Benson Wholesale Co., Inc.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benson Wholesale Company, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO Benson Wholesale Company, Inc. and Elsie Cumi Vaughn. Cases 15-CA-2718, 2718-1, and 2718-3 and 15-CA-2738. May 11, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On September 7, 1966, Trial Examiner Joseph I. Nachman issued his Decision 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 Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, as amended, and recommended dismissal of those allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision, and briefs in support thereof. 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. 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 exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Benson Wholesale Company, Inc., Geneva, Alabama, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN , Trial Examiner: This consolidated complaint ' pursuant to Section 10(b) of the National Labor Relations Act (herein called the Act), alleges that Benson Wholesale Company , Inc. (herein called Respondent or Company), violated Section 8(a)(1),(3), and (5) of the Act, in that in the course of an organizational campaign by Retail, Wholesale and Department Store Union , AFL-CIO (herein called the Union), it threatened, coerced, and restrained its employees in the exercise of rights guaranteed by Section 7 of the Act, discriminatorily discharged four employees, and refused to bargain with the Union. By answer duly filed, Respondent admitted certain allegations of the complaint, but denied the commission of any unfair labor practice. A hearing on the issues raised was held before me at Geneva, Alabama, on April 12 through 15, 1966, at which time all parties were given full opportunity to adduce relevant testimony, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses while testifying, I make the following. FINDING OF FACT2 1. THE UNFAIR LABOR PRACTICES ALLEGED A. The Facts 1. Employees organize ; Union demands recognition which is refused Respondent is engaged at Geneva , Alabama, in the operation of a warehouse which supplies groceries , frozen foods, drugs, and related items to about 20 Pigley-Wigley and Dixieland retail food stores located in Alabama, Florida, Georgia , Tennessee , Mississippi, and Louisiana. In September,3 at a social gathering, Respondent's employees discussed and decided to seek union representation . Leading proponents of this movement were Leon Holland , Jr., and Robert J. Stewart . Pursuant to arrangements made by Stewart and some fellow employees , John L. Parker, an International representative of the Union , met with a group of Respondent's employees the evening of September 30. At this meeting 27 employees signed authorization cards. Parker also gave Holland some blank cards which the latter was to get signed by employees not in attendance at the meeting . The following day Holland obtained five such cards, which he forwarded to Union Agent Parker, and which the latter received on October 4.4 Each of these 32 ' Issued February 28, 1966, and amended March 25 and April 6, 1966, and is based on four charges In Case 15-CA-2718, the charge was filed October 8, 1965, in 15-CA-2781-3, on November 12, 1965, and in 15-CA-2718-1, on December 22, 1965 In Case 15-CA-2738, the charge was filed November 4, 1965 2 No issue of commerce or labor organization is presented The complaint alleges and the answer admits facts which establish these allegations I find those facts as pleaded. ' This and all dates hereafter mentioned are 1965 , unless otherwise stated 4 Among the cards Holland forwarded to Parker was that of Clarence Helms (G.C Exh 10d), which does not bear Helms' signature Helms testified, however, that the card was given to him by Holland, that he placed on the card all the handwritten material appearing thereon; that he intended to sign it but overlooked doing so; and that he returned it to Holland On these facts, I find Helms' card to be a valid designation of the Union, unless, as Respondent contends all cards are invalid because Holland and Stewart, alleged supervisory, participated in the organizational activity The supervisory status of Holland and Stewart will be hereafter discussed 164 NLRB No. 75 BENSON WHOLESALE CO. cards lists the classification of the employee as "Warehouse" or "Warehouseman." On October 1, Company President Benson received a telephone call from Union Representative Parker. Parker told Benson that a majority of the Company's employees had joined the Union and authorized it to seek a contract; that the Union's majority status could be established by a card check, or by a Board election. Benson told Parker that he did not know whether a union was the best thing for his employees, and invited Parker to come to see him. Parker told Benson that he would either call on him or write a letter.5 On October 4, Parker wrote Benson a letter, which in pertinent part reads: This letter is a follow-up of our conversation on 'October 1, 1965, at which time I informed you that a majority of your employees in the warehouse had joined our Union, and requested a meeting to discuss a contract. I also informed you of several ways we could determine majority status, you declined but offered to meet with me sometimes when I was in Geneva. This is the context of our conversation on the date mentioned above. I have this day petitioned the NLRB in New Orleans, La., and am certain they will handle this from their office. On the same day Parker sent a representation petition to the Regional Office, which was received and filed in that office on October 5. The unit set forth in the petition was, "All warehouse employees including truckdrivers [excluding] office clericals, salesmen, guards and/or watchmen and supervisors as defined in the Act." (Case 15-RC-3223.) The Board's files in that case, of which I take official notice, show that a copy of the aforementioned petition was sent by the Regional Office to Respondent on October 5, together with a letter stating the Board's procedure in representation cases. It is reasonable to infer, as I do, and indeed as Respondent admits, that the copy of the representation petition was received by Respondent no later than October 7.6 In the meanwhile, on October 1, after his telephone conversation with Union Agent Parker, Benson decided that the matter might be more serious than he first thought, and that he should seek legal advice. 5 Based on the testimony of Parker, Benson's testimony is substantially to the same effect 6 The file in the representation case (Case 15-CA-3223) shows that on October 5, the Regional Office sent a letter addressed to Respondent at Geneva, Alabama, enclosing a copy of the petition filed by the Union, on October 5 I take official notice of the contents of the aforementioned file, and from this infer and find that Respondent received the aforesaid letter and petition no later than October 7. On June 13, 1966, 1 issued an order advising the parties that I proposed to take official notice of the Board's file in the representation case and to draw the aforesaid inference, and pursuant to the provisions of Section 7(d) of the Administrative Procedure Act (5 U S 1006(d)), gave any party in interest an opportunity to show the contrary On June 23, 1966, Respondent filed a response contending that my order of June 13, 1966, should be rescinded The response did not deny that Respondent had received a copy of the representation petition on or about October 7 On July 8, 1966, 1 issued a further order, advising the parties that if need be, and on appropriate showing, I would reopen the record to permit any party to show the contrary of the fact and the inference I proposed to draw therefrom, or to permit such a showing to be made in any other appropriate manner, and fixed an extended period of 10 days for such showing. On July 18, 537 Accordingly, he made an appointment to meet with his counsel, Powell, in Atlanta on Monday, October 4. At this meeting it was decided that Olson, an attorney in Powell's office, would be at Respondent's warehouse the following day. When Olson arrived on October 5, Respondent had received Parker's letter of October 4, quoted above, and he drafted Benson's reply thereto which is dated October 5. Respondent's letter, after referring to the telephone conversation of October 1,7 contained the following: Your letter does not specify which classification would be included in the unit that you alleged to be appropriate. We feel that this is a matter that must be determined by the National Labor Relations Board. After a determination had been made of the classifications to be excluded, we will insist that an election be conducted by secret ballot in which our employees have an opportunity to express their preference. Therefore, we will not recognize your Union as the representative of our employees without a determination of the appropriate unit and an election conducted by secret ballot. We therefore suggest that if you are serious in your contention, that you proceed with the petition you have filed with the National Labor Relations Board. Also on October 5, Parker sent a further letter to Respondent, which was accompanied by a list of 32 employees who, according to the letter, were representatives of the Union in the warehouse for the purpose of getting other employees to join the Union The 32 employees whose names appeared on the list were the employees from whom Parker had received authorization cards, as set forth above. Although the record does not show the date Respondent received this letter, it is a fair inference that it was so received on October 6, and certainly no later than October 7 In any event, that Respondent received Parker's letter of October 5, and that it made no reply thereto, is admitted. The parties stipulated that the representation petition filed by the Union on October 5, as above stated, was withdrawn by it on January 12, 1966. 2. The alleged interference, restraint, and coercion Benson admits that about mid-August he heard rumors "that there was possibly some union activity at the 1966, Respondent filed a further response Again Respondent did not deny that it had received a copy of the representation petition by October 7, it merely contended that it is improper for the undersigned to look at the file in the representation case, or draw the inference above referred to This contention I reject as clearly devoid of merit That the inference I propose to draw is in accord with the actual facts is apparent from the following, appearing at page 4 of the brief which Respondent filed with me "The same day, October 5, 1965, at 12 30 p.m , the Union's petition was filed in the Board's Regional Office in New Orleans, Louisiana The next day, October 6, 1965, or the following day October 7, 1965, the employer received a copy of the petition " 7 With respect to this prior conversation, the letter stated that Benson had told Parker "we have a good-faith doubt that an uncoerced majority of our employees in an appropriate bargaining unit have freely and unequivocally designated your organization as their representative " This is obviously the lawyer talking I have serious doubt that Benson had ever heard, much less used, such language in his conversation with Parker, and even Benson does not claim that he used such language According to Benson's own testimony, all he told Parker was that he did not believe that Parker represented the Union, or that the Union represented the employees, and that the telephone was not the place to discuss such matters 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse." Although Benson claims that he did not believe the rumor, and that it was not a "serious matter in [his] thinking," he admits that he "possibly did" mention the matter to General Manager Cotter. While Cotter claims that his first information concerning union activity among Respondent's employees came from another source, he admitted that such information reached him about mid-September, and that he discussed it with Benson. Cotter also admitted that when he learned of the union activity among the employees, he told Warehouse Manager Adair and Assistant Manager Clemmons to keep their ears open and let him know what they heard. The evidence shows that beginning immediately after it learned of the union activity among its employees, and continuing virtually to the time of the hearing in this matter, Respondent interfered with, restrained, and coerced its employees in an effort to dissuade them from their support of the Union. The details of these incidents follow: a. About mid-September, Warehouse Manager Adair asked employee Pollard if the latter had heard any of the employees talking about the Union. Pollard replied that he had not. Adair then asked that Pollard let him know if he (Pollard) heard any union talk, and added that he had been instructed by Cotter to fire any employee that talked about the Union On October 2,8 Assistant Manager Clemmons, having heard about the union meeting on September 30, asked Pollard what the employees were trying to do. Pollard replied that the employees had decided to organize . Clemmons then asked if Pollard had signed a card and what he thought about the Union. Pollard replied that he had signed up, and thought the Union was a good thing. Clemmons then asked Pollard if the employees would settle the matter if the Company agreed to discharge Warehouse Manager Adair Pollard replied that the employees were not trying to get anyone fired.9 b. In the latter part of October, Pollard learned that the Company had run a credit report on him . He went to Cotter and protested this action , saying he "did not appreciate it." Cotter told Pollard that there was nothing he could do about it, that "the first thing those lawyers told him to do was to run a credit report on everybody that worked for the Company."10 c. On the afternoon of October 2 (a Saturday), Clemmons went to the home of employee Davidson and " The day after Benson 's telephone conversation with Union Agent Parker 0 Based on the credited testimony of Pollard Clemmons admitted that he discussed the Union with Pollard , and that such discussion was after the meeting on September 30, when most of the cards obtained by the Union were signed , that in this conversation he told Pollard that he (Clemmons ) had heard that all the employees were joining the Union By inference Clemmons denied that he asked Pollard whether he had signed a union card and what Pollard thought about the Union Although Adair admitted that he asked Pollard if the latter had heard any employees talking about getting a union, he denied making the remainder of the statements attributed to him by Pollard I do not credit Adair or Clemmons, particularly in view of Cotter's admission that he asked both Adair and Clemmons to find out what they could about the Union and report back to him 10 Based on the credited testimony of Pollard Cotter admitted that he had a conversation with Pollard in which the latter protested that the Company had run a credit report on him According to Cotter, he told Pollard that the credit report was run because the Company was considering the formation of a credit union to help needy employees borrow money at reasonable interest rates, and that the credit reports would be needed in connection with such operation . Cotter contends that the only asked the latter if he "had been to Daleville."11 Davidson admitted that he had attended that meeting. Clemmons then asked what the employees wanted Davidson replied better working conditions, and expressed dissatisfaction over "a lot of backriding." Clemmons then asked if Davidson thought the employees would change their minds "if the man who was doing the backriding was eliminated," and if the men would consider getting out of the Union if the Company promised some change. Davidson replied that he did not think any of the men would change their minds. In this conversation Clemmons also told Davidson that he was sorry the men decided to sign the union cards before discussing the matter with the company officials, and that in view of the fact that it had been started, he (Clemmons) did not know whether the Company would proceed with plans for expansion of the warehouse and its equipment. d. About November 10, Cotter spoke with Davidson while the latter was at work. Cotter first spoke of improved work procedures, and then asked Davidson "how the union activity was going." Davidson replied that it was "as strong as it had ever been." Cotter then told Davidson of the plan to enlarge the warehouse, to carry tobacco items which the Company had not heretofore sold, that someone would be needed to look after such an operation, and if Davidson would do what he could to get the men to change their minds about the Union, the Company would appreciate it and Davidson might get more money and a supervisory job in time to come 12 e. On Sunday morning, October 3, Warehouse Manager Adair went to the home of employee McGowan allegedly to check on the condition of a dog McGowan was keeping for him. Adair brought up the subject of the Union and asked McGowan what the employees wanted. When McGowan stated that the employees wanted more pay and fewer hours, Adair replied that employees would never get it; that before Benson would accept the Union, he would "close the doors." Adair also told McGowan that he (Adair) "didn't appreciate" the employees going to the union meeting without letting him know, and that if the Union got in, he (McGowan) would not be in charge of the drug room, he would just be working there. 