Jobbers' Supply Inc.

DE(CISI()NS OF NATIONAL I.ABOR RELATIONS BOARD Johlhers' Supply Inc. and Associated Trade & Crafts National linion. ( ases 8 CA 10793 and 8 R( t)745 M\1a 16, 1978 L)t :(ISION ANI) ORI)ER B, Mt , I/} RS P Nlll (1, Mi RI'I) ANI) TRISI)AI I ()n Novemli(-, 22. 1977. Administrative L as Judge .lohn [. ( oibhile issued tile attached I)ecision I1, ihii; prllctcingl. 'dIhereafter, Respondent filed ex- cL'l"tiorls and a suppolt ting brief, and General ('ouln- sel tiled a hlit in sulpport of the Administrative l.aws Judgie's I l)cision. Pursial lln tho the provisions of Section 3(b) of the Na;,lioll I;h,,-r RlIcltions nAct, a an lended, the Na- tioni;l I ahi Relations Board has delegated its au- thoirlts in ;hil, procceding to a three-lnemriber panel. lIlhc Boilrd hats considered the record and the at- ltichid I)eclslon i: light of the exceptions and bricfs and has, decided to affirm the rulings. findings, 2 and conclusions of the Administrative l.aw Judlge as nliodtlitfed tielow,. atdl to adopt his i2onlmlleCded O()r- der, as aliso tliiifcfled, As set folth 'lls in his D)ecision, the Administra- lc Ive a .a ludi found that Mlichael Damniano and 'RK ,l\I, Jt I -ll ,1 cIJ h1a1 r11~ ,1t Ik;lh dcptrl-xlcd 1f il Ilil li le ariti i hi thc i l i.l il1 l 1J"''` 'xT>- tilltl] the ] [Ccdlii ll .- llciSrl llltl[ \ti. [oi CXlIIllll IICt Ih . I.I- 1TC II!' O t iiJJ L!e thail. Illt"~,%c. 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We hac tLarchuil, q x ilsllt d tlh rc.'r, ] Hid 11J%~t I[!o hiat'j for rc',crsinil, hi findin)g4 L)onald Dixon had been discriminatorily discharged on December 18, 1976, in violation of Section 8(a)(3) of the Act, and recommended that they be reinstated *with full backpav. that the challenges to their ballots be overruled, and that their ballots be opened and counted. We agree with these findings and recom- mendations. The Administrative Law Judge also found that David Hershey and James Sass were discriminatorily discharged on December 18, 1976, in violation of Section 8(a)(3). He further found, however, that Her- shey and Sass would have been lawfully selected for termination in an economic reduction in force at some undetermined future date. In these circum- stances, the Administrative Law Judge recom- mended that Respondent be directed to reimburse them for lost wages from the date of their discrimina- tory discharge to the time when they would have been lawfully laid off (a matter which he deferred to the compliance stage of this proceeding). The Ad- ministrative Law Judge also deferred to compliance the matter of determining Hershey's and Sass' eligi- hility to vote in the election, namely, whether these employees would have been employed or, if on layoff status. 4would have had a reasonable expectation of recall on February II11, 1977, the date of the election. however, because the tally of ballots was 10 for and 11 against the Union, with 4 challenged ballots, the Administrative Law Judge further recommended that if Damiano and Dixon voted for the Union (the tally of ballots would then be 12 for and 11 against the Union, with 2 challenged ballots) the ballots of Htershey and Sass should be opened to ascertain if their votes remain determinative.3 In sum, if fellow discriminatees Damiano and Dixon voted for the Union and Hershey and Sass also voted for the It nion, hershey's and Sass' votes would no longer be determinative and the Union could be certified with- out awaiting the final determination of Hershey's and Sass' eligibility. On the other hand, if either or both Hershey and Sass voted against the Union, the Administrative Law Judge recommended that the counting of their ballots, and the issuing of the ap- propriate certification, be held in abeyance pending the determination of their eligibility. We disagree with the Administrative Law Judge's disposition of Hershey's and Sass' ballots. It is the Board's well-established policy that, where the record demonstrates that a laid-off employee has a reason- able expectation of recall on the date of the election, such employee is eligible to vote. D. H. Farms Co., 206 NLRB 111 (1973). In the instant case, we find that the record clearly demonstrates that, even if InI suppor illf this recommendation, the Administrative Law Judge cited l,iclrerr:i, ,lal l dani ' G(arnenlli t4 'orAers' Union, 137 NLRB 1681 (1962) 236 Ni RB No. 1 112 JOBBERS' SUfPPLY INC' Hershey and Sass had been legitimatel laid off Inll the date of the election. thex still would have retained a reasonable expectation t(f recall.4 Ior example. on February 11. 1977. the date of the election. Respondent's new inv entory control svstem had onl, recently become operational. and for some time thereafter the new svstem caused straill ns o Respondent's operations and required arious ald- justments. In addition. in February 1977. Resp on- dent changed one of its major product lines. a project which required substantial overtime: and it ,,as notl until sometime in JaInuar\ 1977 that Respondent canceled its plans to expand the Youngsto wn facilitx. Based on these factors and the record as a whole. w\e find that Respondent's operations were in a state lof flux which precluded anx final determination as to its future personnel needs and that Respondent could not have known that it could have permianentl\ dis- pensed with Hershex's and Sass' services hb the dlate of the election. Accordingly. we find that. cx en if Hershey and Sass had been legitimatel? laid off on the date of the election. the' would have retained at least a reasonable expectation of recall. I herefore,. under any circumstances. they were eligible to otile in the election. D. 11. 1irm.s ( Co.. s.'qpra: Ilnrcnom- tnentalt! Manuf/icmultrin (Comp/na'. lIncolporati.d, 192 NLRB 590 (1971); and ;¥orfiml. 1nc.. 173 NI RB 1153 (1968). Accordingl. we direct the Regional I)i- rector to open and count Hershev's and Sass' ballots along with those of Damiano and Dixon and. thcie- after, to issue the appropriate certification. OR I) F.R Pursuant to Section 10(c) of the National 1 .ibot Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommendcd Order of the Administrative l.aw Judge. as modified below, and hereby orders that the Respondent. Job- bers' Supply Inc.. Youngstoln, Ohio. its officers. agents. successors, and assigns. shlall take the action set forth in the said recommended Order. as so modi- fied: Substitute the following for the last paragcrapl of the Administrative Law Judge's recommended Or- der. "It IS FliRHY I RI IIIR )RI)l RItD) that CIase 8 R( 10745 be. and it herehb is. remanded to the Regional 4 [he Adninlstratle I .a Judge fliun Id that licrleshc and Slr,, "u li I ha.e heen selected folr tcrrllnllli lln " hcr.llce oif thell: c tlrril l r.i lclrlr l t1ill h.ack Sinc e RespOndmlli ha OfIItCrd tl.l -calrn other thlial the. rll:l. reduction fr dihpenmilv uitih ii .rh-i l'.iand Sasl' eriicc.,, ,e fi thdi i Hershe' arid SlS HIuIIId 1l1 .C hce1I lid Off 10 I eIrllrillItCII hca.llis Ii hC ewn oneil, redtlucllon D)irector for Region 8 Ior the puli rpo se1 opcill ad countinL thile ballots oft Michae1l l)am.lino. l)Dn.:ld I)ixon. D; id ilcrshc . alld , iiJames Sass. . ,Ilill t . IC- sised talk of ballots,. and thereaitel Is Ul thlie Lip- propriate certification. I)1 ( lSI(N SlXi \ I , NI () Iti C ss JoHIN I ('(IRBIH 5. Ad.litiilstr,1tiite l.sa' JudIe.: A heai it `,as held in this case on June I. 2 Aind 3. 1977. at Youngs- tlu,n O()hio. pursuant to: i chirge filed hx Associated I rade & ('rafts Nationa l U nion, hereinafter referred it, a, the I nimon or the ( lhrigil Part,. on I ebruar,, It , 1 -977 a;nd ser ed on Respondent hb registered mail on the same date: on i comlplainll nd notice otf hearing lsse li hb the Regioniial Iirector for Reugion 8 of the Naitional l.abor Re- latlionS Botrlid on \alch 25. 1977. Ahicih :'ai theleLitfti du'iS serCeld on Respondent tind an order consoihd ithnl cases and notice of hearing on challengedt bhllots issued h, the Regionali Director on April 29, 1977, which I as also3 dul! ser ed on Respondent. Ihe coniplaint tilese, thit Re- sponlcnt violated Section X(a )( ) and (3) of the Nattroni l.abor Relations Act, as anmended, hb dischargineg Mllchiei I)aillnilno. James Sass. I)onAld Dixon. and I)a id itershe,. on l)ccmenber 18, 1976. andl that Respondent has furthier violated Section 8(a)( I) of the Act hb coin e inl the i m11- pi-essioi of survellance. and b-, making implicit iti eplicllt threats of discharge to its emplovees on vrioaus O'CCasinils during the sreek of I)ecember 13. 197h. In its ans er. hich -ias also d, lul filed. and l;iter amended on the record at the hearinig. Respondent his denied the cornmiision of ;1ln Iinfaiir labor practices. At the hearing all par ties ;cre represcillcd hb ctl,1cl.1i I'he p;r ties A ere gi en full opportunits to examine and cross -e\xaill e itlnesses, ti mtr ,duce es ideLnce. and tIo file briefs. I he parties \iaiv ed oral arguumlient at the conciusion of the hearing. Briefs hai e subsequently been filed hb the General ( oulnsel i ld Respondent and have been cn sid- ered. ipon the entire record 2 11 this case. inchuding the briefs. and from m, ohbser, antion of the wineses I mike the fol- lo%% ing: 5 115 4(1 .irr I ir I h i 11 , en , I I'), repie\erntcd Ill ( h\ir. , i,. i'. 'raic· " ,rit.I,. 1 cinllt i()I *riher' 71 9'7, i mr,,c,,hiedh. p-edii,, ,rIn Iref hr A9 0WI i rod t11 . 1 Ih tine pio r *n r d t I r ( 11 neI, I I 5 ,,7;no.. In.- Iq jr.. ip,-t rhor dor hoie I h. ", I is.i- iii' yrepor flns io.no i ele oo.I 1 0noihii .. i1, inino p an" h nor ri.-r dii~,, n no,. i- arc .onr ainired inl I, ( Is rI' i r o o,. I' V I usll I ii'7 aI thr "i or ,iiu i n IC., r- uii rizcd, I,, nOi p,r -j no nf. o eii I. ir III f a,, I a... 1. r It) J ii ~ i o n- nil r..'.d Inl the C~Or i r' f.