J. Weingarten, Inc.

J. WEINGARTEN, INC. 671 Accordingly, upon the record as a whole, we shall determine the dispute by assigning the work of tying dodgers to the mailer group of employees in the mailroom represented by the Mailers, when the dodgers are to be delivered to suburban areas, and to the deliverer group of employees represented by the Deliverers' Union when they are to be delivered to city destinations. Our present determination is limited to the particular controversy. which gave rise to these pro- ceedings. In making this determination, we are not assigning the disputed work to members of either the Mailers or the Deliverers or to those unions. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record.in this case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. When special advertising supplements are scheduled for delivery to points within the city limits of New York or Hudson County, New Jersey, they shall be tied by the deliverers in the mailroom, a group represented by Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind. When special advertising supplements are sched- uled for delivery to points outside the city limits of New York or Hudson County, New Jersey, they shall be tied by mailers in the mailroom, a group represented by New York Mailers' Union No. 6, International Typographical Union, AFL-CIO. 2. Neither New York Mailers' Union No.. 6, International Typo- graphical Union, AFL-CIO, nor Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind., is lawfully entitled to force or require The New York Times Company to assign the tying work in dispute in a manner inconsistent with the foregoing determination. 3. Within 10 days from the date of this Decision and Determination of Dispute, New York Mailers' Union No. 6, International Typo- graphical Union, AFL-CIO, and Newspaper and Mail Deliverers' Union of New York and Vicinity, Ind., shall notify the Regional Director for the Second Region, in writing, whether or not they will refrain from forcing or requiring The New York Times Company, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute in a manner inconsistent with the provisions of (1) above. J. Weingarten, Inc. and Retail Clerks International Association, AFL-CIO. Case No. £3-CA-1350. June 18, 1962 DECISION AND ORDER On April 24, 1962, Trial Examiner Lloyd R. Fraker issued his Intermediate Report in the above-entitled proceeding, finding that 137 NLRB No. 81. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of the complaint as to them. Thereafter, the Respondent filed exceptions to the Intermediate Report and a sup- porting brief. 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the ex- ceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Trial Examiner's Recommended Order. i See Houston Chronicle Publishing Company, 130 NLRB 1237, enfd 300 F 2d 273 (C A 5), where, as here, both interrogation and threats of reprisal were directed at two known employee union leaders on several occasions by an employer, and therefore the Board rejected, as it does here, both the employer's contention that the interrogation was not unlawful under Blue Flash. Express, Inc , 109 NLRB 591, and its further contention that even such conduct as a whole was too isolated to warrant the issuance of an order In so holding, we find it unnecessary to pass upon, or adopt, the Trial Examiner's state- ments that the Board' s Blue Flash doctrine is applicable only in those areas set forth in the Intermediate Report. INTERMEDIATE REPORT AND RECOMMENDED ORDER 1. STATEMENT OF THE CASE A. The unfair labor practice charge and the complaint The charge in this case was filed December 13, 1961 , by Retail Clerks International Association, AFL-CIO, herein called the Union , against J. Weingarten, Inc., herein called the Rsepondent. The complaint was issued January 26, 1962. B. The hearing and the briefs This case was heard at Galveston , Texas, on March 13 , 1962. The General Counsel and the Respondent were represented by counsel and participated fully in the hearing. After the hearing the General Counsel and the Respondent submitted briefs, in support of their respective positions , which have been duly considered by me in arriving at my findings and conclusions herein. II. THE PLEADINGS A. The complaint 1. Jurisdiction of the Board As the basis for the assertion by the Board of its jurisdiction in this case the General Counsel alleged that the Respondent, a Texas corporation, is engaged in the operation of a chain of retail grocery stores in Texas and Louisiana , that during the 12-month period prior to January 26, 1962, its gross sales were in excess of $500,000, J. WEINGARTEN, INC. 673 that during that period it had an inflow, in interstate commerce, of goods purchased by it of a value in excess of $50 ,000 which were shipped to it directly from points outside of the State of Texas and that now and at all times material the Respondent was an employer engaged in commerce "within the meaning of Section 2(6) and (7)" of the National Labor Relations Act, as amended, herein called the Act. 2. The status of the Union The General Counsel also alleged that the Union is a labor organization "within the meaning of Section 2 (5) of the Act." 3. The alleged supervisor involved The General Counsel also alleged that at all times material James Patterson "the store manager of the Respondent's store No. 3 in Galveston, Texas, has been a super- visor and agent of Respondent within the meaning of Section 2(11) of the Act." 4. The alleged violations of the Act In paragraphs numbered 6(a), (b), (c), (d), and (e) of the complaint, the General Counsel alleged certain acts of the said Patterson, at said store, each of which he contends is a violation of Section 8(a)(1) of the Act, as follows: 6(a) that during the month of August 1961 he interrogated an employee as to his union membership, activities and desires. 