Harkins Wholesale

In the Matter of J. W. HARKINS, DOING BUSINESS AS HARKINS WHOLE- SALE and INTERNATIONAL UNION OF UNITED BREWERY , FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA, LOCAL UNION No. 104 and INTERNATIONAL BROTHERHOOD or TEAMSTERS , CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, BUTTE TEAMSTERS UNION, LOCAL No. 2, PARTY TO THE CONTRACT Case No. C-4414.Decided February 16, 191.3 Jurisdiction : soft drink manufacturing and tobacco, candy, and beer, retailing - industry. Unfair Labor Practices. Interference, Restraint, and Coercion: extending contract with one union to em- ployees covered by contract with another union, upon employer's initiative. Discrimination: discharging one employee because of statements made at union meeting, and discharging another employee because he refused to withdraw ,from one union and join another. Collective Bargaining: charges of refusal to bargain dismissed ; Board not con- vinced that proposed single-employer unit was appropriate in view of evidence indicating the appropriateness of a multiple-employer city-wide unit; further; no showing of majority was made within the proposed unit where only one employee was working at the time of the execution of closed-shop contract, and others were employed after execution of contract. Remedial Orders: cease unfair labor practices; otter reinstatement with back pay to employees discriminatorily discharged. DECISION AND ORDER On November 10, 1942, the Trial Examiner filed his Intermediate Report in this proceeding, finding that the respondent had engaged and was engaging in certain unfair labor practices affecting commerce, and recommending that the respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter the respondent filed exceptions to the Intermediate Report. During the hearing the Trial Examiner ruled upon various motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- -dicial errors were committed. The rulings are hereby affirmed. 47 N. L. R. B., No. 87. 650 J. W. HARKINS 651 The Board has considered-the Intermediate Report, the respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Exam- iner in his Intermediate Report, with the exceptions, modifications, and additions set forth below : 1. The Trial Examiner found that on February 5, 1942, and at all times thereafter, the respondent refused to bargain with the Brewers as the exclusive representative of his employees in a unit consisting of his soft-drink employees. The evidence before us indicates that the respondent is one of a city-wide group of employers engaged in the soft-drink business, all of whom have participated in collective bargaining with the Brewers on behalf of their soda-pop bottlers and drivers for a period of several years, and have signed identical con- tracts with the Brewers. We are, therefore, not convinced that a unit composed of the soda-pop bottlers and drivers employed by the re- spondent alone is the appropriate one. Moreover, even if we. were to adopt the Trial Examiner's finding as to the appropriate unit we could not find that the Brewers represented a majority in such unit at the time of the respondent's refusal to bargain. Only one person, Anderson, was employed in the soft-drink section of the respondent's business at the time when the respondent and the Brewers entered into the closed-shop contract of May 1, 1940. Consequently, assuming that the respondent's soft-drink employees alone constituted the appro- priate unit, the contract was manifestly invalid.' The two other em- ployees who, with Anderson, were counted by the Trial Examiner as constituting the Brewer's alleged majority were employed by the respondent, and joined the Brewers, subsequent to the execution of that contract. We cannot accept their membership, under these cir- cumstances, as proof that the Brewers was their lawfully designated bargaining representative. In view of these considerations, we do not find that the respondent has refused to bargain with the Brewers within the meaning of Section 8 (5). of the Act. 2. Despite the foregoing conclusion, we agree with the Trial Ex- aminer that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, on February 5, 1942, by taking the initiative in extending his contract with the Teamsters to cover the soft-drink employees. These employees had not thereto- 1 A closed-shop contract is valid under the proviso to Section 8 (3) of the Act only where the "labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made." It is a well-established principle that more than one person is required to constitute an appropriate unit within the meaning of Section 9 (a) of the Act See Matter of Lucken- bach Steamship Company, Inc , at at. and Gatemen, Watchmen and Miscellaneous Waterfront Workers Union, Local 38-124; International Lonyshorenien's Association, 2 N. L. R. B. 181, 193, and subsequent cases. '652 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD fore been covered by the Teamsters' contract; and the respondent's action in subjecting -them to its terms without their consent consti; tuted interference, restraint, and coercion. 3. We agree also with the Trial Examiner's finding- that the re- spondent discriminated with regard to the hire and tenure of em- ployment of Coombe and Ossello. The respondent clearly was not privileged to discharge Ossello on February 5 because he had made certain statements at a Brewer's meeting. Ossello's conduct consti- tuted participation in union activities which are protected by the,Act.2 • Nor was the respondent justified in discharging Coombe for refusing to withdraw from the Brewers and join the Teamsters. As the Trial Examiner correctly found, the respondent unilaterally decided to re- quire his soft-drink employees to change their union affiliation and accordingly instigated the Teamsters' unwarranted demand that these employees be subjected to the closed-shop provisions of the Teamsters' contract. That contract did not apply to the soft-drink employees and afforded no justification for the respondent's action. ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section,10 (c) of the, National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, J. W. Harkins, doing business as Harkins Wholesale, his agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, or any other labor organization of his employees, or encouraging the membership of his soft-drink employees in Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No. 2, or any other labor organization by discriminating in regard to hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other, mutual aid or protec- tion, as guaranteed in Section 7 of the National Labor Relations Act. 2 Matter of Peter Cailler Kohler Swiss Chocolates Company, Inc. and Peter Cailler Kohler ,Co., Employees Union, Independent, 33 N. L. R. B. 1170, enf'd N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. ( 2d) 503 (C. C. A. 2); and Matter of General Shale Products Corporation and United Construction Workers Organizing Comm4ttee, 26 N. L. R B. 921. J. W. HARKINS 653 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to John Ossello and Arthur Phillip Coombe immediate and full- reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole John Ossello and Arthur Phillip Coombe for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them, by payment to each of them of a sum of money equal to the amount which each would normally have earned as wages from the date of his discharge to the date of the offer of rein- statement less his net earnings during that period; (c) Post-immediately in conspicuous places in and around his plant in Butte, Montana, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees stating (1) that the respondent will not engage in the conduct from which it is ordered that he cease and desist in paragraphs 1 (a) and (b), of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order and (3) that the respondent's soft-drink employees are free to become or remain mem- bers of International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104; and that the respondent will not discriminate against any such employee because of membership in that labor organization; (d) Notify the Regional Director for the Twenty-second Region within ten (10) days from the date of this Order what steps the re- spondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the respondent has engaged in unfair labor practices by refusing to bargain with the Brewers as the representative of his employees within the appropriate unit. INTERMEDIATE REPORT Mr. Willard IF. Morris, for the Board Mr. Joseph J McGaffery, Jr., of Butte, Mont., for respondent. Mr. Harlow Pease, of Butte, Mont., for the Teamsters. Mr. C. J. Martin, of Butte, Mont., for the Brewers. STATEMENT OF THE CASE Upon a second amended charge duly filed on July 31, 1942, by the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of Ameriea, Local Union No. 104, herein called the Brewers, the National Labor Relations. Board, herein called the Board, by its Regional Director for the Twenty-second) Region (Denver, Colorado), issued its complaint dated October 1, 1942, and its amended complaint dated October 7, 1942, against J. W. Harkins, doing busiaess^ 654 DECISTONS OF NATIONAL LABOR RELATIONS BOARD 1 as Harkins Wholesale,' herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section S (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, the amended complaint, notice of hearing, and notice of adjourned hearing were duly served upon the respondent, the Brewers, and upon Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No 2,` herein called the Teamsters. With respect to the unfair labor practices, the amended' complaint alleged in .substance that the respondent: (1) since about February 5, 1942, has refused to bargain collectively with the Brewers, which at all times since about July 1, 1940, has been the exclusive representative of the soda pop bottlers and the soda pop delivery salesmen employed by the respondent; (2) in February 1942, bargained collectively and entered into an agreement covering wages, hours, and working conditions with the Teamsters in the unit above described, although the Teamsters was not the representative of the majority of the employees in that unit; (3) on February 5, 1942, discharged John Ossello because he joined and assisted the Brewers and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection, and on February 12, 1942, discharged Arthur Coombe 4 for the same reason and because Coombe re- fused to join the Teamsters; (4) by the foregoing acts, and by urging, persuading and coercing his employees not to join or remain members of the Brewers, by threatening with discharge if they joined, assisted or remained members of the Brewers, and by urging, persuading and coercing them to join and assist the Teamsters, the- respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed his answer dated October 14, 1942, to the amended com- plaint admitting certain allegations concerning his business activities and the discharges of Ossello and Coombe, but denying that his business was subject to the jurisdiction of the Board and that he had engaged in unfair labor practices. Pursuant to notice a hearing was held October 20 and 21, 1942, at Butte, Mon- tana, before J J Fitzpatrick, the undersigned Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board, the respondent, and the Team- sters were represented by counsel. The Brewers was represented by its secretary= treasurer. All participated in the hearing At the opening of the hearing the respondent and the Teamsters moved separately for a continuance on the grounds that Peter J. Connors, the business agent for the Teamsters and the only one conversant with certain facts involved in the controversy, and a necessary witness, was and for four weeks previous to the hearing had been severely ill with a heart ailment; that, because of this situation, neither the attorney for the respondent nor the attorney for the Teamsters had been able to confer sufficiently with Con- nors to prepare an' adequate defense.' As an alternative motion, the Teamsters \l The title originally read "J. W. Harkins , doing business as J. W. Harkins Wholesale Company," and was amended during the hearing, upon a motion made without objection. 2 During the hearing a motion was granted, without objection, to amend the title of the formal papers by adding "Local No. 2," to the name of the Teamsters organization. 