13 f. In the early afternoon of Sunday, October 3, Assistant Warehouse Manager Clemmons went to the home of employee Leon Holland and told the latter that he reference to "union " was "credit union ," and that while he may have told Pollard that the Company had been advised to get credit reports, he did not "say anything about lawyers " There is no evidence that a credit union was ever put into operation I credit Pollard " Where the union meeting had been held on September 30 z Based on the credited testimony of Davidson As stated supra, I do not credit Clemmons Cotter admitted that he discussed expansion plans with Davidson , and told the latter that when these plans were accomplished additional supervisors would be needed who would be selected from the existing work force Cotter denied that he promised Davidson more money or a supervisory job if he would withdraw from the Union Under the circumstances, I credit Davidson " Based on the credited testimony of McGowan, Adair admitted that he talked with McGowan about the Union at the latter's home on October 3, that he told McGowan the employees did not need a union, and pointed to all the benefits the employees were receiving without a union He denied telling McGowan that Benson would close down if the Union came in He did not deny telling McGowan that the latter would not be in charge of the drug room, but would only be working there, if the Union came in To the extent that Adair's testimony conflicts with that of McGowan, I credit the latter BENSON WHOLESALE CO. 539 "wanted to talk about the mess we was in " When Holland asked "what mess," Clemmons replied, "well the Union." Clemmons then asked Holland, if the Company fired Warehouse Manager Adair, and made some promises, would Holland withdraw from the Union? Later that day employee Holland received word that Print Shop Foreman Jack Helms, an admitted supervisor, wished to see him. Together with employees Robert Stewart, James McNeil, Benjamin Shirah, and former employee I. D. Griffin, Holland went to Helms' home where Helms joined them in the car. Helms told the group that he had a 3-hour conversation with Cotter that morning concerning the reason the employees desired union representation, and that he had told Cotter the problem was Warehouse Manager Adair; and that Cotter had asked him (Helms) to talk to the employees and find out if the employees would drop the Union if Respondent discharged Adair and promised to improve working conditions. Helms also stated that Cotter wished to talk with the employees about the matter.14 g. On October 5, the day after he conferred with counsel in Atlanta, Respondent discharged Holland and Stewart, the two most active proponents of the Union. Respondent concedes that both men were discharged because they refused to abandon their union activities, but contends that the discharges did not violate the Act, because Holland and Stewart were supervisors.15 That afternoon President Benson read a prepared speech to the assembled employees.16 Benson first referred to the efforts of the Union to organize the employees, to which he expressed his opposition and his purposes to "use every legal means to keep it out." Benson then told the employees that " union's [sic] exist on trouble"; that their only purpose is to get the dues from employees, and added, "I don't think this union can do any of you any good and can only lead to trouble for everybody." Benson then told the employees that Holland and Stewart, whom he referred to as supervisors, had been discharged that morning because they refused to cease their activities on behalf of the Union. h. Ray Neal,Ausley, who had signed a union card, worked for Respondent in the warehouse. Prior to their marriage on December 8, his wife Sarah (who was then Sarah Howell) worked in the accounts payable division in Respondent's office. At the time of the events hereafter related, Respondent was aware that Ray and Sarah were engaged to be married, and it was giving some consideration to waiving its rule that a husband and wife could not both work for the Company. On October 7, Cotter had Sarah come to his office and, among other things, told Sarah that the men in the warehouse were trying to get a union ; that he had fired Holland and Stewart because as supervisors they could not take part in the Union and they refused to get out of it; that he wanted to see Ray out of the Union, and since she probably had more influence over him than any other person, he was asking her to prevail on Ray to abandon the Union; that if Ray was interested in getting out of the Union, he should see him (Cotter), or Personnel Manager Wood and they would tell him how to go about it so that no one would know it. At Sarah's request, Cotter telephoned the drug room so that Sarah could arrange to have lunch with Ray that day. Later that afternoon, Cotter again sent for Sarah and asked whether she had seen Ray and what the latter had said. Sarah told Cotter that Ray said he wanted to think about the matter, and Cotter told her to keep trying to persuade Ray to abandon the Union. About a week later, Cotter stopped Sarah as she was leaving work and asked what success she was having in persuading Ray to abandon the Union. Sarah told Cotter that Ray had refused to discuss the matter with her. Several weeks later, Cotter again had Sarah come to his office. On this occasion he asked how Sarah's father felt about the Union. Told that her father was against it, Cotter asked Sarah if she would have her father urge Ray to abandon the Union. Sarah agreed to and did discuss the matter with her father, but the latter declined to interfere. On November 4, employee Jerry McGowan was discharged because allegedly as a supervisor he refused to abandon his union activities." That afternoon Cotter again engaged Sarah in conversation, telling her that Respondent had made McGowan a supervisor because a supervisor could not participate in union activity, and that McGowan had been discharged because he had been caught talking to "an outside man," and that she should tell Ray about McGowan's discharge, and that he should be "thinking about it." "s i. In the month of October, Malcolm Ausley, foreman of the truckdrivers, an admitted supervisor, went to the home of his brother Wilmer Ansley, the father of employee Ray Neal Ausley. Malcolm asked Wilmer to get Ray to withdraw from the Union, saying that he had helped Ray get his job at the warehouse, and that "the big wheels ... were on his back about it." Malcolm added that all Ray need do was go "to Lawyer Kelly's and sign a card or a paper and get out and nobody would know nothing about it." Wilmer agreed to and did communicate Malcolm's request to Ray. On November 4, the day Jerry McGowan 14 Based on the composite of the credited testimony of Holland, Stewart, McNeil, Shirah, and Griffin Helms' testimony is substantially in accord, except that, according to Helms, he only asked Holland whether he would talk about the matter to Cotter, and that Holland agreed to do so if he had a witness To the extent that Helms' testimony is in conflict with that of the aforementioned witnesses, I do not credit it iz For the sake of continuity, I defer to a subsequent section hereof a discussion of the supervisory status of Holland and Stewart 16 The full text of the speech is in evidence as an exhibit, and will not be set forth here i' McGowan's discharge is alleged in the complaint to have been in violation of Section 8(a)(3) of the Act His supervisory status is hereafter considered '" Based on the credited testimony of Sarah Ausley Cotter admitted that he talked with Sarah Ausley on several occasions about Ray and the Union As to some of the details of these conversations he corroborates Sarah Ausley, as to others he said he had no recollection Cotter denied that he urged Ausley to prevail on Ray, or have her father prevail on Ray to abandon the Union, and claimed that his only request to her was to urge Ray to vote for the Company in the election I do not credit Cotter In the first place, if Cotter's only purpose was to urge Ray to vote against the Union he could have, and I beheve would have, talked to Ray directly Secondly, his testimony is inconsistent with Respondent's admitted union animus and its course of conduct as revealed by this record Thirdly, at the time of these conversations, no election had been scheduled, indeed none was ever scheduled And finally, I am not unmindful of the fact that Ray, as the record shows , is still employed by Respondent, and that when Sarah Ausley testified in this proceeding she must have done so with the realization that her testimony might incur the displeasure of her husband's employer, and place his continued employment, and therefore her own livelihood, in jeopardy She would not have done so, I am convinced, unless she felt impelled to tell the truth 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discharged, or on the following day, Malcolm again went to Wilmer's home and told the latter that McGowan had been discharged, and that Ray was "next to be fired if he didn't get out of the Union." Wilmer communicated this statement to Ray.19 j. In the early part of October, President Benson approached employee McNeil at his work station and asked McNeil to get some of the men together and prepare a list of what the employees wanted; that he would be reasonable about it and was sure the men would be. Several days later, as McNeil was preparing to leave his work in the warehouse, Cotter approached and stated that he (McNeil) could lead the men and that he should get out over the weekend and see what he could do about getting the men to drop the Union.2° k. During the week of October 10, Personnel Director Wood had Jerry McGowan come to the rear platform of the warehouse. There Wood stated that he (Wood) wanted to tell McGowan how he could get his union card back, and that it would not take over 30 minutes . Wood also told McGowan that if he (McGowan) made the first move, the other employees in the drug room, where McGowan worked,)would follow him, and asked McGowan to talk to other employees about getting out of the Union. McGowan told Wood that he wanted a few days to think it over. Several days later Wood again sought out McGowan and asked if the latter had changed his mind. McGowan told Wood that he had decided not to get out of the Union.21 Approximately 10 days later, McGowan was called into an office where President Benson , General Manager Cotter, and Assistant Warehouse Manager Clemmons were present. Cotter first referred to the discharge of Holland and Stewart because they were allegedly supervisors who refused to abandon their union activity, and then told McGowan that additional supervisory positions had been created, and still others would be. McGowan was asked if he wanted a job as "supervisor," Cotter stating that in such a position Mc Gowan could not participate in union activities. McGowan stated that he would like the job because it would pay more money. Later 11 Based on the credited testimony of Wilmer Ansley Malcolm Ausley admitted that he visited his brother, and that the Union and Ray's connection therewith were discussed He denied that he made the statements attributed to him by Wilmer Ansley I do not credit his denials 20 Based on the credited testimony of McNeil Benson, on direct, testified that "he had no conversation with [McNeil] about the Union." On cross, after first saying that it was McNeil who made statements about the Union, Benson admitted that "perhaps I did make some statements [to McNeil] about the Union, or with reference to the Union " Cotter denied that he asked McNeil or any other employee to use his influence to get employees out of the Union, but admitted that he told McNeil that the latter was influential with other employees According to Cotter, the only thing he told McNeil was that the Respondent would like to have McNeil and other employees vote for the Company. To the extent that the testimony of Benson and Cotter conflicts with that of McNeil, I do not credit it 21 Based on the credited testimony of McGowan Wood admitted that he had a conversation with McGowan concerning withdrawing from the Union , at the time and place indicated by McGowan, but testified that he went to the back platform where he met McGowan only because he received word that McGowan wanted to see him, and that it was McGowan who asked how he could get his union card back It is significant that Wood admits that the conversation concluded with McGowan stating that he would let Wood know what he decided about withdrawing from in the day, Cotter approached McGowan in the latter's work area and told him that while McGowan could talk employees out of the Union, he (Cotter) could not, and adding that he knew that one employee, at least, would follow McGowan.22 On November 4, McGowan was discharged admittedly because he refused to abandon his activities on behalf of the Union. 