6(b) that on or about August 16, 1961, he interrogated an employee as to her union membership, activities and desires and also concerning the union activity of other employees. 6(c) that on or about December 6, 1961 , he interrogated an employee as to his union membership, activities and desires and threatened said employee with discharge or other reprisals if he became or remained a member of the Union or gave assistance or support to it. 6(d) that on or about December 6, 1961 he interrogated an employee as to his his union membership, activities and desires and threatened said employee with discharge or other reprisals if he became or remained a member of the Union or gave assistance or support to it. 6(e) that on or about December 7, 1961 he interrogated an employee as to his union membership, activities and desires and as to the union activities of other employees. B. The Respondent's answer In its answer to the complaint the Respondent admitted all of the allegations of the complaint as to the jurisdictional facts and figures, the status of the Union as a labor organization, and as to Patterson's status as a supervisor, but denied all of the allegations of paragraphs numbered 6(a), (b), (c), (d), and (e) thereof. III. THE ISSUES TO BE RESOLVED As I view this case the issues to be resolved are: A. Did Patterson engage in any or all of the conduct alleged in paragraphs numbered 6(a), (b), (c), (d), and (e) of the complaint? B. If so, did such conduct tend to interfere with, restrain, and/or coerce the Respondent's employees in the exercise of the rights guaranteed to employees in Section 7 of the Act? C. Is the doctrine of isolation , as enunciated by the United States Court of Appeals for the Fourth Circuit in N.L.R.B. v. Mathieson Alkali Works, Inc., 114 F. 2d 796, and thereafter adopted and extended by the Board in Lily-Tulip Cup Corporation, 113 NLRB 1267 , and other Board decisions, applicable to the facts in this case? D. Is the decision of the Board in Blue Flash Express, Inc., 109 NLRB 951, applicable to the facts in.this case? IV. THE EVIDENCE AND CONCLUSIONS THEREFROM At the conclusion of the General Counsel 's case the Respondent stood on its motion to dismiss the complaint and did not offer any evidence in defense against the allega- tions thereof. On the basis of their demeanor as witnesses in this case and in view of the fact that the Respondent did not offer any evidence to refute their testimony and of the further fact that their testimony was not in any manner impeached by cross- 649856-63-vol. 137-44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examination, which included interrogation of witnesses Johnson and -DaVila as to their prehearing affidavits, I credit all of the General Counsel's witnesses. On this basis the credited testimony discloses that in August 1960 the Union com- menced or reactivated a campaign to organize the Respondent 's employees in some 43 of its retail grocery stores, including its only store in Galveston , Texas,' that on August 10, 1961 , the Union filed a representation petition with the Board's Regional Office in Houston, Texas, seeking an election among the employees in the 43 stores in question? The credited testimony also discloses that General Counsel's witnesses Johnson and DaVila, both of whom were employed in the Galveston store during the period of the alleged unfair labor practices , signed cards authorizing the Union to represent them for the purpose of collective bargaining with the Respondent as early as November 7 and September 27, 1960 , respectively, thereafter became members of the Union's organizing committee for the Galveston store, and were openly active in assisting the Union in its campaign to organize the Respondent's employees. Johnson's credited testimony shows also that in August 1961 , on an occasion when she had attended a union meeting the night before, Store Manager Patterson asked her how that meeting went and how many employees attended it, that in December 1961 , on another occasion when she had attended a union meeting the night before, Patterson asked her if she went to the meeting, how it went, when would the election be held, if she could name the employees who were at the meeting , told her he knew that she and DaVila had attended that meeting and that he could find out who else was there, and also asked her what percentage of the employees in the Galveston store were for the Union. Johnson also testified that on an occasion in November or December 1961 when she was off work on a Saturday , because of the illness of her son, but had come into the store to get her paycheck , Patterson told her that her little boy would be all right if she would stop "hanging around with those buzzards from Houston" referring to union representatives , who were visiting the store frequently at that time in con- nection with the organizational campaign. Johnson also testified that on occasions, Patterson referred to her and other employees as either "Mrs. or Mr. Hofer" appar- ently referring to the Union's paid representative, Donald J. Hofer, who visisted the store and conferred with her and other employees frequently during the campaign. DaVila, who had been previously employed on a part-time basis at the Respond- ent's Texas City, Texas, store, testified credibly that in August 1961 , during the period of his employment in the Galveston store, Patterson asked him what he thought about the Union and when he replied to the effect that he was going to the union meetings to find