West Side Cooperative Creamery Association

In the Matter of WEST SIDS'. COOPERATIVE CREAMERY AssocIATloN and GENERAL DRIVERS' AND HELPERS' UNION, LOCAL #329, AFFIL- IATED WITH THE A. F. OF L. Case No. 18-C-1149.-Decided July 17, 1946 Mr. Stephen M. Reynold.,, of Minneapolis, Minn., for the Board. Mr. R. O. Sullivan, E-100t First National Bank Building, of St. Paul, Minn., for the respondent. Messrs. Ovid E. C. Moran and Nicholas 31. Seigmund, of St. Cloud, Minn., for the Union. Mr. James Zett, of counsel to the Board. DECISION AND ORDER On November 14, 1945, Trial Examiner Henry J. Kent issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that the respondent cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. No excep- tions to the Intermediate Report were thereafter filed with the Board. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report and the entire record in the case and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. ' ORDER Upon the entire record of the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, West Side Cooperative Creamery Association, Little Falls, Minnesota, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Getieral Drivers' and Helpers' Union, Local #329, affiliated with the A. F. of L., as the 69 N. L. R. B., No. 69. 546 WEST SIDE COOPERATIVE CREAMERY ASSOCIATION 547 exclusive representative of all drivers of the respondent, excluding inside plant, office, and supervisory employees employed at its Little Falls, Minnesota, plant; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist General Drivers' and Helpers' Union, Local #329, affiliated with the A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection as guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a.) Upon request, bargain collectively with General Drivers' and Helpers' Union, Local #329, affiliated with the A. F. of L., as the exclusive representative of all drivers of the respondent, excluding inside plant, office, and supervisory employees employed at its Little Falls, Minnesota plant, with respect to rates of pay, wages, hours of employment or other conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agreement ; (b) Post at its plant at Little Falls, Minnesota, copies of the notice attached to the Intermediate Report, marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Eigh- teenth Region, shall, after being duly signed by an authorized repre- sentative of the respondent, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (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 said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Eighteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. CHAIr TNIAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Strt,liei I. Reynolds, of Minneapolis, Minn., for the Board. :Ili. R. O. Sullivan, E-100(i First National Bank Building, of St. Paul, Minn., for the Respondent. Messrs. Ovid R. C. Jloraii anal l_ichola.s 1L Seigtn und, of St. Cloud, Minn., for the Union. 'This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "RECOMIDIENDATIONS OF A TRIAL EXAMINER" and substituting in lien thereof the words "A DECISION AND ORDER." 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a second amended charge duly filed on August 9, 1945, by General Drivers' and Helpers' union. Local #329, affiliated with the A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated August 9, 1945, against West Side Cooperative Creamery Associa- tion, Little Falls, Minnesota, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (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, accompanied by notices of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent : (1) From about February 12, 1945, by its officers, agents, and employees, questioned its employees concerning their union membership and activity ; warned and discouraged employees against joining the Union or engaging in union activities; warned and threatened its employees that the respondent would sell its trucks and use contract haulers to perform the work customarily done by its drivers ; and would close down the plant if the Union organized it; (2) on or about April 2, and 23, May 22, and July 3, 1945, and at all times there- after, refused to bargain collectively with the Union as the exclusive representa- tive of all employees within an appropriate unit; (3) on or about April 2, 1945, transferred one named employee from his regular employment to less desirable employment for the reason that he joined and assisted the Union. On August 21, 1945, the respondent filed its answer, denying that it is engaged in commerce within the meaning of the Act, and denying all material averments relating to the unfair labor practices alleged. Pursuant to notice, a hearing was held at Little Falls, Minnesota, on August 23 and 24, 1945, before Henry J. Kent, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by its representatives. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the hearing, counsel for the Board moved to conform the pleadings to proof in respect to formal matters not related to the fundamental issues. The motion was granted without objection. The opportunity to present oral argument before the Trial Examiner at the close of the hearing was waived by the parties. Briefs were submitted by counsel for the respondent and counsel for the Board to the Trial Examiner. On the basis of the foregoing and on the entire record, after having heard and observed the witnesses, considered all the evidence offered and received and the briefs submitted by the parties, the undersigned makes the following: FINDINGS OF FAG'r 1. THE BUSINESS OF THE RESPONDENT West Side Cooperative Creamery Association, a cooperative marketing associa- tion organized under the corporation laws of the State of Minnesota, has its principal office and place of business in Little Falls, Minnesota, where it engages in the manufacture of butter, dry milk powder, and other dairy products. The respondent purchases raw milk and cream from the neighboring farmers pur- suant to contracts with them under the terms of which each patron acquires WEST SIDE COOPERATIVE CREAMERY ASSOCIATION 549 stock in the association in addition to other payment for the milk and cream he supplies. The members, about 600 farmers, reside in the territory contiguous to Little Falls, Minnesota. During the calendar year of 1944, it produced dry milk powder valued in excess of $209,000, and for the current year its production of this product will be materially increased. Substantially all of this product is shipped on government bills of lading F. O. B., Little Falls, Minnesota, to various points outside the State of Minnesota for use by the Armed Forces of the United States Government, in accordance with an oral agreement entered into by the respondent with Armour and Company. It is found that the respondent is engaged in commerce within the meaning of the Act. notwithstanding the contrary contention urged by the respondent.' It. THE ORGANIZATION INVOLVED General Drivers' and Helpers' Union, Local #329, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondent. III. THE i'NFAIH LALOtt PAACrtCEs A. Interference, restraint, and coercion; the refusal to bargain 1. Interference, restraint, and coercion In the latter part of January or in the early part of February, 1945, some of the employees of the respondent requested the Union to help them organize. Organizers were sent to Little Falls and on February 9, 1945, Ovid E. C. Moran, the president and business agent of Local #329 of the Union, went there to preside at an organizational meeting for the respondent's employees. The meeting was attended by eight employees. All but one of the employees present were milk route drivers for the respondent and the other was a so-called inside production employee at the plant. At the close of the meeting, the seven drivers who attended it signed union application cards.' Thereafter, other organiza- tional meetings were held during February and by February 23, 1945, two ad- ditional drivers for the respondent had signed union application cards, making a total of 9 of the 12 drivers on the respondent's pay roll who joined the Union. Contemporaneously with the Union's campaign the respondent by its officials, its shareholders and supervisory employees evidenced to the employees its hositility to the Union by threatening to enter into milk hauling contracts with independent contractors to do the work customarily performed by its truck drivers, and by threatening to close the plant if the Union was successful in its organiza- tional efforts. On February 21, 1945, or within 2 weeks after the union activities commenced, a special meeting of the respondent's Board of Directors was held to discpss the ' See Santa Cruz Fruit Packing Company v. N. L. R. B ., 303 U. S. 453. The undersigned also finds without merit the respondent's contention that the Board is precluded from as- serting jurisdiction because of representation proceedings held pursuant to the Minnesota State Labor Act prior to the filing of charges with the Board . Under Section 10 (a) of the Act, the Board is granted exclusive power to prevent any person from engaging in unfair labor practices affecting interstate commerce. I In connection with its operations the respondent employs 12 truck drivers who collect the milk and cream processed in the respondents plant from the farms operated by its shareholders and patrons . The routes covered by the drivers are laid out by the respondent and the drivers make daily collections from all patrons on their respective routes. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities. At this meeting a resolution was passed to bring the matter up for discussion at the annual meeting of the stockholders on March 10, 1945' A day or two after this meeting Ernest Converse, one of the drivers for the company while working on his route, engaged in a conversation concerning the Union with Frank Kurowski at the farm of Alfred Anderson, both members of the respondent's Board of Directors. Anderson was present during the conversa- tion, but took no part in it. According to the testimony of Converse: Kurowski asked him what was causing the disturbance at the respondent's plant ; that Converse replied there had been no disturbance but some of the drivers had joined the Union; and that Kurowski then stated, the drivers "should not have done it," and, further stated that the respondent's Board of Directors had instructed Paul Christenson, the manager of the plant, to close down the plant if the Union organized it. Kurowski, on testifying, stated that : he asked Converse if the drivers had joined the Union ; Converse told him they had done so ; he then stated to Converse, "compare you boys with those soldiers out there in fox holes" ; Converse then