3 The only difference between the , complaint and the amended complaint consists in the phraseology and grouping of some of the allegations. The correct name is Arthur Phillip Coombe. The amended notice specified October 19, 1942, as the date of hearing. Due to delayed train schedules the undersigned in the afternoon of October 19 orally notified all the parties that the hearing would open October 20 At the actual opening of the hearing on October 20, all parties appeared and no objection was made because of the delay in the opening of the hearing. 0 Board's counsel stipulated that Connors' condition was as stated in the motion. J. W. HARKINS 655 moved that, in the event its motion for a continuance was denied, the hearing be held over after the conclusion of the Board's main case for the introduction of further evidence by the Teamsters and for the cross-examination and recross- examination of adverse witnesses. The Board's counsel opposed the motions for a continuance on the grounds that the respondent was in possession of all infor- mation relative to the issues that might be known to Connors, and that the Teamsters was not charged with the commission of any unfair labor practices and had only an ancillary interest in the proceedings. The motions for a continuance were denied, as was also the alternative motion, but the parties were advised that the motion for an adjournment might be again considered if renewed later in the proceedings.' The Teamsters, through its attorney, on the record entered a general denial to any -allegations in the amended complaint that affected the interest of the Teamsters: , After the receipt in evidence of a stipulation as to the nature of his business, the respondent objected to the introduction of any evidence in support of the allegations of unfair labor practices on jurisdictional grounds. The objection was overruled. At the conclusion of the Board's main case, counsel for the Board moved to conform the pleadings to the proof as to dates and names, particularly the respondent's name and the Teamsters' name. The motions were granted without objection. Before submitting his defense, the respondent moved to dismiss the amended complaint on jurisdictional grounds and for the further reason that no proof had been adduced to sustain the allegations of unfair labor practices The Teamsters joined in this motion. The motion was denied. At the conclusion of the hearing counsel for the Board, the respondent, and the Teamsters presented oral arguments on the record. After the close of the hearing the respondent and the Teamsters filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT. 1. THE- BUSINESS OF THE RESPONDENT The respondent, J. W. Harkins, is a sole trader, doing business as Harkins Wholesale He is engaged in the sale at wholesale of tobacco, candy, beer and punchboards, and in the manufacture, bottling and sale of soda pop. During the first seven months of 1942 the respondent's total sales amounted to about $150,000, approximately 5 percent of which represented the sale of soda pop. All the merchandise sold by the respondent, exclusive of soda pop, is obtained from sources outside the State of Montana, as are the flavoring, coloring, and bottles used in the preparation of the soda pop. Prior to March 20, 1942, ap- proximately 1/2 of 1 percent of the soda pop was sold outside the State of At the conclusion of the Board 's main case -all parties stipulated that since May 1, 1941, both the Teamsters and the Brewers have admitted to membership and sought to represent the bottlers and delivery-salesmen in the soft beverage industiy This stipulation Was entered into for the purpose of offsetting the absence of Connors , and satisfied the re- spondent's objections in that respect. The Teamsters , however , stated that the stipulation was insufficient for its purposes . When the respondent had rested his defense the Team- sters renewed its-motion for an adjournment because of Connors' unavailability to meet hearsay testimony by the Boaid's witness Coombe that Connors bad "boycotted" Coombe in 1939 from joining the Teamsters. The undersigned denied the motion on the ground that the hearsay -testimony of Coombe was immaterial to the issues . Thereupon counsel for the Board moved to strike from the record this hearsay testimony of Coombe. This notion was granted over the objections of the respondent and the Teamsters. 656 DECISIONS OF NATIONAI; LABOR RELAT'IONS BOARD Montana. Since March 20, 1942, the respondent has sold none of its products without the state. As stated above, the respondent contends that the Board is without jurisdic- tion. No authority is cited in .support of this contention. The Board has con- sistently asserted jurisdiction in case of this type and has been upheld by the courts.' The undersigned concludes that the contention of the respondent is without merit- and therefore finds that the respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, is affiliated with the Congress of Industrial Organizations.' International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No. 2, is a labor organization affiliated with- the American Federation of Labor. Both unions admit to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology The respondent has been engaged in business in Butte, Montana , since about 1922. Before 1940 his business was confined to the sale at wholesale of beer, tobacco, candy and punchboards. ' Aside from an office force of three, his per- sonnel consisted of seven salesmen. These men secured orders for and made deliveries of the merchandise,- using automobiles to a large extent, but also operating two small trucks used mainly for the delivery of beer. Beginning about 1936 or 1937 the respondent, as aJmember of an employers' group, entered into a collective bargaining agreement with the Teamsters whereby he agreed to employ only members in good standing in that union . In the spring of 1940 the respondent enlarged the scope of his activities to include the manufacture, bottling and sale of soda pop. He installed bottling machinery in his warehouse, secured two enclosed soft beverage trucks, hired John R. Anderson and John Ossello as Bottlers, and Arthur Phillip Coombe as driver-salesman in charge of one of the new trucks. Stephen Benney, who had previously been a candy and tobacco salesman for the respondent, was transferred to driver-salesman on the other soda pop truck. In 1940, and for some years previous thereto, all the manufacturers and bottlers of soft drinks in Butte were under contract with the Brewers to employ only members of that union in good standing as bottlers and drivers. On May 1, 1940, the respondent entered into a similar contract with the Brewers covering his bottlers and the drivers of his soda pop trucks, although at the time his contract with the Teamsters was in effect. 