Gluek Brewing Co.

National Labor Relations Board - Board Decisions

Feb 26, 1943

47 N.L.R.B. 1079 (N.L.R.B. 1943)

In the Matter of GLUEK BREWING COMPANY AND BACH_ TRANSFER &
STORAGE COMPANY and BREWERY, MALT HOUSE AND SOFT DRINK
WORKERS LOCAL UNION #205 OF THE INTERNATIONAL UNION OF
UNITED - BREWERY, FLOUR, CEREAL AND SOFT DRINK WORKERS OF
AMERICA and BREWERY AND BEVERAGE DRIVERS,` WAREHOUSEMEN"
AND HELPERS, LOCAL UNION No. 792, A. F. OF L., PARTY TO THE
CONTRACT-.
Case No. C-0450.Decided February °26, 1943
Jurisdiction : beer manufacturing industry; motor transportation industry.
Unfair Labor Practices -
Interference, Restraint,- and Coercion: declarations and - other acts of union
preference. .
Discrimination: mass discharge of employees because of union membership and
failure to join rival labor organization by transfer of delivery operations to
.'a transportation company; such discharge not excused because of economic
action against employer induced by rival labor organization ; employers acting
jointly in effectuating such-discharge held both responsible for violation of
the Act. ,
Remedial Orders : cease and desist unfair labor practices ; withhold recognition
from assisted union and abrogate contract therewith ; reinstatement and
back pay awarded; - order directed against both the manufacturer and the
delivery company. •
DECISION
AND
ORDER
On December 8, 1942, the Trial Examiner issued his -Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices,
and recommending that they cease and desist therefrom and take
certain affirmative action as set out in the copy of the Intermediate
Report attached hereto. Exceptions to the Intermediate Report and
briefs were thereafter filed by the respondents and Local 792, and -a
brief was filed by Local 205. Oral argument was held before the'
Board on January 7, 1943, in which all parties participated. • The
Board has reviewed the rulings of the Trial Examiner at the hearing
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs and the entire record, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
except in the respects noted below.
47 N. L. R. B.. No. 137.
1079
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner that the respondent Gluck, by
the activities of Alvin Gluek and supervisors Norbeck, Klein, and
Mueller during the period from November 27, 1941, to January 31,
1942, as set forth in the Intermediate Report, interfered with, re-
strained, and coerced its employees in violation of the Act. In addi-
tion, we find that the respondent Gluck engaged in such violations
by the following : According to driver Donald Spurzem's testimony,
about December 7, 1941, he and another employee visited Alvin Gluek
in his office, seeking advice regarding what action they should take
in the controversy between the unions; Gluck, while stating that he
could not advise them, and that they would have to decide for them-
selves, also said "The A. F. of L. is too big, you can't lick them. It is
impossible to beat them." Gluek in substance denied having made
such a remark. However, since the remark is consistent with his other
conduct in this case, we do not credit his denial and find that he made
the statement attributed to him by Spurzem. Spurzem further testi-
fied that in December, Norbeck stated to certain of the employees that
"he had been talking to Al Gluek, and Al told him that we didn't have
a chance of winning." Norbeck denied having made this statement.
However, as the Trial Examiner found, he was an incredible witness
in many respects; we do not credit his denial, and we find that he made
the statement attributed to him by Spurzem.
2. We are also convinced, as the Trial Examiner found, that the
transfer of the respondent Gluek's delivery operations on December 5,
1941, to the respondent Bach, with the attendant loss of their regular
and usual employment by the drivers and helpers, and the subsequent
contractual arrangements between the respondents, were undertaken
by the respondents because of the drivers' and helpers' continued
adherence to Local 205, and their failure to join Local 792. Our find-
ing in this respect is based not only upon the'findings of the Trial Ex-
aminer, but also upon the following additional evidence not adverted
to by the Trial Examiner: Eugene Gluek, who admitted'that deliveries
were transferred on December 5 "because we couldn't operate trucks"
under Local 205, admitted further, in effect, that the final transfer of
the delivery department was motivated in part by the jurisdictional
dispute:
3. We agree with-the Trial Examiner that both respondents are
jointly, and severally responsible, under the Act, for the discriminatory
treatment 'accorded the drivers and helpers. We find, in this con-
nection,'that the respondent Bach admittedly knew at the time of the
transfer of the delivery operations, that the respondent Gluek was
involved in a jurisdictional dispute. Alden Bach' testified that, on
December 6, he and'Alvin Gluck discussed the dispute between Local
'GLUE.K BREWING COMPANY 1081
205 and Local 792, and that Gluck indicated that his deliveries were
stopped because of the boycott. Bach also knew that he would conduct
the respondent Gluek's deliveries with members of a labor organization
to which-the respondent Gluek's drivers^.and'helpers had refused. to
,change their affiliation. ' .
4. That the respondent Gluck has retained substantial control over
the delivery of its products, the work and working conditions of the
new drivers and helpers, and ultimately, their tenure of employment,
is clear from the facts found by the Trial Examiner, and in addition,
from the following evidence : When the new zone system was insti-
tuted, the drivers were assigned to routes by both respondents. It
appears that the same drivers have retained the routes thus 'assigned
to them. Not only do the drivers receive orders for the delivery of
beer from the respondent Gluck at the start of work each day, but
-during the day it is their practice to inquire of the respondent "Gluek
by telephone whether any orders have been received, and' to receive
instructions from the respondent Gluck regarding the filling of such
orders. Furthermore, Eugene Gluek admitted that if a customer
'complained to the respondent Gluek about the conduct of a driver or
the service rendered by him, the respondent Gluek would request Bach
to remedy the situation, and would expect him to do so. Alden Bach
admitted, moreover, that in the event he and the respondent Gluek
disagreed on matters affecting service io a customer, the latter's
determination as to what course of action should be taken, would
prevail.
5. Among the employees whom the Trial Examiner finds to have
been discriminatorily discharged "as drivers and helpers" on December
5, 1941, are Leonard Leibel and George Macko. These two employees
were regular yardmen. There is no evidence that any employees, other
than drivers and helpers, were deprived of their positions after Decem-
ber 4; and these two employees never received copies of the termination
letter of February 3, 1942. The evidence shows that they continued
in the respondent Gluek's employ. Whether they continued as yard-
men or not, is not clear from the record. Under these circumstances,
-the allegations of the complaint as to these employees will be dismissed.
6. The record shows that Mike Heller, one' of the employees dis-
criminatorily discharged, was inducted into the armed forces on July
27, 1942. Consequently, our order will make special provision as
regards reinstatement and back pay in his case.
