Wm. Tehel Bottling Co.

In the Matter of WM. TEHEL BO'T'TLING-COMPANY, A COPARTNERSHIP COMPOSED OF WM. TEHEL, IRMA HOLLOWAY, MELVINA PITLIK, AND ANNA TEHEL and ,INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS, LOCAL 238, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR and UNITED BEVERAGE WORKERS ASSOCIATION, PARTY TO THE CONTRACT - Case No. 0-17418.-Decided March 18, 19/111 Jurisdiction : soft drink and beer bottling industry Unfair Labor Practices Interference, Restraint, and Coercion: questioning employees as to their union affiliation and reasons for such affiliation. Company-Dominated Union: jparticipation by management, in formation and administration by suggesting formation and giving notice of meetings=support to': permitting meetings on company' time and property ; use of blackboard for announcement of meetings ; gifts from employer-indicia : contract entered into not a result of bona fide negotiations; provision in contract between employer and union covering membership and payment of dues in the union. Collective Bargaining: designation of majority by signed application for Imem- •bership in the union-failure to negotiate in good faith : refusal to meet with the duly designated representative of a majority of the employees ; refusal to bargain because of outstanding contract-with dominated labor organiza- tion ; entering into contract with dominated labor organization in spite of the outstanding request of a bona fide union to bargain. Remedial -Orders: disestablishment of company-dominated union; abrogation of contract; order to bargain collectively Unit Appropriate for Collective Bargaining : truck drivers, bottlers, bottle washers, warehousemen, and helpers, excluding office and clerical employees, salesmen, and supervisory employees; contentions of company- dominated union disregarded. Mr. 'H. W. Lehmann, 'for the Board. Mr. G. P. Linville, of Cedar Rapids, Iowa, and Mr. B. F. Swisher,' of Waterloo, Iowa, for the respondent. Mr. Sidney L. Davis, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed on July 23, 1940, by International Brotherhood of Teamsters, Chaufl'eurs,.Stablemeri and Helpers, Local 30 N. L. R- B. No. 63. 440 WM. TEHEL BOTTLING COMPANY 441 238, affiliated with the American Federation of Labor, herein called the Union; the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region (Min- neapolis, Minnesota), issued its complaint dated July 23, 1940, against Wm.. Tehel - Bottling ,Company, a copartnership composed of Wm. Tehel, Irma Holloway, Melvina Pitlik, and Anna Tehel, herein in- dividually and collectively 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), (2), 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 accom- panied by notices of hearing thereon were duly served upon the re- spondent, the Union, and United Beverage Workers Association, herein called the Association. With reference to the unfair labor practices, the complaint alleged in substance that all truck drivers, bottlers, bottle washers, warehouse- men, and helpers, excluding office and clerical employees, salesmen and supervisory employees, employed by the respondent at its place of business in Cedar Rapids, Iowa, constitute an appropriate unit for the purposes of collective bargaining and that on or before April 7, 1940, a majority of the employees in the aforesaid unit had designated the Union as the bargaining representative; that on or about April 8, 9, and 10, 1940, and at all times thereafter the respondent did refuse and now refuses to bargain collectively with the Union as the representa- tive of said employees. The complaint further alleged that the respondent by its officers and agents about March or April 1938 instigated the formation of the Association, and that the respondent did dominate and interfere ,with the administration of said Association, did contribute financial and other support to the Association and did advise, urge, threaten, and warn'its employees to join the Association, and did otherwise foster, promote, and encourage the formation and growth of said Association; that about April or May 1938 the respondent by its officers and agents entered into a written agreement with said Association for the pur- pose of furthering and maintaining its domination and control of said Association and for the purpose of encouraging the employees to join said Association and to refrain from joining or retaining mem- bership in the Union and since that date, the respondent has main- tained a written agreement with the Association in furtherance of such purpose; and that since on or about April 7, 1940, and thereafter, the respondent did advise, urge, threaten, and warn its employees not to become or remain members of the Union. % On or about August 1, 1940, the respondent filed with the Regional Director a motion for a montinuance, which motion was granted by 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the said Regional Director. On or about August 3, 1940, the re- spondent filed its answer to the complaint, in which it denied that it had engaged in any unfair labor practices as alleged in the complaint. Pursuant to notice, a hearing was held at Cedar Rapids, Iowa, on