Baldwin Supply Co.

BALDWIN SUPPLY COMPANY 745 refrain from engaging in such activities , except to the extent that such right may be affected by an agreement , requiring membership in a labor organiza- tion as a condition of employment , as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL make whole William F. Conceicao, Frank M. Gomes, Ronald Magnett, Jack Tavares, Frank Araujo, Antone Ramos, Mario Monteiro , Roland B. Ferguson, Joseph M. Rozario, and Manuel T. Rozario for any loss of pay they may have suffered by reason of our discrimination against them during the period May 15, 1965, to date. NEW BEDFORD STEVEDORING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street , Boston, Massachusetts 02108, Telephone 223-3353. Baldwin Supply Company and Chauffeurs, Teamsters and Help- ers Local No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9- CA-3581. June 20, 1966 DECISION AND ORDER On March 29, 1966, Trial Examiner A. Bruce Aunt issued his Deci- sion 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 cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. The Respondent did not file any exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings,are^hereby affirmed. The Board has considered the Trial Examiner's Decision, the General Counsel's exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the follow ing modifications and exceptions. 159 NLRB No. 67. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner recommended dismissal of the refusal-to- bargain allegations of the complaint on the ground that the Union did not represent a majority of employees in the unit of employees at the Respondent's main store, warehouse, and tire shop in Charles- ton, West Virginia. He included in the unit Harry Kiser, Elmer Lore, and Richard Martin, industrial order takers, on the ground that their work was similar to that of W. C. Edens and other order takers who, the parties agreed, should be included in the unit as plant clerical employees The General Counsel excepts on the ground that these three employees should have been excluded as office clerical employees. We find merit in this exception. The record shows that Edens and the other order takers who are in the unit are part of the operations manager's department.' They work in the warehouse, where they help to fill orders in addition to taking orders over the telephone and over the counter. Kiser, Lore, and Martin, on the other hand, are part of the purchasing depart- ment, and work in the Respondent's general offices along with other employees in that department who are excluded as office clerical employees. There is nothing in the record to indicate that these three employees spend any time in the warehouse or that they help to fill orders, as do the order takers in the warehouse. Accordingly, it is clear from the entire record, and we find, that the work of Kiser, Lore, and Martin differs from that of Edens, and further, that, like the other employees in the purchasing department, these three employees should be excluded from the unit as office clerical employees. The Trial Examiner found that there were 42 employees in the unit, including Kiser, Lore, and Martin, and that, as the Union had only 21 cards on the critical dates, it did not represent a majority. As we are excluding Kiser, Lore, and Martin, we find that the Union rep- resented a majority of 21 of the 39 employees in the unit at the time it requested recognition.2 The Trial Examiner stated in his Decision that, if the Union's majority status had been established, he would find that the Respond- ent had refused to bargain in violation of Section 8(a) (5) of the Act. We concur. The unlawful conduct of the Respondent's officials and supervisors, set forth in the Trial Examiner's Decision, makes it clear that such refusal to bargain was in had faith and motivated by a desire to gain time in which to undermine the Union's majority 1 Edens' classification is industrial orders-counter , and that of the other order takers is automotive orders-counter. a We find it unnecessary to pass upon the Trial Examiner 's conclusions as to the authentication of the cards of Leonard E. High and Wayne Lee Casto as the Union represents a majority of the employees in the unit without these cards. BALDWIN SUPPLY COMPANY 747 status.3 Accordingly, we find that the Respondent refused to bar- gain with the Union in violation of Section 8(a) (5) and (1) of the Act. We shall therefore order the Respondent to cease and desist from refusing to bargain, and shall further order it to bargain, upon request, with the Union as the exclusive representative of the employ- ees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement Upon the basis of the foregoing, and the entire record in this pro- ,ceeding, the National Labor Relations Board makes the following: CONCLUSIONS Or LAW 1. The Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2 All employees at the respondent's main store, warehouse, and tire shop in Charleston, West Virginia, including countermen, help- ers, machinists, mechanics, shipping clerks, receiving clerks, stock clerks, truckdrivers, warehousemen, and plant clerical employees, but excluding all outside salesmen, purchasing department employees and other office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since April 27, 1965, Chauffeurs, Teamsters and Helpers Local No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been the •exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 4. By refusing, on and after May 3, 1965, to bargain collectively with the aforesaid labor organization as the exclusive, representative ,of its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices Within the meaning of Section 8(a) (5) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a) (1) and 2(6) and (7) of the'Act. 6. The allegations of the complaint that the Respondent engaged in unfair labor practices-have not been sustained except as found herein. 