Herbert Halperin Distributing Corp.

HERBERT HALPERIN DISTRIBUTING CORP. 239 Herbert Halperin Distributing Corporation and Amal- gamated Meat Cutters and Allied Workers of North America, Local 593, affiliated with Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 5-CA-7554 February 15, 1977 DECISION AND ORDER NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings. 3 We deem it unnecessary here to pass on the Administrative Law Judge's conclusion that a bargaining order can never be unposed as a remedy where the evidence fails to demonstrate that the union has attained majority status in the appropriate unit or units . It suffices to find, as we do, that the unfair labor practices found herein are neither so outrageous nor pervasive as to justify the imposition of a bargaining order in the absence of a showing that the Union achieved majority status. Chairman Murphy agrees with the Administrative Law Judge's conclusion that in order for the Board to issue a remedial bargaining order it must be established that the union represented a majority of the employees in the appropriate bargaining unit. South Station Liquor Store, Inc, d/b/a Berenson Liquor Mart, 223 NLRB 1115 (1976). BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 20, 1976, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed separate exceptions, supporting briefs, and answering briefs.' 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 briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Herbert Halperin Distributing Corporation, Cheverly, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent filed a motion for leave to adduce additional evidence for purposes of introducing into the record the October 20,1976, Decision of the Board of Appeals for the Maryland Employment Security Administra- tion which denied unemployment compensation benefits to Wayne Parker. The General Counsel has opposed the motion. In view of the fact that the proffered evidence has a bearing upon the issue as to the legality of Parker's discharge and was unavailable at the time of the hearing, we shall grant the Respondent's motion. The aforementioned decision is hereby received into evidence. Cf. King Soopers, Inc., 222 NLRB 1011(1976). 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Hearing in this matter opened on March 24 and closed on April 1, 1976, upon charges filed by the Union, a complaint issued by the General Counsel on February 24, 1976, and an answer filed by Respondent. Upon the entire record in the case, including my observation of witnesses and consideration of briefs, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent, a Maryland corporation, is engaged at Cheverly, Maryland, in the wholesale distribution of meat, cheese, and other food products. The parties agree,.and I find, that Respondent meets the Board's jurisdictional standards and is engaged in commerce within Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES The complaint alleges that Respondent engaged in specified violations of Section 8(a)(1) of the Act, that it discharged three employees (Reginald Beaner, Roxie Skates, and Veronica Hamlett) in violation of Section 8(a)(3) of the Act, and that it also discharged Wayne Parker and Lester Price in violation of Section 8(a)(3) and (4) of the Act. Alleging that the Union represented a majority of employees in a described drivers-warehousemen unit at all times since September 8, 1975, the complaint also alleges that Respondent violated Section 8(aX5) of the Act in refusing to recognize the Union as statutory bargaining representative of these employees. The General Counsel 228 NLRB No. 30 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requests the conventional remedial orders for these alleged violations and he also seeks a bargaining order even if the Union did not enjoy majority representation status. Respondent denies committing any of the alleged unfair labor practices. It also asserts, in effect, that the aforemen- tioned bargaining unit (consisting of 53 employees) is inappropriate; it claims, rather, that only an overall unit consisting of 65-68 employees is appropriate. A. The Organizational Campaign In July 1975,1 Wayne Parker (an alleged discriminatee) met with Union Vice President Donald Cash and Organizer Lucas Carleton and told them that some of Respondent's employees were interested in the Union. They gave Parker some union cards and arranged with him to set up organizational meetings which he did . Employees attended such meetings held away from Respondent 's premises in August and September at a motel and at several homes, including one at Parker's residence on August 27. Employ- ees meanwhile signed union designation cards . On Septem- ber 4 the Union advised Respondent of its organizational campaign, and on September 8 the Union filed a represen- tation petition in Case 5-RC-9466. A hearing on the petition was held on October 6, at which alleged discrimina- tees Parker and Lester Price testified in behalf of the Union on contested issues . The Regional Director did not issue a decision in the representation matter and no election has been held, the original charges in the present matter having been meanwhile filed in September. B. Interference, Restraint, and Coercion The complaint alleges that Respondent violated Section 8(axl) of the Act in the following respects : (a) interrogation on August 28 and thereafter concerning union matters by President Herbert Halperin and Vice President Willie Lewis; (b) threats by Halperin on August 25 to reduce employees' hours should they select the Union, by discon- tinuing the practice of stacking customers' shelves and instead delivering products directly to customers' ware- houses; (c) threats by Halperin on August 28 and Septem- ber 16 to reduce wages and hours should employees select the Union ; (d) offers by Halperin on August 28 and September 16 to bargain individually