R & M Electric Supply Co.

R & M ELECTRIC SUPPLY CO 603 Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose Scavelh and Zoera Hatgis, Copartners, d/b/a R & M Electric Supply Co and Local 1922, Interna- tional Brotherhood of Electrical Workers, AFL-CIO Case 29-CA-2299 November 30, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 7, 1971, Trial Examiner George Turitz issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief Respondent filed a brief in answer to the General Counsel's cross- exceptions 1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions ,2 as modified herein Aside from unit consideration, which for reasons stated infra we need not reach, the Trial Examiner indicated that he would find an 8 (a)(5) violation predicated upon the Respondent's refusal to bargain with the Union absent a Board-conducted election We disagree As we noted in Linden Lumber,3 an employer is not required by the Act to recognize and bargain with a union solely upon the strength of its assertion that it represents a majority of the employees involved, notwithstanding that the union predicates its asser- tion upon an adequate showing of signed authoriza- tion cards Rather, we have held that an employer may, in the face of a union demand for recognition, insist that a question concerning representation be resolved by means of a Board-conducted election, absent agreement between the parties on an alterna- tive means for resolving the question or misconduct on the part of an employer which is of such a character as to have a lingering and distorting effect on any future election On the other hand, if an employer rejects the foregoing alternative and unilaterally undertakes to determine a union's majority or minority status by means of a poll, under conditions of his own choosing, the employer cannot thereafter disclaim the results simply because he finds them distasteful 4 Applying the above criteria to the facts of the instant case, we note that the Respondent's interro- gations of only two out of approximately nine employees, neither rises to the level of a poll which revealed majority status, as in Nation-Wide Plastics, nor, even when considered together with one threat of futility concerning union organization, was of such character as to justify a bargaining order under our Gissel standards We shall therefore dismiss the 8(a)(5) allegation of the complaint The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by telling employees, in effect, that their strike and other concerted activities were futile because the Respon- dent would not bargain collectively irrespective of the employees' choice in the matter We do not, however, agree with the Trial Examiner that this is a case in which, because only one of the severally alleged violations of the Act was found to be proved, we should withhold the issuance of a remedial order We regard as a serious violation of the Act the Respondent's coercive attempt to impress upon its employees the futility of continuing to exercise rights guaranteed to them by Section 7 of the Act Accordingly, we find that it will effectuate the purposes of the Act to issue our usual remedial order for the violation found CONCLUSIONS OF LAW 1 Respondent is engaged in commerce within the meaning of the Act 2 Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act 3 By telling employees that their strike and other concerted activities were futile because the Respon- dent would not bargain collectively irrespective of the employees' choice in the matter, the Respondent has engaged in unfair labor practices defined in Section 8(a)(1) of the Act i The Employers request for oral argument is denied since in our opinion the record including the transcript exhibits and briefs adequately presents the issues and position of the parties 2 In the absence of exceptions thereto we adopt pro forma the Trial Examiners dismissal of 8(a)(1) allegations concerning alleged threats by William Velys 3 Linden Lumber Division Summer & Co 190 NLRB No 116 4 Nation Wide Plastics Co Inc 197 NLRB No 136, Sullivan Electric Company 199 NLRB No 97 Fred Snow Harold Snow and Tom Snow d/b/a Snow & Sons 134 NLRB 709 5 The Trial Examiner found that notwithstanding the absence of Struksnes safeguards Respondent s interrogations of unit employees did not violate Section 8(a)(1) of the Act in the absence of exceptions, we adopt that finding pro forma However our pro forma adoption of this finding is not to be taken as any indication that we condone such conduct See Struksnes Construction Co Inc 165 NLRB 1062 200 NLRB No 59 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose Scavelli and Zoera Hatgis, Copartners, d/b/a R & M Electric Supply Co, Riverhead, New York, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Telling employees that their strike and other concerted activities are futile because the Respon- dent will not bargain collectively regardless of the employees' choice in the matter (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the Act 2 Take the following affirmative action which in our judgment appears necessary and appropriate to effectuate the purposes and policies of the Act (a) Post at its premises in Riverhead, New York, copies of the attached notice marked "Appendix "6 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith IT IS FURTHER ORDERED that all allegations of the complaint which charge the Respondent with unfair labor practices other than those found herein be, and the same hereby are, dismissed MEMBER FANNING dissenting In complete disregard of the Trial Examiner's finding that Mike Velys Jr, Respondent's principal managing partner, knew that a majority of his employees had selected the Union as their collective- bargaining representative, my colleagues hold that Respondent should not be held in violation of the Act for refusing to recognize and bargain with the Union This holding is directly contrary to the Supreme Court's recent reaffirmation of its holding in United Mine Workers of America v Arkansas Oak Flooring Co, 351 U S 62, that in the absence of a 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by order of the National Labor Relations Board shall read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an order of the bona fide dispute as to the existence of the required majority employee support an employer violates 8(a)(5) when it refuses to bargain with the union selected by its employees 7 It also runs counter to recent decisions of the Board in Sullivan Electric Company, 199 NLRB No 97, and Pacific Abrasive Supply Co, a subsidiary of the Carborundum Company, 182 NLRB 329 My colleagues choose to dismiss the complaint because Respondent interrogated only two out of nine employees as to their desires concerning representation , finding that such interrogation "nei- ther rises to the level of a poll which revealed majority status, as in Nation -Wide Plastics, nor, even when considered together with one threat of futility concerning union organization , was of such charac- ter as to justify a bargaining order under our Gissel standards "8 This narrow focus on whether or not Respondent interrogated more or less than a majori- ty of unit employees effectively precludes realistic application of the test enunciated by the Supreme Court in the United Mine Workers case, namely that whenever the union representative has presented convincing evidence of majority support, the bar- gaining obligation arises The attempted distinction between "union-prof- fered" evidence of majority status and evidence of such status developed by the employer's independent solicitation or investigation simply will not wash Under that test, an employer is not obligated to bargain if the union representative comes into his office with all the employees in the unit and asks them to sign authorization cards in the employer's presence, if the employer remains silent But if, in such circumstances, the employer asks his employees if they really meant to designate the union as their representative by such action, and they respond affirmatively, he is obligated to recognize the union I do not believe the existence of the bargaining obligation can be made to depend on the results of such game playing Nor has the Supreme Court made the distinction made by my colleagues Indeed the Court explicitly rejected it, stating that "it was early recognized that an employer had a duty to bargain whenever the union representative presented 'con- vincing evidence of majority support ' "9 and that a union "could establish majority status by other means under unfair labor practice provision of Section 8(a)(5)-by showing convincing support, for instance, by a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of National Labor Relations Board N L R B v Gissel Packing Co Inc 395 U S 575, 595-600 8 Par 6 of the decision supra 9 Ibid at page 596 R & M ELECTRIC SUPPLY CO 605 the employees authorizing the union to represent them for collective bargaining purposes "10 Clearly the test laid down by the Supreme Court has been satisfied in this case The Umon presented Mike Velys with authorization cards signed by nine of his employees Velys was familiar with his employees' signatures He carefully examined the cards and photocopied them He showed the cards to his brother and copartner who admitted that the signatures appeared genuine At the invitation of Faccio, the union representative, Mike Velys asked two employees who were present whether they had signed of their own free will When they said they had, he asked them if Faccio had solicited them They replied that they had sought out Faccio Velys thereupon said "All right, come back in a week " When Faccio insisted upon immediate recognition, Velys became indignant, whereupon Faccio threat- ened an immediate strike When Velys refused to be dictated to, Faccio left and called the employees out on strike, all the card signers joined the strike, and appeared on the picket line