Coca-Cola Bottling Co. of San Angelo

COCA-COLA BOTTLING COMPANY 691 4. In accord with the stipulation of the respective parties : We find appropriate for purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act, separate units composed of the fol- lowing employees, excluding in each case all office clerical employees, garage employees, parts and service personnel, porters, guards, assist- ant sales managers, sales managers, and all other supervisors as defined in the Act : Case No. 7-RRC-2504: All new and used car salesmen of Grand River Chevrolet Company employed at 5133 Grand River Avenue and 6421 W. Warren Avenue, Detroit, Michigan. Case No. 7-RC-2506: All new and used car salesmen of Ver Hoven Woodward Chevrolet, Inc., employed at 16350 Woodward Avenue, Highland Park, Michigan. Case No. 7-RC-2517: All new and used car salesmen of Dick Con- nell Chevrolet, Inc., employed at 12240 Joseph Campau and 15350 Gratiot Avenue, Detroit, Michigan. [Text of Direction of Elections omitted from publication.] [The Board dismissed the petitions in Cases Nos. 7-RC-2505 and 7-RC-2518.] MEMBERS MURDOCH and RODGERS took no part in the consideration of the above Decision, Direction of Elections, and Order. COCA-COLA BOTTLING COMPANY OF SAN ANGELO and GENERAL TEAM- STERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS, LOCAL No. 583, AFL. Case No. 16-CA-691. November 2, 1954 Decision and Order On April 27, 1954, Trial Examiner Reeves R. Hilton, issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case. The Board finds that it will not effectuate the policies of the Act to assert jurisdiction in this case, and shall, for the reasons hereinafter stated, dismiss the complaint in its entirety. 110 NLRB No. 106. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent, a Texas corporation, maintains its office and sole place of business at San Angelo, Texas. It bottles, sells, and dis- tributes a nationally advertised drink named Coca-Cola, as well as other carbonated beverages, in San Angelo and 9 counties in the sur- rounding area, all within the State of Texas. The Respondent is a party to a contract with the Coca-Cola Bottling Company 1903, a Delaware corporation, with a principal office in Dallas, Texas. This contract is consented to by the Coca-Cola Company, a Tennessee cor- poration having a principal office in Atlanta, Georgia. Thereunder, the Respondent is given the exclusive right to make and distribute bottled Coca-Cola in San Angelo and the adjoining counties in the State of Texas. All syrup used in the manufacture of bottled Coca-Cola by the Re- spondent is manufactured by the Coca-Cola Company in Dallas, Texas. The Respondent's purchases of such syrup during the year ending December 31, 1953, were valued at approximately $116,929. During the same period of time the Respondent purchased other ma- terials, such as bottles, crowns, cases, and chemicals, valued at approxi- mately $139,888, of which purchases in the amount of $70,087, were purchased from points outside the State of Texas. During the same period, the Respondent sold all of its bottled drinks within the State of Texas. All of the Respondent's stock is owned by members of one family, and no officer or director of Respondent is an officer or director of the Coca-Cola Company or the Coca-Cola Bottling Company 1903. All of the Respondent's directors are residents of the State of Texas, and Respondent's officers and directors determine and control all of its policies, including purchases, sale, and price of its product in every respect not specifically provided for in the contract above mentioned. It appears from the foregoing that the facts in the instant case, in- sofar as is pertinent to the assertion of jurisdiction, are essentially no different from those of automobile franchise dealers. We, therefore, find, as we did in the Wilson-Oldsmobile case,' just issued, that the existence of a franchise agreement is insufficient to warrant a finding that the Respondent's operations have such an impact on interstate commerce as to justify the assertion of jurisdiction by the Board. As no other basis exists under the Board's jurisdictional standard for as- serting jurisdiction, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER MURDOCK, dissenting : In my dissenting opinion in Breeding Transfer Company,' I set forth my basic objections to the new jurisdictional standards recently 1Wrollsam T. Wilson and Mabel J. Wslson, a partnership d/b/a Wilson-Oldsmobtile. 110 NLRB 534. 2 110 NLRB 493. COCA-COLA BOTTLING COMPANY 693 adopted by a majority of the Board. In my separate opinion in Wil- son-Oldsmobile,3 I made further clear the specific legal and policy con- siderations which militate against the refusal of the Board, under these new standards, to assert jurisdiction over franchised retail deal- ers which are integral parts of a nationwide enterprise. I deem it ap- propriate, inasmuch as the discussion in the Wilson case was primarily concerned with franchised automobile dealers, to note the effect of that rule on other franchise situations. The Respondent is primarily concerned with the bottling and dis- tribution of a product called Coca-Cola. This product, a carbonated beverage, is nationally advertised and is distributed and sold through- out the United States as well as abroad. The Coca-Cola Company, which controls the formula for the beverage and owns the registered trademark, does not itself engage directly in the sale and distribution of the product to the eventual consumer. Instead, it utilizes the serv- ices of companies such as The Coca-Cola Bottling Company 1903 which acts as its exclusive and sole customer and licensee for all or parts of the States of Texas, Oklahoma, New Mexico, Kansas, and Arkansas. The 1903 company, in turn, has contracts with approximately 108 bottlers such as the Respondent; each contract consented to by The Coca-Cola Company. Under these contracts, the bottling, distribu- tion, and sale of the beverage is performed in a specified area by the bottler who purchases the syrup from 1903. The product bottled and distributed by the Respondent is thus identical in flavor, color, con- tent, and package to that bottled and distributed throughout the coun- try by similar employers. It is not merchandized as a product of this Respondent, but as a nationally advertised drink available in all parts of the country. It is clear, therefore, that the Respondent is intimately connected with a nationwide system of production, distribution, advertisement, and sale of a nationally known product. Without the bottlers, such as the Respondent, operating under uniform contracts and selling a uniform product from a basic material furnished by 1903, there would be no distribution and sale of Coca-Cola. The operations of the Re- spondent are thus integrated with many others into a vast network whose cumulative effect upon commerce is both national in scope and tremendous in volume. As the Board has found on numerous occasions involving other bottlers in this system and others, the Respondent clearly operates "as an integral part of a multistate system" devoted to the manufacture and distribution of a single product.' These find- 3 110 NLRB No. 74. ' See Coca-Cola Bottling Company of Pottsville , 97 NLRB 503 ; Coca-Cola Bottling Company of Stockton, 102 NLRB 586; Coca-Cola Bottlmng Company of Asheville, N. C., 97 NLRB 151. See also Bireley's Bottlnng Company, 98 NLRB 447; Squirt Distributing Company, 92 NLRB 1667; American Bottling Company, 99 NLRB 345 ; NebS Bottling Co, Inc, 101 NLRB 68. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings are well known to my colleagues and have been consistently sus- tained by the courts.' The existence of these factors is in no way diminished or altered by a refusal to take them into consideration. Accordingly, I must dissent from the refusal of the Board majority to assert jurisdiction over this Respondent and over other franchised dealers who operate as integral parts of national systems of produc- tion, distribution, and sale. MEMBER PETERSON took no part in the consideration of the above Decision and Order. 6 See Coca-Cola Company of St. Louis, 95 NLRB 284, enfd. 195 F. 2d 955 (C. A. 8) ; Greensboro Coca -Cola Botting Co, 82 NLRB 543, enfd. 180 F. 2d 840 (C. A. 4) ; Amer- can Bottling Company, 99 NLRB 315, enfd . 205 F. 2d 421 (C. A. 5) ; Seven Up Bottling Company of Miami, Inc., 92 NLRB 1622 , enfd. 344 U. S. 344. Intermediate Report STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in San Angelo, Texas, from February 2 to 5, 1954, and at San Antonio, Texas, on February 19, 1954, pursuant to due notice to all parties. The complaint, issued on December 16, 1953, by the General Counsel of the National Labor Relations Board,' based on charges, as amended, duly filed and served, alleges that Coca-Cola Bottling Com- pany of San Angelo, Texas, herein called the Respondent or the Company, has engaged in certain unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act. The answer admits certain allegations of the complaint but denies the commission of any unfair labor practices. All the parties were represented at the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. Thereafter counsel for each of the parties filed briefs which have been considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS The parties stipulated that the Respondent, a Texas corporation, maintains its office and sole place of business at San Angelo, Texas, where it bottles, sells, and distributes a nationally advertised drink named Coca-Cola, as well as other carbonated bever- ages, in San Angelo, and nine counties in the surrounding area. The Respondent is party to a contract with The Coca-Cola Bottling Company 1903 (herein called 1903), a Delaware corporation having its principal office at Dallas, Texas, which contract is consented to by The Coca-Cola Company, a Tennessee corporation, hav- ing its principal office at Atlanta, Georgia, which contract gives the Respondent the exclusive right to make and distribute bottled Coca-Cola in the above-named area. At the hearing counsel stipulated to the receipt in evidence of an agreement be- tween 1903 and The Coca-Cola Company, which was in force and effect at all times material herein. This lengthy agreement recites many transfers, assignments, and conveyances of certain bottling rights and interests by and between various individuals and corporations, as well as the recognition of various bottlers' contracts made by 1903 or its predecessor. The agreement provides, inter alia, that The Coca-Cola Company selects 1903 as its sole and exclusive customer and licensee to bottle Coca- Cola syrup manufactured for bottling purposes in Texas and parts of Oklahoma, New Mexico, Kansas, and Arkansas. 1 The General Counsel and the staff attorney appearing for him at the hearing are referred to as the General Counsel, and the National Labor Relations Board as the Board. COCA-COLA BOTTLING COMPANY 695 Malcolm M. Sims, general manager of 1903, stated the company has approxi- mately 108 contracts with bottlers throughout the above territory. All syrup used in the manufacture of bottled Coca-Cola by the Respondent is manufactured by The Coca-Cola Company in Dallas, which is ordered through and shipped by 1903 to the Respondent. During the calendar year 1953, the Respond- ent purchased syrup valued at approximately $116,929, while purchases of other materials such as bottles, crowns, cases, and chemicals amounted to about $139,888, of which amount approximately $70,087 represented purchases from places outside the State of Texas. All the Respondent's sales were made within the State of Texas. All the stock in the Respondent corporation is owned by the members of one family, who are officers and directors thereof, namely, Mrs. Minerva Sangar, presi- dent, Mrs. Josephine S. Wolslager, daughter and vice president, and James W. Wolslager, son-in-law and secretary-treasurer. None of these individuals hold any office in The Coca-Cola Company or 1903. The Respondent's officers and directors determine and control all of its policies, including purchases, sales, and the price of its product in every respect not specifically provided for in its contract with 1903. Counsel for the Respondent contend that jurisdiction should not be asserted be- cause the amount of the Respondent's out-of-State purchases does not meet the minimum policy requirement as heretofore announced by the Board, nor is the doctrine of "integral part of an interstate enterprise" applicable in this case. The Board, with the approval of the courts, has uniformly asserted jurisdiction over companies engaged in identical or substantially similar operations as those conducted by the Respondent .2 Accordingly, the Trial Examiner finds the Respondent is engaged in commerce as defined in the Act. II. THE LABOR ORGANIZATION INVOLVED General Teamsters, Chauffeurs, Warehousemen & Helpers, Local No. 583, AFL, herein called the Union , is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement In brief, the Company conducts its business through its production and sales departments with a clerical staff to handle administrative and bookkeeping matters. At all times material herein, James W. Wolslager was, and is, manager in complete control of all operations. Barton G. Edminston was and is plant superintendent in charge of the production department where the syrup is processed and the product bottled. Included among the employees under his supervision were Jack Organ, Cesar Garza, and Victor Garza. Luke Wilson was and is sales manager, while Max Hagelstein was and is route supervisor, Otto Jost, assistant route supervisor, and Herman Hagelstein in charge of advertising matters. Wilson also had 10 driver-salesmen in his department whose duties consisted principally of the sale and delivery of bottled Coca-Cola to customers on his route, the loading and unloading of his truck, and maintaining a daily record of his sales. The following men were employed in this capacity: Bobby O. Gilliam, J. D. Nobles, Arthur L. Perry, A. L. Pippen, Troy Stanford, W. E. Bracket, Robert M. Cox, Adolph Chessick, Ray Mason, and Curtis Towbridge. All these employees were paid on a straight commission basis, except Chessick. The General Counsel contends that Gilliam, Nobles, and Perry were discrimina- torily discharged on October 21, 1953, that Edminston interfered with the rights of the employees by unlawfully threatening and interrogating certain individuals, that a strike ensued as a result of this conduct, and that the Company has refused to reinstate the striking employees, comprising the three dischargees and Cesar Garza and Organ. The Company asserts it had no knowledge of any union activities at the plant, that the employees were laid off for business reasons and that it has 2 See Coca-Cola Company of Pottsville, 97 NLRB 503, 504; Coca-Cola Company of .St. Louis, 95 NLRB 284, 291, enfd. 195 F. 2d 955 (C A. 8) ; Greensboro Coca-Cola Bottling Company, 82 NLRB 543, 549 enfd. 180 F. 2d 840 (C. A. 4) ; American Bottling Company, 99 NLRB 345, 358-360, enfd 205 F. 2d 421 (C. A. 5) ; Brewery and Beverage Drivers and Workers, Local No. 67, etc. (Washington Coca-Cola Bottling Works, Inc.), 107 NLRB 299. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to reemploy the strikers because it has had no vacancies for them at any time subsequent to the date of the discharges or the strike. B. Organizational activities; alleged knowledge thereof and acts of interference on part of the Company Gilliam testified that about the middle of September 1953 some of the employees requested him to contact a union representative so he made arrangements to discuss the matter with J. M. Waltrip, business representative for the Union. Waltrip visited Gilliam at his home, he fixed the date as about October 15, and after outlining organization to Gilliam arrangements were made to hold a meeting of the employees at the Labor Temple on Saturday, October 17. On the latter date, Gilliam, Nobles, Perry, Bracket, Stanford, and Organ attended the meeting at which union member- ship application cards were distributed. The record discloses that all of the above employees, except Bracket and Organ, signed cards that evening. Organ and Cesar Garza signed cards on October 19. Gilliam further stated that on October 16, he told Edminston that in the event he contacted some of "your boys and they come to you, how about not running to the front office with it?" Edminston replied that he was not against the Union but since he was a supervisor he could not join. Again, on October 20, Gilliam said that Edminston approached him at the loading dock and asked if he had seen Robert Mack. Mack had preceded Edminston as production manager and at that time was manager of -another Coca-Cola plant at Pampa, Texas. Gilliam said he had not seen Mack, whereupon Edminston related that Mack had informed him some of the driver -salesmen were forming a union. Edminston inquired where he received his information and Mack said some uniden- tified salesman, seemingly not connected with the Company, had told him. Perry and Nobles testified substantially the same as Gilliam with respect to organization and the meeting of October 17. Organ, who had worked off and on for a period of about 12 years, stated that he and Victor Garza rode to and from work in Edminston's pickup truck and on one such occasion, about October 14, Edminston remarked he had heard the employees were forming a union. Organ asked "What boys? " and Edminston answered, "The boys." Organ asked the names of the employees interested in the movement but Edminston gave no indication as to who they might be. Edminston commented that he had nothing against unions and that sooner or later Wolslager might go along with a union. Organ expressed some doubt on this point. Stanford related that he attended the meeting on October 17 and signed a mem- bership application card. He stated that early the following week Edminston remarked he had heard the boys were forming a union and Stanford replied he knew nothing about it. Edminston denied having any conversations concerning organization with Gilliam about October 16 and 20, as set forth above. He also denied Stanford's testimony and stated that around the first part of October Stanford, in discussing some union he had belonged to many years previously, asked Edminston's opinion of unions. Edminston said he knew nothing about them. Edminston admitted he regularly drove Organ and Victor Garza to and from work but denied he ever discussed the subject of unions on any of these trips. Victor Garza testified he rode regularly with Edminston and Organ but could not remember any mention of unions during these trips, although Organ and Edminston could have mentioned the topic. C. The discharges Wilson stated that in 1952 the area suffered a severe drouth which affected busi- ness generally, although sales for the Company were higher in this period than in either of the 2 preceding years. Wolslager testified that the drouth ended in March 1953, and in anticipation of more favorable economic conditions, decided to add two new soft drink lines, "Kist" and "Life," to its principal product. He also decided to promote Max Hagelstein from driver-salesman to supervisor in order that he might devote full time to soliciting business. The program was not too successful, sales continued to drop below the 1952 level, and Wilson said they were off 7 percent, so Wolslager, after considering the situation came to the conclusion that some reor- COCA-COLA BOTTLING COMPANY 697 ganization of the Company's operations was necessary.3 In the early part of October he mentioned the subject to the board of directors and thereafter, on October 17, he submitted a reorganization plan to the board, which it approved and authorized him to take immediate steps to install the same. The plan called for a change from a summer to a winter schedule on 4 of the routes, with the elimination of 3 driver-salesmen, as follows: Country route 1: This route, which was operated by Perry, embraced Eldorado, Christoval, Eden, and about six other towns, and on the summer schedule required 6 days per week to service. By transferring Eldorado and Christoval to another route and by servicing the other towns but once a week, or every other week, the driver- salesman would be available in the plant 3 days 1 week and 4 days the next week. Country route 2: This route, which was operated by Nobles, included Robert Lee, Bronte, Silver, Sterling, and places north of the city and on summer schedule required 6 days per week to service. By eliminating certain biweekly runs and making one run every other week, the driver-salesman would be available at the plant 2 days 1 week and 1 day the next week. Southwest city route: This route operated by Mason was to be eliminated and the stops distributed among other city routes. Goodfellow Air Base: Chessick was on this run which was reduced from 5 to 3 days per week. The Board made no recommendations concerning the particular employees to be laid off, so on Sunday, October 18, Wolslager and Wilson met at the former's home to determine which of the driver-salesmen would be retained. This was the first occasion Wolslager had to lay off employees for business reasons, although he had discharged 1 or 2 employees for cause. Accordingly, Wolslager said they went over the list of the 10 driver-salesmen and considered each on the basis of his "over-all ability," length of service, "everything pertaining to work at the plant," sales, ability to get along with customers, handling of equipment, cleanliness, and attitude. Wilson stated he was personally acquainted with the men but there was no discussion on any individual. However, he suggested Gilliam, Nobles, and Perry be laid off and he and Wolslager were in agreement on these individuals. Wolslager stated that Gilliam, the second oldest driver-salesman in point of service, was selected for separation because of his general attitude towards customers and supervisors at the plant. In respect to his conduct at the plant Wolslager cited a few instances occurring in 1953, such as Gilliam's apparent concern over Wilson selling a cooler to one of his customers and his telling Wilson he would do his own selling and to stay off his route, another time he "just bolted out the door" in his truck when a supervisor talked to him, and again he had trouble with a checker over the loading of his truck in the course of which he used "rough language." Wolslager said Gilliam had been a fair salesman but his sales were lower in 1953 than in 1952. Wilson stated Gilliam was not cooperative and in 1952 he discharged him because Gilliam complained about Wilson selling a cooler to one of his customers. However, the sales manager at that time, J. V. Fort, told Wilson he would handle the matter and Gilliam was retained. 