should employees select the Union; (e) threats by Halperin in August and September of loss of profit sharing and bonuses should employees select the Union; (f) threats by Halperin on August 28 and thereafter that, if a union came in, it would be one of his, not the employees', choosing; and (g) threats by Halperin on August 29 of loss of jobs should employees engage in union activities. Except for one item of alleged interrogation by Lewis,2 the complaint thus only alleges independent violations of Section 8(a)(1) by Halperin who was, I find, a truthful and an unusually candid witness. Respondent has a leadman classification, and at the hearing in the representation case the Respondent and the Union stipulated that the following leadmen, among others, were employees and not supervi- sors and therefore included within the voting unit - Franklin Weaver, Wayne Wheeler, Norman Friedlander, and Clifton Chapman. And, at the instant hearing, the parties further stipulated that Lester Price also was, in effect, a leadman and not a supervisor within the meaning of the Act. Halperin admitted that at a meeting with Parker, Chap- man, Wheeler, and Price, on or about August 28, he inquired whether they had any information about union activities, and he further admitted confronting Parker and Price to a similar effect on another occasion. Halperin asked Parker why he wanted a union in the warehouse and that Parker should not try to deny his role as "the organizer." Parker told Halperin he desired a union because existing wages were "not up to par" and Halperin then said that "I will give you $10 an hour, but you can only work 30 hours a week," which Halperin then changed to "20 hours a week." Halperin also told Parker that, if a union were brought in, it would be a union of his (Halperin's) own choice and Parker also gave testimony, which I do not credit, that Halperin said he would change his mode of operations with a resulting cutback in person- nel. Price also testified that Halperin told him on one of the aforementioned occasions that Halperin had heard that Price, Parker, and Chapman were the union "ringleaders" and that Halperin asked, "Are you or are you not? . . . if you are, I want to know why, and if you are not, I am warning you, don't get involved in it." Price also testified that Halperin told him, "If the Union was what you all want, then I would give you 20 hours a week." Price testified that Halperin then "named X amount of dollars" and went on to say "if that is what they want, then I will put this plan into action starting as of Monday ." Price was working approximately 45 hours weekly at the time and had never worked 20 hours on a regular basis . Halperin testified that he was only "kidding around" at the time and denies that he was really threatening to cut any employee's workweek to 20 hours and that the employees knew, and I find they did know, the warehouse could not operate on a 20-hour-a-week basis. I All dates are in 1975 unless otherwise stated. 2 1 credit Lewis' denial in this matter. HERBERT HALPERIN DISTRIBUTING CORP. 241 Junius Thomas was an employee during this period and he has since retired for medical reasons. Thomas testified, in part, that he, Lewis, Price, and one Thompson attended a meeting in Halperin's office on or about August 27 and that Halperin instructed them "to fmd out who was behind [the union drive] and get rid of them." Thomas testified that at another similar meeting attended by Chapman and other named persons (but not including Price or Parker) Halperin said he had heard that Chapman, Price, and Parker were the union "instigators" and that those present at the meeting should "get rid" of any other employees whom they found out to be "involved in this Union." Thomas would thus have Halperin identifying Chapman as an "instigator" at the second meeting attended by Chapman and then instructing Chapman to get rid of all employees involved in the Union. Chapman was a General Counsel witness and gave no corroborating testimony concerning this matter. And Price, one of the alleged discriminatees, did not corroborate Thomas' let rid" testimony attributed to Halperin at the first meeting. On his demeanor as a witness alone - and apart from other considerations concerning Thomas mentioned hereinafter - I would not credit Thomas' testimony on contested matters. I therefore do not find that Halperin gave the "get rid" instructions attributed to him by Thomas. On August 28, Halperin convened and presided at a mass meeting of Respondent's entire work force. At this meeting Halperin distributed two pages of questions and answers about unions, and he read the document verbatim to the assembled employees. The document explicates Respon- dent's opposition to a union; however, the General Counsel does not contend that the document itself infringes on any statutory rights. The document states, among other things, that it was Halperin "who gave you your job, your salary increases, your profit sharing, your bonuses, your company picnics, and your Xmas parties." And the document read by Halperin also stated that Respondent "will not penalize, punish, or discriminate against employees, no matter how unwise we think it is that you have been involved in this union activity." The General Counsel adduced testimony of Parker, Hamlett, and others to the effect that Halperin, while reading the text of the aforementioned document, threat- ened to reduce working hours and thus reduce the employ- ee complement if the Union were selected by ceasing to deliver merchandise to customers' stores and instead making deliveries to customers' warehouses. In denying having made such threats, Halperin credibly testified that he did speak of an industry trend by supermarkets to eliminate the function of having middleman distributors (such as Respondent) make direct deliveries to stores. However, Halperin had discussed the matter