Sea-Way Distributing, Inc.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sea-Way Distributing, Inc. and Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO. Case No. 9-CA-2640. June 28, 1963 DECISION AND ORDER On February 14, 1963, Trial Examiner Owsley Vose issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed limited exceptions to the Intermediate Report and a supporting brief. 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, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' THE REMEDY The General Counsel excepts to the Trial Examiner's failure to recommend backpay for the striking employees from the date of their discharge. We find no merit in the General Counsel's position. The employees were on strike at the time of their discharge. As they had not abandoned the strike and applied for reinstatement, we can see no justification for awarding them backpay while they were withholding their services irrespective of the fact that they were discharged. Our refusal to award backpay to striking employees here is consistent with long-established Board principles 2 and no sufficient reason appears in the particular circumstances of this case for deviating from those principles.' i No exceptions were filed by Respondent. The exception filed by the General Counsel, as noted below, relates solely to the failure of the Trial Examiner to award backpay to employees while they were on strike . Accordingly, in the absence of exceptions , we adopt pro forma all other findings , conclusions , and recommendations of the Trial Examiner. 2 For example, see Sea View Industries, Inc, 127 NLRB 1402 ; Sakrete of Northern California, Inc., 140 NLRB 765; Hawaii Meat Company, Limited, 139 NLRB 966; Mastro Plastics Corp ., 103 NLRB 511 at 519, enfd . 214 F. 2d 462 , affd. 350 U.S . 270; National Seal, Division of Federal-Mogul-Bower Bearings, Inc, 141 NLRB 661 ; Holcombe Armature, 140 NLRB 618 ; Elm Tree Baking Company, 139 NLRB 4 ; Liberty Electronics Corp., 138 NLRB 1074 ; Englewood Lumber Company, 130 NLRB 394 ; The National Automatic Products Company, 128 NLRB 672; Central Oklahoma Milk Producers Association, 125 NLRB 419, enfd. 285 F. 2d 495 (CA. 10). 8 we do not consider the lone case-Gulf Public Service Co , 18 NLRB 562 , cited by our dissenting colleague-governing here ; but, in any event , we note that that case was implicitly reversed in Happ Brothers Company, Inc., 90 NLRB 1513, 1519. 143 NLRB No. 50. SEA-WAY DISTRIBUTING, INC. 461 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. MEMBER BROWN, dissenting in part : I agree with my colleagues that Respondent, on receiving the Union's bargaining request, violated Section 8(a) (1) by threatening to "close the doors" and "to get rid of all the employees" and by co- ercively interrogating its employees; that Respondent then violated Section 8(a) (5) by refusing to recognize the Union on and, at all times since June 22, 1962; and that the strike beginning June 22, 1962, was an unfair labor practice strike in protest against Respondent's described violations of Section 8 (a) (1) and (5). I also join my col- leagues in finding that Respondent discharged its striking employees in violation of Section 8(a) (3) when, shortly after the strike and attendant picketing began, Respondent told the employees "to lay down [their] picket signs, because [they were] fired." The Union filed charges on June 26 and August 3, 1962, alleging, inter alia, the unlawfulness of the discharges of June 22,1962, and these charges were respectively served on Respondent on June 28 and August 9, 1962. My sole disagreement with the majority stems from their failure to provide an appropriate remedy for the discharges which they find to have been committed. Thus, while finding Respondent's discharge of its employees to be unlawful and even though Respondent has had notice of the instant charges since June 28, 1962, the majority neverthe- less now withholds a backpay remedy until such time as these unlaw- fully discharged employees apply for reinstatement. Presumably, the majority's position is founded on the premise that backpay awards are generally inappropriate for periods during which employees volun- tarily withhold their labor. I, too, accept this premise. The problem in this case, however, is that one cannot really be certain whether the employees continued their strike against the Respondent's threats and unlawful refusal to bargain despite their discharge or whether their reason for not making formal application for work was that their Employer, by discharging them, had unmistakably impressed on them the futility of applying for reinstatement. There would, of course, be no question on this score if the employees had applied for reinstate- ment and were rejected, and one might say that a showing of such application is not an unduly burdensome condition for establishing abandonment of the strike's original objectives. On the other hand, however, it is no more burdensome to require the employer to advise his victimized employees that although he discharged them, he did not really mean it. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is for "the tortfeasor," said Judge Hand, "to disentangle the consequences" of his unfair labor practices,' and in a situation similar to the instant case the Board early applied this sound equitable con- struction in Gulf Public Service Co., 18 NLRB 562, 586-587, enfd. 116 F.2d852 (C.A. 5) : Inasmuch as the respondent discharged the strikers .... it is impossible to ascertain when the strikers would have abandoned the strike and returned to work in the absence of the respondent's action in discharging them. Had the respondent not discharged the strikers, their back pay would have commenced from the date when they applied for work. However, by discharging them, the respondent made it useless for the strikers to apply for their jobs. Since the uncertainty is caused by the respondent's illegal act in discharging the strikers because of their union activity, we will indulge in no presumption as to how long the strike might other- wise have lasted. Accordingly, in order to restore the status quo as nearly as possible under the circumstances, our order shall pro- vide for back pay for the discharged employees listed in Appendix A from the date of the discharge ... . The restoration of the status quo in the circumstances of the present case requires, no less than in Gulf Public Service, that the discharged employees be made whole for their backpay losses suffered from the date of their unlawful discharge. I dissent to my colleagues' failure to grant the General Counsel's request for such remedy. MEMBER FANNING took no part in the consideration of the above Decision and Order. * N L.R B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C A. 2), cert. denied 304 U.S. 576. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by the Charging Party on June 26 and August 3, 1962, the General Counsel on August 5, 1962, issued a complaint alleging that (1) the Respondent, by means of threats and acts of interrogation, had interfered with, re- strained, and coerced its employees in violation of Section 8(a)(1) of the Act; (2) the Respondent, on June 22, 1962, and thereafter, had refused to recognize the Charging Party as the exclusive bargaining representative of the employees in its Chillicothe, Ohio, store, in violation of Section 8(a)(5) of the Act; and (3) the Respondent had discharged 16 employees for going out on strike because of the Respondent's refusal to recognize the Charging Party, in violation of Section 8(a) (3) of the Act. The Respondent filed an answer denying the commision of any unfair labor practices. The case was heard before Trial Examiner Owsley Vose at Chillicothe, Ohio, on October 2-5, 1962. All parties appeared and were represented at the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to present oral argument. The General Counsel and the Respondent have filed briefs which have been fully considered. Upon the entire record and my observation of the witnesses, I make the following: SEA-WAY DISTRIBUTING, INC. 