1. As heretofore stated, Respondent discharged Holland and Stewart on October 5, because they refused to cease their union activities. Later that afternoon, employee Shirah was called into the office of Warehouse Manager Adair. Present, in addition to Adair, were Personnel Manager Wood, and General Manager Cotter. Cotter told Shirah about the discharge of Holland and Stewart, and offered him Holland's job with a 20-cent hourly increase in pay, which Shirah accepted. In this conversation Cotter told Shirah that if the Union could be put off for a year, Respondent could defeat the efforts of the employees to obtain union representation. Shortly thereafter Shirah attended a union meeting . The following day Shirah was called into President Benson's office and asked why he had attended the union meeting the preceding night and what had transpired there. Benson also told Shirah that as a supervisor the latter could not attend union meetings, and Shirah has not done so since.23 Also during the month of October, General Manager Cotter summoned Shirah to his office and asked the latter if there was anybody in the warehouse he (Cotter) could get to talk to all the boys and settle the matter of the Union. In this conversation, Cotter stated that several employees had withdrawn from the Union and gotten their cards back.24 in. On October 28, the Company gave a dinner for certain of its employees.25 Employees present were Shirah and Kirkland, who had replaced Holland and Stewart, respectively, and McGowan, Free, and Shiver. Cotter told these employees that they were being made supervisors in particular departments: Shirah and Kirkland in the shipping unit ; Shiver in the frozen food and dairy unit; Free in the receiving unit ; and McGowan in the drug room unit . The employees were also told that they would not have to punch a timeclock and would get a weekly salary the Union This would seem unnecessary if, as Wood testified, McGowan was asking how he could get his union card back Wood's course of conduct is consistent with that pursued by Cotter and Benson, as I above found To the extent that Wood's testimony is in conflict with that of McGowan, I credit the latter 22 Based on the credited testimony of McGowan Cotter, when he testified, was only asked one question concerning his conversation with McGowan, namely, whether he had "ever instructed Jerry McGowan to talk any employee into withdrawing from the Union," to which question Cotter answered No " I do not regard this as a complete denial of the statements attributed to Cotter by McGowan To the extent that it is a denial, I do not credit it 21 Respondent contends that Shirah became a supervisor within the meaning of the Act when he assued the job formerly held by Holland The General Counsel contends that the attempt to invest Shirah with supervisory status was a subterfuge This issue will hereafter be dealt with 14 Based on the credited testimony of Shirah, who was employed by the Respondent at the time of the hearing in a position which Respondent contends is supervisory in character Benson, though testifying after Shirah, was not asked about and did not deny the statements attributed to him by Shirah Although Cotter denied that he made the statements attributed to him by Shirah, I do not credit his denials 2', Management officials attending this meeting were Cotter, Wood, and Clemmons BENSON WHOLESALE CO. 541 of $100, rather than an hourly rate, which would be an increase in pay.26 Each employee was given and signed a formal job description of his duties which described the individual as being the "supervisor" of, and having "direct control and authority over all employees in his particular crew."27 Each of these employees except Kirkland testified that after signing the aforesaid job description there were no changes in their duties, and that they continued to do the same work, in the same manner as they had at all times previous; and that they never hired, fired, or made any effective recommendations with respect thereto. They did, however, testify to the following incidents, upon which Respondent places considerable reliance as showing that supervisory authority was conferred: (1) Shiver testified that shortly after October 28, he told Assistant Warehouse Manager Clemmons that he wanted a full-time man, instead of a part-time one; that several days after Clemmons brought a man and asked Shiver "to talk to him"; after doing so Shiver told Clemmons that he wanted the man, and the man came to work the following day. (2) Shirah testified that Personnel Manager Wood had informed him the two warehouse crews were unequally balanced as to experienced help and directed that one of the more experienced men in Shirah's group be transferred to Kirkland's group, and one of the lesser experienced men in Kirkland's group be transferred to Shirah's group; that he (Shirah) selected the man that was to be transferred out of his group and agreed to take the man that was selected for transfer from Kirkland's group. (3) Free testified that he was asked to talk with two men the Company was considering hiring, that he did so, but made no recommendation, and both men were hired; that he did recommend that one employee in his group be given a 10-cent rather than a 5-cent hourly rate increase, and that this was done. (4) McGowan testified that after October 28, he recommended that an employee be transferred from the shipping crew to the drug room crew, and that such recommendation was disapproved.28 to Shiver testified that prior to being placed on the weekly salary, his weekly earnings at an hourly rate were generally $70 to $80 McGowan testified that with overtime his weekly earnings when on hourly rate were in excess of $100 Payroll stubs issued to Shirah show that in the 3 weeks prior to being placed on weekly salary his earnings, at an hour rate of $1 75, were $108 73, $139 56, and $138 92 Free testified that his hourly rate was $1 65, and that he worked and was paid for overtime, but he did not state whether such earnings were more or less than $100 weekly Kirkland did not testify 27 The job description signed by McGowan read as follows DRUG ROOM SUPERVISOR Employee has complete supervisory control of all employees assigned to the Drug Room unit By virtue of this responsibility the supervisor has the authority to interview and recommend the hiring of new employees, the authority to recommend the discharge of unsatisfactory employees , the authority to carry out disciplinary action, and the responsibility to see that Company policies are adhered to in the supervisors particular unit The supervisor also has the authority to recommend raises for individuals under his supervision Responsible for all merchandise received and sent out of the drug room Supervise the pulling of orders and designates the employee to pull a particular section of an order Designates the slot that the incoming merchandise will be placed in Responsible for the complete drug room inventory and for the physical layout of the merchandise Supervises the unloading of trucks , the sending out of, n. Prior to February 8, 1966, Respondent had no formal funeral leave policy, employees being permitted to take time off for that purpose, without pay. By letter dated February 8, 1966, addressed "To all Company Employees," Respondent announced a funeral leave policy, effective February 15, 1966, pursuant to which permanent full-time employees would be granted leave of 2 days with pay in the event of a death in the immediate family.29 The leave was to be computed on the basis of an 8-hour day at the employee's regular rate of pay. Also in February 1966, Respondent admittedly granted a general wage increase to all employees involved. The only evidence in the record concerning this wage increase is the fact that it was given.30 o. On March 24, 1966, General Manager Cotter made a speech to the assembled employee S.31 Cotter referred to the hearing in this matter, scheduled for April 12, and that many of the employees would be, called to testify, probably to identify the union cards "which you signed." After telling the employees that if called they should testify truthfully, Cotter stated: Many employees have told us that they were told the purpose of the card was to get an election and that this is the only reason they signed the cards. Then, after telling the employees that cards obtained on the representation that their only purpose was to get an election would not be valid authorizations , and that such information would be helpful to Respondent in the defense of this case, Cotter concluded by stating: In the event if you were told that the purpose of the card was to get an election and this was reason [sic] you signed it, I would appreciate your signing the list that will be available in you [sic] department. Although, as noted above, Cotter told the employees that Respondent had been advised by many employees that they were told that the only purpose of the union card was to get an election, he admitted that no employee had given him such information at any time prior to March 24, 1966.32 Cotter also testified that with the advice and completed orders, the stocking and pricing of all merchandise Supervises the working up of damaged merchandise and the shipment of this merchandise back to the proper company Confers with salesmen on the inventory of their goods in the Drug Room Unit and of the damaged [sic] incurred to the merchandise furnished by their Company Supervises the clean-up of the Drug Room area Performs related duties as required The job descriptions signed by Shirah, Kirkland, Free, and Shiver were virtually identical with the appropriate changes in language required for the different jobs L" The General Counsel contends that the five employees who signed the job descriptions on October 28, and Bobby Seay who was designated a supervisor on December 15, to succeed McGowan who was discharged on November 4, had never been, and were not thereby invested with supervisory status, and that the attempt to confer such status was merely a pretext designed to remove from the unit employees who were among the strongest supporters of the Union This issue will hereafter be discussed t" Immediate family was defined as husband , wife, mother, father, sister, brother, or child ;0 The General Counsel contends that the wage increase and funeral leave policy were violative of Section 8(a)(5) and (1) of the Act " The full text of the speech was received as an exhibit. 't Thirty-two union cards were received in evidence as having been properly authenticated Thirteen of these were proven by the employees who signed the cards None were asked what, if anything, they were told about the purpose of the card 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistance of counsel, he drafted the speech he made to the employees on March 24, 1966.33 3. The 8(a)(3) allegations The General Counsel contends that Leon Holland, Robert Stewart, William J. McGowan, and Elsie Cumi Vaughn were discharged because of their activities or suspected activities on behalf of the Union. As heretofore stated, Respondent admits that it discharged Holland, Stewart, and McGowan because of their union activity, but contends that no violation of Section 8(a)(3) resulted, because each was a "supervisor " within the meaning of the Act. The only facts, therefore, that need be considered in connection with their discharge, are those which bear on their status as supervisors , which facts I now set forth.34 a. Leon Holland Holland had worked for Respondent continuously since July 1956. Initially he worked as a laborer, but after about 18 months was assigned to the warehouse as a selector or picker. The warehouse is divided into several sections or departments, including frozen foods, drugs, and groceries. The employees in the grocery section of the warehouse are divided into two crews , each consisting of approximately six "selectors" or "pickers," a checker, and a loader. On October 5, Holland was the checker in one crew and Stewart the checker in the other. Customer orders, after; being processed in the office, are forwarded to the warehouse manager's office, where they are stacked in the order of receipt. The selector or picker takes the oldest order, and selects from the storage place in the warehouse the groceries called for by the order. The selector puts the merchandise into a so-called "buggy" that runs on a conveyer, pulled by a mechanical chain, which takes the buggy to the loading dock. As the buggy passes the frozen foods, dairy, and drug departments, merchandise from those departments, destined for the same customer, is added thereto. When the buggy reaches the loading dock, the checker checks the contents of the buggy against the invoice to make certain that the order has been accurately filled; price-marks all merchandise from the grocery department; provides the necessary trading stamps and advertising material; and forwards the buggy to the loader who is charged with properly placing the merchandise on the right truck and in such a way as to be accessible for unloading at a particular stop. At the time of his discharge, Holland's hourly rate of pay was $2.35 The selectors in his crew were paid an hourly rate which varied from $1.30 to $1.50. The loader was paid $1.35 an hour. Holland filled out daily work cards showing the time spent in each category on the reporting form , always filling in his time under the category entitled "Outbound checking" and making no entries in the column entitled "Supervision."36 Respondent does not contend that Holland had the authority to hire or fire. The chief basis for its contention that Holland had supervisory authority is that he was charged with and did responsibly direct the function of filling customer orders and seeing that the merchandise was properly loaded on trailers for transportation to the retail stores . The factors upon which Respondent relies in support of its contention are basically (1) that Holland for a period of time carried a key to the warehouse, though he has not done so since about 1960; (2) that Holland has at times initialed timecards of employees in his crew to correct an error thereon, or the failure to punch in or out; (3) on at least one occasion when he was unable to find anyone with higher authority, Holland authorized a member of his crew, who claimed to be unable to work, to punch out and leave for the day; (4) his crew frequently worked late hours, or reported for work earlier than the normal 7 a.m. reporting hour, and that before 7 a.m., or after 6 or 7 p.m., no other representative of management was present at the warehouse ; (5) because of his knowledge of the workload, and his experience with respect to the time required to accomplish Respondent's policy to promptly fill and ship all orders, Holland kept the men working until this was accomplished , and told the selectors and the loader in his crew what time to report for work the following day; (6) when a new employee was hired for the shipping crew, he would be taken to Holland and told that he was to work for the latter, and that it was Holland's job to train the man; and (7) that beginning sometime in 1960 or 1961, Respondent began paying an incentive bonus to certain supervisory employees, and that such a bonus was, for a period, paid to Holland. This bonus was paid quarterly, based on profits. About 1963, because it was felt that payment of a bonus to an hourly employee might present problems under the overtime provisions of the Fair Labor Standards Act, the bonus was abolished as to Holland, and his hourly rate increased to compensate for the loss. At this time, according to President Benson, Holland was told that the elimination of the bonus had no effect on his duties , being simply an adjustment in wages in lieu of the bonus. " As additional violations of Section 8(a)(1) of the Act, the General Counsel relies upon statements allegedly made by Office Manager Tew , an admitted supervisor , to employee Elsie Cumi Vaughn, who, the General Counsel contends, was discriminatorily discharged on October 6 The evidence with respect to such alleged 8 (a)(1) violations , will be set forth in connection with Vaughn 's discharge Suffice it to say, at this point , that I make no 8(a)(1) findings on the basis of Vaughn's testimony " The facts with respect to the discharge of Vaughn will be stated after the facts relating to the status of Holland , Stewart, and McGowan '' Stewart who was the checker on the