with employ- ees several months before the union campaign began and he told them on such earlier occasions that he was fighting that trend. In fact, Respondent had recently lost two very substantial accounts because of such trend, as the employ- ees knew.3 According to Halperin, "I advised my employ- ees that I had been fighting this to the point, I know we had at that time 90 some employees and that a lot of employees would lose a lot of jobs, if I had not fought this thing. I told them on August 28th that if this was what they wanted, was a Union, then why am I fighting for their jobs. " Employee James Foley credibly testified that Halperin did not threaten to cease direct deliveries to stores if the Union came in. Parker, among others, testified that Halperin said he would "definitely" cut back all the hours and"everything else" if the Union came in, and they referred in this connection to "parties, picnics, miscellaneous things that he had given us before, which included bonuses." 4 Halperin credibly denied that he made these threats, and he testified that he did tell the employees that unions usually have pension plans and that "we would have to give up our profit sharing because the Union pension plan would probably come into the picture" for "we probably couldn't afford a pension plan and a profit sharing plan." Foley credibly testified that what Halperin did say in this connection was that after a union contract was settled he did not know whether he could afford the above-mentioned items. Halperin admitted saying at the August 28 meeting, as the General Counsel alleges, that "if the employees wanted a union it would be one that [he] chose and not one of the employees' choosing." However, General Counsel witness Hamlett (an alleged discriminatee) testified that Halperin also said he would not fight the Union and that "if the employees wanted the Union they could have it." Of all the General Counsel witnesses who testified about the August 28 meeting, only James Jamison testified - and incredibly so - that Halperin also stated that he (Halperin) would find out and get rid of the "trouble makers" the following week. Parker testified that at the meeting's end Halperin told the employees to let him know in writing the following week how they felt about the Union. Although this matter was not alleged, the General Counsel contends it was litigated because the testimony was given on cross-examination. I 3 Parker testified that Halperin informed the employees well before the union campaign that Respondent had lost a large supermarket account and that Halperin on that occasion polled the employees on whether he should lay off some employees oravoid such cutback by reducing the hours of all employees. The employees voted for the latter and Halpern acceded to their desires 4 Chapman, a General Counsel witness, testified at first, for example, that Halperin said profit sharing would be cut out if the Union came in Then he testified he was not listening to everything Halperin said. Then it appeared that Chapman had previously given the General Counsel an affidavit during the investigation of the case. This affidavit recites that Halperin distributed the question-and-answer document and that Halperin then "said things that he had done for the workers and the company benefits. Mostly he read from the pamphlet. I don't remember him making any threats " 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD am not certain that this purported item - in the nature of interrogation - was in fact litigated. However, as there is ample basis in this record for an "interrogation" order without this particular item, I shall not consider it further.5 C. The Discharges 1. Reginald Beaner Reginald Beaner was hired as a driver in June and fired on August 28. He signed a union card on August 20 at one of two union meetings he attended. Respondent denies having had any knowledge of Beaner's union affiliation, and further asserts that it discharged Beaner for cause. On the morning of August 28, and after Beaner's truck was loaded, Dock Leadman Wayne Wheeler instructed Beaner to make deliveries in the following order - first to National Airport, then to two locations in Northern Virginia, then to Rockville, and last to Silver Spring, Maryland. Wheeler also gave route information to Beaner who, as a comparatively new driver, was not too familiar with the routes. The Rockville delivery was to a new store (Magruder's) which was to open for business on September 1. Respondent was setting up the new Rockville store for the opening and hoped that by doing an especially good job on this occasion it would be able to increase its accounts at Magruder's two other stores in the greater Washington area. This setup work involved delivery of the merchandise and advertising material, placing and pricing of foodstuffs on shelves, and obtaining maximum space for Respon- dent's products. Before Beaner left for his August 28 deliveries, Kenneth Loren (Respondent's assistant sales manager) informed Dock Leadman Wheeler that Loren and Richard Isey were driving a station wagon with advertising material to the Rockville store that morning and would devote the entire day to setting up the store. Loren told Wheeler it was "most important" that the merchandise in Beaner's truck reach the store no later than 10 or I 1 a.m. as he and Isey would be waiting to set it up. Loren asked Wheeler concerning the sequence of Beaner's route stops, and, upon being informed that Beaner would arrive in Rockville at 11 or 12 o'clock, Loren said that was too late and that he (Loren) wanted Beaner to make Rockville his first stop. Wheeler thereupon intercepted Beaner as Beaner was about to drive off in his truck that morning, and he directed Beaner to change the order of deliveries. There is a conflict at this point between Wheeler and Beaner concerning Wheeler's revised delivery