remarked, "I warn you as a friend, don't say anything against the Union because you'll pay a $1,000 fine" ; and that the conversation then ended because he did not wish to become involved in a law suit. Kurowski denied he told Converse that Christenson had been instructed to close the plant if it was organized. Anderson was not called to testify. On all of the above, from the evidence as a whole, and also basing his conclusion from his observation of the witnesses, the undersigned accepts the version of the conversation given by Converse as substantially true and he finds that in view of Kurowski's official status with the respondent, his remarks were calculated to serve as a warning to Converse that the respondent was opposed to the Union's efforts to organize the employees, and might close the plant if the Union organized it. Employees Clarence Booth, Converse, and Tom Pientok all testified, in substance, that prior to the election Plant Manager Christenson told them that the plant would be closed if the Union organized it. Christenson, when later testifying for the respondent, did not deny making the statements attributed to him by Booth, Converse, and Pientok. Daring his cross-examination he, in substance, admitted that lie had engaged in conversations with employees concerning union activities, and said that at the time he engaged in such conversations he had reasons to believe that the plant might be closed because of the antipathy of the respondent's shareholders toward the Union. From the above and from his observation of the witnesses, the undersigned accepts the testimony of Booth, Converse, and Pientok as credible and true and finds that Christenson told them the plant would be shut down if the Union succeeded in organizing it. Converse further testified without substantial contradiction : that a day or two before an election which was held on March 20, 191:', Christenson told him if the Union won the election the respondent intended to have the milk delivered to the plant by contract haulers; that Christenson asked him if he would be interested in buying one of its trucks and enter into a contract with the respondent to haul milk on a contract basis ; and that a day or two after the election Otto Olson, the respondent's president, asked him if the drivers would be willing to buy the respondent's trucks and haul milk to the plant on a contract rate of 12 cents per hundred pounds ; and that he, Converse, then told Olson that Christen- son had previously offered Converse 17 cents a hundred pounds for hauling the 8 The stockholders at their March 1(4 meeting passed a resolution providing that the directors were not authorized to enter into any contractual relations with the Union on behalf of the respondent. WEST SIDE COOPERATIVE CREAMERY ASSOCIATION 551 milk and that the milk drivers were opposed to such an arrangement.' The above testimony of Converse is accepted by the undersigned as credible and he finds that Christenson and Olson made the statements attributed to them above by Converse. Employee Roland Heurung, who joined the Union in February and was em- ployed as an operator on a butter printing machine at the plant, testified without contradiction that, on one occasion, on or about February 16, 1945, Irene Chris- tenson, an office employee and a daughter of Plant Manager Christenson, told him that if the Union organized the plant the butter printing operation would be discontinued and Heurung would lose his job.' Heurung impressed the under- signed as a credible witness and it is found that Irene Christenson made the above remark attributed to her by Heurung. In view of the fact that she only made one such remark and that she was neither a supervisory nor a confidential employee the undersigned concludes and finds that the respondent was not re- sponsible for the above statement. 2. The refusal to bargain a. The appropriate unit; the union majority The Union contends that a unit of all drivers of the respondent, excluding inside plant, office, and supervisory employees, constitute an appropriate unit. The respondent contends in its brief, inter atia, that the drivers are agriculture laborers and therefore are not entitled to representation under the provisions of the Act. In respect to the respondent's above contention the evidence clearly shows that: the drivers are not employees of the farmers but of the respondent; the respond- ent's plant manager is solely charged with directing and supervising their work; the respondent's business is clearly industrial in its nature; and the work done by the drivers is an essential and integral part of the respondent's general business operations. Accordingly, the undersigned concludes and finds that the drivers are industrial and not agricultural workers and are therefore not exempt from the operations of the Act.' Although the record shows that in addition to the drivers, the Union initially endeavored to organize all of the inside plant production employees,7 it appears ' Christenson testified that hauling milk by contract had been a matter of general dis- cussion among the association officials for some time . There is no indication , however, that it extended beyond the discussion stage, or that it had ever been discussed with any of the drivers before February or March 1945 , after the appearance of the Union. No changes have been effected in respect to the respondent's milk