J. C. Penney Co., Inc.

662 DECISIONS OF NATIONAL J. C. Penney Company, Inc. and Teamsters Local 507, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case 8-CA-4620 June 27, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On December 14, 1967, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices 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 Respondent had not engaged in cer- tain other alleged unfair labor practices. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and Respondent filed cross-exceptions and an answer to the exceptions of the General Counsel with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 recommenda- tions of the Trial Examiner, as modified herein. We agree with the Trial Examiner's 8(a)(1) findings. We also agree with the Trial Examiner 's dismissal of the 8(a)(5) allegation, but not for his reasons. The Trial Examiner found that in seeking recogni- tion on May 24, 1967, Union Representative Fried- man failed to define adequately the unit which the Union sought to represent and that Friedman's statements at that time gave the impression that the unit would comprise all Auto Center employees in- cluding the salesmen although it represented a majority only if the salesmen were excluded. We find it unnecessary to reach this issue, although we note that Respondent did not indicate any concern with respect to the scope of the unit at the time the Union requested recognition, although it did ex- press a doubt as to the Union's majority. Rather, we find that General Counsel failed to establish bad LABOR RELATIONS BOARD faith on the part of Respondent in refusing to recognize and bargain with the Union,' and that Respondent's illegal conduct limited to the state- ments of Supervisors Radick and Frank was not so flagrant as to vitiate its good faith in questioning the Union's majority, or necessarily have had the object of destroying the Union's majority status.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, J. C. Penney Company, Inc., Richmond Heights, Ohio, its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. ' Aaron Brothers Company of California, 158 NLRB 1077 Member Jen- kins adheres to his views expressed there. ' Hammond & Irving, 154 NLRB 1071, 1073 Member Zagoria agrees that a finding that Respondent violated Section 8(a)(5) and a bargaining order are unwarranted here, for Respondent's illegal conduct clearly did not create a situation adversely affecting the Union's ability to establish its representative status in a Board-conducted election. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, was tried pursuant to due notice before Trial Examiner Jerry B. Stone on September 20, 21, and 22, 1967, at Cleveland, Ohio. The charge in Case 8-CA-4620 was filed on May 25, 1967, and the complaint in this matter was issued on July 6, 1967, alleging violations of Sec- tion 8(a)(1) and (5) of the Act. The main issues raised by the pleadings are: (1) whether Dan Frank, Steve Radick, and Richard Sperling are supervisors within the meaning of the Act; (2) whether the aforesaid persons, as Respon- dent's supervisors, engaged in coercive interroga- tion of employees about union activities, in making threats of reprisals toward employees because of union activities, and in making promises of benefits to employees to dissuade employees from union ac- tivities; (3) whether a certain described bargaining unit is an appropriate bargaining unit; (4) whether the union represented a majority of the employees in the aforementioned bargaining unit on May 23 and 24, 1967, and was the representative of such employees for the purposes of collective bargain- ing; (5 ) whether the Union made an appropriate demand of the Respondent to bargain collectively J. C. PENNEY CO., INC. 663 for the employees in the aforementioned bargaining unit; and (6) whether the Respondent has refused to bargain collectively with the Union since on or about May 24, 1967. All parties were afforded full opportunity to par- ticipate in the proceeding. The General Counsel and the Respondent filed briefs which have been considered. Upon the entire record in the case and from my observation of the witnesses, it is hereby found as follows: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER1 J. C. Penney Company, Inc., the 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 Delaware. At all times material herein, Respondent has operated chain stores throughout the United States at which it is engaged in the retail sale of general merchan- dise, including automotive parts and services. Further, Respondent at all times material herein has operated, as one of its said chain stores, a retail store known as Store No. 46, located in the city of Richmond Heights, Ohio, the only store involved in this proceeding, herein called Respondent's Richmond Heights store. Further, at all times material herein, Respondent has operated at its Richmond Heights store a department thereof, commonly referred to and designated as an Auto Center, herein called the Auto Center, where it is engaged in the retail sales of tires, batteries, other automotive accessories, and in automotive repair and maintenance services. Further, Respondent, in the course and conduct of its aforesaid business operations, annually sells and distributes products at its Richmond Heights store, including its Auto Center, the gross value of which exceeds $50,000. Further, Respondent annually receives products valued in excess of $50,000 which products are transported to its Richmond Heights store, includ- ing its Auto Center, in interstate commerce directly from States of the United States other than the State of Ohio. As conceded by the Respondent and based upon the foregoing, it is concluded and found that the 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. II. THE LABOR ORGANIZATION INVOLVED2 Teamsters Local 507, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, the Union, is now , and has been at all times material herein , a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Refusal To Bargain The General Counsel contends that on May 24, 1967, the Union requested the Respondent to bar- gain collectively with respect to an alleged ap- propriate bargaining unit,3 and that on that date the Respondent commenced refusing to bargain with the Union with respect to the alleged appropriate bargaining unit. The alleged appropriate bargaining unit was: All full-time and regular part-time employees of Respondent at its Auto Center, but exclud- ing all salesmen, office clerical emoloyees, guards, and supervisors as defined in the Act.... The Respondent by its pleadings placed in issue the appropriateness of the