8 The records of the Company, which were not challenged, show as follows : Coca-Cola case sales Coca-Cola and soda case sales 1952 1953 1952 1953 Tan------------------ 32, 601 31, 794 Jan 33,955 33,362 Feb----------------- 31,899 27, 916 Feb----------------------- 33,220 29, 252 Mar----------------- 36,960 34, 552 Mar 38, 423 38,186 Apr----------------- 44, 006 36, 585 Apr----------------------- 45, 918 38,338 M-av--------------- 47,652 41,654 May---------------------- 50,198 46,127 June---------------- 49, 882 49,509 June-------------------- 52,832 55,335 July----------------- 47, 720 44, 520 Julv 50,861 49, 547 Aug---------------- 49, 066 40,133 Aug--------------------- 52, 299 44,172 Sept----------------- 40,564 38,974 Sept--------------------- 43,176 42,887 Oct----------------- 35,604 34,901 Oct----------------------- 37,661 38,284 415, 954 380, 538 438, 543 415,490 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nobles, as related by Wolslager, was chosen because of low sales and job unstability. In respect to the latter reason, Wolslager stated Nobles at one time let it be known that he was considering employment with a bus company in San Antonio and in October he had given 2 weeks' notice that he was leaving to accept employment with the Post Office Department but "changed his mind" and remained on the job. Perry was chosen, according to Wolslager, because he failed to report an accident, in September, which resulted in some damage to his truck and a school building. He also stated he was concerned about Perry's health as he suffered malaria attacks which caused him to lose weight and at times he hired a helper to assist him in his work. Other factors included Perry's resentment to constructive criticism, citing one instance when he spoke to Perry about missing a customer on his route, and low sales in 1953 as compared to 1952. In October the Company had three supervisory employees in the sales department, Max and Herman Hagelstein and Jost, all of whom were on a salary basis, and Wolslager decided to put Herman Hagelstein on one route while Max Hagelstein and Jost alternated the other route. Wolslager estimated that the reorganization plan would save the Company about $800 per month in commissions (the driver-salesmen averaged about $60 per week) and the use of equipment. On October 20, Wolslager prepared letters terminating the employment of Gilliam, Nobles, and Perry, which he gave to Wilson to deliver to the individuals when they reported for work the next morning. The letter advised the particular individual that he was being terminated immediately because low sales and high operational costs had compelled a reorganization of the business. The employee was given a check in the sum of $120, in lieu of notice, and he was instructed not to contact Wolslager regarding his termination as the board of directors had made the decision and he had no control over their action. Nobles began his employment in January 1953. He stated his sales in 1953, with the exception of approximately 4 weeks, were higher that the 1952 sales for his route and that both Wilson and Max Hagelstein complimented him on several occa- sions for his good work. In May, Nobles mentioned to Wilson that he had a chance to obtain a job as busdriver but made no reference to quitting his employment. On October 5, Nobles received an appointment in the local post office and was advised by the postmaster to report for work on October 19. On the same day Nobles informed Wilson of his appointment and told him he was leaving the Company on October 17. Max Hagelstein joined the men and when he heard Nobles was leaving, he remarked he was not going to quit, that the Company has "a good deal coming up for them pretty soon." Nobles replied he would remain with the Company and subsequently notified the postmaster of his decision. Gilliam was first employed in October 1951, and was on the east city route prac- tically the entire period of his employment. He admitted he may have lost his temper once or twice in 1953, but denied he ever damaged any property at the plant. He also stated that he was unaware of any customers being taken off his route because of complaints concerning service. Gilliam said his sales in 1953 were the same, or a little better, than in 1952. Perry, who was employed in April 1953, admitted that around the middle of Sep- tember, he backed into the school building at Christoval causing slight damage to the truck. A couple of days later he told Wilson of the accident but he could not recall what, if anything, Wilson said to him. A day or so later Wolslager asked how the truck had been damaged and he explained the accident to him. Wolslager cau- tioned him about driving in that manner. G. W. Tilerson, superintendent of the school, was called by the Company and testified the building was damaged and that Perry told him he would pay the cost of repairs or send a man to fix the same. Tilerson did not notify the Company of the accident, other than to talk to some driver-salesmen, and did nothing about the matter until Wilson called him shortly before the hearing in this case and suggested that he file a claim with the Company. Tilerson planned on filing a claim for less than $100. Perry said his health was good but he was subject to malaria attacks from time to time. Perry explained that one Saturday in early October, during a heavy storm, he stopped at Parkers Grocery store, one of his largest customers, checked the stock and told the clerk he had sufficient supply to last until his next run, the following Tuesday. Apparently, Perry skipped 4 or 5 customers that day, so when he returned to the plant Wolslager asked if he had made the Parker stop and he outlined what he had done. Wolslager became angry and told Perry to go back to the store. An argument ensued about making the trip but Perry went back that evening and serv- COCA-COLA BOTTLING COMPANY 699 iced five customers. On Monday, Wolslager called Perry and Max Hagelstein to his office and, after referring to the incident , stated he was "using negative sales- manship." The meeting concluded with Wolslager telling Perry to forget the incident and Hagelstein complimenting him on his good work. Perry said his sales in 1953, that is from April to October, except for 3 or 4 weeks, exceeded sales for the same period in he preceding year by one-fifth or one-sixth and at times the increase was as high as 250 cases per week. The Company produced certain records, which were received in evidence, showing the daily sales in 1953 for all routes, with a weekly summary thereof. The driver- salesman, as stated by Nobles posted his daily sales on these forms, in case lots, for Coca-Cola and soda water sales, and above his entry, were figures indicating the sales for same date on the same route in 1952. Nobles, testifying on the basis of these records, conceded that in the 40-week period, the week ending January 10 through October 17, 1953, his sales were lower in 27 weeks than those in 1952 and higher in but 13 weeks. Likewise Perry, during the 28-week period, April 25 to October 17, 1953, was below the 1952 sales in 9 weeks and above in 19 weeks. While Gilliam was not questioned in regard to his sales, the records reveal that for the 41-week period, January 3 to October 17, 1953, his sales were lower in 24 weeks and higher in 17 weeks, as compared to 1952. As already noted, the Company (supra, footnote 3) adduced data showing