E. H. Sargent and Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1318 (N.L.R.B. 1952)

1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. H. SARGENT AND CO., A CORPORATION and WAREHOUSE AND MAIL
ORDER EMPLOYEES UNION, LOCAL No. 743, AFFILIATED WITN THE IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, A. F. L. Case No. 13-CA-703.
June 307 1952
Decision and Order
On October 18, 1951, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in other unfair labor practices alleged in the com-
plaint, and recommended dismissal of those allegations. Thereafter
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report, and supporting briefs. The Respondent's request for
oral argument is denied, as the record and briefs in our opinion ade-
quately set forth the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and' briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications.
The principal allegation of the complaint in this case is that the
Respondent's refusal to recognize the Union and to bargain with it
in October 1950, stemmed from an illegal intention to defeat the em-
ployees' right to bargain collectively and therefore constituted a
violation of Section 8 (a) (5) of the Act. In defense, the Respondent
asserts that it doubted, in good faith, whether the Union represented
a majority of the employees whom it claimed to represent; it contends,
therefore, that its insistence upon a Board-conducted election to test
the Union's majority status was a course of action sanctioned by the
Act. It also contends that the Union did not then represent a
majority.
As in all cases of this type, the Board's first inquiry must be whether
the Union was in fact authorized by a majority of the employees in an
appropriate unit, for if it was not, the Respondent was under no
obligation to recognize it, and the 8 (a) (5) allegation of the com-
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Murdock].
99 NLRB No. 156.
E. H. SARGENT AND CO . 1319
plaint necessarily falls. The Trial Examiner found that the Union
did not represent such a majority. We disagree.
There is no dispute as to the appropriateness of the bargaining
unit-all warehouse employees-which the Union had organized.
As set forth in the Intermediate Report, the demand for recognition
and the refusal occurred on October 6, 1950. The General Counsel
and the Respondent disagree as to the number of employees who com-
prised the unit on that date. If all the employees whom either party
would include in the unit were counted, the maximum number of
employees would be 50. At the start of the hearing, the Respondent
took the position that 46 named employes were properly included,
but,the General Counsel argued that 3 others-Edstrom, Rowley, and
Sullivan-should also be counted. Later, it was agreed that Sullivan
and Dreffein, the 50th named employee, had been in the union on Octo-
ber 6 and should also be counted. The General Counsel also urged
exclusion of Kuras, one of the original 46, as a supervisor.
The General Counsel then introduced into evidence 28 union-author-
ization cards. As the hearing progressed, the Respondent contended
that, in addition to Edstrom and Rowley, 5 other employees-Crowley,
Thomas, Harris, Peterson, and Vodin-each of whom had signed
authorization cards, should not be counted because, for varying rea-
sons, they did not fall within the unit on October 6, 1950. In further
attack on the Union's majority status, the Respondent contends that
the cards of 4 additional employees were fraudulently obtained, and
should therefore be excluded from the count.
The Trial Examiner found that Kuras was not a supervisor, and
should be included. He also concluded that Rowley, Crowley,
Thomas, Harris, Peterson, and Vodin should be excluded. As on this
state of facts the Union could in no event have had a majority on
October 6, the Trial Examiner found it unnecessary to decide the
unit placement of Edstrom.
For the reasons stated in the Intermediate Report, and on the entire
record, we perceive no reason to disturb the Trial Examiner's con-
clusions as to Kuras, Peterson, and Vodin 2. We shall consider the
others seriatim. To the extent that the Board disagrees with the
Trial Examiner, our differences depend upon an appraisal of the facts
and their. significance, and not upon the credibility of witnesses.
A. George Crowley started working for the Respondent in 1947.
During the year 1950, up until July, he was frequently absent because
of illness and in fact performed only several full weeks of work. He
last worked on July 21, 1950, but his name was carried on the payroll
until October 10, 4 days after the Union's demand for recognition.
On that day Crowley's group leader reported to Personnel Manager
2 Exceptions were filed as to each of the disputed employees except Peterson.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hess that Crowley had undergone surgery for cancer. Crowley died 6
months later.
It has long been established Board policy that, in determining the
numerical strength of a union claiming majority representative status
among any group of workmen, employees on sick leave are included in
the unit total and have a voice in the selection of the bargaining agent.3
Crowley's inclusion therefore turns on whether or not he enjoyed
employee status on October 6. The Respondent's retention of his
name on its payroll is, of course, some evidence of such status.' There
is more in the record to support this conclusion as to Crowley. He was
never advised to the contrary. Moreover, it was the Respondent's
stated policy, expressed by President Mints at that very time, to be
very liberal toward employees in this respect, not only to retain sick
employees on its roster, but even in some cases to continue their salary
for reasonable periods. And, finally, removal of Crowley's name from
the payroll followed immediately upon the Respondent's learning of
the severity of his illness. In these circumstances we find unper-
suasive Hess' uncorroborated assertion that Crowley's name appeared
on the payroll by mistake, and that he had instructed the bookkeeper to
remove the name from the payroll as early as August 1950. Accord-
ingly we find, contrary to the Trial Examiner, that on October 6, 1950,
Crowley was included in the appropriate bargaining unit.
B. Robert Thomas was hired on August 18, 1950; he quit in Feb-
ruary 1951, 4 months after the. crucial date, to continue his studies
at the University of Illinois. When interviewed for employment by
Personnel Manager Hess, Thomas said that he was a student, that he
wanted a job in order to earn enough money to return to school, and
that he had every hope of starting school again at the second semester
around February 1, 1951.
The Respondent contends that Thomas was only a temporary em-
ployee and therefore must be excluded from any consideration of the
bargaining unit. Although it is true that Thomas did not intend to
remain permanently with the Respondent, it does not appear that his
arrangement with Hess imposed any definite terminal date upon his
employment. Neither in August nor in October, when he authorized
the Union as his bargaining agent, could his expressed "hope" to
return to school in February be equated to any certainty that-he would
accumulate sufficient funds to accomplish his desire. That Hess him-
self did not consider Thomas' employment entirely temporary is
8 George Sexton , an individual d/b/a Sexton Welding Company , 96 NLRB 454; Whiting
Corporation, Spencer and Morris Division , 92 NLRB 1851.
4 The Board 's directions of election read, in pertinent part, as follows : ". . . an election
. . . shall be conducted . . . among employees in the . . . [appropriate unit] . . . who
were employed during the payroll period immediately preceding the date of this Direction
of Election , including employees who did not work during said payroll period because they
were ill or on vacation or temporarily laid off . . .