bargaining unit and the appropriateness of the request to bargain. The Respondent contended at the hearing that the al- leged bargaining unit was not an appropriate unit but that the appropriate bargaining unit was either (1) a storewide bargaining unit consisting of em- ployees in the departments in the main store build- ing and the Auto Center employees or4 (2) an overall Auto Center employee unit including salesmen and the office clerical working in the Auto Center.' It is my conclusion from the evidence that the Union's request for bargaining was defective in that the bargaining unit sought was not properly defined by the Union to the Respondent. Briefly summarized, the facts reveal that the Respondent operates one of its chain stores, known as Store No. 46, in the city of Richmond Heights, Ohio. This store consists of a main store building, an adjacent Auto Center building with nearby gas islands. The Auto Center building is located some 128 feet to the south of the main building . Between the main store and the Auto Center building there is asphalt pavement used by pedestrians and au- tomobiles. The main store building is approximately 256 feet long and 96 feet wide and has three floors. Departments or selling floors are located on two ' The facts are based upon the pleadings and admissions therein 2 The facts are based upon the pleadings and admissions therein. ' The General Counsel's complaint alleged that a certain bargaining unit constituted an appropriate bargaining unit. The General Counsel's com- plaint alleged that a request to bargain was made on May 24, 1967, but did not specifically set forth that the request was with respect to the alleged ap- propriate unit At the trial in this matter the General Counsel clarified his pleadings as being to the effect that the request to bargain was made with reference to the alleged appropriate bargaining unit. The General Coun- sel's complaint alleged that the Respondent had refused to bargain, com- mencing on May 24, 1967, with respect to the alleged appropriate bargain- ing unit ' The Respondent in its brief abandoned its contention that a store-wide unit (main store and auto center) was the appropriate unit, and conceded the exclusion of the office clerical from an appropriate bargaining unit 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD floors and an office on the top floor of the main store. The Auto Center building is approximately 128 feet long and approximately 48 feet wide and has one floor. The daily starting time for the main store office force is 8 a.m., for the main store selling depart- ments, 9:30 a.m. (although some employees report earlier to set up their counters) and for the Auto Center, 8:30 a.m. The various employees at the Auto Center, however, work various hours. Some report at 8:30 a.m., some at 1 p.m., and some at 6 p.m., as an example. The main store building can be said to house in effect a general department store and to display and sell items such as clothing, hardware, sporting goods, furniture, television sets, and refrigera- tors 5Although there is no evidence of regular dis- play or sale of any of the items sold in the Auto Center, there is testimony to the effect that there has on occasion been display and selling of some items of the type found in the Auto Center.6 The Auto Center employees' contact with the main store appears limited to going to the office at the main store in connection with personnel benefits and obtaining or leaving cash and getting their pay. Although the Auto Center had cash daily to carry on its transactions and maintained certain records of its own relative to pay rates of Auto Center em- ployees and similar type information, the Auto Center cash was taken to the main store for keep- ing overnight. It appears that personnel and payroll records for the Auto Center employees were main- tained at the main store? There were meetings for the Auto Center em- ployees at the main store . At these meetings there was discussion of maintenance , security, and sales at the Auto Center.8 As to supervisory and other contact, Williams, department manager of the Auto Center, credibly testified that he had telephonic contact with the main store and that if a question arose in his absence, the problem could be brought to the at- tention of a certain supervisor at the main store. The Auto Center building was located some 128 feet to the south of the main store. The Respon- dent's Auto Center involved the sale and display of tires, batteries, and related auto accessories and the sale of gas and oil at its gas islands.9 ' Some of the departments in the main store were a greater distance apart than the department in the main store closest to the Auto Center was apart from the Auto Center ° The testimony of Williams on this point was in answer to a question as to whether such was "ever" done . The testimony was not precise as to how often or exactly the type of merchandise At most it would appear very sel- dom that such merchandise was displayed or sold and that when done the sales were by main store personnel. ' It appears likely that there was some duplication of records and that some basic records for Auto Center employees' daily work were main- tained at the Auto Center and summarized information forwarded and kept at the main store. ° The evidence was insufficient to reveal that Auto Center employees were at meetings in which main store employees attended In addition to admitted Supervisor Donald Wil- liams, the manager of the Auto Center department, the following supervisors and employees worked in the Auto Center in the areas designated,10 at the hourly rate designated, and as full-time or part-time employees as indicated. It is undisputed that Donald St. Julian was the service manager and a supervisor within the mean- ing of the Act. It is disputed as to whether or not C., Dan Frank, Stephen Radick, and Richard Sperling were supervisors within the meaning of the Act. The employees who are designated as having worked in the service department, diagnostic lane, gas island, and stockroom all wore company-rented shirts and pants of a uniform type. All of these em- ployees except Donald St. Julian, Frank, Radick, Crane, and Sperling wore blue-type uniform shirts containing writing or description indicating em- ployees engaged in pit or automotive service func- tions . tt The salesmen generally wore business suits and attire (white dress shirts with ties, etc .). 