Wilson Wholesale Meat Co., Inc.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson Wholesale Meat Company, Inc. and Amalga- mated Meat Cutters and Butcher Workmen of North America, Local Union 576, AFL-CIO. Case 17-CA-5323 February 25, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On March 30, 1973, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, only to the extent consistent herewith. In making the requisite unit determination under the 8(a)(5) refusal-to-bargain allegation of the com- plaint, the Administrative Law Judge found that Respondent's production employees have a commu- nity of interest sufficiently separate from the driver- salesmen to warrant establishing a separate bargain- ing unit for them. We disagree. The record evidence shows that the driver-salesmen report to work 1 hour after the production employees, at which time they spend approximately one-half hour reporting in their receipts from the previous day and making telephone calls to that day's customers. Thereafter, they work in the production area between 2 and 4 hours helping to prepare orders and loading their trucks, with help from production employees. Then they depart for deliveries on their respective routes. Their hours are somewhat flexible, averaging between 40 and 55, and they quit when they return from their respective routes. Unlike the production employees who are paid hourly wages, the driver-salesmen receive a salary plus commission. All of Respondent's employ- ees receive the same fringe benefits and use common facilities such as the coffee and smoking room. In finding that the driver-salesmen should be included in the unit with the production employees, we rely especially on the fact that the driver-salesmen spend considerable time each day performing in-plant work I In the absence of exceptions thereto, we hereby adopt pro forma the Administrative Law Judge's dismissal of the complaint with respect to the alleged constructive discharge of Glenna Hulen 2 The Administrative Law Judge found that Magruder was covered by the driver-salesmen exclusion and made no resolution of his supervisory status for unit purposes No exceptions have been filed to the finding that and that they can, and do, perform many of the same work functions performed by production employees. The Administrative Law Judge also excluded the in-town salesman (Norman Gordon), finding that his predominant employment interests are clearly with the driver-salesmen rather than the production employees. In view of our finding relative to the driver-salesmen, supra, we find that the in-town salesman should be included in the unit. Accordingly, we find that the following employees constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production employees and drivers, the driver-salesmen, and the in-town salesman employed by Respondent at 1207 Rogers Street, Columbia, Missouri, but excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees. As becomes apparent hereafter, it is necessary to resolve (a) whether Philip Magruder is a supervisor within the meaning of the Act,2 and (b) whether Helen Bryant is excludable as an office clerical or includable as a plant clerical. In our opinion, the General Counsel has failed to sustain the burden of proof to establish that Magruder possessed any of the statutory criteria necessary to qualify him as a supervisor under Section 2(11) of the Act. There was limited testimo- ny, presented during the representation case hearing; and the instant hearing, bearing upon Magruder's supervisory status. Certain of this testimony suggests that Magruder has authority to make recommenda- tions concerning hiring and discharging of driver- salesmen . However, the record evidence further reveals that he has never exercised this authority and there is no evidence to show that his recommenda- tion would be acted upon without an independent investigation. Accordingly, we find that Magruder is not a supervisor within the meaning of the Act. With respect to Helen Bryant, the record reveals that at the time of the representation case hearing on August 30, 1972, Bryant had been working for more than a month at a variety of tasks in the plant proper between 4 to 6 hours each morning. These tasks included the preparation of a list of items to be removed from the freezer for each route, a list of items that had to be cut, as well as reading the scales Magruder is a driver-salesman and the record supports that finding. 3 The record in representation Case 17-RC-6971 was incorporated by agreement of the parties into the record of the instant case . See fn. I of the Administrative Law Judge's Decision The Union withdrew its petition and no election was held because of the matters alleged in this case. 209 NLRB No. 35 WILSON WHOLESALE MEAT COMPANY and recording weights on all out-of-town tickets. After the trucks were loaded, Bryant worked in an office where she took phone calls for orders, figured tickets, did some work on accounts receivable and payable, and did some compilations of hours worked for payroll purposes. It appears that Bryant's duties changed, if not in substance, at least in degree, by the time of the hearing in the instant case on February 7 and 8, 1973.4 Of course, the unit issues presented in this proceeding require that we determine Bryant's status at the time of the Union's bargaining demands of August 30 and September 12, 1972, and, on those dates, it appears clear that Bryant was performing tasks associated with a plant clerical rather than on office clerical. Accordingly, we find that, for the purpose of determining unit placement at the time of the Union's bargaining demands, Bryant was a plant clerical and includable in the unit found to be appropriate. In view of our findings, supra, that Helen Bryant, the driver-salesmen, including Philip Magruder, and the in-town salesman, Norman Gordon, are employ- ees in the unit found to be appropriate herein, we also find merit in Respondent's exceptions to the finding of the Administrative Law Judge that the Union represented a majority of Respondent's