8 In the Matter of Surburban Lumber Co , etc., 3 N. L. R . B. 194, enf' d. National Labor Relations Board v. Suburban Lumber Co., 121 F. (2d) 829 (C. C. A. 3), cert den. 314 U. S. 693 (1941 ) ; In the Matter of Robert S. Green, Incorporated, etc., 33 N. L. R . B 1184, enf'd. National Labor Relations Board v. Robert S. Green , Incorporated, 125 F. ( 2d) 485 (C. C. A. 4, 1942 ) , In the Matter of Win Tehel Bottling Co, etc, 30 N L. It . B 440; enf'd. National Labor Relations Board v. Wm. Tehel Bottling Co., 129 F. ( 2d) 250 (C. C. A. 8; July 2, 1942) ;,In the Matter of Rudolf and Charles Kudsle, etc ., 28 N. L. R. B. 116, enf d National Labor Relations Board v. Kudile, et at., doing business as Kudile Bros. Has- brouck Heights Dairy, 130 F. (2d) 615 ( C. C. A. 3; Aug 21 , 1942). 9 Prior to September 1941 the International Union was affiliated with the A. F. of L. Since that time it has been unaffiliated. Local Union No 104 however, is now affiliated with the State C. I. 0. .J. W. HARKINS 657 Anderson had been working as a pop mixer and bottler in Livingston, Montana, and was a member of the Teamsters. When he came to work for the respondent as head bottler on April 20, 1940, Anderson transferred to the Brewers• Ossello and Coombe also joined the Brewers when they were employed by the respondent' in June 1940. Benney had been a member of the Teamsters and continued his - affiliation with that union after he was transferred to the soda pop truck On May 1, 1941, the respondent, as a member of the employers' group, renewed his contract with the Teamsters, wherein he again agreed to employ only members of the Teamsters Union in good standing, and on the same day joined with the other soft drink manufacturers in renewing his contract with the Brewers wherein he agreed to employ only members of the Brewers as bottlers and soda pop drivers m , Up to September 1, 1941, both the Brewers and Teamsters were affiliated with the A. F. of L." The teamsters admitted to membership and sought generally to secure as members bottlers and drivers in the soft drink industry, and this fact was known to the respondent. However, the Teamsters made no effort, prior to February 5, 1942, to require the respondent to hire Teamsters in the soft drink division of his business ; nor did the Brewers at any time make any demands on the respondent that he require Benney to join the Brewers. Until February 5, 1942, both unions' relations with the respondent and with each other, so far as the record discloses, were amicable in all respects. From January 11 to January 26, 1942, Ossello was on vacation. During his absence Jack and Bill Harkins, sons of the respondent,' assisted Anderson in bottling At the conclusion of his vacation Ossello was not returned to his regular work of bottling but was assigned temporarily, to drive Coombe's truck while the latter took his vacation, and the two Harkins boys continued to assist Anderson. On the evening of February 4, Ossello, at a Brewers' meeting, criti- cized Anderson as shop steward for permitting employees who were not members of the Brewers to work in the bottling department, and for working overtime in that department without overtime pay. As a result of this complaint, Anderson was fined $10, relieved of his duties as shop steward, and Ossello was made shop steward in his stead. On February 5 J. W. Harkins heard of what had transpired at the Brewers' meeting the night before. He became greatly incensed and immediately sent for Peter J Connors, business agent for the Teamsters. Connors came to the plant and Harkins told him of Ossello's complaint at the Brewers' meeting the previous night and that Ossello had displaced Anderson as shop steward for the Brewers. Connors advised Harkins to fire Ossello immediately. Ossello was discharged that day by Harkins, who gave him no reason for such action. At that time the 10 The form contract with the Brewers limits its application to "bottlers" and "drivers". However, all parties conceded that in its application to the respondent the contract covered only his bottlers and soda pop driver-salesmen It also contained a provision that beverages delivered from breweiies . . ." should be made only by employee members of the Brewers This-provision was also in the 1940 contract but it was never enforced The contract also provided that "an attempt shall be made between the employer and local union to first settle all differences or misunderstandings which may arise. If any' adjustments satisfactory to both parties cannot be reached in this way, then the matter shall be settled by a Board of Arbitration . . . and the majority decision shall then be binding upon both parties." it See footnote 9, supra 12 Jack and Bill Harkins were candy and tobacco salesmen. Neither was a member of the Brewers. 513024-43-vol. 47-42 n 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent decided to get rid of the Brewers,' and thereafter deal with the Teamsters as the representative of the bottlers and soda pop drivers, in accordance With a verbal agreement he made with Connors 14 On February 5 Ossello reported his discharge to C. J. Martin, secretary- treasurer of the Brewers, and the latter at that time telephoned Harkins and requested a meeting relative to the discharge. Harkins refused to meet with Martin. Martin then called Harkins' attention to the arbitration clause in the Brewers' contract.'' In response to this suggestion Harkins told Martin to "keep his nose" out of the respondent's business, or he would get into trouble 13 On direct examination by his counsel the respondent testified : Q Now, your position, as I understand it, is this, Mr Harkins, The Brewers Union, through their employees, had created a hardship, or had created a situation in your plant which was not conducive to production? A., That's