Associated Beer Depots, Inc.

National Labor Relations Board - Board Decisions

May 5, 1965

152 N.L.R.B. 412 (N.L.R.B. 1965)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Andy Anson , Joe Dale , and Joe Witherspoon immediate and
full reinstatement to their former positions as salesmen without prejudice to their
seniority and other rights and privileges and make each of them whole for any
loss of pay he may have suffered by reason of our discrimination against him.
WE WILL NOT refuse to bargain collectively with Local 868, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
Ind., as the exclusive representative of our employees in a unit appropriate for
the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment , or other terms and conditions of employment . The appropriate
unit is:
All new and used car salesmen employed at the Amityville plant, exclusive
of all office clerical employees , shop and parts employees , watchmen , guards,
and all supervisors , as defined by the Act.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
employees in the exercise of their rights to self-organization , to form, join, or
assist any labor organization , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from engaging in any
or all such activities , except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as authorized in Section
8(a)(3) of the Act.
All our employees are free to become , remain, or to refrain from becoming or
remaining , members of the above -named union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8 ( a) (3) of the Act, as amended.
MOLE OLDSMOBILE, INC.,
Employer.
Dated------------------- By--------------------------------------------
(Represe,itative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tions concerning this notice or compliance with its provisions.
Associated Beer Depots, Inc. and Chauffeurs, Teamsters and
Helpers "General" Union , Local 200, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 30-CA-62 (formerly 13-CA-6399). May 5,
1965
DECISION AND ORDER
On February 17, 1965, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner 's Decision and
a supporting brief, and the Charging Party filed an answering brief.
152 NLRB No. 44.
ASSOCIATED BEER DEPOTS, INC. 413
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.2
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board adopts as its Order the
Order recommended by the Trial Examiner and orders that Associated
Beer Depots, Inc., its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.
'Although at one point in his Decision the Trial Examiner states that the Union had
12 signed cards, this Is clearly an inadvertence , as at all other times he refers to 10 cards,
the correct figuie.
2 The Respondent ' s request for oral argument is hereby denied , as in our opinion, the
record , including the exceptions and briefs , adequately presents the issues and positions
of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges , duly filed, the General Counsel for the National Labor Relations
Board, for the Regional Director of Region 13 (Milwaukee, Wisconsin ), issued a
complaint on July 8, 1964, against Associated Beer Depots, Inc., herein called the
Respondent or the Company, alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and ( 5) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The
Respondent's answer denies the allegation of unlawful conduct as alleged in the
complaint.
Pursuant to notice , a hearing was held in Milwaukee, Wisconsin, on September 23
and 24, 1964, before Trial Examiner John P . von Rohr. All parties were represented
by counsel and were afforded opportunity to adduce evidence, to examine and cross-
examine witnesses , and to file briefs . Briefs have been received from the General
Counsel, the Respondent and the Charging Party and they have been carefully
considered.
Upon the entire record in this case , and from my observation of the witnesses, I
hereby make the following.
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Wisconsin corporation with its principal office and place of
business located in Milwaukee , Wisconsin , where it is engaged in the wholesale distri-
bution of beer and other beverages . During the year preceding the hearing herein,
the Respondent sold and distributed products valued in excess of $1 million . During
the same period , Respondent purchased and received goods and products valued in
excess of $50 ,000 from points and places outside the State of Wisconsin.
The Respondent concedes, and I find, that it is and has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters, and Helpers "General" Union, Local 200, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
With the complaint alleging that the Respondent violated Section 8(a)(1) and (5)
of the Act, the main issue presented in this case is whether the Respondent acted in
good faith in insisting on an election before granting recognition and bargaining. The
question here basically is one of fact, for although it is settled law that an employer
may refuse to recognize a union if he has a good-faith doubt of the Union's majority
status in an appropriate unit,1 it is also well settled that "there is no absolute right
vested in an employer to demand an election." 2 In addition, the complaint charges
Respondent with having committed independent violations of Section 8(a)(1) of
the Act, these including interrogations, a threat, and the unilateral granting of various
economic benefits, the latter also alleged to be a Section 8(a)(5) violation.
B. The facts
It is undisputed that 12 of Respondent's employees signed union authorization cards
on April 25, 1964, designating the Union as their collective-bargaining agent. While
I shall have further comment with respect to the Union's majority when discussing
the appropriate unit later in this decision, suffice it to note here that the 12 signed
cards represented a majority of Respondent's employees in the appropriate bargaining
unit.