3 Aaron Brothers Company of California, 168 NLRB 1077 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board adopted the Trial Examiner's Recommended Order with the following modifications : Add the following -paragraphs to the Trial Examiner's Recommended Order.4 [1(e) Refusing to bargain collectively with Chauffeurs, Teamsters, and Helpers Local No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of employees in the unit found appropriate herein with respect to rates of pay, v ages, hours of employment, and other terms and conditions of employment. [2(a) Upon request, bargain collectively with Chauffeurs, Team- sters, and Helpers Local No. 175, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all its employees employed at its main store, warehouse, and tire shop in Charleston, West Virginia, includ- ing countermen, helpers, machinists, mechanics, shipping clerks, receiving clerks, stock clerks, truckdrivers, warehousemen, and plant clerical employees, but excluding all outside salesmen, purchasing department employees and other office clerical employees, guards, pro- fessional employees, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed statement. [2. Add to the Appendix the following: [AVE WILL, upon request, bargain collectively with Chauffeurs, Teamsters, and Helpers Local No. 175, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all our employees at our Charleston, West Virginia, main store, warehouse, and tire shop, including countermen, helpers, machinists, mechanics, ship- ping clerks, receiving clerks, stock clerks, truckdrivers, ware- housemen, and plant clerical employees, but excluding all outside salesmen, purchasing department employees and other office clerical employees, guards, professional employees, and super- visors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such under- standing in a signed agreement.] * Paragraph 1(e) should be renumbered as 1(f), and paragraphs 2(a) and 2 ( b) should be renumbered respectively as 2(b ) and 2(c). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, in which the charges were filed on May 12 and 27, 1965, and the complaint was issued on June 30, 1965, involves allegations that the Respond- BALDWIN SUPPLY COMPANY 749 ent, Baldwin Supply Company , violated Sections 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended , 29 US C. Sec. 151 et seq. On Sep- tember 8 and 9, 1965, Trial Examiner A. Bruce Hunt conducted a hearing at Charleston, West Virgma, at which all parties were represented . The Respondent's motions to dismiss the complaint in whole and in part are disposed of in accord- ance with the determinations below. Upon the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT Baldwin Supply Company, a West Virginia corporation, is engaged in the retail and wholesale industrial and automotive supply business in that State and has its main store, warehouse, and tire shop in the city of Charleston. It also has branch stores elsewhere in West Virginia. The Respondent annually purchases products valued in excess of $50,000 which are shipped to it directly from points outside West Virginia. There is no dispute, and I find, that the Respondent is engaged in com- merce within the meaning of the Act. II. THE UNION Chauffeurs, Teamsters and Helpers Local No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza- tion which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The issues The principal issues are whether, during April, May, and June 1965, the Respond- ent: (1) interrogated and threatened employees concerning their union activities; (2) engaged in sureveillance of employees who attended a union meeting; (3) inval- idly refused to bargain with the Union; and (4) invalidly discharged Edward Holsclaw. B. Chronology of events The Respondent's principal place of business is a combination main store and warehouse, herein sometimes called the main store. During April 1965 organiza- tional activity began there. Holsclaw took a leading part and he was assisted by several employees, one of whom is Robert Perrine. As will appear, the Respond- ent asserts that Perrine is a supervisor. On April 26, a meeting was held at the union hall and approximately 20 employees attended. Many of the employees signed applications for union membership while at the meeting, and Holsclaw was selected by his fellow employees to collect dues and to keep them advised of union activities and of efforts to bargain collectively. On the next day, two representatives of the Union, Robert D. Jackson and A. H. Moore, called upon William J. Reish- man, the Respondent's secretary and controller. Jackson gave to Reishman a letter of April 27 addressed-to the Respondent, attention of its president, Lawrence Bald- win, and signed by Jackson, in which the Union claimed to represent a majority of the employees in the unit which the complaint alleges to be appropriate, described hereinafter, and in which the Union asked that there be a card check by a neutral party and that negotiations be commenced at an early' date. Reishman responded that one stockholder, Baldwin, "primarily controlled" the Respondent, that Baldwin was out of the city and that Reishman did not have authority in the matter. On the following Monday, May 3, Baldwin wrote to the Union, stating that the Respondent doubted that the Union represented an uncoerced majority in an appro- priate unit and suggesting that the matter be submitted to the Board. On the same day, Jackson telephoned Baldwin, asked for recognition of the Union, and was told that Baldwin had posted a letter to the Union that day. Following Jackson's receipt of Baldwin's letter on the next day, Jackson telephoned Baldwin, repeated his request for recognition and bargaining, and Baldwin replied that he would not meet with 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jackson until he had talked with his attorney. On the next day, May 5, Baldwin and Jackson agreed upon May 10 as the date for a conference.' On or about May 5, Baldwin held a meeting with about 20 employees. He said to them that he did not know why they wanted a union and that he had been good to them. He also spoke of the Respondent's financial plight, saying that the Respondent was more or less owned by a creditors' committee, that the committee had his letter of resignation which it could date and accept at any time, and that he was powerless to grant wage increases. The committee is one with which the Respondent, in order to avoid bankruptcy, had made an arrangement pursuant to which all stock in the Respondent is pledged to the creditors and their committee can remove Baldwin as president at any time. Baldwin also spoke to the employees of another employer who had sought to discourage union activity by threatening to cease business, but Baldwin assured the employees that he would not go out of business. Finally, Baldwin spoke of certain benefits and privileges which he had given to the employees because he could not afford higher wages. Lawrence Baldwin has a son, Douglas, who, so the father testified, is a 20-year old boy who has no position of responsibility in the business and who is transferred from one department to another in the Respondent's operation in order that he may learn the business. At times material, Douglas Baldwin was working in the tire shop which is located about three doors from the Respondent's main store, which is a part of the Respondent's automotive division, and at which the principal activity is the recapping of tires, as described in more detail in the discussion of the appropriate unit. On May 8, Douglas Baldwin talked with Richard Burkhart, an employee who had signed an application for union membership. Burkhart went to the tire shop to purchase tires for his automobile. Douglas Baldwin asked him if he had signed "for the Union," he answered affirmatively, and Baldwin said that pink slips would be placed on everyone if the Union should become the employees' representative and that he knew the "head" of the union movement. Burkhart asked "Who?" and Baldwin named Holsclaw, saying also that Holsclaw would be "the first to go out the door." Baldwin then asked if Burkhart thought the the Union would "profit" him, to which Burkhart answered affirmatively. Baldwin inquired "How?" and Burkhart answered "Better wages." The conversation ended. The term "pink slip" was meaningless to Burkhart and there is no explanation of it in the record.2 On May 10, Jackson and Moore, representing the Union, called at the main store for the conference which had been scheduled for that day. The conference was held in the Respondent's offices and the following four persons also attended: Lawrence and Douglas Baldwin, David Barton, a representative of the creditors' committee, and George V. Gardner, the Respondent's counsel. Jackson asked that the Respondent recognize the Union and that bargaining be commenced. Gardner replied that he had conferred with representatives of the creditors' committee and that they were not prepared to recognize the Union.3 Gardner suggested that the matter be referred to the Board. Jackson asked if Gardner had in mind a consent election, and Gardner answered in the negative, saying that he wanted a hearing and a direction of election. Jackson said that the unit which had been described in his letter to the Respondent was appropriate, that the Union represented a majority of employees therein, and that he preferred to have a card check by a disinterested person. Gardner said that there was a question about the appropriate- 1 There is testimony that at lunchtime on May 5, Holsclaw collected dues from a group of employees within the plant and that Baldwin walked nearby and was in a position to observe Holsclaw's activity. On the other hand, Baldwin testified that he did not recall having observed Holsclaw's collection of dues. The testimony for the General Counsel was offered to establish that the Respondent was aware of Holsclaw's union sympathy when it discharged him a week later. There is other testimony to establish such knowl- edge on the Respondent' s part and , therefore, I deem it unnecessary to recite the testimony concerning Holsclaw's collection of dues. 3 The findings concerning the conversation between Burkhart and Douglas Baldwin are based upon the former's uncontradicted testimony. Douglas Baldwin was not a witness 3 Counsel are agreed that the creditors' committee is properly not a respondent in this proceeding. BALDWIN SUPPLY COMPANY 751 ness of the unit, and Jackson asked him to explain , but Gardner replied that he would rather discuss the matter at a hearing. The meeting ended .4 On May 11, copies of a letter addressed "TO EMPLOYEES" and signed by Lawrence Baldwin were made available to employees in the main store. The letter refers to the Respondent's letter of May 3 to the Union and to the conference of May 10, and contains the following paragraph: We have confidence that the majority of you will go along with us in using a a legal, orderly procedure in order to resolve this matter. I am confident too that some of you who signed cards may change your minds when it comes to a vote in a secret election . All we ask you to do is to keep an open mind on the matter and continue to work hard so that we may survive this trying period. On May 12, Holsclaw's employment was terminated under circumstances dis- cussed hereinafter. On the same day, the Union filed its initial charge. On or about May 13, an employee, Harless Wolfe, went on a trip with his fore- man, Benton Kinder, and a local merchant , Raymond Taylor. They traveled by automobile to a bowling tournament in an adjoining State. Upon earlier occasions, Wolfe and Kinder had met socially, had played golf together, and had discussed and disagreed on such subjects as labor organizations and politics. The only testimony concerning the conversation in the automobile was given by Wolfe, and my findings are based thereon . During the trip, the organizational activity was discussed. Kinder said that he did not think that the employees needed the Union. Kinder also spoke of privileges which the employees enjoyed, such as playing golf and obtaining hair- cuts during working hours when they were not busy. Such privileges, said Kinder. had been given to the employees because of the Respondent's inability to pay higher, wages. With respect to the possible discontinuance of the privileges if the employ- ees should select the Union to represent them, Kinder said that "in his opinion he didn't know whether [the privileges] would [be continued] or not, but he doubted it." Wolfe added that Kinder "didn't mean that as a threat." On or about Friday, May 14, Perrine, who had been instrumental in putting Holsclaw in contact with the Union, was summoned to Lawrence Baldwin's office. Baldwin said that Holsclaw had quit, that he would not recommend Holsclaw and other union adherents for employment elsewhere, that sooner or later he would get rid of all employees who had signed union cards, and that he had "pink slips on all these boys." The term "pink slip" was not meaningful to Perrine . Baldwin accused Perrine of being a leader in the union activity, and he said that Perrine, being older than most of the employees, could aid him by influencing employees. Perrine denied being a leader in the activity.5 On or about the day of Lawrence Baldwin's conversation with Perrine, he talked to a group of 8 or 10 employees . After prefacing his remarks with the statements that he was not asking the employees not to join a union and that he was not threatening them, Baldwin spoke of the Respondent's financial condition. He also spoke of certain privileges given by the Respondent to employees, such as lending tools and trucks to employees for their personal use , and he explained that such privileges were extended because of an inability to pay higher wages .6 On or about May 18, a letter to all employees from Lawrence Baldwin was posted on a bulletin board . The letter reads, in part: A representative of the National Labor Relations Board, out of Cincinnati, will contact you shortly, possibly at home. I suggest to you that you be care- ful with your conversation and do not sign any documents , due to the fact that when this situation goes before a Committee of the N. L. R. B., all of these issues, such as statements, signatures, etc., will be exposed and could ultimately cause some difficulty. I sincerely hope no difficulty, or embarrassment, etc., will occur, either on your part or on the part of the Corporation. * The findings concerning this meeting are based' upon Jackson 's uncontradicted testi- mony. With respect to Douglas Baldwin 's attendance, Lawrence Baldwin testified that he could not recall whether the son had attended , that the son comes to the office quite often, and that, if the son attended, it probably was a coincidence. On the other band, Jackson testified credibly that he was introduced to Douglas Baldwin when the meeting began. 