Respondent never questioned the Union's majority status, but later attempted to persuade the Union to go to an election in a different unit 11 On these facts there can be no question that the Respondent was convinced of the Union's majority status Even applying the majority's test, it appears that the Respondent's independent investigation demon- strated to its satisfaction that the Union enjoyed the support of a majority of its employees Thus Velys, though he could have refused to examine the cards and filed a petition for an election to resolve the question concerning representation,12 thoroughly examined the cards, as did his brother who conceded that the signatures were genuine Velys photocopied the cards for his own records, and queried two employees as to whether they had signed the cards willingly and as to whether the Union had initiated the organizing drive When told that the employees had taken the initiative, Velys, in apparent acknowl- edgement of a fait accompli, said to Faccio, "All right come back in a week " When Faccio insisted upon immediate recognition, though he indicated he was willing to defer negotiations for a contract to a later time, Velys became indignant and stated he would rather close the place or burn it down When the employees followed Faccio out on strike, Velys remonstrated with them that they didn't know what they were doing, that they should not listen to this guy, that if we even had a problem we could work it out, and that they didn't need this guy to talk for them Whether or not these remarks be deemed to be coercive, is, I think, unnecessary to decide 13 Clearly, however, they are the remarks of a man who has satisfied himself that his employees had chosen union representation against his wishes In these circumstances, my colleagues clutch at straws to find that Respondent did not independently uncover facts demonstrating majority support for the Union merely because Velys stopped interrogating his employees after the first two employees assured him that the employees had brought the Union in On the basis of the entire record in this case, I find that in support of its demand for recognition the Union presented Velys with convincing evidence of its majority status I further find, in agreement with the Trial Examiner, that Respondent refused to recognize and bargain with the Union, not because of any doubts as to the Union's majority status, but solely to test the appropriateness of the unit sought by the Union As it is now well established that an employer refuses to bargain on such grounds at his peril,14 and as I am satisfied that the unit is appropriate for purposes of collective bargaining, I find that Respondent violated Section 8(a)(5) in refusing to recognize and bargain with the Union I therefore dissent from my colleagues' refusal to issue a bargaining order in this case 10 Ibid at page 597 The Court went on to say We see no reason to reject this approach to bargaining obligations now 395 US at 598 11 The Trial Examiner agreed with Respondents unit contentions and therefore absolved it of an obligation to bargain upon the Union s demand My colleagues do not affirm his unit findings I believe the unit sought by the Union is as alleged in the complaint appropriate for the purposes of collective bargaining That unit is essentially an empioyerwide unit except for the exclusion of office clerical employees Although it includes outside salesmen who normally are excluded from inside units there is only one such salesman and his exclusion would leave him without the opportunity to engage in collective bargaining Moreover he seeks inclusion in the unit With respect to the inclusion of buyer-price quote men, whom the Trial Examiner would exclude they and the counter men enjoy similar rates of pay and the countermen and warehousemen are in line of progression to buyer price quote positions All employees in the unit enjoy the same fringe benefits and work under common overall supervision These factors plus the small size of the unit and the fact that no other union seeks to represent these employees on another basis persuade me as to the appropriateness of the claims to unit 12 Bill Pierre Ford Inc 181 NLRB 929 13 Velys remarks may have been an emotional outburst as the Trial Examiner found but the import of that outburst is clearly sounded in the later remarks to strikers of Frank Scavelli properly found by the Trial Examiner to be violative of Section 8(a)(1) why don t you guys quit this stupid stuff you know you are never going to get the Umon here Mike s never going to go to the Union 14 See cases cited by the Trial Examiner and Aaron Brothers Company of California 158 NLRB 1077 And see the representation made by the Board to the Supreme Court in the Gissel case, that an employer could not refuse recognition initially because of the appropriateness of the unit and then later claim as an afterthought that he doubted the union s strength Gissel supra at 594 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell employees that their strike and other concerted activities are futile because 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we will not bargain collectively regardless of their choice in the matter WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization MIKE VELYS, SR, MIKE VELYS, JR, Ross VELYS, ROSE SCAVELLI AND ZOERA HATGIS, COPARTNERS, D/B/A R & M ELECTRIC SUPPLY Co (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3535 Respondent were represented by their respective counsel Respondent has submitted a brief Upon the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose Scavelli, and Zoera Hatgis are partners doing business under the name R & M Electric Supply Co Its office and place of business is located at Riverhead, New York, where it is engaged in the sale and distribution at wholesale and retail of electrical heating equipment, lighting fixtures, supplies, materials, and appliances, and related products In the course of its operations Respon- dent annually purchases and causes to be transported and delivered to its Riverhead plant, directly from States of the United States other than New York, supplies, materials, and equipment valued at in excess of $50,000 I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended ("the Act") II THE LABOR ORGANIZATION INVOLVED Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES The principal issues litigated at the hearing were whether the unit covered by the Union's request and alleged in the complaint was a basically appropriate unit in view of the inclusion of buyers-price-quote men, outside salesmen, and an alleged supervisor, and the exclusion of bookkeepers, and whether Respondent's refusal to recognize the Union upon presentation of cards was violative of the Act where no issue had been raised as to majority TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TuRiTZ, Trial Examiner Upon a charge filed by Local 1922, International Brotherhood of Electrical Work- ers, AFL-CIO ("the Union") on March 4, 1971, and that day served upon Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose Scavelli, and Zoerai Hatgis, Copartners, d/b/a R & M Electric Supply Co ("Respondent" and at times, "the Company"), the General Counsel of the National Labor Relations Board ("the Board"), through the Regional Director for Region 29, on April 22, 1971, issued a complaint and notice of hearing which was duly served upon Respondent Respondent filed its answer in which it denied all allegations of unfair labor practices A hearing on the complaint was held before me at Riverhead, New York, on June 14 through June 16 and July 12 through 14, 1971, at which the General Counsel and 1 I have amended this name on my own motion to reflect the proper spelling of this name A The Request for Recognition Interference, Restraint and Coercion Shortly prior to March 1, 1971,2 a number of Respon- dent's employees asked George Lohr, one of Respondent's buyers-price-quote men, to find out about a union He did some telephoning and on March 1 a meeting was held at Lohr's house which was attended by Joseph Faicco, treasurer and business agent of the Union, Peter Ray, a member of its executive board, and by the following employees of Respondent in addition to Lohr Alex Washick, a buyer-puce-quote man, James Renner, an outside salesman, Robert Fabrykewicz, a counterman, Sam Grant, Gerado Cajigas, and Warren Langhorne, warehousemen-drivers, and Walter Ganko, an irregular part-time employee All eight signed applications for membership in the Union, and Faicco gave one of the employees cards for two prospects not present, namely Michael Tycz, who worked in the warehouse and at the 2 All dates referred to in this Decision were in 1971 unless otherwise stated R & M ELECTRIC SUPPLY CO 607 counter, and Stuart Oldnn, a bu}er-price-quote man The men voted not to file a petition but to present their cards to Respondent and demand immediate recognition They elected Lohr and Washick as committeemen to accompany Faicco, and they authorized Faicco and the committee to call them out on strike if immediate recognition was refused On March 2, a Tuesday, which was Respondent's busiest day, Faicco and Ray went to Respondent's premises They introduced themselves as representatives of the Union to Mike Velys, Jr, Respondent's principal managing partner, and requested the presence of Lohr and Washick Velys3 said that they were busy and asked what Faicco wanted At the same time he started to escort Faicco by the arm out to the platform Washick went along, Lohr came out a few minutes later Out on the platform Faicco handed Velys his business card, told him that the Union represented a majority of the employees, and requested recognition Velys, pleading that he was busy and that he would have to speak to counsel, asked Faicco to return in a week On Faicco's insistence that he could not wait, Velys said that he did not know that the Union represented