ORDER
Upon the entire record in the case; and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Gluck Brewing Company
1082 DECISIONS OF 'NATIONAL LABOR- RELATIONS BOARD
and Bach Tf'ansfer & Storage' Company,- Minneapolis, Minnesota,
jointly and severally, and their officers, agents, successors, and assigns,
shall : '
1. Cease and desist from : ' -
(a) Discouraging membership in Brewery,, Malt House-,and Soft
Drink Workers Local Union 'No. 205 of the International Union of
United Brewery, Flour, Cereal and Soft Drink Workers of America,
,or any other labor organization of their employees, or encouraging
.membership in Brewery- and Beverage Drivers, Warehousemen and
Helpers, Local Union:No. 792, A. F. or:L., or 'any other labor organi-
zation of their employees, by discharging, or refusing to reinstate-any
of their employees -or in any other manner discriminating in regard
'to their hire or tenure of employment or any term or condition of their
employment; -
(b) Giving effect to any agreement made with Brewery and Bev-
- erage Drivers, Warehousemen and Helpers, Local Union No. 792,
.A.- F. of L., in respect to rates of pay, hours of employment, or other
conditions of employment, or recognizing. Brewery and Beverage
'Drive'rs, Warehousemen and Helpers, Local Union No. 792,-A. F. of L.,
-as the representative of drivers and helpers engaged' in the' delivery
.of the respondent Gluek's products;
(c) In any other manner interfering with, restraining, or coercing
,their employees in the exercise of the right to self-organization, to
"form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for -the purposes of collective bargaining or other mutual
,aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds will
_effectuate the policies of the Act :
-(a) Offer to the employees named in Appendix A, attached hereto,
immediate and full reinstatement to their former positions as drivers
.and helpers, or to substantially equivalent positions for which they
are qualified; or place them upon a preferential list of employment in
,accordance with the procedure set forth in the section of the Inter-
mediate Report entitled "The Remedy," without prejudice to their
seniority and other rights and privileges; '
(b) Make whole, the employees named in Appendix A attached
hereto, for any loss of pay they may have suffered by reason of the
respondent's discrimination against them in regard to their hire and
tenure'of employment, by payment to each of them of a, sum of money
equal to the amount he would normally have earned as wages from
the date of such discrimination to the date on which the respondents
GLUE_K BREWING COMPANY 1083
offer him reinstatement or_place him on n-a preferential list for employ-
ment, less his net earnings 1 during that period;
(c) Upon application by Mike Heller within forty (40) days after
his discharge from the armed forces of the United States, offer him
immediate and full reinstatement to his former position as a driver
or a substantially equivalent,position, without prejudice to his seniority
or other rights and privileges ; -
(d) Make whole' Mike Heller for any loss of pay he may have
suffered by reason of the re'spondents' discrimination against him by
payment to him of a sum of money equal to the amount he would nor-
mally have earned as wages during the following periods : (1) between
the date of his discharge and the date of his induction, July 27, 1942;
and (2) between the date five (5) days after his timely 2 application for
reinstatement, if any, and the date of offer of reinstatement by the
respondents, less his net earnings during those periods;
(e) Withhold recognition from Brewery and 'Beverage Drivers,
Warehousemen and Helpers, Local Union No. 792, A. F. of L., as the
representative of their drivers and helpers engaged in the delivery of
the respondent Gluek's products, for the purposes of negotiating with
respect-, to grievances, labor disputes, rates of pay, hours of. employ-
ment, or other conditions of employment;
(f) Post immediately in conspicuous places in and around their
plants and garages in Minneapolis, Minnesota, and maintain for a
period of at least sixty (60) consecutive days from the date of posting,
notices to their employees stating (1) that the respondents will not
engage in the conduct from which they are ordered to cease and desist
-in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respond-
ents will take the affirmative action set forth in paragraphs 2 (a), (b),
(c), (d), and (e) of this Order; and (3) that, the respondents' em-
ployees are free to become or remain members of Brewery, Malt House
and Soft Drink-Workers Local Union No. 205 of the International
-Union of United Brewery, Flour, Cereal and Soft Drink Workers of
America; and that the respondents will not discriminate against any
employee because of membership in that organization; • `
(g) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the receipt of this Order what steps
the respondents have taken to comply herewith, and'
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondents discriminated in
regard to the hire, tenure, terms, or conditions of employment of
Leonard Leibel and George Macko.
MR. WM. M. LEISERSON took no part in the consideration of the
above Decision and Order.
1 See footnote 25, in the Intermediate Report.
As provided in paragraph 2 (c) of the Order.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Axel Forsgren Clarence Nelson John Leibel
Earl Morgan Mike Steuck George Tegeder
Armand Born Leslie Fortman , Paul Gabbert
A. J. Jakubec Walter Kohnen Walter Leibel
John T. Powers Clarence B. Pyle Donald Spurzem
Leon Allen Harry Audette Eddie Midthum
Al Midthum William G. Radke Frank Wrzos
Ken Hartley John Hebzynski Leo Truzinski
Paul Born E. K. Lord
INTERMEDIATE REPORT
Mr. Harry Brownstein, for the Board.
Nichols, Mullin & Farnand, by Mr. P. L Farnanmd, and Bleecker & Babcock, by
Mr. John D. Bleeker, of Minneapolis, Minn., for the respondent Gluck Brewing
Company.
Mr. Oscar J. Berg, of Minneapolis , Minn, for the respondent Bach Transfer &
Storage Company.
Dlr. Martin F. O'Donoghue, of Washington, D. C., for Local 205
Padway & Goldberg, by I. E. Goldberg, of Milwaukee, Wis., for Local 792.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on October 22, 1942, by Brewery,
Malt House and Soft Drink Workers Local Union #205 of the International
Union of United Brewery, Flour, Cereal and Soft Drink Workers of America,,
herein called Local 205, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Eighteenth Regioh, ( Minneapolis, Min-
-nesota ) issued its complaint dated October 28, 1942, against Gluck Brewing
Company, herein called the respondent Gluck, and Bach Transfer & Storage
Company, herein called the respondent Bach, alleging that the respondents,
jointly and severally , had engaged in unfair labor practices within the meaning
of Section 8 (1) and (3), and Section 2 ( 6) and ( 7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein' called the Act.
With respect to the unfair labor practices the complaint, as amended during
the hearing, alleged in substance (1) that the respondents are jointly engaged
in the delivery of the products of the respondent Gluek ; (2) that the respondent
Bach is acting as agent for and in the interest of the respondent Gluck; (3) that
beginning in November 1941, the respondent Gluck urged its employees to with-
draw from Local 205 and to join Local 792; (4) that on December 4, 1941, the
respondents discharged as drivers and helpers 30 named employees' and since
that date have refused to reinstate them to their former positions because
(a) they engaged in concerted activities for the purpose of collective bargaining
'Axel Forsgren , Mike Heller , John Leihel , Earl Morgan , Mike Stueck , George Tegedei,
Armand Born , Leslie Fortman , Paul Gabbert , A J. Jakubec , Walter Kohnen , Walter
Leibel, John T. Powers, Clarence B. Pyle , Donald Spurzem , Leon Allen , Harry Audette,
Eddie Midthum , Al Midthum , William G . Radke , Frank Wrzos , Ken Hartley , Leonard
Leibel, George Macke, Paul 'Born, John Hebzynski , Leo Truzinski, Clarence Nelson,
El K Lord , and Dominick Hebzynski.