5 The findings concerning the conversation between Baldwin and Perrine are based upon the latter's uncontradicted testimony 6 These findings are based upon the uncontradicted testimony of Harless Wolfe. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May_ 20, a union meeting was held. The Respondent engaged in surveillance of employees as they arrived at one meeting and it appears that the date of the surveillance was May 20. Mr. and Mrs. W. T. Ramsey reside directly across a boulevard from the union hall. She testified without contradiction, and I find, that "around the middle of May or latter," during the early evening, "a young boy" came to the back door of her house and said to her that he was from "Baldwin Supply Company," that a union meeting was being held across the boulevard, that he wished to sit on her front porch, and that he would like to go through her house instead of walking around it in order that he would not be seen. Mrs. Ramsey gave her permission and the individual, later identified as Douglas Baldwin, sat on her porch for 15 minutes or more. The next day, Mrs. Ramsey told her husband of the incident. He telephoned the union hall to learn who had participated in the meeting, and he was told that the meeting had been for employees of the Respond- ent. Ramsey telephoned Lawrence Baldwin and asked "the idea of using [his] -home for spy purposes." Baldwin replied that he wanted to know who attended the meeting. Ramsey asked whom Baldwin had sent to perform the task, and Baldwin answered his "son, Douglas. Ramsey then said that he did not "like it" and not to "let it happen again." Ramsey also said that he would tell a representa- tive of the Union. Lawrence Baldwin replied that he did not care.? On May 25, Harless Wolfe talked with Lawrence Baldwin in the latter's office. Baldwin asked whether Wolfe could aid him in any way "in the union deal." Wolfe replied that he did not think so because he was not involved sufficiently "far in it." 8 During June, Steven Fowler, an employee, talked with Douglas Baldwin in the presence of the latter's wife at a local automobile service station. Earlier Douglas Baldwin, who worked at the Respondent's tire shop, had said to Fowler that he needed additional employees, and upon the occasion of their conversation in the service station Fowler inquired whether Baldwin would hire a friend of Fowler's who worked in the service station. Baldwin answered in the negative, saying that he knew the friend and that he did not "like to hire friends." Baldwin said aslo that the Respondent knew the identities of all employees who were carrying union cards and attending union meetings and that Holsclaw was an instigator and trouble- maker. Fowler did not respond and the conversation ended.9 C. Interference, restraint, and coercion The initial question at this point is whether the Respondent is responsible for cer- tain conduct in which Douglas Baldwin engaged. According to the Respondent, Douglas Baldwin has no position of authority or responsibility. The fact, however, is that he is the son of the Respondent's owner and that some employees, such as Fowler, believe that he has authority to hire. In any event, regardless of whether he occupies a supervisory position, he was his father's agent to engage in surveillance 7 The findings concerning the conversation between Lawrence Baldwin and Ramsey are based upon the latter's testimony He and his wife both impressed me as truthful witnesses and, as recited, her testimony is uncontradicted because Douglas Baldwin was not a witness. On the other hand, Lawrence Baldwin's version of his conversation with Ramsey does not ring true He testified that Ramsey telephoned him and said that a young man from Baldwin Supply Company had requested permission of Ramsey's wife to sit on the Ramseys' front porch, to which Lawrence Baldwin replied with one word, "Yes," that Ramsey then said that the young man had walked through the house, to which Baldwin answered that he did not know the identity of the young man and asked whether permission had been given to walk through the house, and that Ramsey answered affirma- tively. Baldwin testified further that he then said to Ramsey that he did not understand what Ramsey was talking about, and that Ramsey replied by mentioning the Union, saying that he would report the incident to the Union, to which Baldwin answered, "Well, that's your prerogative." Obviously, Baldwin's version of his conversation with Ramsey is in- complete. Moreover, his testimony that he said to Ramsey that lie did not know the identity of the young man stands in sharp conflict with Ramsey's testimony. According to Ramsey, Baldwin identified the young man as Baldwin's son, Douglas, and such iden- tification made an impression upon Ramsey because he has a son of his own with that given name. 5The findings concerning this conversation are based upon Wolfe's uncontradicted testimony. He testified for the General Counsel and was obviously reluctant to give testimony against the Respondent. BThe findings concerning this conversation are based upon Fowler's uncontradicted testimony. BALDWIN SUPPLY COMPANY 753 of employees who went to a union meeting and he had earlier attended a conference which representatives of management held with representatives of the Union. Finally, as recited below, his directions to Holsclaw to work on May 12 and his participation in Holsclaw's discharge on that day reflect that he was no mere employee. For all of these reasons, I conclude that the Respondent is responsible for Douglas Baldwin's antiunion acts. I find that the Respondent violated Section 8(a)(1) by the following conduct- (1) Lawrence Baldwin's threats to Perrine on or about May 14 and his request of Perrine that the latter aid him in influencing employees to cease their union activi- ties; (2) Lawrence Baldwin's request of Wolfe on May 25 that the later similarly aid him; (3) Lawrence Baldwin's letter of May 18 to employees in which he threatened difficulty or embarrassment if they were not careful in talking with an agent of the Board and if they should sign any documents at such agent's request; (4) Douglas Baldwin's inquiries of, and remarks to, Burkhart on May 8: (5) Douglas Baldwin's surveillance from the Ramseys' porch; and ( 6) Douglas Baldwin's statement to Fowler during June that the Respondent knew the identities of all employees who were carrying union cards and attending union meetings, and his statement upon the same occasion that Holsclaw was an instigator and troublemaker. I find that the Respondent did not violate Section 8(a)(1) by Lawrence Baldwin's remarks to groups of employees on or about May 5 and on or about May 14, nor by his letter of May 11 to employees. His remarks related largely to the Respond- ent's financial plight and, insofar as the record discloses, were not accompanied by a threat or a promise of benefit to employees. I also find that Foreman Kinder's expression of doubt about a continuation of privileges, made to Wolfe on or about May 13, did not violate Section 8(a)(1). I so conclude because of a combination of circumstances, namely, the relationship between Kinder and Wolfe, Kinder's wording of the doubt, the fact that the doubt was expressed on a social trip to another State, and the fact that, insofar as appears, Kinder did not otherwise partici- pate in the Respondent's commission of unfair labor practices. D. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that certain categories of employees at the Respondent's combination main store and warehouse constitute an appropriate unit. Before the contentions of the parties are recited, facts concerning the Respondent's operations will be detailed. The Respondent sells industrial insulation materials, industrial supplies to the chemical industry, machine tools, and replacement parts, including new and recapped tires, for automobiles. Sales of these materials are made at the main store which is located in Charleston. In addition, the Respondent's automotive division has nine branch stores which are located in various places in West Virginia and which sell only replacement parts for automobiles. The main store serves as a warehouse for the branch stores. The Respondent also has a tire shop which is located about three doors from the main store and which is a part of the automotive division. The tire shop is primarily a production center for the automotive division, its principal operation being the recapping of tires for the main store where they are sold at wholesale. The tire shop also sells recapped tires at retail, but such sales constitute a small portion of its operations.'° The building which houses the main store and warehouse was once a street car barn. In the present structure there is a ground floor which accounts for most of 45,000 square feet of floor space, a small second floor, and a mezzanine which serves as warehouse space. The Respondent has been unable to utilize its floor space in ways that it would prefer because of walls which bear loads and cannot be removed. The complaint alleges that an appropriate unit consists of all employees at the main store and warehouse, including countermen, helpers, machinists, mechanics, shipping clerks, receiving clerks, stock clerks, truckdrivers, and warehousemen, but excluding all salesmen, office clerical employees, guards, professional employees, and supervisors. This is the unit for which the Union requested exclusive recognition. 10 The tire shop is known as Lewis Tire Shop, that having been its corporate name when the Respondent acquired its stock. The corporation was dissolved and the tire shop be- came a part of the Respondent's automotive division. On January 1, 1965, the tire shop was moved to its present location about three doors from the main store. Its telephone services are maintained through the switchboard at the main store. 243-084-67-vol. 159-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The suggested exclusion of salesmen apparently refers to persons who are called "outside- salesmen" and who sell recapped tires on a wholesale basis but who are not regarded by the Respondent as employees at either the main store or the tire shop. No party seeks the inclusion of the outside salesmen in the unit. On the other hand, there are employees in the main store who are salesmen, but who have other job titles, and whom all parties would include within the unit. - The General Counsel and the Union would limit the unit to certain employees who work at counters where they take, and sometimes fill, orders for automotive and industrial products from customers who visit or telephone the store, other employees who fill orders for such products, receiving and shipping clerks, truck- drivers, one employee in the insulation division (Perrine), maintenance employees, and machinists and mechanics who work in a shop which is a part of the main store and who perform such tasks as rebuilding engines, grinding crank shafts , refacing valves, and job work for customers. The Respondent would exclude only one of these employees, Perrine, on the ground that he is a supervisor . For reasons recited in the footnote, I find that Perrine is not a supervisor." The number of employees in the unit advocated by the General Counsel and the Union was 28 at times material and their names appear on exhibits as recited in the footnote.12 The Respondent advocates various units larger than that described above. Its first contention is that the unit should include employees at all of the Respondent's places of business . Its next contention is that the unit should include ' employees at the main store and warehouse, the tire shop, and two branch stores in Kanawha County, which surrounds the city of Charleston. The latter contention would exclude seven branch stores located elsewhere in the State. These contentions need not be discussed at length. The record does disclose some transfers of employees from one store to another, but the record will not support a finding that various classifications of employees working in Charleston do not constitute an appropriate unit. The Respondent's next contention is that the unit advocated by the General Counsel and the Union should be enlarged to include ( 1) employees in the main store who the Respondent asserts are plant clericals, but who the General Counsel asserts are office clericals, and (2) employees in the tire shop. We consider first certain clerical employees. All of such employees work in an area of the main store called the general office. They and all, or nearly all, of the other employees are hourly paid . Helen Adkins and Carolyn Mills work in the insulation department and they and Perrine constitute the only employees in that department which is headed by Norman Gordon, a vice president of the Respond- ent.13 Adkins is classified as insulation buyer and Mills as insulation clerk, and Lawrence Baldwin testified that Mills "handles the normal flow of papers through the insulation department." In the accounting department , there are five women, one being a PBX operator and receptionist and the remaining four, in the words of n The evidence concerning Perrine's duties need not be detailed because I shall recom- mend that the complaint be dismissed insofar as it alleges a violation of Section 8(a) (5). It suffices to say that the Respondent 's evidence that Perrine is a supervisor is unpersuasive and, at some points, strained , whereas Perrine gave credible testimony that he is not a supervisor. 