its sales declined in 1953, and, as might be expected, the foregoing records disclose a drop in the sales of all driver-salesmen. Thus, without attempting to make any comparison among the driver-salesmen, when Nobles left the southwest route the week ending March 17, the sales for this run, from that date to October 17, a 31-week period, de- clined in 20 weeks and increased in 11 weeks as compared to 1952. Mason was on this route, at least in October 1953. In the same interval Nobles operated the city (west) route and the Robert Lee-Bronte run and his decreases and increases were identical. Nevertheless, Mason was retained, although the southwest route was discontinued. D. Events subsequent to the discharges In the early morning of October 21, Wilson handed the individuals their separation notices as they reported for work at various intervals. Wilson did not engage in any discussion with the men in regard to the letters. Later that morning, about 9:30, Gilliam, Nobles, and Perry called Waltrip at Abilene and met with him later that afternoon at the Labor Temple. The group then went to the company office where Waltrip asked to see Wolslager and was advised by the office girl that he was out of town. About that time Wilson came in and Waltrip, after identifying himself, again asked for Wolslager and Wilson informed him he was in San Antonio and would probably be there for 2 or 3 days. Waltrip told Wilson he believed the three employees had been discharged because of their union activity and requested that they be reinstated; if not, the Union would put a picket line at the plant. Wilson, according to Gilliam, said he knew nothing about it. Wilson testified that Waltrip announced he was representing the three dischargees, who had joined the Union, and asked if Wilson did not know why they had been fired. Wilson said they had been laid off for economic reasons and that he knew nothing about the Union. Waltrip requested that the men be reinstated and Wilson told him he had no authority to do so. Waltrip advised Wilson to contact Wolslager and if he did not do something the Union would place a picket line at the plant. Wilson stated he did not know where to reach Wolslager but he would probably call the plant later that afternoon. Following the meeting Waltrip and the dischargees went to the Labor Temple where Waltrip telephoned Wolslager at his home but was advised he would not return until 5 o'clock that evening. The group then drove to a sign shop to obtain picket signs and as they were leaving they saw Wolslager and his wife drive past. The group followed the Wolslagers to their home and there Perry and Nobles got out of the car while Waltrip and Gilliam drove to a nearby store where Waltrip again telephoned Wolslager. This time Waltrip was told Wolslager was not at home and it was not known when he would be there. The next day Waltrip placed a call from Abilene to Wolslager at the plant and was informed that he was busy at the time and could not answer the call. He made no further efforts to reach Wolslager. The same afternoon, October 22, Gilliam, Nobles, and Perry formed a picket line at the plant and remained there until November 5. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The testimony of Cesar Garza and Organ , concerning statements by Edminston; Garza and Organ join the pickets Cesar Garza was employed about May 5, 1953, by Edminston and worked in the production department until October 23. During the period of his employment he received two wage increases . Garza stated that about 2 weeks before the strike there was "a little talk" of the Union , that he had heard of the meeting of October 17, and that on October 20 , he signed a card at Gilliam's solicitation. Garza was aware of the discharges taking place on October 21. Garza was working on October 22 with Organ , Victor Garza, and another em- ployee called "Chico when Edminston approached the group and told Garza he wanted him to help on a job in the toolroom . When they reached the toolroom Edminston, after commenting upon the presence of the pickets, remarked, "Do you know those boys lost their jobs because they joined the union ?" Garza replied, "Yes, sir, I do." Edminston then inquired if he was "mixed up" in the Union and he admitted he was and that he was "staying with it." He further inquired if Garza knew what he was doing and when Garza answered in the affirmative , Edminston told him, "There's still plenty of time for you to get out of it while you can." Garza told him, "I have one face, one word; when I give it to somebody it's theirs for good." Edminston retorted, "if this union means so much to you , if you don't want out I will have you fired." Garza said, "O.K." The conversation concluded with Edminston requesting Garza not to mention the discussion to Organ, which was satisfactory to him. The next day Garza did not report for work but joined the pickets and remained with them until November 5. Edminston denied having any such conversation with Garza . He further stated that on the above date he and Garza were working on a job inside the plant and the only conversation he had in regard to unions occurred when Garza asked "if men that signed a card would get fired " and he told him he "didn't think so." Organ stated that on October 19, he signed a union card at Gilliam's request. He further related that while riding home with Edminston and Victor Garza on the eve- ning of October 22, Edminston asked how he would like to be out on the picket line and he replied that he would go out, if called . Edminston laughed and shook his head. Organ joined the picket line the next day and performed picket duty until November 5. Edminston denied that he ever had any conversation with Organ in regard to the Union or unions. As appears above, Victor Garza said he did not recall any conversation concern- ing the Union or unions, although the subject may have been mentioned by Organ or Edminston. F. The Company's operations during the picketing Gilliam testified that after October 21 , Herman Hagelstein took over his route while Max Hagelstein and Jost replaced Nobles and Perry , respectively. Wolslager stated the winter schedule became effective on country routes 1 and 2 about November 14 and November 7, respectively , and the southeast route might have been eliminated about the same time , although he could not fix the exact date. Mason who was on the southwest route continued to work for the Company. Gil- liam related that Mason was a comparatively new employee and later took over his route. Nobles, while on the picket line, observed Victor Wilde , office manager, working in the production department and loading and unloading trucks. He also saw -Wilson and Edminston loading and unloading trucks and Don Chambers , refrigera- tion repairman , working on the production line and running a route for 2 or 3 days. Perry, on several occasions, observed Mrs. Wolslager inspecting bottles and checking trucks. The record is clear that no new employees were hired to replace the dischargees or Garza or Organ. However, some question was raised in respect to the employ- ment of Jerry Ho. Nobles referred to Ho as a new employee . Gilliam met Ho when he, Gilliam, first became employed by the Company and understood he worked for Mr. and Mrs. Sanger at their home, although he saw Ho work one afternoon at the plant. Gilliam was also aware of the fact that Ho was in the Armed Forces. Ho testified the Sangers brought him to San Angelo from Honolulu in 1950, that he lived at their home and worked one-half day, daily, at the plant after school helping to clean up and to load and unload trucks. Ho entered the Armed Forces in October 1951 and was discharged October 11, 1953. He returned too late to resume his college course, so he went to work on a full-time basis at the plant and COCA COLA. JiOTT,LING_,COMPANY 701 continued thereon until the February 1954 term, when he entered college and there- after, worked on a part-time basis. The General Counsel called as a witness, L. L. Ruttle, placement superintendent of the Texas State Employment Commission at San Angelo. In substance, Ruttle ' testified that the records indicated the Company placed an order, about October 23, for three utility warehousemen, which was turned over to the manager and subse- quently was withdrawn. Manifestly, the commission followed a policy of refusing to furnish employees where the employer was involved in a labor dispute.