E. H. SARGENT AND CO. 1321
strongly shown by the fact that the Respondent agreed to Thomas'
inclusion in the unit at the outset of the hearing, and raised no ques-
tion as to his status until after his authorization card had been re-
vealed. On these facts, we find, unlike the Trial Examiner, that on
October 6,1951, Thomas was included in the bargaining unit"
C. James Harris was hired on May 2, 1950. At that time he told
Hess that the Chicago winter climate disturbed him and that he al-
ways returned to his home in Georgia before November, when cold
weather came to Chicago. Hess said he would be able to keep Harris
busy until he left Chicago. Harris did not quit until December
15, 1950.
As in the case of Thomas, the Respondent contends that Harris was
never more than a temporary employee, and that, because he always
intended to leave, he was never part of the warehouse bargaining
unit. Again the record does not show that Harris received employ-
ment on the express condition that he leave as soon as cold weather
set in. Harris was not hired only for the "busy season," for whatever
busy season the Respondent can be said to have starts in July, 2
months-after Harriswas hired, and admittedly ends in October rather
than in December, when he quit. Moreover, Harris did not leave at
the time of the November cold, as he had apparently intended. At
best, therefore, his status could be described as of uncertain tenure
during the 7 months he worked; certainly his time for departure was
not fixed. On the record as a whole, including the Respondent's
complete change of position after learning that this employee had
executed a union-authorization card, we find that Harris was included
in the unit on October 6, 1950.
D. Raymond Rowley was hired on June 19, as an order filler in the
warehouse, and was transferred to the adjustment and repairs depart-
ment of the general office about a month later. His duties required
him to go to various departments of the Respondent's premises to
ascertain whether certain repairs were possible, the cost of repairs and
replacements, and time estimates. It was then his responsibility to
follow through on the particular item, check with the customer, and
see to the ultimate delivery of the material. A substantial part of
this work was done in the warehouse, where Rowley regularly opened
the packages received by his department. The evidence clearly shows
that he spent at least 2 hours every day in the warehouse, performing
the same functions as other employees there." How much more time
Rowley spent in the warehouse, or how and where he spent the rest
of his working day, is not definitely shown in the record. In any
event, regardless of what other work he performed, we are satisfied
Hollingsworth & Whitney Co., 97 NLRB 599.
e Rowley left the Respondent's employ at the end of October 1950, and his work was
thereafter performed by warehouse employees.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, for the time Rowley spent working in the warehouse, he was
entitled to representation with respect to such work, and to a voice in
the selection of any bargaining representative for the warehouse unit.?
Accordingly, contrary to the Trial Examiner, we find that Rowley
was included in the appropriate bargaining unit on October 6, 1950.
E. Kenneth Edstromm: The Respondent contends that this employee
did technical work and therefore did not fall within the warehouse
unit. Edstrom was, hired in 1948 as assistant separation chemist.
He then had completed 2 years of college chemistry study. He worked
in the laboratory, a room set apart from the remaining portions of
the warehouse, under Dr. Culmer, the chief chemist. After Culmer
left the Respondent in March 1950, and until October 27, 1950, when
the laboratory was discontinued, Edstrom performed all the labora-
tory work. Edstrom's duty was to compound chemical solutions
ordered by customers. The preparation of -each- solution required
measuring volume and weight of chemicals and mixing them. This
work involved the, use of torsion balances, analytical balances, volu-
metric flasks, pipettes, burettes, and like laboratory apparatus. In
the course of his work Edstrom was required to consult chemistry text
books for application of mixing formulae. In contrast to Edstrom's
technical work, the order fillers in the warehouse, whose duties as-
sertedly compared to his, did entirely unskilled work and for the most
part merely transported stock from shelves to order packages. On
these facts, and on the entire record, we find that Edstrom was a
technical employee. Therefore, in view of the dispute as to his unit
placement, and in accordance with well-established policy, we con-
clude that he was not within the unit on October 6, 19508
As set .forth above, 28 union-authorization cards were placed in
evidence, all dated before October 6, 1950. Exclusion of Edstrom,
Peterson, and Vodin, each of whom had signed a card, reduces the
Union's showing of representation to 25. With Kuras, Crowley,
Thomas, Harris, and Rowley included in the unit, and no issue raised
as to the remaining warehouse employees, it now appears that there
was a total of 47 employees in the unit as of October 6, 1950, when the
refusal to bargain occurred. Thus, the Union represented a majority
of the employees whom it sought to represent.
The Respondent nevertheless contends that the Union's majority
showing was not "legitimate"; it rests this argument on the assertion
that the cards of employees Monzell, Morberly, Colling, and Howind
were obtained by fraudulent misrepresentation on the part of union
organizers . In support of this position, it offered the testimony of
these employees.
*'Walter d Shirley Cohen d/b/a Tower Cleaner8, 97 NLRB 376 ; Andrews Company,
98 NLRB 11 ; The Ocala Star Banner, 95 NLRB 569.
8The Detroit Edison Company, 84 NLRB 477 ; Florence Stove Company, 98 NLRB 16.
E. H. SARGENT AND CO. .1323
Monzell testified that the day before he signed his card, employee
Edstrom told him "something about they had the majority of votes
of the union coming in"; Monzell added that he would not have signed
,the card if he had not thought the Union already had a majority.
Moberly testified that fellow employee Cokeley, with whom he "always
rode home," and who talked to Moberly about the Union "quite a lot,"
led him to understand that a majority of the employees had signed,
and that that was the reason he signed an authorization card. Colling
testified that Frank Polivka, a union organizer, asked him to sign
,a card, telling him that "most of the fellows sign." Howind testified
that he signed a card "in order to get it to a vote," and that he did
not read the card when he signed it. He did not testify that he was
told anything concerning the Union's majority; to establish misrepre-
sentation in Howind's case, however, the Respondent relies on the fact
that Cokeley, who procured Howind's card, testified that he told
Howind that the Union "actually . . . don't need any more, but we
would like to get a few more to throw it over for sure."
On this state of the record, we cannot find, as the Respondent urges,
that any misrepresentation occurred, for the evidence does not affirma-
tively show that the Union did not in fact have a majority when the
statements were made. Assuming, arguendo, that the Union and
its representatives knowingly misrepresented that the Union had a ma-
jority, such.conduct was not of a character as to be fatal to the Union's
claim, for the Board has held that " . . . the testimony of a signer
as to his subjective state of mind at the time of signing, cannot operate
to overcome the effect of his overt action in having signed the applica-
tion cards." ° We conclude that these employees, by signing union
'application cards, designated the Union to represent them," and we
shall therefore include their cards in the count.