employees on August 30, 1972.5 The Union present- ed evidence that it represented 11 employees on August 30.6 However, the record reveals that on that date there were 22 employees in the unit we have found to be appropriate.? Accordingly, we find that the record evidence fails to establish that the Union represented a majority of Respondent's employees, in the unit found to be appropriate, on August 30. Furthermore, there is no basis in this record to establish that the Union at any subsequent time represented a majority of the unit employees. The General Counsel contends that Respondent violated Section 8(a)(5) by refusing to recognize and bargain with the Union on or about September 14. However, Respondent's next payroll list for the 2-week period ending September 16 shows 26 employees.8 These 26 employees include the 22 employees employed on August 30, during the previous payroll period, as well as 4 new employees.9 The Respondent received the Union's formal written demand on September 12. Although the record evidence does not establish the precise dates these new employees were hired, it is 4 Even so, it should be pointed out that Bryant worked in an office adjacent to the main office and that it was in the main office that the owners' wives, Mrs. Wilson and Mrs Diggs, performed what clearly appear to have been clerical chores associated with an office clerical position 5 Hereafter, all dates will refer to events which occurred in 1972 6 These 11 employees included: A Richey, E Brown, J McClammer, J Moyer, L. Kling. C. Aust, D. Green. T Spry, R Perkins, D Dickenson, and G. Helen. 7 In addition to the 11 unit employees listed in fn 6, the unit included the 223 clear that, regardless of whether the August 30 demand date or the one of September 12 is relied on, the General Counsel has failed to show that the Union represented a majority of the unit employees. In the absence of record evidence to establish that the Union represented a majority of the employees in the unit found to be appropriate, at the time of the Union's initial demand on August 30 or its formal written demand received by Respondent on Septem- ber 12, or for that matter at any other time, there is no basis, on this record, to find that Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union. We also find, contrary to the Administrative Law Judge, that the record evidence is insufficient, under the circumstances herein, to establish that Respon- dent violated Section 8(a)(1) of the Act by standing over employees and scrutinizing them and imposing more onerous work rules respecting talking, smoking, and housekeeping chores. All of the foregoing incidents involve matters which one might readily expect to occur in the routine day-to-day operations of a plant; none involves serious departures from past practices; and in no case was the Union mentioned or otherwise connected with the action. Accordingly, we shall dismiss these 8(a)(1) findings. Finally, while we do not condone the 8(a)(1) conduct of the Respondent here disclosed, we do not find such conduct, standing alone, to be of a nature sufficient to justify a Gissel 10 bargaining order in the absence of proof that the Union represented a majority of the employees in the appropriate unit. While we have determined in this case that the proper avenue for ascertaining the employees' interest in union representation is through our election procedures, we are unable to direct that such an election be held because there is no election petition currently before us. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. The following employees constitute an appro- priate bargaining unit within the meaning of Section 9(b) of the Act: following employees B J Carter, R Alexander, D Stone, H Bryant, D Edwards, N. Gordon, P Magruder, L Waulters, H Winiger, R Mayes, and B Kramer. 8 G.C. Exh # 3 covering this period shows 25 employees The Administrative Law Judge correctly found that employee Richard Perkins was inadvertently omitted from that list, thus bringing the total to 26. 9 No one questions the fact that the hiring of these new employees was for legitimate business reasons 10 A L R B v Gissel Packing Co. Inc, 395 U.S. 575 (1969) 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time production employees and drivers, the driver-salesmen, and the in-town salesman employed by Respondent at 1207 Rogers Street, Columbia, Missouri, but excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees. 4. Respondent has violated Section 8(a)(1) of the Act by the following conduct: coercively interrogat- ing employees concerning their own and other employees' union and other protected concerted activities; coercing employees for the purpose of dissuading them from voting in Board elections and/or participating in union membership and activities; seeking to induce employees by promise of employment benefits to dissuade them from voting for, joining, or otherwise supporting the Union; and threatening plant closure, discharge, and other reprisal for union reasons. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not engaged in other unfair labor practices alleged in the complaint. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, Respondent shall cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Wilson Wholesale Meat Company, Inc., Columbia, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their own and other employees' union and other protected concerted activities. (b) Promising benefits to dissuade employees from joining or voting for or otherwise supporting the Union. (c) Coercing employees in order to dissuade them from voting in Board elections and/or participating in union membership or union activities. (d) Threatening plant closure, discharge, or any other reprisal for union reasons. (e) In any like or related manner interfering with, restraining, or coercing its employees in their exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Post at its premises at Columbia, Missouri, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 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 