- G. The offers to return to work On November 5, Waltrip sent a telegram to the Company in which the strikers offered to return to work unconditionally. On the same day practically all of the striking employees contacted Wolslager, either by telephone or in person, and advised him they were ready to go back to work at any time. Wolslager informed them that business was slow, that he did not need anyone at that time, but to call him in the spring. The parties stipulated that on November 6, each of the strikers addressed a letter to the Company, which were received about November 7, offering to return to work unconditionally. The Company did not reply to any of these offers and as of the date of the hearing the strikers had not been reinstated. Both the telegram and the letters referred to the offers as continuing applications. H. Alleged acts of surveillance In support of the allegation in the complaint that the Company "has kept under surveillance the meeting places, meetings and the activities of the union," Nobles and Gilliam testified that on Sunday, October 25, while standing in front of the Labor Temple they observed Mrs. Sanger and an unidentified man drive past the hall 2, 3, or 4 times. It is sufficient to state that, assuming this to be true, the evi- dence is wholly inadequate to sustain a finding of surveillance. Concluding Findings The first question to be determined is whether the Company knew, or was charge- able with knowledge, that the employees had participated in, or were participating in, union or concerted activities at or prior to the time it decided to reorganize its opera- tions which resulted in the discharge of the three driver-salesmen. Where, as here, the Employer denies he was aware of any union activity on the part of the dischargees, the issue is resolved on the basis of the facts established by the record. The evidence plainly discloses, and the Trial Examiner finds, that Gilliam first met with Waltrip about October 15 to discuss organization of the plant and on October 17, 6 of the employees attended a union meeting, 4 of whom signed membership. application cards.4 There is nothing in the record to indicate that organization was a,topic of conversation among the workers or that the Union conducted an open campaign for members at the plant. In fact, Nobles, Perry, and Stanford did nothing more than attend the meeting and sign application cards while Gilliam solicited two employees to become members. The only direct evidence bearing upon company knowledge prior to the date of the terminations, comes from Gilliam and Organ- Thus, Gilliam declared he informed Edminston on October 16 that he might talk to some of the employees in the production department and, if he heard of his doing so, to refrain from advising the "front office" of this action. Edminston replied he had nothing against the Union but since he was a supervisor he could not become a member. Shortly thereafter, on October 20, Edminston related to Gilliam a con- versation he had had with Mack, the former production manager, the gist of it being that the driver-salesmen were organizing a union . The testimony of Organ is to the effect that on October 14, while riding home with Edminston and Victor Garza, Edminston remarked he heard the employees were organizing, that he had nothing ' Counsel for the Company questioned Waltrip at great length as to when and under what circumstances the dischargees became members of the Union, if in fact they ever did become members. While Waltrip gave different versions of what happened in this respect, he concluded by stating that, in accordance with authority delegated to him by the executive board, he administered the oath of loyalty to the dischargees on October 22. The Act does not attempt to regulate the internal affairs of unions in matters of this kind, so the Trial Examiner finds that for the purposes of this proceeding the dischargees were members of the Union. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against unions and sooner or later Wolslager might go along with a union. Edmins- ton denied engaging in any of the foregoing conversations and his testimony, insofar as Organ is concerned, receives reasonable corroboration from Victor Garza. The Trial Examiner entertains serious doubt that the scant evidence adduced by the General Counsel, even if accepted, would be sufficient to support a finding that the Company was aware of organizational activities among its employees at the time in question. In brief, Gilliam's testimony amounts to no more than a declaration to Edminston that he might talk to some of his employees and, oddly enough, Edmins- ton later reporting to Gilliam that he heard rumors of unionization from a person not even connected with the Company. Likewise, Organ's testimony is to the effect that Edminston simply remarked he heard the employees were forming a union. There is no contention whatever that Edminston attempted to elicit any information concerning the movement, or that he was antagonistic toward unions, or that he said or did anything that might be remotely construed as an act of interference with the rights guaranteed the employees under the Act. In Price Electric Corporation (107 NLRB 1474) the Board held that the selection of a union member in a large economic layoff was not discriminatory as the evidence was insufficient to warrant a finding that the employer knew of the employee's union activities even though the record revealed she had solicited and signed up 25 employees as members of the union and her activities were known to her supervisor. In line with this decision the mere fact Edminston may have been informed or had heard of organizational activities, and nothing more, would be inadequate to support a finding that the subsequent reorganization and layoff of three union members was prompted by illegal motives. Be that as it may, the Trial Examiner is of the opinion that Gilliam never made any suggestion to Edminston that he was engaging in, or about to engage in, any attempt to organize the production department employees, nor did Edminston ever indicate to either Gilliam or Organ he was cognizant of any union movement at the plant. The Trial Examiner from close observation of Gilliam is convinced that Gilliam, being the only active proponent of the Union, was somewhat impressed with his role and was seeking to be his own strongest advocate in the case. The substance of his testimony is neither convincing nor persuasive and his demeanor on the stand leads the Trial Examiner to believe he related his story in the most favorable light and in an exaggerated manner. Moreover, his testimony, apart from the Edminston phase, was flatly contradicted in several