other crew, and who according to Respondent , performed the same duties and had the same authority as Holland , was paid $1 60 an hour, and the selectors in his crew were paid $1 50 w The card shows 15 categories of work , namely , unloading cars, unloading trucks (backhaul), unloading other trucks, fork truck operation, hand piling stock, selecting, loading, repack work , supervision , clerical inbound checking , outbound checking , sweeping , cleaning , maintenance , recoopenng, and other work President Benson testified that this form was used only to gather information for a service to which Respondent subscribed which reported back a comparison of Respondent's operations with 18 other firms similarly engaged , from the point of view of costs of operation and efficiency, and the allocation of costs to the departments He at first testified that it was not the function of the form to distinguish between supervision and actual work, and that "there is no place on the report for supervision separate from work " When asked why, in view of the last quoted statement, the report carried the heading "supervision," Benson first asked to see the form, and then stated , "that could be the manager of the warehouse or the assistant manager We don't record those two men on our report " At best, Benson 's testimony on this point is unclear I do not credit it, in view of the fact that no showing was made with respect to the type of report the warehouse manager or his assistant made, the fact that according to Benson the purpose of the report was to ascertain costs of operating the department , and for a comparison thereof with similar operations by other employers the cost of "supervision" had to be accounted for and charged to the particular department. BENSON WHOLESALE CO. 543 I credit Holland's testimony that he was never told by any management official that he had supervisory authority over his crew, and that when President Benson announced to the warehouse employees the promotion of Clemmons to the position of assistant to Warehouse Manager Adair, he told the employees that Clemmons and Adair were their supervisors and that they should go to them with any problems they might have.37 b. Robert Stewart Stewart was first hired by Respondent in 1962, as a selector in the warehouse, and worked in that capacity for about 1-1/2 years, when he was assigned as outbound checker. This was the same job as that held by Holland, Stewart and Holland having a separate crew of selectors and a separate loader. When Stewart became outbound checker, no increase in pay was involved, his hourly rate remaining at $1.35, but by subsequent increases had reached $1.60 at the time of his discharge. As was the case with Holland, Stewart's job was to check and price-mark the orders forwarded to the loading dock by the selectors in his crew, and see that a trailer of sufficient capacity was available at the dock so that the loader could properly load the goods for delivery to the customer. Like Holland, Stewart filled out a daily workcard making his entry beside the column entitled "outbound checking," and he made no entry in the column entitled "supervision." According to Stewart, whom I credit, he was never told that he had any authority over the men in his crew. Stewart admitted that if a selector expressed the need of getting off from work, and neither the warehouse manager nor his assistant was present, he might tell the man he could go, but if either Adair or Clemmons was present, he would send the man to them. Respondent does not contend, nor is there any evidence, that Stewart had authority to hire or fire or to recommend such action. c. William J. (Jerry) McGowan McGowan was first employed by Respondent in 1962 and assigned to the drug room to fill drug orders , where he and Earl Yancy were the only employees. His hourly rate of pay was then $1.15. Sometime in 1963 Yancy quit, and McGowan was told by Warehouse Manager Adair that he (McGowan) was a supervisor , pointing out that McGowan told the other men in the drug room when to come to work and what to do. McGowan admitted that he told the men when to come to work ,311 but that he did not consider that this made him a "supervisor." Aside from this incident there is no evidence that McGowan was told at any time prior to October 11 , 1965, that he had any supervisory authority. On October 19, McGowan was called to the office where General Manager Cotter told him that the Company "had already made some supervisors and was going to make some more," and asked if McGowan wanted such a job. McGowan replied in the affirmative, saying that he wanted the money. McGowan was told that he was getting a 20-cent-per-hour raise, which increased his hourly rate to $1.75. With overtime, McGowan's gross weekly earnings were then in excess of $100. Cotter also told McGowan that he could not engage in union activity; as McGowan expressed it, "I couldn't help them or I couldn't hurt them." Later the same day, Cotter, as set forth supra, again talked to McGowan and asked that he talk to the employees with a view of getting them to abandon their union activity. Shortly thereafter, Personnel Manager Wood asked McGowan to prepare a list of the latter's duties at that time. McGowan prepared and furnished such a list to Wood. According to McGowan, whom I credit, these were the same duties he performed since he was first employed by Respondent.39 d. The discharge of Elsie Cumi Vaughn Vaughn was initially employed by Respondent in May 1964, as an IBM clerk in the office, at an hourly rate of $1.25. She was admittedly a satisfactory and valued employee, and in July 1964 was selected for training as a keypunch operator for a new IBM system then being installed. When she assumed the latter duties she was given an increase in pay. Although Vaughn was aware of the union activity in progress at Respondent's warehouse, she was not a part of the unit involved, and it is undenied that she took no part in such activity. About mid- September, Vaughn was given another increase in pay, raising her to $1.45 an hour. At this time Vaughn had a rather lengthy conversation with Office Manager Tew, who had overall supervision of Respondent's clerical staff. Tew told Vaughn that she was pleased with her work, but asked if Vaughn was seeking employment at Fort Rucker. After Vaughn admitted this was so, Tew told her that Respondent could not compete with the wage scale at Fort Rucker, but detailed other advantages that Vaughn would have if she continued at Respondent, and added if it was just a matter of money, that she would give Vaughn an additional 15-cent increase to remain. Vaughn promised to consider the matter. On October 5, Vaughn did not report for work, but sent a message to Respondent that her mother was ill and she would have to take her to a doctor. About 8 a.m. on that day, Personnel Manager Wood observed Vaughn, without her mother, in a filling station where her car, headed in the direction of Fort Rucker, was being filled with gas. Knowing that Vaughn was seeking employment at Fort Rucker, Wood, upon reaching Respondent's office, told Office Manager Tew what he had observed. The following day, when Vaughn reported for work, she was discharged. No mention was made at this time about what Wood had observed at the filling station , nor was Vaughn asked for any explanation. Up to this point, the evidence with respect to Vaughn's discharge is not controverted. 11 Benson testified that when Clemmons was promoted he told the employees that Clemmons would share the responsibilities of Warehouse Manager Adair, and that problems they had been taking to Adair, they could now take to Adair or Clemmons It is not clear to me whether Benson intended by this to deny Holland's testimony in this regard To the extent that there is such conflict, I credit Holland 18 According to McGowan's uncontradicted testimony it was necessary that the drug room crew work the same hours as the warehouse crew, so that the drug items of an order would be filled, priced, and sent to the loading dock with the remainder of a particular customer order, for shipment at the same time, that he ascertained from Holland or Stewart when the warehouse crews would be working, and told the other men in the drug room so that he and they would be at work when needed 19 The list McGowan furnished Wood described his duties thus pull orders, haul in off dock, clean up, wait on salesmen ; work up damaged merchandise, send damaged merchandise back to supplies, break down deals, count out list, go get orders, stock and price merchandise , get buggies , push orders out, unload trucks, carry orders to Frozen Food Department, line out shelves According to Wood, he asked McGowan and other employees to prepare such a list so that he might prepare formal job descriptions 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the remainder of the evidence upon which the General Counsel relies represents such a sharp credibility issue, it can be fairly stated only by presenting both versions. Vaughn testified that when she was discharged, she was told that the reasons were that she "had been absent excessively and ... was looking for work at Fort Rucker." Although Vaughn disclaimed knowledge as to the number of occasions she was absent, she admitted that there were several such occasions , including one occasion that she left work early claiming to be ill, but used the time to go to Fort Rucker to look for work. One evening several weeks after her discharge, Vaughn went to the home of J. B. Purvis, a representative of the bank which had financed Vaughn's car, to tell Purvis that because she had lost her job at Benson's she would be unable to make the payments until she secured other employment. It should be noted that when Vaughn testified, this was the only reason she gave for going to see Purvis, and that she made no mention of having received any message that Purvis wished to see her. Vaughn did not say what understanding, if any, she reached with Purvis about the car, but testified that Purvis asked if she had engaged in the union activity then current at Respondent's plant, and stated that he had been told by Mrs. Tew that Vaughn had been fired for her union activity. According to Vaughn, Purvis suggested that she go see Tew, saying that he would not want Tew thinking Vaughn had engaged in union activity, if such was not the case. Vaughn proceeded from Purvis' home to the home of Mrs. Tew where she told the latter that she had learned that day that the Company had discharged her because they felt that she was engaging in union activity, that she was not seeking her job back, but wanted Tew to know that she had no part in the union activity. According to Vaughn, Tew stated that the Company had many reasons for believing that Vaughn had engaged in union activity, pointing out that Vaughn 's sister was active in trying to get a union at the local shirt factory, and that Vaughn had been frequently seen at I. D. Griffin's service station, and it was known that he was active in trying to get Respondent's employees organized. Tew then asked Vaughn if she had attended any union meetings, to which Vaughn replied in the negative. According to Vaughn, Tew then stated that before Vaughn was fired she and other supervisory personnel in the office had considered whether they should be open about it and ask Vaughn if she had engaged in union activity, but concluded that would be unwise, and that the best thing to do was simply discharge Vaughn, and if Respondent was ever called upon to justify its action, it could rely upon Vaughn's absentee record. According to Vaughn, she then asked Tew if Holland and Stewart had been discharged because they were supervisors and had engaged in union activity, and that Tew replied that she knew that Holland and Stewart were not supervisors, but that the Company had to do something to keep the Union out as long as they could; that she did not think a union was necessary in a place as small as Benson's, and that she had told President Benson that she would not work in a place that had a union. According to Vaughn, Tew volunteered that the Company had made Shirah, Free, McGowan, Shiver, and Kirkland supervisors to prevent them from voting if there should be a union election, and that the employees in the warehouse were being questioned to find out why they wanted a union. Vaughn testified that she then asked Tew why the Company had reported to the State that excessive absenteeism was the reason for her discharge when this was not the fact, and that Tew replied that she was sorry if Vaughn had been done an injustice, that they would permit her to draw her unemployment and would recommend Vaughn for a job elsewhere, or would take her back to work, but she assumed Vaughn would not want to come back. Tew then asked Vaughn if anyone had tried to get her to sign a union card, and if she knew on September 30, that the employees were having a union meeting that night. When Vaughn admitted that she did know about the union meeting before it was held, Taw asked why she had not told someone in the Company about it. Purvis, a witness called by Respondent, testified that on some date which he could not recall, he was driving by Vaughn's home, and knowing that Vaughn had been terminated by Respondent, and that she was about 3 months in arrears in her car payments, stopped to see her;40 not finding Vaughn at home, he left a message with her mother, asking that Vaughn come to see him. According to Purvis, this was the only statement he made to Vaughn's mother, and he specifically denied that he told her what he wished to talk with Vaughn about, or that he had been told by Tew that Vaughn had been fired for, union activity.41 According to Purvis, when Vaughn came to see him, they discussed the delinquency in her payments, and in view of her anticipation of a job at Fort Rucker, he agreed to refinance the car. Purvis testified that in the course of their conversation Vaughn mentioned that when she was discharged by Benson, she was given no reason, and admits that he then asked Vaughn if she had participated in union activity. Purvis also admits that when Vaughn stated that she had not engaged in union activity, he suggested that she go to see Tew and try to find out the reason for the discharge, saying she was entitled to that information. Purvis denied that he had ever spoken to Tew about Vaughn's termination. Tew admits that Vaughn came to see her on the occasion referred to and that the subjects referred to by Vaughn were discussed. However, she denied that she (1) asked Vaughn whether she had participated in union activity, or whether she had signed or been asked to sign a union card; (2) told Vaughn that it had been decided to rely on her absentee record in an attempt to obscure the fact that her union activity was the real reason for the discharge; (3) told Vaughn that Holland and Stewart were not in fact supervisors, but were being called such in order to justify their discharge; (4) that other employees would be classified as supervisors for the purpose of removing 90 The parties stipulated that the Bank made the loan to Vaughn in May 1965, with the first payment due June 10, 1965, and successive payments on the 10th of each month thereafter, until paid , and that the payments due September 10 and October 10, were not paid on time Following the close of the hearing, I received a further stipulation from counsel , which they requested be made a part of the record, to the effect that neither the September nor the October payment had been made as of late October 1965 I had so understood the stipulation reached at the hearing In any event, I now approve the last