Under date of April 27, 1964, the Union wrote the Respondent in pertinent part as
follows:
This is to notify you that a majority of your employees in the collective bar-
gaining unit described below have designated Teamsters "General" Local No.
200 as their exclusive bargaining representative. In view of such designation, we
demand recognition, for purposes of collective bargaining, as the exclusive repre-
sentative of such employees The collective bargaining unit in which we demand
recognition consists of your drivers and warehousemen
One of our representatives will call on you at your office on May 4, 1964, at
10.00 A.M. for the purpose of negotiating a collective bargaining agreement. If
such date is inconvenient for you, please notify us so that another more con-
venient date can be agreed upon. We are willing to permit a neutral person to
check our authorization cards at the time of such meeting for the purpose of
verifying our majority status.
On the same date the Union filed a representation petition in Case No 13-RC-
10099. While Joseph Berger, Respondent's president, conceded that he received the
letter and the petition, it was Berger's testimony that he left town on April 28 and
that he did not receive the Union's letter until his return on April 29 or 30 However,
a posted registry return receipt, signed by Berger, bears the date of April 28, 1964.
I accept this as the best evidence and find that the letter in fact was received on this
date .8
Frank Ranney, general organizer and secretary-treasurer of the local, testified that
Berger called him at about 9 or 9:15 a.m. on April 28. According to Ranney, Berger
stated that he had received the Union's letter and asked if he could "come over and
discuss it" with him. It was thereupon agreed, Ranney said, that Berger would come
over to the Union's office in about 15 minutes. Berger conceded that he telephoned
Ranney but claimed that this call was made on May 1. I credit the testimony of
i N L R B. v. Loren A. Decker, d/b/a Decrier Truck Lines, 296 F 2d 338, 341 (C A 8).
2 N.L.R B v. Wheeling Pipe Line, Inc, 229 F. 2d 391, 393 (CA. 8) ; Fred Snow, et at,
'd/b/a Snow & Sons, 134 NLRB 709, enfd 308 F 2d 687 (C A. 9) N.L.R B v. living
Taitel, et at d/b/a I Taitel & Son, 261 F 2d 1 (C A. 7)
3 Although the date of receipt of this letter and the date of the meeting discussed below
is not of controlling significance, I have given this matter some weight in considering
the accuracy of Berger's testimony as to other matters concerning which there is some
dispute.
ASSOCIATED BEER DEPOTS, INC. 415
Ranney as aforesaid .4 I further find that Berger appeared at the Union's office on
the morning of April 28 and that a meeting took place on this date between Berger
and Ranney.5 This meeting, which lasted approximately 30 to 45 minutes, was also
attended by Union Representative Clarence Johannes.
Ranney's version, which was substantially corroborated by Johannes, was as
follows: 6 Berger began by stating that he was aware of the fact that the Union had
held a meeting with his employees on the preceding Friday (April 25), but said that
he did not think the Union represented all or a majority of his employees. Ranney
replied that the Union did represent a majority and asked whether Berger would like
to see photostatic copies of the cards. Berger acquiesed, looked them over, and then
remarked "I guess you got them." Berger then stated that he did not feel all the
drivers should be in Local 200, that he would be willing to sign the standard over-the-
road or central states contract for over-the-road drivers, but that the city drivers
should be taken into Local 344. Giving as a reason therefor, Berger stated that he
did not think he could pay the city cartage rates as provided in the Local 200 contract
to the city drivers. Ranney replied that he would be agreeable to Berger' s signing
the over-the-road contract for the over-the-road drivers, that he knew Berger's com-
petitors were not paying the cartage rates that were applicable to truckers, but that
he would talk to the employees and bargain with him over this matter. In this latter
connection, Ranney testified that he advised Berger "we were sure that he would have
to pay more than the $2.15 an hour he was paying at that time but we could gradually
bring them up over a period of years to our standard contract and not do it all at one
time." The conversation turned to commissions, Berger stating that his city drivers
were paid a commission in addition to their hourly wage rate. Ranney said that the
Union preferred not to have commissions, but that something might be worked out.