the employees Faicco offered to prove it and, challenged by Velys, told him to ask Lohr and Washick Velys countered that that was only two, whereup- on Faicco handed him the nine signed cards,4 which Velys examined carefully and then, with Faicco's permission, photocopied Velys was familiar with his employees' signatures, since occasionally he paid them personally and got their signatures on the payroll Velys' brother and copartner, Ross, came in and, shown the cards, admitted that the signatures appeared to be authentic Velys asked Lohr and Washick whether they had signed of their own free will, and when they said that they had, he asked whether Faicco had solicited them They replied that they had sought out Faicco Velys then said, "All right, come back in a week, and then maybe I'll talk to you at that tune " He turned to Lohr and said, "Don't you think I deserve a week after you've been with me for 10 years?" Faicco said that he was not asking to negotiate a contract at that time, but he insisted that the Union be recognized that very day He told Velys to telephone his lawyer and have him come right down, offering to wait, and he threatened to call the men out on strike Velys became upset and exclaimed, "You're not going to tell me what to do Who do you think you are, God?" and he said that he would rather close the place or burn it down -5 At no time during the conversation, after examining the cards and questioning Lohr and Washick, did Velys state, or indicate in any way, that he doubted the Union's majority or that he had any question about the appropriateness of the unit or the inclusion therein of any category of individual employed Faicco insisted on recognition that day, but Velys refused and finally told him to leave Faicco, after warning Velys that the men would follow him if he left, said to Lohr and Washick, "Let's go " Those two walked out Washick 3 Where the name Velys appears without Christian name it will refer to Mike Velys Jr 4 Tycz had signed that day 5 At one point Lohr testified that Velys said that he would burn the place down before I get a union I have not credited that testimony Nor have I called to Fabrykewicz, "Bob, we are going to walk out " All present who had signed cards promptly walked out Velys called to them, "Hey, where are you going9 We got work to do You guys don't know what you're doing Don't be listening to this guy If you guys ever had a problem we were able to work it out What do you need this guy to come and talk for you for9" Ganko arrived later that afternoon and joined the picket line Renner was not at the plant on March 2 but joined the picketing on March 3 The Union filed the charge on March 4 On March 3 Frank Scavelli, husband of Rose Scavelli, a partner, drove up to several of the picketing employees and said "Why don't you guys quit this stupid stuff, you know, you're never going to get the Union here Mike's never going to go to the Union Why don't you just come back to work" 6 Washick testified that during the 1st or 2d week of the strike William Velys, a son of Michael Velys who was about 21 years of age and was employed primarily as an outside salesman, approached him and Lohr while they were picketing and said that they were wasting their time and should return to work since the Company would never go union, that the employees could have their "own union," but his father would never go union Lohr testified to the same effect William Velys denied making the statements attributed to him by Lohr and Washick Concluding findings as to interference, restraint, and coercion 1 Velys exclamation that he would burn or close up his place was in response to Faicco's peremptory instruction to him to get his lawyer down immediately He had not said that he would not bargain, he had asked for a week's time to consult counsel In those circumstances his exclamation would not be interpreted by the employees as a threat to close up before allowing the employees to bargain collectively, it would seem, rather, to be an emotional protest against what Velys considered Faicco's arrogance in dictating to him that he have his lawyer rush down to the plant forthwith and give an immediate answer As such a protest would have no coercive tendency, I shall recommend that paragraph 13 of the complaint be dismissed 2 Velys' questioning of Lohr and Washick as to whether they had signed the cards willingly did not have a coercive thrust The photocopying of the cards indicated to the employees that he was trying to ascertain his obligation as to recognition, Faicco's consent must have been based on that assumption Velys' questions as to the employees' willingness were on their face plainly part of that effort His question as to whether Faicco had initiated the contact followed hard upon the other questions, and, in the circumstances, appeared to be part of the same effort The fact that Velys was obviously caught by surprise and spontaneously asked the questions in the presence of the credited Velys testimony that he commented that he would not be able to manage in case of a strike and might have to close 6 Scavelli admitted asking Washick and several other sinkers to go back to work and saying that any problems could be straightened out but he testified that he did not recall making the other statements referred to 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two union officials makes evident that, notwithstanding the absence of the safeguards set forth in Struksnes Construc- tion Co, Inc, 165 NLRB 1062, Velys' interrogation of Lohr and Washick did not tend to coerce the employees Cf Pacific Abrasive Supply Co, a subsidiary of the Carborun- dum Company, 182 NLRB No 48 I shall therefore recommend dismissal of paragraph 12 of the complaint ` 3 William Velys had no supervisory authority and, especially in view of his youth, there is no evidence that he appeared to employees to be authorized to speak for his father I shall therefore recommend dismissal of the portions of the complaint based upon his statements 4 Scavelli in effect told Lohr and Washick that their strike and other concerted activities were futile because Respondent would not bargain collectively irrespective of the employees' choice in the matter Such a warning by employer is violative of the Act See Better Val-U Stores of Mansfield, Inc, 161 NLRB 762, 763, enfd in relevant part 402 F 2d 491 (C A 2) The only question, therefore, is whether Respondent is answerable for Scavelli's statement Scavelli was Respondent's top outside salesman He was out on the road all day Monday through Thursday and half a day on Friday He spent Friday afternoon at the office doing paper work connected with his sales work, and making heating layouts for customers He took turns with Michael and Ross Velys, the two managing partners, in being at the plant on Saturday He did his usual paper work on those occasions but was also in complete charge of the establishment, and he directed employees in their work of putting stock away and generally tidying up the warehouse The employees thus saw little of Scavelli, but at least half of what they saw was an individual taking the place of the two managing partners as the person in overall charge of the entire establishment As he was, in addition, the husband of a partner, Respondent must have known that he would be regarded by the employees as a "boss," as Tycz credibly testified he regarded Scavelli Without passing upon the question of whether Scavelli was in fact a supervisor, I find that he was at least an apparent supervisor and agent of Respondent Accordingly, I find that by his remarks to Washick and Lohr Respondent violated Section 8(a)(1) of the Act B The Refusal To Bargain I Unit (a) General description of Respondent's operations The nature of Respondent's business Respondent's retail business was conducted over a counter and in a showroom The wholesale customers were principally electrical con- tractors and builders, but also included institutions, industrial establishments, and hardware stores In some instances wholesale customers submitted architect's plans and requested "quotes" or bids on the electrical items required In other cases they telephoned orders in or came to Respondent's plant and purchased merchandise over the counter However, Respondent had three outside salesmen who called on customers and solicited orders, and they brought in most of Respondent's business The record contains no direct testimony as to the relative proportions of the retail and wholesale business However, as most was obtained by the outside salesmen, who did no retail business, and as substantial additional business came in over the telephone from charge customers, all of them wholesale, and much of the counter business was whole- sale, I find that Respondent's business was essentially wholesale The plant Respondent's premises consisted of a parking lot and three buildings, known, respectively, as the main building, the main warehouse, and the small, or old, warehouse The great preponderance of work was per- formed in the main building and the main warehouse The main building had four areas, namely, a stockroom and counter, a showroom, an office, and a loading dock The stockroom counter area was at the end of the building nearest the main warehouse, with which it was connected by a covered passageway The showroom was at the other end of the building, separated from the stockroom and counter by the glass-enclosed office, but with a bypass permitting direct access The loading dock faced the parking lot and ran the full length of the building Across the parking lot was the small warehouse The bulk of Respondent's inventory was maintained in the main warehouse, but very large items were kept in the old warehouse, and plastic pipe and related conduit items were kept in a stockade in a corner of the property Respondent maintained in the stockroom-counter area smaller stocks of many of the articles kept in