out about the Union , Patterson told him "That was what we wanted you to do" and "what was the use of paying union dues when the guys, you know, be driving, union guys, be driving big cars, you know , we be work- ing paying their salary." DaVila also testified that on the day of a union meeting early in December 1961, Patterson asked him if he was going to the meeting and when he replied that he was, Patterson told him, "If we did get that union , it would happen like the Truck Drivers Union, a lot of people would probably get laid off and all that , and that the Company used to let them get all the overtime they wanted , but they cut that out when they got the Union." DaVila also testified that on the day after the union meeting referred to in the preceding paragraph of this report, Patterson asked him , "Who would I rather work for, the Retail Clerks or Weingarten" and that when he replied, "You know Weingarten," Patterson told him , "Well I hear you have been organizing, passing out literature." According to his credited testimony DaVila had been passing out literature for the Union at the Respondent 's Texas City store on his own time. The foregoing paragraphs of this section (IV) of this report contain a complete resume of all of the testimony adduced by the General Counsel in support of the alleged unfair labor practices involved in this case. Although there is no direct evidence in the record as to the extent of Patter- son's authority as a supervisor, other than DaVila's testimony that Patterson inter- viewed him for permanent employment and Johnson 's testimony that he signed the employees paychecks nor of his relative position in the Respondent 's supervisory 1 There is no evidence in the record as to how many stores the Respondent operates, as to how many employees were involved in the 43 stores, nor as to how many employees are employed in the Galveston store. 2 This preliminary summary is taken from the testimony of the General Counsel's wit- ness Donald J. Hofer. J. WEINGARTEN, INC. 675 setup, I think that it is reasonable to infer, from the entire record , that he ranked at least as high in that setup at the Galveston store as any other individual. For that reason in my further consideration of this case I shall assign to him supervisory status above the rank of a "minor " supervisor such as was involved in the Mathieson case supra. Since there is no evidence in the record that Patterson interrogated any employee as to "union membership" or "desires" I shall recommend that those allegations of paragraphs numbered 6(a), (b), (c ), (d), and (e) of the complaint be dismissed. Since I have credited all of the General Counsel 's witnesses I find that Patterson engaged in all of the conduct summarized in the foregoing paragraphs of this sec- tion (IV) of this report. As to the tendency of such conduct3 to interfere with, restrain, and/or coerce the Respondent's employees in the exercise of their statutory right, there can be no question and I so find . To cite any of the many Board and court decisions on this elemental proposition would serve no useful purpose and would tend only to lengthen this report needlessly . In this connection I find also that whether or not any of said employees were actually interfered with, restrained, and/or coerced is not material to the issues herein, since the Board and the courts are certainly now in agreement that if the tendency of such conduct is to interfere with, restrain, and/or coerce the employees, their subjective reaction thereto may not be considered . (N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811 (C.A. 7); The Dalton Company, Inc., 109 NLRB 1228; and The Red Rock Com- pany and The Red Rock Cola Company, 84 NLRB 521, enfd . 187 F. 2d 76 (C.A. 5), cert. denied 341 U.S. 950.) In considering the applicability of the isolation doctrine to the facts in this case, I point out again that there is no direct evidence in the record as to either the extent of Patterson's supervisory authority or his relative position in the Respond- ent's supervisory setup, also that there is likewise no evidence as to either the number of employees involved in the overall 43-store unit sought by the Union in its petition in the related representation case or of the number of employees in the Galveston store. As pointed out above in this section (IV) of this report I consider Patterson, as the Respondent's store manager, to be in a category of supervision above that of a "minor" supervisor. His status as store manager alone, so indicates. In reviewing the many Board and court decisions on this issue I note that in all of them, in which the alleged violations of Section 8(a)(1) of the Act were found to be in isolation, two elements were present which are not present in this case namely, that only "minor" supervisors engaged in the alleged coercive conduct and that the supervisors had been instructed not to interfere with the employees. Since those two elements are not present in this case and I cannot find that Patter- son's coercive conduct directed at only Johnson and DaVila was truly in isolation as enunciated by the Board in Rice-Stix of Arkansas, Inc., 79 NLRB 1333, because there only a single incident of interrogation of only one employee was involved, I must go further to determine this issue. In so doing I consider the fact that both Johnson and DaVila were more active in support of the Union than was indicated in the evidence as to any other employee and the fact that , during the period of the alleged violations, both of them were members of the Union 's organiz- ing committee, to be of more than minor importance. Under such conditions violations of Section 8(a)(1) of the Act