Cook Coffee Co.

National Labor Relations Board - Board Decisions

Apr 13, 1940

22 N.L.R.B. 967 (N.L.R.B. 1940)

IN THE MATTER OF COOK COFFEE COMPANY AND CENTRAL TEA COM-
PANY AND HOME TEA COMPANY and UNITED TEA AND COFFEE
WORKERS UNION7 LOCAL 155, AFFILIATED WITH UNITED RETAIL AND
WHOLESALE EMPLOYEES OF AMERICA
Case No. 0-1434.-Decided April 13, 1940
Food and Household Products Industry-Interference , Restiavnt , and Coer-
cion: anti-union statements ; questioning employees regarding union activities;
hiring guards whose duties included reporting on union activity; threats to
close plants if strike called ; use of truce period to undermine union-D,scrvin4-
nation : charges of , dismissed.
Mr. George J. Bott, for the Board.
Mr. P. J. M. Hally and Mr. William G. Fitzpatrick, Jr., of Detroit,
Mich., for the respondents.
Mr. I. W. Ruskin and Mr. Tucker P. Smith, of Detroit, Mich., for
the Union.
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Tea and
Coffee Workers Union, Local 155, affiliated with United Retail and
Wholesale Employees of America, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the
Regional Director for the Seventh Region (Detroit, Michigan), is-
sued its complaint dated July 5, 1939, against Cook Coffee Company
and Central Tea- Company-and, Home Tea- Company, Detroit, Michi-
gan, herein called the respondents, alleging that"the respondents had
engaged in and were engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations' Act, 49 Stat. 449,
herein called the Act. Copies of the complaint and notice of hear-
ing were duly served upon the respondents and the Union.
Concerning the unfair labor practices, the complaint alleged in
substance that since on or about April 1, 1937, the respondents (1)
22 N L R B., No. 70
967
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened to move their plants and go out of business if union activ-
ity continued; (2) criticized their employees because of their union
membership and activity; (3) inquired into the union affiliation of
their employees; (4) advised their employees not to attend union
meetings unless they reported to the respondents the events which
transpired there; and (5) kept their employees and union meetings
under surveillance and hired spies and guards to report the union
activities of the employees. The complaint alleged further that the
respondent Cook Coffee Company discharged Edward Jesse on or
about August 28, 1937; Frank Puhalsky on or about November 27,
1937; Donald Budd on or about February 12, 1938; and forced Paul
Signori to resign on or about January 29, 1938; that the respondent
Central Tea Company discharged Fred Wasson on or about Janu-
ary 1, 1938; Frank Korzeniowski on or about February 2, 1938; and
Howard Mainwaring on or about March 4, 1938; that the respondent
Home Tea Company discharged Charles Baker on or about January
1, 1938; Claude Manning on or about February 8, 1938; George
Buzonak on or about January 29, 1938; and Harold Smith on or
about February 12, 1938, because they had joined and assisted the
Union and engaged in concerted activities for the purpose of collec-
tive bargaining and other mutual aid and protection.
Thereafter, the Union filed a Second Amended Charge alleging that
Cook Coffee Company discharged Edward Haskins on or about
March 27, 1939, because he had joined the Union and had engaged in
concerted activities. On July 13, 1939, the Board issued an Amend-
ment to Complaint alleging that the respondent Cook Coffee Com-
pany discharged Edward Haskins on or about March 27, 1939, be-
cause he had joined the Union and engaged in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection.
On July 17, 1939, the respondents filed a motion to dismiss the
complaint, denying the jurisdiction of the Board as to them, and a
motion to strike certain paragraphs, of the complaint for the reason
that they did not contain a clear and concise statement of the facts
constituting the alleged unfair labor practices. On the same day the
respondents filed a joint answer denying that the Board had juris-
diction over them and that they had engaged in the unfair labor prac-
tices alleged. The answer admitted that the respondents discharged
the employees named in the complaint but averred that such dis-
charges were not for union activity.
Pursuant to notice, a hearing was held at Detroit, Michigan, from
July 20 through 27, 1939, before Horace A. Ruckel, the Trial Ex-
aminer duly designated by the Board. The Board and the respond-
ents were represented by counsel and participated in the hearing.