463 FINDINGS AND CONCLUSIONS 1. THE RESPONDENT'S BUSINESS The Respondent, an Ohio corporation, operates stores in Newark and Chillicothe, Ohio, where it is engaged in the discount retailing of numerous items, including drugs, jewelry, sporting goods, hardware, electric appliances, and automobile and garden supplies. During the 12-month period ending August 1, 1962, the Respond- ent's gross sales were valued in excess of $500,000. During the same period the Re- spondent purchased items for resale valued in excess of $50,000 which were shipped directly to its stores from points outside the State of Ohio. Upon these facts I find that the Respondent is engaged in commerce within the meaning of the Act, and that it is appropriate for the Board to assert jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 188, Retail Clerks International Association, AFL- CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. The establishment of the Chillicothe store; the organization of the Union Early in April 1962 the Respondent commenced hiring employees to prepare the Chillicothe store for opening. For the first few weeks the employees were engaged stocking the shelves and learning their new duties. On April 24, 1962, the store was opened for business. About a week later the Respondent hired Burl Bowling as a stock clerk. Bowling was interested in a union from the beginning of his employment. Not long after commencing work Bowling inquired of employees at the nearby Kroger's Super- market as to the name of their union representative. The Kroger employees informed Bowling that Phillip Bond was their representative, and they offered to refer Bond to Bowling the next time Bond came to town. On June 1 Bond, who was acting as the business agent of the Union, looked up Bowling in the Respondent's store. Bowling asked Bond what he could do to bring a union into the store. Bond advised Bowling that he would have to have a majority of the employees fill out bargaining authorization cards, and said that he would see to it that the necessary cards were mailed to Bowling. After receiving the cards about June 5, Bowling arranged for a meeting of the employees after work on June 8 at Cline's Drive In. At this meeting 13 employees signed cards authorizing the Retail Clerks International Association to act as their collective-bargaining agent. Harold Scott, who the Respondent contends was a supervisor, had earlier that day signed a card at Bowling's request. There were approximately 17 nonsupervisory employees in the store at that time. After the meeting, all 14 cards were mailed to the Retail Clerks District Council office in Columbus. Subsequently, Business Agent Bond called Bowling and asked him to arrange a meeting of the employees. Such a meeting was held after work on June 20 in the probate courtroom of the county courthouse at Chillicothe. Bond presided at this meeting, which was attended by 15 employees, including Harold Scott. Bond first inquired as to the nature of the employees' problems. Among other things, Bond, was informed of the low wages they were receiving and of the fact that the Respondent was open 7 days a week. After hearing their complaints, Bond discussed various provisions in the contracts which the Union had with other employers in the area. Bond explained that there were two ways by which the Union could seek recognition: one was to obtain a National Labor Relations Board election, and the other was to request recognition forthwith and to back up the request with a show of the cards which they had signed Bond. mentioned that the election method would take longer, possibly 3 or 4 weeks. Bond explained that if the Respondent refused their request for recognition it would be necessary for them to go out on strike to back up their demand. After expressing the fear that they might be laid off if there was any delay, the employees voted 15 to 0 to adopt what they referred to as the "recognition" route in preference to petitioning for an election. Bowling urged Bond that the request for recognition be made of the Respondent as soon as possible. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union's request for recognition and related events Business Agent Bond, accompanied by Richard McAllister, the secretary-treasurer of the Retail Clerks District No. 8, at Columbus, Ohio, went to Respondent's Chillicothe store about 1:15 p.m. on Friday, June 22. Encountering Jack Coffey, the manager of the store, outside the door, they identified themselves to him and told him that they represented the majority of the nonsupervisory employees at the store and that they wanted to bargain for wages, hours, and working conditions. Jack Coffey, indicating surprise, invited them to come down to his office in the basement of the building. Upon arriving in the office, McAllister and Bond showed Coffey their business cards. McAllister again stated that the Union represented a majority of the employees, and explained that the Union was an organization of re- tail sales clerks. At this time McAllister also handed Jack Coffey the 14 signed authorization cards and a single-page typed blank contract stating in substance that the employer recognizes the Union and agrees to enter into negotiations with it for a complete collective-bargaining contract. At this point Jack Coffey interjected that while he was the manager of the store, he was not in authority, and suggested that he call his brother, the president of the Respondent, at the Newark store. Jack Coffey thereupon called Robert Coffey in Newark and stated that there were two union representatives in the store who were claiming to represent a majority of the employees. At Robert Coffey's request, McAllister was put on the telephone. Robert immediately inquired as to what kind of wage rates the Union was seeking. McAllister explained that the Union did not have a standard contract and that at this time the Union was simply seeking recognition; they could discuss wages, hours, and working conditions later on. Robert Coffey inquired whether they would wait 2 hours until he could reach Chillicothe. McAllister agreed to return at 3:40 p.m.' About 3:30 p.m. that afternoon Jack Coffey came to Burl Bowling where he was unloading a truck and told him that Robert Coffey wanted to see him in the office. When he got to the office Bowling found both Jack and Robert Coffey there. According to Bowling's credited testimony, Robert Coffey immediately asked, "What the hell is this union all about." Bowling replied that all the employees wanted a union to help them obtain job security and better pay. Robert replied that "these union officials won't do nothing but take your dues and give you very little in return." Robert then added that he could not afford to pay the union wage scale and that "when this damn thing was over he was going to get rid of all the employees." 2 After Bowling left the office, Jack Coffey summoned Marilyn Ratcliffe from the cash register where she was working. She found Robert Coffey at the desk in the office. Jack Coffey seated himself to one side. According to Ratcliffe's undenied and credited testimony, the following conversation then ensued: . he [Robert Coffey] asked me what this union was all about. And I asked him, "What union?" He said, "The union that the kids are trying to get in the store." I said, "What about it?" And he said he heard that we were trying to get it in the store. And he asked me if we went to any meetings . And I told him that we had went to one earlier that week. He wanted to know if we had signed any papers, and I told him we signed a paper up there. He wanted to know what for, and I told him to see how many had been present at the meeting. And he kept on talking, asking me what our gripes were about it, and I told him I didn't know about that. He called the union team mobsters. He said that if they would put money into the store that they could run it. But he i The foregoing findings are based primarily on McAllister's credited testimony. The testimony of the two Coffeys is substantially in accord 2 Robert Coffey testified that he had his brother call an employee to the office ; when Bowling appeared. he asked Bowling "what was going on"; Bowling said "that there was talk about a union" ; he then asked Bowling what did he "want a union for," and Bowling's reply was, "I want security." To this, Coffey replied, according to his testi- mony, "The only security . . . Is right in ourselves. As long as you do a good job, you've got the security . . . and other than that there was no other conversation." Coffey was not questioned concerning Bowling's testimony to the effect that he had warned that he was going to get rid of all the employees when this thing was over Consequently, this testimony is not specifically denied . I believe that Bowling's version of this conversation is the more accurate . Bowling, in his testimony, appeared to be attempting not to overstate matters. I find the facts to be as set forth in the text above. SEA-WAY DISTRIBUTING, INC. 465 said they would reduce our hours and pay. And he said before ... he would let the union in that he would close the doors. 