12 In the absence of the evidence to the contrary and since Department Manager Williams and office clerical Dezort worked in the sales area, it appears that they also dressed in business or street attire. St. Julian, service manager, wore a white uniform shirt and blue uniform trousers. On St . Julian's shirt on the left front pocket were words indicating his first name and that he was the "service super- visor."13 Sperling, Radick, Crane, and Frank wore white uniform shirts and blue uniform trousers. Ex- cept for the color, the uniform shirts of Sperling, Radick, Crane, and Frank were similar insofar as writing thereon to the "blue shirts." The facts reveal that the employees in the service department changed tires , replaced carburetors, and generally performed mechanical and main- tenance work on automobiles. Employees who worked in the service department sometimes helped out on the gas island and filled in on work on the diagnostic lanes. The gas island employees in addition (to the filling station type work of servicing cars with gas and oil ) helped maintain shelves in the sales area. Diagnostic lane employees performed overall checks of cars to determine mechanical and other needs. On the days that the regular diagnostic lane employees were off, employees from the service de- partment were temporarily assigned such -work. The ' The diagram of the physical layout of the Auto Center based upon a stipulated exhibit is revealed in Appendix B attached hereto. 10 Since the relevant time involved, there have been some changes in the identity of persons performing some of the jobs. " The employee 's first name was indicated on the left front pocket of the shirt. On the back of some of the employees' shirts were the words "Pit-, Boss, Service." Apparently there was also a letter "P" on the front of the shirt " Williams testified to the effect that the salesmen sometimes wore "ser- vice" coats " The white uniform shirts apparently had the employee's or supervisor's first name over the left hand pocket , and a letter "P" on the front. On the back were words such as "Pit-Boss, Service." J. C. PENNEY CO., INC. office clerical performed clerical duties in the Auto Center and maintained certain confidential records pertaining to wages, rates, etc., in connection with her job. On occasion the office clerical operated the cash register in the sales area. Stockroom employees engaged in the work of handling, storing, and supplying parts when needed. All service employees, gas island employees, and diagnostic employees, in addition to their duties as described, had duties and responsibility to attempt to sell the items mechandised in the Auto Center. For such sales the employees received a set bonus per item. Salesmen primarily engaged in selling parts and services to customers and on occasion conferred with service department personnel as to such work and service. Salesmen were paid on an hourly rate and commission (on sales of items ) basis. On a few occasions salesmen in the past had worn the "blue shirt and pants" uniform and en- gaged in service-type work. All Auto Center employees enjoyed the same fringe benefits. The time records for all employees, except the office clerical, were kept on the same timesheets. Except as indicated there is a failure of evidence to otherwise form a comparative basis of the Auto Center employees and main store employees. On May 23, 1967, around 9 a.m., Cimino con- tacted the Union and made arrangements for a meeting with a union representative." Later that day, around noon, Union Representative Friedman met with Cimino and several of Cimino's fellow em- ployees at the Manners Restaurant and discussed unionism and the question of obtaining recognition for bargaining. At this meeting Cimino, DeVito, Fulton, Hebert, and Knebusch, all employees of Respondent's Auto Center, executed union authorization cards. Friedman gave the employees union buttons. These buttons were circular and yel- low and contained the words, "I have joined Team- sters Union No. 507." Friedman asked the em- ployees about arrangements to meet other em- ployees. The employees told Friedman to, "Just give us the cards and we will get everybody signed." The employees told Friedman that they would call him when the cards were signed or when they wanted to ask him something. At the time that Friedman gave the employees the union buttons he told them that the buttons were a great protection for them and that when he went in to ask for recognition they should all put the buttons on at the same time . Friedman told the employees that they should all wear the buttons and before it was decided to pass the buttons out that they should be sure that they all wanted to wear the buttons. 665 Cimino had asked Sperling to accompany him to the meeting with Friedman. Friedman, noting that Sperling was wearing a white uniform shirt as contrasted to the blue uniform shirt of the others, questioned Sperling as to whether he was a super- visor or not. Friedman told Sperling that the Union allowed supervisors to join if the employees did not have an objection. After the foregoing meeting, by around 2 p.m., 10 other employees had executed union authoriza- tion cards. These employees were Ralph Crane, Dave Gelbach, Frank lannetta, Kenneth Kor- powski, Richard Imbry, Allan Lang, Tom Linn, Robert McDonnell, James Perine, and Richard Rohl. On the morning of May 24, 1967, around 10 a.m., Cimino took the 10 authorization cards that had been signed on the afternoon of May 23, 1967, to Union Representative Friedman at his office. Friedman told Cimino that he was going to go to the Auto Center and present the cards to Depart- ment Manager Williams and request recognition. Cimino thereupon left and went to the Auto Center ahead of Friedman in order to tell the cardsigners to put their union buttons on. The employees who had signed union cards and who were working commenced wearing their union buttons around the time that Friedman arrived at the Auto Center. Friedman arrived at the Auto Center around 10:30 a.m. Of the employees who signed union cards, all wore the blue shirt and trouser uniforms except Ralph Crane. Crane customarily wore a white uniform shirt and blue uniform trousers. Cimino testified to the effect that all the employees who were working who wore blue shirts except two commenced wearing the union buttons. I am con- vinced that Cimino thought that he was truthfully testifying to this point. I am not convinced, how- ever, that his recollection was accurate. Cimino testified to the effect that Fulton was working and wore a union button. The payroll records reveal that Fulton was not working. The payroll records reveal that Rupp, Boczek, Skufca, and Azelis were working on the morning of May 24, 1967. The facts reveal that the aforesaid employees customarily wore blue shirt and trouser uniforms. As of the time