directed at such individuals to the extent indicated above must constitute more than mere isolated violations and I so find. Having concluded that Patterson engaged in all of the conduct alleged in the complaint except the alleged interrogation of Johnson and DaVila as to their "union membership" and "desires," that such conduct tended to interfere with, re- strain, and/or coerce them, and that the doctrine of isolation is not applicable to the facts in this case I pass on now to consideration of the applicability of the Board's decision in the Blue Flash case, supra. A careful consideration of that case and of the more recent decisions of the Board in Burke Golf Equipment Cor- poration , 127 NLRB 241 ; Murray Envelope Corporation of Mississippi, 130 NLRB 1574; Frank Sullivan and Company, 133 NLRB 726; and Spink Arms Hotel Cor- poration, d/b/a Continental Hotel, 134 NLRB 1060, leads me to the conclusion that the Blue Flash decision applies only in cases where: 1. The only purpose of the interrogation involved is to ascertain if the union which is requesting recognition actually represents a majority of the employees. 3 Patterson's conduct in telling Johnson that her little boy would be all right if she would stop hanging around with those buzzards , etc., in referring to her and other em- ployees as Mrs. or Mr. Hofer, and in referring to the Union's paid organizers as "trouble," are considered , in the totality of his conduct, only as indicative of union animus on his part. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The employees interrogated are given assurances against reprisals. 3. The interrogation itself goes only to the employees' desire to be represented by such union. The language of .the Board's decision in the Burke case enunciates clearly and applies postulates 1 and 2 above and since the interrogation permitted in the Blue Flash case indicates only that an employer faced with a demand for recognition may interrogate its employees only for the purpose of determining whether or not the union making the demand actually represents a majority of them, I think the third postulate indicated above is also applicable. In applying the rationale of the Blue Flash and the related cases discussed above to the facts in this case, I note that none of the facts involved in said postulates, except the demand for recog- nition which was inherent in the filing of a petition, is present. For the foregoing reasons I find that the Blue Flash decision is not applicable to the facts in this case and that the interrogation here involved is not permissible under Sections 7 and 8 (a)( 1 ) of the Act. A careful consideration of the evidence presented by the General Counsel in support of the threats alleged in paragraphs numbered 6(c) and (d) of the com- plaint leads me ,to the conclusion that, in the whole context of the interrogation of DaVila, Patterson intended to convey to him the idea that if the Union won the election the Respondent would use its economic power to discharge or lay off some of the employees and to eliminate overtime work. To say the least Patterson's questioning of DaVila as to whether he would prefer to work for the Union or for the Respondent, at a time when DaVila has only just become a "regular" em- ployee and was passing out literature for the Union, on his own time, at another store, was a not too subtle hint or threat that he better get right with the Respondent, by discontinuing such activity, or face the consequences. Under such conditions. I conclude that the General Counsel has sustained the burden of proof as to the alleged threats. In arriving at the findings and conclusions on which my recommendations herein are based, I have carefully considered all of the evidence adduced at the hearing and have based my findings and recommendations on the entire record in, this case. V. FINDINGS OF FACT A. The business of the Respondent Since the allegations of the complaint of the facts and figures on which the juris- diction of the Board is predicated in this case are admitted by the Respondent in its answer herein, I find that the Respondent is a corporate employer as defined in Section 2(2) of the Act, engaged in the business of operating a chain of retail grocery stores in Texas and Louisiana, that during the 12 months prior to January 26, 1962, its gross sales were in excess of $500,000, that during that period it had a direct inflow in interstate commerce of goods purchased by it of a value in excess of $50,000 which were shipped to it in Texas directly from points outside of that State, that at all times material to the issues herein it had been engaged in and is engaged in commerce as defined in Section 2(6) of the Act, and that it will effectu- ate the policies and purposes of the Act to assert jurisdiction in this case. B. The labor organization involved The General Counsel alleged, the Respondent admits, and I find that the Union is a labor organization as defined in Section 2(5) of the Act. CONCLUSIONS OF LAW On the basis of the findings of fact and conclusions therefrom recited in sections TV and V of this report, I conclude that the Respondent has violated Section 8(a)(1) of the Act by the conduct of its store manager, James Patterson, as indicated in paragraphs A, B, and C, below, and has not violated the Act by the conduct of the said Patterson as indicated in paragraph D, below: A. In interrogating Respondent's employees Johnson and DaVila as to their activities in behalf of the Union and as to such activities of others, of its employees. B. In threatening employee DaVila with reprisals against its. employees in the event they selected the Union as their collective-bargaining representative. C. In