3. The Respondent's rejection of the Union's second request for recognition When Union Representatives McAllister and Bond returned to the store for their appointment with Robert Coffey, they encountered Bowling on the first floor. Bowling reported to them that the Coffeys had called him down to the office and wanted to know what he had to do with the Union. On the way downstairs to the office McAllister and Bond passed Marilyn Ratcliffe who told them that the Coffeys had had her in the office and questioned her about the Union. Upon arriving at the office , McAllister introduced himself and Bond to Robert Coffey and showed him his credentials. At the outset McAllister complained about Coffey's conduct, after having been informed over the telephone of the Union's request for recognition, in "call[ing] a couple of people in and threaten[ing] them, intimidat[ing] them." McAllister commented that the situation "wasn't helped by [Coffey's] actions." McAllister explained that the Union was seeking recognition, that it represented a majority of the men and could prove it, and that it was not necessary to go to an election. Robert Coffey immediately and loudly inquired "what did [they] want, the keys to the store, what kind of a country was this." McAllister asked Coffey if he would not "cool off a little bit [so] that [they] could do business as gentlemen." After Coffey calmed down he asked what the Union's demands were, what kind of wages the Union would seek in a contract. McAllister explained that the Union was not at that stage yet, it was merely seeking recognition at this time. McAllister further stated that the Union had no set pattern for its con- tracts, that decisions on contract demands were made by the employees, and that the demands normally varied from company to company, depending upon the type and size of the enterprise, and the amount of business being done. Coffey replied that if the Union would put $250,000 in the business, he would recognize the Union. McAllister took exception to this proposal. At this point Coffey proposed calling his attorney in Canton. It developed at the hearing, although this was not brought out at the time, that Coffey intended to call Edward J. Zink, the Canton attorney who was one of the Respondent's representatives at the hearing. Coffey placed a call to Zink in Canton but he was not immediately available. While awaiting the return call, McAllister handed Coffey the 14 signed cards which had been received in Columbus, together with the proposed recognition agreement. At the same time, McAllister stated that according to his best informa- tion there were 17 employees in the unit. Robert Coffey, who admittedly was not familiar with the names of the Chillicothe employees, handed the cards to Jack Coffey, who thumbed at least part way through them. Jack Coffey commented that the first card in the stack was that of an individual who was no longer employed by the Respondent. While the cards were being examined the return call came in from Canton from Coffey's attorney. Coffey explained over the telephone that the Union was seeking recognition and had presented 14 signed cards. Coffey then read over the telephone the text of one of the authorization cards and also the terms of the recognition agreement. After listening for quite a while, Coffey hung up the telephone and announced, "That's it. We're going to do nothing .... The man says go to a Labor Board election." McAllister then stated as follows: "We would have to do what we thought best to protect our majority status, and our interest." With this statement McAllister and Bond left the Respondent 's office. It was about 4:20 p.m. at this time. The foregoing findings are based largely on the testimony of McAllister, who appeared better able to report the details of this meeting and the exact sequence of events. Union Representative Bond's testimony concerning the events at this meet- ing is in accord with that of McAllister. Jack Coffey's testimony concerning this meeting is not inconsistent with that of the two union representatives. Robert Coffey's testimony, however, cannot be reconciled with that of McAllister as to certain aspects of this meeting. When called first as an adverse witness by the General Counsel, Coffey testified that the union representatives demanded that he sign the recognition agreement; that he insisted upon a National Labor Rela- tions Board election , and that the union representatives said that- . they don't have to have an election; this is a free country; we have no reason to have an election . We've decided . We're the leaders, now. We're going to take over the store , and we're going to run it, and this is it. Coffey's testimony concerning this meeting, when subsequently called as a witness for the Respondent, is not consistent with his earlier testimony. When called by the Respondent, Coffey testified as follows: 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, Mr. McAllister asked me to sign this paper , and I asked him what it was, and he said it was recognition of their union. I asked him what proof that he had that he had these people signed up? He said he had them signed up, and he said he had a stack of cards. And, in fact, he put these cards-threw them across the desk . And not being familiar with the names of the people that were employed , not too well-I didn't know their names-I handed them to my brother, and he-the first thing he did, he looked at this, and the first one he pulled off he said , "Well, this person is no longer an employee here." And I turned around to the fellows , and I said, "Well, what are your de- mands?" And Mr. McAllister said, "We have no demands at the present time." He said, "All we want is recognition of the union." And I said, "Well, under the circumstances, with this card not being a proper card, I want an election ," I said, "And I demand an election, an N.L.R.B. election . . . ." When Coffey was questioned further about this incident by the Respondent's at- torney, he testified that after he hung up the telephone he announced , "I want an N.L.R.B . election," and that when McAllister and Bond said, "You don't have to have an N.L.R.B. election," he rejoined "I demand one." Upon consideration of all the testimony about this meeting I conclude that McAllister's version is closest to the truth . In reaching this conclusion , I am in- fluenced by the inconsistencies between Robert Coffey's two accounts and also by the fact that Robert Coffey's version was not corroborated by the testimony of his brother Jack, insofar as the essential points of difference between the testimony of McAllister and Robert Coffey are concerned . I do not believe that Robert Coffey mentioned at the end of the meeting, as a ground for demanding an election, the fact that one of the cards was signed by a person no longer in its employ . Coffey's own testimony reveals that he was not seriously concerned about this matter. Thus, it shows that after testifying concerning his brother's comment that one of the