August 12, 13, 14, and 16, 1940, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board and the respond- ent were represented by counsel and participated in the hearing., Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made irarious rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that,no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter the respondent submitted a brief to the Trial Examiner. _ On December 3, 1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties. He found therein that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (5) of the Act and recommended that the re- spondent cease and desist therefrom and take certain specified affirma- tive action deemed necessary to effectuate the policies of the Act. Thereafter the respondent filed with the Board exceptions to the In- termediate Report and submitted a brief in support of such exceptions. The Board has considered the exceptions and brief of the respondent and, in so far as the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINas OF FACT 1. 1HE BUSINESS OF THE RESPONDENT During the calendar year 1938 and for many years prior thereto Wm. Tehel owned and operated a plant at Cedar Rapids, Iowa, and at such plant conducted a business under the name and style of Wm. Tehel Bottling Company. On January 1, 1939, Wm. TehelTentered into a partnership with Irma Holloway, Melvina Pitlik, and Anna Tehel, and transferred the aforementioned plant at Cedar Rapids, Iowa, and all of the property and assets of the,business enterprise known as Wm. Tehel Bottling Company, to such partnership. Since January 1, 1939, and up to and including the date of the hearing in this proceeding, such,partnership has owned and operated the plant and has conducted and is conducting the business previously conducted by Wm. Tehel Bottling Company. Until April 1, 1940, the respondent also owned and operated a plant in Des Moines, Iowa. WM. TEHEL BOTTLING COMPANY 443 The respondent is engaged principally in the mixing and bottling of soft drinks and in the sale and distribution of beer and soft drinks. In connection therewith it purchases syrups, flavoring extracts, sugar, carbonic gas, colorings, beer, bottles, and other materials. Pursuant to agreements with Pepsi-Cola Company of Delaware, 'Cliquot Club Company of Rhode Island, and National Set-Up-Sales Corporation of Missouri, the respondent is granted the exclusive right to sell within a given territory within the State of Iowa products of these companies under the trade names of these companies. Under the arrangements with these companies the respondent buys materials such as syrups and flavoring extracts from these companies, bottles the products at its plant at Cedar Rapids, and sells such products within the territory prescribed in the agreements. The respondent also purchases and sells beer, and mixes, bottles, and sells certain bottled beverages under its own trade names. During-the period from July 1, 1939, until June 30, 1940, the total purchases of the respondent amounted to $200,011.58, and the total sales to $337,823.43. Of the purchases, all but $8,715.15 were of ma- terials obtained from States other than the State of Iowa. All sales were made within the State of Iowa. The respondent employs approximately 17 to 28 employees to pre- pare and bottle its soft drinks and to sell and deliver its soft drinks and beer to its customers. Wm. Tehel is and has been the full-time manager of the respoident's business and guides its policies. Merl Holloway is assistant manager and Milo Spinier is foreman of the bottling department. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 238, affiliated with the American Federation of Labor, is a labor organization and admits to membership all truck drivers, bottlers, bottle washers, warehousemen, and helpers, excluding office and clerical employees, salesmen, and supervisory employees of the respondent. I - United Beverage Workers Association is an unaffiliated labor organi- zation and admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The Association; interference,, restraint, and coercion The Association was formed in the spring of 1938 at a meeting of the respondent's employees held in the plant during working hours. There were present at the meeting truck drivers, bottlers, salesmen, 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Milo Spinier, foreman of the bottling room.' The first meeting of the Association recorded in the Association's minutes was held on May 2, 1938, in the plant. At this meeting the name United Beverage Workers Association was adopted and officers were chosen as follows: Frank Navratil, a salesman, was elected president,' Earl Hasley, a salesman, secretary-treasurer, and Frank Lala, a mechanic in charge of repairing trucks,-vice president. In addition there were chosen as a grievance committee L. K. Tait, a ,salesman, Spinier, foreman of the bottling room, and William Kvetensky, a truck driver. The circumstances of the origin of the Association are in dispute. Two witnesses called by the Board testified that it stemmed from a talk given by Tehel. In the words of Drahos, one of these witnesses, Tehel on his return from a trip to Des