hauling operations. In view of the evidence the undersigned concludes that the purported changes in operations were merely threats made in an effort to thwart successful organization by the Union. c Heurung and two other employees In the print department were discharged on March 2, 1945. Except for about 10 percent of the printed butter made at the plant, which was sold in Little Falls , all of this type of butter was purchased by Armour & Company and shipped to an Armour plant at St. Paul, Minnesota. The evidence shows that during January and February 1945 , both Armour & Company and an inspector for the United States Department of Agriculture bad complained about the lack of uniformity in the prints turned out. Because of these complaints , printing butter for Armour was discon- tinued on March 2, 1945 , and all but one of the employees in the print department were discharged . The complaint does not allege nor does the evidence show that these discharges were discriminatory. 6 In the Matter of North Whittier heights Citrus Association v. N. L. R. B., 109 F. ( 2d) 76 (C. C. A. 9), cert . denied 310 U. S. 632. 4 Including the drivers , there are from 25 to 30 non-supervisory employees on the plant pay roll. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that except for the drivers only one or two of the inside production employees at the plant evinced any interest in representation by the Union. When this became evident, the Union confined its activities to the drivers and made no further effort to organize the inside plant, or clerical workers. The drivers comprise a clearly indentifiable homogenous group whose operations, activities and interests end when the milk is delivered to the plant. No other organiza- tion is claiming to represent the drivers nor any other employees in the plant.' On February 27, 1945, the Union filed a request for investigation and certifica- tion of representatives for collective bargaining of certain employees of the respondent with the Labor Conciliator for the State of Minnesota, under the pro- visions of Section 16 of the State of Minnesota Labor Relations Act. As a re- sult of this action, a hearing was held before a Labor Conciliator for the State of Minnesota on March 7, 1945, who ordered an election, to be held on March 20, 1945, among those employees of the company who were working for it on February 15, 1945, in a unit composed of all drivers of the respondent, excluding inside plant, office, and supervisory employees. The official "Certification of Counting and Tabulation of Ballots" signed by the agent of the Division of Conciliation of the State of Minnesota who conducted the election, by an agent for the company, and by an agent for the Union shows : that the balloting was fairly conducted ; that all eligible voters were given an opportunity to cast their ballots in secret ; that 10 ballots were cast, 6 in favor of the Union and 4 against it. In its answer filed in the instant case, the respondent admits : That under the date of March 22, 1945, Leonard W. Johnson, Acting In- cumbent Labor Conciliator of the State of Minnesota, duly certified [em- phasis supplied] General Drivers & Helpers Union No. 329, A. F. of L. as the exclusive representative for collective bargaining purposes of the West Side Cooperative [Creamery Association] in the unit composed of all drivers, excluding inside, office, and supervisory employees. In view of the above admission by the respondent and the fact that the re- spondent does not question the regularity or legality of the proceedings taken under the Minnesota law, including the certification by the Acting Incumbent Labor Conciliator of the State of Minnesota, and in view of the other findings heretofore made, the undersigned finds; (a) that the certification above re- ferred to was wholly justified and correct and was based on the facts above recited; (b) that the drivers employed by respondent, excluding inside plant, office, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act; (c) that on March 20, 1945, a majority of the employees in the appropriate unit above described had designated the Union as their representative for collective bargaining purposes; (d) that by virtue of Section 9 (a) of the Act, the Union was, on March 20, 1945, and at all times material herein has continued to be the exclusive representative of all the employees in such unit' 8It is noted, however, that on some day in March 1945, according to the unrefuted testimony of Ernest Converse, which the undersigned credits and finds to be true, Harry Copa, one of the respondent's butter makers, called a meeting and attempted to organize all of the respondent' s non-supervisory employees Into an unaffiliated labor organization. The proposed organization never attained status as a labor organization. E Cf. Matter of The Standard Lime and Stone Company, 57 N. L. R. B. 227; Valley Mould Iron Corp. v. N. L. it. B., 116 F. (2d) 760; N. L. it. B. v. John Engelhorn & Sons, 134 F. (2d) 553 CC. C. A. 3) ; Botany Worsted Mills v. N. L. it. B., 133 F. (2d) 876 (C. C. A. 3), cert. denied 310 U. S. 632; Oughton v. N. L. it. B., 118 F. (2d) 486 (C. C. A. 3), cert. denied 315 U. S. 797. WEST SIDE COOPERATIVE CREAMERY ASSOCIATION 553 b. The refusal to bargain As noted above, during the early stages of the Union's campaign and before any request to bargain had been made by the Union, the respondent' s