the main warehouse Retail business Whether purchasing at the counter or in the showroom, retail customers paid cash and they usually carried out their purchases The showroom was devoted principally to lighting fixtures, of which over 1,000 were on display, but tools, fans, stove hoods, high fidelity sound equipment, and appliances were also handled there Most showroom items were price marked, but many were not In any event sales were usually made by showroom personnel, and they wrote up complete invoices, including prices Retail business in other items, such as wire, wiring devices, switches and anything else Respondent carried, was handled at the counter The purchased items were usually obtained right at the counter or in the stockroom, but sometimes, especially if the stockroom inventory happened to be low, in the main warehouse The person waiting on the customer listed the items, with accurate identification, which included manufacturers' parts numbers, on an invoice and packed them While one or two employees were sufficiently knowledgeable to ascertain and insert the prices, the more usual procedure was to submit the invoice to the buyer-price-quote man or men who had charge of the respective types of merchandise covered by the invoice They inserted the appropriate unit prices and returned the invoice to the person who had made the sale The latter thereupon did the necessary multiplying and additionn -"extending" the invoice-or had one of the bookkeep- ers do it,7 collected the money, and handed the purchased articles to the customer Wholesale business Much-probably most-counter 7 Frequently two other women members of the Velys family who worked primarily in the showroom also extended invoices R & M ELECTRIC SUPPLY CO 609 business was with wholesale customers These normally had established credit with Respondent, a fact indicated by a nameplate in a file maintained by Respondent The person waiting on a wholesale customer obtained the purchased items from the stockroom or, quite frequently, especially because of the large quantities involved, from the main warehouse He listed them on an invoice, with accurate identification, packed them, and handed them to the customer When the purchases were bulky, they were loaded on the customer's vehicle The man making the sale placed the invoice in the drawer for charge customers Most wholesale orders came in over the phone, either directly from customers or from one of Respondent's three outside salesmen In addition Respondent submitted bids for big jobs, usually on the basis of architect's plans Respondent divided the territory it served into five specific delivery zones, a local zone and four others Local deliveries were made at various times Regular deliveries to each of the other zones were made on a specified day of each week The person taking the order made up an invoice which indicated the customer's name and address and listed the items ordered, with accurate identification, and placed the invoice in the appropriate one of five "in" baskets, each for a particular zone, which were kept on the workbench in the stockroom Deliveries All employees were familiar with the regular weekly delivery day for each zone From time to time on that day an employee would take an order from the "in" basket for the day's delivery zones and obtain those items which were kept in the area where he worked Thus, a counterman would handle items to be drawn from the stockroom or the counter, and a warehouseman would handle items that had to be drawn from the warehouses or stockade The employee would assemble the purchased items near the loading dock, labeling the pile with the customer's name and address, and would indicate on the invoice which articles were being shipped and which were unavailable and therefore had to be "back-ordered," i e , procured by Respondent and shipped at a later date If the order could not be completed in this manner with stock from his area, he would replace the invoice in the "in" basket, and an employee working in another area would eventually pick it up and add the remaining articles to the customer's order near the loading dock The employee who completed the filling of the order placed the invoice in the "out" basket for the zone involved Pricing and Billing After the truck had left the premises, the invoices in the "out" basket were brought to Velys,9 who examined them with a view of keeping abreast of how various lines of merchandise were moving and also to note the extent of "back-ordering " Excessive back-ordering of particular items could indicate that the buyer-price-quote man for those items had not maintained a sufficient inventory Velys then handed the invoices to Washick, the least senior buyer-price-quote man, who entered each back order in the back-order book for the type of merchandise involved He next inserted on the invoice the unit prices for each article in his area of responsibility and handed the invoice to one of the other two buyer-price-quote men, and they in turn inserted the unit prices for their areas of responsibility When everything had been priced, the invoices were handed to the bookkeepers, who computed sales tax, if any, extended and totaled the invoices, and made the necessary bookkeeping and ledger entries for billing Purchasing was carried on by the three buyer-price-quote men, each of whom had a defined group of products as his responsibility This phase of Respondent's operations will be described in more detail later in this Decision (b) Categories of employees and contentions of the parties Respondent did not have formal employee classifica- tions, but employees were assigned primary functions as follows driver-warehousemen, counterman, buyer-price- quote men, bookkeepers, cleaning woman or porter, and outside salesmen All enjoyed the same fringe benefits Respondent contends that Michael Tycz was warehouse manager and a supervisor, the General Counsel contends that he was not a supervisor Both parties agree that the unit included two countermen, three warehousemen-driv- ers, and one cleaning woman or porter,i° that it excluded guards, watchmen and supervisors, and that Walter Ganko was an irregular part-time employee, not in any unit The General Counsel contends that it also included one outside salesman, three buyer-price-quote men, and Tycz, and that it excluded the bookkeepers Respondent contends that it excluded the outside salesmen and buyer-price-quote men, but included the two bookkeepers The General Counsel also contends that the following were excluded from the unit as individuals employed by a parent or spouse Frank Scavelli, an outside salesman, who was the husband of Rose Scavelli, a partner, William Velys, an outside salesman who was a son of Michael Velys, Jr, a partner, Anna Velys, daughter of Michael Velys, a partner, and Theodora Velys, wife of Ross Velys, a partner The General Counsel also takes the position that Scavelli was a supervisor Respondent contends that Frank Scavelli was not a supervisor and that his wife, Rose, was only a minor partner, not active in the business, and that Scavelli was therefore in any unit which included outside salesmen Respondent declined to stipulate as to the inclusion or exclusion of the other members of the Velys family referred to, and has not made its position clear, except to the following extent (a) Respondent made an offer of proof, which was rejected, to the effect that Velys told his attorney that he was agreeable to an election, but that his son, William, and his brother-in-law, Scavelli, were in the unit and should be allowed to vote, and, further, that Respondent's attorney on March 19 suggested to the Union that there be an election and in that connection discussed the possibility of members of the Velys family being in the unit, and (b) Zoera Hatgis, one of the partners, who worked in the showroom, testified that she considered 8 While the record is not clear it appears that the delivery trucks for the most part started out from the loading dock in the afternoon However one driver took his truck home with him at the end of the day and made deliveries the next morning Those orders had to be assembled the day before delivery 9 The charge invoices for counter sales were also brought to Velys io For convenience I shall refer to this group as the basic unit 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herself the "right-hand man" of Lohr, the showroom buyer, but at the same time admitted that, as a partner her authority was superior to his Finally, Respondent contends that one Costas Papaxe- nopoulos, who first performed services at Respondent's premises on March 1, was an employee of Respondent's, within the unit, and the General Counsel contends that he was not an employee of Respondent, and that in any event his work was not such as to bring him within the unit (c) Countermen, warehousemen-drivers, and porter Besides Tycz, Respondent had two employees, Fabryk- ewicz and Moranos, who worked the counter, and three, Cagigas, Grant, and Langhorne, who worked as warehouse- men-drivers 11 The description I have already given of the procedure for assembling orders for delivery shows that the integrated efforts of both counterman and warehousemen- drivers were required I should add that the line of demarcation between items which a counterman would "pull" and which a warehouseman-driver would pull was not always sharp, since so many items were kept in both areas In addition the loading of trucks was frequently late, and countermen were often called upon to lend a hand Incoming merchandise had to be shelved in proper places, and this was a task performed by both warehousemen and countermen Finally, it was Respondent's policy to avoid, to the extent possible, having counter customers wait, and one warehousemen driver, Grant, had enough experience to be familiar with the stock and he often waited on customers at the counter On the other hand, Moranos, a