Moines spoke to the employees assembled in the plant during working hours "and started telling us he had just got back from Des Moines, they were having a little trouble down there, labor trouble, and he said he would 'kind of hate to" see something like that happen helve, and wondered if we couldn't start a little company union of our own." Tehel denied that he made any such remark or that he was present at the organizational meeting of the Association. Other witnesses called by the respondent and who were present at this meeting corroborated Tehel's denial. However, although these witnesses were in agreement in their testimony that Tehel did not appear and make these statements, they were in-accord on little else. Some of these witnesses in' advancing a different theory to explain the origin of the Association testified that it was an out- growth of a "kitty" kept by the employees and used for flowers and gifts; others testified that it was the result of the employees' desire to secure a contract with the respondent stabilizing their employment relationships; according to Frank Navratil, the first president of the 'Association, the Association "just happen'ed." On the'basis of all this testimony, the circumstances surrounding the execution of the 1938 contract with the Association as set forth below,, and a careful examination of the minutes of the Association, we agree with the Trial Examiner and we find that the only credible ex- planation'for the origin of the Association is that it stemmed from Tehel's suggestion to the assembled employees as quoted above. The minutes of the Association show that the Association did not take over the "kitty" in the plant until some time in October 1938 about 5 months after the formation of the Association, thus clearly establishing that the "kitty" was not the origin of the Association. According to'the respondent, the contract that it executed with the Association in May,1938 was the result of genuine collective bargain- 1 Tehel testified that Spinier was foreman over the bottling room, that Spinier " directs them what to do, and he is the head man upstairs . . WM. TEHEL BOTTLING COMPANY 445 ing negotiations between Tehel and a duly appointed committee of the Association consisting of Tait, Spinier, and Kvetensky. The record, however, including the testimony of the respondent's witnesses, shows that the contract was not the result of bona fide negotiations. According to Tehel, at the time of his negotiations with the com- mittee, he did not request any proof nor did he have any direct knowl- edge as to whom or how many of the employees the committee rep- iesented. He merely "supposed that they were representing the boys working in the plant there." The contract as finally executed between the respondent and the Association was introduced into evidence at the hearing. The con- tract was for a yearly tern and provided for recognition of the Asso- ciation, that there be no cessation of work, and that all disputes be ,submitted to a board of arbitration. The contract consists of three pages. On the middle of the second page it. is dated May 2, 1938, and signed by Tehel. The bottom half of the second page and the third page contain certain further provisions regarding seniority, vaca- tions, and first aid. The document is then again signed by Tehel although not dated. It is also signed at this place,by the officers and the grievance committee of the Association. It would thus appear that at least the first two pages of the contract were negotiated on or before May 2, 1938. Yet_the first mention of the contract in the minutes of the Association was in the minutes covering a meeting' held in the middle of May 1938. These minutes recite that "The contract of which Mr. Tehel and employees have had drawn up was read to employees by Mr. Tait. It was discussed by employees and they decided they would not sign the contract until they had a definite time when overtime pay should start. The Com. received promosition [permission] to take this up with Mr. Tehel." According to the min- utes of the June meeting of the Association, the committee, which had been authorized at the May meeting to meet with T'ehel, reported back the results of its conference, including its failure to secure concessions iii overtime pay. The Association voted to authorize its officers to sign and its officers thereupon affixed their signatures. As we have indicated above, the contract was allegedly negotiated by a committee of the Association consisting of Tait, Spinier, and Kvetensky. Kvetensky's testimony is not illuminating regarding the negotiations of the 1938 contract, and the testimony of Tait and Spinier is neither mutually consistent nor does it explain the fact that although the contract was signed by Teliel on May 2, a discussion of a tentative contract was not held until the middle of May. Tait testified that at the May 2, 1938, meeting of the Association he presented a skeleton contract which was discussed by the members of the -Association; that within a day or, two thereafter the grievance, conirimittee presented a 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract to Tehel; and that after some