of Friedman's visit to Williams' office none of the aforenamed four had signed union cards. Boc- zek and Skufca, around 5 p.m. on May 24, 1967, did however sign union cards. Under all of the cir- cumstances I find it hard to believe and don't be- lieve that Boczek, Skufca, Rupp, or Azelis wore union buttons on the morning of May 24, 1967, upon which was inscribed, "I have joined Teamster Union No. 507." " Whether this meeting occurred on Monday or Tuesday is not of great moment. Under all of the facts, I am convinced that the totality of the evidence reveals the incident to have occurred on Tuesday, May 23, 1967 666 DECISIONS OF NATIONAL Considering all of the evidence and a fair in- ference therefrom, I conclude and find that in the service department Dan Frank was working at the service desk and wearing a white uniform shirt, that service department employees Hebert, Knebusch, Korpowski, Linn, and Imbry were working, wearing blue uniform shirts and wearing union buttons, that service department employees Rupp, Boczek, and Skufca were working, wearing blue uniform shirts and were not wearing union buttons , that Sperling was working in the diagnostic lane and was wearing a white uniform shirt but was not wearing a union button, that Allan Lang was working on the gas island and was wearing a blue uniform shirt and a union button, that Leon Azelis was working in the stockroom and was wearing a blue uniform shirt but was not wearing a union button, that Terry Lewis and Walter Zipperle were working in the sales area and were dressed in business suits with shirts and neckties and were not wearing union but- tons, and that Mary Lou Dezort was working in the office in the sales area and was wearing street clothes but not a union button. In addition to the foregoing, Cimino and DeVito were present but were not at work. When working, Cimino and DeVito wore blue uniform shirts and trousers. On this occasion Cimino and DeVito were apparently dressed in street attire and were wearing union buttons. Around 10:30 a.m. on May 24, 1967, Union Representative Friedman arrived at the Auto Center. What transpired there is revealed by the following excerpts of his credited testimony.15 A. I walked into the salesroom, which was the front part of the Automotive Service De- partment, and went up to one of the fellows in there and asked to see Mr. Williams, and he went into the office in the rear of-the rear part of that building and he came out and showed me the way to go in there. We went in there and I introduced myself, and Mr. Allison was there, and Mr. Williams. I opened my briefcase and handed him the cards. The fellows gave me permission to show him these cards. I told him that I represented 507 and I had the majority of his people signed up, and I offered him the cards. At that time he says, "I don't believe you have the majority and I don't want to look at any cards." At that time I took them, signature side up, and put them on Mr. Williams s desk, spread them apart a little bit, and at that time Mr. Williams leaned forward and Mr. Allison said, "Don't look at the cards. And again I will tell you to go to the National Labor Relations Board." " Williams testified to the effect that Friedman did not refer to the but- tons in the encounter . Both Friedman and Williams impressed me as wit- nesses attempting to tell the truth Considering all of the surrounding cir- cumstances , I am convinced that Friedman 's testimony is more reliable on LABOR RELATIONS BOARD At that time I pulled out a button and I said, "All your men are wearing these buttons. You can walk through the shop and look at the but- tons." He said, "The men can wear the buttons. I don't have to look at them. And again I will tell you to go through the National Labor Rela- tions Board." At that time I picked up the cards and walked through the Sales Department and went to the door to go into the Service Depart- ment. A fellow said, "May I help you?" I said, "No. I am just walking through the Service De- partment." He says, "We don't want you talking to none of the help." I said, "I am not talking. All I want to do is see if they are wearing their but- tons" and kept walking. Just as I got to the outside, on the west side of the building- A. Yes. As I walked through I saw Phil Cimino. He was wearing street clothes and he had his button on. I saw a few fellows with a blue uniform on and they also had buttons. They waved to me and I don't remember who they were at this time. Phil Cimino came out- side and said, "They are all wearing buttons." As is apparent from the foregoing excerpts of Friedman's testimony, the testimony does not set forth that the bargaining unit is the unit alleged in the General Counsel's complaint. On cross-ex- amination questions were directed to Friedman to pinpoint the unit for which Friedman was seeking recognition. The following excerpts from Fried- man's testimony reveal such questions and answers. Q. When you walked in and talked to Mr. Williams you just said to him, "We represent your men or your people"? A. The people of the Automotive Center. Q. That's not what you said. A. Well, on May the 24th, and I don't be- lieve you or I-I am not arguing with you, but I don't believe that I could remember every word and I have been organizing 10, 15 places and I don't mean to be nasty or smart about it. Q. It could be, however, that you did say "your men" or "your people"? A. I said, "Your service people," I'm fairly certain I said that. Q. You are fairly certain, but you are not sure? this point and so credit it and discredit Williams' denial. I am convinced that Williams, because of the totality of the events, has honestly forgotten part of the conversation. J. C. PENNEY CO., INC. 667 A. Fairly certain. Q. You said before when Mr. Motil asked, you said, "Your men." Which is it? Can you say for sure yes or no what you said? A. "Your people in the Service Depart- ment." It's not just word for word. Q. You did say that? A. Yes. Q. How about the Gas Island people? A. Pardon me? Q. How about the Gas Island people or the Stockroom? A. The people that signed the cards. Q. Aren't you really saying, Mr. Friedman, that you don't know for sure what you said? A. I know what I said when I went in there, not word for word. Q. It is conceivable what you did say could have been "your men" or "your people"? Do you deny that this is what you might have said? A. I could have. Considering all of the foregoing , I am convinced and conclude and find that Friedman did not speci- fy that he was seeking representation for the unit alleged in the complaint but merely told the Respondent in effect that he represented all his em- ployees.1e