Wm. Tehel Bottling Co.

National Labor Relations Board - Board Decisions

Mar 18, 1941

30 N.L.R.B. 440 (N.L.R.B. 1941)

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