counterman, actively participated in the loading of trucks It is plain from the foregoing that the countermen and warehousemen-drivers, as agreed by both parties, necessar- ily belonged in the same unit The cleaning woman, or porter, worked about 5 hours daily She did light cleaning in the office and showroom, including the cleaning of fixtures on display In addition, she unpacked, assembled, and hung fixtures, made up orders of miniature bulbs, and was in charge of showing customers the stock of pieces of glass which Respondent maintained The other persons working in the showroom, were Lohr, the buyer-price-quote man, Zoera Hatgis, a partner, and Velys' daughter, Teddy While the cleaning woman had little contact with the countermen and warehousemen-drivers, much of her work and interests were closely allied with theirs and she was appropriately in the same unit (d) Outside salesmen and buyer-price-quote men 12 I The outside salesmen Three individuals worked as outside salesmen, namely, Scavelli, the husband of Rose Scavelh, a partner, Velys' son, William, and James Renner They solicited orders by calling in person at customers' premises Renner and Scavelli spent about 4 and 4-1/2 days, respectively, each week in their outside solicitation Their remaining time was spent at the office, for the most part doing paper work in connection with their sales William Velys spent 2 or 3 days in outside solicitation He and Scavelli also did layout work for electric heat and lighting, and William Velys helped assemble customers' orders As already described, Scavelli was also at the plant every third Saturday, taking complete charge of Respondent's entire operation at that time When soliciting orders the salesmen traveled by compa- ny-owned vehicles They carried with them a library of price lists and catalogs At times customers had their orders ready when the salesman arrived At other times he went through their stock or "want books" and assisted the customers in working up the orders Usually the salesman telephoned the order in to the office, but sometimes he wrote up the invoice and brought it in personally In either case he did not normally price the articles ordered, that was done by the price-quote men However, customers sometimes requested "quotes" to enable them to make estimates, and at other times requested bids When making "quotes" the salesman usually quoted the prices listed on the appropriate price sheets, when submitting "bids," he deviated in order to meet competition 13 The salesmen had authority to do this on their own, but if they had questions, especially in the case of large bids, where a small markup was needed to succeed, they got Velys' approval On those occasions when they were in the plant the salesmen would, occasionally, help out at the counter That sometimes entailed their going to the stockroom or warehouse for the articles purchased They also helped assemble and load orders at times, but this was only with respect to their own business, when they wanted to make sure that the customer got prompt and accurate service Scavelli's salary was $240 per week, Renner's $197 per week, and William Velys' $2 20 per hour 2 Buyer-price-quote men Respondent had three buyer-price-quote men, each assigned a particular area of Respondent's merchandise in which to do the buying, pricing and quoting Lohr handled showroom items, Washick wire, pipe, and units for electrical heat, and Oldrm distribution equipment, wiring devices, and miscellaneous items Lohr spent about 90 percent of his time in the office, Oldrin virtually all and Washick at least 75 percent The buyers normally made their purchases from a limited number of manufacturers having established relations with Respondent Each buyer maintained a suitable inventory of each item in his area of responsibili- ty 14 To check inventory he frequently went into the warehouse to make a visual inspection, assisted usually by Tycz or Moranos, but sometimes by Grant When stock in the item reached, or approached, the point where it could be anticipated that it might become exhausted, additional supplies were ordered to bring the stock up to a kind of standard maximum level While more or less definite concepts developed as to the minimum and maximum 11 Cagigas was not yet sufficiently experienced to go out on a truck alone used he word quote for competitive and noncompetitive offers 12 For convenience buyer price quote men will also be referred to at 14 In the case of the showroom not all items offered were kept in stock or times as buyers and at times as price quote men on display many were sold by manufacturers catalogue 13 Not all witnesses made this distinction by the same semantics Some R & M ELECTRIC SUPPLY CO 611 inventory of each item, these were not hard and fast, they could be varied, depending on season, special demand, or other factors Thus, if a buyer noticed that an item was being back-ordered frequently, he would increase the usual maximum inventory Also, when a buyer was back- ordering a sold item which had not been on hand for delivery, he frequently added to his order some replenish- ment stock in other items not yet needed, in order to get the advantage of better terms offered when certain minimum quantities were purchased In the case of wire and pipe most was purchased in large quantities, and timing was governed by prices and anticipated price changes as well as by anticipation of customers' need In general suppliers' prices were set forth in printed lists However, in some cases the buyers were able to negotiate better prices and, in even more cases , more liberal terms of payment These tasks were usually performed without supervision , but Velys would from time to time suggest further effort When the amount of purchase was so large as to make payment possibly inconvenient, the buyer checked with Velys before placing the order He also checked with Velys if he wanted to place a "large" order for something as to which he did not feel confident it could be sold promptly What was "large" vaned with circum- stances, but it had to be over $1,000 Oldrin's buying came to $400,000 per year Lohr's came to about $300,000, and Washick, who had been a buyer only for a few months, made purchases at about the same rate as Lohr Oldnn and Washick priced some articles in accordance with price sheets furnished by manufacturers, and others on the basis of a mark-up above cost to Respondent, the markup varying in accordance with definitely fixed quantities purchased by the customer Except for items marked down because of disappointing appeal, Lohr priced showroom articles on the basis of price sheets furnished by the manufacturers In general there were, for all three price-quote areas, three sets of prices or markups, 1 e , electrical contractors', building contractors', and retail, increasing in that order 15 However, retail prices were flexible, particularly in Lohr's showroom, where discounts up to 20 percent were readily granted in the absence of customer meekness With electrical supplies and materials the retail customer had to "know what he was talking about" to obtain a discount A larger degree of discretion was exercised in connection with the quotations or bids which price-quote men were called upon to make for big jobs Quotations were usually submitted on the basis of the price lists, but good customers were often quoted some- what lower prices Bids were submitted with a view to meeting whatever competition was expected Below some sort of minimum markup the buyer would be sure to get Vely's advance approval Oldnn and Washick had worked up from warehouse and counter work, Lohr started with Respondent as buyer- price-quote man Oldrin was paid $190 per week, Lohr $235 per week, and Washick $2 75 per hour, the same wages he had been receiving before being transferred from the counter Concluding findings as to the outside salesmen and buyer-price-quote men While these individuals exercised much discretion, both in buying and in billing,16 their discretion was exercised within fairly defined policies not developed by them, but laid down by Respondent Thus, the inventory standards were relatively static as to maximum and minimum, the available suppliers were limited and identified , the buyer's responsibility to seek favorable terms of payment was well understood, as were the need to avoid overconunitting Respondent's credit and the policy of bidding the highest price commensurate with a profit and a reasonable expectation of getting the order The record is devoid of evidence suggesting that any buyer participated in the formulation, determination, or effectuation of policy with respect to labor relations, or that his status was such as to lead employees to believe that he had responsibilities in that area, or that views he might express as to employee relations represented Respondent's position For these reasons I find that the buyer-price-quote men were employees within the meaning of Section 2(2) of the Act See North Arkansas Electric Cooperative, Inc, 185 NLRB No 83, enforcement denied, 446 F 2d 602 (C A 8) The work of the buyer-price-quote men was markedly different from that of the employees in the basic unit It is true that they helped at the counter when it was overly busy, and in that connection even had to perform the manual work at drawing merchandise from the stockroom or warehouse and packing it However, they spent little time during the course of a weeic doing that, not enough to make their job resemble that of the warehousemen or countermen Even the partners pitched in to help when the counter got busy It is also true that the price-quote men priced retail invoices in the course of transactions being handled by the countermen, which represented a degree of functional integration However, that took a small part of the time of either group of employees It will be recalled that much counter business was wholesale, the pricing of which was