~ t, d P rW tl tio ,I JIrrh ria er,h ,ld~ .1 -i o, oWI hi l hl'~ro~irr rn .i n it rFroren Irl Il, C0ri i f J r , \ I I I sriI ~ h r I 113 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD FINDINGS OF FACT I Ihi BUSINESS OF RISPO()NDIEN Respondent is now,. and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio. At all times matcrial herein, Respondent has maintained a facility in Youngs- town, Ohio, the only location immediately involved herein. where it is engaged in the wholesale warehousing and dis- tribution of automotive parts. Annually. in the course and conduct of its business oper- ations, Respondent ships goods valued in excess of $50.()(0 from its facility at Youngstown, Ohio, directly to points located outside the State of Ohio. Respondent is now. and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I. I HE I ABOR OR(iANIZATION IN\OI.VED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111 111 ALL.GE(iL) UNFAIR LABOR PRA( II('1S A. Respondents Relevant Hierarchy At all times material herein, the following named indi- viduals have occupied the positions following their re- spective names and have been, and are now, agents of Re- spondent, acting in its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Ed Graves, presi- dent; Al Martin, manager of Respondent's Youngstown facility: and F:rank Spletzer, warehouse supervisor. B. Background and Sequence of Events Respondent and Pennsylvania Rubber & Supply Co. (the latter hereinafter sometimes referred to as the Pennsy stores) are wholly owned subsidiaries of Curtis Noll Corpo- ration. Respondent has several warehouse locations but the only ones which concern us here are the ones immediately involved at Youngstown, Ohio, and another at Cleveland, Ohio. Respondent distributes automotive parts and supplies to Pennsy stores, which retail them to the public, and Respon- dent likewise distributes to independent retailers. Over a period of time discrepancies had been noted be- tween book inventory and actual inventory' at the Pennsy stores as well as difficulties with excessive inventories at some of them. Inventory losses for the Pennsy stores had been running a quarter of a million dollars per year. In view of these problems, Richmond Louche, then di- rector of materials management for Curtis Noll Corpora- tion, was requested by Curtis Noll management to study the matter. Louche began this assignment about June or July 1976 and, after analyzing the difficulty, he developed a scheme of inventory control called the New Replenish- ment System (NRS). The essential element of NRS was that, upon implemen- tation of that system, inventory reorders could be made only upon proof of inventory depletion, i.e., invoices for goods sold had to be presented to the supplier (a Respon- dent warehouse) from the Pennsy store. If the store sold a nonstocked item, that item would be furnished to the store by the warehouse also upon presentation of the sales slip. Any requested increase in the existing inventory of a Penn- sy store had to be specifically justified by the store manag- er on the basis of a sales forecast. This system replaced a more or less free system of inventory stocking by the Penn- sy store managers. The new system was first employed on a trial basis at a Pennsy store near Cleveland which was very close to a Respondent warehouse. When the system proved to be practical it was expanded to other Pennsy stores in Cleve- land and in Columbus, Ohio. It was the intention of Curtis Noll management also to expand NRS to include Youngstown, but only after certain impediments were removed. These impediments derived from the fact that nine Pennsy stores were supplied by both the C'leveland warehouse of Respondent and Respondent's warehouse at Youngstown, here directly involved. Were this dual supply arrangement for these nine stores to con- tinue after implementation of NRS, the simple NRS con- trols would become complicated if not impaired. The dual supply system had a further difficulty uncovered at this time which had to do with the truck routes of the Cleve- land warehouse. Under the routes in effect in the fall of 1976, trucks running to at least one location "dead head- ed" (went empty) in one direction. Taking the truck routes into consideration and the size of the Pennsy stores to be served, Curtis Noll management decided to assign the five larger 3 of the nine stores to be serviced by Respondent's Cleveland warehouse on a 100 percent basis and the remaining four to be serviced by, Re- spondent's Youngstown warehouse on a 100-percent basis. Exceptions to this rule. however, wvere expected to, and have, occurred in the case of emergency orders from the Pennsy stores. Meetings were held in October 1976 attended, inter alia, by Louche, and by Respondent's Cleveland warehouse manager and its Youngstown manager, Al Martin, to ex- plain the proposed changes. At one of these meetings in October, Louche told Martin that Martin should consider the reduction of Respondent's Youngstown warehouse staff because, Louche expected, Respondent's Youngstown warehouse would lose business as the result of the new arrangements. No action was taken, however, by Martin at that time in respect to actually reducing the work force. On or about November 18, 1976, Louche came to the Youngstown warehouse and, in the company of Respon- dent's president. Graves, and Martin along with two cleri- cal employees of the Youngstown warehouse, the new sys- tem was installed. In November the four Pennsy stores previously serviced by both Youngstown and Cleveland were taken away from Cleveland (and assigned to Youngs- 'he Youngstown warehouse is onls one-sixth as large at the Cleveland warehouse. Hience, the larger Pennss stores were selected for service from ('le eland 114 JOBBERS' SUPPLY INC. town for 100-percent service) and in late November and December 1976 a schedule was set up for the five remaining and larger stores (previously serviced by both Youngstown and Cleveland) io be assigned fulls to Respondent's Cleve- land warehouse. The last such store, the Pennsv store at E. Liverpool, Ohio. was scheduled for reassignment from Youngstown to Cleveland on December 25, 1976. The Pennsy store at Warren, Ohio, was scheduled for reassign- ment after December 18, 1976. There was one other important management change in the latter half of 1976 which affected the amount of work performed by the Youngstown warehouse staff. This was a change in the method of preparing sales invoices. In early 1976 all invoices for sales by Respondent to Penns) stores were completed by hand by a so-called pricer (the pricer at Youngstown, Donald Dixon, is one of the alleged discrimi- natees herein), who entered the stock number of each item sold, the unit price. and the number of items sold and then extended the total amount of the sale (by multiplying the number of items sold by the unit price). This was quite a chore, inasmuch as Respondent sells some 40,000 items. Beginning in the latter half of 1976 the extension function was taken over by computer, By October 1976 the job of entering the unit price was likewise taken over by a com- puter. These operational improvements, predictably, re- duced the amount of work a Respondent pricer had to perform on sales invoices for Pennsy stores. In late October, against the background of these changes in Respondent's workload at its Youngstown location. em- ployee Michael Damiano (another alleged discriminatee herein) asked Youngstown Warehouse Manager Martin whether there would be any layoffs. Martin stated that he doubted it because there was enough work to keep them busy for a long time.' Martin specifically referred to the (then) planned expansion of the Youngstown warehouse as the basis for his favorable prediction. Martin also spoke to then full-time pricer Dixon at about this time, i.e., October. and told Dixon that, in the future. Dixon could make up a full workweek by perform- ing other tasks in addition to pricing. Martin told Dixon that Dixon could work on the counter, continue Dixon's catalogue work (for which Dixon had little time previously) and perform other jobs "that are needed." " On or about November 18, 1976, Respondent's presi- dent, Graves. visited Respondent's Youngstown location where he spoke privately with Damiano. Damiano asked Graves for a raise. Graves said he had a problem with Damiano's attitude and attendance. (Damiano was then a part-time college student) and that Graves would not do anything for Damiano until Damiano's attitude improved. Graves told Damiano that, if it did, Graves would review the situation again in 30 days. Graves also told Damiano at this time that there were plans for remodeling the Youngs- town facility. Graves thereupon called in Martin and re- peated what he had just told Damiano.? In November and December Martin discussed a reduc- D)amian o credibly sio estified 'ilhiout dispute ' Martin so admitted. 6 Martin so admilled (trax es and t)arlniino hbolh s r testified tion of personnel with Graves and with Martin's subordi- nate. Spletzer, but no action was taken. A.s of earls December 1976. the employees of Respon- dent's Cleveland warehouse were represented by a union but the employees of the Youngstown location were unor- gan ized. On or about December 10 or 11. 1976, Damiano heard from a Cleveland location driver that the Cleveland em- ployees had a union. Thereafter, he and employee Kukura spoke to Martin and asked Martin if, indeed, the Cleveland employees had a union. Martin admitted that they did. I)amiano and Kukura asked Martin why the Youngstown employees did not have a union or could not have one. Thex also inquired whether a union would cause employ- ets to do their jobs better. Martin responded he would rather deal directly with the employees than go through a third person. The conversation ended with Kukura being left with the impression that the employees could have a union if they wanted one.' On December 11. 