GLUEK BREWING , COMPANY 1085
and other mutual aid and protection, and (b) to discourage membership in Local
205 and,to encourage membership in Local 792; (5) that on December 4, 1941,
the respondent Gluek transferred its delivery operations to the respondent Bach
for the purpose of interfering with rights guaranteed to employees by Section 7
of the Act; (6) that the respondent Bach in February 1942, entered into an
exclusive-representative collective bargaining agreement with Local 792, covering
drivers and helpers delivering products of the respondent Gluek, and that ex-
tensions and renewals of said agreement require as a condition of employment
membership in Local 792; (7) that said agreement was entered into at a time
when Local 792 was not the representative of said employees, as provided in
Section 9 (a) of the Act, that said agreement did not come within the proviso of
Section 8 (3) of the Act, is invalid, and encourages membership in Local 792 and
discourages membership in Local 205, thereby discriminating in regard to the
conditions of employment of the employees; and (8) that by these acts the re-
spondents, jointly and severally, interfered with, restrained and coerced their
employees in the exercise of rights guaranteed by Section 7 of the Act. The com-
plaint and accompanying notice of hearing were duly served upon the respond-
ents,, Local 205, and Local 792.
By its answer filed November 11, 1942, the respondent Gluek denied that it had
engaged in the alleged unfair labor practices, and affirmatively alleged (1) that
it,contracted with the respondent Bach, an independent contractor, for the de-
livery of its products, as an economy, measure; and (2) that at, the time of its
transfer of the delivery operations it discharged the employees named in the
complaint but thereafter employed them in some other capacity within the plant,
as members of Local 205.
By its answer filed November 11, 1942, the respondent Bach denied that it had
engaged in the alleged unfair labor practices, and affirmatively alleged, that, in
undertaking the delivery operations, pursuant to its contract with the respondent
Gluek, employed some of its drivers and helpers from Local 792 and some of the
drivers previously employed by the respondent Gluek.
By its answer, filed at the opening of the hearing, Local 792- denied , that the
respondents engaged in' the:alleged'unfair labor`practices, and affirmatively, alleged
that its contract with the respondent Bach was legal.
Pursuant to notice, a hearing was,held at- Minneapolis, Minnesota, from Novem-
ber, 12, to 16, 1942, before, the undersigned, the Trial, Examiner duly, designated
by the Acting Chief Trial Examiner. The Board, the respondents;, Local 205 and
Local 792, 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 upon the issues was; afforded all, parties.
At the opening, of the, hearing the Trial Examiner denied, a motion by the
"re's'pondent Bach based upon the grounds, that it is, not engaged iii,, interstate
commerce and that the Board, is, without jurisdiction, During-they hearing, a
motion by the Board was, granted, without objection,, to, amend the, complaint
by adding the names of five employees•2 as having, been discriminatorily discharged
on- December 4, 1941. A motion, by, the, respondent Gluek was, granted, without
objection, that its, answer, as filed, be deemed, to cover the complaint.as amended-.
A motion by the Board was granted, without- objection, to dismiss, the complaint
as to Dominick Hebzynski 3 At the close, of the hearing a joint motion, of all
parties, was granted to amend the pleadings to conform to, the proof Also at
2 Paul Born, John Hebzynski, Leo Truzinski, Clarence Nelson and E. K Lord.
S Evidence established that this employee left the employment of the respondent Gluck,
in August, 1941, several months before the controversy- out of which arose the other
alleged discharges. - -
1086 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
the close of the hearing ruling was reserved upon motions by the respondents to
dismiss the complaint. Said motions are hereby denied.
At the conclusion of the hearing counsel for the Board, for the respondents
and for Locai 205 argued orally before the Trial Examiner, the arguments appear-
ing in the official transcript of the proceedings. Said counsel thereupon waived
an opportunity to file briefs. Counsel for, Local 792, who withdrew from the
hearing before its close, was granted five days from the close of the hearing
within which to file a brief, if he desired. Nor brief has been received.
Upon the record thus made, and from his observation of the witnesses, the
Trial,Examiner makes, in addition to'the above, the following: -
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
a. The respondent Gluck
The Gluek Brewing Company is a Minnesota Corporation having its principal
office and place of business at Minneapolis, Minnesota.'and is engaged in the manu-
facture, distribution and sale of beer. In the conduct of its business it causes
substantial quantities of raw products used in its business, consisting principally
of barley, hops; bottle caps, barrels andlabels, to be purchased and transported'
in interstate commerce from, into and through States other than Minnesota, to its
place of business In 1941 such purchases amounted to about $237,688 in value,
of which about 55 percent originated'outside Minnesota and were shipped to its
place of business in Minneapolis. In the same year its gross sales amounted to
$975,000, of which $210,000 represented sales made in, and shipped to, States other
than Minnesota.
The respondent Gluck employs about 115 employeeS.4
b. The respondent Bach
,The respondent Bach is a Minnesota corporation having its principal' office
and place of business in Minneapolis, Minnesota. It is engaged in the. transporta-
tion and carriage of motor freight. The physical movement and operation of
its trucks, used in the conduct of its business, are confined to the area within
the limits of Minneapolis. '
In-the conduct of its business the respondent Bach acts as agent for several
railroads for the delivery and transportation of merchandise and other goods
from sources within Minneapolis'to'freight depots of these railroads in-the:
same city, and from these depots to destinations within Minneapolis. -.
During September 1942, the respondent Bach delivered and transported from
such railroad depots to destinations in' Minneapolis about 303,560 pounds ofo,
freight, 75 percent of which had been shipped from sources outside'Minnesota
and delivered by the railroads to Minneapolis. In the same month; the respond-
ent Bach delivered to the railroad depots freight amounting to 841,312 pounds,
25 percent of which was shipped by the railroads to destinations outside Minne-
sota. The respondent Bach's annual gross receipts total about $75,000, about'
20 percent of which represents receipts derived by.it in acting as the agent for
the railroads, as described above. Purchases by the respondent Bach, for the
conduct of its business, consist principally of trucks, truck parts, gasoline,- oil
and tires. , During 1941, such purchases amounted to about $8,500, of which 88
percent originated frpm sources outside, Minnesota. All of said purchases„ how-
4 Counsel for the Board and for the respondent Gluck stipulated as to the above facts,
GLUEK BREWING COMPANY ' - • 1087_
ever, were made from 'dealers, distributors , and other persons . located within.'