The General Counsel contends that the external circumstances of the employees wearing blue shirt- and-trouser uniforms and union buttons and the failure of the other employees to be wearing the union buttons combined with Friedman 's statement to the Respondent about the employees wearing the union buttons clarified the definition of the requested bargaining unit. I do not agree. As in- dicated, the facts reveal that the unit contended for by the General Counsel includes at least one man, Crane, who customarily wore a white uniform shirt. Although Crane was not working on the morning of May 24, 1967, Crane had signed a union card and it is undisputed that he was in the now-contended bargaining unit . The facts reveal that Friedman told the Respondent that, "All your men are wearing these buttons. You can walk through the shop and look at the buttons." The facts reveal furthermore, however, that not even all of the blue shirted em- ployees were wearing buttons. Insofar as the salesmen were concerned, there were only two salesmen present and working at the relevant time. These salesmen were dressed in normal street attire and were not wearing union buttons . It is also noted that the one stockroom man, who was working and wearing a blue uniform shirt, was not wearing a union button. The stockroom man, Crane, who was not working, it is noted, had signed a union card, normally wears a white uniform shirt , and is un- disputedly included in the alleged bargaining unit. Considering all of the foregoing, including such facts as previously set forth with reference to the Company's operations and employee functions, I am convinced, conclude, and find that the state- ments by Friedman in connection with the external facts and circumstances did not define the bargain- ing unit in such a way as to put the Respondent on notice that the bargaining unit requested excluded the salesmen. Although the statements by Friedman as to the bargaining unit are not clear, I am con- vinced and persuaded that the statements tended to indicate that the Union was requesting a bargaining unit of all the Auto Center employees, including the salesmen. Questions concerning bargaining obligations are serious questions. Because of this the Board does not require the party requesting bargaining to spell out the bargaining demand in a super-legalistic manner. On the other hand, the seriousness of the question involved demands that the request be made in such a way that the parties are on notice, among other things, as to a properly defined unit. Considering the totality of the evidence, I am con- vinced, conclude, and find that the Union did not properly define the bargaining unit requested in such a way that the Respondent knew that the salesmen were to be excluded from the unit. In short, the facts do not reveal that the Union requested that the Respondent bargain concerning the alleged bargaining unit. Accordingly, since the Union did not properly define the alleged bargain- ing unit in its bargaining request, the facts are insuf- ficient to support a finding of a refusal to bargain (8(a)(5), as alleged). I conclude and find that the General Counsel has failed to establish a violation of Section 8(a)(5) of the Act, as alleged.17 B. Interference, Restraint, and Coercion 1. Supervisory issue The General Counsel contends and the Respon- dent denies that Dan Frank, Steve Radick, and Richard Sperling were agents and supervisors within the meaning of Section 2(11) of the Act. The General Counsel adduced evidence to the ef- fect that the wearing of the white uniform shirts denotes supervisory status. The Respondent ad- duced evidence to the effect that the wearing of the white uniform shirts did not denote supervisory status but was in order to identify the persons whom customers were to seek out relative to having their work performed. As has been previously set forth with respect to the Auto Center personnel, the salesmen, Williams, and the office clerical all wear business or street at- tire. The employees working in the stockroom, ser- 14 Considering Friedman 's entire testimony on direct and cross-examina- tion, I find it unreliable to establish that he referred to a bargaining unit in more specific terms than as set out in the facts herein. "It is therefore unnecessary to resolve certain other issues relating to the bargaining issues. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice department, and on the gas island all wear uniform shirts and trousers. All except five (St. Ju- lian, Frank, Radick, Sperling, and Crane) wear blue uniform shirts and trousers. St. Julian, Frank, Radick, Sperling, and Crane wear white uniform shirts and blue trousers. Donald St. Julian, admit- tedly the supervisor of the service department, wears a white uniform shirt upon the front of which is writing indicating that he is "service supervisor." There is no writing on the white uniform shirts of Radick, Frank, Crane, or Sperling to indicate that they are supervisors or not. It is undisputed that Crane is an employee in the alleged bargaining unit. It would appear that if the Respondent wished to identify Frank, Radick, or Sperling as supervisors by the use of white uniform shirts the Respondent would have had writing on said shirts to indicate such status as was done in the case of Donald St. Julian."' Considering the totality of the facts includ- ing the fact that Crane, admittedly not a supervisor, wore a white uniform shirt, I am convinced that the wearing of the white uniform shirts does not con- stitute persuasive evidence of supervisory status. The determination of Frank's, Radick's, and Sperling 's status is thus left to the evaluation of other facts. Donald St. Julian is service supervisor of the ser- vice department and has responsibility over the ser- vice department, stockroom, and diagnostic lane. St. Julian 's hourly rate of pay is $4.40. During the relevant time involved herein St. Julian worked 40 hours per week and during his hours of work was principally stationed at the service desk in the ser- vice department. While at the service desk St. Ju- lian was in contact with customers desiring automo- tive service and made assignments to the various employees in the department to do such services. The work schedules of St. Julian, Radick, and Frank were arranged in such a manner that one of the three was customarily on the service desk at all times . Thus Radick was on the service desk for 18 hours a week and while there made the same type of work assignments as St. Julian did when he was on the desk. Frank was also on the service desk for 18 hours a week and while there made the same type of work assignments as St. Julian did when he was there. Radick's and Frank's rate of pay was $3.50 per hour as compared to St. Julian's $4.40 per hour. " Williams testified to the effect that the difference between Sperling's uniform shirt and the "blue shined" employees was color Accordingly, I am convinced that his testimony , that on the back of Sperling 's shirt was the word "Pit-Boss," was inadvertently incomplete and that on the back of Sperling's shirt were the words "Pit-Boss, Service." 