cards was signed by a former employee, Coffey immediately went on to relate that he then said to McAllister and Bond , "Well, what are your demands?" Had Coffey seriously questioned the Union 's majority status it is doubtful that he would have gone on and immediately asked for the Union's bargaining demands. And had Coffey raised a serious question as to the Union's majority, it is likely that McAllister and Bond would have gone over the cards , one by one, with Coffey in an effort to establish the propriety of the Union's claim of representative status. Under all the circumstances, I find the facts concerning this incident to be in accordance with the testimony of McAllister, set forth hereinabove.3 4. The strike; the Respondent's discharge of the strikers McAllister and Bond, upon leaving the Respondent 's office, met Bowling and a few other employees at the top of the stairs . McAllister announced that Robert Coffey would not recognize the Union . Bowling turned to the employees in back of him and said , "Well, it looks like we're going to have to go out on strike whether we want to or not." With that, the employees near Bowling walked out the back door. Bond spoke to Linda Colley, one of the cashiers at the front entrance, as he followed McAllister out of the door. Colley and Martha Haubeil, another cashier, followed them out of the building. A few customers were left standing at the front checkout counter at the time. Samye Rowland, who was at one of the back registers, checked out several customers before she walked out at 4:45 p.m. By this time management personnel or their wives had taken over the cash registers. Only Dorothy Reynolds, Alicia Ingram, and James Bell, the assistant manager, remained on the sales floor at this time . Dorothy Reynolds agreed to remain until 5 p in., her regular quitting time. Reynolds did not return to work the next day and joined the pickets 2 days later. 3 The Respondent states in its brief , without citing the portion of the record upon which it is relying, that Coffey noted at this time that one of the cards was that of Harold Scott, who the Respondent states was a supervisor. The Respondent also asserts in its brief that on this occasion Coffey also asked for an election because he had doubts as to the appropriateness of the unit I have been unable to find any support in the record for either of these assertions Accordingly, I find that no such assertions were made by Coffey. Scott's status as a supervisor is treated hereinafter in connection with the dis- cussion of the Union's majority status. SEA-WAY DISTRIBUTING, INC. 467 As the employees on the evening shift arrived shortly before 4 : 30 p.m., they were informed by the day-shift employees of the Respondent's refusal to recognize the Union. They joined the striking employees from the day shift and refused to go in to work. Of the Respondent's 17 nonsupervisory employees on June 22, only Alicia Ingram, who had not been invited to join the Union and who was unaware of any union activities until the strike began , did not join the strike. Union Representatives McAllister and Bond had brought printed picket signs in their car when they came to Chillicothe . After the name "Sea-Way" was inserted in crayon at the top of the signs , they were distributed among the striking employees. Approximately half of the employees were assigned to picket at the front of the store, the other half at the back. Shortly after the striking employees commenced picket- ing with the signs, Coffey went out and told various groups of strikers , which included all of the strikers here involved , "to lay down [their] picket signs, because [they were] fired." Coffey's own testimony is that he "called all the employees together on the picket line and [he] told them they were no longer employees of Sea-Way because they had left their jobs." The next day, June 23, Coffey advertised over the radio and in the newspaper for help and succeeded in hiring a sufficient number of employees to keep on operating. On June 26, the Union filed charges with the Board alleging that the Respondent had violated Section 8(a) (1), (3 ), and (5 ) of the Act. The Union did not file a peti- tion for an election at any time. The striking employees were still picketing the plant at the time of the hearing in this case in October 1962. 5. Events during the strike Although at the hearing in this case it appeared that the Respondent was contending that certain striking employees had engaged in various acts of misconduct on the picket line, which disqualified them for reinstatement , evidence of specific acts at- tributable to identified employees was not forthcoming except with respect to the one incident of alleged nail-strewing discussed below. This is the only incident of alleged disqualifying conduct on the part of strikers relied upon by the Respondent in its brief to the Trial Examiner. Three of the Respondent's employees who were working at the store on July 10 testified that they, and two other employees, including Assistant Manager Bell, observed pickets throwing roofing nails in the parking lot. Neither Assistant Manager Bell nor Lowe, one of the employees who witnessed the incident , was called to the stand. The three pickets involved in the incident denied engaging in any such conduct In view of the conflict in the testimony, it is necessary to consider the testimony of the various witnesses in some detail . Joan Gibson testified that about 2:30 p in. on July 10 she observed Harold Scott and Patricia Jackson walking back and forth side by side on the parking lot about 30 feet from the rear of the store and that Victor Chaney was following a few steps behind. What attracted her attention to them, according to Gibson, was the fact that she noticed Chaney stooping over and doing something. Gibson further testified that she walked over to the large doorway where she was only 30 feet from them. As she stood there watching them she observed Scott and Jackson , who were each carrying a picket sign with one hand, throwing roofing nails out as they swung their free hands in normal walking fashion Accord- ing to Gibson's further testimony Chaney was "turning something over." Later on Gibson elaborated as follows: "I seen him bend over then , and I watched to see what he was doing, and he was turning them over , the head down . He was setting them up more or less . . And he was putting rocks around them so that they would stand up." Gibson further testified that when Alicia Ingram came to relieve Lowe, the cashier, she told Ingram about the activities of the three pickets, and that Ingram also stood by the door and watched what the three pickets were doing. Gibson also testified that after Lowe returned to her post at the cash register. Ingram looked up Assistant Manager Bell and brought him back to see what was going on Gibson admitted that she was easily visible to the three pickets outside. Lonnie Keaton testified that Joan Gibson called his attention to Scott , Jackson, and Chaney on this occasion , and that at the time Ingram and Lowe were already watching the three pickets from near the customer entrance and exit door. Gibson and Keaton were standing in the open doorway of the large overhead door. Keaton testified that Scott had a picket sign and that he was "just walking along normal, strewing nails." When asked what Jackson was doing, Keaton answered, "she was walking with him (Scott) " In response to the question , "What was Chaney doing," Keaton testified as follows : "He was walking behind . On occasion he would sit down , or stoop over, and do something in the alley ." Asked "What did you observe him doing," 717-672-64-vol. 143-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keaton replied, "Well, he was picking up pebbles and putting them around the nails." He testified that he remained in the doorway watching the three pickets for 30 minutes' According to Keaton , Assistant Manager Bell remained in the large open doorway watching the pickets for 20 minutes. After the pickets left, Keaton and Assistant Manager Bell went out and