1
COOK COFFEE COMPANY 969
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties. At the commencement of the hearing, after presentation
of the Board's case, and at the conclusion of the hearing, the respond-
ents renewed their motions to dismiss and to strike. The Trial Ex-
aminer denied the motions on the first two occasions and took them
under advisement upon the conclusion of the hearing. The Trial
Examiner granted a motion by counsel for the Board to conform the
pleadings to the proof. He also granted the motion of counsel for
the Board to dismiss the complaint as to Frank Puhalsky. During
the course of the hearing the Trial Examiner made a number of other
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. The respondents thereafter submitted a brief to the Trial
Examiner.
On November 24, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, finding
that the respondents had engaged in and were engaging in unfair
labor practices, within the meaning of Section 8 (1) of the Act. He
recommended that the complaint be dismissed in so far as it alleged
that the respondents had engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act. He dismissed the respond-
ents' motions to strike and to dismiss the complaint. The respondents
and the Union thereafter filed exceptions to the Intermediate Report
and the respondents subsequently filed amended exceptions. The
respondents and the Union filed briefs in support of their exceptions.
Both requested permission to argue orally before the Board.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C., on March 14, 1940, for the purpose of oral argument.
The respondents and the Union were represented by counsel and
presented their arguments. The Board has considered the excep-
tions to the Intermediate Report, and the briefs and oral argument
in support thereof, and, in so far as the exceptions are inconsistent
with the findings, conclusions, and order set forth below, finds no
merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Cook Coffee Company, Central Tea Company, and Home Tea Com-
pany are Michigan corporations engaged in the sale of coffee, tea,
food, and household products. Over 90 per cent of the stock of each
of the three companies is owned by Cook Products Corporation, a
970 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Delaware corporation. The three respondents have identical officers
who are also officers of the Cook Products Corporation.
Cook Coffee Company has its principal office in Detroit, Michigan..
It is registered to do business in Indiana, Illinois, Kentucky, and New
York, and has branches in those States and in Ohio and West Vir-
ginia. We are concerned here with its Detroit operations. In the
period from June 1938 to June 1939, Cook Coffee Company's sales
totaled $1,705,048. About 54 per cent of the products it sold were
shipped outside of the State of Michigan. Approximately 33 per cent
of Cook Coffee Company's purchases were made outside the State of
Michigan and required shipments into Michigan. In addition, the
coffee purchased by it, which constitutes approximately 33 per cent
of its total purchases, is received from Central Tea Company in
Detroit, which in turn purchases the coffee from New York.
Central Tea Company, which has its main office in Detroit and
a branch office in Toledo, Ohio, had total sales of $272,890 in the
period from June 1938 to June 1939. About 39 per cent of the prod-
ucts it sold were shipped outside the State of Michigan. Approxi-
mately 92 per cent of its total purchases came from without the State.
Home Tea Company operates only in Detroit and its sales for the
period from June 1938 to June 1939 totaled $170,897. A substantial
amount of the products which it purchases are shipped • to it from
outside the State of Michigan. It receives its coffee, which represents
approximately 30 per cent of its total purchases, from Central Tea,
Company in Detroit which purchases the coffee in New York. Tea
is purchased in New York and Illinois and is shipped to Home Tea
Company in Detroit.
All of the coffee used by the respondents is purchased in New York
and shipped to Central Tea Company in Detroit for roasting. It is
then shipped to all Cook Coffee Company branches, located in Michi-
gan, Indiana, Illinois, and New York, and to the Central Tea Com-
pany branch in Toledo, Ohio, and to Home Tea Company in Detroit.
The tea used by the respondents is purchased in New York and
Chicago and is shipped to Cook Coffee Company in Detroit and to its
branch in Syracuse, New York. The Syracuse branch packs a cer-
tain grade of black tea which is shipped only to the New York
branches of Cook-Coffee Company. The Detroit office of Cook Coffee
Company packs tea and ships it to all of its branches. Central Tea
Company packs tea at Detroit and ships it to its branch in Toledo
and to Home Tea Company in Detroit. The respondents receive
shipments of food, household products, and other merchandise from
Indiana, Ohio, Illinois, New York, Wisconsin, Missouri, Texas, Rhode
Island, Connecticut, and Pennsylvania.