12 Five are machinists and mechanics who are named on General Counsel 's Exhibit 7-D One, Perrine , is named on General Counsel ' s Exhibit 7-B. The remaining 22 are named on General Counsel's Exhibit 7-A. The exact number of names on the exhibit last men- tioned is 26, but the parties agreed to the exclusion of three automotive order fillers, Boggess, Hillabold , and Vandale, because those individuals were not employed at any time material Additionally , the General Counsel and the Union , in disagreement with the Respondent, would exclude Bill Bonham , a counterman in the automotive division. Bon- ham worked for the Respondent from February 1960 to August 7, 1962 , and on the latter date he entered military service. He returned to the Respondent' s employ on May 16, 1965, soon after his discharge from the service The refusal to bargain occurred before Bonham's return to work for the Respondent, and, therefore, the General Counsel's and the Union's position is sound. zs There is testimony , and General Counsel's Exhibit 7-B recites , that a labor pool works in the insulation department "as required .',' A comparison of names of employees on several exhibits reflects that at times material no one was employed to work only in a labor pool . The comparison shows that all employees are accounted for under other job titles. BALDWIN SUPPLY COMPANY 755 Lawrence Baldwin, "handle a routine flow of paper through the office." In the purchasing department, Virginia Fink and Nancy Gay are automotive stock record clerks and A. N. Anderson is the industrial stock records clerk. They are record keepers, maintaining inventory records. Gloria Lanham and Carrillee Linhart are classified as automotive clerks. In the words of Lawrence Baldwin, they "shuffle paper." Iva Mitchell, Carolyn Myers, Linda Pauley, and Patricia Sheets are classi- fied as industrial clerks. Again quoting Lawrence Baldwin, they "shuffle paper" and, as is true of some other clerks in the purchasing department, they "handle the general flow of paper that comes through the building." John Brash and Dale Wal- deck are purchasing clerks in the industrial and automotive divisions, respectively, and they regularly check merchandise on hand as some other clerks in the purchas- ing department do. I conclude that all employees discussed in this paragraph are to be excluded from the unit as office clerical employees. There are three more employees in the purchasing department who are called clerical employees and whom the Respondent would include in the unit. They are Harry Kiser, Elmer Lore, and Richard Martin. Their exact classification is indus- trial order takers and, absent evidence on the point, I infer that they are regarded by the Respondent as employees in the purchasing department because they share office space with employees in that department. They receive orders for industrial products by telephone exclusively. An employee whom all parties would include in the unit, W. C. Edens, also takes orders for such products by telephone. Edens' work differs from that of Kiser, Lore, and Martin in that Edens takes orders at a counter on the first floor and sometimes fills orders at his place of work while the other three work in an office on the second floor. Because order takers for both automotive and industrial products by telephone and in conversations with cus- tomers at counters on the first floor are to be included in the unit by agreement of the parties, I believe that Kiser, Lore, and Martin should be included. The fact that the latter three work on the second floor in an office and take orders only by tele- phone does not warrant their exclusion. We turn to the tire shop, about three doors from the main store, where 13 per- sons worked at times material. One of those persons is Douglas Baldwin. I need not discuss the General Counsel's contention that Douglas Baldwin should be excluded from the unit as a supervisor. He is to be excluded because he is not an employee within the meaning of the Act. See that portion of Section 2(3) of the Act which provides that "[t]he term `employee' . . shall not include . any individual employed by his parent . . See also Bridgeton Transit, 123 NLRB 1196; The Colonial Craft, Inc., 118 NLRB 913. One employee in the tire shop, F. E. Galloway, maintains an inventory record and thus does clerical work. He may be characterized as an office clerical employee in the same category as employ- ees in the main store who maintain inventory records. The remaining 11 employees in the tire shop perform such work as inspecting casings to determine whether recapping should be undertaken, removing old tread and buffing tires, recapping tires, selling recapped tires, mounting tires on wheels, and transporting tires between the tire shop and the main store.14 One of the 11 employees, according to the stipulation mentioned in the footnote next preceding, "also spent some time working as a warehousemen in the warehouse." During a period of 12 months preceding the hearing, seven employees were transferred from the main store to the tire shop, an undisclosed number of such transfers having been on a temporary basis.15 During the same period, one employee or supervisor, Nick Cicceralleo, was transferred from the tire shop to the main store, and Holsclaw was given employment in the main store after having walked off his job in the tire shop, as discussed hereinafter. In view of the facts that employees are transferred to work in the tire shop, that ,the shop is a part of the automotive division, and that the unit contains employees in the automotive and other divisions whose varied duties include taking and filling orders, working as machinists and truckdrivers, and working as a painter and jani- tor, I conclude that the appropriate unit should include employees in the tire shop 14 Some of the findings concerning the work of employees in the tire shop are based upon a stipulation of the parties which I received on March 23, 1966, and which is hereby received in evidence as Trial Examiner 's Exhibit 1. le Of the seven persons, Tom Shrewsbury was at work in the tire, shop, and Richard Tabb, Coy Holstein, Delbert Haynes, and Wayne Casto were at work in the main store, when the Respondent refused to bargain with the Union. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than Galloway. Those employees number 11. Adding the 11 plus Kiser, Lore, and Martin to the 28 employees initially found to be in the unit gives a total of 42. A majority is 22. 