mentioned stipulation and the record is clarified accordingly Said stipulation , which I have marked "Trial Examiner's Exhibit 1." is filed with and made a part of the record 4i Mrs Emma Vaughn testified that Purvis had told her Tew had been in the bank and told him that Vaughn "was involved in this union business ," and that he wanted to find out all he could about it , and asked that she come to his home that night I find it unnecessary to resolve the conflict BENSON WHOLESALE CO. 545 them from the unit and to prevent their voting in the event of an election; or (5) that the Company was determined that the Union must be defeated and that the best way to accomplish this was to stall as long as possible. Tew also denied that she had ever discussed with Purvis the Union or the reason for Vaughn's discharge 4. The alleged refusal to bargain The facts with respect to the Union's demand for recognition and Respondent's refusal, are set forth supra. Respondent raises certain unit questions which must be resolved before it can be determined whether the Union had majority status in, and made its bargaining demand for, an appropriate unit. a. The unit questions With respect to the scope of the unit, Respondent contends that the employees in its printshop, a truck mechanic, two rack service employees, as well as the warehousemen and truckdrivers for whom the Union made its demand, should be included in the unit, and that the Union's failure to include them rendered inappropriate the unit for which it made demand. The General Counsel argues that the printshop and rack service employees should be excluded from the unit, but in his brief advances no contention regarding the truck mechanic. In the alternative he argues that a unit limited to the warehouse employees, and excluding truckdrivers and printshop employees, would also be appropriate. The evidence with respect to the functions, duties, and interrelationship of the various classifications of employees discloses the following: The employees in the warehouse proper who are hourly paid receive, unload, and place in the warehouse all incoming merchandise, fill orders, and load them on the trucks for transportation to the retail stores.42 These employees spend all of their working hours at the warehouse, and are under the supervision of the warehouse manager and his assistant. The truckdrivers transport the merchandise from the warehouse to the retail stores, some of which are over 300 miles distant, where they may assist in the unloading. The truckdrivers are salaried, spend virtually all of their working time away from the warehouse, and are separately supervised.43 There is no evidence of interchange between the warehouse employees and the truckdrivers. The truck mechanic works under the same supervision as the truckdrivers, is salaried, and devotes his entire time to maintaining the trucks in mechanical repair 44 The mechanic works in a building in downtown Geneva, some distance away from Respondent's warehouse. The rack employees are salaried. Virtually all of their working time is spent away from the warehouse. Their duty is to visit the retail stores after the trucks deliver drugs, cosmetics, and related items, and there shelve and display those items. They carry no merchandise with them, do no selling, travel in their own automobiles for which they receive an expense allowance. The rack employees do not punch a timeclock, and are under the supervision of a Mr. Hornsby, who is Respondent's buyer of the type of merchandise which these employees shelve, rack, and display. The printshop employees lay out, prepare, and print circulars and related advertising material for the retail stores. There are some full-time and some regular part- time employees in the printshop, who have their own supervisor (Jack Helms). All of these employees, except- the supervisor, are hourly paid. Although the printshop employees work in a separate building from' the warehouse, such building is on the same grounds, and is located about 30 yards behind the warehouse proper. Paper used in the printing process is stored in the warehouse until needed in the printshop, at which time warehouse employees take it from its storage place to the receiving dock, and the printshop employees move it to the printshop. The printshop employees punch the same timeclock, located in the warehouse proper, as do the employees who work in the warehouse building. There is no evidence of interchange between the warehouse and the printshop employees.45 Regardless of the nature of their work, all employees of the Company, including supervisors and management personnel, receive the same benefits in the way of pensions, insurance, vacations, etc. b. Numerical composition of the unit At the beginning of the hearing, I overruled Respondent's motion to quash a subpoena duces tecum as directed to it by the General Counsel. Among the records covered by said subpena were those showing the names and job classifications of the employees in the unit alleged in the complaint. From such records the employee complement of the unit could have been readily ascertained. Respondent, however, declined to comply with the subpena. I then stated that the General Counsel would be permitted to establish any element of his case with respect to which the subpenaed documents would be relevant, by secondary evidence which Respondent would not be permitted to controvert, and that all appropriate inferences would be drawn from Respondent's failure to produce the subpenaed documents. With this background, I proceed to a consideration of the evidence dealing with the total number of employees in the various classifications, and the total number of employees who had designated the Union as their bargaining representative. Although Respondent stated its intention "to put into evidence the names of all employees that we think should be included in the unit," it did not do so. Such evidence was, for most part, developed by the General Counsel through General Manager Cotter, when the latter was examined pursuant to the provisions of rule 43(b) of the Rules of Civil Procedure.46 General Manager Cotter 42 Separate crews perform these functions Thus, there is a crew which only receives, unloads, and places incoming goods in the warehouse. There are separate crews for the filling of orders in the Drug Room, Freezer Room, and Dairy Room Other crews fill orders for merchandise from the grocery department 49 Their supervisor is Malcolm Ansley, who is referred to supra 44 How long Respondent has employed a truck mechanic does not appear Supervisor Ansley testified that he could not recall whether the mechanic was employed on October 1 (when the Union made its demand), or whether he was first employed thereafter 45 Supervisor Helms testified that one employee began work for the Company in the warehouse, and subsequently transferred to the printshop, and that if he had a vacancy in the printshop he would consider a qualified person from the warehouse I do not regard this as interchange between the groups 4' The only exception relates to the rack employees The testimony as to those two employees was developed through President Benson 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that all 32 of the employees named on the list sent to the Company by the Union on October 5 (G.C. Exh. 4) were employed by Respondent in the receiving or shipping operations of the warehouse'47 on October 1, the date the Union made its demand. There is no evidence that any other employees worked in the shipping or receiving operations of the warehouse at any relevant time. Cotter also testified that as of October 1, Respondent employed 11 truckdrivers; he did not mention the truck mechanic, and in view of Supervisor Ausley's testimony that he did not recall whether such an employee had yet been employed by Respondent, I do not count the mechanic in determining the total employee complement. Cotter additionally testified that on October 1, there were four or five employees in the printshop, and Benson testified that there are two rack employees that Respondent contends should be included in the unit. On the basis of this evidence, I find total employment in the several classifications mentioned on October 1, were as follows: Receiving and shipping operations in the warehouse, 32; truckdrivers, 11; printshop, 4;48 rack employees, 2. Thus the total employee complement in all the classifications, as of October 1, was 49. In a subsequent section hereof, I shall set forth my findings as to which of these classifications should be included in the unit, and the Union's majority status therein. B. Contentions and Concluding Findings 1. The interference, restraint, and coercion I find and conclude that Respondent violated Section 8(a)(1) of the Act by the following conduct heretofore set out in detail: a. Adair's interrogation of Pollard as to whether there had been any talk about the Union, and his request that Pollard report back on any employee discussion of the Union that he might hear. b. Adair's statement to Pollard that he (Adair) had been instructed by General Manager Cotter to fire any employee that talked about the Union. c. Clemmons' interrogation of Pollard as to whether Pollard had signed a union card and what he thought of the Union. On the entire record, this interrogation, as well as the interrogation hereafter referred to, was plainly not for the limited purpose of ascertaining Respondent's duty to deal with the Union, as contemplated by the Board's decision in Blue Flash Express, Inc., 109 NLRB 591. d. Cotter's implied admission to Pollard that Respondent had obtained credit reports on all employees, and which he implied would be used by the Company in connection with its efforts to counter the Union's organizational campaign. In context, and in light of Respondent's other conduct, herein found, and which was known to the employees, it was a statement that Respondent intended to prevent the employees from exercising their Section 7 rights, and hence constituted interference, restraint, and coercion. e. Clemmons' interrogation of Davidson as to the latter's attendance at union meetings , and whether the employees would get out of the Union if Respondent promised certain changes; as well as by his statement expressing doubt that Respondent would proceed with certain expansion plans because the employees sought union representation. f. Cotter's interrogation of Davidson as to the progress of the Union's campaign , and the statement that Davidson might get more money and in time a supervisory job if he would do what he could to get the men to change their minds about the Union. g. Adair's statement to McGowan that the employees would never get what they sought through the Union; that before Benson would accept the Union he would close the doors. It. Clemmons' interrogation of Holland as to whether the latter would withdraw from the Union if the Company discharged Adair, and by similar interrogation of employees Stewart, McNeil, and Shirah, by printshop Supervisor Helms. i. The statement by Benson, in his speech to the employees on October 5, "I don't think this union can do any of you any good and can only lead to trouble for everybody." The Board has consistently held such it statement to be coercive and violative of Section 8(a)(1) of the Act. See Cleveland Woolens, a Divis ion of Burlington Industries, 140 NLRB 87, 94; Owens-Corning Fiberglass Corporation, 146 NLRB 1492, 1503, and the cases there cited.49 Moreover, assuming arguendo, that this statement , standing alone, was not coercive, I nonetheless find and conclude that in the context of Respondent's other flagrant and extensive unfair labor practices, as herein detailed, the entire speech including particularly, not only the above statement, but the parts where the employees were told unions exist on trouble, and that Holland and Stewart had been discharged because they refused to abandon their union activity, was violative of Section 8(a)(1), because it was delivered with the intent and purpose, and had the effect of and could be reasonably interpreted by the employees as, an attempt to interfere with their exercise of their organizational rights. Kayser- Roth Hosiery Co., Inc., 158 NLRB 28; Overnight Transportation Company, 154 NLRB 1271; Cleveland Woolens, 140 NLRB 87, footnote 5. j. Cotter's solicitation of Sarah Ausley to prevail upon, and to ask her father's assistance in prevailing upon, her husband, employee Ray Neal Ausley, to withdraw his 41 This included Frank Williams who performed janitorial services in the warehouse 48 Because of Respondent's failure and refusal to produce employment records, I have in all cases , used the lesser of Cotter's estimates For the same reasons , I have used Cotter's testimony as to the number of printshop employees , rather than the testimony of Supervisor Helms A further reason for not using the figures testified to by Helms is that for the most part he was apparently speaking of employment figures as of the day he testified (April 14, 1966), rather than as of October 1, when the Union made its demand 49 I am aware that the courts considering the questions have, in disagreement with the Board , held that the aforementioned statement is not coercive See Surprenant Manufacturing Company v N L R B, 341 F 2d 756, 760 (C A 6), N L R B v Threads, Inc, 308 F 2d 1, 9 (C A 4), N L R B v Southwire Company, 352 F 2d 346, 348 (C A 5), N L R B v Sagamore Shirt Company, d/b/a Spruce Pine Manufacturing Co , 365 F 2d 898 (C A D C.) However, as a Trial Examiner of the Board, it is my "duty to apply established Board precedent which the Board or the Supreme Court has not reversed " (Insurance Agents' International Union, AFL-CIO, 119 NLRB 768, 773) See also Iowa Beef Packers, Inc , 144 NLRB 615, 616, and the cases there cited This is particularly true here, in view of the Board's pronouncement with respect to such statements, that notwithstanding the contrary decision of the courts "we respectfully adhere to our position " See Sagamore Shirt Company d/b/a Spruce Pine Manufacturing Company, 153 NLRB 309 BENSON WHOLESALE CO. support of the Union; and his solicitation of Sarah Ansley to tell her husband that McGowan had been discharged because he refused to desist fromt union activity , and that he (Ausley) should be thinking about that. k. Benson's interrogation of Shirah as to why he had attended a union meeting and what had transpired there. In view of my conclusion, hereafter explicated, that Shirah was never invested with supervisory authority , Benson's further statement to Shirah that the latter could not attend union meetings , was also unlawful. 