the idea. Q There was another union in the City of Butte claiming the same jurisdiction, and demanding that you replace these men with the Teamsters? A Yes, sir Q When this trouble arose, through the Brewers Union precipitating this affair in your warehouse, you so [sic] decided that the Teamsters Union, if they claimed jurisdiction, might just as well be in there as trouble makers? A That's the idea. Q Did you thereafter replace these men with Teamsters? A, Yes, sir, On cross-examination he testified : Q. So it was because of this trouble that you decided to go 100% Teamsters? A. That's what I say We had the swellest little organization' down there they had in the whole country, but any man that will go up and make trouble like that, he don't deserve to be aiound with a lot of gentlemen. Q. And that's the reason you decided to get rid of the Brewery Workers? A. That's the reason, and the only reason. I always treated them all alike We would have probably been going on for 10 more years if this hadn't started, because it didn't make a bit of difference which union these boys belonged to, as long as they did their work, and they did it. Q You never thought, did you, Mr Harkins, that the Teamsters contract covered your bottlers up to that time? A No, that was a separate contract. 14 IIaikins' testimony in this respect is as follows : Q Did you at that time negotiate with the Teamsters Union for your bottlers and soda pop delivery salesmen? A No, sir, nothing over was said to the Teamsters Union until after this row he pulled off in the Biewers Union. Q You mean after Ossello talked in the union meeting? A. Yes, sir Q Well, after that time? A. After that time Q Yes A Well, let's see, that was Wednesday night, I think, they had their meeting and I heard about it Thursday morning, what he'd done up there, trying to take charge of the plant and one thing or another. Our head bottler gets fined. And I called Pete Connors up and explained the whole thing to him, called him at his house, couldn't get him at the Union headquarters, but he' come over After I explained it to hum, he says, You fire him," just the minute he comes in ; which I did. Q. Thereafter did you deal with Pete Connors for your bottlers and drivers? A. Yes, sir Q. Was_a new written agreement entered into for such employees? A. No sir. Q What was it, a verbal agreement or understanding? A Verbal, agreement, yes - After we had discharged him [Ossello] why, there was only just Mr Coombe on the job. Coombe was a good man and I wanted to keep him down there, and ,I called Mr Connors up and I told hum I wanted him to let Coombe go' into the Teamsters Union . . . 11 See footnote 10, supra. J. W. HARKINS 659 and that Harkins had made up his mind as to what he was going to dole There- after no further effort was made by Martin to meet with Harkins. - On February 7, when Coombe returned from his vacation, Harkins informed him that it was necessary for all the employees to join the Teamsters; that he' did not want to lose him as he was a good man, but that it would be necessary for Coombe to leave the Brewers and join the Teamsters if he continued to work for the respondent; that Anderson had agreed to join the Teamsters and that every- thing was fixed for both of them, and that all they had to do was to appear at the Teamsters' meeting the following Thursday night and join up On Thursday, February 12, Harkins asked Coombe if he was going to join the Teamsters at their meeting that evening. Coombe replied that he was not He explained that he considered Harkins was getting himself into a "dirty mess" in ignoring his obligations under his contract with the Brewers; whereupon Harkins discharged Coombe About 2 weeks later, when Coombe called for his separation slip, the respondent told Coombe, according to the latter, that he was very foolish to depend upon the Brewery Workers "to take care of him" and "give up a lifetime job for the sake of a few members of a radical union". This uncontradicted testimony is credited. Neither Ossello nor Coombe have since been rehired or offered employ- ment. After the discharges of Ossello and Coombe, Jack and Bill Harkins con- tinued to assist Anderson in the bottling of the soda pop, and the sale and distribution of pop was handled by Benney, assisted by the other employees when occasion required. In May 1942, due to shortage of merchandise and material, the respondent's, business began to decline. In June he abandoned the distribution of beer for the duration of the war. About September 1, his business was further curtailed and he discontinued the use of the two soda pop trucks.14 At the time of the hearing the soda pop business was 70 percent of normal and the candy and to-' bacco business 50 percent of normal's Anderson, however, assisted by one other man, still spends most of his time bottling. In their spare time, the bottlers occasionally take and deliver orders as they did before the curtailment in busi- ness. Ordinarily, however, the orders and delivery of soda pop are handled by the tobacco and candy salesmen in connection with their other duties. 16 Martin 's testimony in this respect is as follows Q Just state the facts. Trial Examiner FITZPATRICK Tell what you said to Harkins. A I called Mr Harkins on the telephone, I stated to him that Mr Ossello reported to me that he had-been fired I iequested Mr IIaikins to meet with me or the grievance com- mittee of my Union to see if we couldn't come to some conclusion or' settle the matter in line with the working agreement in effect between Mr Harkins and my Union. Mr. Harkins replied that lie didn't or wouldn 't talk or discuss the matter with me . He also further stated that if I knew what was good for me I'd keep my nose out of it or I'd'get hurt. He also stated that he had his mind made up as to what his procedure would be. Q. Was any mention made of an arbitration clause under your agreement? A Yes, sir, the last paragraph in the present working agreement definitely specifies that an attempted arbitration shall be made relative to any disagreement or misinterpretation of the agreement between the employer and the union' Q. Well , was that brought up in your discussion with Mr. Harkins? A It was I pointed out to Mr Harkins that he had agreed to arbitrate any differences of opinion that came up during the life of the agreement , and he politely told me that he knew what he was doing, that the best thing I could do was to mind my own business - Harkins admitted talking to Martin and that lie had told Martin that he had made up his mind as to what he was going to do and that Martin should "keep his nose out of our business, or lie would get in trouble 17 At that time, also , Benney left the respondent's employ. 