In conclusion, we find, unlike the Trial Examiner, that on October
6, 1950, the Union represented a majority (25) of the Respondent's
employees in the appropriate unit (47).
As set forth in detail in the Intermediate Report, the Respondent
rejected the Union's demand for recognition and its direct offer to
prove its majority; instead it insisted that a petition for certification
be filed with the Board. There would have been nothing unlawful
in the Respondent's insistence upon a Board election, if it had been
motivated by a genuine doubt that the Union represented a majority
of the employees. However, we find that this was not the case. Only
5 days after insisting upon a Board-conducted election, the Respond-
ent unlawfully arrogated to itself the determination of the Union's
Consolidated Machine Tool Corporation , 67 NLRB 737 ; The Nubone Company, Inc.,
62 NLRB 322; N. L. R. B. v. Sunshine Mining Company , 110 F. 2d 780 (C. A. 9).
ao Henry E . Spiewak, Phillip Spiewak, and Stan R. Spiewak , co-partners d/b/a I. Spiewak
and Sons, 71 NLRB 770, 792; enfd . in pertinent part, 179 F. 2d 695 (C. A. 3).
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"majority status" by conducting its own election among the ware-
house employees. During the same period, it also interrogated indi-
vidual employees with respect to their union activities. And finally,
less than 2 weeks after October 6, without consulting the Union and for
the purpose of discouraging union affiliations by its employees, it gave
a wage increase to all the warehouse employees 11 In these circum-
stances, we conclude that the Respondent's insistence upon a Board-
election was not motivated by a good faith doubt concerning the
Union's majority status, but rather by a desire to gain time to under-
mine the Union and to destroy its majority.- Accordingly, we find,
unlike the Trial Examiner, that the Respondent violated Section 8
(a) (5) of the Act by refusing to bargain with the Union on October
6, 1950.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, E. H. Sargent
and Co., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Warehouse and Mail
Order Employees Union, Local No. 743, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehopsemen and
Helpers of America, A. F. L., as the exclusive representative of all
its employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
(b) By means of interrogation, granting unilateral wage increases,
conducting elections among its employees, or in any other manner
interfering with, restraining, or coercing its employees in the exercise
of their right to self-organization , to form labor organizations , to join
or assist the above-named labor organization, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
u As the Trial Examiner properly found, the Respondent independently violated Sec-
tion 8 (a) (1) of the Act by conducting the election among the warehouse employees,
by interrogating individual employees, and by unilaterally instituting the wage increase.
We also agree with his conclusion that the Respondent 's interrogation of applicants for
employment as to their union affiliation was illegal.
However , we do not adopt the Trial Examiner 's 8 (a) (1 ) finding as to the Respondent's
announcement that in the event of a threatened strike replacements would be hired^onja
permanent basis, for we are not satisfied that this statement was made as a threat. See
The Texas Company, 93 NLRB 1358.
"Houston and North Texas Motor Freight , 88 NLRB 1462 ; W. T. Grant Company,
94 NLRB 1133.
E. H. SARGENT AND CO. 1325
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Warehouse and Mail
Order Employees Union, Local No. 743, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., as the exclusive representative of all the
aforesaid employees with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Post at its plant in Chicago, Illinois, copies of the notice
attached hereto as an Appendix.13 Copies of said notice, to be sup-
plied by the Regional Director for the Thirteenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof and maintained by
it for a period of sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with WAREHOUSE
AND MAIL ORDER EMPLOYEES UNION, LocAL No. 473, affiliated with
the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS,
WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L., as to the
bargaining unit described below with respect to rates of pay,
wages, hours of employment, and other conditions of employ-
ment and, if an understanding is reached, embody such under--
standing in a signed agreement. The bargaining unit is:
All our warehouse employees, excluding office clerical em-
ployees, guards, professional employees, and supervisors as
defined in the Act.
Is In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "pursuant to a decision and order" the
words "pursuant to a decree of the United States Court of Appeals , enforcing an order."
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT by means of interrogation, granting unilateral
wage increases, conducting elections among our employees, or in
any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named labor organiza-
tion, or any other labor organization, to bargain collectively
through representative's of their own choosing, and to engage yin
concerted activity for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities, except to the extent such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3)
of the Act.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named labor organization or any other
labor organization, except to the extent such right to refrain may be
affected by lawful agreement requiring membership in a labor organ-
ization as a conditions of employment.
E. H. SARGENT & CO.,
Employer.
Dated -------------------- By ---------------------------
(Representative ) ( Title)
This -notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material. '
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed November 1, 1950, and amended March 16, 1951, by the
Warehouse and Mail Order Employees Union , Local No. 743, affiliated with the
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Help-
ers of America, A. F. L., herein called the Union, the General Counsel by -the
Regional Director for the Thirteenth Region ( Chicago, Illinois ), of the National
Labor Relations Board , herein called the Board , issued his complaint 'dated
March 26, 1951 , against E. H. Sargent and Co., a corporation , herein called the
Respondent , alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and ( 5) and Section 2 (6) and (7) of the Labor Management Relations Act,
1947, 61 Stat . 136, herein called the Act. Copies of the complaint and the
'charges , together with notice of hearing , were duly served upon the Respondent
and the Union.
With respect to unfair labor practices , the complaint , as amended , alleges in
substance that the Respondent beginning on or about October 6 , 1950 , and there-
after, refused and continues to refuse to bargain with the Union , and by certain
conduct interfered with , restrained , and coerced its employees in the exercise of
the rights guaranteed them in Section 7 of the Act. The Respondent's answer
denies the commission of unfair'labor practices.
E. H. SARGENT AND Co. 1327
Pursuant to notice, a hearing was held from April 23 through May 7, 1951, at
Chicago, Illinois, before the undersigned, the Trial Examiner designated by the
Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel and the Union by its representative. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues, was afforded the parties. Although afforded an opportunity
none of the parties presented -oral argument at the close of the testimony.
