases of groceries, had fallen over, and that if Thibeaux, who had delivered them, did not know how to stack groceries, he did not want him in his store any more. Guerrera corroborated this testimony as recounted above. Guerrera also identified truck reports indicating that Thibeaux made a delivery to Ira Bean on June 1.13 Ira Bean confirmed that he had first complained to Moore about Thibeaux after he found that some fingernail polish had been broken. At that time Bean complained not only that Thibeaux was a rough handler of merchandise and also that Thibeaux had become mad because Bean "called his hand" on the merchandise and that Bean did not appreciate either the rough handling of the merchandise or Thibeaux's attitude. He said that he did not want Thibeaux sent back any more-14 little value can be attached to testimony that other drivers have broken merchandise, that a credit slip practice is routinely observed for such breakages, or other testimony indicat- ing that Thibeaux may have been unjustly treated by the complaining customers '$ The truck reports for June 1 indicate that on that date Thibeaux operated truck No. 7 for some 10 hours and 197 miles and that it was loaded with merchandise, some of Which was destined for Ira Bean's store Guerrera also identified Respondent's Exhibit No. 2 as a delivery invoice of merchandise sold to Ira Bean with Ira Bean's stamp of certification showing receipt and with the invoice numbers corresponding to those in- dicated on the truck report previously referred to General Counsel's brief asserts that these records could easily have been altered. The inference which seems more natural is that testimony at variance with them is to be discounted. 34 Coleman testified that it was sometime in June that he learned of Bean's complaint to Moore ; at that time he instructed Moore to have Guerrero straighten the matter out. ASSOCIATED GROCERS OF PORT ARTHUR, INC. 479 I find the credible testimony to indicate that Coleman discharged Thibeaux as a consequence of the customer complaints and not for union activity and I shall recommend dismissal of the allegations of violation of Section 8(a) (3). I reach this conclusion on'the basis of-convincing evidence as to the fact of member-customer complaints about Thibeaux and the absence of convincing indications that Respond- ent believed that the discharge of Thibeaux would be an appropriate vehicle for its admitted hostility to the Union. i D. The objections to the election In view of the concession that evidence is lacking to support objection No. 2, only objections Nos. 6 and 8 are before me. Objection No. 6 alleges that for several days before, and specifically within the 72-hour period preceding the election, the Company intimidated employees by interrogation and by criticizing them for attend- ing union meetings .15 Objection No. 8 asserts that the July 12 newspaper advertise- ment amounted to interference with a free election. With respect to objection No. 6, in addition to the evidence recounted above re- lating to interrogation in violation of Section 8(a)(1), the record indicates a series of home visits by supervisors of Respondent to the homes of employees. The crucial time in this aspect of the case is the period between the direction of election on June 20 and the election on July 15. Veazie testified to interrogation by Moorse on the day before the election. Abra- ham Allen testified to a conversation with Valentine a week before the election in which Valentine said they had enough applications to hire more men and let the em- ployees go if they voted the Union in. McKinley Allen testified that about a week before the election he, Smith, and Dozier were approached by Valentine who said the workweek would be reduced if the Union went through. Lavergne testified that about a week before the election Valentine threatened to cut the hours to 40; he also testified that the day before the election King told him that a "no" vote meant a raise and a "yes" vote meant a strike. Abiatha Scott, thoroughly credible in my judgment, testified that during the week preceding the election Valentine interrogated him as recounted above and informed him that the white applicants were sufficient in numbed to replace the boys in the event of a strike. He also testified.,to interrogation by Coleman in the week before the election and that King at that time told him that a "yes" vote meant a strike and a "no" vote meant a raise. Roberson testified that. Moore interrogated him concerning union affairs in the week before the ele'dd`. n. Smith, whom I believe, testified to interrogation by Moore approximately^`r V eks before the election, further stating that the conversation at that time7included the statement by Moore that a vote for the Company was a vote for a raise and a vote for the Union was a vote for a strike. He also testified to a conversation with Valeit`ine 1 week later in which Valentine repeated the statement concerning the effect of a vote for the Union as against a vote for the Company. Gregory testified to interrogation by King a week before the election. Seypion I found credible; he testified that in the week before the election Valentine asked his opinion of the Union and repeated the statement that a vote for the Union was a vote for a strike and a vote against the Union was a vote for a raise. He also testified that Valentine visited his home approximately a week before the election accompanied by Coleman, and that on that occasion he also stated that a Union vote was one for a strike and a company vote was a vote for a raise. He also testified that the day before the election he had a talk with Moore who showed him a ballot marked with an x in the "No" column. According to his testimony King interrogated him a week before the election about the Union. Thomas credibly testified that about 3 days before the election Moore approached him and asked him what he knew if anything about the Union and whether any of "the guys" ever came to him about the Union. Gaines testified that about a week before the election Moore and King called on him at his home and stated the Company's opposition to the Union and urged Gaines to think carefully about his decision. West testified that a few days before the election Moore asked him if he knew anything about the Union and if any of the other guys had told him anything about it and finally which way he was going to vote. He also testified that a few days before the election Valentine approached him with a sample ballot and told him that a "no" vote meant a raise and a "yes" vote meant a strike. He also testi- fied that a few days before the election Valentine and Coleman came to his home, '6I do not regard the specification of the 72-hour period as delimiting consideration of matters occurring in the preelection period before July 12 and after June 20, 1960. International Shoe Company, 123 NLRB 682. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that the election was a serious matter, and they wanted him to vote against the Union. Valentine at that time told his wife that a union victory would cause suffer- ing for the family. Thibeaux testified to a conversation with Moore 2 days before the election in which Moore asked him if he was still for the Company and then stated that a vote one way was a vote for a raise and a vote the other way was a vote for a strike. He also testified as recounted above that Valentine interrogated him as to the leaders of the union activity during the week of the election and that on'the evening before the election Valentine told him that a union vote was a strike vote and a vote against the Union was a vote for a raise. At that time he showed him a sample ballot marked with an X in the "no" zone. Valentine testified that he made several visits to the homes of employees in the company of Coleman and had conversations with employees at work about the Union but that such visits and talks occurred prior to June 1960. He did concede that he showed Lavergne and others a sample ballot but asserted that it was un- marked and that he did not show or ask them how to vote. Moore testified that on one evening in May he accompanied King in visiting homes of employees. He also testified to showing a sample ballot 3 or 4 days before the election to Veazie but assertedfit was unmarked and that while he urged employees to vote "no," no threats were made. He conceded conversations concerning union activities with employees and testified they took place sometime in May or the early part of June. King testified to a conversation with Veazie but placed it as having occurred in April. He conceded that a week before the election he showed employees an unmarked ballot. He testified to home visits with Moore and Coleman, but placed them as having occurred well before June. Coleman testified that any calls upon employees at their homes were made before June 1960; I do not credit him in this regard. He frankly conceded that he used everything in his power to keep the Union out but denied instructing supervisors to show employees how to vote. The account of the acts and declarations of Moore, King, and Valentine in the period June 20 to July 15 as given by the General Counsel's witnesses appears to me to be more credible. Those witnesses who particularly impressed me as credible I have indicated above. On my appraisal of the witnesses and their testimony the overwhelming weight of the evidence sustains this objection to the conduct of the election. Objection No. 8 asserts that the July 12 advertisement in the Port Arthur News interfered with a- free election. The advertisement in question is in evidence as General Counsel's Exhibit No. 3. There is no serious conflict of testimony concern- ing it. Its appearance in the newspaper of July 12 produced some, 100 applicants who filled out forms on the dock in full sight of the existing employee complement. The majority of warehouse and driver employees were Negro. Coleman testified that he had been planning on expansions at that particular time and that a rumor was circulating that a picket line would be put around the warehouse. I find that the advertisement was placed in the paper at the particular time it was for the specific purpose of demonstrating to employees that they could be easily replaced in their jobs. Although I found Coleman credible, his general observa- tions about plans for expansion do not add up to a satisfactory explanation for the placing of the, advertisement at the particular time much less account for the unprecedented specification that white applicants were desired. See International Shoe Company, supra. - Particularly in the light of the abundant instances of anti- union feeling on the part of management and its communication to employees I find that the intended and, indeed, the necessary effect of Respondent's action in this regard was actually to create a reign of terror among employees thereby inter- fering with their free choice in the election. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In view of my finding of unfair labor practices I shall recommend that Respond- ent cease and desist therefrom and take such affirmative action as in my judgment is necessary to effectuate the policies of the Act. In view of the variety of acts of interference I have 'found to have been committed, I shall recommend that the cease 1 AMERICAN FEED COMPANY 481 and desist order extend to a prohibition against interference in any manner with rights guaranteed under the Act. I shall recommend that the July 1960 election be. set aside and another be conducted at such time as may appropriately be done. CONCLUSIONS OF LAW 1. Respondent Employer is engaged in commerce within Section 2(6) and (7) of_ the Act, and assertion of the Boards' jurisdiction is warranted. 2. By interrogating employees concerning union membership and activities, by threats of adverse consequences in the event the Union secured representation rights,, and by the promise of benefits for employees if they rejected the Union, Respondent- has engaged in interference, restraint, and coercion of employees' rights under the - Act in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent did not engage in an unfair labor practice within the scope of- Section 8(a)(3) by its action in discharging Ezekiel Thibeaux nor did it engage in conduct in violation of Section 8(a)(1) of the Act by its wage increase in September 1960, nor by any threat to refuse to sign a contract with the Union. 5. Respondent has engaged in conduct interfering with employees' right to a free; election, thus affecting the results of the July 15, 1960, election. [Recommendations omitted from publication. I Mary Feifer, d/b/a American Feed Company and Arthur Faison, Miguel Berrios, Benito Aponte, Silverio Ramos, Manuel Lopez Ortiz, Isaac Lopez, and Herberto Rivera and Merchandising and Distribution Employees Union Local 210, International' Brotherhood of Teamsters, Chauffeurs, Warehousemen and. Helpers of America, Ind., Party to the Contract Merchandising and Distribution Employees Union Local 210,. International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind. and Benito Aponte, Arthur Faison, Miguel Berrios, Silverio Ramos, Manuel Lopez Ortiz, Isaac Lopez, and Herberto Rivera and Mary Feifer,, d/b/a American Feed Company, Party to the Contract. Cases Nos. 2-CA-7594, 2-CA-7594-2, 2-CA-7594-3, 2-CA-7654-1, 2-CA- 7654-2, 2-CA-7654-3, 2-CA-7654-4, 2-CB-3013, 2-CB-3017-1,, 2-CB-3017-2, 2-CB-3020-1, 2-CB-30920-2, 2-CB-3020-3, and,- 2-CB-3020-4. November 20, 1961 DECISION AND ORDER On May 16, 1961, Trial Examiner Arthur E. Reyman issued his.. Intermediate Report in the above-entitled proceeding, finding that, the Respondents had not engaged in the unfair labor practices alleged. in the consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 134 NLRB No. 49. 630849-62-vol. 134-32