picked up the nails. Alicia Ingram testified that Scott, Jackson, and Chaney were moving their arms and "just throwing [the nails] all over the parking lot." Ingram made no mention in her testimony of Chaney's alleged turning over of the nails on the parking lot. When asked did the three employees "seem to take the tacks out of anything before they threw them," Ingram replied, "I don't know." As indicated above Scott, Jackson, and Chaney all denied that they had placed any tacks on the parking lot back of the store. Chaney denied all knowledge of the incident and denied ever walking alone behind Scott and Jackson on the parking lot. On the stand, Chaney appeared to be genuinely perplexed as to how he became implicated in the incident at all. I conclude that as to Chaney, it is a case of mistaken identity. Of the three witnesses to the incident who testified for the Respondent, only Alicia Ingram had worked at the store at the same time as Chaney , and Respondent's other two witnesses, who were hired during the strike, very likely were relying on Ingram's identification of Chaney. Assistant Manager Bell, who possibly could have corroborated Ingram's identification of Chaney, as stated above, was not called as a witness. Ingram , as found below , was not a reliable witness , and her testimony differs from that of the Respondent's other two witnesses as to what this third picket was doing. While I credit the testimony of the Respondent 's witnesses to the effect that, after observing Scott, Jackson, and a third employee picketing at the rear of the store on the occasion in question , they went out and found roofing nails scattered over portions of the parking lot, I do not credit the testimony of the Respondent 's witnesses to the effect that they actually saw the pickets scattering the nails or that they actually saw the third. employee placing pebbles around the heads of the nails to make them remain upright. As stated above, the Respondent's witness, Lonnie Keaton, testified that Assistant Manager Bell remained watching the pickets for 20 minutes on this occasion. Not until the pickets had voluntarily left the scene did Bell and Keaton go out and look the parking lot over. Nothing whatever was said to these pickets about their conduct, so far as the record shows, although if the testimony of the Respondent 's witnesses is to be believed , the three pickets were engaged in highly reprehensible conduct-and conduct which would be very damaging to the Respondent's business. The testimony of the Respondent's witnesses about the incident is not wholly consistent. According to Gibson , Scott and Jackson were throwing the nails, and Scott was handing the nails to Jackson . In this connection Gibson testified , "I think he had the nails in his pocket." Later, on cross-examination , Gibson stated, "He could have had two pockets full of nails." Keaton's testimony suggests that only Scott was "strewing nails" and that Jackson merely "was walking with him." Gibson's and Keaton's testimony led me to believe that the nails were being strewn covertly while the arms were being swung as one normally does while walking. Ingram's testimony, on the other hand, indicates that all three employees were actually openly throwing the nails so as to scatter them over a wide area. Unlike Ingram who did not make any mention of Chaney's alleged stooping over, both Gibson and Keaton testified that they observed Chaney occasionally stooping over and "do[ing] something in the alley," which they subsequently explained was turning the nails over and placing pebbles around the head. Neither Gibson nor Keaton attributed any throwing of nails to Chaney. As indicated above, Ingram did not make a favorable impression on me as a wit- ness. She appeared to be eager to give damaging testimony against the strikers in general . According to Ingram , although the three pickets were walking back and forth adjacent to the rear entrance , she found nails scattered over one-half of the parking lot, which is a large one. Ingram's memory concerning certain aspects of the incident was poor. She could not remember whether there were few or many cars on the parking lot that afternoon. Nor could she remember whether it was a rainy day or whether the sun was shining. Gibson and Keaton testified that it was a hot, sunny afternoon. Aside from these considerations which raise serious questions in my mind about Ingram's credibility, there is another factor which influences me to reject the testimony of Ingram, and the Respondent's other two witnesses to this incident, as well. Scott i Gibson testified that she remained there watching the three pickets for from 25 to 30 minutes. SEA-WAY DISTRIBUTING, INC. 469 and Jackson, who I have found were picketing on the occasion in question, impressed me as being ordinarily alert and intelligent persons. Before the strike began they had been instructed to avoid all violence. They must have sensed, if they did not know for sure, that scattering nails in the parking lot would at least raise questions about their right to reinstatement. In these circumstances I find it difficult to believe that the three pickets would engage in the conduct attributed to them for such a prolonged period right under the eyes of five of the Respondent's employees, including the Respondent's assistant manager. Under all the circumstances 1 am convinced that none of the Respondent's witnesses actually saw Scott and Jackson throwing nails and a third picket turning them over. The record is vague as to how many times the third picket was seen stooping over. I believe that the Respondent's three witnesses assumed, after the nails were found on the parking lot and after seeing the third picket unaccountably stooping over, that the three pickets then on the parking lot were guilty of spreading them, and that the testimony of the Respondent's three witnesses represents their conclusions as to how the nails got there. In part the conclusionary nature of their versions is evident from the testimony of the Respondent's three employee witnesses itself. Under all the cir- cumstances, and in view of the denials of Scott, Jackson, and Chaney, I conclude that as to Chaney, it was a case of mistaken identity, that he was not the third picket involved in the nail strewing incident. With regard to Scott and Jackson, I find that the Respondent has not established that they engaged in the conduct attributed to them on the occasion in question.5 B. Conclusions 1. The Respondent's violation of Section 8(a)(5) of the Act a. The appropriate unit The complaint alleges that all selling and nonselling employees of the Respondent's Chillicothe, Ohio, store, excluding all supervisors as defined in the Act, constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The Respondent adduced testimony to the effect that it operates two stores, one at Newark, Ohio, and the other at Chillicothe, which is 65 miles away; that all corporation books are kept at the Newark store; that payroll records and other administrative details are handled exclusively at the Newark store, including the preparation of payroll and other checks; and that the two stores are operated almost identically, and have substantially the same classifications of em- ployees and pay scales. The Respondent also showed that a few employees from the Newark store were loaned to the Chillicothe store for a few days on several occa- sions. Although the Respondent adverted to this testimony in its brief, it does not specifically contend that a unit consisting of the nonsupervisory employees of the Chillicothe store alone is not an appropriate unit for collective bargaining within the meaning of the Act. In view of the common employment interests of the non- supervisory employees of the Chillicothe store, the geographical separation of the two stores, and the fact that no other organization is claiming representation rights for the Respondent's employees on any other basis, I find that the unit alleged in the complaint is an appropriate unit for the purposes of collective bargaining. See Sav-On-Drugs, Inc., 138 NLRB 1032; American Linen Supply Co., Inc., 129 NLRB 993, 995; Thompson Ramo Wooldridge, Inc., 128 NLRB 236, 238. b. The Union's majority status in the appropriate unit At the time the Union requested the Respondent to sign the recognition agreement on June 22, 1962, the Union handed Robert Coffey cards signed by 14 employees authorizing the Union to act as their collective-bargaining agent. The Respondent does not challenge the authenticity of any of the signatures. However, it does con- tend, and I find in acocrdance with this contention, that one of the cards was signed by an employee who was no longer on the Respondent's payroll. Coffey testified that there were 17 employees at the Chillicothe store on June 22. Upon the basis 6In view of my conclusion in this regard I do not reach the question whether, assuming contrary to my finding herein, that Respondent showed that Scott and Jackson engaged in the conduct attributed to them, their conduct was such as to render them unfit for fur- ther employment in view of the nature of the Respondent's unfair labor practices which caused the strike. See Local 833, 77AW v. N.L.R.B. (Kohler Co ), 300 F. 2d 699 , 702-704 (C A.D C.), cert. denied 370 U S. 911. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the foregoing, I find that on June 22, 1962, and at all times thereafter the Union represented 13 of the 17 employees in the appropriate bargaining unit. At the hearing the Respondent sought to show that Harold Scott, one of the employees who had signed cards designating the Union as his bargaining agent, was a supervisor within the meaning of Section 2 (11) of the Act. The record shows that Scott attended the union meeting on June 20 and was active in connection with the picketing of the store after the strike began. The Respondent apparently contends that because of Scott's participation in the employees' organizational activities the Union must be deemed not to have been freely chosen as the bargaining agent of the employees. Aside from the fact that the record as a whole shows that neither the employees, nor Scott himself, regarded Scott as acting on behalf of management, I find, for the reasons set forth below, that Scott exercised none of the supervisory responsibilities set forth in Section 2 (11) of the Act. Consequently, the Respondent's .contention is rejected. Scott was one of the first employees hired by the Respondent . He assisted in set- ting up the store before it opened After the store opened Scott's duties consisted of unloading merchandise from trucks and checking off the quantities from the de- livery slip or invoice, marking prices on the individual items, and placing the items in the proper place either in storage or on the shelves in the store proper. Two or three other employees also participated in these activities, except that 2 weeks after the store was opened Scott was given the primary responsibility for the checking the receipt of merchandise. At this time Scott's wages were increased from 85 cents to $1.25 per hour. The record shows that Scott acted as a leadman or strawboss among the warehouse employees, working along with them in the unloading of the trucks, the pricing of the merchandise, and the placing of the merchandise in its proper location. Occasionally Scott would summon the others to help him in unloading a truck and at times he would show the others where the merchandise should be placed. Scott never exercised the power to hire, fire, or discipline employees, or to effectively recommend such actions I am not unmindful of the testimony of Robert Coffey that about 2 weeks after the store first opened he informed Scott at a meeting of all the male warehouse employees, as follows Red, I've got to have someone in charge of this back end here I'm not satisfied with the way it's going. You're in charge. You've got the authority to hire and fire these people. Do me a job; I'll give you a raise immediately, and I'll take care of giving you a raise later on if you do a proper job Scott denied that either Robert or Jack Coffey placed him in charge of anything other than checking in the merchandise as it arrived Conferring such responsibili- ties upon an employee, in my opinion, does not make an employee a supervisor within the meaning of Section 2(11) of the Act. See N L.R B. v. Overnite Trans- portation Co., 308 F. 2d 284, 289 (C.A. 4). Two other employees who were present at the meeting at which Robert Coffey assertedly announced Scott's supervisory status, testified, in agreement with one another, that what Coffey had said on this occasion was that Scott had been there longer than any other employee, that he knew where the merchandise was to be placed, and that if they had any questions about their work to ask Scott. Scott's entire conduct throughout this case is so inconsistent with his responsibilities as a part of management that I am convinced that Coffey did not tell Scott that he was in charge of the warehouse employees with the authority to hire and fire them. While Coffey may have intended to confer general supervisory authority upon Scott, I find that he did not put his instructions to Scott in such a way as to communicate either to Scott or to the other employees that he was re- sponsible for the effectiveness with which the other warehouse employees did their work. Accordingly, I find that Scott was no more than a leadman having the re- sponsibility to convey Jack Coffey's instructions to the men in the performance of routine functions, but without the authority to exercise his independent judgment in directing the other warehouse employees in the performance of their work. For the foregoing reasons I conclude that Scott was not a supervisor within the meaning of Section 2(11) of the Act .7 °The foregoing findings are based upon the composite testimony of Scott, Chaney, and Oliver Zickafoos, which is credited Y I have not overlooked the testimony of Bowling that Jack Coffey told him when she was hired that Scott was in charge of the warehouse, would be his boss, and would tell him where to put the merchandise when asked who was his immediate supervisor . Bowling answered, "Jack Coffey." Charles Phillips testified that his Immediate supervisor was Scott and that his boss was Jack Coffey The testimony of these two employees on its face shows SEA-WAY DISTRIBUTING, INC. 471 c. The Respondent's refusal to recognize the Union on June 22, 1962 As found above, the union representatives showed Jack Coffey 14 signed bargaining authorization cards and requested him to sign the recognition agreement When Jack Coffey protested that he lacked sufficient authority to do so and referred them to his brother, Robert, the president of the Respondent, Union Representative McAllister repeated the same request to Robert Coffey over the telephone. Coffey agreed to come to Chillicothe to talk to the union representatives. Shortly after arriving in Chillicothe, Coffey summoned two employees to the office, questioned them as to their union sympathies and activities, and threatened them with loss of employment. As found above, he warned one of the employees that "when this damn thing was over he was going to get rid of all the employees." To the other employee Coffey stated that "before he would let the union in that he would close the doors." 8 When the union representatives returned to keep their appointment with Robert Coffey and again requested that he sign the recognition agreement, Coffey refused, declaring that he demanded an election. I find that Coffey's position in this regard was not based upon a good-faith doubt as to the Union's majority status at the store. I base this finding not only upon the fact that Coffey, when the Union requested recognition, did not seriously question the Union's majority status, but also upon the fact that almost as soon as he reached Chillicothe, he called in two employees, questioned them about the Union, and threatened them that adherence to the Union would mean the loss of their jobs. That Coffey's refusal to recognize the Union was not because of his doubts as to the Union's authority to represent the employees, but rather because of its opposition to bargaining with the Union under any circumstances, is further indicated by its discharge of all of the strikers a few minutes after they commenced picketing the store that afternoon and by his comment to Bowling on the picket line later on that evening that he would "close the doors before he'd ever let a union in the store." 