John G. Merkel & Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1977

232 N.L.R.B. 140 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John GC. Merkel & Sons, Inc. and Teamsters Local
115, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 4-CA-8287
September 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 26, 1977, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, a motion for oral argument
and a motion to strike General Counsel's answer to
Respondent's exceptions and brief. The General
Counsel filed an answer to Respondent's exceptions
and brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, to modify his Remedy, 3 and to adopt his
recommended Order, as herein modified.4
The Administrative Law Judge found that Respon-
dent refused to recognize and bargain with the
Union on October 27, 1976. We agree with this
finding. 5 In fashioning his remedy, however, the
Administrative Law Judge found that Respondent
should be required to bargain retroactive to October
22, the date on which he found the Union obtained
authorization cards from a majority of the employees
in the unit. Inasmuch as the Union did not until
October 26, 1976, request recognition and bargain-
ing, which was refused on October 27, 1976, and all
of Respondent's other unfair labor practices are
remedied by our Order herein, we find that Respon-
dent was obligated to bargain as of October 26, 1976,
the date of the demand, and should be required to
recognize and bargain, upon request, with the Union
as of October 26. Trading Port, Inc., 219 NLRB 298,
301 (1975), Taylor Bros., Inc., 230 NLRB 861 (1977).6
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, as
modified below, and hereby orders that the Respon-
dent, John G. Merkel & Sons, Inc., Wilmington,
232 NLRB No. 12
Delaware, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified herein:
1. Delete the last sentence in paragraph 2(d).
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent's motion for oral argument is hereby denied because the
record, the exceptions, and the briefs adequately present the issues and
positions of the Parties.
The motion filed by Respondent requesting the Board to strike the
General Counsel's answer to Respondent's exceptions and bnef is denied as
lacking in merit.
2 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 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 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
I In his remedy, the Administrative Law Judge provided for a 5-day
grace period after a striker applies for reinstatement before the obligation
attaches to the Company to offer such a striker reinstatement to his former
job, or to a substantially equivalent position. While Chairman Fanning and
Member Jenkins have recently expressed their view, in dissent, that they
would no longer grant this grace period but would, with certain limitations,
require an employer to reinstate unfair labor practice strikers upon
application for reinstatement, they acknowledge that, until such time as the
majority view approving this practice changes, they are institutionally
bound by this position. See Drug Package Company, Inc., 228 NLRB 108
(1977).
5 In adopting this finding, we do not adopt his statements concerning the
necessity for an employer to have a good-faith doubt of a union's majority
status for it to insist on a Board-conducted election. Linden Lumber Division,
Summer & Co. v. N. LR.B., 419 U.S. 301 (1974).
6 Chairman Fanning adheres to his interpretation of N.LR.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), as expressed in his dissenting opinion
in Steel-Fab, Inc., 212 NLRB 363 (1974), that in these circumstances a
violation of Sec. 8(a)5) occurs as of the date the respondent refuses to
recognize and bargain with the majority representative of its employees.
Donelson Packing Co., Inc. and Riegel Provisions Company, 220 NLRB 1043
(1975). See also his partial concurrence in Beasley Energy, Inc., d/b/a Peaker
Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), and Member
Jenkins and his partial concurrence and dissent in Drug Package Co., 228
NLRB 108 (1977).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the
opportunity to present evidence, it has been decided
that we violated the law. We have been ordered to
take certain steps to correct our violation and have
been ordered to post this notice. We intend to carry
out the order of the National Labor Relations Board
and abide by the following:
We notify you that the National Labor Relations
Act gives all employees these rights:
To engage in self-organization
140
JOHN G. MERKEL & SONS
To form, join, or help unions
To engage in collective-bargaining
through a representative selected by you
To act together for collective-bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT, by discharge, layoff, or any other
similar actions, discriminate against any of you
because of your union activities.
WE WILL offer Joseph W. Campbell and
Michael E. Kulesza immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs,
without loss of seniority or other rights and
privileges; and wi WILL pay to each of them all
moneys lost as a result of our discrimination
against them.
WE WILL reinstate all employees who engaged
in the strike which began on October 27, 1976, to
their former jobs within 5 days after each striker
makes an unconditional application to return to
work.
WE WILL NOT unlawfully question any of you
about your union activities.
WE WILL NOT deal directly with you about your
wages, hours, and other conditions of employ-
ment after you have duly selected a labor
organization as your collective-bargaining agent.
WE WILL NOT promise you any benefits in order
to discourage your choice of a union to represent
you.
WE WILL NOT refuse to recognize and bargain
with Teamsters Local 115, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of all the employees in
the unit found appropriate as described below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of any
or all of the rights described at the beginning of
this notice.
WE WILL, upon request, recognize and bargain
collectively in good faith with Teamsters Local
115, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive collective-bar-
gaining agent for your wages, hours, terms and
conditions of employment, and all other matters
appropriate for collective bargaining; and if
agreements are reached, WE WILL put them in
writing, if requested, and will sign that written
document. The appropriate unit for collective
bargaining is:
All truckdrivers, warehousemen, and repair-
men employed by John G. Merkel & Sons,
Inc., at its 807 North Union Street, Wilming-
ton, Delaware location, excluding all other
employees, inside and outside salesmen,
office clerical employees, guards, and super-
visors as defined in the National Labor
Relations Act, as amended.
JOHN G. MERKEL &
SONS, INC.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This case
was heard before me on February 7, 8, and 9, 1977, at
Wilmington, Delaware. The charge was filed on October
27, 1976,1 by Teamsters Local 115, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (hereinafter the Union), and
alleged that John G. Merkel & Sons, Inc. (hereinafter the
Respondent), had engaged in certain unfair labor practices
in violation of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended (hereinafter called the
Act). On December 22, the Regional Director of Region 4
of the National Labor Relations Board (hereinafter called
the Board) issued a complaint alleging that Respondent
unlawfully terminated the employment of its employees,
Joseph W. Campbell and Michael E. Kulesza; interrogated
employees concerning their union activities; and refused to
bargain collectively in good faith with the Union. At the
hearing, the complaint was amended to allege that
Respondent, in addition, unlawfully unilaterally dealt with
its employees and that a strike in which its employees had
been engaged since October 29 was initiated and prolonged
by the aforesaid unfair labor practices and those who
participated in that strike are unfair labor practice strikers.
The Respondent filed a timely answer which denied the
commission of any unfair labor practices, and orally
amended its answer at the hearing to deny the allegations
of the amendment to the complaint. All issues, including
those encompassed by the amendments, were fully litigated
at the hearing, to the extent of presentation of surrebuttal
evidence by Respondent; all parties were represented by
counsel and were afforded full opportunity to examine and
cross-examine witnesses, to introduce evidence pertinent to
the issues, and to engage in oral argument. Subsequent to
the close of the hearing, timely briefs were submitted by the
General Counsel, Respondent's counsel, and counsel for
the Union and have been duly considered.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
probability of testimony," 2 1 make the following:
All dates are in 1976 unless otherwise stated.
2 Universal Camera Corporation vN. L R. B., 340 U.S. 474, 496 (1951).
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Delaware corporation with a principal
place of business at 807 North Union Street, Wilmington,
Delaware, where it is engaged in the wholesale distribution
of medical and surgical supplies and equipment. Annually,
Respondent's gross volume of business exceeds $500,000 in
value and, during the same period of time, it purchases and
receives goods and services at its Wilmington location
having a value in excess of $50,000 directly from points
outside of Delaware. Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit, the record reflects, and I find that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. SEQUENCE OF EVENTS
3
The allegations of the complaint emanate from efforts of
Respondent's warehouse employees, including the job
classifications of warehouseman, driver and repairman, to
organize on behalf of the Union.4 Sometime during the
summer of 1976 the warehouse employees discussed
possible unionization among themselves, but had no
particular labor organization in mind and the discussions
were more or less "casual." More specific plans were
developed on or about October 15 when Kulesza received a
telephone call from a clerical employee of the Union who
advised Kulesza that authorization cards and accompany-
ing literature would be mailed to him. (Kulesza's phone
number had been given by Campbell, according to prior
arrangements between Kulesza and Campbell, to a friend
of Campbell who was a union member.) On October 18,
Union Representative Jeff Smith phoned Kulesza to
inform him the cards were in the mail and, on October 21,
Kulesza received them in the mail and saw them for the
first time after he returned home from work that evening.
The following day, October 22, Kulesza distributed the
cards at approximately 8:30 a.m., together with a booklet
I The facts contained in this section are a composite of testimony of
various witnesses presented by both the General Counsel and the
Respondent which are either not in conflict or unrefuted. As will be
developed hereinbelow, wherever there are conflicts in the testimony
between witnesses of the General Counsel and those of Respondent, I deem
each General Counsel witness more reliable than any of Respondent's
witnesses, based on my observation of their forthright demeanor and the
logical consistency of their narrations. By contrast, the record reflects
evasiveness and contradictory testimony among Respondent's own wit-
nesses which will be further explicated herein. It is noteworthy that all
witnesses, except the alleged discriminatees (Kulesza and Campbell), Union
Representative Joseph Yoeman, and Respondent's vice president, William
F. McHugh, were sequestered throughout the hearing.
4 The appropriateness of this unit for collective-bargaining purposes is a
subsidiary issue herein which will be discussed in connection with the
refusal-to-bargain allegations.
I One of these cards and booklets was for Drobinski to give to Campbell
who was not present at the time. Campbell's absence will be further related
hereinbelow within the discussion of his termination.
I Although Osborn testified he had not been present during the
distribution, based on his testimony as a whole (as will be discussed
entitled "The Union and You," to warehouse employees
who were grouped in the vicinity of the coffee machine.