1976. Damiano got the name of the Uinion out of the yellow pages of the telephone book and called it. He spoke with Al Meranto, the Union's business manager. who made an appointment with Damiano for later that day. When Damiano met with Meranto, Meranto explained how the employees could obtain union represen- tation. Damiano was interested and an employee meeting was set up for the following Wednesday at the Union's office. On the evening of December 1i and during the next da, Damiano contacted Damiano's fellow employees and informed them of the Wednesday meeting. On December 13. 1976. Martin spoke to Damiano at work and stated that Martin would advise Graves about the discussion Damiano. Kukura. and Martin had on De- cember I 1.9 Consistent with the celerity Martin exercised in seeking to inform Graves of the Union's later demand for recognition, which will appear, I conclude that Martin, promptly on December 13. 1976, told Graves about the discussion Martin had with Kukura and Damiano on De- cember 11.'I ()n the evening of December 16. 1976, a Wednesday. the meeting of Respondent's employees was held. as sched- uled. at the Union's office. Ten employees attended as well as M\eranto. the Union's representative. All 10 employees signed authorization cards. These included Damiano, and employees Donald Dixon. James Sass, and David Hershey. Meranto also gave Damiano some 15 blank cards for Re- spondent's other employees to sign. On December 16. 1976. the next day. Damiano success- fullx solicited signatures on 11 more authorization cards. I hcrse findilngs are haied ,it a composite of the testtlllr , of Kuktil.. Marlin , ind I)aln il.no uhich does not essentialli disagree extept .is Lo dile .t1an i icknio.ledged aJ first that the rmeetlnt uccurred in i t, e Uo,ecniher or cark DeLuelther anid later he .sad late N,.u enlher lie al>s. ' aid lls recolleC- t1n '.s 1, IIt definte I corclude It ,iis t)ecember 10 or II bhaed on ih..a follts Kukural estified it Aas I)eieniher 10 and Damlano, s.d D)etelnhel 1I (i;l.ise .idnlllted that ,II olle point lMartin spoke to him ahoutia conter .iilI) Startiln h.ild Siih ).inlll.t,,a oni Decembe r I I in uhith Dnmiani, asked bhul haltlne . union alt Ni'ungtos n .,so Damianno contacled the t nion 'n I)cet.lmber 1I, as ill .appear r.a ani a in he sould loglialkl hase taken after talkin abouiit the It ioln siih Slirtin ' t).Dai)n.llo Credlhl sor tes tified .ld \lrtiln did nol sper ifi.call den\ I (;.l .e adiiltted heinte so inifrn ied hiut he ias unsure of the date Mir 1ll ed . O i L nf l rall.ollll i t i ll] 115 I)1 ( ISI() NS ()F NA II ()NAl. [.,ABOR REL-ATIONS BOARI) ()Ic Onf lhLt Idthl. itd11I, Sl(licito d b, 1)r, [ nun.l was Supers is- or I tn k SplelCei, wsho signed the laSt authorization carid obtained for th e l linon. WX hen , l)a;.iDirlto approached Spletzer. [)amiano was ac- conria ndie t b I [)orald Dixon iand Adele Wesolowssk. Whecn the cmlplohLcsc, wesre speakilig to Spletzer, l)ixon said he felt that Respondent w as unfair. Dixon opined that. if the elnploees h;ad t unioln, thei could use it as a wedge iaialinst Respondent. Dixon told Spletzer that he. I)ixon had ikewise siiciid a card. l)amianlo told Speltzer that a uit 1 1I cotuld Ietl tIl elmploeesS more money which seened to evkoke a fa\uorahle response from Spletzer ait the timnle.1 l Iater thai t dax I)amiliano went to the restroom at the Youngstown warehouse where an acrimonious discussion between him and Martin ensued. The discussion included, intcr alia, the following dialogue. Martin asked Damiano if l)atianilo liked his loh. D)amiiano said that he did but that lie did not think Respondent was fair. Martin then suggest- ed to l)ailiiar that al)amialno should quit. Damiano re- fuLse d. M iar-tin wenlt oli that Responldent was going to work solittlitr out 1fo tile employ ees and if I)amiano didn't like it. Damiano could "get the out of here." Martin again suggested to l)amiano that Damiano quit but Dami- ano declined. Martin continued that Martin had seen Da- miano huddling with other employees all day and that Martin did not sanl t Damiano to do that again. Martin asked D)amiano rhetorically if Damiano was the "grie- vancemnan" in the shop and "who the hell" Damiano thought he was. I'he conversation continued in the hallway where Martin repeated his suggestion that Damiano quit, hut Da nllano again declined. 12 Also duriing thait dai Spletzer and eniploy ees ltershe? andl Sass discussed thie IUnion. Sass and ltershey both told SpleI/er thliat the, flavored the I:nion. had signed union 1 I[Il .11 1 11 1 C I 2dlllb i :tC i l ull t e ;,,] i CHId c 0lll Ib ai\kC l tllllk)llXN ,i Ii) lXlidlllm l I ,. )\1 n it, p1s 13ali[\ ti ll lhlolaltcdl hb Speleiir IIn the c\clii ai i i .1 1 C , l, \ :it-tdl t1 [ cp ott i tcid Itl, ie d i \1 t Ce , i h t l lt i I l 1 1 1 1 1 tlll l *. h ll e [ c.l ' tlw i tisill f iil t i riit t ll, .lc l tl ut i hi te h 1llll a \i .til C1I' llillw< d i), ... 1 fu1e1 (A t14[ ( 'I II ' ~. , flCh ( hln dIu 111u d Ill, thl. \ ICU, %)lr ls- ;"t"' I ' lj', th cdL ii ll t1 Mi t1 Cit.il d, [)ii.ll. anit di d i o1 t ia\ t n\kii ii . ll, t i l ; id J I [] lzCI S dcti I1lc 1 )lllied Datlll Ia askcd 111111 If liC a , llitc d Ill ;I :t t Ct]*m catd t ultIlel CIt'1 t010lgh Spitelel 211lPlCd a[ Htllo Cculr , x10h]Ch ;1, I ih a',c h.,t,,it , 1hc dtldl W11 D)ccl-lber 1]6. le denied kil lilg prior [,I Dec lihoi I[ x1 t LI, iIcklC 110l tlEt[/~ t~ starit 1 t lllOll T1 I the YolullngIlo.ll sA ilkICllc*C I It1',1 S hiNplct/ct's dtithw/l/1a n al :,ad1 I Ih/J the [ollo,11g Ahlt)ll'hl di1,1 1)ai1111111l 111 ihlt 1I V 11Clll l \] til ;laids igllcd i 1:t tile ialcilou sC %'VcIc Clu on, I)Dece,,1-, lb 1,, 11:c LX I h uave [1.Il Sro n lct l slgllcd. [? I henC lld IID,- .,ilk bal ed itl the crcklibl c tcr ll>llon, of D)alrmnlll- a. s -hl> i[da(Cd 1, , *¥lurtm and b ei n I'do'es Dixon and IlchqlVx '11*. ~Icllhc trd 1I1l,1I11clth [ thle coufronltation, Wlilc Maluill tdld a ditfce ti l l "[,( if Ald[tt i,;iplc])ecd, c[1phasl/ JL tiu - 1hpr(t of the di1,-ussoIS, delz i i1! .ith t"ipwp lcd " dC illerewso, SV1,1 NlL.h til had been o xoiilln ,II thiriil tid 1I 11 I td: 1t, iii-, tttc i tN rl tit l whi ii itc, iiitiiiii ch ).iaallllli ICstllici itiih J h11 1 .l tICedilcL. M 1artil AimllS Cd ttii hSe sklcd I)hlllllt It? slt"[ '\ h]it, \l rtii denll ied telill 2 J)ailliain tha[ 'laT'tiull 'a x a .;llC ttlhlt D);illlin i -;-\ k .ivi,, I.%!, tlhe [l1liTl, j)Dltjliallol di(i nli)t tCtif\ 111th M; t11111 ,:\hctl s ,[ leeIlhtlcd Ifec I;' i-ll . Ictnce I dii 110l findl tIhil NM iultilu aceLikC )a lkll(;tl l 1'1, l ',lOt 11 diCuLlMillg the tI 110R "1t]I ili's 1;vo lkCls authorization cards and had attended a union meeting. Spletzer said that if the employees did not watch what the) said and did and if Respondent found out the "shit would hit the fan" and that the) would be "on the outside looking in." Spletzer also said that there would be changes at the warehouse if a union got in." On that same day, December 16. about II a.m., Dami- ano was summoned by Martin to the telephone to talk to (nrav es. Graves told Damiano several times "to hold off" and not to do anything because "we" are coming down and would get everybody together to look at everyone's wages and there would be substantial raises after the first of the year. Damiano requested Graves to be fair. Dami- ano also briefly mentioned to Graves the Union at Cleve- land, which caused Graves to remark that the Cleveland employees were "no better off than you." Graves further commented that Damiano had more brains than a person onlI qualified for warehouse work, and that this wasn't the kind of job for Damiano. Graves suggested that Damiano should go back to school or get a different job. Damiano did not agree to this so Graves repeated his request for Damiano to wait until Graves came down ' 4 Sometime around noon of December 17, 1976, Meranto, the Union's business agent. accompanied by Fred Noday. I .1 cc f,iti , t ail . uidte d o the buis o.f Ihc crediblie tetimons of tier- ihc n, ll oratd ,it1 crtain iddtirn details hd\ dSats. I do, not credit Splet/ci,' den tal that t}tis di.tussiiin occurred itcrshes i found ti be a vert iiili.fi hiitIiC s i ell It) ti e pol int of readi itlt aliltitin g certain Aeaknesses 1l ils oitk ecltd on cros-exauiIlinolllI t ;. ia Ot a, flavorabhls impressed ,lii S.sh i, a matllet I shall commlnlen t n htcer, hut I flund Sass generalls I t0[e crcdhlc than Spletrer tI hiae alread, indicated mn opinion of Splct/il'l chiclitih lht imlich lershu', testified nitht iHershe> kitei Splclici had aircuId signed, . card an c.entii hih too.k place a31 ntoin on t)ccniibhc I ;Ii d ..,ic Sats u, tit , prcctl l ii th cifternni n oln ) ecem- hit 17 I . I cnlude that the Inst ;nt diLuSn it ailmoing Spletzer, Hershes, and Sh -c Lricd on ihle ifrci .iti ,f )Decenmber 16. 