Minnesota
II THE ORGANIZATIONS INVOLVED -
{
Brewery,,Malt House and Soft Drink Workers Local Union #205 of the Inter-
national Union of United Brewery, Flour, Cereal and Soft Drink Workers of
America,, and Brewery and Beverage Drivers, Warehousemen and Helpers,
Local Union No. 792, A. F. of L, are labor organizations admitting to membership
employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background; the controversy involving Local 205 and Local 792
For many years there has existed a dispute between the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, and the Interna-
tional Union of United Brewery, Flour, Cereal and Soft Drink Workers of
America. In 1933, while both organizations were affiliated with the American
Federation of Labor, the parent organization ruled that the Teamsters' union
'should have jurisdiction over brewery drivers. The Brewery Workers' union, -
however, refused to abide by this decision and, in October 1941, that organiza-
tion was suspended from its affiliation with the American Federation of Labor.
Following the suspension of the international union, Local 205 was suspended"
from the Central Labor Union of Minneapolis and from the Minneapolis'State'
Federation of Labor.e
At about the same time Local 792, affiliated with the Teamsters and the
A. F. of L., began an intensive membership campaign among brewery drivers
and helpers in Minneapolis who were, and had been, members of Local 205.
B. The boycott by Local 792; the transfer of delivery operations to the respondent
Bach;,status of the respondent Gluek's'drivers and'helpers.
For many years a contractual arrangement has existed between the respondent
,Gluck and Local'205. Until April 1942 these contracts covered all drivers and
helpers engaged' in delivering beer to Gluek's city customers, as well as all
inside workers except a few craftsmen. The current agreement, executed in
October 1942, contains .no provision, relative to drivers and helpers,' salthough ,
Local' 205 . has not relinquished its claim to represent employees in these.
classifications e )- , i
In November 1941 the respondent Gluek had upon its pay roll a total of
29 regular drivers and helpers, all of whom, by terms of the contract then in
force, were required to be members of Local 205. About November 24 repre-
sentatives of Local 792 began an attempt to obtain these drivers =and, helpers
as members. The representatives followed the Gluek trucks' and urged -cus-
tomers not to accept delivery of Gluek products. During the next !2 or 3 days
this campaign effectively reduced the deliveries of Gluek beer in the city. Local -
792's boycott was discussed at a meeting of Local 205, held November 26, but
5 The findings as to the business of the.respondent Bach rest upon a stipulation entered
into between counsel for the Board and counsel for the respondent Bach.
9 The findings relative to this dispute are based upon a stipulation entered into by all
parties at the hearing
Between,April and October when terms of the new conti act were being negotiated,
the parties operated in accordance with provisions of the previous agreement, except
as they had pertained to drivers and helpers
It was stipulated at the hearing that negotiations as to drivers and helpers were'
postponed pending the outcome of these proceedings. ,
1'088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was voted to retain membership in Local 205. , When the drivers and Helpers
reported for work the next morning, November 27, representatives of Local
792 were gathered outside the brewery. Dispatcher Marion Norbeck would
not permit them to take out their trucks, and the drivers grouped in discussion.
One remarked that drivers for the respondent Gluek's only local competitor,
the Minneapolis Brewery, had, joined Local 792 and were then loading for
deliveries Norbeck asked members of the group, "what are you fellows going,,
to do now? Are you going to let them go out and plug up your stops for you?"
He then advised them to go to a nearby lunchroom and, talk it over.?
Drivers and helpers then convened in the lunchroom and voted to apply for
membership in Local 792. Representatives of this- organization were admitted
to the meeting, and all drivers and helpers present signed cards authorizing
Local 792 to act as their bargaining representative.i0 Each of them was then
provided with a permit card issued by Local 792 and all returned to the brewery.
Norbeck was shown these cards and the employees were permitted to take out
the trucks and to make deliveries."
Deliveries continued uninterrupted between November 27 and.December 3. On
the evening of the litter date the drivers and helpers attended a, meeting, of Local
205 and voted to,retain their affiliation with that union.
After punching, in their time the, next morning, they were again prevented by
Norbeck from moving their trucks. No deliveries were made that day. Norbeck
testified that he -had acted upon instructions from Alvin Gluck. The latter
testified that he, issued' the order because.:
I was not going to permit our trucks to go out on the street'and have, our
property damaged and have, violence occur to our men, when, I knew what
had happened in the city of Minneapolis the past years, when boycotting and,
picketing. was really put into effect. I was, not going. to subject our men or
our, equipment to that type of treatment.
Since December 3, 1941, and until the hearing, the respondent,Gluek has per-
mitted the delivery of no beer, by drivers and.helpers employed' directly on its
own pay roll. As, described below, between. December 3: and February 1,, 1942,
such deliveries, were made by the respondent Bach. During this period the, re-
spondent Gluek's drivers and helpers continued to be carried. on, its, pay roll,
however, and were paidi at least one day's wage per week, in accordance with the
provision of Gluek's contract with Local, 205. During the same period some- of
these'employees•worked, inside the brewery or in the yard, receiving, pay for such
employment according to the drivers ' scale as set up in the same contract.
C. Interference, restraint and coercion
During this 2-month period various supervisors and officials of'the respondent
Gluck urged' and` advised the drivers and helpers to allign themselves with 792.
DThe above findings as, to Norbeck ' s refusal. to permit the, drivers, to go out on , November
27 and ' lns.advice to, the , eniployees rest upon the credible testimony of driver John Leibel
and lielpeis William, Radke and Leon Allen Norbeck at first denied preventing the
di ivers' depai tun a on this occasion, but thereafter testified' that he did not remember
whether he had issued such instructions on November 27. Norbeck also testified that lie
knew nothing about the lunchroom meeting until "some of the boys went out there " The
Trial Examiner does not credit his denials.
10 Other text of the same card notes that the signer, in effect,' revokes similar authority
granted to any other labor organization . In view of the circumstances under which
these cards wei e signed , however ,, the Tual Examiner does not consider them to constitute
legal revocation of the signets ' membership in 205 or of their rights under the existing
contract
"•Norbeck testified that after the meeting the drivers told him "they had signed cards
"for 792
GLUEX. BREWING COMPANY 1089
On December 6 Norbeck approached a group of drivers in the lunchroom and
remarked,
I am going to tell you something, Alvin Gluck is'damn mad at you, and boy,
you are going to find some tough working conditions around here after this
thing is all settled.12
Several times during December Credit Manager Arnold Klein, Sr., asked driver
Donald Sperzem and others why they did not "sign up and go to work."" On
another occasion William Mueller , Norbeck's predecessor as dispatcher and at
that time in charge of various Gluek properties and accounts , 16 asked Radke,
Allen and other drivers and helpers why they did not "get wise to themselves
and go to work." 15
On January 31, 1.942;the day after the respondents Gluck and Bach entered
into a written contract for the delivery of the former 's beer, as more fully de-
scribed below , representatives of Local 792 held a meeting at a bar, across the
street from Gluek's brewery . Paul Born, steward in Local 205 for the drivers,
went through the plant and urged all drivers and helpers to attend , the meeting.