The employees who received that material are George
Tulowiecki, Eddie Crespo, Paul Deptula, Charlie Miller,
Stephen Surowiec, and two cards and booklets were given
to Frank Drobinski.5-Warehouse Supervisor Dale Osborn
(an admitted supervisor), was present during this distribu-
tion. 6
Later, on October 22, Campbell was discharged, and
Kulesza laid off, by McHugh. 7
On Monday morning, October 25, Frank Dennis,
Respondent's customer service manager (an admitted
supervisor), reported to McHugh it was rumored there
might be a union meeting at or about 10 a.m. McHugh
questioned warehouse employee Paul Deptula concerning
the rumor.8
The next day, Yoeman, together with union counsel,
Richard Syre, visited the Respondent's premises and
conferred with McHugh. Yoeman delivered a letter
requesting recognition and also a recognition agreement.9
Yoeman told McHugh that the Union enjoyed majority
status and offered to show McHugh the authorization
cards signed by the warehouse employees. McHugh then
took the cards, examined them, noted that the cards of
Campbell and Kulesza were included, and commented
they were no longer employed by Respondent. Yoeman
and McHugh discussed the termination of Campbell and
Kulesza; then Yoeman asked McHugh if he recognized, as
a result of his examination of the authorization cards, that
the Union represented a majority of the employees.
McHugh responded that he did not doubt the Union
represented a majority,' ° but said he could not sign the
recognition agreement because he would have to consult
with Merkel who was not present that day. Yoeman
advised he would return to Respondent's premises the next
day.
On October 27, Yoeman did again visit Respondent's
facility and spoke with McHugh, who delivered a letter
from RespondentI declining recognition, and orally told
Yoeman that Respondent would not recognize the Union.
The result of this conversation was immediately reported to
Campbell and Kulesza (and apparently to the other
warehouse employees), whereupon picketing and a strike
began with all of the card signers participating. Initially,
hereinbelow) I do not credit his denial, especially in view of the uniformity
of contrary evidence provided by Kulesza, Tulowiecki, Crespo, Miller, and
Drobinski. Deptula did not recall whether Osborn was present, and
Surowiec was not questioned concerning it.
I The events surrounding, and details of, these terminations will be
separately discussed below in sec. IV.
s This incident is alleged to be violative of Sec. 8(a)(1) and will be further
discussed below.
9 The letter and recognition agreement are in evidence as G.C. Exhs. 8(a)
and (b), respectively. An error in the transcript was noted and corrected.
'o Based on the credited testimony of Yoeman. I do not accept
Respondent's effort to implicitly refute this version because (I) McHugh
himself did not explicitly deny he issued such an acknowledgement; (2)
McHugh admitted he used words to that effect relative to the requested
unit; (3) McHugh admitted he "shuffled" through the cards, thereby
confirming he engaged in the card check; (4) there is a total absence of
evidence that McHugh expressed any doubt as to the authenticity of the
cards; and (5) McHugh acknowledged he knew Yoeman delivered "six,
seven, eight" cards to him.
" Resp. Exh. 4.
142
JOHN G. MERKEL & SONS
the picket signs carried by the strikers bore the legend "On
strike, Teamsters Local 115-Unfair discharges." After the
instant complaint had been issued, the words "Unfair
discharges" were changed to "Unfair labor practices." The
strike and picketing continued uninterruptedly to, and
through, the instant hearing.
On October 29, Norman Chipman, a salesman of
Respondent, engaged some of the strikers in three conver-
sations, and also spoke with Merkel.' 2 There is no dispute
that Chipman sought, through these separate discussions,
to arrange a face-to-face meeting between the strikers and
Merkel.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Union Activity of Campbell and Kulesza'3
In addition to the union activities of Campbell and
Kulesza described above in section III, the evidence
reflects the following:
(I) During the summer, particularly after softball games.
Kulesza and various other warehousemen discussed among
themselves possible unionization.
(2) About the middle of October, both Campbell and
Kulesza told Deptula they had "made contact" with the
Union.
(3) Sometime during the summer, while driving to a job
with Drobinski (he and Campbell were repairmen),
Campbell asked Drobinski whether he was interested in
union representation.
(4) In mid-September, Campbell spoke with other
warehouse employees concerning unionization during
lunch hours and before and after work.
(5) In late September, Campbell discussed the Union
with Chipman away from Respondent's premises, and
twice with salesman Lawrence Dager in Respondent's
repair shop.
(6) In September, when Stephen Surowiec was Camp-
bell's supervisor, Campbell asked Surowiec his union
sentiments.
B. Respondent's Knowledge of Union Activity
As noted, Respondent claims it had no knowledge of
union activity until 3 days after the terminations. Accord-
ing to Campbell, his oral inquiry of Surowiec in September
took place in the repair room at Respondent's premises.
Surowiec, though a witness on other matters, did not testify
at all about this particular conversation. It is undisputed
that Surowiec was warehouse supervisor prior to Osborn,
who acceded to that position on October II1. Although
Surowiec testified he had been informed in late August that
his performance as a supervisor was unsatisfactory, no
evidence was adduced to indicate that an interim ware-
house supervisor was to be, or had been, appointed. Thus, I
conclude, by virtue of Surowiec's uncontested supervisory
status during September and Campbell's uncontradicted
12 The activities of Chipman are alleged as a violation of Sec. 8(a)(l) and
(5) and will be separately discussed below.
13 Based on the testimony of Campbell. Kulesza. and other employees
Deptula. Drobinski, and Chipman who testified on behalf of the General
Counsel. Although Respondent disputes its knowledge of the union activity.
it presented no evidence to controvert the evidence that such activity
conversation with him, that Respondent had direct knowl-
edge of union activities of its employees, and of Campbell
in particular, sometime in September. 14
According to Campbell, Respondent exhibited its knowl-
edge of the union activity (and also received confirmation
of its existence) during a conversation between him and
Osborn on October 13. Campbell testified that, on that
day, Osborn approached him in the repair shop and said he
understood "you guys want to start a union." 15 Campbell
responded, "Yeah, we're thinking about it," and Osborn is
then supposed to have said, "Well, I started unions at other
places. They're not hard to start." Additionally, Drobinski
testified that on October 22, shortly after Kulesza distribut-
ed authorization cards and the Union's pamphlets at the
coffee machine, Osborn remarked to Drobinski privately,
"I see the books were passed out. If you fellows get in, I
could make more money." Osborn (a witness on behalf of
Respondent) was not asked, during his direct examination,
to specifically refute these comments attributed to him by
Campbell and Drobinski. During Osborn's cross-examina-
tion, when asked about his alleged statements he testified
he could not "off hand" recall making them. I find Osborn
to have been totally evasive and deliberately confusing on
this subject matter as evidenced by the following transcript
excerpt, and from the fact that the entire background of
relevant information did not come forth from him until
after he had been cross-examined twice.
Q. (by Mr. Kelly) You know Frank Drobinsk;.
don't you?
A. Yes, I do.
Q. Do you remember telling him that you helped
two other unions get in plants where you worked
before?
A. Offhand, no.
Q. Not offhand, think a little bit.
A. No, I can't think of any circumstances where I
would say that.
Q. Did you ever tell anybody that if the union got
in, you would make more money, and the men would
make more money, or words to that effect?
A. I can't remember saying words to that effect.
However, it may have been overheard in the conversa-
tion with someone else.
On recross-examination, Osborn did state that he had
previously held membership in three union in other shops
and "helped" those unions organize and, in response to
questions from the bench, said he had distributed union
literature elsewhere an an "organizer." Of prime signifi-
cance in assessing Respondent's claimed ignorance of
union activity (and the relative weight to be accorded the
testimony of Campbell and Drobinski as opposed to
Osborn) is the preponderance of credible evidence (dis-
cussed above in sec. Il1)16 wvhich indicates Osborn was
within the immediate proximity of Kulesza's distribution of
occurred as descnbed by the General Counsel's witnesses. Respondent
contends it first became aware of these activities on October ?S
i4 Warren Chateau Hall, Inc.. 214 NLRB 351 (1974).
5 This statement is not alleged to constitute a violation of the Act as
creating an impression of surveillance of union activities.
1s See fn. 6, supra.
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards and pamphlets on October 22. This fact lends
support to the General Counsel's claim (through Drobin-
ski's testimony) that Osborn actually remarked that he
observed the distribution and he might ultimately gain
some financial benefit. In view of the forthright and
directly undenied testimony of Campbell and Drobinski
concerning Osborn's alleged comments revealing his
awareness of union activity; Osborn's evasive responses
and the mutual corroboration of the sequestered witnesses
who described Osborn's presence at the time of distribu-
tion, I conclude that Osborn indeed orally said that he was
aware of the union activity prior to the terminations, as
contended by the General Counsel. This knowledge is
imputable to Respondent. Accordingly, I find that Respon-
dent had knowledge of union activity among its employees
in general, and by Campbell and Kulesza in particular,
before they were terminated.17
C. Campbell's Discharge
Respondent interposes a two-fold defense to Campbell's
discharge. First, it is asserted that he was terminated
because of a planned reduction in force necessitated by
economic conditions in the warehouse; and, second
because he was insubordinate. s
I. The economic defense
McHugh testified that, in the third week of September,
he and Merkel decided to lay off a warehouseman and a
repairman from the warehouse and that Campbell and
Kulesza were selected because each was, according to
Respondent's policies,19 the least senior employee in his
particular job classification. Respondent admits no notice
of the alleged impending layoffs had been given either
Campbell or Kulesza.