1976. Sp i'c l, I tcItltd lic , iCd "tile iuside lioklig ii" ex prcslion ti, iarr inliI i ccs [,, i t t, ioik. I hi, ia, ,i part tItI!horatCd hbs iiershe. tinot- hi:cr, I 1id t hi t , i, thin ih i illll C.. bah ed the cont ixl i, i u hi.h It oc curr ed, the c r,,pr,i ,ln , used tol descrihe Spletzer's prediction ofnI management's I tO i o n i, ti e e llpl o\ te if tiles h e arilc unin ized ' I hIcc findilng, ,ic based In the crediblie icsltiot ln iof I)amlanoi in this Ici. d .1 noll peclifically denied hb (;r;ae.s e r ics testified. in conclusion- ali ft ilon l in hai tihe photii tclineratiinn ias a reha h of the contersatlln tic hld iltih Dal). niai t In Noemnber 58. \l a[in olnIctId ltl i nce tt Daiano's testimroni ahll Martin calling [)ami- aI/ ti ilie phoinie ,ut this oilccaioiil a ,s coirrcct While (;rach, sitd he spoke i, I)anlliiol I tlc phone hetwccn DI)cniher It0 and 13. (raiet gae ni icaihi, i foe l hit hetccllton o thnse date, On tic other h and Damialon, ulti- aiiie iclhon nit the datle. which I credit and shall dilcuss more fullt below. til, hIgfalls into the tequence of eveint. ie. after [);lniano' cnnfrontation iith ;Marti in it hich Miartin had harped ,ni the imie themes suhbsequentl adriied c o ' hi (tirat, thai Respondenr v.ih trying ti ork somelhing iou for the eniplo ees and that D)miano. in ant eCeil. should get another joh i hc date o, thes consersrtion is based on Da miano's rebhuttal testimon tic hald e;arher tesified. il ans er to leading quersti ns I.I the (General ( nlllti tihal t the call tccurred on t)December 17 On rehuttal )amianio aid Ih lrsdai I)tzectmber 16. further. is uill he seen. it does not appear that (;;i\c,t culd he reached hb phoine on December 17 at least at noontime. Respondent ;Ittacks [)aniano's credibilitv i n the hais if this confusion I/n ntiei I reject that attack. Again Martin nitiirlled D)amiano's verilon that Martiii suimmoned D)amiano to the phline and (ira,e, did not deni uihat u;a said. nd indeed it makes little differencet uhether the conversation occtrred onl Iecember 17 (insteadiJ o December 16) If it did iccur oni I)ccellher 17 lilld in, contradicl in bhetlween )ami an,s trl imeonI that he u.a i, tl ,i arnll's phone for sOinie i iilnutes after t I a.m and Meratni)'s itl iiiion. i i he disctlssed thiat Mcranto ca me ii Martin's office ahbout It i3( a 1d t1it one i; there. F or NMeranto lts admlttedIl uncertatn as to tile p iese titie oi dtti I I( JOBBERS' SUPP1.Y INC. the vice president of another union, went to Martin's office at Respondent's Youngstown facility. Bv this time NMeran- to had in his possession 21 authorization cards, whereas the entire complement of the warehouse, including supervisors, was then 31. (Martin testified there were at the time 26 employees excluding office employees and supervisors, hence-not counting Spletzer's card the Union had a card majority of 20 in a unit of 26.) Meranto asked to speak to Martin. He waited for some 20 minutes after which he spoke to Martin in Martin's of- fice. Meranto told Martin that he had a majority of the Youngstown employees signed and demanded recognition. He also asked Martin if Martin would sign a recognition agreement. Martin promptly telephoned Cleveland and asked to speak to Graves. Graves was out, so Martin spoke with Deering, whom Martin described as Graves' then superior. Deering said that Respondent did not want to recognize the Union but that if the Union had a majority, the Union should seek an election. Meranto gave Martin Meranto's personal calling card and Meranto left. Meranto did not show Martin the authorization cards. On Saturday, December 18. 1976. Graves telephoned Martin and told Martin that "we" had come to a decision on the reduction in force and that Martin should make up his mind on "the four people" to be separated. Martin then spoke to Spletzer and asked Spletzer for the names of two employees from among the drivers and order pullers, all of whom were under Spletzer's immediate supervision. Splet- zer recommended Sass and Hershey. Martin agreed. Mar- tin himself selected Damiano and Dixon and then returned Graves' call (an hour later on December 18) to inform Graves the identities of the employees whom Martin had decided upon. Martin then spoke to Damiano. who was at work that morning, and told Damiano that Damiano's job no longer existed. Martin also telephoned Sass and Hershey the same day. Martin told Sass that Sass' job was terminated. Sass was angry and said he would come to the office but did not. When Martin called Hershey, he told Hershey that the latter's job had been terminated due to the loss of the "branches" (i.e., certain of the Pennsy stores) to Cleveland. Martin was unable to reach Dixon by telephone at first so Martin sent Dixon a mail-o-gram notifying Dixon he had been terminated. Dixon called Martin later in the day and asked for particulars. Dixon specifically asked the reason for the termination and Martin said it was a cutback due to the loss of the branch stores. Dixon said the cutback had nothing to do with Dixon because Dixon hadn't priced branch stores since October or November (when that work was computerized). Martin responded, somewhat con- fusedly, that there were too many things going on at the time, that Martin could not say anything right then but that Martin would explain it on the following Monday, if Dixon would come in to the office."5 Damiano, Dixon, Sass, and Hershey had not been reem- ployed by Respondent at the time of the hearing. On December 29. 1976, the Union filed a petition in I It does not appear that Dixon came In. ( ase t8 R( 1074 [o anot elctition il unlll Respoindent' Ytl0lngstoV . n watrehouse CnlllilocCs. Onilt Januars 21, 1977. the Rcioal [)irector approsved Stipulation for ( ertificatioln pon (onscnt F lectionn m that O()n ebruar II. 1977. ,i Boaird-conducted electilol ..as held pursuanI lt to th;lt petition in a; unit. .hich li ,as preciLse' described as follows: A\ll arehouse eniploes ee includln warehouse cilelks, walrehouse clericals, and trutckriser, at the Finaploser's facilit\ locatedi at 104 I. WVoodllind Younestoxn . Ohio. but e\cludinl .ill office clerical empllp\ e\s. salesmen, the htock .hu\V r an1i d prfessionlll cmploNe cs. eguards and supervisors as defined in ithe Act. I1he talls of ballots issued after the election showed hill. of approxitmatel' 26 eligihle oters. 25 cast ballots. Of these 10 eacre for, and I agailnsi the l niimn .sith 4 challelnged ballots. l h challenges were to the haillot of [)amiano. Dix)on. iershey and Sass. O()n March 22. 1977, the Regional DIirector issued his Report on O()hjections l andl (hallenges in ,ah ci he reconl- menided to the Board that in ievu of his detcrlmination to issue this present comniplaint alleging that the four dis- charges were unlawful Case 8 RC 110745 should he con- solidated for hearing with the unfair labor practice case before an Administrative I au Judge. II an order dated April 14, 1977. signed be Robert Vol- ger. deput\ executive scoretar,, the Board authorized the recommended consolidation. A\s pre iousl) noted, the order actuall' consolidating both cases w as issued b. the Regiolnal )irecctor on April 19. 1977. and served on Respondent. No new emploNees ha;e been hired to replace Dam;tano. Dixon. Sass, or liershe. Respondent's business ,olume at the Y oungstowrn w arehouse has declined from 779. 100) for the first 4 months of 1976 to $6hi9,318 for the same period in 1977. i.e., in 1977 it has lost about 20 percent of its previous dollar volume. C. (Concludii n [:it'iiln,; 1. Ilhe independent 8(,t)( 1I allegations of the complaint a. A.-llcgede inpre.ssion t .l rueir lce hir .,orti Sot December 16 (Ipar (i of the comp/lainr This allegation relates to the remarks of Martin to Da- miano in the restroom on December 16. As I have found. Martin told l)amiano that Martin had seen Damiano hud- dling with the emploees all daN and that Martin did not want Damiano to do it again. In this same confrontation Martin asked Damiano rhetorically- if Damiano was the grievancerman. Respondent argues, .ariousls. that there is no e idence of surveillance. that Damiano denied that there was anrt impression thereof created and. in ans e ent, mere obser- vation to determine whether an emplo)see is soliciting on I' ( crlaln ,hleclIo S p cre filed h. the t nron hut iere lacer iirhdir.ll l" I DECISIONS OF NATIONAL LABOR RELATIONS BOARD company time is not unlawful. Respondent also urges that Damiano's activities and those of his fellow employees. particularly in regard to soliciting Spletzer, occurred in the open for all to see. Finally. Respondent argues that neither surveillance nor impression of surveillance is per se unlaw- ful but is only so where it tends to interfere with, restrain, or coerce union activity. I find no merit in any of these contentions. As to the contention that there is no evidence of surveil- lance, we are not dealing with that question. The question is impression of surveillance. However, even if we were dealing with surveillance, the remarks which I have found that Martin made to Damiano on this occasion constitute an admission that Martin had engaged in surveillance of Damiano's union activities. As to Damiano's claimed denial that any impression of surveillance was created, Damiano did not make such a denial. He only denied any belief that his. Damiano's, ob- served wanderings were the cause of Martin's anger. He further testified that Martin made the statements to him which I have found that Martin made (in respect to Damiano's "huddling" with his fellow employees all day). Insofar as an employer's claimed right to observe wheth- er an employee is soliciting on company time is concerned, I do not reach that question. For here in the absence of evidence to the contrary-the implication is, and I find, that Damiano solicited employees while they were not ac- tually working. Further, the discussion of the Union among Damiano, Wesolowsky, Dixon, and Spletzer (at the time Spletzer signed a card) was at or about lunchtime when several of the employees were gathered around ob- viously not working. I find no indication that Damiano sought to have his activities observed while he was soliciting signatures on December 16. While a number of the employees gathered around to see Damiano solicit Spletzer, this was their reac- tion to what was occurring, as Damiano testified, and not Damiano's. Finally. even if Damiano had intentionally gone about his union activities on this occasion in a man- ner to make them broadcast, there would be no reason for Martin to state that he observed such activities unless Martin wanted to put a damper on them. Indeed Martin, as I have found, specifically told Damiano he wanted such activities stopped. Inasmuch as Damiano had the Section 7 protected right to solicit his fellow employees (during nonwork time) to join the Union, I conclude that Martin's comments that he observed these activities, Martin's angry tone, and Martin's order to Damiano to cease and desist could only have the effect-as intended by Martin of causing Damiano to disdain such activities. Accordingly, I find