instances. Thus, Gilliam recited an occasion at the plant, some 6 to 9 months before his discharge, when Mrs. Wolslager engaged in a conversation regarding unions with Pippen, and, apparently, in the course of the discussion Mr. Wolslager stated that if any of his employees joined a union they would be automatically fired. Pippen was called as a witness and said he could not recall any such conversation. Again, Gilliam said he observed Ho working at the plant on only one occasion. On the other-hand Ho testified he was regularly employed on a part-time basis for a number of years and, after his discharge from the Armed Forces, returned to work on a full-time basis until he resumed his college studies, at which time he reverted to his earlier status. For the foregoing reasons, the Trial Examiner rejects the testimony of Gilliam and credits that of Edminston. Since Edminston's denial of Organ's testimony receives reasonable corroboration from Victor Garza the Trial Examiner finds that Edminston did not utter the remarks attributed to him by Organ. Stanford placed his conversation with Edminston some- time subsequent to the date of the Company's decision to discharge the employees, consequently it has no probative value in establishing knowledge prior to that time. It is also unusual that while the Company had a number of supervisors at the plant the evidence points only to Edminston, who had no authority over the driver- salesmen. Finally, company knowledge cannot be inferred simply by reason of the relatively small size of the plant, for the record is devoid of any evidence tending to show company officials took any interest in the personal affairs of the employees or that they had an opportunity to observe openly conducted activities. (Angwell Curtain Company, Inc. v. N. L. R. B., 192 F. 2d. 899, 903 (C. A. 7), N. L. R. B. v. Falls City Creamery Co., 207 F. 2d. 820, 828-829 (C. A. 8).) In view of all the testimony the Trial Examiner finds that the General Counsel has failed to establish by a fair preponderance of the evidence that the Company had knowledge of organizational activities at or prior to the date of the discharges. (N. L. R. B. v. West Ohio Gas Co, 172 F. 2d. 685, 688 (C. A. 6).) As a corollary to the above conclusions the Trial Examiner further finds the reor- ganization plan was not adopted by the board of directors on October 17, merely for the purpose of hindering or preventing unionization of the plant but for business reasons. It is true that the timing of this decision with respect to the union meeting and the speed with which the plan was carried out might indicate the action was COCA-COLA BOTTLING COMPANY 703 prompted by unlawful motives. However, the undisputed evidence and records of the Company affirmatively establish that its sales had dropped considerably and that the reorganization would result in substantial savings in operational costs. While it may be argued that the Company's financial condition was not as critical or urgent as contended, the Trial Examiner concludes that in adopting the plan the Company did no more than exercise a prerogative of management and the Act does not attempt to regulate the employer's control of his business under such circumstances. (Appalachian Electric Power Co. v. N. L. R. B., 93 F. 2d 985, 989 (C. A. 4), Southeastern Pipe Line Co. v. N. L. R. B., 210 F. 2d 643 (C. A. 5).) The next issue to be resolved is whether the Company used the plan as a pretext to discharge members of the Union. As already found, there is no credible evidence which would warrant the inference that the Company had prior knowledge of any organization activities or that the dischargees themselves were members of the Union or engaging in activities on its behalf. In selecting the three driver-salesmen to be laid off, Wolslager outlined many factors which he considered in making the choice while Wilson related there was no discussion of the individuals as he was well acquainted with the capabilities of all his employees. Although the testimony of Wolslager and Wilson concerning the method and manner of selecting the individuals is by no means uniform, they did agree that Gilliam, Nobles, and Perry should be terminated. Further, the reasons advanced by the Company for dismissing these persons are in line with the standards as announced by Wolslager but these standards are so broad, general, and loose they are meaningless, insofar as they afford any opportunity to evaluate the seniority, com- petency, or abilities of the various employees. The Trial Examiner has no doubt whatever that by applying these so-called guides Wolslager and Wilson could have easily justified the discharge of any or all of the driver-salesmen. The reasons advanced for selecting Gilliam, Nobles, and Perry are not too compelling or impres- sive. While their sales were lower than in 1952, total company sales likewise decreased, so they did not stand alone in this dereliction. Again, the specific instance cited to support the contention that Gilliam exhibited a poor attitude towards cus- tomers and supervisors, and that Nobles resented constructive criticism are meager and unconvincing. It is also undisputed Nobles gave 2 weeks' notice, effective October 17, that he was leaving to accept a position in the post office. According to Wolslager, Nobles decided to remain on the job and this incident was considered as indicative of unstability and a factor in choosing him for discharge. On the other hand, Nobles said he remained on the job because Max Hagelstein told him the Company had a good deal in store for him. The record does not show the terms of the deal, nor is there any indication Nobles made any inquiry of Hagelstein concerning the same. Other circumstances leading to the decision to discharge Perry were failure to report an accident and concern over his physical condition. The accident occurred about the middle of September resulting in minor damage to the truck and school property. Perry agreed to pay the property damage and reported the accident to Wilson and Wolslager within a few days. Tilerson, the school superintendent, took no steps to notify the Company or file a claim for damages until Wilson called him shortly before this hearing and he stated he intended to file his claim, for less than $100, the same day he appeared as a witness. It is the opinion of the Trial Examiner that the importance of this accident has been grossly exaggerated. Perry testified he was fully capable of performing his duties, although he suffered occasional malaria attacks as a result of his service in the Armed Forces. The Company concedes it did not consider discharging these individuals for any of the reasons set forth and they would have continued in its employ, except for the reorganization plan. Finally, it is undisputed that no new employees were hired to replace Gilliam, Nobles, or Perry. As previously stated, portions of the evidence bearing upon the methods and standards used in arriving at the decision to terminate the discharges are not too persuasive and might support the conclusion that other employees should have been released instead of the present individuals, if that was a proper function and pre- rogative of the Trial Examiner. However, it is well settled that the Act does not touch the normal exercise of the right of an employer to select or discharge his employees but is directed solely against the abuse of that right by interfering with the countervailing right of self-organization. (Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 187.) It is equally well settled that the