19 Knebusch testified to the effect that he did not believe that Radick or Frank spent half their time doing mechanical work The questions and an- swers as to this point although somewhat indicative that Radick and Frank did not do a great deal of mechanical work was relatively fragmented and was not sufficient to reliably determine the extent of such mechanical work. Especially is this so since the assignment of St . Julian, Radick, and Frank to the service desk was staggered throughout the week. 10 Based upon Fulton's credited testimony and the logical consistency of all the facts. To the extent that Williams' overall testimony may appear Radick's and Frank's rate of pay was equal to the rate of pay of Kraus, was less than Sperling's $3.75- per-hour rate of pay and from $.75 to $1.50 higher per hour than the other employees. Kraus regularly performed mechanical work but on occasion was utilized at the service desk when neither St. Julian, Radick, nor Frank, was available. When Radick and Frank were not working at the service desk, they assisted the service employees if the latter had problems, engaged in road-testing cars, and engaged in general mechanical work.19 As to the road-testing of cars, it is noted that St. Ju- lian, Radick, Frank, and, the salesmen were the ones normally supposed to road-test cars. On occa- sion , however, other employees did some road-test- ing. Radick and Frank occasionally checked to see how various work jobs had been performed.20 Radick and Frank, at cleanup time, helped em- ployees to clean the floors and to do other duties. On occasion after employees had been assigned specific jobs, customers would contact the service desk with reference to other incoming jobs. Ap- parently at times either St. Julian, Radick, or Frank would determine that the type of job required or the overall plan of work necessitated taking an em- ployee off a previously assigned job and reassigning the employee to a new job. On such occasions, St. Julian, Radick, or Frank took employees off a job before completion and made new job assignments. Service Supervisor St. Julian on various occa- sions told employees that Radick and Frank were assistant service managers .Y1 Frank on one occasion told employee Knebusch that Radick was the other assistant service manager and would be around to kind of kick you in the a- every once in a while, too." Williams testified to the effect that the supervi- sion in the Auto Center was as follows: that Wil- liams was overall supervisor and immediately han- dled the sales area and the gas island; that St. Julian was over the service department, the stockroom, and the diagnostic lane, that when St. Julian was absent there was no supervision over the service de- partment, the stockroom, and the diagnostic lane; that when he, Williams, was absent, there was no supervision over the sales area or gas island; that if a problem came up that a Mr. Massie, a merchan- dising manager in the main store, or an assistant main store manager would handle it.22 contradictory of the facts found above , it is discredited as being not as complete or detailed as Fulton 's on this point and consequently not as relia- ble when considered in total context with other facts Si To the extent that Williams ' testimony is to the effect that he did not know how employees would consider Radick or Frank as assistant service managers, such testimony is discredited The facts as to their duties at the service desk overwhelmingly support a finding that Radick and Frank func- tioned as assistant service managers and that all involved would know it 'r To the extent that Williams testified to the effect that there was no su- pervision over the service department and diagnostic lanes in the absence of St Julian, it is discredited I found Williams to be a truthful witness but this portion of his testimony constitutes conclusions of a legal nature and is not reliable when considered with all of the facts in the record J. C. PENNEY CO., INC. Williams also testified to the effect that Radick and Frank had made recommendations pertaining to employees, that he used his own judgment on such matters, that on occasions that he checked with Radick or Frank to verify his own judgment, that as to raises and other matters he conferred with Service Supervisor St. Julian. The type of questions and answers involved in the question of effective recommendation is one which is complex insofar as a witness is concerned. I am convinced that Williams' testimony to the effect that he checked with Radick and Frank to verify his own judgment reveals that he did give weight to their opinions and recommendations and that he did as- sume full responsibility for the judgments he made thereupon. As indicated previously, the facts reveal that Radick and Frank and all employees enjoyed the same fringe benefits. Radick and Frank were both hourly paid. On various occasions during the rele- vant time involved, Radick and Frank worked over- time but elected to take time off in lieu of their overtime pay. Considering all of the facts, I am convinced that the facts clearly reveal that Radick and Frank are supervisors within the meaning of the Act. I find it hard to believe and don't believe that the Respon- dent would leave the service department and diag- nostic lane without supervision during such times as the department and lane were open and St. Julian was not present. If so, this would mean that for 40 hours per week the service department employees had supervision and for 36 hours the service de- partment had no immediate supervision. The type of work involved in the service department appears to be the type that would continue throughout the time that the department was open for business. The facts are clear that Radick and Frank exercised the power of assignment of work. It is clear that as to many of the assignments the need for judgment to be exercised was slight. As an example, it is clear that on many occasions the service manager (or Radick or Frank) had jobs to assign which could be assigned to any available employee. On other occa- sions, it is clear that the service manager (or Radick or Frank) had to consider the