COOK COFFEE COMPANY 971
Cook Coffee Company employs about 40 salesmen, and Central Tea
Company and Home Tea Company each employ about 19 salesmen.
Each company has a separate warehouse and office in Detroit from
which its salesmen load their trucks and make deliveries to customers.
Occasionally supervisory personnel is interchanged among the three
corporations.
II. THE ORGANIZATION INVOLVED
United Tea and Coffee Workers Union, Local 155, is a labor organ-
ization, admitting to membership employees of the respondents. It
is affiliated with United Retail and Wholesale Employees of America,
which in turn is affiliated with the Congress of Industrial Organiza-
tions.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The first organization meeting of employees of the respondents was
held in about May 1937. Approximately 21 employees attended and
decided to form an independent labor organization. That the re-
spondents were immediately aware of their employees' intention to
organize is evident from testimony of Joseph Giumette, one of the
organizers and a Cook 1 salesman, who was requested by Michael J.
Kal,2 manager of Cook, to report what happened at the first meeting.
When Giumette refused, Kal stated that he had some men he was
sending to the meeting anyway. On the day following the meeting
Kal asked Paul Signori, a salesman who had attended, what was done
at the meeting. Two weeks later a second meeting was held at which
69 employees were present. A committee composed of Roy Needham,
Orno Hartenstein, and Giumette, one from each of the three com-
panies, was selected to draw up demands to be presented to the re-
spondents. On the following day Kal told Edward Jesse, a sales-
man for Cook, that he had heard that Jesse had been "loud" at the
meeting. When Jesse replied, "Well, they generally bring you the
story," Kal walked away. Shortly thereafter, the committee pre-
sented to H. C. Broder, president of the respondents, its demands for
an increase in wages for stockmen, establishment of a straight 20-
per cent commission basis for salesmen's wages, and adoption of a
seniority policy. Although Broder told the committee he did not,
want to see a union formed in his organization and that individuals
were free to present grievances, he agreed to give the Union an answer
in 1 week. Just prior to the expiration of the allotted time, Broder
3 Hereinafter the respondents will be referred to individually as Cook, - Central, and
Home.
2 Also referred to in the record as Kalasinski.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called a meeting of Cook salesmen and another meeting for salesmen
of Central and Home, at which he expressed the opinion that a union
was not necessary in the coffee business and that the men were un-
grateful and were "doing wrong" by organizing a union, and urged
them to forget it. At the Cook meeting he called attention to the
fact that he had loaned money to Edward Jesse, one of the leaders
of the organization drive, with which to build a home; at the Central
and Home meeting he pointed out, without mentioning his name, that
a man he had taken off relief had proved to be one of his biggest
troublemakers. Kal, who was present at the Cook meeting, threat-
ened to resign because he "felt the boys had let him down."
During the weeks following presentation of the Union's demands,
it was made clear to the employees that the respondents were not
favorably disposed to the formation or existence of a labor organi-
zation among their employees. Giumette testified that on a number
of occasions he heard Broder state that Hartenstein, a member of
the negotiating committee of the Union, was a troublemaker and
should be fired. Giumette found it necessary to warn Kal against
discussing with the men the question of whether or not a union was
a good thing for them and advising that it was not necessary in
their business. Kal told Jesse that he would be sorry he had joined
the Union and would be out of work and advised him to "stick with
Cook Coffee." He expressed to Paul Signori the opinion that Jesse
"wasn 't doing right by Broder" and that old employees should for-
get the Union. Kal, Jesse, and Signori, who were personal friends
of long standing and who frequently played cards together, dis-
cussed the union movement a number of times and on one occasion
Kal told Signori and Jesse that he "didn't think the Union would
get them anywhere," that it was upsetting a "good, friendly organi-
zation" and would eventually "break them up." Frank A. Spisz,
an assistant manager at Cook, asked Donald Budd when he was
going to stop "this foolishness" and get down to work. He ex-
plained to Budd that the "foolishness" referred to was Budd's union
activity. Spisz also asked Signori "how the union man was" and
inquired, "You think you will ever get anywhere that way?"
The negotiating committee representing the employees' organi-
zation thereafter made a number of unsuccessful attempts to get in
touch with Broder to discuss their demands. When no answer had
been received within 3 or 4 weeks after the time agreed upon by
Broder had elapsed, a strike was called on July 19. About a week
later the independent unions affiliated with the C. I. 0. and was
granted a charter. The committee met with representatives of the
8 The organization bad been chartered by the State of Michigan prior to this time but
the record does not disclose when this occurred.