11 Hawkins testified that he expected this curtailment to continue until the war was' over, at which time his business would probably return to normal. i 660 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD B. The appropriate unit The amended complaint alleges that "the soda pop bottlers and the soda pop delivery salesmen" constitute a unit appropriate for the purposes of collective bargaining. In his answer the respondent denied the appropriateness of this unit, but at the hearing offered no evidence of what he considered an appropriate unit. In effect he conceded at the hearing that the unit claimed was the unit actually covered in his dealings with the Brewers The respondent admitted that at no time prior to February 5, 1942, had he ever negotiated with or dealt with the Teamsters as a representative of the bottlers and soda pop delivery salesman. It is found that from the time of his entrance into the soda pop busi- ness in the spring of 1940 until February 5, 1942, the respondent negotiated and dealt with the Brewers as the representative of the bottlers 19 and soda pop de- livery salesmen in his employ. This bargaining unit is substantially the same as that used in the soft drink industries in Butte.'p . It is therefore found that the soda pop bottlers and soda pop delivery salesmen employed by the respondent constitute a unit appropriate for the purposes of collective bargaining and that such unit insures to the employees of the re- spondent the full benefit of their right to self-organization and to collective bar- gaining, and otherwise effectuates the policies of the Act. C. Representation by the Brewers of a majority in the appropriate unit As heretofore found, of the four employees of the respondent within the appro- priate unit, three of them joined the Brewers when they started to work for the respondent in June 1940, or prior thereto, and continued their membership in said union until on or after February 5, 1942. This constituted a clear ma- jority. As hereinafter found, the loss of the majority after February 5, 1942, was due to the unfair labor practices of the respondent. It is found that since June 1940 and at all times thereafter the' Brewers was the duly designated representative of a majority of the employees in the appro- priate unit and that by virtue of Section 9 (a) of the Act was the exclusive representative of all the employees in that unit for the purpose of collective bargaining with the respondent in respect to rates of pay, hours of employment, and other conditions of employment. D. Cbncluslons as to the unfair labor practices - Although the respondent previously recognized and dealt with the Brewers as the exclusive representative of its employees in the appropriate unit, by virtue of the 1940 and 1941 contracts , on February 5, 1942 he refused to meet with Martin, the representative of the Brewers , as requested, to discuss the discharge of Ossello. At that time the respondent also refused to arbitrate the discharge as he was required to do under the terms of the existing contract with the Brewers. Furthermore, J W. Harkins at that time told Martin that he had made up his mind not to have any further dealings with the Brewers and advised the Brewers' representative to mind his own business . This refusal of the respondent to meet on February 5 with the representative of the majority of his employees, or to, 19 The respondent employs no other bottlers than those manufacturing soda pop. 29As heretofore found, the Brewers' form contract with the soft drink industry, which- the respondent signed , limits its terms to "bottlers and drivers " It also provides that beverages delivered from breweries shall be made by employee members of the Brewers'- Union. This last provision of the contract as never enforced in the respondent 's plant. J. - W.' HARKINS 661 recognize or to have any further dealings with such representative, clearly con- stitutes a refusal to bargain.21 The respondent contends that after February 5, 1942, he was forced by the Teamsters to abandon the Brewers and deal only with the Teamsters, if he de- sired to remain in business . The evidence is clear, however, and the undersigned finds, that the impetus for the elimination of the Brewers was the respondent's resentment of Ossello's criticism of Anderson and the respondent at the Brewers' meeting of February 4 and the selection of Ossello to succeed Anderson as shop steward. When the respondent learned of these facts he determined to get rid of the Brewers. In pursuance of such plan he enlisted the active support of the Teamsters under the pretext of complying with a conflicting and previously unenforced provision of his agreement with that organization, and discharged all employees who refused to withdraw from the Brewers and join the Teamsters. This unlawful act of the respondent did not affect the status of the Brewers as a majority representative.' While Harkins did not actually take any steps to elim- inate the Brewers until after he had talked with Connors, the Teamsters business agent, and after Connors had advised such action, it is clear that Harkins first brought the matter to Connors' attention. Furthermore, while Connors thereafter insisted that the respondent deal only with the Teamsters, he made no threat to boycott the respondent's business if lie continued to deal with the Brewers 23 Assuming, arguetido, as contended by the respondent, that after February 5 the respondent was acting in good faith and believed that the Teamsters would boy- cott the plant and close its business, if it did not comply with that union's demand and discharge all eligible employees who did not join the Teamsters, such action on the part of the respondent would still have constituted an unfair labor practice. In the Star Publishing case, where