Respondent presented documentary evidence,20 a trade
association report containing the financial performance of
participating industry employers (Respondent participat-
ed) for 1975 (the Respondent's fiscal year) which shows:
Range of Common Experience
WAREHOUSE & DELIVERY EXPENSES:
Warehouse salaries & wages
Truckdrivers' wages
Freight, express, parcel post,
etc., on mdse. shipped
Other whse & delivery
expenses
Total whse & delivery expenses
Your
Figures
3.10Z 21/
.99%
.89%
.12%
5.09%
Relatively
High
1.92
0.53
1.39
0.34
3.87
Average
1.62
0.28
1.19
0.29
3.35
Relatively
Low
1.03
0.15
0.88
0.23
2.77
According to McHugh, the association report demon-
strated that in the other categories of operations enumer-
ated the Respondent was "fairly well in line with the
industry." Thus, the layoffs were conceived to reduce
Respondent's costs of its warehouse operations which the
above-quoted abstract from the report reveals was consid-
erably in excess of even the highest costs among the other
industry employers.
It is noteworthy that similar financial surveys had been
received by Respondent for the years 1973 and 1974 and
17 The General Counsel and Charging Party, in their postheanng briefs,
urge the utilization of the so-called small plant doctrine to make an
inference of Respondent's knowledge of union activity from such circum-
stances as the size of the employee complement, the notorious manner of
solicitation, and conversations not discussed hereinabove. I agree that the
totality of the record evidence would permit me to infer Respondent's
knowledge pursuant to Board Ford, Inc., 222 NLRB 922 (1976), Tayko
Industries, Inc., 214 NLRB 84 (1974), and Wiese Plow Welding Co., Inc., 123
NLRB 616 (1959)., but find it cumulative and unnecessary to do so.
In Respondent claims that Campbell, together with Kulesza, had been
scheduled for layoff on or about October 22, but that, while Kulesza had in
McHugh admitted that, as a result of those earlier reports,
Respondent "knew for several years that we were certainly
over-expensed in the warehouse" and "had an inefficient
warehouse operation." According to McHugh, Respondent
embarked on a program to make its warehouse operation
more efficient. The first phase, originated in August 1975,
was to construct a more efficient physical facility. That
task was completed in March 1976. The next step was to
recruit a more experienced warehouse supervisor who,
incidentally, would be higher paid than his predecessor.
This was accomplished through the employment of Osborn
fact been laid off on that date, Campbell was discharged due to his
insubordination.
19 There is some doubt whether Kulesza or Deptula was the least senior
warehouseman because Kulesza had been a full-time employee longer than
Deptula, but Deptula possessed an earlier hiring date when working as a
part-time employee. In view of my disposition of the economic issue, this
dispute needs no resolution. It is agreed that Campbell was the least senior
repairman.
20 Resp. Exh. 8.
z2 The stated percentages are of total sales.
144
JOHN G. MERKEL & SONS
on October 11. Thus, McHugh explained the layoffs of
Campbell and Kulesza were but the next step in the cost
reduction plan. As further support of its position, Respon-
dent offered evidence which shows that on December 31,
1975, the total full-time employee complement in the
warehouse was 31, that by October 22, 1976, it had
increased to 33, and on December 31, 1976, was once again
31; and that neither Campbell nor Kulesza was replaced.
On superficial examination of Respondent's evidence
and explanations, one might well conclude that there is
merit to its claimed need to effect layoffs. However, there is
substantial record evidence to reveal that this defense
cannot withstand detailed security. This controverting
evidence consists of contradictions not only from credited
General Counsel witnesses but also between Respondent's
own witnesses, admissions by Respondent's witnesses, and
the logical inconsistency of the events as depicted by
Respondent. Thus, McHugh testified that the statistical
report which led to the decision to lay off was received in
August, while Merkel testified the report was received in
March or April. Another glaring contradiction is observed
between the testimony of Merkel and McHugh who both
stated that, on the day Osborn was hired, they told him
Kulesza and Campbell were scheduled for layoff, whereas
Osborn testified it was not until 3 days later that he was
apprised of Campbell's and Kulesza's names. In the face of
these inconsistencies alone, compared to the constancy of
General Counsel's witnesses, I would be justified in
disbelieving Respondent's assertions that the financial
report was the basis for the terminations and that the
decision to lay off Campbell and Kulesza had been made
in September. However, there exist additional evidentiary
reasons to negate the economic defense. For example,
though McHugh steadfastly claimed Respondent needed
to reduce warehouse costs, he admitted "we had in mind a
contemplated offset of the additional warehouse cost ...
not so much a savings, but to offset. We just didn't want to
increase warehouse expenses by $10,000. We had to
compensate for that."2 2 McHugh further admitted that,
prior to the alleged layoff decision, no computation had
been made to determine whether the layoffs would, in fact,
effect some sort of cost reduction. Such an admission vastly
diminishes the claimed thrust of economic necessity for, if
the real reason for the layoffs was to achieve cost
reduction, it is reasonable to assume that some effort would
be made in advance to ascertain whether the layoff would
produce the intended result.
Further reducing the defense's validity is the admitted
fact that no prior notice of the layoffs was given, although
the decision purportedly had been made at least 3 weeks
before the occurrence. Thus, what remains is the uncanny
coincidental fact that the terminations were effectuated on
the very day that union cards and literature were openly
distributed at Respondent's premises.
Still another factor militates against Respondent's eco-
nomic defense. Campbell testified he had been "schedule"
to attend a seminar on October 27 where one of
Respondent's customers, Burdick, was demonstrating equip-
ment. A serviceman was required to make necessary
22 The additional cost referred to is associated with Osborn's hiring
(emphasis supphed)
adjustments should equipment fail during the demonstra-
tions. Campbell recalled he and Dean Miller, a salesman of
Respondent who was to attend the seminar, spoke with
McHugh on October 20 or 21 and Miller suggested
Campbell also attend the seminar. When testifying,
McHugh simply denied that Campbell had been "sched-
uled" to attend the seminar, and Miller (who testified
principally on the appropriateness of the unit) was not
asked whether he suggested Campbell's attendance to
McHugh. Miller did testify he was not aware whether or
not Campbell had been so assigned. In view of my prior
conclusions that where testimony conflicts I credit the
General Counsel's witnesses, I find that the seminar
discussion occurred as described by Campbell, especially
in view of McHugh's self-serving denial without further
explanation. In any event, whether or not Campbell had
been formally scheduled to attend the seminar is of no
consequence. What is relevant to the Respondent's claim
that the layoff was afait accompli is the absence of evidence
to show that McHugh declined Miller's suggestion and the
failure of McHugh to announce that the suggestion was
futile because Campbell was scheduled to be laid off in I or
2 days.
Finally, there appears an element of irrational conduct
related to the selection for layoff, as described by
Respondent. The above-quoted abstract of the warehouse
cost statistics shows that Respondent's truckdrivers' wages
were .99 percent of sales. This sum, when compared with
the percentages of truckdrivers' wages in the three
categories of "Range of Common Experience," shows that
Respondent was on the "extremely high" side of the
industry in drivers' wages. Despite this clear observation,
no evidence was adduced by Respondent to show that it
even considered the layoff of any drivers. I do not seek, by
this observation, to intrude upon managerial decisionmak-
ing for there may have existed valid reasons not to reduce
the driver force. Nonetheless, I find the failure to
demonstrate that the subject had even been contemplated
by Merkel and McHugh casts suspicion upon the bonafides
of the alleged layoff decision.
Upon all the foregoing, I conclude that Respondent has
not sufficiently established its claim that it had a justifiable
economic need to terminate Campbell on October 22. Even
assuming such a need existed, I conclude that the credible
evidence does not support that Campbell's (or Kulesza's)
layoff was planned in advance, based on that need, as
Respondent contends.
2. The insubordination
Respondent contends Campbell was involved in a series
of incidents within the final 10 days of his employment
which warranted converting the alleged planned layoff to a
discharge.
Summarized, the alleged infractions are:
a. On October 12, when Osborn informed Campbell
and Drobinski that the repairman would have to note thei-
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absences in a logbook, Campbell exclaimed to Osborn, in
Drobinski's presence, "Not that fucking shit again!"2 3
b. Campbell made illegible entries in the log on
October 12 and 18.24
c. On October 18 or 19, Campbell said to Dennis, in the
hearing of other employees: "You're dumb-stupid-I'm
smarter than you."
d. On October 22, Campbell neglected to log out a
personal absence.
Respondent asserts the accumulated effect of the above
items of alleged misconduct led to the conversion of
Campbell's planned layoff to a discharge, but McHugh
testified that the immediate cause was the October 22
failure to log the personal time.25
Institution of the log was McHugh's idea to further
Respondent's need to become more efficient. The log's
unquestioned advantage is to permit a repairman to be
contacted while in the field to relay instructions for the
next job, thereby obviating the need for travel to the shop
to receive those instructions in person. On the cover of the
log were five numbered instructions as to its use.26 The
third paragraph deals with entries for personal time and
reads:
If you leave early for personal reasons - whatever the
nature - you must also sign and explain your
destination.
It is undenied that, on October 21, Campbell told Osborn
that he had to take his daughter for treatment at a hospital
the next morning and would report to work late on October
22, and that Osborn granted the time off. According to
Osborn, he again explained the purpose of the log to
Campbell on October 22 (having already done so on
October 12) and advised him to account for his personal
absence in the log upon his return.27 Prior to leaving work
on October 21, Campbell informed Drobinski that he
would report late the next day and that he had so advised
Osborn and received permission.
Before reporting to work on October 22, Campbell took
his daughter to the hospital and reported to work at or
about 10:30 a.m. He did not sign the logbook on
returning2 8 and, at 10:40 a.m., he and Drobinski left for a
field job. By that time, the log had been returned and both
men signed out, as prescribed.
McHugh testified he had looked for Campbell between
8:30 and 10:30 that morning. The sequence of events as to
whether McHugh looked at the log before or after Osborn
told him Campbell would be reporting late is not clear, but
what is certain is that, after Campbell and Drobinski
signed out for their job and left the premises, McHugh
2'1 There is a dispute whether Campbell also alluded to the need for a
union when he made this remark. In view of my findings and conclusions of
Respondent's knowledge of union activities, I deem it unnecessary to
resolve this dispute.