I
COOK COFFEE COMPANY 973
respondents a number of times and the Union agreed to accept for
the salesmen a smaller commission than was originally requested.
However, the respondents were unwilling to agree to any of the
Union's requests and the strike continued until August 20, when
the men returned to work under an oral agreement for a 90-day
truce. The respondents agreed to negotiate for a permanent agree-
ment and before the end of the truce to present a proposal to the
Union. They also agreed to pay each employee a certain amount
as a wage increase during the truce and promised not to discharge
any employee except for a flagrant violation of the respondents'
rules.
During the truce the Union made numerous attempts to secure
a permanent agreement from the respondents, but Broder offered
no concessions and urged the men to continue the system in effect
prior to the strike. In the meantime, the respondents' managers
and assistant managers were making efforts to discourage union
activity among the salesmen. Assistant Manager Erickson of Home
unexpectedly appeared to check George Buzonak's route one day
during the truce. He told Buzonak, "It wouldn't pay for you to
join the Union. You wouldn't get anywhere anyway." Erickson
then asked Buzonak why he planned to attend the union meeting
that night and when Buzonak replied that he was not aware that
a meeting was 'scheduled, Erickson informed him, "Oh, yes, there
is. We know about it . . . We have got a way of finding out."
William Wright, manager of Home, expressed to Claude Manning,
a Home salesman, the fear that "you boys are going to get into
serious trouble over this union." Manning was also warned by
Dolow, an assistant manager at Home, that, "If I were you, I
wouldn't fool with that union any more . . . It is no good .. .
It won't get you no place . . . it is finally just going to fold up
and you will get no place by going to the union . . . If you go on
a strike, why, they will close their doors and they won't operate
anything in the State of Michigan at all.", Erickson and Dolow
did not testify at the hearing. Wright denied making the state-
ment attributed to him by Manning but, in view of the entire
record, we find that he made it.
Two or three' weeks before the date upon which the truce was to
expire, the Union voted power to a committee to call a strike if the
terms of the truce were not met by the respondents. It appears that,
just as they had known of other actions of the Union, the respondents
were informed that another strike was contemplated. At a sales
meeting shortly before the truce expired, Broder reviewed the history
of the respondents, called attention to its policies and then stated
that if another strike was called the respondents "would just have
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to close their doors and forget about the Cook Coffee Company in
Detroit."
Broder consulted Wendell, Walsh and Brown, a public-relations
firm, as to the policy which should be followed by the respondents
under the circumstances. As a result of this conference, Broder
met and engaged Theodore Handy to provide guards for the various
branch offices of the respondents in Detroit. Handy hired and dis-
tributed throughout the offices of the respondents about 15 men,
many of them former Detroit police officers, whose duties the re-
spondents claim were merely to guard the property from 7 p. m. to
7 a. m., except that they were to remain on the premises on Monday
mornings, when the men were loading their trucks. The guards
who testified at the hearing add to the respondents' version of the
nature of their jobs a further duty, that of spying upon the
employees.
John W. Bates, a retired inspector of the Detroit Police Depart-
ment, explained that the guards were on the premises to find out
whether a strike was contemplated and to "protect the property,"
that his instructions were "to protect these men and see what was
going on and everything we heard, to turn it in." Charles L. Mayott
stated at the hearing that although he was hired by Woodring,
general manager of the respondents, apparently as a regular sales-
man, he did not fill out an employment application nor was he
requested to present references. He testified that his instructions
from Richard Berg, an employee of Handy, were to "find out the
attitude of the drivers with regard to the strike," and that he under-
stood his duties were to be similar to those on previous jobs where
he had acted as under-cover agent to report whatever trouble ap-
peared to be developing. Mayott was put on a truck with one of
the Cook salesmen for a few days and was then dismissed. The
contemplated strike did not materialize and Handy and the guards
were dismissed about 2 weeks after the truce expired.