Board of Directors held a meeting on February 21, 1945, to discuss the question of union organization among the employees. Although Article VI of the respond- ent's Articles of Incorporation intrusts the management of its affairs to the Board of Directors, the said Board at its February 21 meeting voted, in effect, to include the question concerning bargaining with a union on the agenda for discussion at the respondent's annual stockholders' meeting to be held March 10, 1945. The evidence does not clearly show the nature or scope of the discussion pertaining to the union problem at either the February 21 meeting of the Directors or the March 10 stockholders' meeting. However, the minutes of the stockholders' meeting for March 10, state, inter aria, the following: Motion carried by all stockholders saying aye, that the Board of Directors of West Side Cooperative Creamery Association have no authority to sign contract with any union. This matter will be up to the stockholders and if necessary call a special meeting of the stockholders. Moran, the president of the Union, testified without contradiction as set forth below, in respect to the negotiations with the respondent concerning the efforts to negotiate an agreement." Following the certification of the Union on March 22, 1945, as the majority representative for the respondent's drivers, Moran by letter dated March 26, and received by the respondent on March 27, requested a meeting with the respondent to negotiate an agreement. The respondent made no reply." After waiting several days for a reply to his letter, Moran complained about the delay to the Labor Conciliator for the State of Minnesota, who arranged for a conciliation meeting with the respondent at the Buckman Hotel at Little Falls, on April 12, 1945. President Olson appeared on behalf of the respondent. Moran presented a prepared draft of a proposed agreement to Olson, who stated at the time that he had no authority to make any binding commitments for the respondent. The State Labor Conciliator suggested that the provisions be read and then discussed with Olson in order to enable him to explain the Union's interpretation of the provisions to the respondent's Board of Directors and stock- holders. During the discussion of the proposed wage scale, Olson stated that be thought an incentive pay plan should be established for the driver employees. Moran stated that the Union would be willing to consider such a plan and sug- gested that Olson discuss the agreement with the respondent's Board of Directors and submit counter-proposals to the Union. No counter-proposals have ever been submitted in respect to any of the provisions of the proposed agreement. On April 23, Olson requested Moran to attend a meeting with the respondent's Board of Directors.12 At this meeting the Union's proposed agreement was again " In general his testimony is corroborated by that given by Olson, the respondent's president, who was present at all meetings held in connection with bargaining negotiations. Moran's testimony is credited. 21 Thereafter, on April 2 , 1945, a special meeting of the stockholders was held. Ac- cording to the minutes of this meeting : "After discussion between the stockholders, vote was taken and due to the fact only about four employees of about 24 employees were in favor of the Union, stockholders voted not to sign a contract with the Union at this time." This contention was never communicated to the Union. 12 Converse , one of the driver employees , attended this meeting with Moran, in his capacity as a member of the Union 's negotiating committee. 554 DECISIONS OF NA 1'10L: AL LABOR RELATIONS BOARD read. None of the provisions ;were approved nor Were any conolA^i-prc,^c; <ais offered by the directo?•s, but one of them stated that if the drivers demanded wage inerenSes the respondent Would sell its trucks and ask the farmer;; to deliver their owl milk to the plant. Thereafter, the directors stated that oiily the stock- holders could cousunnnate an agreement. Moran then asked lalsoo to c;:111 a stockholders' meeting, but was told that on", could not he held until the spring planting work on the farms was over. whereupon Moran stated that the Union would insist oil continuing the uegntiations, and he and Converse left the meeting. Thereafter, the Union slid not Press the matter for 2 or 3 weeks, but waited for a counter-proposal. When none was received, the services of the State Con- ciliator was again requested and he arranged for another meeting on May 22. Olson appeared at the meeting as the reapol'dent. , sole rrpreseot>rtive, and stated that he was still without antliorlty to net, as neither the Board of Director, nor the stockholders evinced any interest in respect to the negotiations. The meet- ing closed after Olson agreed to take steps to have another stockholders' meeting Balled by June 15." .June 15 passed without Moran receiving any word from Olson concerning the :natter. Sometime after that date, Moran sought the aid of the Conciliation Service of the United States Department of Labor to bring the dispute before the National War Labor Board. The Conciliation Service advised holding another conciliation meeting. Commissioner C. R. Carlgren of the Conciliation Division, United States Department of Labor was designated to act in the matter and arranged for a meeting at Little Falls, on July 3. 