24 The October 18 entry was raised as an example of misconduct at the
hearing for the first time, and again is discussed in Respondent's brief as
such. That date, however, did not appear in Campbell's termination notice
dated October 22. See G.C. Exh. 5.
25 McHugh testified: "[lit was his lack of, omission of an entry on the
day of discharge that infuriated me that he did not log down the personal
time ... we have had enough crap out of him over this log."
2" Resp. Exh. 2.
27 I do not credit this version of Osborn: first. because it is inconsistent
noted Campbell had not "logged" his personal absence
and, according to McHugh, Merkel and he discussed the
incident at lunch that day and decided that Campbell
would be discharged rather than laid off. Campbell
admitted not logging his personal leave that day, explain-
ing his failure to do so was due to his understanding that
Osborn's granting of the time off the previous day did not
require any further action by Campbell.
Regarding Respondent's assertions that the illegible
entries contributed to the decision to discharge Campbell,
McHugh testified that Osborn brought him Campbell's
first entry of October 12 and complained that Campbell
had written illegibly. McHugh agreed and, according to
him, orally reprimanded Campbell on October 13, warning
him McHugh would not tolerate "his insubordinate
nature." Campbell, on rebuttal, denied such a reprimand.
Osborn, interestingly, testified that although he reported
both that Campbell's log entry was illegible and also his
profane comment of indignation2 9 at having to sign the
log, Osborn himself "shrugged it (the remark) off being the
reaction of someone who was not happy with the
implementation." In these circumstances, I credit Camp-
bell's denial that he was warned about being insubordinate.
Even if McHugh's account was credited, he admitted that
he observed Campbell's handwriting had improved prior to
October 22,3° and further stated that he did not take this
improvement into consideration on October 22 when he
and Merkel decided that Campbell should be discharged.
Assuming Respondent had a legitimate concern for
maintaining accurate time and location accounts of its
repairmen, I nonetheless conclude that reliance upon
Campbell's omission to log in his personal time on October
22, and upon his poor handwriting, as a cause for discharge
is misplaced and totally exaggerated. First, as noted above,
it is admitted Campbell's handwriting improved, yet this
fact was given no weight when considering his discharge.
Campbell was a highly skilled and trained employee whose
skills were unique to the trade. Moreover, McHugh himself
acknowledged that Campbell had been an acceptable
worker. Additionally, the record reveals that Campbell, at
no time, refused to sign the log, and this was true even
when he expressed dismay (on October 12) at having to do
so. It stretches credulity to believe that in the total context
of this case one's poor handwriting could be a valid cause
for discharge. That Respondent was straining to support
this aspect of its defense is observed by its addition, at the
hearing, of the illegible entry of October 18, an action
which I deem to be an afterthought inasmuch as Campbell
was not advised of it at the time of his discharge.
with par. 3 of the log instructions which require signing out when leaving
after already having been at work; and, second, because it would have been
more reasonable to request Campbell to note his anticipated and excused
absence on the day permission was granted to take personal leave. This
procedure would have been more consistent with the purpose of the log.
Even if I credited this instruction as Respondent asserts, it was impossible to
comply, for the credible evidence indicates the log was not available for
signing at the time Campbell reported for work on October 22.
28 Drobinski credibly testified that McHugh had taken the logbook
away.
29 See subpar. (a), supra.
30 Indeed, Respondent pointed to only one other entry, October 18,
which is claimed illegible.
146
JOHN G. MERKEL & SONS
As to Campbell's failure to log his personal absence on
October 22, 1 find his explanation for not signing to be
plausible. Having been instructed that the purpose of the
log was to be able to locate the repairmen to advise them of
further assignments, it is not unreasonable to assume that
use of the log was intended only after having reported for
work and then absenting oneself. That this assumption is
valid may be seen from the language of log instruction
three itself, which begins: "If you leave early for personal
reasons," (emphasis supplied). Thus, Campbell knew his
absence from work had been excused in advance by
Osborn. His absence between 8:30 and 10:30 on October
22, therefore, was not a situation in which he had to leave
early. Moreover, it is noted that Campbell did sign out at
10:40 in accordance with the instructions. At best,
therefore, I perceive the cause of McHugh's "infuriation"
when observing Campbell had not logged his personal time
was a mere misunderstanding of the instructions which
rationally would require clarification - perhaps a warning
- but certainly not discharge. Accordingly, I find neither
Campbell's illegible handwriting nor his failure to log his
personal time valid cause for discharging him in the instant
circumstances. 3'
There are yet two matters relating to insubordination to
consider, for either of them, under appropriate conditions,
might constitute sufficient grounds for discharge. The first
is Campbell's admitted use of profane language on October
12 toward Osborn. Although not explicitly contended to
constitute insubordination, Campbell's termination notice
refers to the October 12 outburst as "caustic remarks you
made to your supervisor .... " As indicated above,
Osborn, to whom the comment was made, "shrugged" it
off. If, as McHugh testified, he actually reprimanded
Campbell on October 13 after having been informed of the
remark by Osborn, it is clear that, at least on that date,
McHugh did not consider Campbell's utterance so egre-
gious as to cause his discharge. No severe action was taken
that day, nor were Campbell's words even mentioned by
McHugh who spoke only of the illegible October 12 entry.
As noted, I have not credited McHugh's testimony of the
alleged October 13 warning. Whether or not there was such
a warning given Campbell, the fact remains that, if a valid
cause for discharge based on improper language existed, it
remained in existence from October 12 until October 22
without action. I find this delay suspicious.
The second incident is the demeaning language purport-
edly used toward Dennis who recounted that, at the coffee
machine where several employees had congregated on the
morning of October 18 or 19, he and Campbell were
engaged in conversation. Campbell agreed that he had a
discussion with Dennis on the day in question. They
presented diverse accounts of what was said as to irrelevant
matters. Both agreed, however, that the discussion turned
to the fact that Respondent paid mileage to Campbell.
Dennis' version of the alleged demeaning comment was
that Campbell said, "You're dumb-stupid-I'm smarter
:~ This is especially true when considering that the record reflects that a
driver, Charles Miller, suffered no discipline whatsoever when, in April, one
of Respondent's trucks in his control was stolen as a result of Miller's failure
to remove the keys while he left the truck unattended. Thus. by
Respondent's own demonstrated standard for discipline, these reasons
asserted for the discharge of Camphell are inadequate.
than you," while Campbell testified he only said "You're
just being dumb,"3 2 in response to Dennis commenting
that Campbell was angry because of the (log) book. Dennis
claimed he was "pretty upset and a little mad" over
Campbell's remarks because he had been addressed in such
a manner "in front of a lot of people ... who work for or
under me." Dennis testified he reported the incident to
McHugh that same day. The record reveals that McHugh
did not discuss the matter at all with Campbell. Campbell's
notice of termination does not at all allude to this incident.
Conceding Campbell called Dennis "dumb" and "stu-
pid," and that in certain circumstances such words uttered
to supervisory personnel constitute conduct warranting
discharge, I conclude they do not justify Campbell's
discharge herein. These insults were known to McHugh at
least 3 days prior to the discharge, but no disciplinary
action whatever was taken. If Campbell's conduct was so
heinous as to merit termination for misconduct, then the
failure to impose such discipline immediately remains
unexplained. In this connection, I find McHugh's failure to
so much as discuss the Dennis incident with Campbell both
belies Respondent's claim that Campbell had been warned
on October 13 and also reveals how little the claimed
insubordination actually related to the discharge, it being
the second alleged incident of so-called insubordination
within a week. Indeed, it was not until the hearing before
me that there apparently was any official cognizance of the
Dennis incident, for it was not stated as a reason for the
discharge prior to that time. In such circumstances, I
conclude that this incident could not have been a reason
for Campbell's discharge.
In sum, I find that neither the profanity toward Osborn
nor the insults toward Dennis provide sufficient basis for
Campbell's discharge.
D. Kulesza's Layoff
As noted hereinabove, Kulesza was given no notice prior
to his layoff on October 22. As with Campbell, Respondent
contends the layoff was part of the planned reduction in
force, motivated by economic necessity.
No extensive discussion or analysis is necessary to
resolve the issue of Kulesza's termination. In view of the
foregoing discussions concerning Kulesza's extensive and
overt union activity, the Respondent's knowledge of that
activity, the invalidity of the economic defense, and the
various credibility resolutions, I conclude that Kulesza's
layoff was not prearranged due to economic necessity.
One incident not heretofore described, involving Kules-
za, is of significance to my conclusion. It is undenied that
he gave a union authorization card to Stephen Surowiec
who, as will be demonstrated below,3 4 was a supervisor or,
at least, had interests more aligned with management than
with unit employees. This fact persuades me, when viewed
together with previously mentioned evidence, that Respon-
dent obtained direct knowledge of Kulesza's participation
12 In view of my conclusions, this variation need not be resolved.
33 See Alamo Express, Inc.. Alamo Cartage Company, 200 NLRB 178, 184
(1972); Dunclick, Inc., 159 NLRB 10. 15 (1966).
34 See discussion of Surowiec's status. infra. Ultimately, Surowiec
declined to sign the card, announcing he could not do so because he was
"part of Management."
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Union's organizing efforts immediately before laying
him off. Accordingly, I find there is strong evidence that
the layoff was motivated by other than economic consider-
ations.