minor changes were made at Tehel's suggestion, the contract was signed by Tehel a day or two after the committee had presented it to him. Hasley, secretary of the Association, testified that when the contract was discussed at the meet- ing held in the middle of May 1938, it had not been signed although it had previously been presented to Tehel. Spinier, the bottling-room foreman and member of the grievance committee, testified that neither he nor the grievance committee negotiated the 1938 contract. It is plain that the testimony of the respondent's witnesses regard- ing the negotiation and execution of the 1938 contract is wholly unre- liable and susceptible of but two interpretations. Accepting the testi- mony of "Spinier, the minutes of the Association must have been prepared to show a history of negotiation which in fact; did not take place. Accepting the minutes and the testimony of Tait as true, we must disregard,Spinler's testimony. Had negotiations taken place Spinier, as a management representative, sat on both sides of the con- ference table. From the foregoing testimony it is clear, and we find, that the execution of the contract did not result from bona fide nego- tiations between the Association and Tehel. Thereafter, the Association held regular monthly meetings. Notices of the meetings were posted on the bulletin board in the plant. The July meeting, the first to be held outside the plant, was held at the home of Merl Holloway, assistant manager of the respondent. The minutes record that Holloway "served refreshment at his own expense." Thereafter meetings of the Association were held at the homes of dif- ferent employees although occasional meetings were held at the plant. At least two other meetings were held at Holloway's home.'. It became a custom after each business meeting of the Association for the meeting to convert itself into a social gathering. Tehel admitted attending at least one of these gatherings; Holloway attended at least three. The minutes of the Association reveal that after its organization the chief activities of the Association were devoted to collecting and dispensing money for various purposes, including gifts to both Tehel and Holloway. In October 1938, the dues were increased to 50 cents and the Association took over the "kitty" in the plant and its functions. In October 1938, a birthday gift was purchased for Holloway and flowers were sent to Holloway's mother. In December the members of the Association together with the office employees purchased a Christmas gift for Tehel. Holloway also received a Christmas gift from the Association at this time. In December 1939, the Asso- The minutes do not record the place at which all meetings were held, but they do show that after July 1938, meetings were held at the plant on August 8, 1938, in November 1939, and April 9, 1940 , and at Holloway 's home on October 2, 1939, and April 1, 1940 WM. TEHEL BOTTLING COMPANY 447 ciation voted to accept an electric cooler from the respondent and to purchase a Christmas gift for Tehel. On April 28, 1939, a new contract was entered. into between the respondent and the Association.' This contract was substantially in, the terms of the 1938 contract. The chief new feature introduced" was the following paragraph: Alen oil temporary jobs shall attend meetings and pay regular dues but will have no vote. They will be known as associate members. Monthly dues shall be Fifty Cents ($0.50), payable each meeting. Fifty Cents ($0.50) for unexcused absence and Twenty-five cents for tardiness. In April 1940, the Union commenced a drive for members among the respondent's employees' and by April 8, 10 of the respondent's 13 truckclrivers and bottling-room employees had signed. applications for membership in the Union. On April 9, 1940, as the employees came to the plant for the day's work, they were told by Lala, then president of the Association, and Holloway, to attend a meeting of the Asso- ciation in the plant that morning before going to work. The meeting was held shortly after 7 a. in., which is the hour for the beginning of the work day. Lala told the employees that he had learned that the -Union was attempting to organize the respondent's employees, and that a vote would be taken to determine whether the employees wished to continue with the Association or join the Union. Tait then went into the respondent's office and obtained some paper which was dis- tributed to the 19 employees present including salesmen and Spinler, the foreman. After the balloting, the vote was announced as 10 to, 9 in favor of the Association. Earl Wood, one of the employees, pro- tested that the balloting should be limited to the truck drivers and the bottlers and that the salesmen and Spinier be excluded. Lala, as pres- ident of the Association, ruled that since they were all members of the Association, they were all entitled to vote. On the morning of April 10, because of the refusal of the respond- ent to confer with the representative of the Union the previous day,5 seven of the respondent's employees went on strike. That same morn- ing two representatives of the Union approached Tehel for the pur- pose of securing recognition of the Union as exclusive representative of the employees. As found below, Tehel refused to bargain collec- tively with the Union. 