While Ranney did not testify on, the subject, Johannes testified tb 't there also was a
discussion as to whether or not the Company's pension program should be incorpo-
rated in a contract. The conversation ended with Ranney telling Berger that he
intended to withdraw the petition for the election since Berger was in his office "bar-
gaining." Berger also said that he would hold another meeting with the employees
and let him know the results. According to Johannes, Berger stated before leaving
that "he would like to go through with the election anyway."
Berger began his testimony concerning this meeting, which was not as detailed or
concise as that of the union representatives, by testifying as follows: "The important
things that took place other than social questions was-was he talking for the Inter-
national and was this going to be handled by 344, the local union that is presently
handling beer distributors, or was this going to be 200; and his answer was, well, we
will take them in ourselves." Acknowledging that wages and other matters were
discussed, Berger testified, "they asked a lot of information from me, more than I did
of them, but there was an exchange of information." On cross-examination Berger
conceded that he asked about the Union's wage rates and that in effect he advised
the union representatives that the rates were too high.? Berger also acknowledged
that during this meeting he was afforded the opportunity to examine photostats of
the authorization cards, the authenticity of which are not in dispute. Concerning his
examination of these cards, Berger testified as follows:
I looked at them just briefly, just glanced at them. He told me he didn't have
to show them to me, which I believed he didn't, and I noticed certain people in
the cards, but I estimated there was about 7 or 8, or 8 or 9. I noted certain
employees on there that had voted against the union before, and I doubted that
in my own mind they would change their position.
4 This finding is based upon my observation of the witnesses, including the observation
made in the preceding footnote While Berger conceded initiating this call he testified
further that "he [Ranney] asked me to come over right away " However, Berger failed
to give any explanation for making this call in the first instance I do not credit the
quoted portion of Berger's testimony but rather I credit the testimony of Ranney to the
effect that it was Berger who requested the appointment. Further, I note that, as stated
in its letter, the Union did not seek a meeting with the Respondent until May 4.
5 Except for the date, there is no dispute that this meeting was held. Union Repre-
senative Thomas Helms and Clarence Johannes corroborated Ranney that Berger was in
the Union' s office on this date.
9 Berger was a business agent for the Teamsters Union from 1937 to 1939 and has
known Ranney since that time
7 Berger denied that the pension plan was discussed . , While I am inclined to credit
Johannes ' more positl a testimony to the contrary, the question as to whether there
was any discussion concerning the incorporation of the pension plan in a contract is not
in itself a controlling factor of the issue herein
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berger further testified that he told Ranney, when Ranney indicated that the Union
would withdraw the petition, that he should "not do that" and to "let the election
stand." Berger said that the meeting ended with the union representatives stating
that they could call him later.
By letter dated May 4, 1964, Berger advised the Union as follows:
It is my opinion that you do not have a majority of Associated Beer Depots, Inc.
employees in the bargaining unit you name.
Therefore, I cannot recognize your union as the bargaining agent for the
employees of this company.
The evidence reflects that Berger questioned a number of his employees concerning
their union activities and desires during the next several weeks subsequent to the
April 27 meeting. In fact, the first such questioning occurred on April 25, the day on
which the employees met with the Union and signed authorization cards. Thus,
employee Howard Harris testified without contradiction that as he was about to leave
Respondent's premises to attend this meeting he was approached by Berger who
asked if he was going to attend the meeting and if he was going to "join up" or "sign
up with them." Harris replied that he had not make up his mind as yet.8 Harris
further testified that, and this testimony is also undenied, in the following week (i.e ,
subsequent to the April 27 meeting) Berger again asked him if he had signed up with
the Union. Harris said that when he replied in the affirmative Berger answered by
saying, "to the effect if he hadn't of hired me, they wouldn't have a majority." 6
Employee Edward Niezgoda testified that approximately 3 days after the April 25
meeting Berger asked, "How are you going ...?" Niezgoda, who said he was aware
that Berger was referring to the Union, replied that he had arrived late at the union
meeting and that he did not know "what the scoop was about." 10 The uncontra-
dicted and credited testimony of employee Paul Pajnick reveals that several days
after the April 25 meeting this employee was asked by Berger whether he "was for
him or against him." Pajnick answered by saying that the employees were told not to
discuss the union during working hours. Employee Lyle Kraning testified without
contradiction that several weeks after the April 25 meeting Berger asked him what he
knew about the Union. Kraning answered merely that they did not tell him too much.