E. Summary
In evaluating Respondent's defenses to Campbell's
discharge and Kulesza's layoff, due consideration has been
afforded the unrefuted economic analyses in evidence and
to the testimony of Respondent's witnesses to the effect
that it was engaged in a long-range and protracted
undertaking to make its warehouse operations more
efficient. I have also considered the notorious character of
the union activity, the fact that the terminations occurred
on the same day as the in-plant solicitation, the gravity of
Campbell's alleged misconduct and the disparate treatment
accorded him compared to Miller, the relative credibility of
witnesses and demeanor while testifying, and the record as
a whole which, as will be shown below, indicates unlawful
interrogation of an employee and other efforts to under-
mine the Union. A fair assessment of these factors
convinces me that the terminations of Campbell and
Kulesza were motivated by unlawful considerations. Even
assuming the validity of the economic defense, the
terminations would be violative of the Act,35 and I find it
pretextual.
I have found that the credible evidence indicates
Respondent's direct knowledge of Campbell's and Kules-
za's union activities. Assuming, arguendo, this is not the
case, the record as a whole permits an inference of such
knowledge, based upon the various conversations about
unionization among the employees initiated by Campbell
and Kulesza, the in-plant distribution of union cards and
literature, and the small size of the employee group
involved.36
The discharge of leading union advocates is a classic and
effective method of undermining organizational efforts. 37
Herein, Respondent terminated the two most active
prounion employees. Upon all the foregoing, I conclude
that Respondent's asserted reasons for the terminations are
but a subterfuge to disguise its unlawful motivation.
Accordingly, I find that Campbell's discharge and Kules-
za's layoff on October 22 were discriminatory, and in
violation of Section 8(a)(3) and (1) of the Act.
F. The Alleged Interrogation of Deptula
As indicated above in section III, after Dennis advised
McHugh of the rumors of a union meeting on October 25,
McHugh spoke with Deptula. Thus, during that afternoon
Deptula was called into McHugh's office. No one else but
the two of them was present. Deptula testified that (1)
McHugh said he heard "nasty rumors about a union being
formed" and asked Deptula whether he "heard anything
3. HowardJohnson Company. 209 NLRB 1122. 1131 (1974).
:16 Heath International, Inc., 196 NLRB 318, 319 (1972); Weise Plow
Welding Co., Inc., supra at fn. 17.
37 N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A.
5. 1965).
:, At the time of the October 25 discussion with McHugh, Deptula was a
warehouseman working a full-time schedule. His status will be further
discussed in sec. G. I. a. infra.
about it," (2) Deptula responded he had heard some "talk
about it," (3) McHugh then asked whether Deptula signed
anything, (4) Deptula exclaimed it was "against the law"
for McHugh to ask that question, and (5) McHugh said a
union would not benefit Deptula because of his part-time
status.
Respondent concedes that there was a discussion
between McHugh and Deptula but that the discussion was
friendly, innocuous, and isolated. Respondent asserts that
the discussion resulted from Merkel's and McHugh's effort
(after hearing from Dennis there might have been a union
meeting scheduled earlier that day) to determine whether
Respondent's premises were to be improperly used and
production disrupted, and Deptula was selected because of
Respondent's belief his "temporary" status 38 would re-
move Deptula from being involved or concerned with, or
invited to, the union meetings. Thus, McHugh admitted he
asked Deptula "if he was aware of... any such union
meetings going on" and, after Deptula responded he had
heard about it, McHugh asked "if he had been approached
on this." According to McHugh, the conversation ended as
soon as Deptula commented that the questioning was
unlawful.
As to the content of the conversation, McHugh did not
expressly deny he asked Deptula whether he had signed a
union card. Additionally, McHugh's account of the words
used was general and vague, compared with that of
Deptula. For these reasons, and consistent with my earlier
conclusions as to the relative reliability of witnesses, I find
the text of the conversation to be as related by Deptula.
Respondent claims the interrogation was not unlawful
because it inspired no fear and occurred in an atmosphere
free of employer hostility and discrimination. I disagree.
While it is true that not all inquiries concerning whether
employees heard any talk about union activities constitute
a violation of Section 8(a)(1)39 it is equally well settled that
the Board will examine the surrounding circumstances to
determine the legality of such inquiries. Respondent urges
the application of the tests applied in Blue Flash Express,
Inc., 40 to resolve the instant issue. I find that authority
inapposite herein, for that case involved systematic polling
of employees to determine the extent of employee support
for a union. In my opinion, the standards established by
the Board in Blue Flash, as revised in Struksnes Construc-
tion Co., Inc., 41 do not apply to other types of interroga-
tion. I view McHugh's interrogation to require Deptula to
disclose his union sentiments without communicating a
valid purpose and giving assurances that Deptula would be
free of reprisal as the latter type of interrogation which is
clearly unlawful.4 2 This is so notwithstanding that the
conversation was pleasant and nonthreatening, as Respon-
dent asserts. 43
Additionally, as I have found that the terminations of
Campbell and Kulesza on October 22 were unlawful, I
39 Ontario Knife Company, 191 NLRB 388 (1971).
- 109 NLRB 591 (1954).
41 165 NLRB 1062, 1063(1967).
42 Blackman-Uhler Chemical Division-Synalloy Corporation, 220 NLRB
52, 56-57 (1975); Phillips Industrial Components, Inc., a wholly-owned
subsidiary of Phillips Industries, Inc., 216 NLRB 885, 888 (1975); Abex
Corporation-Engineered Products Division, 162 NLRB 328, 329(1966).
43 Monroe Manufactunng Company, Inc., 220 NLRB 62(1972).
148
JOHN G. MERKEL & SONS
conclude that the interrogation of October 25 was conduct-
ed in an atmosphere pervaded with illegality. The locus of
interrogation was the office of a high-ranking management
official and no assurance that reprisals would not result
was provided by McHugh.44 In this context, I conclude
that McHugh's interrogation of Deptula tends to interfere
with the free exercise of rights guaranteed to employees in
Section 7 of the Act. Accordingly, I find that Respondent
unlawfully interrogated Deptula, as alleged in the com-
plaint, in violation of Section 8(a)(l) of the Act.
G. The Alleged Refusal To Bargain
The General Counsel contends that Respondent violated
Section 8(a)(5) of the Act by: (1) refusing recognition, on
October 27, after having determined that the Union
represented a majority of its employees in the warehouse
unit; and (2) undermining the Union's representative status
on October 29 by seeking to meet directly with the striking
employees and making promises of benefits to them.
Inasmuch as certain facts relating to these issues are
narrated in section III, above, they will not be recapitulat-
ed hereinafter, except where necessary for a cogent
comprehension of events.
1. The allegation that recognition was declined
a. The appropriate unit
The complaint alleges that all truckdrivers, warehouse-
men, and repair department employees, excluding all other
employees, salesmen, office clerical employees, guards, and
supervisors as defined in the Act constitute an appropriate
unit for collective-bargaining with Respondent. Although
considerable evidence concerning the functions of each of
Respondent's employees' job classifications was adduced
at the hearing, Respondent (during the hearing) simply
made a bare contention that the unit was inappropriate.
For the first time, in its brief, Respondent explained its
contention rests upon the single fact that "Outside
Salesmen should have been excluded, but the Inside
Salesmen should definitely have been included because of
their interchange with warehousemen and drivers, and
community of interest, and common supervision." Thus, I
deem the issue to be resolved herein does not precisely
involve a challenge to the appropriateness of a warehouse
unit but, rather, to the unit placement of inside salesmen.45
Therefore, and because there is no evidence herein that any
labor organization seeks to represent any of Respondent's
employees in a broader unit than alleged and requested by
the Union herein,4 6 in accord with the Board authority
which has held similar warehouse units appropriate in
wholesale establishments,4 7 I find the unit sought to be
appropriate.
With respect to the inside salesmen, the record reflects
that they are supervised by Dennis, 4? whereas Osborn
supervises the employees classified as warehousemen,
44 See Allied Printing Corp.. 202 NLRB 1045, 1053 (1973).
45 All parties agree to the exclusion ofoutside salesmen.
46 See G.C. Exh. 8(a).
41 Pacific Abrasive Supply Co. a subsidiary of the Carbarundum Company,
182 NLRB 329. 366-338 (1970); Garrett Supply Company, a Division of
Garrett Corporation, 165 NLRB 561 (1967); Amarillo Hardware Company.
warehouse clerks, truckdrivers, and repairmen. The inside
salesmen regularly are assigned to work in a store attached
to Respondent's warehouse areas (there are three ware-
house areas, adjoining one another), but the assigned work
areas of warehousemen, drivers, and repairmen are
throughout the warehouse areas. The inside salesmen
obtain customer orders by telephone and in person when
customers visit the store. On occasion, the inside salesmen
walk into the warehouse areas to pick merchandise off the
shelves. If the items are too bulky or heavy, a warehouse-
man would "pick" the material for the inside salesman.
The inside salesmen sometimes help customers carry goods
to their automobiles. Warehousemen sometimes visit the
store area to pick up returned rental goods which they
carry into the warehouse areas and set on storage shelves.
The inside salesmen themselves also, from time to time,
replace rental goods directly to the warehouse shelves and
may also take material to the shipping area (located in the
warehouse) for wrapping. The warehousemen regularly will
pick goods off the shelves and storage bins in the
warehouse areas and deliver them to the shipping area by
means of carts (sometimes also used by inside salesmen)
and handtrucks. The inside salesmen, warehousemen,
truckdrivers, and repairmen all are salaried, work from
8:30 a.m. to 5 p.m. daily, and receive overtime pay when
appropriate. They all are entitled to participate in the
group life insurance and blood bank benefits which are
also available to all other of Respondent's employees who
qualify. Although the inside salesmen wear shirts and ties
while at work, the employees regularly assigned to the
warehouse areas wear uniforms provided by Respondent.
There is no evidence that the inside salesmen substitute for
any warehouse employees or vice versa.