capabilities of the employees available and the type of job up for assignment. As indicated , on occasion the service manager (or Frank or Radick) had to take em- ployees off previously assigned jobs and assign the employees to new jobs. It is thus clear that it was essential for the service manager or the person functioning in his stead to have the power to make assignments in a nonroutine fashion. The facts clearly establish that Radick, the service manager and the ones functioning in his stead exercised the power of assignment in a nonroutine fashion. Since " It is therefore concluded that the evidence fails to establish illegal con- duct on the part of the Respondent by Sperling , as alleged $4 The facts are based upon a composite evaluation of DeVito's credited and uncontradicted testimony and the logical consistency of all the evidence and a fair inference therefrom. Since the time records reveal that Radick's working hours on the date involved started at 1 p.m., I set the time 669 Radick and Frank possessed and exercised the power of assignment of work in a nonroutine fashion, the facts clearly establish that Radick and Frank, during the relevant time involved, were su- pervisors within the meaning of the Act. I so con- clude and find. Sperling worked in the diagnostic lane. Sperling's rate of pay was $3.75 per hour as compared to $3.50 per hour for Radick and Frank (found to be supervisors herein) and Kraus and as compared to Service Supervisor St. Julian's rate of pay of $4.40 per hour. Sperling's rate of pay was approximately $1 to $1.75 per hour higher than that of employees other than those mentioned above. The diagnostic lane was normally open from 9 to 12 a.m. and from I to 6 p.m. The employees who normally worked in the diagnostic lane (Sperling and Cimino) performed a large number of checks on cars to determine the mechanical needs of the car. On the days that Sperling or Cimino were off, St. Julian, the service supervisor, assigned an em- ployee from the service department to work in the diagnostic lane. There is no evidence that any official or super- visor ever made statements to employees to the ef- fect that Sperling was a supervisor. Cimino credibly testified to the effect that Sperling assigned him his duties and told him what to do. It is noted, how- ever, that Cimino credibly testified to the effect that on several specific occasions it was St. Julian, the service supervisor, who told him of his assign- ment to or away from the diagnostic lane. Cimino credibly testified to the effect that Sperling was an older person and that he never questioned Sperling's directions. Cimino a:so credibly testified to the effect that when he and several employees went to see the union representative about organiz- ing a union , he asked Sperling to go along. Cimino also credibly testified to the effect that Sperling worked along with him in cleaning up the area. Considering all of the facts in this case, I am con- vinced that the totality of the evidence reveals that Sperling is an older and skilled employee and that his direction of the work of Cimino was that of an older and skilled employee directing a helper. In ef- fect such direction constituted routine accommoda- tion of leadership of an older and more skilled em- ployee to a younger and less skilled employee. Ac- cordingly, I conclude and find that the facts do not reveal that Sperling was a supervisor within the meaning of the Act.23 2. Conduct of Steve Radick a. Threat to De Vito 24 On May 24, 1967, around 1 p.m., Gary DeVito who was off for the day, was at the Auto Center in of the incident around that time Since the time records indicate that Patek did not work on that date, I infer that for some other reason he happened to be at the Auto Center at the time involved. Since I am convinced that DeVito correctly timed the incident as being the same date as Friedman made his demand , I am convinced that the event occurred on May 24 rather than some other date 670 DECISIONS OF NATIONAL street attire. DeVito was wearing a union button upon which was written, " have joined Teamsters Union No. 507." DeVito purchased some gasoline and went in to the sales area to where the cash re- gister was located to pay for the gasoline. Salesman Bob Patek, who was off for the day but who was in the Auto Center, said to DeVito "What's that on your shirt?" DeVito replied to Patek, "It's my but- ton." Supervisor Steve Radick, who was present, said, "No, that's your discharge button." Considering the foregoing, I conclude and find that the Respondent, by Supervisor Radick, on May 24, 1967, threatened employee DeVito with discharge because he was wearing a union button. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. b. Threats to Gelbach On the evening of May 24 , 1967, Supervisor Radick spoke to employee Gelbach . What trans- pired is revealed by the following excerpts of Gel- bach 's credited testimony: Q. Now, calling your attention to the 24th of May, 1967, and in particular the evening hours, did you have occasion to speak to Mr. Steve Radick on that day? A. Yes. Q. All right . Will you tell us from the beginning what you and he said to each other? A. We were standing at the service desk and Steve and I and a customer were standing there , and the customer looked at me, he looked at my badge and he said , "Local 507. What is that?" Steve Radick said, "That's his discharge button." Q Was there any more said at that point? A. No. Considering the foregoing , I conclude and find that the Respondent, by Supervisor Radick, on May 24, 1967, threatened Gelbach with discharge because he was wearing a union button . Such con- duct is violative of Section 8(a)(1) of the Act. I so conclude and find. On the evening of May 25 , 1967, Supervisor Radick again spoke to employee Gelbach. What transpired is revealed by the following excerpts from Gelbach 's credited testimony. A. About 7:00 o 'clock. Q. Where were you at that time? A. I was in one of the bays. 0. Who else was present? A. A customer and Steve. 