8 Although the contract is dated April 28, .1939, the Association' s minutes of May 1939 state: `.Suggestions of what should be in new contract was given Com. They were to pre- sent these to the Boss so as to get new contract signed as soon as possible " A repetition of the circumstances surrounding the execution of the 1938 contract is thus quite apparent. A In the spring of 1939, a representative of the Union called upon Tehel-and requested that Tehel disestablish the Association and deal with the Union. Tehel refused 5 See Section C. . 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Immediately after this conference , Tehel called into his,office all the employees who had not gone out on strike and questioned each of them as to whether he had joined the Union . Four of 'the employees at this meeting admitted, signing application cards in the Union"to which T e hel asked, "How come ?" Some of them excused their affilia-, tion with the Union by stating that . they , had been coerced and tricked into signing the cards. Tehel told them then that they had their choice of going to work or joining the pickets outside. A week later three of these four employees withdrew their applications for mem- bership in the Union . The fourth employee worked the remainder of that day , but joined the strikers on April 11. We find that the respondent, by interrogating its employees as to their union affiliation and the reasons for such affiliation , interfered with, restrained, and coerced its employees in the exercise of the rights.guaranteed in Sec- tion 7 of the Act. In about 3 weeks the strike terminated and all the striking employees returned to work. On April 30, about the time of the termination of the strike, the Association and respondent entered into another agreement for a yearly term . This contract was more specific than the others in setting wage rates and overtime provisions. According to Tehel , the fol- lowing colloquy occurred between himself and the committee of the Association prior to the signing of the 1940 contract: - They came in and wanted to know if I would sign up again; and I says, "Well, is -all the boys satisfied working under their contract' here, or do they want to go A. F. and L." "Well," he says, "they all want to sign up again ." I says, "All right. Be sure they all want to sign up, because," I says, "I don't want no i rouble around here." k B. Conclusions regarding the Association It has been found above that Tehel addressed the organizational meeting of the Association, suggested its organization and that this suggestion was responsible for the organization of the Association. Clearly such action alone on the part -of Tehel, the general manager of the respondent , constitutes domination and interference by the re- spondent with the formation and administration of the Association. Nevertheless, the record clearly demonstrates that even apart from this initial address to the employees .by 'hehel, the Association was a respondent dominated organization from its inception . It was formed at a meeting held at the respondent 's plant daring working hours. One of its prime movers was Spinier , foreman of the bottling room. For some time thereafter it continued to hold meetings at the plant, WM1 TEHEL BOTTLING COMPANY 449 and subsequently inet'on at least three occasions at the home of Hollo- way, assistant manager of the respondent. Tehel,,,although he denied that the conception of the Association stemmed front remarks made by him, testified that prior to the forma- tion of the Association he was consulted by a committee of three em- ployees, including Spinler. Subsequently Tehel either negotiated with this same committee and entered into a contract presented by it with- out any inquiry as,to whether or not the Association represented the employees, or presented to the Association gratuitously a contract recognizing it as the representative of the respondent's employees. From the testimony concerning the circumstances surrounding the execution of both the 1938 and 1939 contracts, we are convinced that Tehel and the leaders of the Association at no time engaged in bona fide collective bargaining with respect to them. The respondent's, favoritism and sponsorship of the Association was heightened upon the entrance of the Union on the scene. The re- spondent permitted the Association to hold a meeting at its plant during.w,orlciiig.hours'in order to conduct a vote among the employees as to their choice of representatives. Employees were notified of this meeting by both Holloway, assistant manager, and Spinler, foreman. Further, Spinier, the foreman, participated in this election and may well have cast the deciding vote. Tehel thereafter refused to meet with the representatives of the Union according to his own statement, because of the contract with the Association. Nevertheless, the assertion by the Union that it rep- resented a majority of the employees did not deter Tehel from enter- ing into a new contract with the Association without requiring any proof that the