9 As the Respondent points out in its brief, when an employer acts in good faith he may challenge a union's asserted majority without being held to have violated Section 8(a)(5) of the Act. However, although Section 9(c)(1) of the Act pro- vides machinery by which the question of representative status may be determined in a Board-conducted election, it has long been settled that an election is not the only means by which representative status may be established. See United Mine Workers v. Arkansas Oak Flooring Company, 351 U.S. 62, 71-72, and cases cited in footnote 8 therein. The courts have uniformly held that where a union has obtained authorization cards signed by a majority of the employees in an appropriate unit, the employer, absent a good-faith doubt as to the reliability of the cards, violates Section 8(a) (5) of the Act if he refuses to recognize and bargain with the Union. N.L.R.B. v. Dahlstrom Metallic Door Company, 112 F. 2d 756, 757 (C.A 2); NL.R.B. v. Southeastern Rubber Mfg. Co., 213 F. 2d 11, 15 (C.A. 5), N.L R B. v. I. Taitel and Son, 261 F. 2d 1, 4-5 (C.A. 7), cert. denied, 359 U S. 944. See also N.L.R.B. v. Armco Drainage & Metal Products, Inc., 220 F. 2d 573, 576-577 (C A. 6), cert. denied 350 U.S. 838, and DuBois Chemicals, Inc., 140 NLRB 103 Having found that the Respondent's refusal to recognize the Union was not based on a good-faith doubt as to the Union's majority status, it follows under the authorities cited above that the Respondent's refusal to do so violated Section 8(a) (5). that they had different interpretations of the meaning of the terms "boss" and "immedi- ate ;supervisor," and that they were not speaking with the technical requirements of Sec- tion 2(11) in mind. Also their testimony is not inconsistent with the conclusion that Scott exercised only a leadman's responsibilities. In any event, the crucial question on this phase of the case is what responsibilities did Scott actually exercise I am con- vinced on the record as a whole that regardless of whatever views Bowling and Phillips may have had as to Scott's authority, Scott actually did not have or exercise any of the functions set out in Section 2(11) of the Act as establitshsng supervisory status. I It is well settled that such threats of loss of employment because of union activities violate Section 8(a) (1) of the Act. And in the context of these threats, Coffey's question- ing of the two employees about their union sympathies and activities had a coercive im- pact. Hence Coffey's conduct in this regard was also violative of Section 8(a) (1) of the Act 9 Such conduct, in my opinion, is entitled to much greater weight, insofar as revealing Coffey's true frame of mind when he refused to sign the recognition agreement is con- cerned, than the statement attributed to Coffey in the Chillicothe Gazette the next day to the effect that he was willing to recognize the Union if it won a National Labor Relations Board election 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relying on Section 8(b)(7)(C) of the Act,'a the Respondent argues that the Union, by picketing for recognition for more than 30 days without filing a petition for an election with the Board, is guilty of violating Section 8(b) (7) (C) of the Act, and in these circumstances it should not be held to have violated Section 8(a)(5) of the Act. I find no merit in this contention. The Union, on June 26, 1962, just 4 days after the Respondent's refusal to recognize the Union, filed charges with the Board, alleging that Respondent had refused to recognize the Union in violation of Section 8(a)(5) of the Act, and had engaged in other unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, as well. The Board, in International Hod Car- riers, etc., Local 840 (Charles A. Blinne), 135 NLRB 1153, considered the question whether the prompt filing of a meritorious Section 8(a) (5) charge would constitute a defense to Section 8(b)(7)(C) charges filed against a union in fact representing a majority of the Charging Party's employees in an appropriate bargaining unit. The Board concluded that, even though no petition for an election had been filed, the filing of meritorious Section 8(a) (5) unfair labor practice charges would constitute a com- plete defense to the Section 8(b) (7) (C) allegations See footnote 24 of the Blinne decision. Accordingly, in view of the Union's prompt filing of meritorious Section 8(a)(5) charges herein, there is no basis for the assumption that the Union was guilty of an unfair labor practice by picketing for recognition for more than 30 days without filing a petition for an election. But even if the law were otherwise and the Union could be regarded as having violated Section 8(b) (7) (C) by reason of its picketing for recognition for more than 30 days without filing a petition for an election, this would not justify absolving the Respondent of its unfair labor practice in refusing to recognize the Union. The 1959 amendments to the Act, which imposed certain additional restraints upon the rights of unions to picket, were not intended to modify or alter in any way the fundamental duty imposed by Section 8(a) (5) of the Act upon employers to recognize and bargain collectively with the majority representative of their employees in an appropriate unit. The Respondent wholly disregarded its statutory obligation in this regard. The need for remedying this misconduct is no less because the Union subsequently, in protest against the Respondent's unlawful refusal to recognize it, engaged in con- duct which I assume, for the sake of argument, came within the ban of Section 8(b) (7) (C). As the Court of Appeals for the Second Circuit aptly stated in N L R B. v. Plumbers Union of Nassau County, Local 457, etc, 299 F 2d 497, at 498: one illegality should not excuse another. N.L.R B v. Remington Rand, Inc, 94 F. 2d 862, 872 (2 Cir. 1938). The public interest lies in labor peace, endangered by both The remedy here was the filing of charges before the Board when the claimed illegality came to light, not in illegal self-help. 2. The Respondent's discharge,of the strikers in violation of Section 8(a)(3) of the Act As found above, within a few minutes after the striking employees commenced carrying picket signs, Robert Coffey came out and told various groups of them "to lay down [their] picket signs, because [they were] all fired " Robert Coffey's own testimony, quoted above, establishes that the discharges were attributable to the employees' leaving their jobs. In its brief, the Respondent does not suggest any other reason for the discharges." In fact, the Respondent takes the position that 10 The pertinent portion of Section 8(b)(7) Is as follows It shall be an unfair labor practice for a labor organization or its agents- (7) to picket or cause to be picketing any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees . unless such labor organi- zation is currently certified as the representative of such employees, (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing n Although during the hearing it was suggested by the Respondent that Coffey took action against the cashiers because they left their cash registers unattended, the Respond- ent does not raise this contention in its brief. While Robert Coffey testified in general con- SEA-WAY DISTRIBUTING, INC. 473 the striking employees were not discharged because Coffey, as a matter of law, could not discharge them simply for going out on strike . With that proposition of law I fully agree . However, in view of the fact that Robert Coffey did inform the strikers that they were discharged and the further fact that since the strike Coffey has failed to accord them the rights to which