the company admitted transferring members of the Guild from their regular jobs to temporary positions, but insisted that it was necessary in order to keep its business from being disrupted, the Board said: "We realize that the respondent was placed in an unenviable position by the Teamsters ultimatum, but the violation of the Act is unmistakable " 24 The Cir- cuit Court of Appeals for the Ninth Circuit in enforcing the order of the Board in the above case said )... the Act prohibits unfair labor practices in all cases. It permits no immunity because the employer may think that the exigency of the moment required infraction of the statute." Similarly, in another case, the Board held ". . . we find that the respondent under substantial pressure from the A. C. A. discharged or refused to employ . . . because of such employees membership in the C. T. U., but were forced to do so by the strikes conducted by the A. C. A and the refusal of the seamen to sail The Act, however, in defining unfair labor practices, takes no cognizance of the pressures which may have impelled their commission." (Cases cited) 28 21 In the Matter of Wm. Tehel Bottling Co , etc ., 30 N. L R. B. 440; enf'd . National Labor Relations Boaid v. Was. Tehel Bottling Co, 129 F. ( 2d) 250 (C. C. A. 8, July 2, 1942) ; In the Matter of L Hardy Company, etc, 44 N. L R B. 1013. 22 In the Matter of lfm. Tehel Bottling Company, etc., 30 N. L. R B. 440. 23 Although the Teamsters in Butte had ii membership of around 750 as against the 55 members of the Brewers and was therefore in a much stronger position to enforce its demands , the testimony of L. R Bradley, recording secretary of,the Teamsters since 1917, is credited that he knew of no such boycott by the Teamsters. Harkins admitted that Connors made no threat of such boycott. 21 In the Matter of Star Publishing Co. and Seattle Newspaper Guild, Local No. 82, 4 N. L R. B 499, at 505. 25 National Labor Relations Board v. Star Publishing Co., 97 Fed. (2d) 465. 24 In the Matter of New York and Porto Rico Steamship Co , et al , 34 N. L. R. B. 1028; -cf. Gulf Lines, etc., 28 N . L. R B. 885. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore found that on February 5, 1942, and at all times thereafter, the respondent refused to bargain with the Brewers as the exclusive representative of his employees in the appropriate unit, and that by such refusal he has inter- fered with, restrained and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. . There is no dispute as to the facts surrounding the discharge of either Ossella on February 5, or of Coombe on February 12, 1942. The respondent discharged Ossello because the latter at a union meeting criticized the respondent's failure to live up to the terms of his contract with the Brewers This constituted a dis- criminatory discharge' Coombe was discharged because he refused to joint the Teamsters. This constituted a discriminatory discharge regardless of whether the action of the respondent was his voluntary act or brought about because of pressure by the Teamsters." i It is found that the respondent has discriminated in regard to the hire and tenure of employment of John Ossello and Arthur Phillip Coombe, thereby dis- couraging membership in a labor organization, and interfering with. restraining and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about February 5, 1942, the respondent orally agreed with the Teamsters to deal exclusively with that union as the representative of his employees in the above-found appropriate unit, although the Teamsters was not the representa- tive of a majority of his employees iii that unit. It is further found that-by said act; by the refusal to bargain with the Brewers ; by the discriminatory discharges of Ossello and Coombe ;and by urging Coombe in February 1942 to withdraw from the Brewers and join the Teamsters, and ridiculing Coombe for "giving up a life time job" for a "radical union" ; the respondent has intei fered with, re- strained and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act ' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be recommended that the respondent cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent refused to bargain collectively with the Brewers as the exclusive representative of his employees in an appropriate unit. It will therefore be recommended that the respondent, upon request, bargain col- lectively with the Brewers as the exclusive representative of his employees in the appropriate unit in respect to rates of pay, hours of employment, and other conditions of employment. It has been found that the respondent discharged Ossello and Coombe, thereby discouraging membership in the Brewers Since these discharges, the respond- ent's business has materially decreased because of inability to get material and =7 In the Matter of Sheboygan Chair Company and Furniture Workers c& Finishers, Local 133-B, etc., 33 N. L It. B. 710. 28 See footnote 24, supra. 4 J. W. HARKINS 663,, merchandise on account of the war. The sale of beer has been discontinued entirely, the sale of candy and tobacco has been reduced 50 percent, and the sale of soda pop has been reduced'30 percent. The use of the two soda-frucks has been discontinued and Benney, the other soda pop delivery salesman, has left the respondent's employ. However, Anderson continues to bottle soda pop, as- sisted by one, of the other employees. Deliveries of soda pop are made by the randy and tobacco salesmen in connection with their other work. Although the manufacture and sale of soda pop represents the smallest part of the respondent's business, pit suffered the least curtailment. It is clear and the undersigned finds that, even under the reduced operations, other employees are performing the work formerly done by Ossello and Coombe. The respondent admitted at the hearing that he would be glad to take Coombe back provided he joined the Teamsters. It will therefore be recommended that the respondent offer to Ossello and Coombe immediate reinstatement to their former or substantially equibalent positions or to any other available positions for which they are qualified, without prejudice to their seniority and other rights and privileges ; and that the respondent make whole Ossello and Coombe for any loss of