1. Designating McGowan, Shirah, Kirkland, Free, Shiver, and Seay as supervisors , without conferring actual supervisory authority upon them, for the purpose of prevailing upon them to abandon their union activity, and preventing them from voting in any Board election that might be held. m. In the context of the facts of this case , Cotter's appeal to the employees , in his speech of March 24, wherein he solicited employees to indic ate whether they signed union cards on the representation that such cards were only for an election , was coercive , and therefore violative of Section 8(a)(1). Respondent 's extensive efforts to avoid its bargaining duty, above detailed , consisting inter alia of its solicitation of employees to withdraw from and abandon their support of the Union, its attempts to persuade the employees to in effect bargain with it without the intervention of the Union, the statement to at least one employee that he might get more money and a supervisory job if he would do what he could to get the men to change their mind about the Union , the discharge of three of the most active proponents of the Union for the pretextuous reason that they were supervisors who refused to abandon their union activity, the pretextuous designation of other union supporters as supervisors for the purpose, as I have found, of stopping them from continuing with their support of the Union, and the direct threat to discharge Ansley if he did cease his support of the Union , particularly in view of Cotter's admission that no employee had told him that he signed a union card only to get an election , convinces me, and I so find and conclude , that this speech was but a continuation of Respondent 's past efforts to appeal to the employees to abandon their support of the Union , and was delivered with that intent and purpose . It was simply another way of asking the employees , to reject the Union through the device of signing the requested document which, had it proved effective , would have destroyed the Union's bargaining rights and accomplished Respondent's objective of avoiding its bargaining obligation. 1. The 8(a)(3) violations a. The discharge of Holland and Stewart Respondent concedes that it discharged Holland and Stewart because of their union activity , but contends that no violation resulted because they were supervisors, as that term is defined in Section 2(11) of the Act.50 Whether an individual has been vested by his employer with the requisite authority to make him a "supervisor" must, of so Section 2(11) of the Act provides The term "supervisor" means any individual having authority , in the interest of the employer, to hire , transfer, suspend , lay off, recall , promote , discharge, assign , reward, or discipline other employees , or responsibly to direct them, or to adjust their grievances , or effectively to recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, 547 course, be determined upon the facts of each case. Certain principles , however, have been judicially established. A rank-and-file employee is not transformed into a supervisor merely by investing him with a "title and theoretical power to perform one or more of the enumerated functions." N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 935, 939 (C. A. 4), cert. denied 359 U.S. 911 . And although the powers enumerated in Section 2(11) of the Act are to be read in the disjunctive, that Section contains "the requirement of independence of judgment in the conjunctive (i.e., in connection) with what goes before." Poultry Enterprises, Inc. v. N.L.R.B., 216 F.2d 789, 802 (C.A. 5). Thus a "supervisor" must display true independent judgment in performing one or more of the functions enumerated in Section 2(11), for the performance of such functions sporadically or merely in "routine," "clerical ," or "prefunctory" manner does not elevate a rank-and-file employee to the rank of a supervisor. N.L.R.B. v. Southern Bleachery & Print Works, supra; Poultry Enterprises, Inc. v. N.L.R.B., supra; N.L.R.B. v. Lindsay Newspapers, Inc.. 315 F.2d 709, 712 (C.A. 5). Nor will the existence of independent judgment alone suffice, for always "the decisive question is whether [the particular individuals ] have been found to possess authority to use their independent judgment with respect to the exercise by them of some one or more of the specific authorities listed in § 2(11) of the Act ...." N.L.R.B. v. Brown & Sharpe Manufacturing Company, 169 F.2d 331, 334 (C.A. 1). Applying these principles to the applicable evidence in this record , I find and conclude that neither Holland nor Stewart was a supervisor within the meaning of the Act. The totality of the following factors compels me to that conclusion: 1. The warehouse manager, and his assistant had supervision over all receiving and shipping functions of the warehouse . Thirty-two being the total employee complement engaged in such operations , two supervisors would not appear to be too minimal a quantity of supervision, having in mind that the work is largely manual and routine . On the other hand , if Holland and Stewart were supervisors , the level of supervision is inordinately high,51 having in mind the nature of the work and the fact that it was performed in close proximity to Adair and Clemmons , admitted supervisors.52 2 Prior to the day of their discharge, neither Holland nor Stewart was ever told of their alleged supervisory status. Indeed President Benson, in a speech to the warehouse employees announcing the appointment of Clemmons as assistant warehouse manager, told those employees that Adair and Clemmons were their supervisors , and specifically instructed them to go to Adair or Clemmons with any problems they might have. 3. While it is in no sense controlling , it is certainly a factor to be taken into consideration , that Holland and Stewart were hourly paid and compensated for overtime, while the admitted supervisors (Adair, Clemmons, Jack Helms, and Malcolm Ansley) were paid a salary and received no overtime. but requires the use of independent judgment 51 Each shipping crew consisted of four pickers , a checker, and a loader If Holland was a supervisor , only five employees worked under his supervision Sz The record shows that an office shared by Adair and Clemmons is located in the warehouse near where the shipping crews work In fact the shipping crew employees pick up the shipping orders in this office 298-668 0-69-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The work of the selectors and the loaders in the shipping crews is of a manual, routine, and repetitive nature which required no close supervision on the part of Holland or Stewart, and the work performed by the latter consisted simply of checking to see that the items called for by the invoice were present in the specified quantity, and to price-mark the merchandise , according to information available in a catalogue . This is nothing more than routine clerical work not involving the exercise of independent judgment in the sense contemplated by Section 2(11) of the Act. Even when Holland or Stewart found it necessary to call to a selector's attention that an error in the type or quantity of merchandise had been made, this was only for the purpose of making the necessary correction, and did not call for the exercise of "independent judgment." Holland and Stewart spent their entire time in the performance of routine manual duties no different from those performed by the shipping clerk involved in Miami Paper Board Mills, Inc., 109 NLRB 167, 169; Southern Paperboard Corporation, 84 NLRB 822, 824; and South Florida Liquor Distributors, Inc. of Tampa, 113 NLRB 109, 110-111, which the Board there found to be nonsupervisory in character.53 The fact that Holland at one time received a bonus paid to other supervisors and carried a key to the warehouse ; that the shipping crews worked late into the evening, or came to work in the early hours of the morning when neither Adair nor Clemmons was present , and he initialed timecards for, or on occasion allegedly granted time off to, an employee (a factual dispute unnecessary to resolve ), is not conclusive as to his supervisory status.54 At best Holland and Stewart, by reason of their tenure and experience , acted as straw bosses or leadmen. That Congress never intended such employees to be embraced within the term "supervisor," is made plain by the Senate Report on the bill which was thereafter enacted.55 Accordingly, as I have found that Holland and Stewart were not supervisors , their discharge by Respondent, admittedly because of their union activity, was violative of Section 8(a)(3) and (1) of the Act. I so find and conclude. b. The discharge of William J. McGowan Although there are some factual differences in the status of McGowan at the time of his discharge, and the status of Holland and Stewart at the time of their discharge, which I shall discuss, I nonetheless find and conclude that McGowan was not a supervisor within the meaning of Section 2(11) of the Act, at the time of his discharge, and as it is conceded that McGowan was discharged because of his refusal to abandon his activities on behalf of the Union, it follows that his discharge was 13 Grand Forks Grocery Company, 121 NLRB 1271, is plainly distinguishable from the instant case . The shipping clerk there involved assigned work to employees and directed its performance , reprimanded employees, selected those to perform overtime , enforced the work schedule designed to assure employees a 49-hour week But for this shipping clerk the only persons with supervisory authority over the warehouse would have been the Company's president and his assistant 54 See Frederick Steel Company, 149 NLRB 5, 10, where the alleged supervisor carried a key to the plant, and frequently carried out the orders of his supervisor when the latter was away from the plant , Miami Paper Board Mills, supra, where the shipping clerk had authority to grant employees time off, and South Florida Liquor Distributors, supra, where the shipping clerk did occasionally authorize employees to leave early violative of Section 8(a)(1) and (3) of the Act. I so find and conclude. For the reasons heretofore stated in discussing the supervisory status of Holland and Stewart, McGowan was clearly not a supervisor within the meaning of the Act, prior to the events of October 19, and October 28, because the facts heretofore detailed, show that his work was of routine nature not involving the exercise of independent judgment. At best, McGowan, like Holland and Stewart, because of his tenure and experience in the drug room, was the straw boss, or leadman over the less experienced employees. His authority over the employees in his group was of a "minor" nature, not of the character Congress intended to include in the term "supervisor." See the Senate Report quoted supra. The only issue with respect to McGowan, is whether, by the events of October 19 and 28, heretofore detailed, Respondent so changed McGowan's duties and responsibilities, that supervisory authority was, in fact, conferred upon him. This issue, I find and conclude, must be answered in the negative for the following reasons: 1. Unquestionably, an employer may, in the exercise of his business judgment, confer supervisory authority upon rank-and-file employees without in any way violating the Act. However, when such action is taken in an atmosphere of union hostility, in order to distinguish a pretext from a bona fide action, the Board will "scrutinize closely the surrounding factors [including the timing of such action] to determine whether or not supervisory authority was in fact delegated to the employees concerned" (Cherokee Brick and Tile Company, 100 NLRB 612, 615). And the burden is upon the party alleging supervisory status to prove that it in fact exists. The Detroit Edison Company, 123 NLRB 225, 230; Riss & Company, Inc., 127 NLRB 1327, 1330. In the instant case, Respondent's union animus is clearly established. Benson told the employees in his speech on October 5, that Respondent was "opposed to the Union," and that it intended to "use every legal means to keep it out ." In implementation of that purpose, as I have found , it discharged Holland and Stewart, the two employees most active in the effort to secure union representation, because they refused to abandon their union activity, and directed towards its employees a campaign of restraint and coercion designed to destroy the Union's majority status among the employees. 2. On October 19, McGowan was not told in what respects the duties of his new supervisory position would differ from the duties he theretofore performed. 3. At the October 28 meeting McGowan, as well as Free, Shiver, Kirkland, and Shirah, 56 were given and required to sign formal job descriptions. These job 55 See S R 105, 80th Cong , p 4, where it is stated, The committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusion in the act It has therefore distinguished between straw bosses, leadmen, setup men , and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline , or make effective recommendations with respect to such action 56 Respondent makes no contention that Free or Shiver were theretofore supervisors Shirah and Kirkland replaced Holland and Stewart , respectively There is no evidence that their actual duties and responsibilities were any different from those of Holland and Stewart prior to their discharge on October 5 BENSON WHOLESALE CO. descriptions do purport to vest some supervisory authority in the aforementioned employees. However, I credit the testimony of McGowan, Shiver, Free, and Shirah,57 that their duties after October 28, were no different than in the past.58 True, some of these men did testify that after' October 28, prospective employees were sent to them for interview ; that they were told that they did not have to take those applicants; that a proposed wage increase was discussed with them; and that at least on one occasion, one of these men asked that an employee be transferred out of his unit. The evidence fails to show, however, that any recommendation these alleged supervisors may have made had any real significance. In fact, Free testified that two men he had recommended for hire were not hired, and that with respect to two applicants that were sent to him for interview, he made no report or recommendations to management, but these men were hired.59 4. Respondent has made no showing that would justify a three-fold increase in the supervisory staff.60 Employment in the warehouse, as the evidence shows, remained stable. The work performed by the warehouse crew is entirely manual, routine, and repetitive in nature. There is nothing to indicate the necessity for close supervision over a small number of employees. From Cotter's own testimony concerning the work performed by the 32 employees named by the Union as its supporters, it appears that McGowan, as an alleged supervisor in the drug room, only had three employees under his supervision,61 and Shiver, as supervisor in the frozen food department, only had two.62 Upon consideration of the entire record, I am convinced that at no time material was McGowan a supervisor within the meaning of Section 2(11) of the Act, and therefore his discharge by Respondent on November 4, admittedly because McGowan refused to abandon his activities on behalf of the Union, was violative of Section 8(a)(3) and (1) of the Act. I so find and conclude. Consideration of the entire record also convinced me that McGowan, Shiver, Kirkland, Free, and Shirah were not invested with supervisory status in October '63 and that the attempt to invest them with that status was simply a subterfuge having for its purpose the suppression of union activity by those known union adherents. I so find and conclude. Such conduct plainly interfered with and restrained those employees in the exercise of their Section 7 rights, and was, therefore, violative of Section 8(a)(1) of the Act, as found supra. See Steere Broadcasting Corporation, 158 NLRB 487, 496. c. The discharge of Elsie Cumi Vaughn If the discharge of Vaughn had to be decided on the basis of the General Counsel's evidence without the Vaughn-Tew conversation, I would have no hesitancy in concluding that the evidence is insufficient to establish 'r Kirkland did not testify. 