functionally separated from the counter sale Moreover, the countermen spent a considerable amount of their time in performance of their order filling duties As visual checking of inventory was the sole responsibility of the buyers, the fact that Tycz, Moranos, and, sometimes, Grant, assisted them did not constitute true integration of function Looking at the two groups on an over -all basis the warehousemen-drivers and countermen did routine work, including a substantial amount of physical labor, whereas the buyer-price-quote men worked at their desks in the office, performing services requiring the exercise of considerable discretion and judgement Moreover, they pledged Respondent's credit in substantial amounts In view of the marked difference in their interests , I find that 1s There is some evidence of a possible fourth price for wire a carpetbagger s price applicable to a man who did electrical contracting as a sideline usually from his home Also some poor payers were charged higher prices at Velys specific direction and contractors were charged higher prices for showroom items if instead of ordering from catalogues they made substantial use of the showroom 16 Washick was new at the job and therefore worked under fairly close supervision by Velys especially in his major buying orders However he too exercised much discretion in his fillm buying which involved the pledging of Respondent s credit in substantial amounts 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit including the buyer-price-quote men and the employees in the basic unit would not be appropriate 17 The law is well settled that outside salesmen are normally excluded from plant units in representation cases See Taunton Supply Corp, 137 NLRB 221, 222 In the present case an additional reason for their exclusion would be their exercise of discretion in submitting competitive bids, an important part of their work I find that a unit including the outside salesmen and the employees in the basic unit would not be appropriate Although Renner and Scavelli, unlike the price-quote men, spent little time at Respondent's place of business, the quoting and bidding part of their work was the same as was performed by the latter Also, in their ordinary solicitation of orders they checked customers' inventories much as the buyers checked Respondent's inventories Moreover, as Scavelli and William Velys were not employees, only Renner was entitled to bargain collective- ly, and he could not exercise that right in a one-man unit As the outside salesmen had important interests in common with the price-quote men, and as only one was eligible to bargain collectively, I find that the outside salesmen and the buyer-price-quote men constituted an appropriate unit (e) The bookkeepers Respondent's glass enclosed office was in two sections separated from each other by a partial partition In the larger section, nearer the entrance , were six desks, arranged in two rows of six each Zoera Hatgis and Velys, both partners, used the first pair, Lohr and Washick, two price- quote men the second pair, and Oldrin, the third price- quote man, used one of the last pair of desks The other was used by Velys' daughter, Teddy, the outside salesmen, and, occasionally, by manufacturers' representatives Back of the partial partition were the two desks of the bookkeepers The bookkeepers did not work on Saturdays, but otherwise their hours, vacation rights, and other fringe benefits were the same as those of the employees in the basic unit One was paid $3 20 per hour and the other $240 The bookkeepers performed no manual labor They made up the timecards and payroll, and called the employees to the office to receive and sign for their pay They took no dictation and did no letter writing, but they did use their typewriters for writing checks One was in charge of accounts receivable and the other of accounts payable Making the necessary ledger and other bookkeep- ing entries for these things and sending out or paying bills were their basic jobs After wholesale shipments left the plant, the invoices were examined by Velys, priced by the price-quote men, and then extended and totaled, with sales taxes added, by the bookkeepers Velys testified that some 20 to 25 times a day persons making sales at the counter brought invoices to the bookkeepers for extending, either because they were wholesale C 0 D sales or , apparently, retail sales However, Washick testified credibly that while countermen formerly did have the bookkeepers do their extending, more recently this practice had been discour- aged by Respondent since it interfered with the bookkeep- ers' more important duties, and that the men usually did their own extending I find that the amount of extending performed by the bookkeepers at the request of counter- men was not a substantial part of their duties The bookkeepers performed many tasks which are frequently part of the operation of a small office, such as receiving and routing telephone calls, receiving and delivering outside salesmen's messages, sorting and distributing mail, furnishing customers credit applications and checking their references, and purchasing office supplies Respondent points to a number of situations where the bookkeepers' work was directly integrated with that of countermen and/or warehousemen, such as calling a bank to ascertain whether sufficient funds were on hand to cover a check proffered at the counter, having a counterman decipher his illegible invoice, and having a warehouseman clarify whether an invoiced item had been shipped or back- ordered In addition, when office records were unclear as to whether Respondent had received merchandise for which it had been billed, one of the bookkeepers sometimes got final, accurate , information as to delivery from Tycz I find that the bookkeepers' work contacts with employees in the basic unit were sporadic and minimal Concluding findings as to the bookkeepers The bookkeepers' work was essentially office clerical whereas that of the countermen, while partly clerical, included an important amount of manual work, and that of the warehousemen-drivers was almost exclusively manu- al 18 It has long been Board policy to exclude office clerical employees from units of manual workers. Distinguish Charles Bruning Company, Inc, 126 NLRB 140, where there was functional integration between the two groups and, in addition, all parties requested the inclusion of the office clericals Distinguish, also, Townley Metal and Hardware Company, 151 NLRB 706, 709, where the Board found "a high degree of functional integration" and there had been a "long history of bargaining for all employees in a single unit " Respondent has also cited a number of cases involving retail, or quasiretail, establishments, which are not applicable to Respondent's operation, which was essentially wholesale I find that the bookkeepers would not appropriately be included in the basic unit There was a degree of functional integration in the work of the bookkeepers and the price-quote men The book- keepers extended and totaled the invoices priced by the price-quote men, and the bookkeeper in charge of accounts payable paid only those bills which had been , approved by the buyer Moreover , all worked in the same office However, whereas the work of the buyer-pnce- 17 Moranos assisted Oldrin by keeping him informed on his own is Some occasionally made entries in the receiving log, indicating that initiative as to the state of some inventories and he even himself ordered a merchandise had been received by Respondent However that was Tycz few commonly purchased articles His interests however were plainly not responsibility and except for him the amount of clerical work involved was allied with those of the buyers but with those of the employees in the basic minimal unit R & M ELECTRIC SUPPLY CO 613 quote men involved considerable discretion, judgement and responsibility, that of the bookkeepers was basically routine I find that the two groups had interests which were basically dissimilar, and that a unit of buyer-price-quote men and/or of those employees and the outside salesmen, but excluding the bookkeepers in either case, would be an appropriate unit (f) Tycz Tycz had been employed by Respondent for 9 years He did a considerable amount of work in the warehouse and at the counter He had the responsibility of keeping the receiving log in which deliveries to Respondent were recorded and he spent several hours daily making up lists of articles received Other employees also made entries in the log, but it was Tycz' responsibility, and he was the one held responsible by Respondent for the counting of merchandise and its receipt in proper order Tycz, called by the General Counsel, testified to the following effect Most of the time it was his responsibility to oversee the running of the warehouse, he was told this, but it never came out "directly" that he was a supervisor, he made "suggestions" to the warehousemen about loading trucks, Moranos, an employee of long standing, might suggest in what order various customers' merchandise should be loaded, but most of the time it was Tycz who made the decision, he gave orders to the warehouse employees, when necessary, to make up orders, usually they took invoices out of the baskets themselves, but sometimes they were slow, and Tycz would "sort of push them", also he would hand them invoices to fill when they were rush orders, Moranos did these things, but only in Tycz' absence, Tycz suggested that additional help was needed in the warehouse, and Velys never turned him down, Velys told new employees that Tycz would supervise them and he told Tycz to show them what to do, Tycz showed the new employees where to stock merchan- dise which came in and where to find merchandise, Velys asked him about the progress of new employees, Tycz reported a few disciplinary problems to Velys, he repeated- ly recommended the discharge of one