Norbeck approached drivers Allen , Pyle and others then working in the yard,
and told them to go to the meeting where "fellows from 792" wanted to talk
to them." At this meeting the drivers were again urged to join Local 792 and
promised that if they did so the respondent Gluek would resume deliveries as
before. The meeting broke up without formal action , and the employees returned
to the brewery , without loss of pay for the time spent.
D. The discharge letter of February 3, 1942
On February 3, 1942, the respondent Gluck sent to all but two 1q of the
drivers and helpers until then carried on its pay roll, a copy of a letter which
reads, in part, as follows :
You will please take notice that we have just completed arrangements to
discontinue the delivery department of our business. We have sold and
delivered our trucks and delivery equipment and will have no further use for
our drivers. We regret very much to advise you that it is, therefore, neces-
sary for us to terminate your employment, effective at once. '
The recipients of this letter were permitted to continue as employees and to
perform work in the brewery whenever available. Some of them worked full
time. Others voluntarily ceased to report for work during the following months,
having found jobs in other industries. The wage rate of those who'remained
12'The quotation is from, and the finding is based upon, the credible testimony of Allen.
Noibeck ' s denial of having made the statement is not accepted as true. Although Nor-
beck had formerly been a member of Local 205 and, at that time, held a withdrawal card
from the organization , it is clear that his position as dispatcher had been jeopardized by
the cessation of deliveries Furthermore , as found above, Norbeck admitted, having
permitted drivers and helpers to leave their work during working hours on January 31,
to attend a final meeting at which Local 792 representatives sought their membership
Sperzem ' s testimony on this point is uncontradicted
14 Norbeck testified that he considered Mueller as his super for
1a The finding upon this incident rests upon the credible testimony of Allen and Radke,
despite Mueller's denial The latter admitted that he knew there was "some rumpus"
at this time between 792 and 205
10 Norbeck denied having told any employees to attend the meeting, but admitted having
given Paul Born permission to take employees from their work for this purpose. The
Trial Examiner does not accept Norbeck ' s denial as true
"These two were regular yardmen . but their jobs were embraced within the provisions
of the contract covering drivers and helpers.
513024-43-vol. 47-69
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the respondent Gluek's pay roll, however, was reduced , after February 3, from
the scale for drivers - and helpers to the contractual rate paid for the particular
jobs.
Five drivers,-Paul Born, John Hebzynski , Leo Truzinski , Clarence Nelson
and E. K. Lord , joined Local 792 and on February 2 were assigned - to work
by the respondent Bach, delivering Gluek's beer.
E Contractual relations between the respondents
The respondent Bach began making the respondent Gluek's deliveries on or
about December 5, 1941 , and has continued this service at all times since then.
During December and January Bach charged Gluck on an hourly basis, and em-
ployed as drivers and helpers members of General Teamsters and Helpers Local
544, affiliated with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , affiliated with the American Federa-
tion of Labor, herein called Local 544, a labor organization with which the re-
spondent Bach was then under contract . Bach's drivers were instructed by
him to report each day to Gluek, and from the latter they received each day's
instructions as to deliveries. '
On January ' 30 the respondents entered into a 90'day contract covering the
delivery of all Gluek beer in'the "Twin City " " area and nearby. On the same
day the respondent Gluck sold to the respondent Bach eight of its delivery trucks,
accepting in payment a demand note in the amount of $6,175. By terms of this
contract the respondent Bach agreed ( 1) to make all deliveries within the spec-
ified area , previously made by the Gluek Trucks; ( 2) to make such deliveries in
trucks purchased from Gluek; and ( 3) to use these trucks for no other purpose
than making such deliveries. The contract also provided that the respondent
Bach was to receive, as compensation for the service, "the actual cost of such
deliveries . . . plus ten per cent."
"Actual cost" was thus defined by the contract :
A reasonable charge for the storage of the ' above-named trucks, gas , oil and
grease consumed - and used in said trucks , thei reasonable cost of the mainte-
nance and repair of said trucks , all Social Security taxes and unemployment
insurance taxes covering the drivers and helpers working on said trucks, all
insurance , including liability and property damage, fire and theft , carried
. . . on said trucks , and all wages paid to drivers and helpers ' in the opera-
tion of said trucks.
Although not set forth specifically by the written document , by'agreement the
respondentf Gluek has also paid the respondent Bach a weekly "administrative"
or "overhead " charge.10 Also by agreement, Bach is to charge Gluck for annual
"depreciation" of the trucks bought from Gluek. By this arrangement , accord-'
ing to the testimony of President Alden Bach , Gluek will , within five years, reim-
burse him for the entire cost of the trucks, as purchased by him from Gluek, on
January 30 or thereafter.20
On April 28 , the above -described contract was extended for an additional period
of 1 year. It was in effect at the time of the hearing.
18 Minneapolis and St Paul.
"Bach thus explained this charge : "That is made up of figures which are represented
by office expenses , bookkeeping and some administrative cost regarding our own salaries
and that is broken down so that we have what we call an administration cost for each
unit that-we operate."
° Between January and the time of the hearing Bach purchased three more trucks
from Gluck under the same conditions.
GLUEK BREWING COMPANY
F The contract between the respondent Bach and Local 792
1091
The respondent Bach undertook Gluek's deliveries in accordance with the
above contract on February 2. As drivers and helpers it employed, on and
after that date, employees not previously on its pay roll. All of them, except-
ing five, were hired by Bach through Local 792. The other five were Born, Heb-
zynski, Truzinski, Nelson and Lord, named'above as having been regularly em-
ployed by the respondent Gluek until February 2. Bach testified that he hired
through 792 with permission of 544 with which he was under contract'for the
hiring of regular truck drivers. He explained that he did this because he knew
792 was also affiliated with the A. F. of L. while 205 was not.
During, the latter part of February Bach and 792 signed a "memoranda" of
"conditions pertaining to drivers," and on July 1'entered into a closed-shop con-
tract retroactive to,Ap'lril 1, 1942, and covering a period until March 31, 1943.
Bach testified that he knew, when signing the "memoranda" in February, that
all his drivers and helpers delivering Gluek's beer were members of 792 because
"in conversation with these employees I found out what Union they were affili-
ated with." From this testimony it may reasonably be inferred, and the Trial
Examiner finds, that each of the above-named five drivers, formerly on the-
respondent Gluek's pay roll, received employment through Bach only by joining,
792
G Delivery operations before and after the transfer
With the exception of routing, the delivery operations have remained practi-
cally the same, before and since their, transfer to Bach. In the morning drivers
pick up the Gluck trucks at Bach's garage, report to the brewery, load beer,
obtain whatever special orders the respondent Gluck may have'received, are
given C. 0. D. slips for orders of this nature, and leave the brewery for their
day's deliveries. At night they return undelivered beer to the brewery and
store the trucks at Bach's garage Cash they receive during the day is turned
in to Bach for safe-keeping over night, but is picked up again the next morning
by the same driver for delivery to Gluck
As to servicing of Gluck accounts, it was stipulated dining the hearing that
the work of drivers and helpers, prior to December 6th, 1941 and January
30th,, 1942, included tapping of keg beer, occasionally replacing tap rods,
occasionally putting washers in air and beer lines, and occasionally driving
hoops on leaky kegs, and that such work as described above is now being done
in like manner'
Gluck furnishes all tools used in such servicing.