that Martin's remarks on this occasion created the impression of surveil- lance and interfered with, coerced, and restrained Dami- ano in the exercise of Damiano's Section 7 rights and that Respondent thereby violated Section 8(a)( I) of the Act. b. Alleged iniplicit threat of discharge hi Martin (par. 7) This allegation concerns the same incident as "a.." .io- pra, only deals with that portion of the confrontation wherein Martin, angrily, suggested several times that Da- miano quit his employment. Since these vitriolic sugges- tions occurred in the context of the very same conversation as that in which Martin in effect accused Damiano of being a "grievanceman" and directed Damiano to stop huddling with his fellow employees, the message was clear- ly conveyed to Damiano by Martin that Martin was in- censed over these activities-so incensed that Respondent would be delighted to see the end of Damiano's services. While Martin's expression was couched in terms which- superficially suggested that Damiano take the initiative in quitting, it was after all Martin who raised the issue and thus it was Martin, himself, who had already taken the initiative. The effect of Martin's initiative was therefore full of foreboding and indicated simply but forcefully that Da- miano should leave because Respondent no longer wanted him. In the circumstances, the inference to Damiano and to the other employees who heard Martin's repeated and angry demands was inescapable. That is, if Damiano didn't quit, but since Respondent obviously no longer wanted him, his job could be taken from him. Indeed this presage merged with reality just 2 days later. And at least one rea- son for Martin's angry feelings, as Martin indicated in the confrontation, were Damiano's activities among his fellow employees that day. Accordingly, I conclude that Martin implicitly threat- ened to discharge Damiano on December 16, 1976, be- cause of Damiano's union activities and that Respondent thereby violated Section 8(a)(1) of the Act. c. Alleged implicit threat of discharge by Graves telephonically on or about December 17 (par. 8) This is in the incident where Damiano spoke over the telephone to Graves at Martin's request on-as I have found December 16, 1976. In this conversation it may be recalled Graves insisted that Damiano "hold off" because Graves was going to come down to Youngstown, get everyone together and look at wages with a view towards raising them after the first of the year. The "hold off" request was an obvious reference to Damiano's activities in organizing and speak- ing to his fellow employees that day. I so find. In this con- text Graves' further suggestion to Damiano that Damiano was capable of a higher calling, although couched in terms of flattery. conveyed to Damiano-as did Martin's earlier and angry suggestion on the same day-that Damiano should quit. And as with Martin, Graves' suggestion, com- ing as it did from management in all the circumstances described, implied that if Damiano didn't quit, his job might be taken from him. Again, since Graves made this suggestion in a conversation, the burden of which was to persuade Damiano to "hold off" (from organizing his fel- low employees), it is clear, and I find, that Graves was impliedly threatening to discharge Damiano because of Damiano union activities. I, accordingly, conclude that by Graves' remarks to Damiano on this occasion, Respondent further violated Section 8(a)( 1) of the Act. 118 JOBBERS' SUPPLY INC. d. Alleged threats of discharge or reprisal by Spletzer during the week of December 13 (par. 9J This 17 refers to the conversation among Spletzer. Her- shey, and Sass on December 16. 1976, in which Spletzer told Sass and Hershey that there would be a lot of changes at the warehouse if a union came in but, if the employees did not watch themselves, they would be "on the outside looking in" and that the "shit would hit the fan." Inasmuch as Sass and Hershey had told Spletzer in this same discussion that they had joined the Union, inasmuch as Spletzer's remark occurred after a number of the em- ployees had been signing authorization cards at the ware- house that dayis and since Spletzer specifically mentioned the Union in this conversation, the conversation obviously dealt with the union activities by the employee. Since the "outside looking in" aspect was an unmistakable reference to losing jobs, I conclude that Spletzer's remark was in- tended to, and did, warn the employees that they could lose their jobs for engaging in such activities. I further con- clude that by this threat Respondent violated Section 8(a)( ) of the Act.19 e. The discharges The General Counsel has established a substantial prima facie case in respect to the discharges of all four alleged discriminatees. Thus, Damiano was a leader in organizing the employees. His activities at the warehouse on Decem- ber 16 were observed by Martin and provoked an angry reaction from him. Damiano also solicited Spletzer to sign an authorization card. Dixon, Sass, and Hershey attended union meetings. signed authorization cards, and stated their allegiance to the Union in Spletzer's presence at the warehouse on December 16. The implied threats by Martin and Graves to Damiano on December 16 and the more explicit threats by Spletzer to Sass and Hershey on the same day establish the animus of Respondent against union activities by its employees. The abrupt discharges of all four of these employees the next day' after the Union's demand for recognition,20 and 2 days after their union alle- giance became known,2' are further, if not more demon- strative, indications of such animus, and perforce, of the motivation for their discharge. Respondent defends that, in view of the transfer of five large Pennsy stores from Youngstown to Cleveland, it no longer had need for four employees. It points out that the sales volume for the Youngstown warehouse after January 1, 1977, predictably, declined and that it has continued to operate the Youngstown warehouse with four less employ- ees since December 18, 1976. It further advances specific reasons for its selection of each of the four discriminatees. 7 Par 9 speaks of two such incidents. The evidence establishes onls one X Ele'sen signed at Ihe aarehouse on that das The last to sign Al Splel- Ier himself. This conversation occurred after Spletzer had signed 1' In making m l 8(a)( I1 findings I have alltached no weight ito the self- serving and conclusionars testlmon) of Respondent's witnesses that theN did noil iolate this sectiun of the Act. 20 E.g., I'hite'r (Gas d 4Ippfliman. Int. 202 NLRB 494 (19731 21 ,% L.R B v. Montgomeri 4airdd (a',. 242 F 2d 497. 502 (C A 2' 1'9457 cerl denied 35s t S. 829 Respondent's defense raises three general issues. The first is whether the four were discharged on December 18. 1976. for economic reasons and not because of their union activities. The second is whether some number of employ- ees would eventually have been separated because of the smaller volume of business resulting from the transfer of five Pennsv stores to Cleveland and the third issue is, if such separations were ultimately indicated because of a slowdown in the work, whether tihese specific employees or any of them would at some point have been selected for discharge. I shall deal with each of these issues specifically. In so doing I will reject Respondent's contention that these four employees were discharged on December 18. 1976, for eco- nomic reasons. I will find merit in its implicit contention that some employees would eventually have been sepa- rated for economic reasons. While I will reject its conten- tion that Damiano and Dixon would have been so selected, I will find merit in its contention that Sass and Hershev would. eventually. have been picked for separation. W\hether all four were discharged on December 18, 1976. for economic reasons No reason was advanced why the decision to cut back four employees had to be made and carried out on Decem- ber 18. which was a Saturday, even if it may be assumed that an eventual loss of business might later warrant some reduction in the Youngstown staff. While Louche had spo- ken to Martin of a cutback in October and although Graves had spoken with Martin and Martin had spoken with Spletzer in November and December about a reduc- tion, no action was taken until the day after the Union demanded recognition. It was then that the decision was made, four employees were selected and the four were dis- charged---all within the space of a few hours. 22 Thus it is clear that Respondent felt no urgency to cut its staff at Youngstown until it was confronted by the Union. Totally aside from this telling circumstance, other fac- tors weigh heavily against the need for Respondent to make a decision to reduce its staff on that date. Thus, the transfer of the five stores to Cleveland had not been com- pleted (the East Liverpool Pennsy store was not transferred until December 25) and no time was allowed to work out all of the "bugs" from the new system. Louche, the system's designer, expected "bugs." albeit not major ones, for some time after the system went into operation. Indeed the system itself envisioned that the five stores transferred to Cleveland could still get emergency orders from ': Martin and (;raseS claimed in their testimons thai Martin told (;r.ic, in [ile Nos ember or earls December that he could do v, lthout four people ltone-c er. bh Martin's on, n admission. Martin purportedlIs .so informed (;rae,, before Martinl found out from Spleiter honw manlt enploiees Spiel- ,er could operate Ihe dri er and puller force without lielne. lMartin could no l ha.le kno, n how manl people could he reduced ait that tlnle or if he adxsied (ira es, of four. it a.i, pure speculation. While (irases clati Ma1r- til said ait he tune that lMartin. trnir alia. could do withrout a pricer. such prediction h Mlrtin. if made, does not make sense For the pricing func- tion is ani on-goineg ieClleits and, as will appear. It has been carried on *Ince the discharge of I)loin (the pricer .as of Decenhber 18 1970) Pricing ,ince that time has been done prima.lris hb one person, [)ensa n., ho did not do this work prelioulI Since these claiim. hb (iri.es and Malriln are clearls at odd, W.ith the undispuled facts atn the logi of e.ents. I do nol credit ihemit 119 DEC(ISIONS OF NA'IIONAI. LABOR RiLAIFIONS BOARD Y\oungstown and they have. in fact, done so. Even at the time of the hearing, as Spletzer admitted. Youngstown drivers were still making deliveries to two of the transferred stores (Warren and East Liverpool). Further, as of December 18. 