Employee Raymond Mueller testified that in the latter part of May 1964, Berger
called him at home and said he would like to talk to him. They agreed to and did
meet at a local taproom at about 8 30 p.m. Mueller testified that when Berger
entered he began by asking "how I was going to go with the Union." Mueller replied
that he was "going to go with the Union" and that he was "with the rest of the
fellows." According to Mueller, Berger thereupon stated that he could not afford to
pay the rate of the union scale for deliveries and that he "might sell the trucks to
[employees] Augie and Lardie." 11
On July 9, 1964, Union Representatives Johannes and Melons called upon Berger
in the latter's office and requested that he negotiate an agreement Upon calling
his attorney, Berger advised that he would not bargain without an election.
Finally, it is undisputed that on July 14, 1964, the Respondent granted a wage
increase to all of its employees, and 10 cents per hour for the part-time employees.
On the same date Respondent inaugurated a policy of paying in full the premiums
for the hospitalization insurance of its employees Theretofore the Respondent
paid half and the employees paid half. The foregoing wage increases and added
insurance benefits were announced and put into effect without notification to or
bargaining with the Union.
I The record does not reflect how Beiger acquired knowledge that this meeting was to be
held
0 Harris was hired in the latter part of March 1964
10 Niezgoda's testimony concerning this conversation is undenied and credited.
11 Berger did not deny that the above conversation occurred, but testified only with
respect to a conversation in a tavern with Mueller which occurred in January 1964.
Berger testified that on this occasion he told Mueller, ". . . if I were smart at all, I
would sell the drivers' trucks and pay them a flat amount per case to distribute the
beer . . . that way I would get people to take better care of their trucks . . . and
they . . . could work as hard as they wanted to" Mueller conceded having a conversa-
tion with Berger to this effect in January 1964, but he did not change his testimony
concerning his later conversation with Berger in May. Mueller impressed me as an
honest witness and I credit his testimony concerning this latter conversation as set forth
above.
ASSOCIATED BEER DEPOTS, INC. 417
C. The appropriate unit; majority
The complaint alleges that the appropriate unit consists of the following: All
truckdrivers, helpers, and warehouse employees of the Respondent, exclusive of
guards, professional employees, and supervisors, as defined in the Act.
It may be stated at the outset that Berger, in his discussion with the union repre-
sentatives, never raised any question as to the appropriateness of the unit which
the Union was seeking. Indeed, the matter of the appropriateness of the bargaining
unit was never mentioned by the Respondent as a reason for refusing to grant recog-
nition. However, at the hearing the Respondent and the General Counsel differed
as to whether employees Donald Lardie, August Renna, and Allan Voight should
be included in the unit. Citing Plaza Provision Company, (P.R.), 134 NLRB 910,
the General Counsel's position is that these employees are essentially salesmen and
that they should be excluded because their interests are more closely aligned to sales-
men in general than to truckdrivers or to production and maintenance employees or
warehouse employees. Respondent urges that these employees be included because
they also drive trucks and deliver beer and because selling-commissions are avail-
able to all drivers.
I do not deem it necessary to belabor this matter. While I accept Berger's tes-
timony to the effect that all drivers are privileged to sell and to receive commissions
therefor, the record is clear that the regular drivers are principally engaged in mak-
ing deliveries and spend very little of their time selling On the other hand, Berger
admitted that Lardie, Voight, and Renna are "primarily engaged in selling." 12
Moreover, it seems clear that Respondent itself initially was in favor of excluding
the salesmen. Thus, it was Ranney's uncontradicted testimony that when discussing
the bargaining unit at the April 28 meeting, Berger stated, "You don't want to rep-
resent our salesmen, do you?" Ranney replied that he did not. Accordingly, I
find that the appropriate unit consists of that alleged in the complaint, as set forth
above.13
As previously indicated, 10 of Respondent's employees signed cards designating
the Union as their collective-bargaining agent on April 25, 1964. Respondent's pay-
roll records reflect that there were 15 employees in the appropriate unit on April 28,
the date on which it is hereinafter found that the Respondent refused to bargain.14
Accordingly, I find that on April 28, 1964, the Union represented a majority of
Respondent's employees in the appropriate bargaining unit.15
D. Analysis and conclusions
In addition to contending that the Respondent was not motivated by a good-faith
doubt as to the appropriateness of the proposed unit or the Union's majority status
when it insisted upon an election, the General Counsel urges that the Respondent in
fact accorded the Union recognition and actually engaged in collective bargaining
at the April 28 meeting. I cannot agree with the General Counsel's assertion that
Respondent agreed to recognize the Union for the simple reason that this is not in
accord with the facts. Nowhere in the testimony, including that of the union wit-
1z Berger named employee Raymond Mueller as also principally engaged in selling
However, since Mueller's case was not litigated and since the Respondent and the Gen-
eral Counsel were in apparent agreement that he be included within the unit, I shall not
exclude him fiom the appropriate bargaining unit
13 In any event, I am in accord with the General Counsel's statement, as set forth in
his brief, as follows "Counsel for the General Counsel submits that even if it is deter-
mined that Voight, Renna and Lardie do, in fact, have a sufficient community of interest
to require their inclusion in the unit, any resulting variance from the requested unit
would be insubstantial and would not materially affect the composition of the unit."