The Act prohibits an employer from interfering with, restraining,
or coercing his employees in the exercise of their rights to self-
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection. The course
of action adopted by the respondents upon the commencement of
organization by their employees, and continued thereafter, was in
violation of the Act. Even before the first meeting of the employees,
one of the respondents' managers requested that Giumette report
what took place at. the meeting. After the second meeting of em-
ployees was held, with 69 of the approximately 80 salesmen in
attendance, and after the committee presented its demands, the
COOK - COFFEE COMPANY 975
respondents took immediate steps to discourage the concerted activity
of the employees and the desire for unionization so manifested.
Broder called a sales meeting and advised that a union was not
necessary in the coffee business; Kal, who was on exceptionally
friendly terms with a number of the most active organizers and who,
apparently, was well-liked by all the employees, threatened to resign
because the "boys had let him down" by organizing; and the men
were called ungrateful and were told they were "doing wrong."
Throughout the period of the truce the respondents continued to
interest themselves in the union activity of their employees and to
discourage such activity by informing the men that it was inadvisable
and that they were likely to get into "serious trouble over this
union." Managers Kal and Wright and Assistant Managers Erick-
son, Spisz, Dolow, and others informed the salesmen that the Union
could do nothing for them and advised against continuing their
activity therein. The respondents' efforts to break up the union
movement culminated in the hiring of guards to spy upon the
employees and discover the action contemplated by the Union upon
the termination of the truce.
The respondents also-used,the truce to thwart the self Lorganization
of their employees. They suggested the truce and secured the
Union's assent thereto during the course of the strike by promising
to consider the Union's demands and to submit counterproposals
during the truce. However, as soon as the strike terminated and
the men returned to work the respondents started a concerted cam-
paign, as set forth above, to discourage membership in the Union.
At the same time, although they met with the union committee, the
respondents contented themselves with opposing the Union's de-
mands. At no time did they offer counterproposals as they had'
promised to do. The respondents were fully aware of their failure
to carry out the promises they had made to obtain the truce, for at
its conclusion they anticipated, that a further strike,might be called
and so hired guards whose duties, among other things, were to
ascertain and report on any contemplated strike activity on the part
of the employees. The respondents' activities after the commence-
ment of the truce period lead inescapably to the conclusion that they
sought only to undermine and destroy the organization of their
employees by suggesting and entering into the truce agreement.
Broder testified at the hearing that following his first meeting
with the committee of the Union he consulted counsel as to the
correct labor policy to pursue, and that thereafter he called a meeting
.of managers, and assistant managers of the three respondent corpora-
tions at which he admonished them "that under no circumstances
were they to discourage or encourage unions, nor to give any advice
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the men regarding unions, or to show any preference about unions,
and that when the question of unions came up they were to tell the
men we were only interested in the selling of coffee and we were not
interested in whether they did or did not belong to any union."
It is apparent, however, that neither Broder nor his managers and
assistant managers took seriously the advice given, since it did not
deter them from expressing freely their anti-union sentiments there-
after. The fact that Broder may have intended to adopt a "hands-
off" policy when he issued his instructions cannot excuse the subse-
quent activities of the respondents, which were in open disregard
of such instructions.
We find that the respondents, by inquiring as to the union mem-
bership and activity of their employees ; by inquiring as to action
taken at union meetings ; by informing their employees that a union
was not necessary in their business; by seeking to induce their em-
ployees to abandon their activity in the Union; and by hiring spies
to report the union activity of employees, have interfered with, re-
strained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The alleged discrimination
The complaint alleged that the respondents discharged Edward
Jesse, Frank Puhalsky, Donald Budd, Edward Haskins, Fred
Wasson, Frank Korzeniowski, Howard Mainwaring, Charles Baker,
Claude Manning, George Buzonak, and Harold Smith, and forced
Paul Signori to resign, because of their union membership and
activity. At the hearing the allegations as to Frank Puhalsky were
dismissed upon motion of counsel for the ,Board. The respondents
admit the discharges of the remaining complainants but contend
that they were justifiable and for cause, and that Paul Signori re-
signed voluntarily. The Trial Examiner agreed with the respond-
ents' contentions and recommended that the complaint be dismissed
as to each of the complainants.