All drivers and helpers wear uniforms paid for by the respondent Gluck, with
Gluck advertising insignia upon them. The delivery trucks, displaying Gluck
advertising, have been altered only to the extent of also bearing the added
name, in small letters "Bach Transfer Co "
The only major change in delivery operations., under the respondent Bach,
has been the reduction in number of routes covered and the consequent reduc-,
tion in number of drivers and helpers required.
Gluek and Bach together evolved a "zone system" plan, which (the latter de-
scribed as "a' more intensive use of the trucks," and "an attempted operation
to effect certain economies." "Call backs" 21 were eliminated ; and deliveries to
21 Bach thus described "call backs" "A call back may be a call back for a C. 0. D.
They make a delivery to a stop C 0 D and maybe in the event the money was not there
they would go on delivering and would call back later in.the day , to make this delivery
and make it C 0 D Another call back would be where they are to pick up empties."
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some customers were made fewer times each week Gluek made final decisions
as to any matter affecting customer relationships.
As a consequence of the zoning plan, the respondent Bach was able to begin
delivering in February with only 11 drivers and helpers. Thereafter he in-
creased this number to 17. At the time of the hearing 15 drivers and helpers
were engaged exclusively in the delivery of Gluek beer.
The respondent Bach now covers, in 11 routes, practically the same territory
as that divided into 17 routes before December 4 In operating the 17 routes,
the respondent Gluck regularly employed 29 or 30 drivers and helpers.
H Conclusions as to the transfer of delivery operations
The complaint alleges that the transfer of delivery operations early in Decem-
ber, 1941,, was made for the purpose of interfering with rights of the respondent
Gluck's employees as guaranteed by Section 7 of the Act. The answer of the
respondents deny this allegation. In its answer the respondent Gluek makes no
affirmative allegation as to its action in December, but alleges that "the sole and
only purpose" of entering-into the contract with Bach on January 30, 1942, "was
to effectuate an economy in its delivery department." The respondent Bich, in
its'answer, alleges that it began making Gluek's deliveries in December "under
an oral agreement", and that in January it entered into a written contract with
the respondent Gluck covering the same operations In oral argument at the
close of the hearing, counsel for the Board contended that the delivery arrange-
anent between December and February was merely "a temporary expedient" and
that the later contractual relationship was "purely a• subterfuge" to escape re-
sponsibility under the Act.
At the hearing both Alvin and Eugene Gluck testified that a change in delivery
system had been contemplated and planned some time before the jurisdictional
dispute arose, and that the transfer of such operations to Bach would have been
made early in 1942 regardless of the dispute. As to the action of December, Alvin
Gluek testified that it was taken to prevent "damage to our property", and Eugene
Gluek testified that deliveries were transferred "because we couldn't operate
trucks" under 205.
In support of its claim that the sole purpose of the January 30 contract "was
to effectuate an economy," the respondent Gluck introduced financial statements
tending to show that savings had, in fact, been made by transferring deliv-
eries to Bach. According to these statements, the total delivery expense to Gluck
between February and October, 1941, was $61,580 28, while during the same period
in 1942 Gluek has paid Bach only $45,039 41 22 From the fact that savings actually
materialized, however, it does not necessarily follow that they were anticipated
and -that because of such anticipation Gluck decided upon this method of deliv-
eries The testimony of [Alvin and Eugene Gluek'plainly prevents such a con-
clusion. Alvin Gluek testified that before Feb uai y, 1942. Bach submitted no
estimate of comparative costs "because he didn't know what ,the costs were."
Eugene Gluek testified that decision to reduce the number of routes and drivers
was not decided upon until "after we signed our contract, after we made up our
agreement," which was on January 30, 1942. The latter also testified' that the
reduction in the number of drivers accounted largely for the savings made Thus
it is clear that Gluek's decision to employ Bach on a cost-plus basis did not stem
directly from substantial assurance that savings, in pre-determined or even
estimated amount, would result.
^ It was conceded , during the, hearing , that the latter total does not include "deprecia-
tion" cost , as described above.
G-LUEK BREWII'G COMPANY 1093
Nor did either Bach or Gluck adduce convincing evidence that only by their
contractual arrangement could economies have been made. When asked as to
what had caused delivery savings, under his contract with Gluck, Bach answered
that "we are operating less equipment," and that the amount of equipment was
reduced by cutting down the number of routes The following testimony of
Eugene Gluck casts further doubt upon the validity of the claim that the transfer
was an economy measure :
Q. Now, isn't it a fact that if you had been operating the same number of
trucks and using the same number of men and routes as Bach was using,
your savings would have been the same as his?
A. I couldn't say.
Q. Well, in what respect wouldn't it?
A. We would have savings, yes.
Q. And as great as his?
A. I don't know:
Q. In what respects wouldn't it have been?
A. We had no experience. He may have been operating his trucks more
efficiently than we did.
Q. How would that he reflected?
A. That would be reflected in the number of packages handled by his men
and by our men.
Q. Well, you could do that too, could you not?
A. Perhaps.
In summary, the evidence fails to support Gluek's allegation that the transfer
of delivery operations was "solely" an economy move. The testimony establishes
(1) that the decision, to make such transfer was based upon no reasonable
certainty that savings would result, and (2) that no savings actually materialized
which might not have been effected by the respondent Gluek had the transfer not
been made. The Trial Examiner also finds, contrary to the implied claims of
Alvin and Eugene Gluek, that the arrangement of December 5 and the contract
of January 30 were not two separate transactions, but that the latter stemmed
directly from the former and was an integral part thereof.
Since both Alvin and Eugene Gluek admitted that the intial action was taken
because of conditions arising from the jurisdictional controversy, there remains
only to be determined whether or not it was designed to and did interfere with
rights guaranteed to their employees by the Act. ,
The evidence establishes that the respondent Gluek had knowledge, on the
morning of December 4, of its drivers' decision to remain loyal to Local 205
and, to prevent further boycotting, would not allow the employees to make
deliveries on that day or thereafter. It has been found that the respondent
Gluek permitted its drivers to operate between November 27 and December 4,-
a period during which Local 792 had lifted its boycott, and that on various
occasions after December 5 supervisors urged employees to join Local 792.