2. The Union's lack of majority status; the Respondent's refusal to bargain Twenty one applications for union membership were received in evidence. Nineteen were identified by Jackson as having been signed at the union meeting on April 26. Two others, bearing the signatures of Thomas Moore and Britt Steele, were received upon the testimony of Holsclaw and Burkhart. Moore's application bears the handwritten date of April 26. Moore did not attend the meeting on that day, but Holsclaw testified credibly that later he collected dues from Moore. Steele's application is dated April 27 in handwriting. Jackson testified that Steele's application was brought to the union hall on April 27 by an employee, Arnold Leader. On the other hand, both Holsclaw and Burkhart testified that Steele attended the meeting of April 26, and Burkhart testified further that he was seated at a table with Steele when the latter signed at the meeting. The 21 applications constitute exactly 50 percent of the employees in the appropriate unit a times material. Two additional applications, which bear the purported signatures of employees in the unit, Leonard E. High and Wayne Lee Casto, were rejected following an objection by the Respondent. It is the General Counsel's position that the two applications were admissible because they were received in "due course of business by the union business agent." They are dated April 29 and Jackson gave hearsay testimony that he was told that Holsclaw brought the applications to the union hall. When Jackson so testified, Holsclaw was seated in the hearing room and the record discloses that Holsclaw nodded his head in agreement with Jackson's testimony. The two applications were rejected as not having been authenticated. Thereafter Hols- claw testified, but he was not asked about the two applications. The record does not contain the application of any employee who worked in the tire shop, perhaps because the General Counsel and the Union contend that employ- ees there should be excluded from the umt. On the other hand, as reflected by the comments in footnote 17, infra, concerning Boone Tate, the Union may have received an application from at least one employee in the tire shop. The record discloses that the Respondent, when confronted with the Union's demand for recognition, took the position that the Union had to seek certification by the Board. The Respondent also engaged in unfair labor practices. "[I]t is well- settled that an election is not the exclusive instrumentality by which a Union's representative status may be established. Consequently, there is no absolute right vested in an employer to demand an election. Jas H. Matthews & Co v. N L R B, 354 F.2d 432, 436 (C.A. 8). "[O]ne of the essential prerequisites for a good-faith doubt defense is that it must not have been raised in a context of illegal union activity." Master Transmission Rebuilding Corporation & Master Parts, Inc., 155 NLRB 364. In short, if the Union's majority status in the unit found to be appropriate had been established, I would find a violation of Section 8(a)(5). E. The discharge of Holsclaw Holsclaw, who is now 19 or 20 years of age, began work for the Respondent during June 1964, performing various tasks in the tire shop. After working about 10 days or less, Holsclaw walked off the job and went to Florida without saying anything to the Respondent. About 2 months later, Holsclaw returned and asked for reinstatement. He was put to work in the automotive department in the main store through May 11, 1965, and on that date he was an automotive order filler. Shortly before quitting time on May 11, Holsclaw's foreman, Merle Holmes, told him to report the next morning to Douglas Baldwin in the tire shop. Holsclaw answered, "O.K." 16 On May 12, soon after Holsclaw reported to Douglas Baldwin as he had been instructed, he was discharged. The only testimony concerning the discharge is m The findings concerning the brief conversation between Holsclaw and Holmes are based upon the former's uncontradicted testimony. BALDWIN SUPPLY COMPANY 757 that given by Holsclaw except for a bit of hearsay by Lawrence Baldwin. Accord- ing to Holsclaw, Douglas Baldwin began their conversation by saying that he would show Holsclaw what to do. At that point, Holsclaw made two quick decisions. Being aware that an employee in the tire shop had been discharged a few days before, he decided that the discharge had been made in order to create a vacancy to which he could be transferred.17 He also decided that the Respondent was trans- ferring him to the tire shop, and was transferring other employees from the main store, in an effort to dilute or destroy the Union's majority in the unit which the Union had claimed to be appropriate. Having so decided, Holsclaw responded to Baldwin's remark that Baldwin would show him what to do by saying that he worked in the main store, not in the tire shop. Holsclaw gave two versions of Baldwin's next remark. On direct examination, Holsclaw testified that Baldwin said "something to the effect that" Holsclaw was then working in the tire shop, not the main store. On cross-examination, Holsclaw testified that Baldwin said "[s]omething to the effect that" Baldwin did not understand. Holsclaw explained to Baldwin that he refused to work in the tire shop, saying that the only reason for his transfer was "to take votes away from the main store by transferring" other employees and himself. Holsclaw testified that he could not recall whether Bald- win denied the accusation. Holsclaw showed his union card to Baldwin who said that there never would be a union in the tire shop, but Baldwin contradicted him- self by saying also that there could be a union in the shop if the employees voted for it. Holsclaw asserted that an employee in the tire shop had been discharged "to make way" for Holsclaw, and Baldwin replied that he had not had anything to do with the discharge. Holsclaw also asserted that the Respondent should trans- fer either of two other employees in the main store who were less familiar with work there than Holsclaw was, naming Burkhart as one, and Baldwin replied that the employees in the tire shop did not care too much for Burkhart who was known as a union adherent whereas they had not learned of Holsclaw's union membership.18 Baldwin telephoned LeRoy Atkins who manages the tire shop and all branch stores. In Holsclaw's presence, Baldwin said to Atkins that Holsclaw refused to work in the tire shop. Atkins replied, but Holsclaw could not hear, and then Baldwin hung up the telephone and said to Holsclaw, "Come on, let's go get your pay check." They went to the main store. While Baldwin's check was being prepared, Reish- man, the controller, walked by. Apparently, Reishman overheard remarks which are not disclosed in the record. He asked Holsclaw, "What are you doing this for?" Holsclaw said that Reishman knew that Holsclaw's refusal to work was because the Respondent was "trying to take votes away from the union by trans- ferring [employees] to the other stores." The record does not disclose whether Reishman replied. Holsclaw left the store. During the hearing, the Respondent offered Holsclaw "complete