Briefs were received from the General Counsel and the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged in the manufacture and
sale of scientific laboratory instruments, apparatus, and chemicals, maintaining
principal offices and a place of business at Chicago, Illinois. The Respondent
also conducts branch operations in the States of Texas and Michigan. These
branch operations are not involved in this proceeding. During the calendar
year 1950, the value of raw materials purchased and transported by the Re-
spondent for use at its Chicago operations was in, excess of one million dollars,
oflwfrii'h dollar value more than one-half represeiited goods 4bippped to•it'frot
points outside the State of Illinois. During the same period, the value of fin-
ished products sold and transported by the Respondent from its Chicago plant
exceeded two million dollars, more than one-half of which was shipped by it to
points outside the State of Illinois. It is found that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse and Mail Order Employees Union, Local No. 743, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
1. The events
In the summer of 1950, officials of the Union sought to organize the Respondent's
employees. During this period, the Union's representatives stood in front of the
plant and distributed literature and membership cards. On October 2, business
representatives of the Union met with employees Frank Polivka, Clarence
Hubbard , and Walter Cokeley in a park across the street from the plant. One
of the Union's representatives pointed out that under the Union's contracts the
employees could get wage increases. A warehouse unit having an estimated
45 employees was discussed. Polivka was given a quantity of cards and the
employees were told ' to • turn' over the ' signed ' cords when' they obtained ^ the
signatures of a majority of the employees, and the Union would then be able
to represent them.
The next day and the day following, October 3 and 4, individual employees
were solicited on the Respondent's time and property. The solicitation was
1328 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed by Polivka, Cokeley, and employee Richard Price. On the night of
October 4, Polivka completed the collection of the cards from the other employees
and, being of the view that they had a majority, turned over the cards and a
list of the warehouse employees to the Union.
On October 5, the next day, two of the employees who had participated in the
furtherance of the Union, Hubbard and Cokeley, were questioned by the Respond-
ent. Hubbard was called into the office of Merriman Hess, a vice president of
the Respondent who is personnel manager and is also in charge of the office
and warehouse operations. In the course of a discussion concerning a wage
increase which Hubbard had requested, Hess, according to Hubbard's credible
testimony, inquired whether he had noticed any union activity. Hubbard
replied that he had not noticed any union activity recently and Hess declared
that he had been informed that there had been union activity at the plant
recently. Toward the close of the day, Thomas M. Mints, president of the
Respondent, had Cokeley called into his office and in a friendly conversation
spoke to him, among other things, about the union activity. According to
Cokeley's credible testimony, in the course of the discussion the following
transpired: ^ They talked about Gokeley's being -dissatisfied with his job ; Mints
inquired about the union activity at the Respondent's plant, and whether
Cokeley knew anything about it, and Cokeley replied that he knew about it
and that cards were being passed around and further that the men were signing
the cards ; Mints asked who was interested in the Union, and Cokeley answered
that the men were interested in the Union but that he was not going to name
any of the men ; Mints inquired why the men were interested in the Union, and
Cokeley replied that he believed that the principal difficulty was wages and
that there was a good deal of unrest among the men because of wages ; Mints
inquired as to what Cokeley would do if he had an opportunity to vote on
whether he wanted a union, and Cokeley answered that he would vote in favor
of the Union ; Mints pointed out that the Respondent had been treating the older
men well, and Cokeley stated that their salaries could be higher; and Mints
asked if Cokeley thought that the men would go along with the Union and
Cokeley stated that he thought that they would. Also that day Mints talked
to other-persons who worked in the warehouse, Joseph Niemiec, Nick Baumhardt,
Roy Burkman, and Stanley Kuras.1
When Niemiec was called into Mints' office, according to Niemiec's credible
testimony, among other things, Mints inquired if Niemiec had seen anyone
sign union cards on the Respondent's time. Niemiec replied that he had not.
Mints also asked whether he knew who the instigators of the Union were and
Niemiec stated that he did not know.'
Officials of the Union called upon Hess the following day, October 6. They
stated that they represented a majority of the employees and requested recog-
1 Mints gave certain denials as to his conversation with Cokeley . As Mints did not
impress the undersigned as a reliable witness, his testimony is not credited.
When questioned by the General Counsel as an adverse witness, Mints explained that he
had heard a rumor that Cokeley was not satisfied with his job, that he wanted to learn
what the difficulty was, and that he wanted to determine if anyone else was in the same
position as Cokeley was.
Kuras testified that Mints inquired if he had heard that Cokeley was dissatisfied, and
whether he saw anyone handing out the union cards. Kuras did not impress the under-
signed as a reliable witness and his testimony is accordingly not credited.
Baumhardt and Burkman did not appear as witnesses.
2 When Mints testified as part of the Respondent's case he explained this conversation
with Niemiec as having come about because he had heard rumors ( 1) that Cokeley was
dissatisfied and (2 ) that union membership cards were being solicited on the Respondent's
time , and he wanted to find out what Niemiec knew about both subjects.
E. H. SARGENT AND CO. 1329
nition on the basis of a card check by a disinterested person. The warehouse
unit was described as Hess made notes but made no comment. At no other time
was the appropriate unit discussed. One of the representatives tendered the
membership cards he had in his possession and Hess, who admittedly had no
specific basis for his position,, questioned the validity of the cards. The meeting
ended, after, Hess; stated -that he did mot know aboutsthese,amatters,and thatzhe'
would turn the matter over to the Respondent's labor adviser, a Mr. Beeman, and
that he would get in touch with the Union.
The Respondent thereafter consulted its labor counsel and upon his advice,
President Mints, on October 11, spoke to the warehouse employees who had been
assembled. After the speech the Respondent conducted what it called an "opin-
ion poll" on its own time . Prior to this speech Mints had Polivka called into
his office and according to Polivka's credible testimony, the following transpired
in the course of the conversation : Mints asked if Polivka had heard of any un-
rest-„among the employees,. and Polivka stated „that., there was ^ quite, a bit of
unrest; Mints inquired if he had heard of any union activity, and Polivka replied
that there had been some union activity ; Mints stated that he had heard that
there had been organizing on the Respondent's time but did not state that it
was improper; Mints questioned Polivka whether he was connected with the
union activity, and Polivka replied that he had signed a card; Mints asked
Polivka whether he knew who the instigators of the Union were and whether
he knew anyone who had signed cards, and Polivka declined to answer ; and
Mints inquired whether Polivka thought a majority of the employees were in
favor of the Union, and Polivka stated he believed that a majority of the em-
ployees were interested in the Union.
In his speech to the warehouse employees, most of whom were more than 50
years old, Mints, among other things, stated that the Union claimed the right
upon the basis of membership cards to represent the employees without an
election ; the Respondent was an "old people's home" and no one was pressed-in
his work, but that he did not know what would happen if the Union came in ;
the Union favored younger men; business had been poor; older men could not
work as fast as younger men, and if there was the same work to be done for a
higher salary , the older men might have to be replaced ; the building was heavily
mortgaged ; due to overhead expenses they could not afford to pay higher salaries
than they were paying; and the salaries paid were comparable to those paid
by other businesses.' At the close of the talk Mints told the employees that they
were going to have an opportunity to indicate their views by secret ballot, which
ballots the Respondent had already prepared. A voting booth was improvised
by the placement of some crates or cartons and the Respondent had Polivka,
Baumhardt, and another employee handle the mechanics of the voting , such as
checking an eligibility list which had been prepared in the office. Officials of the
Respondent were not present during the voting or the counting of the ballots.