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER FANNING, dissenting in part: I would affirm the Administrative Law Judge's Decision in its entirety. My disagreement with my colleagues stems from their view that the unit should include driver- salesmen. Clearly these driver-salesmen have sepa- rate interests sufficient to warrant their exclusion from the production unit here sought by the Charging Party. In reaching this result the Adminis- trative Law Judge relied on Tallahassee Coca-Cola Bottling Company, Inc., 168 NLRB 1037, 1038, enfd. 409 F.2d 201 (C.A. 5, 1969), where this very issue was discussed at length by this Board. It approached the inclusion-exclusion problem with respect to driver- salesmen in light of the petition filed, and the court enforced. In Tallahassee the driver-salesmen were included in the unit as requested by the petitioning union. Here the driver-salesmen-having the normal separate community of interest arising from different hours, different method of pay, and substantial working time away from the plant-were not sought to be represented by the Union and the production unit excluding them is also an appropriate unit. As the Board said in Coca-Cola Bottling Company of Baltimore, 156 NLRB 450, 453, and quoted (with emphasis supplied) in Tallahassee: "If the route salesmen are engaged in selling their employer's products, and drive vehicles and make deliveries only as an incident of such sales activity, their interests would not generally be construed as sufficiently 11 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board." of the National Labor Relations Board" shall read "Posted Pursuant to a WILSON WHOLESALE MEAT COMPANY 225 allied with production employees to require their inclusion in a production and maintenance unit." Accordingly, like the Administrative Law Judge, I would find the 8(a)(5) violation and issue an appropriate bargaining order. an answer filed by Respondent, a hearing was held on January 31-February 1, 1973. The complaint and the answer were respectively amended at the heanng. Upon the entire record in this case' including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning their own or other employees' union membership and activities. WE WILL NOT promise benefits or coerce our employees to vote against, or not to join or assist, the Union. WE WILL NOT threaten to close down our plant or to discharge or to take any other reprisal against employees for union reasons. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in their exercise of rights guaranteed under Section 7 of the Act. WILSON WHOLESALE MEAT COMPANY, INC. (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, 616 Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 816-374-4518. DECISION STATEMENT OF 7HF. CASE RALPH W1NKI.ER, Administrative Law Judge: Upon charges and amended charges filed by the aforenamed Union on September 11 and October 30, 1972, a complaint issued by the General Counsel on November 14, 1972, and i The record in this case inLludes, by agreement of the Parties, the record in Wilson Wholesale Meat Company, inc, Case 17 RC-6971, hereinafter referred to as the representation case. Respondent 's motion to correct the transcript is hereby granted. 2 All dates herein are in 1972 unless otherwise indicated. 9 These included cards of Allen Richey , Randy Hudson, Ernest Brown, John McClammer. Jake Moyer, LeRoy Kling. Charles Aust. David Green, FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Missouri corporation, engaging in the wholesale distribution of meat, fish, and potato products in Columbia, Missouri; Respondent's interstate purchases exceed $50,000 annually. I find, as all parties agree, that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union 576, AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Statement The Union began organizing Respondent's employees in July 1972.2 Employees signed union authorization cards and the Union filed a representation petition on July 28. A hearing in the representation case was held on August 30, but the Union withdrew its petition and no election was held because of the matters alleged in this case. Mean- while, by letter dated September 9, the Union requested recognition as majority representative of a described unit of Respondent's employees and the letter contained copies of signed authorization cards to support such claim.3 Respondent refused the Union's request. This was not the first time Respondent had declined to grant such recogni- tion, it originally did so, in effect, at the August 30 heanng in the representation case. The issues in this case are whether Respondent engaged in various activities, mainly in August and September, designed to thwart the organizational efforts of its employees and whether Respondent also constructively discharged two employees in September 1972 and January 1973 for a like purpose, and whether Respondent's alleged activities are sufficient to warrant a Gissel-type4 bargaining order. Related questions involve the appropriate unit and the Union's majority status in such unit. H. C. Wilson-" is Respondent's president and T. W. Diggs its secretary-treasurer; Jake Lewis is the plant manager. (Mr. and Mrs. Diggs and Mrs. and Mr. Wilson own Respondent.) These three individuals are supervisors within Section 2(11) of the Act. The parties disagree Terry Spry, Richard Perkins, John Dickenson . and Glenna Hulen All of these employees except Hudson were on Respondent's September 2 payroll 4 N LR B. v. Girsel Packing Co, 395 U.S. 575 (1969). s At the conclusion of its case, Respondent submitted a certificate from a local physician to the effect that Wilson is physically incapable of participating in court hearings and the record otherwise indicates that Wilson has suffered two heart attacks. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether Route or Sales Supervisor Philip Magruder also is a statutory supervisor, the General Counsel contending that he is and Respondent claiming he is not. B. Respondent's Countervailling Action Bearing in mind that the representation petition was filed on July 28 and that the hearing thereon was held on August 30, the following is an account of Respondent's activities. Respondent manifested its union position even before its own employees began organizing. LeRoy Kling has been employed by Respondent for almost 7 years, and was a credible witness. In late June, according to Kling, plant manager Lewis told Kling that he had been discussing the fact with owners Diggs and Wilson that employees at Raders Meat Packing Company were signing union cards. Raders is located across the street from Respondent's plant. Lewis told Kling on this occasion that Respondent would "close the place" if its employees engaged in such activities .6 Lewis called Kling aside early in August, and it is not denied that he told Kling that "they knew that there had been some union activity [in Respondent's plant] and that the Union was trying to come in." Lewis inquired, according to Kling's undenied testimony, whether Kling knew that Respondent's employees had been signing union cards, what Kling thought about it, whether any union meetings had been held, and who the ringleader was. Lewis further stated, according to Kling's undenied testimony, that "if you guys do get a union in here, you won't make any more money, that they would see to it that you got less hours and that you won't get a closed shop." Employee Charles Aust credibly testified, without contradiction, that Lewis also asked him early in August whether he had heard about the organizational activities at Respondent's plant and whether Aust would join the Union. Aust said he hadn't decided. According to Aust's credible testimony, which Lewis denied, Lewis also mentioned that "if we got the union, our hours would be cut and our pay wouldn't be as much as we had heard that the union pay would be." A week or two later Lewis again asked Aust, according to Aust's uncontradicted testimony, what the latter was "going to do about the union." Early in August, employee Terry Spry asked Lewis for a "promotion." According to Lewis, Spry's main interest was to reduce his 12-hour day (Spry described it as a "11-hour day" with "an hour for lunch") to a 10-hour day. Spry credibly testified, and Lewis denied, that Lewis said he "would have to wait until the union mess was straightened out." Spry credibly testified, without contradiction, that Lewis later approached him about September 1, and inquired concerning Spry's "opinion" of the Union. Spry replied that a Union might help improve his hours, and Lewis commented that he, Lewis, could shorten Spry's hours. After the representation heanng, Respondent hired a few new employees and Spry's workday was reduced Employee John Dickenson credibly testified, without 6 1 do not credit Lewis' denial of this statement 7 In view of Wilson's presence on this occasion and Lewis' presence in the next related incident, Respondent is responsible for Magruder's conduct on both occasions whether or not he is a statutory supervisor International Association of Machinists, Tool and Die Makers Lodge No 35 v N LR B, contradiction, that Lewis approached him on or about September 1 and inquired concerning his union sentiments. Dickenson replied he favored the Union, whereupon Lewis said that he, Lewis, thought "you [Dickenson] were on my side" and that "you better think it over before you decide" and that "the union wouldn't come into the plant because we are going to fight it." Several weeks later, Lewis inquired of Dickenson whether the latter had made up his mind about the Union and "signed anything yet." About mid-August, Lewis asked Richard Perkins, an employee of 9 years standing, what Perkins thought about the Union. Perkins replied it was a "good idea" because "it would get us better wages and some benefits." Lewis then told Perkins, according to the latter's credible, albeit denied, testimony in this regard, that "if the union comes in that it would probably be less hours." About August 11, Lewis called employee David Green into the coffee room. According to Green's uncontradicted and wholly credible testimony, Lewis inquired whether Green "knew anything about the union coming in or did anybody talk to me about it" and what Green's own union feelings were. Green said he didn't know. About 2 weeks later, Respondent President Wilson asked Green whether anyone had spoken to him about the Union, and Wilson told Green that "I might have to close the plant ... I am not going to let this union in. I'll close first." Wilson then remarked that an election might be held soon, to which Green said he didn't believe in voting and would not vote in such election. Wilson thereupon responded that Green "will have to [vote]. If you don't, it will be a vote for the Union." Green had previously worked for Mr. Ray Bruckner, a local businessman. After Green's aforementioned conver- sation with Wilson, Green inquired of Bruckner whether Bruckner would have a job for Green in the event Respondent should close down as Wilson had said it would if the plant were unionized. The next day, Wilson told Green that he (Wilson) had spoken to Bruckner and Wilson thereupon denied to Green that he had made the "closing down" statement in their earlier conversation. Route supervisor Magruder was present at this second Wilson-Green conversation. Magruder told Green in Wilson's presence on this occasion that, although he (Magruder) couldn't tell Green how to vote he "would like to know if you are with us or what" and that Green would "have to vote because we are going to be depending on your vote." 7 Sometime later, on or about September 2, Magruder asked Green whether "you have your mind made up." Lewis joined the conversation and he told Green that Respondent was bringing in some new employees who "are for me." Lewis went on to explain that, with these additional employees, Respondent would have an ade- quate workforce in the event of a strike and that Respondent would not then have to take back any of the 311 U.S 72, 77, rehearing denied 311 U.S 729; N LR B v American Thread