impliedly threatening employee DaVila with discharge in, the event he con- tinued his activity in behalf of the Union. J. WEINGARTEN, INC. 677 D. In interrogating any of its employees as to their "union membership" and/or "desires." RECOMMENDED ORDER Having found that the Respondent violated Section 8(a)(1) of the Act in certain respects, as alleged in the complaint herein, and has not violated the Act in certain other respects, as so alleged, I hereby recommend that the Respondent, J. Wein- garten, Inc., its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any of its employees as to their own, and/or as to the activ- ities of others of its employees in behalf of the Union, Retail Clerks International Association, AFL-CIO. (b) Threatening any of its employees with discharges, layoffs, and/or the elimi- nation of overtime work in the event the Union should become their collective- bargaining representative. (c) Theatemng any of its employees with discharge in the even they continue to engage in activity in behalf of the Union. 2. Take the following affirmative action which I find is necessary to remedy the violations of the Act which I have found as indicated above: (a) Post at its store in Galveston, Texas,4 copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished to the Respondent by the Regional Director of the Board's Twenty-third Region, shall, after being signed by a responsible officer of the Respondent, be posted immediately upon re- ceipt thereof, and be maintained by the Respondent for a period of 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith .6 I hereby further recommend that the allegations of paragraphs numbered 6(a), (b), (c), (d), and (e) of the complaint be dismissed insofar as they charge the Respondent with interrogating its employees as to "union membership" and "desires." I hereby further recommend that unless within 20 days from the date of the re- ceipt by the Respondent of a copy of this Intermediate Report and Recommended Order, the Respondent has notified said Regional Director, in writing, that it will comply with the foregoing recommendations, that the Board enter an Order requiring the Respondent to comply herewith. 4 Since all of the violations of the Act involved in this case took place at said store, were directed at employees at that store only, and there is no evidence that knowledge of such violations was acquired by employees at any other of the Respondent's stores, I con- clude that such limited posting is adequate to remedy such violations 5In the event these recommendations are adopted by the Board the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 6 In the event these recommendations are adopted by the Board, this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to ,the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT interrogate any of our employees as to their activities in behalf of Retail Clerks International Association, AFL-CIO. WE WILL NOT interrogate any of our employees as to the activities of others of our employees in behalf of the above-named labor organization. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten any of our employees with discharges , layoffs, and/or the elimination of overtime work because or in the event the above-named labor organization should become their collective -bargaining representative WE WILL NOT threaten any of our employees with discharge in the event they continue to engage in activity in behalf of said labor organization. All of our employees are free to become or remain members of said or any other labor organization or to refrain from becoming or remaining members thereof. I. WEINGARTEN, 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. Employees may communicate directly with the Board's Regional Office at 650 M and M Building, I Main Street , Houston, Texas, Telephone Number, Capitol 2-7201, Extension 041, if they have any question concerning this notice or compliance with its provisions. Whitelight Products Division of White Metal Rolling and Stamp- ing Corp. and United Electrical , Radio and Machine Workers of America, Local 218. Case No. 1-CA-3266. June 18, 1962 SUPPLEMENTAL DECISION AND ORDER On June 27, 1961, the Board issued its Decision and Order in the above-entitled case in which it found that Whitelight Products Divi- sion of White Metal Rolling and Stamping Corp., herein called the Respondent, violated Section 8(a) (1), (3), and (5) of the Act.' The Board found, inter alia, that the Respondent laid off four employees because of union activities and not because of a machine breakdown which led to a production curtailment. Thereafter, the Board's findings and conclusions were considered by the United States Court of Appeals for the First Circuit upon the Board's petition for enforcement of its order. On January 15, 1962, the court handed down its opinion, remanding so much of the case as related to the layoff of the four employees? The court found that the Board's finding that production did not warrant any layoffs is not only "without support, but is totally contradicted." However, the court remanded the case to the Board so that it might consider "whether the layoffs were nevertheless an unfair labor practice for some other reasons." The Board 3 has reexamined the record in the light of the court's opinion and finds that the evidence establishes that the particular lay- offs which occurred on August 18, 1960, were motivated by discrimina- 1131 NLRB 1323. 2 N L R.B. v. Whstelight Products Division of White Rolling & Stampvng Corporation, 298 F. 2d 12 , cert. denied 369 U.S. 887 3Pursuant to the provision of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown] 137 NLRB No. 82.