Ballots were cast by 39 employees . A majority of the ballots cast were marked
as being opposed to the Union.
In the afternoon of Monday, October 16, representatives of the Union called
upon Hess. The union officials contended that the Respondent had committed
unfair labor practices by certain layoffs or terminations, Mints' speech, and the
conduct of the opinion poll. Hess asserted that no unfair labor practices had
been committed and that the Respondent had acted upon the advice of Beeman.
The Union threatened strike action if the men were not reinstated and the Union
3 These„ findings are based principally upon , the credible ' testim'ony of employee Earl
Burton.
1330 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
was not recognized. The Union took the position that it would under these cir-
cumstances insist upon a card check for recognition, but Hess stated that Beeman
had advised the Respondent to insist upon a Board election and that he would
have Beeman contact the Union.
Later that day, according to the credible testimony of employee Kenneth
Edstrom, Mints had a conversation with him in the presence of the Respondent's
advertising manager, Mitchell, and a vice president, Sherrick.' In the course
of this conversation, Mints asked Edstrom, who had not participated in the
balloting, how he felt "about this union business," and Edstrom indicated that
he was favorably disposed toward unions. Mints stated that one of the reasons
Edstrom was so disposed was because he had lived in Minnesota and inquired
of Edstrom whether he had been campaigning on behalf of the Union. Edstrom
replied, as was the fact, that he had not campaigned for the Union. Mints how-
ever stated that he had heard that Edstrom had been leaving his place of work
in the laboratory and had been agitating for the Union among the employees,
that he knew all the employees had signed cards, that he had learned that Ed-
strom was among those who had signed cards, and that if Edstrom was ".. .
such a good Samaritan, . . . why the hell [didn't he] go be a missionary in
Korea?" The conversation closed with Mints telling Edstrom that he should
keep his nose in his own business. A feW days later, also according to Edstrom's
credible testimony, Mints came to Edstrom's place of work in the laboratory
and. told,,Edstrom that he had been wondering,aaound and that he, Mints, didn't
"like it a damned bit."
On Tuesday, October 17, the day after the Union's representatives met with
Hess and threatened a strike, Mints again had the warehouse employees as-
sembled and spoke to them. He then announced a 6-cent per hour wage increase
effective as of the day before. In the course of this talk Mints stated that the
Union had threatened a strike, that the Respondent would continue to operate
its business , that the Respondent would provide adequate police protection and
would like the employees to come to work as usual, that the employees were free
to go on strike, that the Respondent would observe the law, and that under the
law the Respondent was, not obligated, to pay persons on strike or to rehire
strikers, and that the Respondent had a legal right to hire anyone to replace
strikers and would, where it was necessary that the work be performed, make
the replacements on a permanent basis.'
The last meeting between the Respondent and the Union occurred on Octo-
ber 25. At this meeting Beeman, the Respondent's labor consultant, was also
present at Hess' office. The Union asserted that the Respondent had engaged in
unfair labor practices. The Respondent disagreed and suggested a Board elec-
tion. The Uniop, on the other hand, insisted upon recognition explaining that
in view of the circumstances a card check should' be held. At no time did-the
Union or the Respondent file a representation petition with the Board to obtain
an election.
2. Conclusions
The complaint alleges that the Respondent interfered with, restrained, and
coerced its employees in violation of Section 7 of the Act by certain conduct
which will be discussed seriatim as alleged.
' Neither Mitchell nor Sherrick appeared as a witness.
" These findings are based principally upon Rubbard 's and Burton 's credible testimony
and certain admissions by Mints.
E. H. SARGENT AND CO. 1331
Paragraphs (a) and (b) relate to inquiries concerning union activities and
interest , threatened layoffs for the activities, and a promise of a wage increase
to cease such activities.
As Respondent points out, the record does not sustain the allegations of
threats of layoff and a promise of wage increases and the complaint should be,
and it is hereby recommended that it be, dismissed in that respect.
Concerning the inquiries, the Respondent takes the position in its brief that
inquiries 'made with respect to conducting union activities on its own time are pro-
tected by the constitutional right of free speech. It points out that it was paying
for this time and it should be able to find out how the time was spent. The
Respondent's position is further that it did not make inquiries in connection
with any rule against solicitation. It does not appear that in any of the inquiries
of employees regarding union activity a rule prohibiting solicitation was men-
tioned. The only inquiry directly relating to determining whether the Respond-
ent's time was used for union activity occurred during the Mints-Niemiec
conversation when Mints inquired whether Niemiec had seen anyone sign
union cards on the Respondent's time, while also questioning him as to whether
he knew who the instigators of the Union were. There was also (1) an incor-
rect accusation by Mints of Edstrom that Edstrom was leaving his place of
work and campaigning for the Union, and (2) a declaration by Mints that
Edstrom had been wandering around and that he, Mints, did not like it. Here,
too, Mints inquired how Edstrom felt about the Union and instructed him not
to engage in union activities. When Mints spoke to Polivka he stated that he
had heard that there had been organizing on the Respondent's time, but he
did not state that it was improper. In view of the other matters which arose
in the Niemiec, Edstrom, and Polivka conversations, and the inquiries made of
Hubbard and Cokeley directed toward the discouragement of self-organization
regardless of whether it was on the Respondent's time, it could hardly be said
that the Respondent's purpose was to determine how its time was being spent and
that its conduct was therefore proper e The allegation concerning interrogation
is accordingly sustained.'
Paragraphs (c) and (d) concern Mints' speech of October 11, alleging that it
contained a threat of layoffs, plant closing, loss of jobs by older men, and closed-
shop conditions should the Union come in, and that the Respondent conducted a
poll on its time concerning the employees' desire to be represented by the Union.
The undersigned finds, as the Respondent contends, that no coercive remarks
were made during this speech and recommends the complaint be dismissed in
this respect. This is not, however, the recommendation as to the poll!
Paragraph (e) alleges that Mints' speech of October 17 violated the Act in
that he advised the employees that if they went on strike they would be re-
placed, and granted a wage increase.