Co, 204 F 2d 169, 170 (C A. 5, 1953), N LR B v San Diego Gas & Electric Co, 205 F 2d 471,475 (C A 9, 1953); N LR B v Des Moines Foods, Inc, 296 F 2d 285, 287-288 (C A 8, 1961) WILSON WHOLESALE MEAT COMPANY 227 strikers. Magruder and Lewis both told Green that it would cost him more to join the Union than he was earning. Green had worked for Respondent at a State Fair for a 2-week period in August. Shortly after the August 30 hearing in the representation case, Wilson called Green into his office where they discussed the Union and Green's position concerning the Union. (The record does not elaborate on this conversation.) Wilson told Green, "Dave, it looks like you are the only one I have left. I am going to give you an extra $15 for really helping me out at the fair." In addition to this "bonus," Respondent later gave Green a 10-cent hourly raise, effective in October. C. Further Activities The General Counsel alleges, in addition to such unfair labor practices as are established above, that Respondent "impose[d] and enforce[d] onerous and disparate work rules against employees" for union considerations The complaint recites seven specifications in this connection, and I shall follow the numbering and headings as they appear in the complaint. (i) Forbid employees to smoke except during breaks or lunch periods, and then only in certain designated areas of compelling employees to have their own meat purchases weighed by others In its sales of meat to employees and the public Respondent charges an additional amount for slicing the meat, and the General Counsel contends that Respondent did not impose this extra slicing charge on employee purchases until the organizational events under considera- tion here Respondent asserts that employees have always been charged the customer rate for sliced products. The General Counsel called two witnesses in this matter, Richey and Spry. Richey testified, however, that he paid the "sliced" rate about a year ago (this would have been February 1972), and Spry testified that he had purchased sliced meat at the lesser unsliced rate , but only on one occasion which he said was "too far back to remember right now, a year or two." Their testimony, I find, does not support item (iii). Without setting out the supportive testimony for item (iv) respecting the weighing of meat purchases, I find that it too is insufficient to establish such specification. (v) Institute a practice of compelling employees to each clean their own cups and utensils in the area reserved for work breaks The General Counsel in effect modified this specification at the hearing by deleting the "area" portion. Although employees have a regular 15-minute smoking or coffee break, usually after the delivery trucks are loaded, the accepted plant practice was to permit employ- ees to take a "quick smoke" in the coffeeroom throughout the workday. During the week before the representation hearing, Wilson saw employees Kling and Randy Hudson smoking in the coffeeroom, but not during the regular break; he told them not to do so again except at lunchtime or on the regular break. Lewis separately instructed employees Richey and Aust to a similar effect a day or two after the representation hearing. Lewis denied having given such instruction , and in December he made a similar denial to Richey (ii) Forbid employees to talk to one another while working; (vi) engage in more constant and rigorous supervision and inspection of employees' work Employees Richey, Kling, and Glenna Hulen credibly testified, without contradiction, that in the period immedi- ately after the representation hearing Respondent Presi- dent Wilson began reprimanding them for talking during working hours. During this same period, according to the credible testimony of Richey, Kling, Aust, and Hulen, owner Diggs came on the production floor daily for about a week and closely watched Richey, Kling, Hulen, and other employees. Diggs had not done this before. During a lunch period in September, Wilson saw Kling and Ernest Brown conversing in the parking lot; Wilson got out of his car and approached within 25 feet of them, and stood watching them for several minutes. (iii) Institute a practice of charging employees for slicing meat for their own use ; (iv) institute a practice There has long been a sign in the coffee room stating that each employee was to wash his own coffee cup. Neverthe- less, with the knowledge of Wilson and Lewis, employee Hulen had been washing other employees' cups as well as her own for a period of some months. Hulen credibly testified that Wilson instructed her in September that she should no longer perform this housekeeping chore for other employees. (vii) Promulgate and enforce a new and rigorous rule regarding employees compelled to be absent from work; Perkins' constructive discharge This specification is linked with the alleged constructive discharge of Richard Perkins on September 8, 1972. It has been a longstanding practice in the plant for employees to call in when absent. On Wednesday morning, September 6, plant manager Lewis asked Perkins to work that afternoon and Perkins said he would. Perkins did not report or call in, and he did not report or call in on Thursday. On Friday, Lewis asked Perkins about his absence, and Perkins replied that he hadn't felt like working. Perkins had some words with Wilson a few minutes later. I am satisfied, as Respondent claims, that Wilson and Lewis merely reproached Perkins for not coming to work as he said he would. Perkins thereupon punched out and told the timekeeper to mail him his check. Perkins was actually ailing at the time. On Monday, September 11, he had an emergency hernia operation and his wife notified Respondent to such effect that same day. Perkins received health insurance benefits carved by Respondent through the period of his convalesence; he returned to work upon his recovery, and he is still employed by Respondent. Perkins in effect corroborated the aforementioned call-in practice or rule respecting employee absences, for he 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that