Association, represented a majority of the employees and with merely a caution to the committee to be sure that the men wished the Association. The-record contains other evidence of the respondent's support of the Association, financial and otherwise. These include, in addition to affording the facilities of the plant for meetings of the Association, Holloway's payment for refreshments at a meeting of the Association, the gift of an electric cooler to the Association, and the use by the Association of the respondent's blackboard for announcements of meetings. A labor organization formed and operating under such circum- stances could not operate independently of the respondent, and was incapable of functioning as 'a bona ;fide bargaining agency for the em- ployees. We find that the -respondent dominated and interfered with the formation and administrationof the Association and contributed financial and other support thereto,-and thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- 450 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD anteed in Section 7 of the Act. We further find that the agreements entered into between the respondent and the Association and the con- tractual relationship existing thereunder have been and are, a means of utilizing an employer-dominated organization to frustrate the exercise by the respondent's employees of the rights guaranteed in Section 7 of the Act. Moreover, the incorporation in, the, 1939 contract of a provision covering membership and payment of dues in the Asso- ciation connotes employer participation in the administration of a labor organization and constitutes an obstacle to the free. administra- tion of the affairs of such organization, since the provision is a. barrier to change by the employees of the internal structure of the organiza- tion. Such participation in and control by an employer of a labor organization are repugnant to the Act.' C. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all truck drivers, bottlers, bottle washers, warehousemen and` helpers, excluding office and clerical employees, salesmen, and supervisory employees, employed by the respondent at its Cedar Rapids plant,-constitute a unit appropriate for the purpose of collective bargaining. The contracts of 1938, 1939, and 1940 be- tween the Association and the respondent recognize as a bargaining unit all employees of the respondent except the-office force, the man- ager, and assistant. manager, but including Spinier, the foreman, and the salesmen. It is the policy of the Board to exclude supervisory employees from the bargaining unit where requested by the only bona fide labor or- ganization involved.' Since the Association has been found` to be an employer-dominated labor organization, its wishes may be die- garded.' Accordingly, Spinier as a foreman and supervisory employee will be excluded from the unit. Similarly, according to the policy of the Board, salesmen will be excluded from the appropriate unit, in accordance with the wishes of the only bona fide labor organization involved." O Matter of The Colorado Fuel and Iron Corporation and International Union of Mine, Mill and Smelter Workers, 22 N. L. R. B. 184. ° See Matter of Roberti Brothers , Inc. and Furniture Workers Union, Local 1561, 8 N. L. R B 925; Matter of A. Fink and Sons Co, Inc. and Amalgamated`Meat Cutters Butcher Woro 1, men of N A , Local 422, 9 N. L R. B 441 , Matter of Southern California Gas Co and Utility Workers Organizing Committee, Local No 132, 10 N. L. R B. 1123 6 Matter of the Pure Oil Company and Oil Workers International Union, Local 265, 8 N. L R B 207; Matter of Pittsburgh Plate Glass Company and Federation of Flat Glass 11 orkers of A merica, 10 N. L R. B 1111. "Matter of Louis Weinberg Associates, Inc and United Wholesale and Warehouse Em- ployees, Local No 65, 13 N. L. R. B. 66. WTV1. TEI-IEL BOTTLING COMPANY 451 We find that the truck drivers, bottlers, bottle washers, warehouse- men, and helpers, employed by the respondent gat its Cedar Rapids plant, excluding office and clerical employees, salesmen, Spinier and other supervisory employees, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the pct. 2. Repiesentation by the Union of a majority in the appropriate unit On April 8, 1940, there were 13 employees of the respondent within the appropriate unit.. Of these 13 employees, 10 had on or before April 8, 1940, signed applications for membership in the Union desig- nating the Union as their representative for the purposes of collec- tive bargaining. One employee signed an application on April 10. At the hearing, testimony was introduced to show that after the strike had been called because of the respondent's refusal to bargain collectively as found below and after Tehel's questioning of the em- ployees on April 10, three employees withdrew their designation of the Union. Under the circumstances, we find that such defections from the Union are clearly attributable to the respondent's unfair labor practices and do not affect its status as majority representative 10 In any event, even if, contrary to our finding, the defections had not been caused by the respondent's unfair labor practices, the Union still retained the designation of 8 of the 13 employees within the appropriate unit, and thus represented a clear majority. We find that on April 8, 9, and 10, 1940, and at all times thereafter the Union was the duly designated representative of a majority of the employees in the appropriate unit and that by virtue of Section 9 (a) of the Act, was the exclusive representative of all the employees in the unit for the purposes of collective bargaining. 