1945. Moran (lid not attend the July 3 meeting but according to Olson's testimony, it was attended by United States Commissioner of Conciliation Carlgren, Nicholas Seigmund, a representative of the Union, and Olson. After Olson told the group that he lacked authority to act for the respondent and offered no suggestions in respect to further negotiations the meeting calve to a close. On or about June 9, 1945, the Union filed a charge with the Board and thereafter filed an amended charge on August 9, 1945. 3. Conclusions in respect 14) the unfair labor practices a. Interference, restraint, and coercion Upon the basis of the foregoing facts the undersigned concludes that the respondent has engaged in a coercive course of conduct designed to defeat the self-organization of its employees. Plant Manager Christenson not only told the drivers named above that the plant would be shut down if the Union succeeded in organizing it, but shortly thereafter, Christenson and respondent's president, Olson, also told Converse that the respondent would dispense with the service of its milk driver employees, sell its trucks and enter into contracts with inde- pendent contractors to haul the milk from the.farms to its plant if the drivers organized. The above threats dearly constitute interference, restraint, and coercion, within the meaning of the Act. Likewise, the reprimand administered ' by Director Kurowski, to Converse, for joining the Union, and thereby allegedly causing a disturbance at the plant, was clearly coercive. " Olson notified Moran by telegram on June 27, that the respondent' s stockholders would hold a special meeting at Little Falls, on June 28. Moran was not informed of the place of meeting, but he went to Little Falls, on the morning of June 28, expecting to attend it. He called the plant to learn where the meeting was to be held and was informed that a quorum had failed to appear, and that no meeting would be held. Olson testified that since June 28, 1945, no other meetings of the stockholders have been called to consider negotiation of an agreement with the Union. WEST SIDE COOPERATIVE CREAMERY ASSOCIATION 555 The modersianed finds that by the statements and conduct of President ^)Isou. P1.rnt Ma fia el Christenson, and Director I.nrowski, the respondent interfferod with, restrained, and coerced its employees in the exercise of the rirht.s -,miranteed in Section 7 of the Act. b. The refusal to bargain The respondent's micouipromisiug attitude toward the Union was clearly indicated by its threats to close its plant during the early stages of the organ- ii:iug rantpai gu, mad by its failure to appoint representatives empowered to negotiate e collective bargaining agreement with representatives of the Union. By not replying to the Union 's written request to bargain received by it on March 27. 1945, the respondent refused to bargain on that date . It was not until the Union sought assistance from the labor conciliator for the State of Minnesota that it agreed to meet wi'rh union representatives. Thereafter, although some of its oflicers arid director s met with representatives of the Union on April 12 , April 23, May 22, and July 3, 1945, it not only failed to itelegtite authority to negotiate an agreement to any representatives present at any of the said meetings but by direct action forbade them to do so. Such denial of authority to its representatives delegated to carry on bargaining neotiirtions , in itself, evinces an intent to evade bole /lde negotiation with the Union.` Further evidence of the respondent's efforts to delay and avoid negotiating an agreement with the Union is to be found in its refusal to submit counter- proposals to any of the provisions in the Union 's proposed agreement, during the approximately 4 months in which the Union attempted to bargain with respondent." On all the above, the undersigned finds that on or about March 27, 1945, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid appro- priate unit, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged cliscrimtinatorli transfer of Clarence Booth Booth was first hired by the respondent as a truck driver in February 1944.. He has been continuously employed as a driver since that time, except for a period of about a day and a half when lie did inside work at the plant. He covered a route designated as Route F from the time he started his employment until on or about April 2, 1945, and lives in the City of Little Falls, Minnesota. For reasons not shown in the record several of the drivers had given up their routes shortly prior to April 2, 1945, and the respondent was obliged to hire others to replace them. Harold Peterson, who lived on and operated one of the farms in the territory covered by Route F, applied for one of these jobs. At the time he made his application, he stated that he would not take a job unless he could have the Route F assignment. Plant Manager Christenson hired him and sent him out for a few days with Booth to learn the route and then assigned him to it as the regular driver. Booth was then transferred to another route and except for a period of 2 weeks when, at his own request, he worked on a shorter route, which paid $100 a month, his earnings have been $150 a month, the same 11 Cf. N. L. R. B. v. Poultr-llmen's Service Corporation, 138 F. (2d) 204 (C. C. A. 3). 