the foregoing occasion was the first time in 9 years that he had not called in. Despite the circumstances of his punching out on September 8, Perkins further testified that he had not quit, and I find he did not. I also find that he has been in Respondent's employ continuously at all material times. I conclude that Respondent did not promulgate new rules respecting absences. A "quit" being an element of a constructive discharge, I also conclude without discussing other testimony in this connection, that Respondent did not constructively discharge Perkins.8 D. Hulen's Constructive Discharge Mrs. Hulen sought and obtained employment with a local bank on Friday, January 19, 1973. She notified Lewis on Sunday that she had found another job, and inquired how much notice Respondent would require. Lewis asked how soon the bank needed her services and Mrs. Hulen said it could use her at once. Lewis told Mrs. Hulen that employees customarily give 1 or 2 weeks notice, but that Respondent's business was slow at the time and that it would be all right for her to begin her new employment the next day if she desired. He also told her that, for purposes of protecting her own employment record, he would have her personnel file indicate that she had given 2 weeks' notice. The General Counsel contends that Respondent caused Mrs. Hulen to quit and he relies in this connection on Diggs' aforementioned surveillance of her and other employees and by Wilson's other harassment of her and other employees for talking and for her cup-washing. The usual "constructive discharge" involves a situation where an employer takes discriminatory or other recrimi- natory action against an employee for the specific purpose of provoking that employee into quitting so that the employer might thus get rid of someone undesirable to him for union considerations. It would appear that such unlawful intent should be imputed where attendant circumstances establish a quit to be a reasonably forseea- ble consequence of discriminatory or recriminatory ac- tion.9 On the other hand, this does not mean that all harassing conduct by an employer for union reasons is statutory warrant for self-help relief, for in the garden- vanety case of interference, restraint, or coercion or other unlawfulness short of discharge, an employee must normally await the orderly processes of this Act before obtaining the monetary and reinstatement relief conven- tionally awarded for unlawful discharge. In the present case, I am not convinced that Respondent sought to provoke Mrs. Hulen's quit or that its conduct respecting her was so intolerable as to make her separation a forseeable consequence thereof. I conclude, therefore, that Respondent did not constructively discharge Mrs. Hulen. E. Appropriate Unit The General Counsel and the Union contend that an appropriate unit consists of Respondent's production employees and dnver, excluding office clericals, supervi- sors, salesmen, and driver salesmen. Respondent claims that the only appropriate unit would include salesmen and dnver-salesmen. On August 30, 1972, there were approxi- mately 15 production employees (including I driver) and 5 driver salesmen, one of whom is route supervisor Philip Magruder, and I salesman (Norman Gordon). The majority of the production personnel report to work at 6 a.m. The dnver-salesmen report at 7 a.m. Upon arnval in the morning, the dnver-salesmen check in any money or tickets from the previous day's sales and then they report to an office area where they devote approximately 30 minutes in making telephone calls to customers concerning orders. If necessary for an order, the dnver-salesmen then slice ham or lunchmeats in the production area; such work may occupy as long as 45 minutes for institutional orders (e.g., schools). They may then assist in wrapping their orders, depending on how busy the regular wrapping employees are, for, as Plant Manager Lewis indicated, the sooner they leave the sooner they're making commissions. The dnver-salesmen, sometimes assisted by production personnel, then load their own and each other's trucks, whereupon the driver-salesmen depart with the trucks to call on the trade. They usually leave between 9 a.m. and 10 a.m., sometimes later. Each salesman had his own specific route throughout central Missouri. Unlike production employees who punch a timeclock and work regularly specified hours, the workday of driver-salesmen apparently ends when he reports back to the plant upon completion of his route. Dnver-salesmen put in approximately 45 to 50 hours a week, according to Plant Manager Lewis, and Lewis also testified that Respondent tries "to guarantee" 40 hours to production personnel. Production personnel and dnver-salesmen have the same fringe benefits, i.e., hospitalization and medical insurance, holidays, and vacations. Their mode of compensation is entirely different, however, arising out of the essential differences in their work. The production employees are hourly paid; driver-salesmen are paid on a salary plus individual commission basis. Route supervisor Magruder also receives a salary plus commission except that his commission is based on sales of all dnver-salesmen. Respondent employs one (in-town) salesman, Norman Gordon, who uses his own car and whose territory is limited to the city of Columbia, where Respondent's plant is located. Like the driver-salesmen, Gordon is salaried and receives the same commission received by driver- salesmen. Gordon works in the plant a half-day a week, but without change of his salary-plus-commission mode of compensa- tion for such work. Although "driver-salesmen, like truckdrivers and others engaged in a particular employer's delivery operation, possess an inherent community of interest with production and maintenance workers ... [they J may at the same time have separate interests sufficient to warrant their exclusion from a production and maintenance unit...." Tallahas- 8 Although the General Counsel suggested that Respondent may have such matters as being outside the complaint