instructions. Wheeler testified that he instructed Beaner to make the Rockville store the first delivery stop, whereas Beaner testified that Wheeler told him to make it the second stop and before the Northern Virginia stops. Beaner, however, admittedly did not make Rockville either the first or second stop; thus, even under his own testimony, he disregarded Wheeler's instructions and he admittedly did not head for Rockville until completing deliveries at National Airport and the Northern Virginia locations. About 11 a.m. Loren called Wheeler from Rockville concerning Beaver's where- abouts, and he repeated such call several times. Respondent meanwhile called the other stops on Beaner's schedule in an effort to locate him. By 1 p.m. Beaner still had not appeared in Rockville. Loren then went out to Rockville Pike, a main thoroughfare leading to the store, to look for the truck, and finally he saw Beaner and flagged him down about 1:30 p.m. In addition to the delay caused by not following Wheeler's instructions (under either version of the instruc- tions, although I do credit Wheeler's), Beaner also had difficulty finding the store even after reaching Rockville, and he also testified that he was delayed in traffic by road construction work en route from Virginia to Rockville, Maryland. Beaner testified that Loren was standing out on Rockville Pike when Loren waved him down. Beaner testified that he then pulled over and that Loren got up in the truck and said, "Where in the hell have you been? ... I've been up here all damned day waiting for you," and that Beaner had "better have a good excuse where you've been." Loren and Isey then unloaded the truck because, as Loren testified, "I wanted to get him the hell out of there." When Beaner returned to the warehouse after completing his final delivery at Silver Spring, he met Wheeler, the dock leadman. Beaner described Wheeler as "very angry," and Wheeler told Beaner that Beaner had "really, fucked up" and that Loren "had called him [Wheeler] three or four times and cursed him [Wheeler] out about me [Beaner] not going there." During this conversation, according to Beaner, Wheeler mentioned that Beaner had been criticized for "messing up" on a previous occasion in July or early August. Wheeler thereupon told Beaner that Respondent "couldn't use me [Beamer] anymore." Beaner reported for work the next day because of a question concerning Wheeler's authority to discharge him. He met Willie Lewis, vice president in charge of warehouse 5 The General Counsel adduced testimony concerning an employee meeting convened by Respondent on August 21. Apart from the fact that the complaint does not allege any wrongdoing at such meeting, there is no credible evidence that the Union was mentioned at the meeting or that the meeting had anything to do with union matters. Moreover, the record does not establish that Respondent had any knowledge, and I find it had no knowledge, of the union campaign until a later date. HERBERT HALPERIN DISTRIBUTING CORP. operations and a social acquaintance of Beaner's. (Lewis is Wheeler's superior.) Lewis confirmed Beaner's discharge with the statement that "everybody around here is uptight." Beaner visited Lewis at the latter's home a day or two later and Beaner testified Lewis then told him he was "probably" terminated because everyone was "uptight" about the "union." According to Beaner, Lewis did not indicate that Beaner was fired because of his (Beaner's) own union activities or that Lewis even knew whether Beaner was a union member. Willie Lewis was a completely trustworthy witness. He credibly denied any knowledge of Beaner's union member- ship and he also denied using the word "union" to Beaner. What Lewis did tell Beaner was that Loren was "uptight" and "angry at me [Lewis] and the whole dad-gone warehouse" because Loren was "stuck out [in Rockville] waiting for the merchandise." 2. Veronica Hamlett and Roxie Skates Roxie Skates and Veronica Hamlett were hired in April 1974 and June 1975, respectively, and they were fired on September 25. They are cousins and friends, and both worked as commissary stampers and pricers in the cooler. Respondent asserts it discharged them for not doing their work properly, and also asserts a lack of knowledge of their union membership and activities. After work on September 3, Lester Price drove both women from the company parking lot to a union meeting where each signed a union card.6 Both women were standing alongside Parker in the rear "of the crowd" at the meeting attended by all company employees on August 28, on which occasion Halperin singled out Parker as being instrumental in the union organizing effort. Both denied, at first - and Skates also did so in her affidavit to the General Counsel-that they had been reprimanded or received any complaints concerning their job performance. Yet each later admitted on cross-exami- nation, and the General Counsel agrees that the record demonstrates, that "Skates and Hamlett were reprimanded for making mistakes in pricing commissary items" and "for taking too frequent breaks." Skates admitted that "about once a week" during her entire employment period Lewis spoke to her and Hamlett about being late for work and that she was late again on September 24 and 25. The record shows that there also were complaints to them about telephone calls. i The General Counsel's brief refers to testimony concerning Leadman Norman Friedlander, and states that this purported incident occurred after the September 3 union meeting. The testimony was stricken; moreover, Hamlett on cross-examination admitted that she had been in error in her testimony as well as in her affidavit in this regard and that the purported 243 Hamlett and Skates both testified that when Lewis left on vacation before Labor Day he spoke to both women together. Hamlett testified that he told them to keep "cool" because "he wanted us here when