It appears from the evidence that all of the complainants were
members of the Union and active in its affairs and that their activity
was known to the respondents. All of them went on strike during
July and August 1937 and all picketed one or more of the respond-
ents' branch offices. In addition, certain of the complainants were
outstanding because they were officers of the Union and others be-
cause they had gone to the Flint, Michigan, branch of Cook, and the
Toledo, Ohio, branch of Central in an effort to induce the employees
at those branches to join the strike. Paul Signori was treasurer of
the Union; George Buzonak was a steward and was on the grievance
committee; Fred Wasson and Charles Baker were on the executive
COOK COFFEE COMPANY -977
committee; Edward Haskins and Howard Mainwaring were on the
grievance committee; and Frank Korzeniowski was a member of the
negotiating committee of the Union. Korzeniowski, Mainwaring,
Baker, and Manning were among those who had urged Cook and
Central employees in the Flint and Toledo branches to strike.
We shall discuss individually the defenses advanced by the re-
spondents to the Union's charges of discrimination.
Cook Coffee Company
Edward Jesse was employed in September 1921 and was discharged
on August 28, 1937. The reason assigned for his dismissal was viola-
tion of the rule prohibiting the use of company-owned trucks for
personal business after working hours. About midnight on August
27, 1937, Kal, manager of Cook, was informed by Spisz, an assistant
manager, that Jesse's truck was parked in front of the Rosebud Cafe,
a beer garden. Kal drove to the cafe and parked his car outside to
wait for Jesse to come out. After a few minutes he hailed a passing
police car and informed the officers that Jesse was inside the beer
garden and that he feared he would not be in condition to drive his
truck. Upon advice of the officers, Kal went. in and requested that
Jesse turn over the car keys. When Jesse refused, Kal went out-
side, and together with the officers, waited for Jesse to come out.
Jesse gave the keys to one of the officers when he came out shortly
thereafter. Jesse was discharged the following morning.
The respondents had promulgated in 1926 a rule forbidding em-
ployees to use the trucks on personal business after working hours.
It was not enforced strictly, however, and in 1936 the respondents
required all salesmen to sign a written agreement that they would use
the trucks after hours only upon written permission. Jesse testified
that Kal told him the rule did not apply to him and that he con-
tinued to use his truck as before. Kal denied having exempted
Jesse from the rule, but it appears that no action was taken against
Jesse for its violation until about 2 weeks before the strike when Kal
required Jesse to leave his car in the company garage after he
finished his route, instead of driving it home. A few days later
Jesse was again permitted to keep his truck at home and there is no
showing that he violated the rule between that time and the occasion
which resulted in his discharge.
We find that the rule prohibiting the use of trucks for personal
business after working hours was in effect at the time of Jesse's dis-
charge, and that Jesse, having been warned against violating the
rule, was aware of the rule and the respondents' intention to enforce
it on August 27. We find that Jesse was not discharged because of
his union membership and activity.
978 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
Donald Budd, who commenced work on January 3, 1937, was,
discharged on August 31, 1938, for the asserted reason that he sold 13
"specials" without tea or coffee orders within a period of 3 days. A-
"special" is an article of merchandise which is sold at a reduced. price
when bought with tea or coffee in order to induce the sale of the latter
products. The evidence leaves no room for doubt that the rule
against selling "specials" without tea or coffee had been in effect
for a long period and that the respondents constantly impressed their
salesmen with the necessity of adhering to it. However, it appears
that occasional violations of the rule were condoned and that per-
mission was sometimes given to sell "specials" without tea or coffee.
Budd testified that on the morning of his discharge, Kal told him
he had sold two or three "specials" without tea or coffee. However,
on cross-examination he did not deny, when asked, that he had sold
13 "specials" without tea or coffee within a period of 3 days, as
claimed by the respondents. The Trial Examiner found that he
had done so. We affirm this finding. There is no showing as to
how Budd's violation of the rule compares with violations by other
salesmen and we cannot say that the respondents have discriminated
against him in the enforcement of the rule.
We find that Budd was not discharged because of his union mem-
bership and activity.
Paul Signori started working for Cook in May 1930 and resigned
on January 17, 1938. At the hearing he gave as his reason for
resigning that after the strike Kal began to "ride" him because his
sales were falling off, told him that he was spending too much time
on the Union, and suggested on one occasion that he resign from
his job. Several weeks after the strike terminated Signori was con-
fined to a hospital and to his home for about 7 weeks because of a
leg ailment. He complained thereafter of having difficulty getting
in and out of the truck and Kal testified that when Signori resigned
he gave this as the reason and said that he was going to get an
easier job. Signori admitted that he worked for 2 weeks after
giving notice of resignation and that he told his customers that he
was leaving because of his physical condition, but he denied that
that was the true reason and asserted that his resignation was com-
pelled as a result of the treatment accorded him by Kal because of
his union activity.