and full rein- statement" to a job in the main store or the tire shop, according to his preference, "without any loss of seniority rights or vacation privilege or anything else," but without backpay. Holsclaw declined the offer. The record will not support a finding that Holsclaw was invalidly discharged. It is true that he was very active in the organizational movement and, as reflected by Douglas Baldwin's remarks to Burkhart on May 8, the Respondent was aware of Holsclaw's activity and threatened to discharge him. On the other hand, there is no probative evidence that the Respondent discharged an employee in the tire shop as a means of creating a vacancy for Holsclaw, and, as recited in the next footnote, the record will not support a finding that the Respondent transferred 17 The amended charge alleges as violations of Section 8(a) (3) the discharges of Holsclaw and a tire shop employee, Boone Tate. The record shows that an employee named Daniel B. Tate worked in the tire shop. Tate's discharge is not alleged in the complaint as an unfair labor practice. 11 Holsclaw's suggestion that Burkhart be transferred to the tire shop, if it had been followed by the Respondent, would have had the same effect upon the Union's membership in the main store as the transfer of Holsclaw. It thus appears that Holsclaw, who was aware of Burkhart's union membership, was not thinking clearly when he suggested that Burkhart be transferred or that Holsclaw's objection to his own transfer was not entirely its effect upon the Union 's membership in the main store. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union adherents from the main store in an effort to undermine the Union.19 There also is no evidence that the Respondent expected Holsclaw to work in the tire shop for a particular period of time, an hour, a day, a week, or longer. Holsclaw upon being told by Douglas Baldwin that he was to work there, presumed that he was being transferred for an invalid reason. His presumption is not evidence, and the record does not contain evidence to substantiate the presumption. While it may be that the Respondent welcomed the opportunity which Holsclaw presented to it to discharge him because he refused to work in the tire shop, the fact remains that Holsclaw was insubordinate in such refusal and thereby gave the Respondent a valid ground for his discharge. Insofar as appears, at that time the Respondent had not determined to carry out Douglas Baldwin's threat that Holsclaw would be discharged. I conclude that the evidence does not establish that the Respondent violated Section 8(a)(3). Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All the Respondent's employees at its tire shop and main store and ware- house, including industrial order takers , countermen, helpers, machinists, mechanics, shipping clerks, receiving clerks, stock clerks, truckdrivers, and warehousemen, but excluding all outside salesmen , office clerical employees, guards, professional employ- ees, and supervisors as defined in Section 2(11) of the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The record does not establish that the Union has been or is the exclusive representative of all employees in such unit for the purposes of collective bargaining. 4. By interfering with, restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. - 5. The allegations of the complaint that the Respondent engaged in unfair labor practices have not been sustained except as found herein. RECOMMENDED ORDER Upon the entire record in the case and pursuant to Section 10(c) of the Act, and in order to effectuate the Act's policies, I hereby recommend that Baldwin Supply Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating and threatening employees concerning union activities. (b) Threatening employees concerning their cooperation with an agent or agents of the Board. (c) Requesting employees to aid the Respondent in influencing other employees to cease union activities. (d) Engaging in or attempting to engage in surveillance of union activities. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places at each of its places of business in Charleston, West Virginia, including all places where notices to employees customarily are ' There Is evidence that within a 12-month period preceding the hearing , the Respond- ent transferred employees from the main store to branch stores and from branch stores to other branch stores. Some of the transferees are named in the record . Only one of them, Larry Casto, signed an application for union membership. He was placed in charge of a branch store in Kanawha County after the Union's demand for recognition With respect to transfers between the main store and the tire shop during a 12-month period preceding the hearing, this subject has been discussed above In the determination of the appropriate unit. See footnote 15 and accompanying text. The record shows that three union adherents , Holsclaw, Holstein , and Haynes , were among the seven employees who were transferred to the tire shop. The record does not disclose the dates of the ' transfers of Holstein and Haynes, but it does disclose that Haynes' transfer was for only 1 week. Too, Wayne Casto was transferred to the tire shop upon an undisclosed date for an un- disclosed period. A signature which purports to be his appears on one of the two applica- tions for union membership which I rejected. BONWIT TELLER, INC. 759 posted, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.21 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges that the Respondent engaged in unfair labor practices other than those found herein. "'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 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." 21In the event that this Recommended Order is 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 interrogate or threaten you concerning your union activities. WE WILL NOT threaten you concerning your cooperation with an agent or agents of the National Labor Relations Board. WE WILL NOT request you to aid us in influencing employees to cease union activities. WE WILL NOT engage in or attempt to engage in surveillance of union activities. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to join a union of your own choice and to engage in union activities, or not to join a union and not to engage in such activities. BALDWIN SUPPLY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. Bonwit Teller, Inc. and Local 291, Retail, Wholesale and Depart- ment Store Union, AFL-CIO, Petitioner Bonwit Teller, Inc., Employer-Petitioner, and Local 300, Retail Clerks International Association, AFL-CIO. Cases 13-RC- 10737 and 13-RM-816. June 20,1966 DECISION AND DIRECTION OF ELECTIONS On October 20, 1965, Local 291, Retail, Wholesale and Department Store Union, AFL-CIO (Local 291), filed its petition for an election 159 NLRB No. 62.