General Counsel has the statutory duty to establish the allegations of his complaint by a fair preponderance of all the evidence. Up to this point, the affirmative evidence shows only that the dischargees became members of the Union and were discharged shortly thereafter. Moreover, there is a total absence of evidence indicating an antiunion background, hostility to organization or the commission of any acts that might tend to discourage 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unionization or interfere with the rights of the employees to self-organization. Although the circumstances herein may raise a suspicion that the Company may have been activated by unlawful motives in the adoption of the plan and the resulting terminations they are not sufficiently substantial to support a finding to that effect. (N. L. R. B. v. Citizen-News Co., 134 F. 2d 970, 974 (C. A. 9); Peoples Motor Express, Inc. v. N. L. R. B., 165 F. 2d 903, 907 (C. A. 4); Price Electric Corporation, supra.) The Trial Examiner therefore finds there is no substantial evidence to support the allegation that the Company discriminatorily selected the three employees in question for discharge. Waltrip was unsuccessful in his attempts to have the dischargees reinstated, so the next day, October 22, Gilliam, Nobles, and Perry began picketing the plant. The same day Cesar Garza testified, in substance, that Edminston told him the three men had been discharged because of their affiliation with the Union and, after interrogation in regard to his membership, threatened to have Garza fired unless he left the Union. Organ related an innocuous conversation concerning the strike with Edminston the same evening. Edminston denied making any such assertions. Garza's testimony, if believed, would conclusively prove the Company guilty of flagrant unfair labor practices. But weighing and evaluating his testimony in the light of other evidence adduced by the General Counsel, reflecting the attitude and conduct of Edminston, the only conclusion that can be reached is that Garza's charges are without foundation or merit. Thus, while Gilliam, Organ, and Stanford asserted they had conversations with Edminston on the subject of the Union or unions, not a single one of them claimed that Edminston questioned them in any manner on the topic, or said or inferred anything that could possibly be construed as interference with their right to self-organization. Indeed, the contrary is true, for both Gilliam and Organ admitted Edminston stated he was not opposed to unions. Garza's allegations therefore not only stand alone in the case but are entirely incon- sistent with and repugnant to the statements of his fellow witnesses. Certainly, it would require strained imagination to believe. that in the interval of approximately 1 week Edminston would reverse his position from one of strict neutrality to one of bitter opposition towards organization. Further, no explanation is advanced as to why Edminston chose Garza as the subject of his hostile demonstration; Garza was a rather new worker, he took no active part in attempting to organize the employees, there is nothing to indicate they were particularly friendly, and obviously their relationship was merely that of supervisor and employee. In direct contrast, Gilliam and Edminston were close friends and Organ was a daily rider with Edninston, yet there is no contention that he ever issued any warnings, either friendly or threatening, to either of them. The Trial Examiner is firmly convinced, from his observation of Garza, that he simply detailed a well-memorized story the gravamen of which was purely fictional. His testimony is therefore rejected. Garza and Organ concertedly left their employment and joined the pickets on the morning of October 23. On November 5, the Union sent a telegram offering to return the strikers unconditionally. The same day the individuals applied for re- instatement but were advised by the Company it had no vacancies at that time but to come back in the spring. The next day the individuals addressed letters to the Company requesting reinstatement, which were called continuing offers. The Com- pany did not reply to the telegram or the letters. Since Gilliam, Nobles, and Perry were discharged in a reduction-in-force program the Company could properly refuse to reinstate them for the same reason. (The Firth Carpet Company, 33 NLRB 191, 199.) When Garza and Organ concertedly left their employment in protest against the nondiscriminatory discharges they thereby engaged in an economic strike against the Company. (Max Sax d/b/a Container Manufacturing Company, 75 NLRB 1082, 1085; sustained on this point 171 F. 2d 769, 770-771 (C. A. 7); The Firth Carpet Company, supra, enfd. 129 F. 2d 633, 635-636 (C. A. 2); Seventeenth Annual Report of the National Labor Relations Board, p. 142.) Garza and Organ retained their status as striking employees until they were permanently replaced and, upon application, were entitled to reinstatement until such time, provided the Company had vacancies for them. (Max Sax, d/b/a Container Mfg. Co. v. N. L. R. B., ib. at 771; Celanese Corporation of America, 95 NLRB 664, 669, 729.) The record is clear that the Company, up to the date of the hearing, had not hired any replace- ments for Garza and Organ and had no jobs available for them at the time they made application, consequently the refusal to reinstate for that reason does not constitute any unfair labor practice. In view of the foregoing circumstances the question of whether the written applications for reinstatement are of a continuing nature and the effect thereof becomes academic in this proceeding. AMERICAN CAST PRODUCTS, INC. 705 Upon the basis of the foregoing findings of fact and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of the Respondent, Coca-Cola Bottling Company of San Angelo, Texas, occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. General Teamsters , Chauffeurs, Warehousemen & Helpers, Local No. 583, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent, Coca-Cola Bottling Company of San Angelo , Texas, has not engaged in unfair labor practices within .the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] AMERICAN CAST PRODUCTS, INC. and AKRON ASSOCIATION OF THE PAT- TERN MAKERS LEAGUE, PATTERN MAKERS LEAGUE OF NORTH AMERICA, AFL, PETITIONER. Case No. 8-RC-2262. November 2,1954 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before W. R. Griesbach, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks an election in a unit composed of the Employ- er's patternmakers and patternmaker apprentices. The Employer and the Intervenor contend that an existing collective-bargaining contract covers the employees sought by the Petitioner, and is a bar to a present determination of representatives. On June 1, 1953, the Employer and the Intervenor executed a contract for a term of 1 year, which recog- nized the Intervenor as the exclusive bargaining agent for all of the Employer's employees, excluding supervisors and technical and office ' At the hearing, the petition and other formal papers were amended to show the correct name of the Employer and the Petitioner. 2 The hearing officer referred to the Board the motions of the Employer and Interna- tional Molders and Foundry Workers Union of North America , Local 440, AFL, herein called the Intervenor , to dismiss the petition on the ground that a current contract be- tween them constitutes a bar to this proceeding. For the reasons given Infra, these motions are hereby granted. 110 NLRB No. 108. 338207-55-vol. 110- f6