United Butchers Abattoir, Inc., 123 NLRB 946; Delight Bakery, Inc, 145 NLRB 893;
Sabine Vending Co., Inc. , et at ., 146 NLRB 1010.
14 The finding of the above unit composition excludes salesmen Lardie, Voight, and
Renna.
1s In the event that Voight, Renna, and Lardie be included in the unit, the Union
nonetheless would retain its majority status (10 of 18)
I also note that one Ronald Hecker was hired as a warehouseman on April 30, 1964.
Assuming that the refusal to bargain did not occur until Respondent's letter of May 4,
the Union still would have a majority in the unit herein found to be appropriate (10 of
16), or in a unit including the salesmen (10 of 19).
7 8 9- 7 30-66-v o 1 15 2-2 8
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses, is there a basis for any such finding-by inference or otherwise. As to
whether the Respondent engaged in bargaining, it can hardly be said to have done
so without previously having granted recognition. In any event, and in view of the
disposition made below, I can but regard the contentions thus advanced by the Gen-
eral Counsel as academic at best.
The crux of this case, it seems to me, focuses upon Berger's voluntary visit to the
Union's office and his meeting there with union officials as soon as he received the
Union's request for recognition and bargaining . Any doubt that he may have had
concerning the Union's majority was soon dispelled when he was afforded the
opportunity to check the signature cards presented by the Union.1G Indeed, his
statement to Ranney after having examined the cards, "I guess you have them"
clearly indicates that Berger was satisfied that the Union had a majority, and I so
find.17 But of equal significance is the course of the discussion which followed.
Thus, the credited testimony of Ranney reflects that Berger then raised the ques-
tion as to whether all the drivers would be put in Local 200, indicating that "he felt
the city drivers should be placed in Local 344 ... this because, as Ranny testified,
"he stated that he didn't think he could pay the city cartage rates in our [Local 200's]
standard contract to the city drivers." As heretofore indicated, Ranney would not
agree to the proposal that the city drivers be included in Local 344. While indicat-
ing that the wage rates for the city drivers might be adjusted through bargaining,
Ranney also indicated that the Union would seek higher wage rates for these
employees than Respondent was currently paying.
In short, and upon the entire testimony, I find and conclude that Berger's real
purpose in meeting with the Union on April 28 was to ascertain whether he could
reach some agreement with the Union, the terms of which would be satisfactory to
himself. I further find that his ultimate insistance upon an election was not based
upon any good-faith doubt as to the Union's majority status or the appropriateness
of the unit, but rather was the result of his failure to receive any assurance from the
Union that an agreement could be worked out along the lines which he proposed.
Accordingly, and in the absence of any such good-faith doubt, I find that the
Respondent was not entitled, under all of the circumstances of this case (including
those cited below), to insist that the Union prove its majority in a Board-directed
election. By its refusal to bargain with the Union on and after April 28, 1964, I
find that Respondent engaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) and (5) of the Act.
Further manifestation of Respondent's lack of good faith was Berger's interroga-
tion of employees shortly after the April 27 meeting. Contrary to Respondent's
apparent assertion that this was done to ascertain the Union's representation status,
or that these were isolated incidents, the comments by Berger plainly indicated
chagrin or disappointment that the employees had selected the Union. Thus, witness
his statement to employee Harris that, "if he hadn't of hired me, they wouldn't have
a majority," 18 and his query of Pajnick as to whether he "was for or against him."
Further, upon questioning employee Mueller and ascertaining that he was for the
Union, Berger voiced the threat that he could not afford the union rates and that he
might sell Respondent's trucks to the salesmen. Accordingly, I find that Respond-
ent's interrogations of its employee, including the latter statement to Mueller, to be
inherently coercive and therefore violative of Section 8(a) (1) of the Act.