pay they may have suffered by reason of their discharges, by payment to each of them of a sum of money equal to the amount which Ossello would have earned as wages from February 5, 1942, and Coombe would have earned as wages from February 12, 1942, to the date of the offer of reinstatement less his net earnings 20 during such period . - It has been found that the respondent unlawfully encouraged membership in the Teamsters. The oral agreement entered into between the respondent and the Teamsters in February 1942 embodies exclusive representation by 'the Team- sters of the bottlers and soda pop delivery salesmen, and imposes membership in the Teamsters of these employees as a condition of employment. It will be rec- ommended that the respondent cease and desist from giving effect to this or any other agreement which he may have entered into with the Teamsters concerning these employees, with respect to rates of pay, hours of employment, or other conditions of employment ; and cease and desist from recognizing the Teamsters as the representative of these employees." From the foregoing findings of fact and upon the entire record in! the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Team- sters Union, Local No. 2, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The soda pop bottlers and the soda pop delivery salesmen of the respondent at all times material herein constituted, and now constitute, 'a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The International Union of United Brewery, Flour, Cereal. and Soft Drink Workers of America, Local Union No. 104, in June 1940, was and at all times there- 21 By "net earnings" is meant earnings less expenses , such as 'for transportation, room, and board , incurred by an employee in connection with obtaining work and corking else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, etc., 8 N. L R B. 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 20 In the Matter of Rutland , Court Owners, Inc., etc., 44 N. L. R. B. 587: 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after has been the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By-refusing on February 5, 1942, and at all times thereafter to bargain col- lectively with the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, as the exclusive representative of his employees-in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of John Ossello and Albert Phillip Coombe, thereby discouraging membership in the In- ternational Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No 104, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, J. W. Harkins, doing business as Harkins Wholesale, Butte, Montana, and his successors and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, as the exclusive representative of the soda pop bottlers and soda pop delivery salesmen in the respondent's plant ; (b) Discouraging membership in the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, or any other labor organization of his employees, or encouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No. 2, or any other labor organization of his employees, by discharging any of his employees or in any other manner discriminating in regard to their hire and tenure of employment or any terms or conditions of employment ; (c) Giving effect to any agreement made with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No 2. in respect to rates. of pay, hours of employment or other conditions of employment, or recognizing the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No 2, as the representative of his soda pop bottlers and soda pop delivery salesmen ; (d) In any other manner interfering with, restraining, or coercing his em- ployees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the undersigned finds will, effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No. 104, J. W. HARKINS 665 as the exclusive bargaining representative of the employees in the appropriate unit; (b) Offer to John Ossello and Arthur Phillip Coombe immediate and full reinstatement to their former or substantially equivalent positions for which they are qualified, without prejudice to their seniority and other rights and privileges; (c) Make whole John Ossello and Arthur Phillip Coombe for any loss of pay they may have suffered by reason of the respondent's discrimination against them in regard to their hire and tenure of employment, by payment to each of them respectively of a sum of money equal to the amount which Ossello would normally have earned as wages from February 5, 1942, and Coombe would not wally have earned as wages from February 12, 1942, to the date of the offer of reinstatement less his net earnings " during that period ; (d) Withhold recognition from International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Butte Teamsters Union, Local No 2, as the representative of his soda pop bottlers and soda pop deliv- ery salesmen for the purposes of negotiating with respect to grievances, labor disputes, rates of pay, hours of employment or other conditions of employment ; (e) Post immediately in conspicuous places in and around his plant in Butte, Montana, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees stating- (1) that the respondent will not engage in the conduct from which it is recommended that he cease and desist in paragraphs 1 (a), (b), (c), and (d) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c), and (d) of these recommendations; and (3) that'the respondent's employees are free to become or remain members of International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Local Union No 104; and that the respondent will not discriminate against any employee because of membership in that labor organization ; - (f) Notify the Regional Director for the Twenty-second Region within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take 'the action aforesaid. . r As provided in Section 33 of the Rules and Regulations of the National Labor Relations Board-Series 2-as amended, effective October 14, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to 'any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further pro- vided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. J. J. FITZPATRICK, Trial Examiner. Dated : November 10, 1942. 81 See footnote 29, supra.