he came back." Accord- ing to Hamlett, he had no complaints about their work. Skates admitted, however, that Lewis was really cautioning them because of their past practice in these regards to be mindful of "coming in late," "overuse of the telephone," "pricing mistakes," "too many breaks," and "too long a break." Lewis credibly testified that he told them on this occasion that "if they continue in messing up the work .. . I don't know what would happen, once I got back [from vacation]." Lewis testified that upon returning from vacation he received even more complaints from the sales department about improper stamping and lack of stamping of some merchandise and also about their use of telephone. Lewis at first considered letting one of the women go and using a male warehouse employee on a part-time basis to lift heavy boxes concerning which the girls had complained. Lewis testified that "I had so much flak [from Loren, Halperin, and the sales department] I got disgusted with the whole thing" and "I had no alternative but to let the girls go and let Ken Loren and the sales department handle the work, since the work wasn't done right." Lewis accordingly advised Skates and Hamlett that they were no longer needed. 3. Wayne Parker Parker was hired by Respondent as a warehouseman in February 1974; he later became a truckdriver and was fired on or about October 10, 1975. Respondent knew that Parker was one of the prime movers in the union campaign and that he had testified in the Union's behalf at the representation hearing on October 6. In addition to admitting his interrogation of Parker and singling out Parker at meetings, as set forth above, Halperin admitted keeping Parker under surveillance for various reasons, including the fact that he had been informed of Parker's union role. Parker was paid on an hourly basis and he testified that beginning on August 28 (the date of Halperin's meeting with Parker and later with all employees) Respondent cut back on his overtime assignments with a resulting loss of income. He first estimated a weekly loss of 3, 4, or 5 overtime hours after August 28. Then he said he may not conversation occurred before the company meeting on August 28. Friedlan- der is not a company agent merely because he is the son of Respondent's comptroller. His own supervisor was Price , whom the parties have stipulated not to be a statutory supervisor. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have lost 4 to 5 hours every week , but that he "did lose hours." Then he said, "Maybe I didn't lose three or four hours, but I did lose [hours and] money," which he testified to be at the overtime rate of $6.80 an hour. However, the record establishes, as the parties stipulated, that - if anything - Parker was assigned more, rather than less, overtime work after August 28. During the 5-week period ending August 29, Parker worked 40 hours each week and had an additional total of 22.25 overtime hours, ranging from a low of 3 hours a week to a high of 5.75 hours. Working 40 hours each week during the following 5-week period, Parker had 25.75 overtime hours, ranging from 3.3 hours to 7 hours.? The General Counsel alleges that Respondent discharged Parker because of Parker's organizing role and also because he testified for the Union in the representation case. Respondent claims that it discharged Parker for having been involved in three traffic accidents within a 5-day working period. The first two accidents occurred within an hour on Friday, October 3. In the first accident, Parker's truck pulled off part of the fender of an automobile . In compli- ance with company requirements, Parker obtained the license, address, and registration of the other driver, and the other driver summoned the police. The police officer did not charge either driver for, according to Parker, the officer could not determine which driver was at fault. The second accident occurred as Parker was leaving the scene of the first accident. He pulled out in front of and hit a moving vehicle. The officer was still present from the first accident and witnessed the second accident and he charged Parker with a violation. Parker acknowledged his liability in this instance. Parker obtained all necessary information on the occasion of these first two accidents in order to complete appropriate accident reports to the Company in accordance with company procedures. On October 10, while driving in traffic, Parker backed up his truck and hit an automobile, causing damage to the other vehicle. Parker did not summon the police as required by company procedures; and, although he obtained the name, address, and telephone number of the other driver, he did not obtain other necessary information from the other driver, including the license plate and registration number of the other vehicle. Parker testified that he did not call the police because only "minor" damage was involved; he "thought" it was under $100, but he testified he really did not know "because I am not a body man." Parker further testified that he had no intention of paying for the damages and "guessed" the Company would. r Although the General Counsel did not specifically allege that Respon- dent unlawfully cut back on Parker s overtime work after August 28, he did adduce Parker's testimony to such effect for the alleged purpose of supporting his allegation that Halperin purportedly told Parker that hours would be reduced if the Union came in . Parker's testimony in this connection Parker later testified that he failed to summon a police officer and to get the license and registration numbers of the other vehicle and driver because he was "pretty shook up" as a result of the accidents the week before and he felt the third accident would put his job "in jeopardy." Parker later added that he felt a third accident might bring about his dismissal because Respondent knew of his efforts to organize the