16Cf. Inland Lime & Stone Co. v. N. L. R. B., 119 F. (2d) 20 (C. C. A. 7) ; Matter of Register Publishing Co., Ltd., 44 N. L. R. B. 834 ; N. L. R. B . v. E. Biglow Co., 52 N. L. R. B. 999; Court order entered on June 5, 1944 , (C. C. A. 6), enforcing 14 L. it. R. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay he received on Route F.10 Although Booth, by way of conclusionary testi- mony, stated that his work on his new route was less desirable, his testimony was not convincing to the undersigned. During the time that Peterson was learning the route, a petition was circulated among the farmer stockholders and patrons on the route requesting the respond- ent to retain Booth as the regular driver. A majority of the patrons on the route signed it and Paul Solarz, one of the respondent's stockholders, who operated a farm on the route, took it to the plant and presented it to Christenson. According to ChristensQn's undenied testimony which the undersigned accepts as true : Solarz handed him the petition and asked Christenson if Booth was a member of the Union ; Christenson replied, "I think he is, but you can call him in and find out for yourself;" Solarz then stepped outside the plant, called Booth into the plant and in Christenson's presence asked him if he belonged to the Union ; when Booth replied in the affirmative, Solarz then said "I don't want anything to do with it;" after which there was no further' discussion between Christenson and Solarz concerning the matter.17 Booth and Converse both testified that after Solarz left the plant on this occasion, Solari told Booth that Christenson had agreed to return Booth to his old route if the latter dropped out of the Union. Christenson denied having made such a statement to Solarz and claimed that under the cir- cumstances the transfer of Booth was unavoidable if the much needed services of Peterson were to be retained. The undersigned credits Christenson 19 Booth attended the first organizational meeting of the Union held on February 9, 1945. On that occasion, he and 6 other drivers present all signed union applica- tion cards. He also gave testimony for the Union at the representation hearing held before a Labor Conciliator for the State of Minnesota on March 7, 1945. The evidence as a whole, however, indicates that lie took a less active part in union activities than Converse, who was a member of the Union's negotiating com- mittee. In view of the valid business reasons stated as the grounds for Booth's transfer and the fact that Converse was not discriminated against for union activities, the evidence fails to convince the undersigned that Booth was accorded discriminatory treatment. On the basis of the foregoing the undersigned finds, although the matter is not free of doubt, that the allegations of the complaint in respect to Booth have not been sustained. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that the respondent cease and desist therefrom. He also predicates his cease and desist recommendations upon the following 16 These findings are based on the uncontradicted testimony of Christenson which the undersigned believes and accepts as true. "Booth gave no testimony in respect to this incident and Solarz was not called to testify. is Booth 's father, one of the respondent's stockholders , operated one of the farms on Route F. According to the evidence , he does not appear to have voiced any special objection to Booth's transfer. WEST SIDE COOPERATIVE CREAMERY ASSOCIATION 557 findings : The respondent's illegal conduct discloses a purpose to defeat self- organization among its employees. For example, as soon as the respondent learned of the union activities of certain employees, it sought to coerce them in the exer- cise of the rights guaranteed under the Act by warning them, in effect, that their adherence to the Union would result in loss of employment, by questioning them concerning the Union, and by making other statements with respect to the Union. As a result of this conduct it is a fair inference that the respondent was success- ful in inducing a number of employees to refrain from joining the Union. As has been found, the respondent's conduct in these respects interfered with, restrained, and coerced its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. Such con- duct violated Section 8 (1) of the Act, quite apart from the respondent's refusal to bargain with the Union. Finally, the respondent's unlawful conduct culminated in its refusal to bargain with the Union on March 27, 1945. The respondent's whole course of conduct presents a ready and effective means of destroying self- organization among its employees. Because of the respondent's unlawful con- duct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless a Board's order is coextensive with the threat. In order therefore to make effective the interdependent guarantee of Section 7, to pre- vent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, he recommends the respondent to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. He will also recommend the respondent to take certain affirmative action de- signed to effectuate the policies of the Act. Having found that the respondent has refused to bargain collectively with the Union as the exclusive representative of the milk route driver employees, he shall recommend the respondent, upon request, to bargain collectively with the Union." Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. General Drivers' and Helpers' Union, Local #329, affiliated with the Ameri- can Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All drivers of the respondent, excluding inside plant, office, and supervisory employees employed at its Little Falls, Minnesota, plant, at all times material herein have constituted a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 3. General Drivers' and Helpers' Union, Local #329, affiliated with the A. F. of L., was on March 27, 1945, and at all times thereafter has been, the exclusive representative of all employees in said unit for the purposes of collective bar- gaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on March 27, 1945, and at all times thereafter to bargain collec- tively with the General Drivers' and Helpers' Union, Local #329, affiliated with "' See Supplemental Decision in Matter of Karp Metal Products Co., Inc., 51 N. L. R. B. 621: Frank Bros. Co. v. N. L. R. R., 321 U. S. 702. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the A. F. of L., as e.:erosive representative of its employees in :ill appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of section 8 (ii) of the Act. 5. By interfering with, restraining, and coercing its employees in the exer- cise of the right<, guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor pratices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not engaged in any unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and neon the entire record in the ease, the undersigned recommends that the respondent, West Side Cooperative Creamery Association, Little Falls, Minnesota, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with General Drivers' and Helpers' Union, Local #329, affiliated with the A. F. of L., as the exclusive representative of all drivers of the respondent, excluding inside plant, office, and supervisory em- ployees employed at its Little Falls, Minnesota, plant; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist General Drivers' and Helpers' Union, Local #329, affiliated with the A. F. of L., or any other labor organization, to bargain collectively through representatives of their ,own choosing and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with General Drivers' and Helpers' Union, Local #329. affliated with the r!. F. of L., as the exclusive representative of all drivers of the respondent, excluding inside plant, office and supervisory employees employed at its Little Falls, Minnesota plant, with respect to r;ltes of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached. embody such understanding in it signed agreement; (b) Post at its plant at Little Falls, Minnesota, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Eighteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent innnediately upon receipt thereof and maintained by it for sixty (60) consecutive clays thereafter in conspicuous places, including all places where notices to employees are ens- tomarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material ; (c) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respond- ent has taken to comply herewith. It is further recommended that unless on or before tell (10) days from the (late of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing reconnnendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. WEST SIDE COOPLEATIVE CREAMIERY ASSOCIATION 559 It is also rcconrmended that the allegation, of the complaint pertaining to the cliscrimioatorv transfer of Clarence Booth be di sinIssed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board , Series 3 , as amended , effective July 12, 1944, any party or counsel for the Board may. wit bin fifteen ( 15) days from the date of the entry of the order transferring the ease to the Board , pursuant to Section :2 of Article II of said Rules and Re;ttdations , file with the Board , Rochambeau Building, Washington 25, 1). ('., an origiutil 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. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the hoard filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided 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 tell (101 days from the date of the order transferring the case to the Board. HENRY J. KENT, Trial Examiner. Dated November 14, 1945. A1'1'ENDIX A NOTICE TO ALL E-,mPl,OYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist GENERAL DRIVERS' AND HELPERS' UNION LOCAL # 329, AFFILIATED WITH THE AMERICAN FEDERA- TION OF LABOR or any other labor organization, to bargain collectively through representatives of their ov. it choosing,, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or tiny other labor organization. AVE, WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All drivers of West Side Cooperative Creamery Association, Little Falls, Minnesota, excluding inside plant, office and supervisory employees with authority to hire, promote, discharge, discipline and otherwise effect changes in the status of the employees or effectively recommend such action. SmE COOPERATIVE CRE_»mY ASSOCIATION . Employer (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "APPENDIX B" NOTICE. TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection by refusing to permit the use of the Patriotic Order Sons of America hall by our employees for the purposes of self-organization. ------------------------------ (E mployer) By ------------------------------ (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.