1976. Respondent still had plans to expand the Youngstown warehouse plans which had prompted Martin to tell Damiano in late October 1976. after the plans for the Cleveland transfers had been made that there would be enough work to keep the em- ployees busy at Youngstown for a long time. Martin ex- plicitly grounded this prediction on the work involved in the expansion of the Youngstown wiarehouse and the mow- ing of merchandise in connection therewith. The plans to expand the warehouse were not abandoned by Respondent until January 1977. as Martin admitted. I, accordingly, reject Respondent's defense that the foul employees were discharged on December 18. 1976. for eco- nomic reasons. I rather conclude that each of the four were discharged because of his union activities and that Respon- dent by each such discharge violated Section 8(a)3) and (I) of the Act." Would there have been a cutback later? Would l)aiinano, Dixon. Sass, and Hershe'y have been selected'? Hlaving rules that the discharges of all four emplowees were in violation of Section 8(a)( 1) and (3) after concluding there was no valid economic basis to terminate them on December 18, 1976, I do not have to reach the question whether the selection of any of these employees for release at that time was proper. On the other hand, if employees may later have been released, justifiabl,. on an economic basis, then the question of selection at a later timc would have to be resolved. I find that there was a sound economic necessity to re- lease some employees later. For there can be little question that good management would have dictated a reduction in the Youngstown complement at some time after l)ecember 18. Thus, summarizing my prior holdings in this regard. thereafter the Youngstown warehouse no longer serviced five large Pennsv stores which had been transferred to Cleveland, even though it provided more service to four smaller Pennsy stores than it had before the fall of 1976. The net loss of one store and the fact that the five lost stores were larger 24 provide a reasonable basis to predict an eventual lower volume of business at the Youngstown facility. and staff reductions had generally been discussed by management in October, November, and December 1976, after the transfer plan had been decided upon. Ihe full extent of the loss of business, however, could not be ascertained until sometime subsequent to the transfer of all the stores, until all the "bugs" had been worked out of the i [n 11ill he1 cirt rllnilnc. s particularls t)ain ill().s Cotllfronllt.tionll ll ii;h Ma.trtn, and Ie IunilnI discusionSns involving Di)amniano. D)iMil. Ilershe. and Sass I .Ittacli n, weilght m the tesillmowns of Martin that he was tallnlasre r 1c the Llll¢,)n ic01 illft O ' of lt hese enlployees whent he disdt.irvcd Ihell S,As previouslt noted,. a aticlor in mnlanagmen i nts dlermirIltir .T t t, 'hich Penlnss stmles should be transferred to ( le\ecland wa;s Ihat the lalv. Pelnss stores iCOilid rnirte easily he serriced froim the ( letelian d .archou, e *hiciitg nUch s mh rer warehouse than the one ait YoIungstoln. new system and until Respondent had some experience with the extent of emergency ordering from the Pennsy stores transferred to Cleveland after such transfer. Nor would an employee reduction be advisable while plans were still in process to expand the Youngstown warehouse. Some of these events are shown bv the present record but some are not. Thus, the last store was not transferred to (Cleveland until December 25. 1976. The expansion plans were not abandoned until January 1977. But, when man- agement could be satisfied that all "bugs" had been worked out of the new system and what the extent of emer- gency ordering would be from the stores transferred to (Cleveland cannot be ascertained on the basis of the present record. On the other hand, the record does demonstrate an over- all loss of business (hence a need for an employee cutback) by the time of the hearing. Thus, it is certain that the Youngstown facility lost about 20 percent of its business volume during the first 4 months of 1977 compared with the same period in 1976. It is further clear that as of the end of January 1977 the volume of business for Youngs- town had dropped from $152,801 (in January 1976) to $130,701 (for January 1977) or over 14 percent. In Febru- ars 1977 the loss (compared with February 1976) was even greater (a drop from $208,589 to $152,661, or more than 25 percent). I therefore leave it to compliance to determine when a cutback in the Youngstown complement would have oc- curred in the normal course of business without the advent of the Union at some date after December 18, 1976, but clearly prior to the date of the hearing herein when Re- spondent had already suffered a continuous loss of busi- ness for over 4 months (compared to the same period in 1977).25 This determination on compliance will, however, only relate to Sass and Hershey as will appear, because. as I will find, Respondent has advanced no valid basis for separat- ing Damiano and Dixon. I shall, therefore recommend an order requiring that Damiano and Dixon be offered rein- statement with full backpay, subject to the customary re- ductions for interim earnings, etc. For Sass and Hershey I shall only recommend that they be given backpay from December 18, 1976, until they would have been terminated in an economic cutback. I will now take up the case for the selection of each individual discriminatee. Damiano: Respondent contends that Damiano was se- lected because of his poor attitude, punctuality, attendance problems, because he and Martin did not get along well, because Damiano had less seniority than anyone working on the counter, and, finally, because Damiano was, essen- tially, only a part-time employee (28.32 hours per week). I reject these contentions. To begin with Damiano was never given any of these reasons by Martin when Damiano was fired. He was only told his job was eliminated at a time when, I have found, there was no valid economic basis to eliminate it. Further, while Damiano was criticized for his attitude by Graves on November 18, 1976, there is no credible proba- Sec t lilrs,1 t.d 1) l) lmwhimgm ( ,mlam.pi, 229 N IR B 078 (1977) 120 JOBBERS' SUPPLY INC. tive evidence that his poor attitude-however it manifested itself-continued after that date. To the extent that a poor attitude may have been shown by his confrontation with Martin on December 16-also the only apparent showing that he and Martin did not get along-that confrontation proves nothing beneficial to Respondent. Rather I have already made two unfair labor practice findings in respect to that confrontation. As to Damiano's attendance and punctuality and the fact that he was a part-time worker-while these reasons were advanced in the brief 20 they were not mentioned in the testimony of Martin who was the official who selected Damiano for discharge and gave the rationale for each se- lection. Moreover, there was at least one other part-time counterman. Schaffer, and Damiano's part-time schedule had been arranged with management to accomodate Damiano's classes until he left school in early December 1976. There is no indication that such schedule posed a problem to Respondent until Damiano's union allegiance became known. He was, of course, not a part-time student at the time of his discharge and was available for full-time work. Most significantly, in late November, just before Dami- ano quit school he informed Martin he was dropping out of classes. Martin said that, if Damiano could be present 40 hours per week, Respondent would consider him for the office job of an employee who was retiring.2 7 The job would have involved a promotion and a raise for Damiano and indicates the value Respondent placed on him in late November before his union activities commenced. And, in any event, Graves admitted to a Board agent in March 1977 that Damiano had done a "good job" while employed by Respondent. Finally, while Martin claimed that the changeover of the stores to Cleveland would mean less work for the counter. this is not so. As Damiano credibly testified, before the transfer, calls from the Pennsy stores were transferred to office personnel at Youngstown. After the transfer some Pennsy calls (apparently the emergency calls) were handled by the counter thus adding to counter work. Also after Damiano's discharge at least one employee, Theresa Sholl. who was not one of the regular counter employees while Damiano was there, has been required to fill in at the counter a substantial part of her time in January and Feb- ruary and at other times since. Dixon. Respondent contends that Martin selected Dixon because of Dixon's low seniority. his work record, which, it claims, was not good and Dixon's prior requests to be laid off. Primarily, Respondent says that, because of the new computer system for extending sales invoices for (Pennsy) branch stores, it had no need for a full-time pricer. Respondent's need for a full-time pricer ended in Octo- ber when the computer system went into its second phase. Dixon was "pricing" only 60 percent of his time for the last 2 months of his employment. When Martin told Dixon that Dixon was being fired on December 