employee, Mazzacca, and Velys finally discharged the man Washick and Fabrykewicz, who testified on behalf of the General Counsel, described Tycz' functions as completely lacking in any supervisory elements, their testimony left the impression that the warehouse operated without supervision Mondays through Fridays At the same time they testified that on those Saturdays when Scavelli was in charge Scavelh was constantly telling the employees what to do Tycz was paid a flat salary of $170 per week, with nothing additional for overtime He punched a clock Moranos was paid $190 per week 19 The loading of trucks was usually a pressing task because of time limitations An order not shipped out on time would have to wait a week, unless a special trip was made 19 Moranos was related to Velys 20 Papageorge testified at one point that he made roof repairs that day Fabrykewicz testified that Papageorge repaired the door that was being painted I have not relied on either of these statements 21 At one point he mentioned Tycz but later said that this was not his I do not credit the testimony of Fabrykewich and Washick to the effect that the work in Respondent's warehouse was accomplished without responsible direction Tycz im- pressed me as a credible witness While he was, apparently, a modest man, not given to ordering people about, I find that he responsibly directed the warehousemen-drivers, using independent judgement, was responsible for the operation of the warehouse and the loading of merchan- dise, and effectively recommended the discharge of an employee I find that Tycz was a supervisor, excluded from any unit He will be referred to as warehouse manager (g) Costas Papaxenopoulos Papaxenopoulos , a recent immigrant from Cypress who spoke no English, first performed work at Respondent's premises on Monday, March 1 On that day he arrived together with one Papageorge, an independent contractor who from time to time performed carpentry and other maintenance work for Respondent On March 1 Papag- eorge made repairs at Respondent's premises,20 and Papaxenopoulos painted a warehouse door, 12 feet square, or larger, using a ladder, the ownership of which was not disclosed at the hearing Respondent adduced testimony from two witnesses, Velys and Papageorge, to establish Papaxenopoulos' employment within the unit Velys testified as follows A friend, one Veukos, who was related to Papaxenopoulos, asked him to give the latter a job While Respondent was not then looking for help, it always needed help, and Velys told Veukos to bring the man in, which Veukos did on Saturday, February 27 Velys hired Papaxenopoulos on a permanent basis that day and instructed him to report for work Monday, March 1 On Sunday, February 28, Papaxenopoulos went to New York to get his belongings On Monday morning he arrived with Papageorge, who happened to be a good friend, and Velys put him to work painting the warehouse door Velys intended that he be broken in as a warehouseman but, as he had done with others in the past, he intended first to have him do odd jobs Velys was sure that he introduced him that day to some employees but was not sure which 21 He instructed the bookkeeper, Espen, to prepare a timecard for Papaxenopoulos, which she did, and he was "almost positive" that he had seen her prepare it Papaxenopoulos was absent on Wednesday and Thursday, possibly because of illness, although Velys was not sure of the reason On the next day of his testimony Velys stated that he had spoken to the bookkeeper, who informed him that it was on Thursday, not Sunday, that Papaxenopoulos had gone to the city for his belongings, which accounted for the day's absence Respondent offered in evidence a timecard bearing Papaxenopoulos' name and showing 24-1/2 hours of work performed March 1 through 3 Unlike the usual procedure in Respondent's establishment, the card was entirely handwritten, except for a single entry for Friday, which was timeclock printed in the space for Thursday, March 4, recollection but only an assumption since Tycz worked back there Respondent produced no employee to whom he had been introduced and several of the General Counsel s witnesses testified that they had not been introduced 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and crossed out I rejected the offer, without prejudice to a further offer upon additional evidence of genuineness, but no further evidence was adduced Papageorge testified as follows Papaxenopoulos was the grandfather of a godchild of his daughter Papageorge and his wife kept asking Velys to give Papaxenopoulos a job, urging that the man was very handy, and Velys finally agreed However, he was unable to bring Papaxenopoulos down to meet Velys on February 27 and therefore it was arranged that Veukos do it Papaxenopoulos went to New York on Sunday to get his belongings He returned Sunday night and thanked Papageorge profusely for getting him the job, also treating him to cognac profusely, and Papageorge got drunk Papageorge brought him to work on his first day of employment since he was unfamiliar with Riverhead He stated categorically that Papaxenopoulos did not work for him, and that he never had employees Papageorge's testimony as to when he did the alleged roof repair for Respondent was confused and contradicto- ry He impressed me unfavorably with respect to credibility and I rely on none of his testimony Respondent's failure to call the bookkeeper who prepared the rejected timecard warrants the inference that she would have given testimony tending to show that the card had not been prepared on March 1 as testified by Velys Respondent's failure to call any employee to whom the man was introduced is significant Moreover, I do not credit Velys' explanation that he testified by mistake that Papaxenopoulos had gone to the City for his belongings on Sunday, in view of Papageorge's vivid testimony that the trip had indeed taken place on Sunday, and had been followed by a memorable thank-you party I find that Papaxenopoulos was not employed by Respondent during the calendar week beginning March 1, and that Respondent has failed to prove his employment at any time thereafter 22 (h) William, Anna, and Theodora Velys, and Frank Scavelli As Michael Velys, Jr was the parent of William, Anna, and Theodora Velys, I find that they were not employees within the meaning of the Act, and were therefore not included in any appropriate unit Velys testified that while Rose Scavelli was a partner in Respondent, her interest in the business was minor, both as to capital and as to drawing She was not active in the business at the time of the hearing, but had been several years before Velys did not state how "minor" her interest was I find that Rose Scavelli was one of the employers of the individuals who worked for Respondent As Scavelli was her spouse, I find that he was not an employee within the meaning of the Act, and therefore not included in any appropriate unit (i) Concluding findings as to unit I find that the warehousemen-drivers, countermen, and 22 Respondents payroll for the work week ending March 4 shows Papaxenopoulos the last person listed, as having worked 24 1/2 hours on March 1 2 and 3 However in view of the discredited timecard I do not consider that payroll standing alone without convincing supporting porters, excluding bookkeepers and other office clerical employees, buyer-price-quote men, outside salesmen, guards, watchmen, professional employees, warehouse manager, and all other supervisors, constituted an appro- priate unit I find that the buyer-price-quote men and outside salesmen, excluding bookkeepers, guards, watchmen, professional employees, and all other employees and supervisors, constituted an appropriate unit In view of the wide divergence of interests already described as between the employees in the two units respectively found appropriate, I find that a unit combin- ing both groups was basically inappropriate 2 Majority During the week beginning March 1 , Respondent had three warehousemen-drivers, namely Cagigas, Langhorne, and Grant , two countermen, namely Moranos and Fabrykewicz , and one porter, namely, Lynch, total of six employees Four of these , namely, Cagigas, Grant, Lang- horne, and Fabrykewicz, signed union cards During the same period there were three buyer-price- quote men, namely Oldrin, Washick, and Lohr, and one outside salesman, who was an employee, namely Renner, a total of four employees All but Oldrin signed union cards I find that the Union was designated as representative for collective bargaining by a majority of the employees in each unit heretofore found appropriate The complaint alleged that the employees in both groups of employees found by me to be appropriate units constituted a single appropriate unit I find that the Union was designated as representative for collective bargaining by a majority of the employees in the unit which was alleged in the Complaint to be appropriate 3 Concluding findings as to the demand for recognition Faicco did not specify orally what employees he claimed to represent, stating merely, "We represent the majority of the employees employed by you " However, the cards he handed Velys, especially as corroborated by the walk-out before Velys' eyes of every category of employees except the bookkeepers and the absent outside salesman, made plain that the employees the Union claimed to represent were those in the unit alleged in the complaint , and I so find I also find that Velys understood that that was the unit for which the Union was requesting recognition, and that he had no doubt in the matter 23 4 The refusal I find that Velys' refusal to grant recognition immediate- ly without consulting counsel was reasonable I also find that his failure to bring counsel to the plant instanter was reasonable I have already found that his exclamation that he would rather burn the place down was not coercive or undermining of the Union I further find that