's For example, Free, when asked what his duties were prior to being told that he was a supervisor, answered, "I checked freight and filled out the receipts " When asked what his duties were after he was told that he was a supervisor, answered, "I check freight and fill out the receipt " '' Free did admit that he recommended an individual for a raise of 10 cents rather than 5 cents There is no showing, however, that this was anything other than the general wage increase which Respondent gave to all employees so Prior to October 1, as I have found, the only supervisors in the warehouse were Adair and Clemmons If supervisory 549 that her discharge was discriminatorily motivated. It is true that the timing of her discharge, the absence of any warning, the complete absence of evidence that a replacement had been obtained for Vaughn who, according to Respondent, was in a position requiring punctual and reliable attendance, are all suspicious circumstances , but suspicion is not an adequate substitute for proof. The uncontradicted fact remains that Vaughn did not engage in any union activity, and there is nothing to indicate that the Company knew or had any reason to suspect that Vaughn, who was not among the employees the Union was trying to organize and represent, was engaging in such activity. Vaughn admitted that she had been absent on some occasions; on one occasion she had feigned illness to get off from work to go to Fort Rucker about a job. Respondent knew of Vaughn's interest in obtaining other employment and while it regarded her as a competent employee whom it wanted to retain, it was fearful that it might lose her services on what it regarded as insufficient notice. On October 5, Vaughn admittedly sent word that she could not be at work that day because it was necessary that she take her mother to a doctor, but she was seen shortly thereafter by an official of the Company getting gas for her car, which was headed in the direction of Fort Rucker, and her mother was not with her. Whether Respondent was justified, on these facts, in assuming that Vaughn had given a false reason for her absence, and that she was, in fact, going to Fort Rucker to seek employment, it is unnecessary to decide. While the Board may consider the reasonableness of an alleged justification for a discharge, the absence of such justification, without more, does not establish the essential ingredient of an 8(a)(3) violation, that the employer be discriminatorily motivated. Whether Vaughn was discriminatorily discharged or not must be decided, therefore, by resolving the credibility issue posed by the testimony of Vaughn and Tew'64 for if Vaughn is credited, the discriminatory motive is established by Tew's admissions as to the reasons for Vaughn's discharge. Unfortunately, in determining credibility issues, a trier of fact does not have the benefit of any test that may be applied with absolute certainty that the result reached is correct. Under our judicial system, all that a trier of the facts can do is to give due consideration to, among other factors, the demeanor of the witnesses, their candor and frankness, their apparent bias or interest, or the lack thereof, the probability of the truth of their testimony, and ,upon consideration of all relevant factors, give credit where credit appears to be due. After careful consideration of all pertinent portions of the testimony, in light of all applicable considerations , and without imputing any improper motives to Vaughn, I have concluded that I cannot credit her testimony. Had Vaughn's testimony regarding her conversation with Tew been limited to the reasons for her discharge, perhaps I could credit it, but I authority was in fact conferred upon Shirah, Kirkland, Free, and McGowan, the supervisory level rose to six bi Billy McGowan, Bobby Seay, and Ray Ausley 62 Douglas Stafford and D L. White 61 And Bobby Seay, who was purportedly made a supervisor in the drug room on or about December 15, to replace McGowan, who was discharged on November 4 64 The testimony of Purvis and Vaughn is of no assistance in resolving that issue , hence I find it unnecessary to resolve the conflict in their testimony, as to what message Purvis left with Vaughn. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot accept the premise (which I have to accept if I credited Vaughn), that Tew, who has been in the business world at least 20 years, and Respondent's office manager for the past 15 years, and whose every appearance indicates competency, would unfold to this youthful employee who had been in Respondent's employ only about 19 months, and who had now been discharged, Respondent's plan, which it must have intended to keep confidential, to defeat the Union by means, known to even most laymen, to be blatent violations of the Act. Having concluded not to credit Vaughn'65 it follows that the General Counsel has failed to establish by the preponderance of the credible evidence, that Vaughn's discharge was discriminatorily motivated. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 3. The refusal to bargain a. Conclusions as to appropriate unit As heretofore stated, the Union's initial description of the unit for which it requested recognition was the "employees in the warehouse." This was modified by the petition filed on October 5, which described the unit as "All warehouse employees including truckdrivers," and this is the unit alleged in the complaint to be an appropriate unit . Respondent contends such a unit is inappropriate because it fails to include (1) the rack employees, (2) the printshop employees, and (3) the truck mechanic. The rack employees are under separate supervision, spend virtually their entire working time away from the warehouse performing functions entirely dissimilar to those performed by the warehousemen and truckdrivers, or even by the printshop employees. Aside from the fact that they are employees of Respondent, they have no community of interest with any other of its employees. For this reason, I find and conclude that they should be excluded from the unit. Whether the printshop employees must be included to prevent the unit requested by the Union from being inappropriate is a more difficult question. While these employees work in a separate building, that building is only about 100 feet from the main warehouse, so that for all practical purposes the two buildings comprise one "enterprise." The printshop and the warehouse employees punch the same timeclock which is located in the warehouse; are hourly paid; work the same regularly scheduled hours; and enjoy the same fringe benefits as do the warehouse employees and the truckdrivers. On the other hand, the printshop employees are separately supervised; apparently enjoy a substantially greater rate of pay than the warehousemen;66 have different skills; their work does not appear to be related to that performed by the warehousemen or truckdrivers, and there is no interchange of employees among these functions. There is ' For this reason I have not detailed or relied upon Vaughn's testimony in my consideration of the 8 (a)(1) allegations of the complaint " The highest rate mentioned in the record paid to warehousemen is $2 an hour, which was paid to Holland Admittedly, this was weighted to compensation for a bonus which Holland had theretofore received, and probably also took into account his long tenure of service Printshop Supervisor Helms testified that the men under his supervision are paid up to $2 85 an hour There is no evidence with respect to the compensation of no bargaining history, and the Union does not seek to represent the printshop employees. Although I find no Board decision directly in point, in Arts & Crafts Distributors , Inc., 132 NLRB 166, 168, the Board held that "In wholesale operations . [it] commonly finds units of warehousemen and drivers appropriate " See also Labatt Wholesale Grocery Company, 130 NLRB 228. It is true that in those cases there is nothing to indicate that the employer had a printshop , or if it did, the manner in which it functioned. But the cases relied upon by Respondents' are also distinguishable because the units in those cases were production and maintenance , which would seem broader in scope. Indeed, in most of the cases relied upon by Respondent, the Board made a specific finding that because of the nature of the work they performed, the printers involved were "production employees."68 In the instant case, because (1) the work of the printshop employees had little, if any, relation to the work of the warehouse employees ; (2) the printshop employees perform work calling for completely different skills than is required of the warehousemen and truckdrivers ; (3) are under separate and independent supervision ; and (4) have employment interests which are dissimilar to those of the warehousemen and truckdrivers , I find and conclude the printshop employees should be excluded from the unit. With respect to the truck mechanic , the evidence shows that he performs the usual duties incident to the maintenance and repair of the trucks. His work is performed in a separate building which serves as a repair shop, located some distance from the warehouse . There is no evidence that the mechanic does any truckdriving. It is "established Board practice ," in circumstances similar to those present in the instant case, to exclude service mechanics from units of warehousemen and truckdrivers, because "their interests are different from those of the drivers." (Archie's Motor Freight, Inc., 130 NLRB 1627, 1629.) To the same effect see Standard Trucking Company, 122 NLRB 761, 762; Frederickson Motor Express Corporation, 122 NLRB 32, 43. Accordingly, for the reasons stated, I find and conclude that all warehouse employees employed by Respondent at its Geneva, Alabama, warehouse , including truckdrivers, but excluding office clerical employees , printshop employees , truck mechanics , rack service employees, salesmen, guards, and supervisors as defined in the Act, constitute an appropriate unit for collective bargaining, within the meaning of Section 9(b) of the Act. b. Validity of the Union's demand As detailed above, the Union's October 1 demand upon the employer was by telephone, repeated by letter dated October 4, which was received and answered on October 5, claiming to represent and requesting recognition and bargaining for "your employees in the warehouse." In its answer , Respondent took the position the truckdrivers, except that they are salaried 67 Respondent cites Girton Manufacturing Company, Inc , 129 NLRB 656, Kentucky Rural Electric Cooperative Corporation, 127 NLRB 887, Litton Industries of Maryland, Incorporated, 125 NLRB 722, The Horn & Hardart Company, 147 NLRB 654, Foremost Dairies, Inc, 124 NLRB 293, Golden Belt Manufacturing Company, 108 NLRB 164 its I e , Girton Manufacturing, Inc, supra, Kentucky Rural Electric, supra, Horn & Hardart Company, supra BENSON WHOLESALE CO. that it was in doubt as to what employees would be included in the Union's unit demand, and that it had good- faith doubt that the Union represented an "uncoerced majority of our employees in an appropriate bargaining unit." When it wrote the aforementioned letter, Respondent did not have, and had not yet received, a copy of the representation petition which the Union had filed with the Regional Office on October 5, but no later than October 7, it did, as I have found,69 recei ve a copy thereof. In the petition , the unit claimed was described as "all warehouse employees including truckdrivers," which I have herein found to be an appropriate unit. Following receipt of said petition, there has been no communication between the parties, and the petition was withdrawn on January 12, 1966. On these facts Respondent argues that the Union has never requested, nor has it ever refused, to bargain in a unit of "all warehousemen including truckdrivers," as alleged in the complaint. I find this contention without merit. It is true, of course, that to impose a bargaining duty upon an employer, the Union's demand must "clearly define the unit for which recognition is sought." (The C. L. Bailey Grocery Company, 100 NLRB 576, 579.) But in matters of labor relations, as in many other matters, no special formula or form of words is required. The important question is does the employer understand that he is being asked to bargain and what employees he is to bargain for. It is also true that Respondent, quite reasonably, could have been in doubt as to just what employees the Union was referring to when it used the phrase "employees in the warehouse," in its letter of October 4. However, when it received the petition which the Union had filed, which I have found that it did receive no later than October 7, any ambiguity in the Union's prior demands would seem to have been dissolved. But even if some confusion remained in Respondent's mind, a simple inquiry of the Union on that point, which good faith would seem to require, would undoubtedly have clarified such confusion. See N.L.R.B. v. Waukesha Lime & Stone Company, Inc., 343 F.2d 504, 507 (C.A. 7). Instead Respondent chose to ignore the continuing recognition demands of the Union. A permissible inferenee70 from the facts-and the inference which I draw-is that the alleged defect or ambiguity in the Union' s bargaining demand was not the reason for Respondent's refusal to bargain,71 but rather that Respondent was determined to reject any bargaining demand the Union made regardless of the precision with which it may have been formulated and communicated. Respondent's October 5 letter to the Union, and its efforts to undermine and destroy the Union's majority as herein found, makes this abundantly clear. Accordingly, I find and conclude that on October 5 Respondent had received from the Union an appropriate demand for recognition and bargaining and that this "' See fn 6, supra 7° The Union's demands for recognition, by telephone and the subsequent letter of October 4, as clarified by the representation petition filed on October 5, I find to be a continuing demand, because there is no evidence to show that such demands were withdrawn or abandoned, at least not prior to January 12, 1966, when the Union withdrew its petition On the contrary, the evidence shows that such demand was being actively pursued See Burton-Dixie Corporation, 103 NLRB 880 71 Cf Inter-City Advertising Company of Greensboro, N C , Inc , 89 NLRB 1103, 1111, fn 19 551 imposed upon Respondent the legal duty to bargain, if in fact the Union had majority status, and Respondent had no good-faith doubt of that fact. c. The Union's majority status The evidence shows that when the Union made its telephonic demand on October 1, it had 27 signed authorization cards. On October 4, and before its demand letter of that date was sent, it received five additional authorization cards. There is no contention, nor does the evidence show, that any of these authorizations were obtained by improper representations, or that they were other than voluntary designations. I have heretofore found that the appropriate unit consists of warehousemen and truckdrivers, and that at the time of the demand, Respondent had in its employ in that unit 32 warehousemen and 11 truckdrivers, or a total unit complement of 43. The 32 authorizations which the Union had is, of course, a majority.72 Accordingly. I find and conclude that the Union was the duly designated majority representative when it made its bargaining demand upon Respondent. d. Alleged "Good Faith" doubt of the Union's majority Respondent's contention that it was justified in rejecting the Union's bargaining demands, and insisting that the Union established its majority in a Board-conducted election, is, on the facts of this case, plainly without merit. It is true that an employer faced with a union's recognition demand may insist upon a Board election as proof of its majority, if it has a reasonable basis for a good-faith doubt the Union in fact represents a majority. Hammond & Irving, Incorporated, 154 NLRB 1071. But it is equally true that an employer who refused such a demand because it