3. The refusal to bargain On April 9, Frank Frisby, a representative of the Union, tele- phoned Tehel, introduced himself and asked to see Tehel. Frisby testified that Tehel replied that he was too busy and hung up; that he, Frisby, telephoned again in a few minutes and again asked for an appointment but that Tehel replied "I haven't got time to talk to you" and. hung up. Tehel testified that he said to Frisby "I haven't got time to talk to you today." Whatever version of the conversation is accepted, it is clear that Tehel refused to see Frisby or to indicate ION. L R. B. v. Bradford Dyeing Association, 310 U S 318 ; Continental Oil Co. v. N. L R. B., 113 F (2d) 473 (C C. A 10), cert gr. October 28, 1940; N L. R B V High- land Parks Mfg Co, 110 F. (2d) 632 440135-42-Vol 30--30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, any willingness to see him at "some future time. In the light of the events of the following day as shown below, such action by the re- spondent•in refusing to meet with the duly, designated representative., of a majority of. its employees clearly constituted a refusal to bargain and we so find. - As a result of this telephone call, seven of the respondent's employees did not go to work on April 10 and established a picket- line around the plant. Shortly after 7 a. in. on April 10, White and Frisby, rep- resentatives of the Union, entered the plant and asked to see Tehel. Frisby and White testified that as soon as they introduced themselves, Tehel said "There is the door." Tehel testified that White said "Now will you bargain with us?" and that he, Tehel, replied : "'Mr. White, I have still got a contract with my boys, I can't bargain with you until they all check out and go A: F. and L. When that contract expires, I will talk to you," and that White tlien left. Accepting Tehel's ver- sion of this conversation, the existence of it contract with an employer- dominated organization affords no justification for an employer's refusal to bargain collectively :with the duly designated representative of the majority of his employees within an appropriate unit. Finally, the respondent,-by again entering into a contract with the Association in spite of the outstanding request of the Union to bargain, again refused to bargain with the Union., We therefore find that on April 9, 10, and 30, 1940, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that the respondent thereby interfered 'with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LsfOR 1'RAC'ITCI':S,UrON COI1i iERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond= ant described in Section I above, have a close, intimate, and sub- Aantial 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 conm-terce. V. THE REIIE1)Y Having found-that the respondent-has engaged in unfair labor prac- tices, we shall order it to cease and desist therefrom and take certain "See Matter ,of The Colo?ado Fuel and Iron Cotpoaal)on and Inteinat,onal Union of Mine, Mill and Smelter lroikers, Local 22 N L 1. B 18-i, ifatte) of JTollywood Maxwell Company, a coaporation, and lute)national Ladies Garment iPorlers-Union, 24 N L R. B 645 WM. TEHEL BOTTLING COMPANY 453 affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the situation that existed prior to the commission of the unfair labor practices. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed financial and other support thereto. We further find that the effects and consequences of the respondent's domination, interfer- ence with, and support of the Association as well as the continued recognition of the Association as the bargaining representative for its employees, constitute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collec- tively through representatives of their own choosing. Because of the respondent's illegal conduct with regard to the Association, it is in- capable of serving the respondent's employees as a genuine collective bargaining agency. Moreover, the continued recognition of the Asso- ciation would be obstructive of the free exercise by the employees of the rights guaranteed to them by the Act. Accordingly, we will order the respondent to disestablish and withdraw all recognition.froni.,the....' Association as the representative of any of its employees for the pur- poses of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment 12 It has also been found that the contracts entered into between the respondent and the Association have been a means whereby the re- spondent has utilized an employer-dominated labor organization to frustrate self-organization and defeat collective bargaining by its em- ployees. Uncles these circumstances, any continuation, renewal, or _modification of the agreement would perpetuatethe conditions