Upon all the foregoing, I conclude that any contact by
the inside salesmen with the warehouse employees is but
incidental and subsidiary to their principal duty in
communicating with Respondent's customers. The visits by
the inside salesmen to the warehouse to obtain merchan-
dise are merely an adjunct of properly servicing a customer
who has personally appeared at the Respondent's premises
or otherwise expediting the delivery function, and are a
minimal part of their regular and basic duties. In view of
this, and the factors of separate supervision and work
stations, I do not agree with Respondent that the evidence
warrants the conclusion that inside salesmen interchange,
or share a community of interest, with the warehouse
employees. Thus, I find that the inside salesmen should be
excluded from the unit found appropriate herein.4 9 I,
therefore, find the following unit appropriate for purposes
of collective-bargaining:
All truckdrivers, warehousemen and repairmen
employed by John G. Merkel & Sons, Inc. at its 807
North Union Street, Wilmington, Delaware location,
excluding all other employees, inside and outside
Inc.. and Buildng and Mechanical Supply Company. Inc., 148 NLRB 48, 50
(1964).
48 The transcript incorrectly reads "Frank Hennessy" at one place. This
error is hereby corrected so that the name will appear as "Frank Dennis."
4" Garrett Supply Company, supra. at fn. 46.
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salesmen, office clerical employees, guards and supervi-
sors as defined in the Act.
b. The Union's majority
The General Counsel contends that when the Union
requested recognition by its October 25 letter and October
26 conversation with McHugh it, in fact, enjoyed support
from a majority of employees in the unit found appropri-
ate, and that such support was also demonstrated by the
fact that a majority of such employees participated in the
strike which began on October 27.50 To support his
position, General Counsel offered 10 signed authorization
cards, received into evidence without objection.5 ' In
addition, the record reveals the possibility that the
following individuals were on Respondent's payroll on
October 22, and possibly in jobs which were (or may have
been) located within the warehouse areas; Stephen Surow-
iec, listed as temporary warehouse clerk; Frank P. Dennis
and Brian Dennis (sons of Frank R. Dennis, customer
service manager) also listed as temporary warehouse
clerks; John G. Merkel IV (Merkel's son), a temporary
employee; and William F. McHugh (McHugh's son),
another temporary employee. None of these five individu-
als signed authorization cards. If each of the foregoing
employees were included in the unit, its maximum size
would have consisted of 15 employees. Because I have
already found that Campbell's and Kulesza's terminations
were discriminatory, their cards will be counted in the
calculation of the majority52 and in the determination of
the size of the unit. Thus, I conclude (without, at this point,
determining the status of the five employees who did not
sign cards) that, on October 22, the Union possessed a
majority of 8 cards evidencing employee support in a unit
no larger than 15 employees and, thus, as alleged in the
complaint, did represent a majority of the employees in the
unit. Even if the cards of Campbell and Kulesza were not
counted, the Union nevertheless would have demonstrated
support from 6 of the 10 employees I find hereafter to
actually comprise the unit. Although Respondent has not
advanced any argument in its brief pertaining to the unit
placement of any of the five employees not signing cards, I
find it necessary to resolve those matters in order to refine
the size of the unit and to make more meaningful and to
clarify the extent of the bargaining order which shall be
recommended below.
Stephen Surowiec: The General Counsel and the Union
would exclude Surowiec from the unit as a supervisor.
While Respondent did not address itself to Surowiec's
status in its brief, it is clear from the evidence adduced
through McHugh at the hearing that Respondent would
argue to the contrary. As indicated above, Surowiec was
listed on the payroll records for October 22 as a temporary
warehouse clerk. As previously noted, he preceded Osborn
as warehouse supervisor. After Osborn assumed his
50 In view of my findings, below, that the majority existed on October 22,
I will not deal with the theory relating to striker participation.
l Eight cards were dated October 22, from Jerry Anuszewski, Joseph W.
Campbell, Paul Deptula, Norris W. Drobinski, Michael E. Kulesza, Charles
R. Miller, William W. Purse, and George Tulewiecki. Two cards were dated
October 25, from Emilio M. Crespo and Bruce A. Young.
52 Pacific Tile and Porcelain Company, 137 NLRB 1358, 1365-66 (1962);
Sioux City Brewing Conpany, 85 NLRB 1164, 1166 (1949).
position, Surowiec had been told by Merkel and McHugh
how to instruct other warehouse employees to perform
their work and to direct the other employees to assist him
when appropriate, and Merkel and McHugh have com-
plained to him at times production was low. Also, after
Osborn was hired, Surowiec's former pay was not changed
and he testified he considered himself the assistant
warehouse supervisor.5 3 Bruce Young, a warehouse clerk,
credibly testified that the performance of his work, and
that of three other warehouse employees, is scrutinized by
Surowiec, who correct them when required, and that
Surowiec assigns and reassigns jobs to them as necessary.
There is no evidence that Surowiec can hire or discharge
employees, nor make effective recommendations thereon,
nor impose discipline upon the four employees whose work
he oversees.
Although the issue is not free from doubt, I conclude that
the record as a whole contains sufficient evidence of the
exercise of independent judgment and responsible authori-
ty to warrant Surowiec's exclusion from the unit. Thus, I
find Surowiec to be a supervisor within the meaning of the
Act. 54
Frank P. Dennis and Brian Dennis: General Counsel and
the Union would exclude these individuals, while Respon-
dent took no apparent position. Each of these employees is
a high school student who has worked only 2 hours a day
and during school vacations since the summer of 1976.
Each performs menial warehouse tasks', each receives less
pay than the other warehouse employees and none of the
fringe benefits accorded to others. Although each of these
individuals' working 2 hours per day suggests the possibili-
ty they are regular part-time employees who should be
included in the unit, in my opinion the fact that they
apparently perform "menial" tasks dissimilar from the
other warehouse employees during the winter months, do
not share in the wages and other fringe benefits with the
others, and are classified as temporary employees indicates
that the Dennis brothers do not maintain such a communi-
ty of interest with the other employees to warrant their
inclusion in the unit. Accordingly, they are excluded. 55
John G. Merkel IV and William F. McHugh: No party
discussed the status of these individuals in posthearing
briefs. This omission is attributed to the fact that, though
their names were mentioned during McHugh's testimony,
the payroll records for October 22 did not list them as
employees on that date. The record reveals only that each
is the son of Merkel and McHugh, respectively; that the
younger Merkel is a high school, and the younger McHugh
a college, student; and that each only worked during
summer months. The record does not reveal what positions
they may have held, nor the nature of their work. On this
53 It will be recalled when Surowiec declined to sign a union card, he told
Campbell and Kulesza he was part of management.
54 Broyhill Company, 210 NLRB 288, 294 (1974); Essex Wire Corporation,
188 NLRB 397, 403 (1971).
s5 Fisher Controls Company, 192 NLRB 514, 515 (1971); Greenfield
Components Corporation, 135 NLRB 479 (1962), affd. 317 F.2d 85, 88-89
(C.A. 1, 1963); Massachusetts Institute of Technology (Lincoln Laboratory),
I 10 NLRB 1611, 1613 (1954).
150
JOHN G. MERKEL & SONS
record, I find they should be excluded from the unit as
casuals, even if they had worked in warehouse positions.5
Finally, the status of Deptula is in doubt, the General
Counsel and Charging Party desiring his inclusion while
the Respondent takes no formal position except by virtue
of its claim that the October 25 interrogation was harmless,
in part because Deptula was but a temporary warehouse
employee and his status is identical to the Dennis
brothers.5T The evidence indicates Deptula first worked for
Respondent in 1970 and 1971 while in high school, working
during the summer and school vacations. He then attended
college and worked similar schedules until June 1976, when
he informed Respondent of his intention to work on a full-
time basis for at least a year or until he could accumulate
sufficient funds to attend graduate school. Since June 1976,
Deptula did, indeed, work a full-time schedule, performing
the normal functions of a warehouseman, but he was not
entitled to share in the fringe benefit programs. This is
apparently due to a policy of Respondent granting
entitlement only to an employee after working for a year
on a full-time basis.
Despite Respondent's characterization of Deptula as a
temporary employee, it is clear that he had been retained in
Respondent's employ until October 27 when the strike
began and he went on strike. This is a period beyond which
Deptula previously had worked before returning to school.
Inasmuch as the record reveals he functioned as a
warehouseman up to, including and beyond October 22,
and no definite terminal date of his employment had been
fixed, I find Deptula is properly included in the unit.5 8
Upon all the foregoing, my earlier computation of the
Union's numerical majority notwithstanding, I now alter-
natively find that the unit found appropriate herein
consisted of a total of ten employees, and that the Union
enjoyed a majority of eight on October 22 and a majority
of ten on October 26 when it made its oral recognition
request.
c. The request and refusal to bargain
As set forth in section III, above, there is no dispute that,
on October 26 Yoeman requested, in writing and orally,
Respondent to recognize the Union and to bargain with it
in the appropriate unit; that McHugh took at least eight
authorization cards from Yoeman and examined them,
even commenting that the cards of Campbell and Kulesza
were among them; and acknowledged the existence of a
majority. The next day, recognition was declined, orally
and in writing.
I find, based on the facts relating to the events of
October 26 and 27 recited in section IIl, as summarized
immediately above, that the Union requested recognition
on October 26 and Respondent declined that request on
October 27, and that the request was made for an
appropriate bargaining unit.
f6 Mission Pak Company, 127 NLRB 1097 (1960). It is, of course, possible
that either or both might also be excluded by virtue of their family
relationship to Merkel and McHugh but, because the record contains
insufficient facts to make such a determination. I do not deal with it.