0. Will you tell us everything that happened from the beginning on that occasion? A. We were standing there and the customer looked at the badge and he said, "What 's that?" " Although the complaint did not allege this incident , at the hearing it was made clear to the parties and the Trial Examiner that the General LABOR RELATIONS BOARD Steve looked and he said, "That's his walk- ing papers." Q. Was there anything more that was said? A. I turned around and walked away. Considering the foregoing, I conclude and find that the Respondent, by Supervisor Radick, on May 25, 1967, threatened Gelbach with discharge because he was wearing a union button. Such con- duct is violative of Section 8(a)(1) of the Act. 3. Conduct of Dan Frank a. Interrogation of Fulton Around June 6, 1967, 2 weeks after May 23, 1967, Supervisor Frank and employee Fulton had a conversation.25 What occurred is revealed by the following credited excerpts from Fulton's testimony: 0. Can you tell us approximately, that is by saying within a few days, within a week, within a month, something of that nature, when this conversation occurred? A. About two weeks, three weeks after we had signed the cards. Q. About what time of day was it? A. 5:00 o'clock in the afternoon, if I re- member right. Q. You were there together, alone, no one else was near enough to be able to overhear the conversation? A. That's right. Q. Who initiated the conversation? A. I did. Q. Will you tell us- A. I was doing a front end alignment on a car and I had run into a problem and I called him over to ask him a question and we started talking. He asked me what my feelings on the Union were, what my opinion was, and I told him that we had talked, the men had talked together, that we felt that after talking to the Company that we weren't getting anything, we were told that things were going to be done but they weren't-maybe they were being done, it's a long process, but to us it didn't seem that anything was happening, what we had asked for, and we decided the only way we could get anything was to stand together, to stick together, was to form a union. Q. Is that all you can recall of what you and he said to each other on this occasion? A. Yes. Considering all of the foregoing, and in connec- tion therewith the illegal conduct of Supervisor Radick previously described, I conclude and find that the Respondent, by Supervisor Frank, on or Counsel contended that this incident constituted alleged illegal interroga- tion by Frank . I find it clear that the incident was litigated as such J. C. PENNEY CO., INC. 671 about June 6, 1967, engaged in interrogation of employee Fulton about his union beliefs and desires in a manner constituting interference , restraint, and coercion within the meaning of the Act. Such con- duct is violative of Section 8(a)( I) of the Act. I so conclude and find. the Recommended Order below, which is found necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the poli- cies of the Act. Conclusions of Law b. Alleged threat to close down Around 2 or 3 weeks after May 23, 1967, Super- visor Frank and employee McDonnell (spelled Mc- Donald in transcript ) engaged in a conversation. What transpired is revealed by the following credited excerpts from McDonnell's testimony: A. Once in the locker room jokingly I said to Mr. Frank, did he drop his Union button and he said "No." Then seriously I asked him what he thought of the whole situation, and he was kind of hesitant to speak, but he said he was afraid if we asked for too much we would just get nothing and they wouldn't meet our demands, they would just close the store if we asked for too much. I said, "Well, they could raise the prices if they had to." He said they wouldn't be able to raise the prices. I asked him why not and he said that they were nationwide prices or something like that and they couldn't be changed, but I felt that if the Company wanted to change them they could. Considering all of the foregoing, I conclude and find that the evidence fails to establish that Super- visor Frank's statements to McDonnell constituted a threat that the Respondent would close down or cease operations at the Auto Center if the Union became the collective-bargaining representative of the Auto Center employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action of the type which is con- ventionally ordered in such cases, as provided in 2° In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice . In the further event that the Board's Order is enforced by a decree of a United States 1. Teamsters Local 507, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 2. J. C. Penney Company, Inc., the Respondent, is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their or other employees' union affiliation or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (b) Threatening its employees with discharge, or with other reprisals, because of their activities on behalf of a labor organization. (c) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization, form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activi- ties, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (a) Post at its plant in Richmond Heights, Ohio, copies of the attached notice marked "Appendix A."26 Copies of said notice, on forms provided by Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order" 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 8, after being signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places where notices to employees are customarily posted. The Respondent shall take reasonable steps to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 8, in writing , within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.27 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX A 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their or other employees' union affiliation or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with discharge or with other reprisals because of their activity on behalf of a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. Dated By J. C. PENNEY COMPANY (Employer) (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, Federal Office Building Room 1695, 1240 East Ninth Street, Cleveland, Ohio 44115, Telephone 522-3725. APPENDIX B PERSONS EMPLOYED AT J. C. PENNEY COMPANY, INC. RICHMOND HEIGHTS STORE AUTO CENTER ON MAY 24th 1967 SERVICE DEPARTMENT NAME HOURLY RATE FT-FULL TIME PT-PART TIME Donald St. Julian $4.40 FT C. Dan Frank 3.50 FT Stephen Radick 3.50 FT Raymond Kraus 3.50 FT Robert Fulton 2.75 FT Jeff Hebert 2.60 FT Robert McDonnell 2.60 FT Robert Rupp 2.75 FT Al Boczek 2.75 FT Richard Rohl 2.60 FT Norman Knebusch 2.50 FT J. C. PENNEY CO., INC. 673 Kenneth Korpowski 3.25 FT Thomas Linn 2.60 FT Dennis Skufca 2.60 FT Gary DeVito 2.00 FT James Perine 2.60 FT Richard Imbry 2.60 FT Frank lannetta 2.00 PT Bernard Barry 2.00 PT Ken Sawyer 2.00 PT William Carlton 2.00 PT Wayne Hillkirt 2.00 PT Dave Gelbach 2.00 PT James Krager 2.00 DIAGNOSTIC LANE PT Richard Sperling $3.75 FT Phil Cimino 2.75 GAS ISLAND FT Allan Lang 2.00 FT Timothy McCarthy 2.00 STOCKROOM FT Ralph Crane 2.00 FT Leon Azelis 2.00 SALES FT Robert Patek 1.75 FT Terry Lewis 1.50 FT Walter Zipperle 1.50 FT George Aspern 1.75 PT Joseph Case 1.75 OFFICE PT Mary-Lou Dezort 1.70 FT 354-126 O-LT - 73 - pt. 1 - 44