The Respondent contends that its statement that if it had to hire employees
during the threatened strike these employees would be hired on a permanent
basis, is a correct statement of its legal rights and consequently protected.
The statement would have been correct if it had been limited to describing the
rights of economic strikers , but it is not correct in its blanket form when it
See Fontaine Converting Works, Inc., 77 NLRB 1386; cf. Arkport Dairies, Inc., 95
NLRB 1342, where surveillance was found and the company explained that its observing of
a union meeting place was to determine whether certain drivers were spending working
time at the meeting.
4 See Standard-Coosa-Thatcher Company , 85 NLRB 1358.
D See Stocker Manufacturing Company, 86 NLRB 666, and Granite State Machine Com-
pany, Inc., 80 NLRB 79.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refers as it does to all strikers and includes unfair labor practice strikers.,
It appears, moreover that Mints, who had the advice of the Respondent' s labor
consultant, made the statement as a threat to discourage concerted activities..
Concerning the announcement and the granting of the wage increase the
Respondent contends that the wage increase was given for the purpose of
"beating" the imposition of wage' controls' and would have, been, given : absent
union activity. The Respondent adduced testimony through its officials that
in July the Respondent's auditors, who visited the plant about twice a month,
advised consideration of a general wage increase in view of the Korean out-
break and their experience in World War II of having wages frozen and diffi-
culty in obtaining personnel. At that time, and for the first 8 months of the
year, the operations did not show a profit and no action was taken. At about
the end of August however, the personnel situation at the instrument shop,
which is not involved in this proceeding, became critical due to resignations.for
higher pay and` the Respondent, not having suitable replacements available,
granted an increase to these employees. The Respondent did not at any time
material, however, experience difficulty in obtaining replacements for the ware-
house employees, the employees here involved. In September, further accord-
ing to this testimony of the Respondent's officials, upon the advice of the auditor
in order to insure against an inability to obtain employees and an anticipated
wage freeze the Respondent, although it did not at that time know it was not
operating at a loss decided to grant a wage increase. The Respondent did not
then decide how much of a wage increase it would grant. The Respondent found
that the area pattern for wage increases was 6 cents an hour, and when it
received its usual monthly financial report 10 on Thursday, October 12, showing
for the first time that year that it had earned a profit but which profit was below
that of the prior year, it decided the next day to meet the area pattern.
There are circumstances here which reflect on the bona fides of the Respond-
ent's explanation of the wage increase. The Respondent's business is seasonal,
with the season of about 3 or 4 months ending shortly before or at about the
time of the wage increase . A profit had not been earned that year prior to that
time, and the Respondent was entering a period of declining business . Except
for a general increase in 1946, when another labor organization sought to organ-
ize the employees, and the instance of the general wage increase to the instru-
ment shop employees, it does not appear that it was customary for the Respondent
to grant general wage increases. So far as the record shows, this was the
first instance of the Respondent's president assembling the employees and an-
nouncing a general wage increase. The Respondent was opposed to the Union
and it knew from the conversations with the men that their principal interest in
the Union was to obtain an increase in wages. It was the Respondent' s custom
to grant wage increases beginning on. Mondays. In this instance, according to
the Respondent, it decided on Friday, October 13, to grant the general increase
in wages . However, no information was given the employees on the following
Monday concerning a wage increase. What did occur on Monday afternoon was
that the Union thFeatened to strike. The next day, October 17, the Respondent
announced to the assembled employees the general wage increase effective as of
the day before and sought their cooperation in keeping the plant operating in
the event of a strike. Under these circumstances, the undersigned concludes
and finds that whatever other purposes may have been served at the same time
0 See N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333.
10 None of the financial reports here involved was adduced .' See Supreme Bedding and
Furniture Manufacturing Company , Inc., 93 NLRB 1616.
E. H. SARGENT AND CO . 1333
by granting the general wage increase to the warehouse employees , the increase
was granted for the purpose of discouraging union activities 11
Paragraph (f) alleges that Stanley Kuras was a supervisor and that he engaged
in illegal questioning of employees . In view of the finding hereinafter that
Stanley Kuras is not a supervisor within the meaning of the Act, it is recom-
mended .that the complaint be dismissed in this regard.
paragraph (g) alleges that in about April 1950, shortly before the hearing,
Bess inquired of Albert Jurgens why he signed a union card. In view of the
fact that Jurgens was not an employee of the Respondent at the time of the
inquiry, it is recommended that the complaint be dismissed in this respect as
well.'
Paragraph (h) alleges that since about May 1950, the Respondent inquired
as to the union affiliation of employees and employee applicants. The com-
plaint here refers to the use of an employment application form which the Re-
spondent purchased containing , among other things, the inquiry , "Union
Affiliation" and providing a blank space for the applicant to fill in the answer.
The Respondent 's practice is that when an applicant appears in the personnel
office he is given a copy of the application form which he is asked to fill in.
There is no evidence that the Respondent paid any attention to this notation
or that it was ever taken into consideration with respect to an individual.
Nevertheless , it is found that his interrogation is violative of the Act."
Lastly, paragraph (i) asserts that since about October 5, the Respondent
through Mints and Hess inquired of employees concerning union activity by
means of enforcing or attempting to enforce a nonexistent rule against solicita-
tion or by discriminatorily applying a rule against solicitation.
In view of the findings relating to paragraphs (a) and (b), that the Respondent
did not apply a rule against solicitation, it is also found here, in accordance
with the Respondent's position, that the Respondent did not apply a nonexistent
rule, and that it did not discriminatorily apply a rule against the solicitation 14
and it is accordingly recommended that the complaint be dismissed in this
respect.
It is accordingly found that the Respondent by the following conduct interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act, thereby violating Section 8 (a) (1) : (1) Hess' inquiry
of Hubbard whether he noticed any union activity; (2) Mints' inquiries of
Cokeley as to his knowledge of union activities, who among the employees was
interested in the Union, why the men were interested in the Union, how he
would vote in an election regarding the Union, and whether he thought the
employees favored the Union; (3) Mints' inquiries of Niemiec as to whether
u See . Hudson Hosiery Company, 72 NLRB 1434; and Wood Manufacturing Company,
95 NLRB 633.
11 Cf . F. W. Judge Optical Works, Inc., 78 NLRB 385.
13 See S. B. Whistler & Sons, Inc., 92 NLRB 1.
14 It appears that in about 1947 , upon the advice of counsel , a rule prohibiting solicitation
without the Respondent 's permission was posted on the bulletin board . This rule was not,
however , posted since about November 1949 , and the notice itself was not available. There
is a substantial number of examples in the record of solicitation during working time. In
some instances , the warehouse superintendent participated in such activities as baseball
pools and ordering cigarettes from an employee who was soliciting such orders. Hess,
personnel manager , explained his understanding of the rule as applying to all hours, work-
ing and nonworking time. The record does not show special circumstances justifying the
prohibition as to nonworking time. In operation , an employee who would want to solicit
union . membership on nonworking time would be required to first disclose to the Respondent
his own interest in the Union in order to observe the rule. The legality of the rule, as
such , is not before the Examiner and is not being passed upon.