We find that the respondent Cook did not force Signori to resign
because he was active in the Union.
Edward Haskins entered the employ of the respondent Cook in
1936 and. was discharged on March 25, 1939, over a year after the
activities of the Union had ceased, with a statement by Kal that a
change was to be made. At the hearing the respondents gave as
COOK COFFEE COMPANY 979,
their reason for Haskins' discharge that he was not doing his job
properly and that his sales were dropping. Haskins admitted that
his sales were falling off but claimed that his record was no worse
than that of Nesbitt, a salesman whose route was in similar territory,
and with whose record Haskins' was compared by Kal. A compari-
son of the sales records of Haskins and Nesbitt for the 3 months
preceding the former's discharge discloses that in certain respects
each was doing better than the other. On the basis of the records of
Haskins and Nesbitt, we cannot say that Kal's conclusion, that Has-
kins' record was inferior to that of Nesbitt, is incorrect.
We find that Haskins was not discharged because of his union
membership and activity.
Central Tea Company
Fred TVasson was employed in the latter part of 1935 and was
discharged on about January 1, 1938, assertedly because of his bad
accident record, a shortage in his accounts, and a decline in the
volume of his sales. Wasson testified that only the first reason was
given at the time of his discharge. He admitted having had three
accidents in a 5 months' period, the last in early December 1937. The
respondents introduced in evidence a letter from their insurance
company, dated December 14, 1937, in which Wasson's record was
called to their attention. The letter stated that "we anticipate con-
siderable difficulty in finding an insurance company who will be
interested in your risk after expiration of the present policy."
We find that Wasson was not discharged because of his union
activity.
Frank Korzeniowski was employed by Cook from December 1934
to July 1935, when he left its employ. In September 1936 he re-
turned to Cook but a week or two later was transferred to Central
where he worked until January 26, 1938. At the hearing the re-
spondent Central gave as the reason for his discharge that he was
not a safe and proper person to drive the respondents' trucks, that
he had a bad accident record, got into trouble, fought with employees
and, in general, had a pugnacious attitude.
On August 4, 1937, Korzeniowski assaulted a non-union employee
who refused to leave the scene of picketing during the strike. On
November 17, 1937, his truck was bombed or dynamited while it
was parked in front of his home. On the morning of January 24,
1938, Korzeniowski, while driving his truck from the garage to the
Central office, was stopped by two men in a car who forced his car
to the curb and assaulted him. Although no determination was ever
made as to the guilt for either of these incidents, we find that no
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibility therefor can be attached either to the respondents or
to Korzeniowski.
We find that Korzeniowski was not discharged because of his union
activity.
Howard Mainwaring began working in October 1936 and was dis-
charged on March 4, 1938, because he violated the rule against using
the respondents' trucks on personal business outside of working
hours. The violation which occasioned his dismissal occurred on
the Sunday before his discharge when, he testified, he took the truck
to a filling station to have the oil changed, stopped to get two bushels
of coal, and perhaps stopped for a glass of beer or some cigarettes.
On the following Friday Peterson, an assistant manager, asked
Mainwaring if he had his truck out on Sunday and when Mainwar-
ing admitted that he had, Peterson discharged him, saying that he
was supposed to have done so on Monday, but had missed Mainwar-
ing when he came to the office. Mainwaring had been warned by
Peterson previously about violating the rules governing the use of
his car. J.
We find that Mainwaring's discharge was for reasons other than
his union activity.
Home Tea Company
Charles Baker began working for Central in October 1936 and
a few weeks later was transferred to Home. He was discharged
on January 3, 1938, for an accumulation of violations of company
rules, outstanding among which was drinking. Baker frequently
was unable to come to work on Monday mornings because he had
been on drinking parties the night before. On several occasions he
spent money belonging to Home, as well as his own, while drinking,
and Manager Wright loaned him money to balance his accounts.