57 It is paradoxical that, for unit purposes. Respondent would diminish
Deptula's status, but for determining whether Deptula or Kulesza would
d. Summary
General Counsel contends that Respondent's refusal of
the recognition request, coming when it had no good-faith
doubt of the Union's majority and after having engaged in
the 8(aX3) and (I) violations found hereinabove, consti-
tutes a refusal to bargain in violation of Section 8(a)5).
Respondent, on the other hand, pleads its right to require
the Union to prove its majority status through the statutory
representation machinery privileges the failure to grant
recognition herein. Both parties cite N.LRB. v. Gissel
Packing Co., Inc.,59 as authority for their respective
positions.
The Board, in Gissel, held the employer violated Section
8(a)(5) when, without having a good-faith doubt of
majority employee support for union representation, the
employer discharged union adherents in violation of
Section 8(a)(3) and committed other acts of coercion and
intimidation of employees in violation of Section 8(a)(1).
The Board based its conclusion as to the lack of a good-
faith doubt on the fact that the employer had committed
substantial unfair labor practices during its campaign to
resist unionization. The Supreme Court upheld the Board's
8(aX5) finding and issuance of a bargaining order based on
a showing of the majority through authorization cards,
although recognizing (as Respondent herein would have it)
that the preferred and most commonly traveled route to
representation is by means of a Board-conducted election.
The Court, in so holding, considered the employer's
protestations that authorization cards are inherently
unreliable indicators of employee sentiments, but found
"where an employee engages in conduct disruptive of the
election process, cards may be the most effective -
perhaps the only - way of assuring employee choice." 60
I find Respondent's reliance upon the Gissel decision
misplaced, because it presumes the absence of employer
misconduct herein. I have found that Respondent evinced
severe antipathy toward the organizational efforts of its
employees and engaged in activity which could not avoid
the consequences of both dissipating and undermining the
Union's majority status, and also rendering impossible the
conduct of a fair election.
Even if it were concluded that no 8(aX3) or (1) violations
were committed, I would find the refusal of recognition on
October 27 to constitute a refusal to bargain, for it is only
where an employer has a good-faith doubt of the purported
majority that it may rightfully invoke the Board's election
processes as a defense. Herein, it cannot be said the
Respondent entertained such a good-faith doubt of the
Union's majority status because McHugh examined the
cards and acknowledged their number without doubting
their authenticity. Good-faith doubt is rendered irrelevant
to the instant proceeding, however, because of the
have been laid off, Deptula's status assumed a considerably more
permanent tenor.
58 Horizon House 1, Inc., 151 NLRB 766, 769 (1965); Textile Workers
Union ofAmerica, 138 NLRB 269, fn. 3 (1962).
59 395 U.S. 575 (1969).
8o Id at 602.
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence of the virtually contemporaneous discriminatory
terminations and unlawful interrogation. 61
Accordingly, I find that, by refusing to recognize and
bargain with the Union on October 27 as the collective-
bargaining representative of the employees in the unit
found appropriate herein, the request for recognition
having been predicated upon a clear majority of unambigu-
ous cards; and by having engaged in conduct violative of
Section 8(a)(3) and (1), the Respondent also has refused to
bargain in violation of Section 8(a)(5).62
2. The alleged unlawful activity of October 29
Although there is no dispute that Chipman attempted to
bring the strikers and Merkel to an in-person confrontation
(as described in sec. III, above), there is disagreement on
the content of the specific conversations and as to
Chipman's authority to act for Respondent. The General
Counsel contends that Chipman, as Respondent's agent,
undermined and derogated from the Union's representa-
tive status by telling the strikers Merkel would meet
directly with them (without the Union), telling them they
could form an in-plant labor organization, and promising
them other benefits. Respondent denies Chipman was its
agent and that any promises were made.
Chipman claimed he initiated the series of conversations
with Merkel and the strikers on October 29, while the
General Counsel suggests doubt of this assertion. I do not
consider this issue crucial to a determination of the
allegation of illegality. It is uncontested that Chipman
engaged Campbell, Drobinski, and Crespo who were
stationed on the picket line in three conversations relevant
to the instant allegation. The scenario is hazy with respect
to what was said during each of the separate meetings, but
a composite of the testimony of the participants provides
the following description of what transpired. Chipman
asked the strikers whether they would meet with Merkel.
They responded they felt there would be no harm to such a
meeting. Chipman then spoke to Merkel in his office,
reporting the strikers' sentiments and, according to Chip-
man, Merkel met the suggestion with favor and told
Chipman, "if they had to have a union, they could have
their own union with their own officials." Chipman further
credibly testified that Merkel said he had no "hard
feelings" against Campbell and Kulesza and would see if
he could return all strikers to work; he further told
Chipman that he (Merkel) wanted to know whether the
strikers wanted better benefits or more money, comment-
ing he could not afford to pay union wages. Additionally,
Merkel told Chipman he wanted to learn why the strikers
were picketing. Chipman reported to the strikers that
Merkel would speak with them, but not on Respondent's
premises; that the strikers should choose the location; that
Campbell and Kulesza would be back to work; 63 that the
l' The Daf Corporation, d/b/a Hoffman Bros.., 188 NLRB 319, 323-324
(1971).
62 N.L.R.B. v. Gissel Packing Co., Inc., fn. 58, supra, Trading Port. Inc.,
219 NLRB 298 (1975); Kelly Transfer, Inc., 214 NLRB 329 (1974). For the
language of the cards herein, see G.C. Exhs. 2, 6, and 7(a)-7(h).
83 Based on Campbell's testimony which is credited because Chipman
testified he told the strikers that Merkel advised him that Merkel would like
to see all the strikers back to work, and because Crespo confirmed he heard
Chipman make such a remark while speaking with the pickets.
contemplated meeting must be held with no union
representative present;64 that the strikers would receive
paid medical benefits and a pay increase; and that the
strikers could start their own union and elect officers.
Merkel testified that he expressly informed Chipman he
could make no promises, but admitted he was curious as to
the reason the employees were on strike.5 The strikers met
among themselves on the picket line and informed
Chipman they rejected the proposal to meet because of the
condition that the meeting take place without a union
representative. Merkel was advised of the rejection by
Chipman.
Inasmuch as the strikers were informed no meeting could
take place in the presence of a union representative and
they could form another organization among themselves, I
conclude that Respondent undermined the Union's repre-
sentative status. The suggeston that all strikers would be
returned to work and that greater benefits might ensue, I
find to constitute direct bargaining with the strikers,
implicitly soliciting their abandonment of the strike and
return to work. I have already found that the Union was
entitled to exclusive bargaining rights at the time of the
October 29 discussions. Thus, any such direct discussions
clearly derogate from that authority.
Before imputing responsibility for the above conduct to
Respondent, however, it is necessary to determine Chip-
man's status during these events. Respondent submits that
Chipman was not Respondent's agent. It is clear that
Chipman was not a supervisor of Respondent and, though
in Respondent's employ at the time of the conversations,
was not a member of the bargaining unit found appropriate
herein. General Counsel contends that Respondent's
culpability for Chipman's conduct on October 29 derives
from Merkel's participation, direction, and encouragement,
and attendant adoption and ratification. As indicated
above, it is not absolutely clear whether it was Chipman or
Merkel who initiated the series of conversations. Nonethe-
less, Merkel admitted he told Chipman he was "kind of
curious why they're (the strikers) out there." I conclude this
remark provided the impetus for the resulting discussions.
Moreover, the subject matter and the conditions imposed
for the contemplated meeting were suggested by Merkel,
who expressly requested Chipman to relay Merkel's
thoughts and obtain the strikers' responses. I am impressed
that the facts reveal more than a passive participation by
Merkel, for Chipman had at least two (and possibly three)
conversations with him; and it is clear the strikers were
aware that Chipman was relaying messages from Merkel to
them.
I conclude that the facts demonstrate Chipman had been
cloaked by Merkel with ostensible authority to deal with
the strikers that day and, having in mind that even at the
hearing Respondent did not contend Chipman's activities
64 Based on Campbell's testimony which is credited because I find
Merkel evasive on this subject, acknowledging he did tell Chipman he did
not want Yoeman present but claiming the remark was not to be construed
to apply to any other union official. Merkel, however, admitted he was not
so explicit with Chipman and did not ask Chipman to convey that
qualification to the strikers.
65 I find the facts to be as stated in the body of this Decision,
hereinabove, based upon the corroboration of Campbell's narration
provided by Crespo.
152
JOHN G. MERKEL & SONS
had been disavowed (only the substance of his actions is
disputed), I find the evidence sufficient to hold Respondent
liable for those actions. 66
In summary, having concluded Respondent is responsi-
ble for Chipman's October 29 discussions with strikers, I
find that Respondent, by implicitly urging the strikers to
repudiate the Union 67 and by engaging in direct bargain-
ing with them,68 engaged in conduct violative of Section
8(a)(5) of the Act.
H. The Alleged Unfair Labor Practice Strike
As noted above in section III, the strike began as soon as
the October 27 meeting between Yoeman and McHugh
ended. The record shows that each of the ten employees6 9
who signed authorization cards had been, up to the hearing
dates, on strike and participated in the picketing at
Respondent's premises since the strike's inception.
All the testimony as to the reason for the strike is to the
effect the employees were protesting the termination of
Campbell and Kulesza and the subsequent refusal to
bargain. The picket signs' legend confirms that testimony.
Accordingly, I conclude that the sole causation for the
strike is Respondent's unfair labor practices found herein,
and find that it is properly characterized as an unfair labor
practice strike,70 and that the participants in it are unfair
labor practice strikers, for whom appropriate remedial
action will be recommended.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that the Respondent discriminato-
rily terminated Joseph W. Campbell and Michael E.
Kulesza on October 22, 1976, in violation of Section 8(aX3)
and (1) of the Act, the Order will provide that the
Respondent offer each of them immediate and full
reinstatement to his former job or if such position no
" See Teledyne Dental Products Corp.. 210 NLRB 435, 441 (1974). and
cases cited therein.