discriminated against Perkins following his return to work , I do not reach 9 Radio Officer's Union v N L R B, 347 U S 17,44-45 WILSON WHOLESALE MEAT COMPANY 229 see Coca-Cola Bottling Company, Inc, 168 NLRB 1037, 1038,10 enfd. 409 F.2d 201 (C.A. 5, 1969). "The initial unit question in each case is whether or not the unit requested by the Petitioner [the Union herein] is appropriate for purposes of collective bargaining. Where a petitioning labor organization is the sole union involved in the proceeding, it is irrelevant that some larger or smaller unit might also be appropriate, or, indeed, might be the most appropriate" (id) The principal sales and driving functions 11 and mode of compensation of the driver-salesmen in this case, are essentially different from the production duties and method of payment of plant personnel. These differences are not dissipated merely because there is some contact between all of Respondent's employees and merely because the driver-salesmen may incidentally perform, to a slight degree on limited occasions, some functions of production employees. I find that Respondent's production employees have a community of interests sufficiently separate from the driver-salesmen to warrant establishing a separate bargaining unit for them. The in-town salesman is also excluded, for his predominant employment interests are clearly with the driver-salesmen rather than with the production employees. Further unit questions are whether Route Supervisor Philip Magruder is excludable as a statutory supervisor and whether Helen Bryant is excludable as an office clerical or includable as a plant clerical. Magruder, however, already falls within the driver-salesmen exclusion, and it is therefore unnecessary to resolve his supervisory status for unit purposes. Bryant's unit placement is material in this case, principally as it affects the Union's representation status. But, as appears hereinafter, the Union represented a majority of unit employees at critical times even assuming Bryant was a plant clerical, so I consider it unnecessary to decide that she was a plant clerical rather than an office clerical. Accordingly, I conclude that all full-time and regular part-time production employees and drivers employed by Respondent at 1207 Rogers Street, Columbia, Missouri, but excluding office clerical employees, salesmen, driver- salesmen, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purpose of collective bargaining within Section 9(b) of the Act. F. The Union's Representative Status The complaint alleges that Respondent refused to bargain on or about September 14, 1972, and that the Union had a majority on and after August 30. Two payrolls are in evidence, one for the week ending September 2 and the other for the week ending September 16. Including Bryant, the earlier payroll shows 15, and the latter payroll shows 18,12 employees within the unit 10 The Board in this Decision explained its modification of The Valley of Virginia Cooperative Milk Producers Association, 127 NLRB 785, cited by Respondent 11 Compare Crystal Tire Company, 165 NLRB 563 12 G C Exh 3 furnished by Respondent inadvertently omits the name of Richard Perkins who appears on the earlier payroll and who was alleged to have been constructively discharged However, as found earlier, Perkins worked on Friday, September 8, and was hospitalized on September 10, and hereinabove found appropriate. The record establishes that I I of these unit employees had signed authorization cards by August 30,13 and no issue is presented respecting 9 of these cards. Respondent does contend, however, that the cards of employees McClammer and Moyer should not be counted "because of representations made to [them] at the time they signed the card." The card signed by Moyer, McClammer, and the other employees is a so-called "single purpose" card authorizing the Union to represent and bargain collectively in the signatory's behalf. Employee Randy Hudson gave Moyer a union card which Moyer later executed at home on July 14. Moyer testified that he and Hudson discussed the Union at the time, although he did not remember precisely what was said except that an election was mentioned and that Hudson also mentioned a percentage figure which Moyer thought was "55 percent." Hudson testified that he did not mention an election to Moyer but that he did tell Moyer, "the more people we had, the more chances we stood of getting a union"; Hudson explained that he didn't know anything about an election until an organizational meeting on July 27 at Richey's home. McClammer signed his card at this July 27 meeting, which Union Business Representative Theodore Wolff also attended. McClammer testified he was told the card was "to join the Union" and that the "idea" he got out of the meeting was that "they were going to petition for an election." Wolff credibly testified that he explained to the assembled employees, including McClammer, that they could organize and gain recognition for a union in their plant by two methods, through a card-check with their employer or through an election, and that they should sign a card if they "want to be part of this organizational group." Wolff also stated at the time that he was leaving town for a while and that he might file a petition with the Board in order to protect the employees "on [the] record" pending his return. As indicated above, the Union did file a petition and also did request recognition on a card-check basis. Under the Board's Cumberland Shoe doctrine (144 NLRB 1268) approved by the Supreme Court in Gissel Packing Co., supra, "if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election" (395 U.S. at 584). ` ... we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature" he remained and still is an employee I therefore add his name to the unit employees on G C Exh 2 13 It is irrelevant to the question of the Union's majority status in August or September that Green left Respondent's employ in November 1972 and Hulen left Respondent in January 1973 Franks Bros Co v N LR B, 321 U S. 702, 704, N L R.B v Gissel Packing Co , supra, N.LR B v. L B Foster Company, 418 F 2d 1,5 (CA 9, 1969), cert. denied 397 U.S 990 (1970), N L R B v Dixisteel Buildings, Inc, 445 F 2d 1260, 1265 (C A 8, 1971). 