18. Martin explained T2 Respondent has noi real o.enlorits s.llem. W'hile the fact of eniorlln I sometimes considered It is also ignl, red as Maimin admitted ini the i tt c Elf Hershe; 2' [)amiano credibl, so testified iilhoull dispu te it was because of the loss of the branch stores. In response Dixon alertly pointed out that the loss of the branch stores had nothing to do with him. because he had not extended invoices for the branch stores since October. To this Mar- tin lamely replied that there were too many things going on and that he. Martin, couldn't "say anything right now," thus suggesting the pretextual nature of this claim. Since Dixon has left. his work is now performed by De- man except for special pricing Demyan does not under- stand 28 which is being performed by Kukura or Martin himself. None of the other reasons now advanced by Respondent were given by Martin to Dixon. As to Dixon's seniority, as I have previously pointed out, Respondent had no seniority system and admittedly ig- nored seniority. As to Dixon's requests-jokingly--to be laid off,2? no action was taken on such requests (not even when his pricer work was reduced) until his union alle- giance became known. The contention that his work record was not good must also he rejected. This claim. advanced by Martin, was that, as a full-time pricer, Dixon could not keep up with the pricing work. But this claim had also became "old hat" bs the time of Dixon's discharge because for the 2 months preceding Dixon's discharge there had not been enough pricing work to take up more than 60 percent of Dixon's time. Moreover. Martin conceded in effect that he passed up the opportunity of discharging Dixon when the pricing work was reduced in October and instead directed Dixon to fill in his time at the counter (where Dixon had once worked) and on keeping up the catalogue. Further. Graves admitted to a Board agent in March 1977 that Dixon had done a good job while Dixon worked for Respondent. In view of the foregoing it is clear that a need for the services of both Damiano and Dixon continued even after other cutbacks of the Youngstown complement may have been indicated. And. consistently,. both have been replaced by other employees as I have found (albeit not new hires off the street). It is also clear, and I find, that Respondent had no valid ground in cause which Respondent does not argue in any event--to fire Damiano or Dixon. I thus conclude that neither Dixon nor Damiano would have lost his job in any later economic cutback. Had there been the need for a reduction, it would have occurred else- where in Respondent's Youngstown operation. Hence I shall recommend that both be reinstated and that the chal- lenges to their election ballots be overruled. Further and totally aside from the foregoing, I observe that an examination of the "Clock Hours - Regular Hours" and "Overtime" (G.C. Exh. 6) does not disclose that the total hours of the Youngstown complement were reduced after December 18, 1977, by the equivalent of four full- time or near full-time employees. Thus, in theory. with the separation of Dixon and Damiano as well as Sass and Her- she'. the regular hours and clock hours for each (2-week) pay period should have fallen by 300 hours (i.e., 2 times 40 hours for Sass, 40 for Hershey. 40 for Dixon, and 30 for Damianol. However. the average reduction subsequent to :- e\esoll.' ks, credibls so, tesIilfied , ithout dispule ).nilallno uatd [ )ison hoth credihls lestified that [)i on nimetlnmes ad- I.ale. sCtlCh rcqtis n Le l h ll t) . jokin[g llannler 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 18 is only about 141 hours or less than half the savings in hours worked which might be expected from the separation of these four employees. While the staff was not increased, as I have held, the Youngstown warehouse, ac- cording to the record, has a pattern whereby the hours of employees particularly part-time employees-may vary. Hence, it was a simple matter for Respondent to take up the slack caused by the separation of Dixon and Damiano by increasing the hours of other employees.30 Sass and Hershev: According to Respondent, Sass was discharged in a cutback for economic reasons and Sass was selected for discharge because of his record for lateness and absenteeism matters about which he had been warned by Spletzer. I reiterate that I have concluded that Sass' discharge (along with Hershey's) on December 18, 1976, was in viola- tion of Section 8(a)(3) and (1) because there was at that time no valid economic justification for a reduction in force. Hence, in making that violation finding it was not necessary to reach the question whether Sass' selection or the selection of any employee for release in a reduction at that time was proper. However, having concluded that an economic basis for a reduction at some time after December 18, 1976, has been established, having further concluded that management had generally discussed such a reduction prior to the ad- vent of the Union. and, finally, since management has not hired any new employees to replace the four dischargees (although it did juggle the hours of the remaining employ- ees as I have found) I must reach the question of the possi- ble eventual selection of Sass and Hershey just as I reached the question of the selection of Damiano and Dixon. Sass began working as a truckdriver-puller for Respon- dent in October 1976. the most recent hire in that area of the warehouse. During some 2 months employment prior to his discharge Sass was late for work about eight times (once by 3 hours), missed work I day, missed at least one truck trip due to lateness and took off on the afternoon of his last day of work. requiring that another driver be sent in his place.3 Sass admitted that he had been admonished about his attendance by Martin (although not by Spletzer as Spletzer testified). 32 Respondent says that Hershey was selected on the basis of his work record. More specifically, it says he had been repeatedly warned by Spletzer for wasting time talking to the employees during work hours. Hershey had been employed as a truckdriver-puller for about 13 months at the time of his discharge. He admitted, as Spletzer testified, that he had been repeatedly warned by Spletzer over the previous 6 months for talking to other employees during worktime and that Spletzer had said on a couple of occasions that, if Hershey did not mend his ways. Hershey would be out. Neither Hershey nor Sass has been replaced by any new ' 1.gL. I)arnitno. McB1Hide. Carnahan. etc. rhe hliurs of Sass. a full-lnime emtplio\ee. als)o varied Spletzer so testified in respect to Sass' Iruallnc , on the afternoon of D)ecember 17. S;ss, dlsagreed llotexer. Slss' tiinecard supports Spili/er. hence I credit Spletzer in this regard. '2 his difference is ilnimportant. Whai is importanl is that Sass v ias . pol- ken to h: m:na;gemrent about the probhlem employee. While there has been a redistribution of work among the truckdriver-pullers, this record does not indi- cate that any employee outside the truckdriver-puller group has been reassigned to truckdriver-puller work since Sass and Hershey were discharged (unlike Damiano and Dixon who were replaced by employees who had not regu- larly, if at all, performed the tasks formerly done by Dixon and Damiano). With the loss of business in the first 4 months of 1977 (occasioned by the transfer of the five large Pennsy stores to Cleveland for service) less goods have been sold from the Youngstown warehouse and there have thus been fewer items to deliver. As I have found, the total hours worked by the Youngstown warehouse employees have been reduced since December 1976 by the equivalent of about two employees. This record does not indicate that any employee in the truckdriver-puller group had a record worse than that of Sass or Hershey. Hence, I conclude that both of them would have been selected for termination at the time of an eventual economic cutback, which, as I have found, would have occurred prior to the hearing herein but at some time after their actual discharges. Accordingly, I shall recom- mend that Respondent not be required to offer either rein- statement but that both will be awarded backpay to the time (to be determined upon compliance) when they would have been discharged. The Election Case Having concluded that Damiano and Dixon were dis- charged in violation of Section 8(a)(3) and (1) and that both would have thereafter continued in employment, I hereby recommend that the challenges to their ballots in the Board-conducted election of February 11, 1977, be overruled and that the Board direct the Regional Director to open and count their ballots. I make no recommendation in respect to the challenges to the ballots of Sass and Hershey (although, as will ap- pear, I will recommend a disposition of the ballots them- selves). While I have found that both were discharged on December 18, 1976, I have further found that they would have both eventually been discharged in an economic re- duction in force which would have occurred on a date to be determined upon compliance at some time between De- cember 18. 1976, and the date of the hearing herein (June 1. 