they are entitled as employees, I conclude that the striking employees , including Harold Scott, who I have found was not a supervisor within the meaning of Section 2 (11) of the Act, were effectively discharged and that the reason therefor was their strike and union activities . Accordingly, I find that the Respondent by discharging the striking employees here involved , including Harold Scott, has violated Section 8(a) (1) and (3) of the Act. IV. CONCLUSIONS OF LAW 1. By threatening employees with loss of employment because of their union ac- tivities and by coercively questioning employees about union matters, the Respondent has interfered with, restrained , and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)( I) of the Act. 2. By refusing on June 22, 1962, and thereafter to recognize the Union as the ex- clusive bargaining representative of all selling and nonselling employees in its Chilli- cothe store , excluding supervisors as defined in the Act, an appropriate unit within the meaning of the Act, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a) (5) and ( 1) of the Act. 3. The strike in which the Respondent's employees engaged beginning on June 22, 1962, was an unfair labor practice strike. 4. By discharging on June 22, 1962, the employees who went out on strike in pro- test against the Respondent's refusal to recognize the Union, the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (3) and ( 1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY My Recommended Order will contain the conventional provisions entered in cases involving refusals to bargain collectively and the discharge of unfair labor practice strikers in violation of Section 8(a)(5), (3 ), and (1) of the Act : cease and desist from the unfair labor practices found and from in any other manner infringing upon the statutory rights of its employees ; upon application , offer reinstatement to the striking employees to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replacements hired ; and reimburse each of the strikers for any loss of pay suffered during the period from 5 days after the date of his unconditional offer to return to work to the date of the offer of reinstatement 12 The reinstatement and backpay provisions are essential to remedy not only the Respondent's discharge of the strikers, but also the remedy the Respondent's refusal to recognize the Union, the conduct which caused the strike in the first place. The General Counsel contends that Robert Coffey, by his remarks to the striking employees on the picket line, has demonstrated that it would be futile for them to apply for reinstatement, and that hence backpay should be awarded from the date the Respondent first made it clear that the strikers would not be taken back. While it is true that Coffey was somewhat abusive in his treatment of the strikers on the picket line, I do not believe that the facts of the instant case warrant making an ex- ception to the general rule that strikers should not receive backpay while on strike. Accordingly, the General Counsel's contention in this regard is rejected. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I issue the following: clusionary terms that the cashiers left the cash registers unattended at the time of the strike, there Is other testimony indicating that the Respondent, by using the services of the two,Coffeys and Assistant Manager Bell and their wives, were able adequately to cover the cash registers . There Is no showing of any specific harm to the Respondent resulting from the cashiers walking out as they did. Leaving the cash registers unattended was not mentioned to any of the striking employees as the cause of their discharge Under all the circumstances I conclude that this was not a motivating factor in the discharge of any of the striking employees 12 Such backpay shall be computed on a quarterly basis and interest shall be added at the rate of 6 percent per annum See F W Woolworth Co , 90 NLRB 289, 291-293; Isis Plumbing 4 Heating Co , 138 NLRB 716 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER - Sea-Way Distributing, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and to bargain collectively with Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO, as the exclusive bar- gaining representative of all selling and nonselling employees at its Chillicothe, Ohio, store, excluding supervisors as defined in the Act. (b) Discouraging membership in Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO, or in any other labor organization by discharg- ing employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (c) Threatening employees with loss of employment because of their union ac- tivities, coercively questioning employees about union matters, discharging employees for engaging in strike activity, and in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO, as the exclusive bar- gaining representative of all selling and nonselling employees at its Chillicothe, Ohio, store, excluding supervisors as defined in the Act, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to Patricia Baker, Betty Bivens, Burl Bowling, Victor Chaney, Linda Colley, Martha Haubeil, Patricia Jackson, Tonita Johnson, Charles Phillips, Marilyn Ratcliffe, Eugene Reed, Dorothy Reynolds, Samye Rowland, Harold Scott, Juanita Sterling, and Oliver Zickafoos, and make each of them whole for any loss of pay he or she may have suffered as a result of its unfair labor practices, in the manner set forth herein in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms hereof. (d) Post at its Chillicothe, Ohio, store, copies of the attached notice marked "Ap- pendix." 13 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, after being duly signed by an authorized representative of the Respond- ent, shall be posted by the Respondent immediately upon receipt thereof and main- tained by it for a period of 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.14 13 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 14 In the event that this Recommended Order be 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 Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten employees with loss of employment because of their union activities or coercively question employees concerning union matters. UNITED ASSN., PLUMBING & PIPEFITTING, LOCAL 562 475 WE WILL NOT discharge any employee because he is a member of Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO, or any other labor union, or because he engages in a strike or other form of con- certed activity. WE WILL recognize and bargain collectively with Retail Clerks Union, Local 188, Retail Clerks International Association, AFL-CIO, as the exclusive bar- gaining representative of all selling and nonselling employees in our Chillicothe store, excluding supervisors as defined in the Act, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and will embody in a signed agreement any understanding reached. WE WILL, upon application, offer immediate and full reinstatement to Patricia Baker, Betty Bivens, Burl Bowling, Victor Chaney, Linda Colley, Martha Haubeil, Patricia Jackson, Tonita Johnson, Charles Phillips, Marilyn Ratcliffe, Eugene Reed, Dorothy Reynolds, Samye Rowland, Harold Scott, Juanita Sterling, and Oliver Zickafoos to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and will reimburse them for any loss of pay they may have suffered after any refusal Of their applications for reinstatement. All our employees have the right to form, join, or assist any labor union, or not to do so. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. SEA-WAY DISTRIBUTING, INC., Employer. Dated----------- -------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local Union No. 562 and Foor Engineer- ing Company. Case No..17-CP-22. June 208. 1963 DECISION AND ORDER On December 17, 1962, Trial Examiner Samuel Ross issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board I has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 'Pursuant to the provisions 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 Rodgers and Leedom]. 143 NLRB No. 54.