Alvin Gluck testified that in mid-December he informed representatives of Local
205 that he would "put our trucks on the street," with Local 205 drivers, when
the dispute "cleared up." These findings lead to the inescapable conclusion that
the efforts of Local 792 to coerce Gluek's drivers into its ranks created a situation
which threatened to interrupt, if not permanently prevent, further delivery
of Gluek's beer in Minneapolis.
Plainly the boycott situation, which affected both the employer and the em-'
ployees alike, was not precipitated by Gluek. The action, however, that it took
to meet the situation was of its own volition and its own responsibility.' Alvin
13 See N. L. R B. v Star Publishing Company, 97 F. (2d) 465 (C. C A. 9, 1938).
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gluek testified that he did not inform Local 205 of his plan of "dismissing" the
delivery department until February 3, after the signing of the contract with the
respondent Bach. He also admitted that he said nothing to Bach as to the em-
ployment of the drivers and helpers on his own payroll.
Nor can it be found that the respondent Gluek made any effort to seek solutions
to the problem other than that of depriving its employees of their jobs as drivers
and helpers. Eugene Gluek testified that the respondent Gluek took no legal
action to prevent boycotting by Local 792, and that, it did not seek an investigation
by the Board or any other agency.
The action taken by the respondent Gluek resulted (1) in depriving its em-
ployees, who remained loyal to Local 205, of their employment as drivers and
helpers; (2) in giving support to Local 792 by providing for its members' posi-
tions already covered by its long-standing closed-'shop contract with Local 205;
and (3) in causing at least five of its employees to join Local 792. Plainly the
effect of the respondent Gluek's action, whatever its intent, was active inter-
ference with rights guaranteed to employees by Section 7 of the Act.
In giving effect to the respondent Gluek's action, the respondent Bach became
an essential instrument. Bach himself characterized his role, at the hearing, as
that of a "transfer agency" for the delivery of Gluek's beer. Between December
and February the respondent Bach simply hired out its trucks and drivers to
the respondent Gluek, by oral agreement. From February and until the hearing
the respondent Bach has served even more clearly, by virtue of the restrictive
terms of the written contract, as an agent operating in the interests of the re-
spondent Gluek. The respondent Gluck still retains control over the delivery of
its products, both as to the routes of the drivers and the use of the trucks. In
general effect, the present delivery arrangement differs from that which existed
ibefore December 5, 1941, only in the operating personnel and in the fact that the
respondent Gluek now pays 10 percent more than the actual cost of such oper-
ations. Had other drivers and helpers on the respondent•Gluek's payroll joined
Local-792, as did the five above-named, it is reasonable to believe that the driver
and helper personnel would have remained the same throughout the period in
question, and would have been subjected only to such change in numbers or in
sharing of work as normally would have resulted from the change in zoning.
Under the circumstances, and insofar as the employer-employee relations are
concerned, the Trial Examiner concludes and finds that the respondent Gluek and
the respondent Bach are jointly and severally responsible for the maintaining
and enforcing of the agreements, oral and written, which have been found to
interfere with rights of employees guaranteed by Section •7 of the Act.
1. Conclusions as to the discharges and other acts of discrimination
It has been found by the transfer of delivery operations 29 drivers and helpers
were deprived of their regular employment. The respondent Gluek, after Decem-
ber 4, 1941, by permitting such employees to work inside the plant, under circum-
stances described above, did not thereby reinstate its employees to their former or
substantially equivalent positions. Its notice of February 3, 1942, simply articu-
lated its lockout action which had already been taken on December 5, 1941, when
it prevented its employees from registering their time and performing their reg-
ular duties. In this action the respondent Bach, by filling the positions with its
own men, was jointly responsible. Therefore the Trial Examiner concludes and
finds that on December 5, 1941, the respondents discharged as drivers and helpers
the employees named in footnote 1 above, with the exception of Dominick Heb-
zynski and since that date have refused to reinstate all of them, with the ex-
.ception of five, (Paul Born, John Hebzynski, Leo Truzinski,- Clarence Nelson and
GLUEK BREWING COMPANY 1095
E. K. Lord) to their former positions, and that such discriminatory discharges and
refusals to reinstate was because of their membership in Local 205 and to dis-
courage membership in Local 205 and to encourage membership in Local 792. As
to the five above-named employees, it is found that the respondents discriminated
as to their hire and condition, of employment by requiring that they loin Local 792
in order to regain their former positions as drivers and helpers in February, 1942,
and that such discrimination effectively discouraged membership in Local 205
and encouraged membership in Local 792.
J. Conclusions as to the respondent Bach's contract with Local 792
It has been found that there exists between the respondent Bach and Local 792
a closed-shop contract covering the drivers and helpers now engaged in the
delivery of the respondent Gluek's products. The respondent Bach entered into
this contract at a time when there was still in existence a similar contract between
the respondent Gluck and Local 205 Local 792 clearly did not represent a ma-
jority of the drivers and helpers covered by the contract with Local 205 and who
had been ousted from their positions by the respondents' illegal action Indeed,
it cannot be found that Local 792 represented even the five above-named individ-
uals, since their change in affiliation from Local 205 was unmistakeably forced
upon them by the respondents. Therefore the Trial Examiner finds that the
contract between the respondent Bach and Local 792 does not come within the
proviso of Section 8 (3) of the Act, is invalid, null and void, tends to perpetuate
the unfair labor practices above described, and discriminates as to hire and tenure
of employment, thereby discouraging membership in Local 205 .and encouraging
membership in Local 792. -
K. Conclusions as to interference, restraint and coercion
The Trial Examiner concludes and finds that by the acts of the respondents
Gluek and -Bach, above described, and by the : emarks made by Norbeck, Klein
and Mueller, above described, the respondents have interfered with, restrained,
and coerced their employees in the exercise of rights guaranteed by Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents Gluek and Bach, set forth in Section III
above, occurring in connection with the operations of the same, 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 obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that.the respondents have'engaged in certain unfair labor prac-
tices the Trial Examiner will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
As found above, the respondent Gluek's conduct in transferring its delivery
operations to the respondent Bach in December 1941 and its discrimination
as to the hire and conditions of employment of the 29 employees (excepting
Dominick Hebzynski) named in footnote 1 above, were in pursuance of unfair
labor practices. It has been found that the respondents are jointly and severally
responsible for the unfair labor practices found above. It will therefore. be
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that the respondents shall be jointly and severally responsible in
the application of a remedy which will effectuate the policies of the Act.
It will he recommended that the respondents offer to each of the employees
named in footnote 1 above (excepting Dominick Hebzynski), immediate and
full reinstatement to their former positions as drivers and helpers or substantially
equivalent positions, and fully restore to them all rights and privileges en-
joyed by them as acknowledged employees of the respondent Gluck prior to
December 5, 1941, and, if necessary, discharge any or all of the drivers and
helpers employed by the respondent Bach for the purpose of delivering the
respondent Gluek's products, with the exception of the five employees named
in footnote 2 above. In the event that a sufficient number of positions are
not available, after the discharge of the employees above described, to which
reinstatement may be made, it will be recommended that employees for whom
such reinstatement is now unavailable shall be placed upon a preferential
list for employment and shall be reinstated to their former or to substantially
equivalent positions when such employment becomes available and before any
persons with less seniority are hired for such work.'