1977). Inasmuch as the date upon which they would have been separated has not been determined, there is no basis at this time to conclude whether or not they would have been employed hence eligible to vote at the time of the election on February 11, 1977. Even though I shall make no recommendations as to the challenges to their ballots. I do, however, recommend (as an alternative, if Damiano and Dixon vote in favor of the Union) that their ballots be opened and counted anyway. I believe that to do otherwise (let the matter stand until the date of their eventual separation has been determined upon compliance) would inordinately delay the election re- sult and to no purpose. Thus, it is obvious that both Sass and Hershey (as strong union supporters who were fired before the election) have voted in favor of the Union. It is also obvious that they do 122 JOBBERS' SUPPLY INC. not desire that their votes be kept secret. For theN an- nounced their support for the Union to Spletzer on Decem- ber 16, 1976, which, as I have found, occasioned their dis- charges and the) have publicly testified about their union allegiance in this proceeding. Such an action- the opening of their ballots in these circumstances seems particularly appropriate at a time when Congress and the Board itself are seeking new and valid bases upon which to bring elections to a conclusion as quickly as possible. (As of this writing the election herein took place about 9 months ago, yet there is still no result.) Here, if Damiano and Dixon vote in favor of the Lnion. as they also predictably did (having likewise been dis- charged for union activities prior to the election), the tall' will become 12 in favor of the Union and 11 against, with the ballots of Sass and Hershey remaining. If Hershev and Sass both voted for the Union and their ballots are opened. the tally would become 14 in favor and II against. If the latter are ultimately determined to have been eligible to vote (by a compliance determination that they would still have been working on February 11. 1977) the Union will have won. If they are ultimately found ineligible to vote, the Union would lose their 2 votes bringing the final talIN to 12 for the Union and 11 against. meaning that the Union will still have won. Thus, if their ballots show what it reasonably could be expected that they should show it would make no difference whether they are eligible or inel- igible to vote. In the unlikely, but possible. event that either Sass or Hershey or both voted against the Union, it is further rec- ommended that their ballots, though opened, be segregated individually and identified and then held pending a final determination of their voting eligibility after compliance." IV THE EFFECT OF THE L NFAIR I &BOR PRA CTI(ES t PO)N (COMMERC I The activities of Respondent. set forth in section I11. above, occurring in connection with its operations de- scribed in section 1. above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. v THE REMEDY The recommended Order will contain the conventional provisions for cases involving unlawful discharge in viola- 3 The proposals herein outlined are not lthout precedent I he Board irl similar circumstances has directed Ihe immediate opening. counting. and segregation of hallots of indiiduals where such hballotis , re deternilinatle. but ultimate voting eligbility hinged on whether the solers were unlas fulls discharged (before soring) in o flallon of Sec. 81a)(3) and (Ii Inicralrt,nal Ladies' Garment Workeri I' nin. 13' NL RB 1681 11962) I ha.e a.lrcads found that Sass and Hershes were discharged in isolaton of Sec 8al 1t and {ll prior to the lime the)s oted, hence. Ignoring such unla ful discharges, their ultimate eligibihtli turns on whether thes sould have still been em- plosed or would have lost their jobhs n an economic cutback b Febhruars 11II. 1977. tion of Section 8(a)(3) and (1) of the Act and unlawful interference, restraint. and coercion in violation of Section 8(a)( 1 ) of the Act with certain modifications to the remedy for the discharges of Sass and Hershey. The recommended Order will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respon- dent will be required to take to remedy these violations. Thus. affirmatively, Respondent will be required to offer Michael Damiano and Donald Dixon immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privi- leges. Each will be made whole for any loss of earnings he may have suffered bv reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of his discharge to the date of the offer of reinstatement less net earnings, if any. to be computed in the manner prescribed in F W. Woolworth Co(,,,ipav, 90 NLRB 286 (1950)., with interest thereon as prescribed in Florida Steel Corporation. 231 NLRB 651 (1977). 4 James Sass and David Hershey will each be made whole for any loss of earnings suffered as the result of Respondent's discrimination against him by pay- ment to him of the sum of money he would have earned from the date of his discharge to the date he would have been terminated in a lawful economic cutback (a date to be determined upon compliance) less net earnings but plus interest to be computed otherwise in the same fashion as the backpay for Damiano and Dixon. It will be further recommended, in view of the unfair labor practices in which Respondent has engaged (see N I..R.B. v. Entvistle Mfg. Co.. 120 F.2d 532, 536 (C.A. 4. 1941). that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed em- ployees by Section 7 of the Act. CONCA SIONS OF LAW I. Respondent is an employer 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. By discharging Michael Damiano. Donald Dixon, James Sass, and David Hershey on December 18, 1976, Respondent has violated Section 8(a)(l) and (3) of the Act. 4. By the act of Al Martin in creating the impression of surveillance on December 16, 1976, and by the acts of Al Martin, Ed Graves, and Frank Spletzer in implicitly or ex- plicitly threatening employees with discharge or other re- prisals for engaging in union activities, Respondent has violated Section 8(a)(1) of the Act. 5. The above-mentioned unfair labor practices are un- fair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law. and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ' See. gencr.ll\' i, I'rlhw ily bu Il crir' ( in,n 138 NI RB 716 i1962i 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 35 Respondent Jobbers' Supply Inc., Youngstown. Ohio. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) liscouraging membership in, or activities on behalf of, Associated Trades & C('rafts National Union, or an' other labor organization. by discriminating in regard to the hire or tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's employees in order to discourage union membership or other concerted activities. (b) Creating the impression of surveillance, actually or impliedly threatening employees with discharge or other reprisals for engaging in union activities or in any other manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Michael Damiano and Donald Dixon immedi- ate and full reinstatement to their former positions or. if such positions no longer exist, to substantially equivalent positions. without prejudice to their seniority or other rights and privileges and make them and James Sass and David Hershe' whole for any loss of pay they may have suffered as the result of their discharges in the manner set forth in The Remedys section of this decision herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment cards, timecards. per- sonnel records and reports, and all other records necessary or useful in complying with the terms of this Order. (c) Post at its facility in Youngstown, Ohio, copies of the attached notice marked "Appendix." 3 Copies of this no- tice, on forms provided by the Regional Director for Re- gion 8, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and he maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall he taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. tI In the event no ccptions are tiled as provided ho Sec. 1()0246 f ihe Rules and Regulations of the National Labor Relations Board. the findin,, conclusions, and recommended Order herein shall, as provided in Sec 1(02 48 of the Rules and Regulations. be adopted bs the Board and he.conir Its findings. conclusions. and Order. and al objections thereto lhall he deemed w;lised foIr ;ll purposes. e* In the esell this Order is enforced hb a Judgment of the United States Courl of Appe.als. the ,ords in the notice reading "Posted h' Order ,1 the National Labor Relations Board" shall read "Posted Pursuant io a, Jule ment of the t iiited States (Court of Appeals Enforcing an Order ol ihe Naliona.l .ahor Relations Board" If Is HEREBY FURTHER ORDERF) that Case 8 RC -10745 he severed herefrom and remanded to the Regional Director for further proceedings consistent with the recommenda- tions of the Administrative Law Judge in his Decision and for the issuance of an appropriate certification upon the opening and counting of the ballots of Michael Damiiano, Donald Dixon, James Sass, and David Hershes. APPENDIX Noir(l . To EMPIOY.l.S PosrED BY OR[)ER OF ItH- NAIIoNAi. LABOR RtI.ArIONs BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that we have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights including the rights: To self organization To form, join or help unions To bargain collectively through a representative of your own choosing To act together for collective bargaining or other mutual aid of protection and To refrain from any or all such activities. Accordingly, we give you these assurances: WE wnl. NOI create the impression that we are watching you when you engage in union or other pro- tected concerted activities. Wt wi W NOI threaten you. actually or by implica- tion, that we will discharge you or take other reprisal against you for engaging in union or other concerted activities. WE WILL Not discharge you or take any other repri- sal against you because you join or support Associated Trades & Crafts National Union or any other labor organization. Wti wlt. NOI in any other manner interfere with any of your rights set forth above. WL swILL offer to reinstate Michael Damiano and Donald Dixon to their former positions or, if such po- sitions no longer exist, to substantially equivalent posi- tions, with full seniority and all other rights and privi- leges, because the Board has found that they were discharged because of their union activities. WL iini make up all pay lost by Michael Damiano. Donald Dixon, James Sass, and David Hershey as the result of their discharges plus interest. JOBBERS. ST PPiY INC 124