rejects the principles of collective bargaining, and demands an election only to gain time within which to dissipate the Union's majority, thereby violates Section 8(a)(5) of the Act. Hammond & Irving, Incorporated, supra; Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. Upon consideration of the entire record, I am convinced and find that Respondent rejected the Union's bargaining demand, not because it had a "good faith" doubt as to the Union's majority, but because it was determined to undermine and destroy that majority, and sought the time in which to accomplish that purpose. As I have found, promptly after it received the Union's recognition demand, Respondent set upon a campaign of interrogation of employees to abandon their support of the Union; within the week it discharged Holland and Stewart, the two leading proponents of the Union, admittedly for their union activity, on the pretext that they were supervisors whom it did not want engaging in union activity, and within a month thereafter did the same with respect to McGowan, 7z Respondent does not seriously question the Union's numerical majority It contends rather that, as Holland, Stewart, and McGowan were employed in a supervisory capacity, arranged and were present at the union meeting of September 30, when 27 of the cards were signed, and that as Holland solicited and forwarded to the Union the 5 cards which it thereafter received, the Union's majority was, as a matter of law, coerced, relying upon cases such as Insular Chemical Corporation, 128 NLRB 93, Leas & McVttty, Incorporated, 155 NLRB 389 Having found that Holland, Stewart, and McGowan were not employed in a supervisory capacity, this contention must be, and is, rejected 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although it did not hesitate to ask McGowan to urge employees to abandon their union activity ; attempted to make employees "supervisors" for the purpose of taking them out of the unit and thus prevent their voting in an election , if one was held, all of which , as I have found, was unlawful under Section 8 (a)(1) and (3) of the Act. In an atmosphere of such unlawful conduct , it is idle to speak of good faith . Priced-Less Discount Foods, Inc., d/b/a Payless, 157 NLRB 1143.73 Accordingly, I find and conclude that by rejecting the Union's request for recognition , as set forth in its letter of October 5, Respondent violated Section 8(a)(5) and (1) of the Act. I also find and conclude that by unilaterally granting its employees wage increases , and by instituting the funeral leave policy, all as hereinabove found , without prior notice to or consultation with the Union which was then the duly designated collective -bargaining representative of its employees , Respondent also violated Section 8(a)(5) and (1) of the Act. Purity Food Stores, Inc., 150 NLRB 1523, 1528 , enforcement denied on other grounds 354 F.2d 926 (C.A. 1); N.L.R.B. v. Katz, 369 U.S. 736. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees employed by Benson Wholesale Company, Inc., at its Geneva, Alabama, warehouse, including truckdrivers, but excluding office clerical employees, printshop employees, truck mechanics, rack service employees, salesmen, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act. 4. At all times since October 5, the Union has been the duly designated collective-bargaining representative of the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. 5. By failing and refusing, on October 5, and at all times thereafter, to recognize and bargain with the Union as the collective-bargaining representative of the employees in the aforesaid unit, and by granting wage increases and instituting a funeral leave plan, after October 5, without notice to or consultation with the Union as the collective- bargaining representative of said employees, Respondent has engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 6. Neither Holland, Stewart, nor McGowan is a supervisor within the meaning of Section 2(11) of the Act. 7. By discharging Holland and Stewart on October 5, and McGowan on November 4, because of their concerted activities on behalf of the Union, Respondent discriminated against them in regard to their hire or tenure of employment, discouraging membership in the Union, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. " Respondent's contention that it was justified in refusing to bargain with the Union because it had a good-faith doubt as to the appropriateness of any unit requested by the Union, I reject as without merit The Board has long held and recently affirmed that 8. By the conduct set forth in section I, B, 1, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged in, and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 10. The General Counsel has failed to establish by a preponderance of the evidence that Respondent was discriminatorily motivated in the discharge of Elsie Cumi Vaughn, and that allegation of the complaint should be dismissed. THE REMEDY Having found that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and in view of the nature and extent of the unfair labor practices found herein to have been committed, which go to the very heart of the Act, it will be recommended that Respondent be required to cease and desist from in any manner infringing upon the exercise of such employee rights. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. Having also found that Respondent discriminatorily discharged Holland, Stewart, and McGowan, it will be recommended that it offer to each of them immediate, full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights, privileges, or working conditions, and make each of them whole for any loss of earnings suffered by reason of the discrimination against him, by paying to each a sum of money equal to the amount he would have earned from the date of the discrimination against him to the date when Respondent offers him reinstatement as aforesaid, less his net earnings during the period of such discrimination. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent be required to preserve and, upon request, make available to authorized agents of the Board, all records necessary or useful in computing the amount of backpay due each of the aforesaid employees. Having additionally found that on October 5, and at all times thereafter, Respondent unlawfully failed and refused to recognize and bargain with the Union as the collective-bargaining representative of the employees in the aforesaid appropriate unit, I shall also recommend that Respondent be required, upon request, to recognize and bargain with the Union as such representative, and if an understanding is reached, embody the same into a signed agreement. It may be appropriately stated, at this point, that even were I to conclude, as Respondent contends, but which contention I have rejected, that the Union never made an appropriate demand for bargaining, I would nonetheless recommend a bargaining order. For even if no violation of Section 8(a)(5) in a technical sense occurred, a good-faith but erroneous doubt as to appropriateness of the unit is not a defense to an otherwise meritorious charge of refusal to bargain See Owego Street Supermarkets, Inc., 159 NLRB 1735, 1742, and the cases there referred to BENSON WHOLESALE CO. 553 the record shows that the Union, when it made its bargaining demand on Respondent, represented an overwhelming majority of the employees in the unit; that immediately upon receipt of such demand, Respondent set upon an unlawful course of conduct designed to destroy that majority. This fact makes it amply clear that Respondent has completely rejected the collective- bargaining principle. Therefore, to prevent Respondent from reaping the benefits of its own unlawful conduct, and to effectuate the policies of the Act, it is necessary to restore as nearly as possible the situation which would have obtained but for Respondent's unfair labor practices. The Board and the courts agree that in such circumstances, to remedy the violations of Section 8(a)(1), if not of Section 8(a)(5) of the Act, an employer who engages in such unlawful conduct should be required to bargain with the Union, on request. D. H. Holmes Company, Ltd. v. N.L.R.B., 179 F.2d 876, 879 (C.A. 5); Piasecki Aircraft Corporation v. N.L.R.B., 280 F.2d 575, 591 (C.A. 3), cert. denied 364 U.S. 933; N.L.R.B. v. Delight Bakery Inc., 353 F.2d 344 (C.A. 6); Editorial "El Imparcial" Inc. v. N.L.R.B., 278 F.2d 184 (C.A. 1); N.L.R.B. v. Falstaff Distributing Co., 209 F.2d 265, 268 (C.A. 8); Lutst Truck Lines, 160 NLRB 530; Mock Road Super Duper, Inc., 156 NLRB 983. Cf. N.L.R.B. v. Flomatic Corporation, 347 F.2d 265 (C.A. 2). RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board order that Benson Wholesale Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees regarding their activities on behalf of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (b) Asking employees to report on the union activity of their fellow employees. (c) Threatening to discharge employees for talking about Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (d) Telling employees that credit reports were being drawn on them because of their concerted activity. (e) Soliciting employees to abandon their activities on behalf of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (f) Threatening to abandon plant expansion plans, or to withhold employee benefits, if its employees continue to support a labor organization , or promising benefits to any employee to withhold support from any labor organization. (g) Threatening to close down its operations if the employees select union representation. (h) Telling employees that the Union could not do them any good and can only lead to trouble for everybody. (i) Pretextuously designating employees as supervisors to prevent them from engaging in concerted or union activity. 6) Failing or refusing to bargain collectively with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of its employees in a unit composed of all its employees employed at its Geneva, Alabama, warehouse, including truckdrivers, but excluding office clerical employees, printshop employees, truck mechanics, rack service employees, salesmen, guards, and supervisors as defined in the aforesaid Act, as amended. (k) Discouraging membership in Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization of its employees, by discriminatorily discharging, or in any other manner discriminating against , any employee in regard to his hire, tenure, or other term or condition of employment. (1) Changing the wages, hours, or working conditions of its employees in the aforementioned unit, without first bargaining with Retail, Wholesale and Department Store Union, AFL-CIO, as the collective-bargaining representative of the employees in said unit. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action found necessary and designed to effectuate the policies of the aforesaid Act: (a) Upon request, recognize and bargain collectively with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the aforesaid unit 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 into a signed contract. (b) Offer to Leon Holland, Jr., Robert J. Stewart, and William J. McGowan, severally, immediate, full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, and make each whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (c) Notify Leon Holland, Jr., Robert J. Stewart, and William J. McGowan, severally, if 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 and the Universal Military Training and Service Act, as amended. (d) Preserve and, upon request, make available to authorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay due, as herein provided. (e) Post at its warehouse in Geneva, Alabama, copies of the attached notice marked "Appendix." 74 Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by its authorized 74 In the event that this Recommended Order is adopted by the a decree of a United States Court of Appeals, the words "a Decree Board, the words "a Decision and Order" shall be substituted for of the United States Court of Appeals Enforcing an Order" shall the words "the Recommended Order of a Trial Examiner" in the be substituted for the words "a Decision and Order " notice In the further event that the Board's Order is enforced by 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.75 It is further recommended that the complaint herein, to the extent that it alleges that Elsie Cumi Vaughn was dis- criminatorily discharged, be, and the same is, dismissed. 79 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps 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 coercively interrogate you regarding your activities on behalf of Retail , Wholesale and Department Store Union , AFL-CIO , or any other union. WE WILL NOT ask you to report to us on the union activity of your fellow employees ; solicit you to abandon your support of any union ; draw credit reports on you because of your support of any union; or threaten to discharge you because of your assistance to or support of any union. WE WILL NOT threaten to close down our warehouse, or threaten to abandon plans to expand the same, because you decide to select a union to represent you. WE WILL NOT tell you that a union can do you no good , and can only lead to trouble for everybody. WE WILL NOT threaten to withhold benefits from you because you assist or support a union , or promise you benefits to withhold assistance or support from any union. WE WILL NOT pretextuously designate any employee as a supervisor to prevent or discourage said employee from supporting or assisting any union WE WILL NOT discharge or otherwise discriminate against any employee because of his membership in or support of any union. WE WILL NOT make changes in your wages, hours, or working conditions without first bargaining with Retail, Wholesale and Department Store Union, AFL-CIO, as your collective -bargaining representative. WE WILL NOT in any other manner interfere with, restrain , or coerce you in the exercise of the right to self-organization , to form labor organizations , to join or assist Retail, Wholesale and Department Store Union , AFL-CIO, or any other labor organization, to bargain collectively through representatives of your own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. WE WILL, on request , recognize and bargain with Retail , Wholesale and Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of our employees in a unit composed of all employees at our Geneva, Alabama, warehouse, including truckdrivers , but excluding office clerical employees , printshop employees , truck mechanics, rack service employees , salesmen, guards, and supervisors as defined in the aforesaid Act, regarding their rates of pay, wages , hours of employment, and other terms and conditions of employment , and if an understanding is reached embody the same into a signed contract. WE WILL offer Leon Holland, Jr., Robert J. Stewart, and William J. McGowan, severally, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges , or working conditions , and make each of them whole for any loss of pay suffered by reason of the discrimination practiced against him , as provided in the Trial Examiner's Decision. All our employees are free to become or remain, or refrain from becoming or remaining , members of the above-named or any other labor organization. BENSON WHOLESALE COMPANY, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Leon Holland, Jr., Robert J. Stewart, and William J. McGowan, if 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 and the Universal Military Training and Service Act, as amended, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391.