Finally, it has been found that Respondent unilaterally granted a wage increase
and added insurance benefits to its employees on July 14, 1964, this only 5 days
after receiving a further bargaining request from the Union. Not only does this
conduct reflect upon Respondent's overall motives in previously refusing to bargain
with the Union, but the law is too well settled to require any citation that the
Respondent thereby engaged in a further and independent violation of Section
8(a)(1) and (5) of the Act.
16 Respondent points to the fact that employee Stanley Kvam, who also acted as Berger's
assistant, testified that he voluntarily told Berger that he had signed a card but he was
not for the Union. However, I can give little credence to this witness since it was shown
that his testimony was at variance with his previously sworn statement Thus, while
Kvam testified that he volunteered this statement to Berger, cross-examination estab-
lished his prior affidavit to reflect that his statement to Berger as aforesaid was prompted,
as he put it, when "Berger asked me what I did concerning the Union."
17 As a former union business representative, Berger acknowledged that he was familiar
with union business cards.
18 Indeed, Harris was first questioned concerning his attendance at the union meeting
before Respondent received any request for recognition.
ASSOCIATED BEER DEPOTS, INC. 419
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, which have been
found to constitute unfair labor practices, occurring in connection with the opera-
tions of Respondent described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices
within the meaning of Section 8(a) (1) and (5) of the Act, it will be recommended
that the Respondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused to bargain with the Union
as the representative of its employees in an appropriate unit, it will be recommended
that Respnodent, upon request, bargain with the Union, and, in the event an under-
standing is reached, embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act
and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All truckdrivers, helpers, and warehouse employees of the Respondent, exclu-
sive of guards, professional employees, and supervisors, as defined in the Act, con-
stitute a unit appropriate for the purpose of collective bargaining within the mean-
ing of the Act.
4. At all times since April 28, 1964, the above labor organization has been, and
now is, the exclusive representative of all the employees in the appropriate unit, for
the purpose of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and to bargain with the Union on and after April 28,
1964, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that the Respondent, Associated
Beer Depots, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating, threatening, or interfering with its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
(b) Refusing to bargain collectively concerning wages, hours, and other terms
and conditions of employment with Chauffeurs, Teamsters and Helpers "General"
Union, Local 200, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive representative of all its employees in
the following appropriate unit:
All truckdrivers, helpers, and warehouse employees, exclusive of guards, profes-
sional employees, and supervisors, as defined in the Act.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own choosing and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Upon request bargain collectively with the aforesaid Union as the exclusive
representative of all its employees in the aforesaid unit, and , if an understanding is
reached , embody such understanding in a signed agreement.
420 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
(b) Post at its place of business in Milwaukee , Wisconsin , copies of the attached
notice marked "Appendix ." 19 Copies of said notice, to be furnished by the Regional
Director for Region 13, shall , after having been duly signed by the Respondent's
representative , be posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered defaced or
covered by any other material.
(c) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of the receipt of this Decision , what steps it has taken to comply herewith 20
I also recommend that, unless on or before 20 days from the date of receipt of
this Decision and Recommended Order the Respondent notify the said Regional
Director , in writing , that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
19 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board ' s Order be enforced by
a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals, Enforcing an Order " shall be substituted for the woids " a Decision
and Order"
201n the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify said regional Director , in writing , within 10 dais
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Chauffeurs , Teamsters and
Helpers "General" Union , Local 200, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , as the exclusive represen-
tative of the employees comprising the appropriate unit described below.
WE WILL NOT threaten or coercively interrogate our employees with respect
to their union activities
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of rights guaranteed by Section 7 of the Act.
WE WILL, upon request, bargain collectively with the above-named union as
the exclusive bargaining representative of all employees in the following bar-
gaining unit with respect to rates of pay, wages , hours of employment, and
other conditions of employment.
All truckdrivers , helpers, and warehouse employees of the company,
exclusive of guards , professional employees , and supervisors , as defined in
the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of the above -named or any other labor organization.
ASSOCIATED BEER DEPOTS, INC.,
Employer.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Second
Floor, Commerce Building, 744 North 4th Street , Milwaukee, Wisconsin , Telephone
No 272-8600 , Extension 3860, if they have any question concerning this notice or
compliance with its provision