It will be also recommended that the respondents make whole all of the em-
ployees (except Dominick Hebzynski) named in footnote 1 above, for any
loss of pay they may have suffered by reason of the respondents' discrimination
by payment to each of them of a sum of money equal to the amount he would
normally have Earned as wages from the date of such discrimination to the
date on which the respondents offer him reinstatement or places him on a
preferential list for employment, less his net earnings during such period
Upon the basis of the foregoings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CoNmusiONs OF LAW
1. Brewery, Malt House and Soft Drink Workers Local Union No 205 of
the International Union of United Brewery, Flour, Cereal and Soft Drink
Workers of America, and Brewery and Beverage Drivers, Warehousemen and
Helpers, Local Union No. 792, A. F. of L, are labor organizations within the
meaning of Section 2 (5) of the Act.
(2) By discriminating in regard to the hire and tenure of employment and
terms and conditions of employment of the following named employees, thereby
discouraging membership in Brewery, Malt House and Soft Drink Workers
Local Union No. 205 of the International Union of United Brewery, Flour, Cereal
and Soft Drink Workers of America, and encouraging membership in Brewery
and Beverage Drivers, Warehousemen and Helpers, Local Union No. 792, A. F.
of L, the respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act :
24 Matter of Greer Steel Company and Tuscora Lodge No 173, Amalgamated Association
of Iron, Steel and Tin Workers of North America ( C. I. 0.), 38 N. L It . B. 65. See also
Matter of Butler Brothers et at, 41 N L R. B. 843
"By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work - and working
elsewhere than for the respondent , which would not have been incurred but for the
unlawful discrimination and the consequent necessity of seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America , Lumber and Sawmill Workers Union, Local 1590, 8 N L R B 440
Monies received for work performed upon Federal , State , county, municipal , or other
work-relief projects shall be considered as earnings . See Republic 'Steel Corporation v.
N. L it. B., 311 U. S. 7
i
GLUEK BREWING COMPANY . 1097
Axel Forsgren Mike Heller John Leibel
Earl Morgan Mike Steuck George Tegeder
Armand Born Leslie Fortman Paul Gabbert
A J Jakubec Walter Kohnen Walter Leibel
John T. Powers Clarence B 'Pyle Donald Spurzem
Leon Allen Harry Audette Eddie Midthum
Al Midthum William G Radke Frank Wrzos
Ken Hartley Leonard Leibel George Macko
Paul Born John Hebzynski Leo Truzinski
Clarence Nelson E. K. Lord
(3) By interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices, within the meaning of
Section S (1) of the Act.
(4) The aforesaid unfair labor practices are unfair labor practices affecting,
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
Trial Examiner recommends that the respondents, Gluck Brewing Company and
Bach Transfer & Storage Company, Minneapolis, Minnesota, jointly and severally,
and their officers, agents, successors, and assigns, shall :
1 Cease,and desist from :
(a) Discouraging membership in Brewery, Malt House and Soft Drink Work-
ers Local Union No. 205 of the International Union of United, Brewery, Flour,
Cereal and Soft Drink Workers of America, or any other labor organization of
their employees, or encouraging membership in Brewery and Beverage Drivers,
Warehousemen and Helpers, Local Union No. 792, A. F. of L., or any,other labor
organization of their' employees, by discharging or refusing to reinstate any of
their employees or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of their employment ;
(b) Giving effect to any agreement made with Brewery and Beverage Drivers,
Warehouseman and Helpers, Local Union No. 792, A. F of L., in respect to rates
of pay, hours of employment or other conditions of employment, or recognizing
Brewery and Beverage Drivers, Warehouseman and Helpers, Local Union No. 792,
A. F. of L as the representative of drivers and helpers engaged in the delivery of
the respondent Gluck's products;
(c) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective
-bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act : _
(a) Offer to the employees named in paragraph 2 of "Conclusions of Law" above,
immediate and full reinstatement to their former or substantially equivalent
positions for which they are qualified, or place them upon a preferential list of
employment in accordance with the procedure set forth in the section entitled
"The Remedy" above, without prejudice to their seniority, and other rights and
privileges;
(b) Make whole the employees named in paragraph 2 of "Conclusions of Law"
above, for any loss of pay they may have suffered by reason of the respondents'
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination against them in regard to their hire and tenure of employment,
by payment to each of them of a sum of money equal to the amount he would
normally have earned as wages from the date of such discrimination to the date
on which the respondents offer him reinstatement or places him on a preferential
list for employment, less his net earnings 2e during that period;
(c)Withhold recognition from Brewery and Beverage Drivers, Warehousemen
and Helpers, Local Union No. 792, A. F. of L., as the representative of their
drivers and helpers engaged in the delivery of the respondent Gluek's products
for the purposes of negotiating with respect to grievances, labor disputes, rates
of pay, hours of employment or other conditions of employment ;
(d) Post immediately in conspicuous places in and around their plants and
garages in Minneapolis, Minnesota, and maintain for a period of at least sixty
(60) consecutive days-from the date of posting, notices to their employees stating
(1) that the respondents will not engage in the conduct from which it is recom-
mended that they cease and desist in paragraph 1 (a), (b), and (c) of these
recommendations; (2) that the respondents will take the affirmative action set
forth in paragraph 2 (a), (b), and (c) of these recommendations; and (3) that
the respondents' employees are free to become or remain members of Brewery,
Malt House and Soft Drink Workers Local Union No. 205 of the International
Union of United Brewery, Flour, Cereal and Soft Drink Workers of America ;
and-that the respondents will not discriminate against any employee because of
'membership in that organization ;
(e) Notify the Regional Director for the Eighteenth Region within ten (10)
days from the date of the receipt of this Intermediate Report, what steps the
respondents have taken to comply therewith.
It is'further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondents to take the
action aforesaid.,
As provided in Section 33 of the Rules and Regulations of the National Labor
Relations Board-Series 2-as amended, effective October 28, 1942, any party
may within fifteen (15) days from the date of the entry of the order transferring
the 'ease to the Board, pursuant to Section 32 of Article II of said Rules and
Regulations, file with the Board, Shoreham Building, Washington, D. C. an origi-
nal and four copies of a statement in writing setting forth such exceptions to
the Intermediate Report or to any other part of the record or proceeding (includ-
ing rulings upon all motions or objections) as he relies upon, together with the
original and four copies of a brief in support thereof. As further provided in
Section 33, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board' within ten (10) days from
the date of the order transferring the case to the Board.
C. W. WHITTEMORE,
Trial Examiner.
Dated December 8, 1942.
26 See footnote 25, supra.