67 Ramona's Mexican Food Products, Inc., 203 NLRB 663, 682 (1973).
6R Medo Photo Supply Corporation v. N.LR.B., 321 U.S. 678, 683-684
(1944); Emily Tweel Jacobs, Russell Jacobs, and Emil Tweed d/h/a L. Tweel
Importing Co., 219 NLRB 666, 672 (1975).
General Counsel urged in his brief that the direct bargaining and
promises of benefits are also independent violations of Sec. 8(aXI).) find
the combined effect of pars. 12 and 13 of the complaint suffice to permit
such a finding and, inasmuch as the facts upon which this contention is
based were fully litigated at the hearing. I find this conduct to constitute a
violation of Sec. 8(aX )) of the Act. See Merchandiser Press, Inc., 115 NLRB
144 (1956).
longer exists, to a substantially equivalent position, without
prejudice to his rights and privileges, and to make each
whole for any loss of earning he may have suffered as a
result of the discrimination by payment of a sum equal to
that which each normally would have earned, absent the
discrimination, from the date of the discrimination to the
date of Respondent's offer of reinstatement, with backpay
and interest computed in accordance with the Board's
established standards contained in F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Since I have also found that the strike which commenced
on October 27, 1976, was an unfair labor practice strike,
the Order will further require the Respondent, 5 days
following the strikers' unconditional application to return
to work, to offer each such striker who has not yet then
been reemployed immediate and full reinstatement to his
former job, or to a substantially equivalent position,
without prejudice to the seniority and other rights and
privileges previously enjoyed by each such striker, and
discharge, if necessary, any replacements in order to
provide work for such strikers.
It having been found that the Respondent interfered
with, restrained, and coerced employees in violation of
Section 8(aX)(1) and (5) of the Act by having interrogated
Deptula and by making promises of benefits to the strikers
and having bargained directly with them, the Order will
require the Respondent to cease and desist from such
activity.
The General Counsel contends that the unfair labor
practices herein require a bargaining order under the
principles laid down in Gissel,T7 and that the effective date
of such an order be October 22, 1976, according to the
rationale of Trading Port, Inc.7 2 In Gissel, the Supreme
Court sustained the Board's authority to issue a remedial
bargaining order in cases where unfair labor practices
which have been committed are such as to make a fair
election an unlikely possibility. The Court defined two
situations where entry of such an order would be
appropriate. The first is in those exceptional cases which
are marked by "outrageous" and "pervasive" unfair labor
practices; 73 and the second is in "less extraordinary cases
marked by less pervasive practices which nonetheless still
have the tendency to undermine majority strength and
impede the election process." 74 On the other hand, the
Court imposed a third type of situation where a bargaining
order would not be warranted; namely, where "minor or
69 See fn. 50, supra, for their identities.
70 General Drivers and Helpers Union, Local 662, International Brother-
hood of Teamsters, Chauffeurs, Warehouseman and Helpers of America,
(1962). [Rice Lake Creamery Co.] v. N.LR.B.. 302 F.2d 908 (C.A.D.C.
1962). cert. denied 371 U.S. 827 where at 911 it was said: "1I IF an unfair
labor practice had anything to do with causing the strike, it [is] an unfair
labor practice strike."
7I See fn. 58. supra.
72 219 NLRB 298.
73 395 U.S. at 613.
74 Id at 614.
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less extreme unfair labor practices" would have a "minimal
impact on the election machinery." 15
Respondent herein, apparently assuming the righ-
teousness of its cause, did not address itself to the scope of
a possible remedy, while the General Counsel contends
that the activities of Respondent "necessarily and irrevoca-
bly affected the employees' choice concerning their
selection of a bargaining representative," and the Charging
Party claims those activities "preclude the holding of a fair
election."
The timing and combination of those activities of
Respondent which I have found unlawful persuade me
that, as soon as it became aware of the overt demonstration
by the employees (Kulesza's card and pamphlet distribu-
tion) of what previously had been mere discussion,
Respondent embarked in a studied and integrated program
designed to frustrate unionization. Only several hours after
the card and pamphlet distribution, the two leading union
proponents were terminated. I conceive of no other activity
by an employer which is more outrageous and pervasive
than such an action taken against employees during the
height of their exercise of their rights established in Section
7 of the Act.76
Respondent, however, was not content with this. On the
very next workday (the terminations were on Friday),
Respondent, feigning ignorance and expressing concern for
an uninterrupted production schedule, admittedly interro-
gated an employee to secure more current information
concerning the employees' exercise of their protected
rights; then, without a scintilla of good-faith doubt rejected
an authentic request for recognition, ironically claiming the
statutory election process for itself; and finally, bypassed
the Union by seeking to deal directly with the employees
who, by then, were on strike to protest the unfair labor
practices known to them, and enticing them to give up their
allegiances to the Union by promising them benefits. This
unlawful course of conduct reached and affected every one
of the unit employees. In this frame of reference, I find it
virtually inescapable that Respondent's unfair labor prac-
tices meet both postulates of the Gissel doctrine which
declare that recourse to traditional Board remedies would
not be sufficient to rectify the detrimental effect upon the
employees' rights. Accordingly, having found that the
Respondent has violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain collectively with the
Union, the Order will require the Respondent to recognize
and bargain collectively, upon request, with Teamsters
Local 115, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, concerning wages, hours, and other terms and
conditions of employment of the employees in the
appropriate collective-bargaining unit. Moreover, I have
concluded that Respondent's unfair labor practices clearly
undermined the Union's majority status and, in view of my
findings that the Union achieved majority status on
October 22, 1976, 77 I deem it proper that the Order require
the bargaining to be retroactive to that date, pursuant to
'5 Id at 615.
17 See Pinier Bros., Inc., 227 N LRB 921 (1977).
77 See fn. 50 which shows that eight authorization cards had been signed
on that date. Also refer to accompanying text in this Decision.
the Board's Trading Port decision, and I will so recom-
mend.7 8
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. John G. Merkel & Sons, Inc., the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Local 115, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By terminating the employment of Joseph W.
Campbell and Michael E. Kulesza on October 22, 1976,
because they were engaged in union activities, Respondent
discriminated against employees in violation of Section
8(a)(3) and (1) of the Act.
4. By interrogating Paul Deptula regarding union
activities, Respondent interfered with, restrained, and
coerced employees in violation of Section 8(a)(I) of the
Act.
5. By dealing directly with striking employees and
making them promises of benefits on October 29, 1976,
Respondent refused to bargain with the Union in violation
of Section 8(aX5) of the Act and interfered with, restrained,
and coerced employees in violation of Section 8(a)(1) of the
Act.
6. The appropriate collective-bargaining unit of Re-
spondent's warehouse employees is:
All truckdrivers, warehousemen and repairmen
employed by John G. Merkel & Sons, Inc. at its 807
North Union Street, Wilmington, Delaware location,
excluding all other employees, inside and outside
salesmen, office clerical employees, guards and supervi-
sors as defined in the Act.
7. Effective October 22, 1976, the Union has been, and
at all times since has remained, designated as the majority
representative, for purposes of collective bargaining of the
employees in the appropriate bargaining unit described
above.
8. By refusing to recognize and bargain with the Union
on October 27, 1976, Respondent failed to bargain
collectively in good faith in violation of Section 8(aX5) and
(I) of the Act.
9. By the unfair labor practices found to have been
committed, Respondent made the conduct of a fair election
among the Respondent's employees in the above-described
unit an unlikely possibility and the imposition of a
remedial bargaining Order requiring Respondent to recog-
78 Also see Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio
Division #1, 228 NLRB 93 (1977).
154
JOHN G. MERKEL & SONS
nize and bargain with the Union for those employees is
warranted.
10. The strike which commenced on October 27, 1976,
is, and has been at all times material herein, an unfair labor
practice strike.
II. Each striker who participated in the aforesaid
unfair labor practice strike is an unfair labor practice
striker.
Upon the above findings of fact, conclusions of law, the
entire record in the case, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 79
The Respondent, John G. Merkel & Sons, Inc., Wilming-
ton, Delaware, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment, or any term or condition of employment because
they engage in union or protected concerted activities.
(b) Coercively interrogating employees concerning their
union activities.
(c) Dealing directly with employees, in derogation of the
representative status of their Union.
(d) Promising benefits to its employees in order to
encourage them to withdraw their support from their
collective-bargaining representative.
(e) Refusing to recognize and/or refusing to bargain with
Teamsters Local 115, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargaining
representative in the unit described above, in section VII,
paragraph 6.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights,
except to the extent that such rights might be affected by a
lawful agreement in accord with Section 8(aX3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
79 In the'event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recommend-
ed Order herein shall, as provided in Sec. 102.48 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.
(a) Offer immediate and full reinstatement to Joseph W.
Campbell and Michael E. Kulesza to their former jobs or,
if such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make each whole for any loss of
pay or other benefits suffered by reason of the discrimina-
tion against each in the manner described above in the
section entitled "The Remedy."
(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 under the
terms of this Order.
(c) Reinstate the unfair labor practice strikers as
provided above in the section entitled "The Remedy."
(d) Recognize and bargain collectively and in good faith,
upon request, with Teamsters Local 115, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
collective-bargaining agent of the employees in the appro-
priate unit referred to above in section VII, paragraph 6,
and, if agreement is reached, reduce such agreement in
writing, if requested, and sign in execution thereof. The
bargaining prescribed by this Order shall be conducted
retroactive to October 22, 1976.
(e) Post at its location at 807 North Union Street,
Wilmington, Delaware, copies of the attached notice
marked "Appendix." 80 Copies of said notice, on forms
provided by the Regional Director for Region 4, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that the notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
so In the event 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."
155