Respondent testimony reliable 23 If he had had doubt as to outside salesmen it would of course have been dissipated the next morning when Renner turned in his papers and joined the picket line R & M ELECTRIC SUPPLY CO 615 at no time engaged in unlawful conduct tending to undermine the Union's majority strength or impede the election processes Since Velys did not say that he would not recognize the Union at any time, but wanted to consider the matter with the aid of counsel, it is plain that Respondent did not on March 2 definitively refuse recognition However, the Union's request for recognition was a continuing request Faicco had given Velys his business card, but Respondent took no steps to reply to the Union's request I find that this constituted a refusal of recognition Moreover, I find that at least by March 5 a reasonable time for consideration had elapsed and that the definitive refusal to recognize the Union began on that date I turn now to the question of whether Respondent was under obligation to grant recognition I do not credit Velys' testimony, "I know that in my mind he did not represent a majority of my employees " Velys was well acquainted with a majority of those who had signed cards Grant had worked for him since 1966, Fabrykewicz since 1965, when he was 16, and Washick since 1962 The latter two had had their employment interrupted by 2 years in the Armed Services Lohr had worked for Respondent almost 9 years, Tycz 11 years, and Renner 13 years Fabrykewicz' brother had worked for Respondent, and Velys had entertained Fabrykewicz and Renner on his boat After Velys had been assured by Washick and Lohr that they had signed the cards voluntarily and, in fact, had initiated the contact with the Union, and after Velys had seen the employees, including those he knew so well, walk out immediately upon signal by Faicco, it is plain that Velys had no doubt in his mind as to their desire to be represented by the Union Significantly, once he had seen the cards and questioned Lohr and Washick about them, Velys said nothing to indicate that he had any doubt as to the Union's majority Indeed, Respondent made no claim even at the hearing that it had at any time raised any question or expressed any doubt as to majority in either of the units I have found appropriate or in the unit alleged in the complaint On the contrary Respondent limited its defense in this connection to its alleged attempt on March 19, 17 days after the Union's demand, to persuade the Union to agree to an election in a different unit, significantly, one including members of the Velys family In Linden Lumber Division, Summer & Co, 190 NLRB No 116, the Board reassessed the reach of the principles of Fred Snow, Harold Snow, and Tom Snow, d/b/a Snow & Sons, 134 NLRB 709, enfd 308 F 2d 687 (C A 9) The Board stated These considerations lead us to the conclusion that Respondent should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election We repeat for emphasis our reliance here upon the additional fact that the Respon- dent and the Union never voluntarily agreed upon any mutually acceptable and legal permissible means, other than a Board-conducted election, for resolving the issue of union majority status The present case differs from both Snow & Sons and Linden Lumber Respondent made no agreement to permit majority status to be determined by cards, as happened in Snow & Sons However, there could be no such agreement because unlike the situation in Linden Lumber, there simply was no issue of majority status to be resolved Respondent never refused, as the employer did in Linden Lumber, to accept the evidence provided by the cards as to majority status All Respondent claims is that it attempted, and this 17 days after the Union's request, to persuade the Union to agree to an election in a different unit which, moreover, was to include nonemployees Plainly, in refusing to recognize the Union Respondent raised no question as to majority Cf Pacific Abrasive Supply Co, a subsidiary of the Carborundum Company, 182 NLRB No 48 At most, if the claim represented by its offer of proof is accepted, it raised question as to unit And this, it is well established, it did at its peril even if done timely See Tom Thumb Stores, 123 NLRB 833, see, also N L R B v My Store, Inc, 345 F 2d 494, 498, fn 2 (C A 7), cert denied 382 U S 922, enfg 147 NLRB 145 As Respondent knew that the Union represent- ed a majority of the employees in any relevant unit and raised no question about majority, the principle of Linden Lumber is not applicable There remains the question of the variance between the unit for which recognition was requested, which was the same as the unit alleged in the complaint, and the units which I have found appropriate 24 Where a union had requested recognition for a unit in which it does not have a majority, a violation of Section 8(a)(5) cannot be based upon an ex post facto finding of majority in an appropriate unit for which bargaining had not been requested See Barlow-Maney Laboratories, Inc, 65 NLRB 928, 943 In the present case the Union did have a majority in the unit for which it requested bargaining, as well as in each segment thereof which I have found to be an appropriate unit In holding that an employer, even if acting in good faith, raises question as to unit at his peril, the Board has stated as its reason that it has imposed considerable risk upon a union seeking to enforce its rights under Section 8(a)(5), including the risk as to the appropriateness of the unit, and that equity requires the imposition of the same risk upon the employer See Tom Thumb Stores, Inc, 123 NLRB 833, 835 Equity would seem to require that the union's request be for a basically appropriate unit Where, as I find was the case here, the unit for which recognition is requested is basically inappropriate, it is not equitable to impose on the employer the duty to take the initiative to untangle from the union's invalid demand such part or parts as were valid Since the Union's only request was for a basically inappropriate unit, I find that Respondent was under no duty to grant recognition and therefore did not violate Section 8(a)(5) of the Act 25 I do not pass upon or express 24 The inclusion of Tycz in the requested unit was a minor variance subject to correction and it did not stand in the way of recognition See The Hamilton Plastic Molding Company 135 NLRB 371 373 enforcement refused in relevant part on other grounds 312 F 2d 723 (C A 6) 25 In International Broadcasting Corporation (KWKH) 99 NLRB 130 at fn 6 Chairman Herzog and Member Murdock a minority, stated that no (Continued) 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any opinion concerning a case where an employer, requested to bargain, engages in unlawful conduct having a tendency to undermine majority strength or impede the election processes Cf N L R B v Gissel Packing Company, Inc, 395 U S 575 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth above in section III, occurring in connection with its operations described in section I, 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 As the only unfair labor practice found was the isolated remark of Scavelh, whose authority was at best slight, I find that it would not effectuate the policies of the Act to issue a remedial order Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following Conclusions of Law 1 Respondent, Mike Velys, Sr, Mike Velys, Jr, Ross Velys, Rose Scavelli, and Zoera Hatgis, Copartners, d/b/a, R & M Electric Supply Co, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act 3 Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 4 Respondent's buyer-price-quote men are employees within the meaning of Section 2(3) of the Act 5 Frank Scavelli and William Velys are not employees within the meaning of Section 2(3) of the Act duty to bargain arose in the absence of a request covering an appropriate unit even though the union represented a majority of the broader inappropriate unit covered the request as well as a majority of a smaller, appropriate unit In that case the other segment of the broader unit standing alone was found by the Board in a representation case to be inappropriate Case 15-RC-367 90 NLRB No 218 (not published) 6 All warehousemen, drivers, warehousemen-drivers, countermen, and porters employed by Respondent, exclud- ing bookkeepers and other office clerical employees, buyer- price-quote men, outside salesmen, guards, watchmen, professional employees, warehouse manager, and all other supervisors, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 7 All buyer-puce-quote men and outside salesmen employed by Respondent, excluding bookkeepers, guards, watchmen, professional employees, and all other employ- ees and supervisors, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 8 At all times since March 1, 1971, Local 1922, International Brotherhood of Electrical Workers,AFL-CIO, has been, and it still is, the exclusive representative of all employees in each of the appropriate units, for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, within the meaning of Section 9(a) of the Act 9 Respondent did not refuse to bargain collectively with the Union as the exclusive representative of their employees in either of the appropriate units, or otherwise engage in unfair labor practices within the meaning of Section 8(a)(5) of the Act 10 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act I1 It would not effectuate the policies of the Act to issue an order remedying the unfair labor practices found in this case Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended 26 ORDER The complaint herein is hereby dismissed in its entirety 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions and recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations automatically become findings conclusions decision and Order of the Board and all objections thereto shall be deemed waived for all purposes