Wright had urged Baker a number of times to stop drinking. In
addition, Baker was charged with violating the rules against drink-
ing with customers. He admitted drinking with customers but de-
fended his action by saying that he had frequently done so in the
company of assistant managers without reproach. However, the
instance which finally occasioned his discharge was a complaint from
a customer as to his drinking. Wright testified without contradic-
tion that Baker told him, at the time of his discharge, that this was
the second job he had lost because of drinking. Baker admitted at
the hearing that Wright had warned him about a month before he
was discharged, when Wright found his car standing outside after
working hours, that he would be discharged if he continued to violate
company rules.
We find that Baker was not discharged because of his union
activities.
COOK COFFEE COMPANY 981
Claude Manning started working for Cook in February 1937 but
was transferred to Home about 2 months later. He was discharged
on January 4, 1938. At the hearing Manning stated that the reason
given for his dismissal was an $8 shortage. The respondent Home,
however, claims, and we find, that Manning had continual mer-
chandise and cash shortages due to his inability to keep his accounts
in order and that all efforts to instruct him as to the necessary
bookkeeping procedure were unsuccessful. Manning's failure to
keep his books properly made it necessary to balance his accounts by
deducting the amount of his shortages from his weekly pay, with the
result that his salary was so, small that "he could not afford to work
for the company." No contention is made that Manning was dis-
honest.
We find that Manning was not discharged because of his activity
in behalf of the Union.
George Buzonak was hired in April 1937 and discharged about
January 29, 1938. Wright gave as the reason for discharging Buzo-
nak that he was losing customers. He testified that a check of
Buzonak's route, after complaints were received from customers
whom Buzonak failed to call upon, revealed that he was going
home for breakfast after reporting at the office and as a result
was frequently late or failed entirely to make some calls. Buzonak
denied that his sales had dropped more than those of other sales-
men. There is no evidence from which we can make a comparison,
but Buzonak did not deny that he had failed to call upon customers.
We find that Buzonak was discharged for reasons other than his
union activity.
Harold Smith was employed by the respondents from 1934 to 1936
when he was discharged. He was rehired on July 5, 1937, and dis-
charged on January 29, 1938. When rehired in July 1937, Smith
requested a route in Garden City, Michigan, where he had purchased
a lot, but was given instead a route in Ann Arbor, Michigan, and was
paid a per diem allowance until he could move his family to Ann Arbor.
Smith thereafter built a home in Garden City and moved into it without
telling Wright of his action. When Wright learned of Smith's
action he discharged him for the reason that the Ann Arbor route
could not be operated profitably by a man living in Garden City.
The respondents gave as additional reasons for dismissing Smith
that he was late starting -on his route on a number of occasions and
that he left his car outside instead of in a garage, as required, after
moving to Garden , City. Smith admitted these violations at the
hearing.
We find that Smith was not discharged for his union activities.
283033-41-vol. 2 2--6 3
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III7 A, above, occurring in connection with the operations of the.
respondents described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain affirmative action, which we find necessary to effectuate
the policies of the Act.
We have found that the respondents have not engaged in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
Our Order will provide that- the complaint be dismissed in that
respect.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Tea and Coffee Workers Union, Local 155, affiliated
with United Retail and Wholesale Employees of America,. is, a;labor
organization, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees
in the exercise of rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondents have not engaged in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondents, Cook Coffee Company and Central Tea Company
and Home Tea Company, Detroit, Michigan, and their officers, agents,
successors, and assigns, shall:
COOK COFFEE COMPANY 983
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing their employees in the exercise of their rights to
self-organization, to form, join, or assist United Tea and Coffee
Workers Union, Local 155, affiliated with United Retail and Whole-
sale Employees, of America, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities - for the purposes of collective bar-
gaining and 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 purposes of the Act :
(a) Immediately post notices- in . conspicuous places throughout
their offices and warehouses, and maintain such notices for a period
of at least sixty (60) consecutive days, stating that the respondents
will cease and desist in the manner set forth in paragraph 1 of this
Order; -
-(b) Notify,the Regional Director for the Seventh Region in writ-
ing within ten (10) days from the date of this Order what steps
they have taken to comply herewith. _
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondents have engaged
in unfair labor practices within the meaning of Section 8 (3) of
the Act.