which have deprived employees, of the rights guaranteed to them by. the Act and wotilcl render ineffectual other portions of our remedial order. We shall, therefore, order the respondent to cease giving effect to any contracts between it and the Association, or to any modification or extension thereof. Nothing in the order, however, shall be taken to require the respondent to vary those wage, hour, and other such sub- stantive features of its relations with the employees themselves, which the respondent may have established in performance of these contracts as extended, renewed, modified, supplemented, or superseded. Having found that the respondent, on April 9, 10, and 30, 1940, and at all- times thereafter, refused to bargain collectively with the Union as the representative of the employees in the appropriate unit, 11 See N L. R. B V Newport News Shipbuilding and Dry Dock Company, 308 U. S. 24; N L B. B. v. The Falk Cos poration , 308 U S 4 ,5 3 - : N L R B v. Pennsylvania Greyhound Lines, Inc, 303 U S. 261 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall order the respondent, upon request, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit With respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters. Chauffeurs, Stablemen and Helpers, Local 238, affiliated with the American Federation of Labor, and United Beverage Workers Association are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of and contributing financial and other support to United_ Beverage Workers Association, the respondent has engaged in and is- engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The truck drivers, bottlers, bottle washers, warehousemen, and helpers, employed by the respondent at its Cedar Rapids, Iowa, plant, excluding office and clerical employees, salesmen, Spinler and other supervisory employees, at all times material herein constituted and now constitute a, unit appropriate for the purposes of collective bar- gailing, within the meaning of Section 9 (b) of the Act. 4. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 238, affiliated with the American Federation of Labor was on April 9 and 10, 1940, and at all times thereafter has, been, the exclusive representative of all the employees in such unit for the purpose of collective bargaining, within the meaning of Section 9• (a) of the Act. 5. By refusing on April 9, 10, and 30, 1940, and at all times there- after to bargain collectively with International Brotherhood of Team- sters, Chauffeurs, Stablemen and Helpers, Local 238, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the above-stated unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 ,of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) ,of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. t WAIF. TEHEL BOTTLING COMPANY 455 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Win. Tehel Bottling Company, a copartnership composed of Win. Tehel, Irnia,Holloway, Melvina Pitlik, and Anna Tehel, Cedar Rapids, Iowa, each of the copartners thereof, their officers, agents, successors, and assigns, shall: ' 1. Cease and desist from : (a) Dominating or interfering with the formation and administra- tion of United Beverage Workers Association, or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to United Beverage Workers Association or to any other labor organization of its 'employees : ' (b)- Giving effect to the contract between the respondent and United Beverage Workers Association or any modification or extension thereof or any other contract between the respondent and the said labor organization ; (c) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 238, affiliated with the American Federation of Labor, as the exclusive representative of the truck drivers, bottlers, bottle washers," ware- housemen, and helpers, employed by the respondent at its Cedar Rapids, Iowa, plant, excluding office and clerical employees, salesmen, ' - Spinler and other supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from United Beverage Workers Association as the representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor dis- putes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish United Beverage Workers Association as such representative; (b) Upon request bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 238, affiliated with the American -Federation of Labor, as the exclusive 456 DECISIONS Or NATIONAL LABOR RELATIONS BOARD representative of the truck drivers, bottlers, bottle washers, warehouse- men, and helpers , employed by the respondent at its Cedar Rapids, Iowa, plant, excluding office and clerical employees, salesmen , Spinier and other supervisory, employees, in respect to rates of pay , wages, hours of employment, and other conditions of employment; (c) Post immediately in conspicuous places throughout its place of business and maintain for a period of not less than sixty (60) con- secutive days from the date of posting, notices to its employees, stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; and that the respondent will take the affirma- tive action set forth in paragraphs 2 (a) and (b) of this Order; (d) 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.