215233-53-85
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had seen anyone sign union cards on the Respondent's time, and whether
he knew who the instigators of the Union were; (4) Mints' inquiries of Polivka
as to whether he had heard of any unrest among the employees, had heard
of any union activity, was connected with the union activity, knew who the
instigators were, knew anyone who had signed a union card, and thought a
majority of the employees were in favor of the Union; (5) conducting the
"opinion poll"; (6) Mints' inquiry of Edstrom as to how he felt about the Union
and if he had campaigned for the Union, and instructing him not to engage
in any activities on behalf of the Union; (7) granting the wage increase; (8)
Mints' announcement that in the event a threatened strike-without,any refer-
ence to the type of strike which may be involved-should occur and it were neces-
sary to hire replacements, the replacements would be hired on a permanent
basis, and (9) interrogating applicants for employment as to their union
affiliation.
B. The refusal to bargain
1. The appropriate unit and the Union's representative status
The parties are in agreement and the undersigned finds the following
described unit as appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act :
All the employees in 'the warehousing departments of the Respondent,
namely; packing, shipping, receiving, repacking, apparatus storage, and
chemical storage, excluding office employees guards and supervisors as
defined in the Act.
Early in the hearing the parties stated that they stipulate and admit that
certain 44 persons were employees and were part of the above-described unit on
October 4, 1950,2 days before the refusal to bargain is alleged. At that time they
stated their disagreement in the following respects. The General Counsel con-
tended that Stanley Kuras and Nicholas Baumhardt were supervisors, and
should be excluded from the unit, and the Respondent took the contrary position.
The General Counsel also asserted that Kenneth Edstrom, Raymond Rowley,
and David Sullivan should be included in the unit and the Respondent took a
contrary view, explaining that Edstrom worked in a chemical laboratory which
is connected with the production part of the business and not with the ware-
housing part of the business, that Rowley was an office employee, and that
Sullivan was a porter and as such worked throughout the plant under the general
supervision of the plant engineer. In the course of the hearing, the parties there-
after further stipulated to the inclusion of Sullivan and Otto Dreffein, the
porters or janitors. Also, the General Counsel conceded that Baumhardt was
not a supervisor and should be included within the unit. Under the stipulations
there would thus remain a dispute concerning the supervisory status or employee
status of Kuras, and whether the composition of the unit should include Edstrom
and Rowley.
In the course of the hearing, the Respondent adduced evidence for the purpose
of showing that George Crowley had ceased to be an employee sometime prior to
October. After the union cards of the following four persons were offered for
identification, the Respondent also adduced evidence tending to show that Robert
Thomas, Arthur Peterson, and James Harris were temporary employees and
that Ulrich Vodin was a trainee for an office clerical job and contended that
each was therefore ineligible to participate in the selection of a majority repre-
sentative. Each of these persons, Crowley, Thomas, Peterson, Harris, and Vodin
E. H. SARGENT' AND CO. '1335
was among the 44 persons embraced by the stipulation that they were employees
in the unit on October 4. There was no express withdrawal of the stipulation.
The issues as to these 5 employees will be treated as if no stipulation had
been made.
Robert Thomas, Arthur Peterson, and James Harris
Thomas, Peterson, and Harris are substantially, in the same position. Thomas
was hired August 18, 1950, as a warehouse employee. Thomas, a student who
considered himself a temporary employee, was,hired with the express under-
standing with the Respondent that he would eventually return to school. He
worked through the summer and through the fall semester to obtain funds to
continue his schooling. Thomas then left the Respondent's employ about Febru-
ary 1951, in accordance with the understanding, reached when he was hired.
Peterson was hired June 22, 1950, as a packer. It is clear that Peterson was
hired for the Respondent's busy season to fill in while some of the regular
packers were on vacation. His employment ended on October 10, at about the,
end of the busy season.
Harris was hired on May 2, 1950. At that time it was understood that Harris
was being hired for the busy season and thereafter if the Respondent had work
for him but not beyond the cold weather, as Harris planned to go south at that
time. Harris' employment ended December 15, 1950.
None of these persons had worked for the Respondent before and none has
subsequently been rehired. It does not appear that the Respondent has a policy
of rehiring such employees. It is accordingly found that Thomas, Peterson, and
Harris are temporary employees who were not eligible on October 6 to partici-
pate in the selection of a bargaining representative.
Ulrich Vodin
Vodin was hired in September 1950, when he responded to an advertisement
for an office clerical employee. His employment terminated October 20. The
work for which Vodin was hired was office work consisting of editing customers'
orders and answering customers' inquiries and estimating or quoting prices to
customers, but not warehouse work. His application form shows him as a sales
trainee. As Vodin did not have prior experience in the industry, he was assigned
work for about a month in the warehouse as an order filler to learn the Respond-
ent's business. While thus assigned he had a locker with the warehouse em-
ployees and although he appeared on the warehouse payroll, he was paid at the
office clerical rate and in excess of the most experienced order filler. Although
Vodin participated in the "opinion poll" which the Respondent conducted on
October 11, he was not a recipient of the wage increase granted the warehouse
employees shortly afterward. It is found that Vodin worked in the warehouse
as a sales trainee and was to perform such work only for a limited period in
preparation for an office clerical position, and was therefore ineligible to partici-
pate in the selection of the majority representative of the warehouse employees.
Stanley Kuras
Kuras was for about 8 years, until December 1949, superintendent of the
warehouse., At that time Phillip Wooledge was hired and took over that func-
tion. Although no general announcement of this change was made to the
employees, no reason appears to doubt that the employees soon learned of
Wooledge's function. Although Kuras, who had about 30 years of experience
with the Respondent, was then relieved of his duties as a superintendent, he was
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given a small weekly increase in pay and maintained a substantial wage differ-
ential over the group leaders , the classification in which the Respondent con-
tends that he falls . The Respondent 's payroll of October 4 shows 46 persons
in the warehouse . There were at least 4 group leaders in the warehouse head-
ing various of the functions and aiding Wooledge. One group leader had 2 men
under him , and another as many as 11. Kuras at that time had 4 in his group.