Union. When Parker returned to the warehouse after the third accident, Halperin told him to fill out an accident report. Parker said that before completing the report he would have to obtain some necessary information over the weekend from the other driver. It was during this conversa- tion that Halperin first learned of Parker's two earlier accidents. Halperin thereupon fired Parker with the expla- nation that "I couldn't allow a person to have three accidents in 5 days, because he would go around, he might kill somebody tomorrow. And my business was in jeop- ardy." Halperin testified, without contradiction, that to his knowledge no other employee ever had three accidents within 5 working days or within any other period. Parker applied for unemployment compensation on October 16, and he told the interviewer that he was discharged for having three accidents. He testified that he assigned this reason because the interviewer showed him at the time a form filled out by Respondent stating the accidents were the reasons for the discharge. It was not until the following day, however, that Respondent filled out and dated the form in question. Parker then further testified in effect that he "felt" he was discharged because he had "three accidents in five workings days." 4. Lester Price Price was employed by Respondent from 1968 until his discharge by President Halperin on October 10, 1975. During his last 3 years, Price was in charge of approximate- ly 20 cooler employees, and the parties have stipulated that Price was a leadman and not a supervisor within the meaning of the Act. Vice President Lewis testified that Price is a "fine worker." Respondent claims that "from September 1975 on, Price began having problems with his subordinates , as well as with the performance of his own job." And it relies in this connection on several purported incidents involving Price's own work as to price stamping, making repairs, and cleaning up the cooler, as well as purported deficiencies by employees under him in regard "to taking impermissibly is significant in evaluating his credibility on this and other matters. My appraisal of Parker's testimony and demeanor is not based in any respect on the fact that I observed Thomas signaling answers to Parker while Parker was testifying. HERBERT HALPERIN DISTRIBUTING CORP. long lunch breaks and repeatedly failing to punch out during those breaks." For the reasons appearing hereinaf- ter, I consider it unnecessary to burden this Decision with minutiae of the aforementioned incidents. Price signed a union authorization card at a union meeting on August 20, and he attended many subsequent meetings. Halperin admitted, as indicated above, that at a meeting with Price and Parker and three other individuals he asked Price and the others "if they knew anything about the union activities. And they said no, they knew nothing about it. And they were not involved in the union activities." Halperin admittedly again confronted Price concerning the matter and Price "told me that he had nothing to do with this whatsoever, and he didn't want any part of the Union." Price testified in the Union's behalf at the representation hearing on October 6. Michael Halperin, the son of Herbert Halperin, is in charge of Respondent's institution business. Michael Halperin told Price on one occasion that "we no longer have any respect for you [Price]" because of the latter's union involvement and that "from now on everything will be done directly by the book." Halperin candidly testified as follows concerning his reasons for firing Price. It was a combination of a lot of things. The man said he couldn't get the work done. He lied to me. When we talked about a 12 week period, about what was happening in the cooler, in the warehouse and he said he couldn't get the work done, it was a culmination of when I asked him some questions pertaining to the union and he said to me he was not involved with the Union. I found out he was lying. When I asked him some other questions and he lied to me about it. So this was a culmination of a lot of things. Upon being asked in what way Price had lied about the Union, Halperin referred to his interrogation of Price recounted above.8 Concluding Findings: Section 8(a)(1), (3), and (4) Respondent is admittedly opposed to the unionization of its employees, as it is entitled to be, and it is also entitled to communicate such opposition to its employees and to discuss with them the benefits achieved and enjoyed by them without a union. It is also permitted to tell its 8 It should be mentioned, in fairness to Respondent, that Halperin considered Price to be a supervisor and his employee status was litigated in the representation case. Respondent continued to assert such contention in 245 employees that, in the process of negotiating and reaching an agreement with a union, certain present benefits could be traded off for certain other items deemed more impor- tant by a union. The statutory limitation, so far as this case is concerned, is that an employer may not threaten to change its mode of operations or reduce wages or discontin- ue certain fringe benefits merely because a union may be selected as a bargaining representative. Respondent, in my opinion, did not infringe on this statutory proscription. For I find that, in all the circumstances of this case, Halperin did not speak either in terms of reprisal or without rational basis and in none of his statements, in question, do I find "any implication" that he would take action "solely on his own initiative for reasons unrelated to economic necessities and known only to him . . . ." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). See also Southern Frozen Foods, Inc., 202 NLRB 753, 754-755 (1973); T. M. Duche Nut Co., Inc., 174 NLRB 457, 458 (1969); TRW Electronic Component Division, TRW, Inc., 169 NLRB 21, 22 (1968). Addressing the items, as enumerated in the General Counsel's brief, I fmd that credible evidence in this record does not preponderantly establish that Halperin threatened, should employees select the Union, to reduce hours by discontinuing stacking customers' shelves, to reduce wages and hours or cut back on jobs, or to cause a loss of profit sharing and bonuses. I also find no credible record support, much less a preponderance, that Respon- dent offered to bargain individually should the employees select the Union. There can be no question, however, that Respondent did coercively interrogate employees concerning union activi- ties. And, while it was not alleged, Respondent did admittedly keep Parker under surveillance, at least in part because of his union activities, and this too I find to have violated the Act. This leaves the factually supported allegation that Halpe- rin did tell employees that it would be he, not they, who would select a bargaining representative for them. Even if, as Respondent urges, Halperin had no foundation for the statement which was made in what he called a "heated moment," I fmd that such utterance by an employer has a tendency to interfere with, restrain, and coerce his employ- ees in their guaranteed choice of a bargaining representa- tive and that Respondent has thereby also violated Section 8(a)(1) of the Act. Little need be added, in my opinion, concerning the allegations of discrimination. Beaner's, Hamlett's, and Skates' union activities were minimal, at most, and I find no this case, and it remained a substantial issue until late in this proceeding when the parties stipulated that Price was not a statutory supervisor. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cogent basis for inferring employer knowledge of their respective union involvement and I fmd it had no such knowledge. Even assuming employer knowledge, arguendo only, the facts and circumstances, set forth above, prepon- derantly establish that Respondent discharged them for cause and not for reasons of union membership and activities alleged by the General Counsel. Parker and Price were actively involved with the Union; the Respondent knew they were, and had interrogated them about the matter; Respondent was opposed to the Union; and Respondent fired Parker 4 days after the representa- tion hearing. These facts, taken alone, add up to a prima facie case. But they are not alone. For, during this same period, Parker was involved in three traffic accidents within 5 working days ; he was at fault in the second and third accidents and in the third one he also failed to follow company procedures as to summoning a police officer and obtaining certain necessary information for reporting purposes. Upon consideration of all the facts and circum- stances of Parker's termination, I fmd that the record establishes that Respondent discharged him for cause and not for his union role or because he testified in the representation hearing. Price was fired for a "combination" of reasons, being a "culmination," according to Halperin, "of when I asked him some questions pertaining to the union and he said to me he was not involved with the Union. I found out he was lying." Price's union activity thus was at least a contribut- ing cause of his discharge and "a discharge motivated only in part by anti-union discrimination is similarly illegal." J. P. Stevens & Co., Inc. v. N.LR.B., 380 F.2d 292,300 (C.A. 2, 1967), cert. denied 389 U.S. 1005. I accordingly conclude that, by discharging Price, Respondent violated Section 8(a)(1) and (3) of the Act. I am unable to determine that the discharge was additionally motivated by the fact that Price had testified in the representation hearing, and I therefore do not fmd that the record preponderantly establishes an 8(aX4) violation as to him. In either event, Price's remedy is the same. IV. REFUSAL TO BARGAIN; Gissel BARGAINING ORDER The complaint alleges that Respondent has violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union on and since September 8, 1975, and it alleges in this connection that: At all times material since on or about September 8, 1975, a majority of Respondent's employees have designated the Union to represent them for purposes of collective bargaining with Respondent concerning wag- es, hours and other terms and conditions of employ- ment in a unit appropriate for collective bargaining consisting of all employees employed by Respondent at its Cheverly, Maryland location but excluding all office clerical employees, salesmen, guards and supervisors as defined in the Act. Respondent asserts, however, that the smallest appropri- ate unit in this case would necessarily include sales personnel as well. This unit issue was fully litigated at the hearing in the aforementioned representation proceeding (Case 5-RC-9466) but, as indicated, the Regional Director issued the complaint in this matter without issuing a decision in that case. (The record in the representation case has been incorporated in the instant record.) For reasons of the Union's lack of majority, I find it unnecessary to reach this unit question. The General Counsel's brief states that the appropriate date for determining the Union's representation status is either September 8 or 9, 1975. On both dates there were 53 employees in the unit claimed appropriate by the General Counsel, and 65-68 employees in the unit sought by Respondent. The parties agree that no more than 22 employees had validly designated the Union as their bargaining representative on either date. The Union therefore did not represent a majority of employees in the General Counsel's unit of 53 or Respondent's unit of 65, and the General Counsel thus acknowledges that "the record establishes that there was no card majority on any relevant date." Lacking majority for the Union's claimed status as statutory representative, it would not seem necessary to say more about a bargaining order