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (395 U.S. at 606). The Court approved in this connection the Board's Levi Strauss 14 gloss that " `the Board looks to substance rather than to form' " in applying the Cumber- land rule, but " `the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation' " (395 U.S. at 608, fn. 27). I am fully satisfied on this record that neither Moyer nor McClammer was told either in "form or substance" that the cards were to be used solely for an election or that Moyer or McClammer should otherwise "disregard and forget the language above his signature." It appears, therefore, and I find that by August 30, 1972. 11 of the 15 unit employees had validly designated the Union as their collective-bargaining representative. Al- though I consider the material date for majority status purposes to be August 30 rather than dates within the September 16 payroll, the Union also did represent a majority of the employees on the later payroll. G. Discussion and Conclusion This case is not the "nit-picketing" situation suggested by Respondent. Rather, the record establishes in my opinion that Respondent conducted a systematic campaign to undermine the organizational efforts of its employees. In a small unit of 15 employees, owners Diggs and Wilson and Plant Manager Lewis managed to bring their unlawful activities to bear on at least 9 individual employees, repeatedly as to some of them. Respondent is opposed to the Union, and it has a right to such position. It let its employees know this opposition, and it has a right to communicate such fact. But it does not have a right to harass its employees for union reasons, as I find it did with respect to smoking and talking and even as to Hulen's cup- washing and in standing watch over employees on the plant floor and even in the parking lot. While I have not found that Hulen was constructively discharged, I have no doubt that Hulen was at least partly influenced to leave because of Respondent's retaliatory and repressive re- sponse to its employees' union desires. In addition, the evidence establishes Respondent's wholesale interrogation of employees, its pressures to dissuade Dickenson and Green respecting union support and voting in a Board election, its statement to Spry that he should look to Respondent not the Union to improve his working conditions, which in context I find to be a promise of benefits to induce Spry to support Respondent's antiunion stance. There are, moreover, the flagrant threats of shut down and other recriminatory action should the plant be unionized and the threat to bring in employees favorable to Respondent's anti-union position purportedly so that Respondent would not reinstate union employees in the event of a strike. A majority of the unit employees had designated the Union as their bargaining representative by August 30, 1972. Respondent, while refusing to recognize and bargain with the Union on August 30 and September 14, continued its campaign to thwart its employees' organizational efforts and to dissipate the Union's representative status . Consid- ering the seriousness and extensiveness of Respondent's unfair labor practices, I do not believe that conventional remedies are sufficient to insure a fair election and I find that the union signature cards are a more reliable test of the employees' representation desires than an election would be. Gissel, 395 U.S. at 614-615. I accordingly find that a bargaining order is appropriate in this case whether or not Respondent also is found to have violated Section 8(a)(5) of the Act, which I do find. N.L.R.B. v. Gissel Packing Co., supra; N. L. R. B. v. Kaiser Agricultural Chemi- cals, 473 F.2d. 374 (C.A. 5, 1973); N.L.R. B. v. Dixisteel Buildings, supra; United Packing Company of Iowa, Inc., 187 NLRB 878. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. The following employees constitute an appropriate bargaining unit within Section 9(b) of the Act: All full-time and regular part-time production employees and drivers employed by Respondent at 1207 Rogers Street, Columbia, Missouri, excluding office clerical employees, salesmen, driver-salesmen, guards and supervisors, and all other employees. 4. On August 30, 1972, and at all times thereafter, the Union has been and is the exclusive bargaining representa- tive of the employees in aforedescribed appropriate unit, within Section 9(b) of the Act. 5. Respondent has violated Section 8(a)(1) of the Act by the following conduct: Coercively interrogating em- ployees concerning their own and other employees' union and other protected concerted activities; pressuring em- ployees respecting Board elections and union membership and activities; seeking to induce employees by promise of employment benefits to dissuade them from voting for, joining or otherwise supporting the Union; harassing employees for union reasons by standing over them and scrutinizing them and by imposing more onerous work rules respecting talking and smoking and housekeeping chores; and threatening plant closure, discharge, and other reprisal for union reasons. 6. Respondent has violated Section 8(a)(5) and (1) of the Act by refusing and still refusing to recognize and bargain with the Union at all times since August 30, 1972. 7. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 8. A bargaining order is appropriate under N.LR.B. v. Gissel Packing Co., 395 U.S. 575, whether or not Respon- dent has violated Section 8(a)(5) of the Act. 9. Respondent has not engaged in other unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist 14 172 NLRB 732, entd. 441 F.2d 1027 (C.A D C, 1970) WILSON WHOLESALE MEAT COMPANY 231 therefrom and take appropriate affirmative action to bargaining with the Union as statutory representative, as effectuate the policies of the Act, including recognition and explained above. [Recommended Order omitted from publication.]