Suras spends some of his time doing manual labor ' as the others in 'the group,
who do work of a routine nature, but unlike the others in his group he spends a•
few hours a day in connection with handling certain claims and answering,
questions . Unlike the group leaders , Kuras works in an enclosed area which
might be described as an office, where a clerical employee maintains an inven-
tory. Also, unlike the group leaders, guras' does not punch the time clock.
However, like the group leaders, Kuras' direction over his group is of a routine
nature . It does not appear that since December of 1949 , Kuras had any author-
ity • to change or effectively recommend . a change in the status of ^ employees.'"
It 'is accordingly found that Kuras is • an 'employee and not a 'uupefVisor'' and
should be included within the unit.
George Crowley
Crowley's last day of work was July 21, 1950. When he was employed by
the Respondent in November 1947 he was 69 years old. During 1950, he was
frequently absent for illness and performed only several full weeks of work.
After his last day of work, the Respondent learned on several occasions from'
Crowley's group leader, who kept in touch with Crowley, how Crowley was'
getting along. Crowley was maintained on the payroll until about October 10,
when the group leader reported that Crowley had undergone surgery for cancer
,of the throat on October 7, 1 day after the refusal to bargain is alleged, and
that he was in a serious condition" The Respondent explains that Crowley's
name appeared on the payroll through October 4, as a result of an error and
that a clerk had been instructed to remove his name in August but that the
instructions were not executed. It does not appear that Crowley was ever
notified of a change in status with the Respondent and no entry was made on
Crowley's employment card showing a termination. It was not until about
October 10 that the Respondent first learned of the nature of Crowley' s illness.
In fact, Crowley had been receiving treatment for cancer of the throat since
the spring of 1950 and had been physically incapable of working since July 21,
the day he last worked for the Respondent. In view of the nature of Crowley's
actual disability and his age, it does not appear that in October 1950 be had a
sufficient expectancy of returning to work to participate in determining the
representative of the employees and it is found that he was ineligible to'select
such a representative.
Raymond Rowley
Rowley was hired as an order filler in the warehouse on June 19, 1950, and
was transferred to the adjustment and repairs department of the general office
on July 25. Rowley's employment with the Respondent ceased about the end
of October, and no replacement was hired. At the time of the transfer he was
u Some special arrangement appears to exist for the benefit of one of the employees in
the group who suffers from a certain illness . As to him Kuras has authority to and does
excuse him from work to receive treatment or to go home.
18 Crowley died during the time of the hearing prior to giving any testimony.
E. H. SARGENT AND CO. 1337
assigned to a desk in the office, an employee's time clock number, and locker
space with the office employees. Essentially the function of the adjustment and
repair department is to correct errors complained of by customers. The de-
partment is located in the general office and its work at the time Rowley was
employed there was performed by Rowley, two clerical employees, and a super-
visor. All of Rowley's work was under the control of that supervisor. In the
.course of his work, Rowley opened packages of returned goods at a given loca-
tion in the warehouse, inspected the contents, and made notes for a returned-
goods report which like other forms and letters was typed by the clerical em-
ployees in the adjustment departments. The function of opening packages of
returned goods was resumed by warehouse employees when Rowley's employ-
ment ended. The returned goods were either put on a special shelf in the
warehouse for further processing or, if they appeared to be in order, were re-
turned to regular stock. The supervisor made the decisions as to the problems
that arose in the course of this work. When goods were returned because of a
claimed defect or an item was received for repair, after consultation with his
supervisor as to the appropriate shop from which to get technical advice, Rowley
took the merchandise to certain engineers or foremen in the various shops for
-their appraisal of the cost of the repair. Rowley would, where he could get the
attention of the engineer at the time, carry the item back to the office and in-
form his supervisor of the circumstances. • Proper notations were made for the
files and the supervisor prepared a written estimate and communicated with
the customer. On some occasions an order was replaced. When the customer's
reply,to the Respondent's estimate was received, Rowley would check the file
for the prior correspondence and start into motion the mechanics for the repair
or the return of the merchandise involved. Essentially the same procedure was
followed where the- product had been purchased from another manufacturer.
Rowley would contact the purchasing department which in turn would deal
with the outside manufacturer directly. Although it was not part of his job,
Rowley would on occasion, apparently to expedite matters, pick orders him-
self. Other office employees also picked orders occasionally, apparently for
the same purpose. Under these circumstances, particularly due to the fact
.that Rowley was paid and treated as an office employee and although he, worked
in several parts of the plant including the warehouse such work was performed
under the control of his office supervisor, it is found that Rowley is more prop-
erly considered an office employee than a warehouse employee and is accordingly
excluded from the unit.
2. Conclusions
Without passing upon the unit contentions as to Edstrom and the issues
that the Respondent raises as to the validity of certain 4 designation cards,
in this posture of the case the Union represents only 22 employees of the 44
employees in the unit and hence was not on October 6, 1950, the majority
representative under the Act. It is accordingly recommended that the Section
8 (a) (5) allegation of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
in connection with its operations described' in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices
within the meaning of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent has engaged (1) in illegal interrogation,
(2) instructed an employee not to engage in concerted activities, (3) granted
a•wage increase to discourage union activities, and (4) announced that in the
event a threatened strike should occur-without any reference to the type of
strike which might be involved-and it were necessary to hire replacements, the
replacements would be hired on a permanent basis, thereby interfering with,
restraining, and coercing its employees, it will be recommended that the Respond-
ent cease and desist therefrom. This conduct discloses a fixed purpose to
defeat self-organization and its objectives. Because of the Respondent's
unlawful conduct and its underlying purpose, the undersigned is convinced
that these unfair labor practices are persuasively related to the other unfair
labor practices prescribed by the Act and that danger of their commission in
the future is to be anticipated from the course of the Respondent's conduct
in the past. The preventative purposes of the Act will be thwarted unless the
recommendations are co-extensive with, the threat. In order; therefore, to
make effective the' interdependent 'guarantees of Section 7, to prevent the
recurrence of unfair labor practices, and to minimize strife which burdens
and obstructs commerce, and thus to effectuate the policies of the Act, it is
recommended that Respondent cease and desist from infringing in any manner
upon the rights guaranteed by Section 7 of the Act 17
On the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Warehouse and Mail Order Employees Union, Local No. 743, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent did not violate Section 8 (a) (5) of the Act.
[Recommendations omitted from publication in this volume.]
11 May Department Stores v . N. L. R. B., 326 U. S. 376.