here - under either 8(a)(5) or Gissel principles .9 The General Counsel does seek a bargaining order, nevertheless, even absent the Union's majority status. The General Counsel thus argues that this case is so marked by "outrageous" and "pervasive" conduct as to be deemed "exceptional," and that an "extraordinary" remedy of a bargaining order is therefore warranted even though the Union never has enjoyed majority representa- tive status. The unfair labor practices found in this Decision fall short, substantially perhaps, of the complaint issued by the General Counsel, and I therefore do not know whether he would continue to urge that the case is "exceptional" for purposes of a bargaining order. The General Counsel, moreover, has not addressed a question I suggested he treat in his brief in this connection. That was whether, on the assumption that a bargaining order is legally permissible in 9 N LR. B v. G:ssel Pack,ne Co., Inc., 395 U.S. 575 (1969). DECISIONS OF NATIONAL LABOR RELATIONS BOARD the smaller of the two units asserted here, would such bargaining order also be warranted if the larger unit be the only appropriate one. In other words, how much of a representation showing short of a majority does the General Counsel deem lawfully sufficient to support a bargaining order under this Act? But I need not consider these questions. Nor is it necessary to do ajunsprudential analysis on the underlying question posed by the General Counsel's request, even on the basis of his view of the case when he issued the present complaint. For, in my opinion, the controlling law is clear; no majority, no bargaining order. "In order for this Board to issue a remedial bargaining order, it must first be established that the Union represented a majority of employees in the appropriate bargaining unit." South Station Liquor Store, Inc., d/b/a Berenson Liquor Mart, 223 NLRB 1115 (1976). As far as I can ascertain, this has always been the Board law, before and since Gissel. Pre-Gissel: H. W. Elson Bottling Company, 155 NLRB 714, 715-716 (1965); J. P. Stevens & Co., Inc., 157 NLRB 869, 877 (1966), enfd. as modified 380 F.2d 292, 305, fn. 22 (C.A. 2, 1967), cert. denied 389 U.S. 1005; J. P. Stevens & Co., Inc., 163 NLRB 217, 228 (1967), enfd. as modified 388 F.2d 896 (C.A. 2); Clanebach, Inc d/b/a Carousel, 170 NLRB 341 (1968). Post-Gissel: South Station Liquor, Inc., supra, Donelson Packing Co., Inc. and Riegel Provision Company, 220 NLRB 1043 (1975); Grismac Corporation, 205 NLRB 1108, 1118-19; (1973); Litho Press of San Antonio, 211 NLRB 1014, 1019 (1974); Fuqua Homes Missouri, Inc., 201 NLRB 130 (1973); The Loray Corporation, 184 NLRB 557, 559 (1970). I accordingly reject the General Counsel's request for a bargaining order, as contrary to law on both 8(a)(5) and Gissel grounds. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees concerning union activities, engaging in surveillance of union activities, and telling employees they may have a union but only of Respondent's own choosing, Respondent has violated Section 8(a)(1) of the Act. 4. By discharging Lester Price because of his union activities, Respondent has violated Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 10 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 246A 6. At no material time herein has the Union been, and it is not now, the exclusive bargaining representative of Respondent's employees in an appropriate unit within Section 9(b) of the Act. 7. Respondent has not engaged in any other violations of the Act alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating and making whole Lester Price, in order to effectuate the policies of the Act. Allbackpay computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962). Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER to The Respondent, Herbert Halperin Distributing Corpo- ration, Cheverly, Maryland, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning union member- ship and activities. (b) Engaging in surveillance of employees for union reasons. (c) Telling employees they may only have a union of Respondent's choosing. (d) Discharging employees for reason of membership and activities in behalf of Amalgamated Meat Cutters and Allied Workers of North America, Local 593, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, or any other union. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Lester Price immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Price whole, as set forth in the section of this Decision entitled "The Remedy," for any loss of earnings suffered as a result of the discrimination against him. of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 246B HERBERT HALPERIN DISTRIBUTING CORP. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its place of business at Cheverly, Maryland, copies of the attached notice marked "Appendix." I I Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, mclud- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. "" In the event that the Board's 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 National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL reinstate and make whole Lester Price. WE WILL NOT question employees concerning union membership and activities. WE WILL NOT engage in surveillance of employees for union reasons. WE WILL NOT tell employees they may only have a union of our, rather than their, choosing. WE WILL NOT in any other manner discriminate against employees for union reasons or because they exercise their rights under the National Labor Rela- tions Act. All our employees are free to join or remain members of Amalgamated Meat Cutters and Allied Workers of North America, Local 593, Amalgamated Meat Cutters and Butcher Workmen of North America, or of any other union, or not to loin or remain members unless such membership is required under a lawful contract under the Act. HERBERT HALPERIN DISTRIBUTING CORPORATION